[trial.misc.legal.software] Intellectual Property

abbott@aerospace.aero.org (08/08/90)

Brad Templeton writes:

| Property ownership is a fundamental principle in our society, though some
| may disagree with it.  
...
| But if you *do*
| believe in property, then I argue that intellectual property is the truest
| form of property there can be.   The relationship between myself and my
| real estate is a virtual one created by society and law.  The relationship
| between myself and my software is a real one that exists outside of society.
| Society could crumble and my land would not be my land, but my thoughts would
| still be mine.

It seems to me that the legal ownership relation is a legal fiction no
matter what is owned.  So I don't buy this argument.  (I think the
distinction you are making is between legal ownership and something like
personal investment.  One could put a lot of work into, say, a garden in
a public park and feel a sense of proprietorship over the garden, but
that is not the same as legal ownership.)

More importantly, I would argue against the notion of intellectual
property at all.  Although one can make laws that attempt to ascribe
ownership to ideas, it is hard for me to understand that concept in the
abstract:

(1) If ideas can be owned, then what is the distinction usually made in
patent circles between an idea that expresses a law of nature
(presumably not patentable) and any other kind of idea?  Can one really
draw such a line?  Any idea that can be realized in a physical device
seems like a law of nature--at least in a very specific way.

(2) Even if one wanted to assign ownership rights to an idea, how could
it be done?  It doesn't make sense to attempt to collect royalties every
time someone thinks your idea.  (Similarly it doesn't make sense to
attempt to collect royalties every time someone hums a copyrighted
song.)

(3) If some ideas can be protected, why not all ideas?  What about
political analyses, economic theories, frameworks for literary or
artistic criticism, management strategies (e.g., just-in-time
inventories), etc.  Don't the creators of those ideas deserve to benefit
from their creations as much as the creators of other ideas?

One argument for intellectual property rights is that without them
innovation would fail to flourish.  But we know this is not so.  Look at
science in general which has done quite well without much protection,
and software in particular, which has also.

One reason for this success without protection is that people like to
invent whether or not their inventions make them wealthy.  Generally,
though, creators of ideas do benefit from their work.  They gain
recognition and develop a reputation.  They are more in demand as a
result of past good work.  Most people find such recognition and the
financial and emotional rewards that accompany it sufficiently
motivating.

The primary economic argument in favor of protecting intellectual
property seems to be the apparent need to encourage capital investment
in its development.  Would a drug company spend the millions of dollars
required to find a new drug if it couldn't protect the fruits of its
investment?  If you look at the software industry the answer appears to
be "yes."  The pressure to keep ahead of the competition forces such
development whether or not it can be protected.

On the other hand, I do believe that one should be able to protect one's
(physical) creations.  But that protection can be done contractually.
One can refuse to sell a copy of one's software unless the buyer agrees
not to copy it for a third party.  This sort of protection leads into
many difficult issues, but I would hope that the notion of intellectual
property could be avoided.

-- Russ Abbott

brad@looking.on.ca (Brad Templeton) (08/09/90)

I say that intellectual property is the truest form of property from
a philosophical standpoint, not a legal one.  The legal system does not
quite recognize this yet.

Legal ownership is of course a construct of society.  But my relationship
to my creations and my labour is real.  "Joe built that gadget, it is
Joe's gadget." is a true statement regardless of the existence of any other
people or any society or law.  "That is Joe's land" hasn't got nearly that
strength.

What is valuable, to us, about any material thing, other than the most
primative foods and freely found raw materials?   It is the human creativity
and labour that went into it, not the basic constituents.   A car is more
valuable than a pile of metal.  A car made by good manufacturing methods is
more valuable than one shoddily made, and a car of good design is yet more
valuable.  The value lies not in the pile of metal, but in the skilled labour
and the design.

This is true in just about everything.   So in fact, in the case of a
piece of physical property that we value, what we *really* value is the
combination of intellectual property and labour in it.  If not, mind if I
trade your car for an equivalent hunk of scrap metal?

There are some special exceptions, such as real estate, but by and large this
is the rule.

You own your own body -- that's the first ethic of a free society.  You own
your labour and your thoughts.  Nothing is more "yours."

Expanded into law, this says that intellectual property should be the strongest
form of property.

BUT:  It is important to remember that while you own your own thoughts and
creations, so do other people own theirs.  Even if they are identical.  The
law has trouble dealing with that.  Morally, this is how it should be.  In
the law, it's tougher.   Most of the problems people have with IP law are
actually these problems of enforcement, or so I feel.

I find no problem in identifying those intellectual creations which should
belong to a person.  Some people say, "how can you own an idea?"  I say,
"how *can't* you own it?"  But that applies to everybody.

In forming the law, people have already seen that (with the concept of
copyright) some things are very clear.  A novel or long piece of software
are clearly associated with their creator.  The simpler the thing, the
tougher the decision gets.

When it comes to patent, some express concern that people might patent
"laws of nature."  I find little ambiguity.  It is clear that F = ma is
a law of nature, it is equally clear that complex algorithms that nobody
ever thought of before are not.  Mathematics itself is a human construct.
Laws of nature can be expressed within mathematics, but mathematics itself
is no law of nature.

This is not an easy problem, but I believe it can be codified reasonably well
with time.  We're really only starting now.
m
-- 
Brad Templeton, ClariNet Communications Corp. -- Waterloo, Ontario 519/884-7473

abbott@aerospace.aero.org (08/10/90)

Brad Templeton writes:

| I say that intellectual property is the truest form of property from
| a philosophical standpoint, not a legal one.

What do you mean by "property from a philosophical standpoint?"

| ...
| Legal ownership is of course a construct of society.  But my relationship
| to my creations and my labour is real.  "Joe built that gadget, it is
| Joe's gadget." is a true statement regardless of the existence of any other
| people or any society or law.  "That is Joe's land" hasn't got nearly that
| strength.

If you are talking about recognition, why not just say so?  Why muddle
the issue by talking about property?  I agree that recognition is
important; plagiarism is considered one of the worst academic crimes.

| ...
| When it comes to patent[s], some express concern that people might patent
| "laws of nature."  I find little ambiguity.  It is clear that F = ma is
| a law of nature, it is equally clear that complex algorithms that nobody
| ever thought of before are not.  

I'm afraid its not all that clear to me.  As you say:

| Mathematics itself is a human construct.  Laws of nature can be 
| expressed within mathematics, but mathematics itself is no law of
| nature.

Besides, F=mA isn't really a law of nature; its a Newtonian
approximation (I believe).  So F=mA is just the expression of an
observation that has a relatively broad range of applicability.  On the
other hand, bubble sort always works.  So why isn't it a law of nature?
Whenever the sequence of operations specified by bubble sort occurs, the
result is a sorted list.

-- Russ Abbott

brad@looking.on.ca (Brad Templeton) (08/10/90)

In article <80565@aerospace.AERO.ORG> abbott@aerospace.aero.org () writes:
>
>Brad Templeton writes:
>
>| I say that intellectual property is the truest form of property from
>| a philosophical standpoint, not a legal one.
>
>What do you mean by "property from a philosophical standpoint?"

As I admitted, ownership is a legal construct.  However, in designing our
laws, we usually draw upon philosophical underpinnings.  These are varied.

Some would use a strictly utilitarian system, saying that patents exist
only to encourage disclosure by bribing the inventor with a temporary
monopoly.   I think that is one reason for patents, but many also feel
that there is something "right" about the inventor being rewarded.

In designing a law of property, we let people called owners control what
we call property.   For control is what ownership means.

We draw upon several ethics for this.  The utilitarian is just one.
But, as Yoda said, there is another.  It is based on the concept that
ownership should derive from creation -- that you own the results of your
labours.

Some say that you should own some of these results but not others.
The area of question is those results which are not in themselves
manipulations of matter.   I feel that's wrong, for it is creative work
that is the most valuable thing in society -- that's been proven time
and again.

People object to its ownership for a couple of reasons.

	a) It is hard to quantify.  While it's easy to see what "my car"
	   is, it's harder to see what "my invention" is -- at least for many.
	b) The result of strict physical labour is hard to copy -- it
	   usually requires the same labour over again.  IP is often
	   trivial to copy, and worst of all, it does not seem (on the
	   surface) to hurt the creator when you do it.   (Once you realize
	   that ownership is control, not posession, you see past this, but
	   many don't)
	c) It raises the sticky question of independent invention.


-- 
Brad Templeton, ClariNet Communications Corp. -- Waterloo, Ontario 519/884-7473

abbott@aerospace.aero.org (Russell J. Abbott) (08/10/90)

In article <1990Aug10.043721.2081@looking.on.ca> brad@looking.on.ca
(Brad Templeton) suggests:

> [O]wnership should derive from creation -- ... you [should] own the
> results of your labours.

But you give no argument in support of this position other than that
that is the way you and some others think it should be.  I and some
others don't think it should be that way.  It seems to me that we are
going around in circles.

As I've said before, I believe that recognition of creativity is
important (and perhaps others wouldn't agree with me about that), but I
don't believe that ownership is.  Does it just come down to a difference
of preferences?

I've given reasons why I don't think the concept of ownership (or legal
control if you prefer) should apply to all products of human creative
activity.  You haven't given reasons why you think it should (other than
that you do think so), and you haven't dealt with my arguments about why
it shouldn't.  You just keep repeated your assertion that you believe
creation should imply ownership/control.  Perhaps there just isn't any
more to say.

-- Russ Abbott

brad@looking.on.ca (Brad Templeton) (08/11/90)

Well, often when it comes to primative philosophical elements like this,
things are reduced to merely what people like.

But not entirely.  It is largely a matter of personal choice when one
decides what basic philosophy should underlie the law.  But it can still
be debated to a degree.

I have suggested that the basis for property should be, in the simplest
terms, "I created/built/made it, it is mine."   This is then tempered by
the expediencies of trying to make a legal system.

I believe this is largely the way our legal system works.  By and large
creation *is* the source of property in our society.  (Things like "first
use" of real estate also exist, but they are more arbitrary.)

The exceptions to the rule that the law defines usually come from areas
that are either new (in the case of software law, for example) or
just plain hard to define.  (in the case of software law, for example :-)

"Hard to define" comes up in particular when there is conflict.  This
conflict comes from the fact that two people can easily *posess* a piece
of I.P., while only one is the creator.  Even worse, *both* can be the
creator.   If everybody were honest and true, this would not be a problem.
But ... the real world isn't that way.

So while you can come up with reasons why IP doesn't qualify for the
same status, I am open to hearing what other people feel is the simple
basis of property.   In particular, show me a basis for property that
excludes IP for physical reasons, rather than the difficulty of
definition described above.   "I don't thing somebody should own something
you do in your head" is not enough.  (Well, it's enough, but it can't be
used in debate.)
-- 
Brad Templeton, ClariNet Communications Corp. -- Waterloo, Ontario 519/884-7473

abbott@aerospace.aero.org (Russell J. Abbott) (08/13/90)

In article <1990Aug11.040632.21692@looking.on.ca> brad@looking.on.ca (Brad Templeton) writes:
>...  I have suggested that the basis for property should be, in the simplest
>terms, "I created/built/made it, it is mine."  ...
>
>I believe this is largely the way our legal system works.  By and large
>creation *is* the source of property in our society.

I disagree on two counts.  

(1) Very little of what is considered owned was created by the owner.
On the contrary, most of what is consiered owned was not created by the
owner.  For the most part most of what is owned was purchased, and much
(if not most) of the money (or other media of exchange) for buying
things was received as a result of selling one's labor, i.e., performing
a service.  Of course there is also inheritence, winning the lottery,
legalized stealing, selling things that one owns, etc., none of which
involves creation.  Of course one can create something and sell it or
provide stewardship in the creation of something (as in farming).  But
for the most part, creation plays little part in the ownership of most
things in society.

If you consider manufactured goods, a prospectively good example for the
creation-means-ownership position, the component parts were generally
purchased, and the manufacturer performed the service of putting them
together.  (E.g., consider a manufacturer of clothing or breakfast
cereal.)  Would you argue that an assembly line is a creative agent?  I
doubt that I would.  Yet most things that are owned as a result of
production are a result of such a mechanical process.  It seems to me
that the manufacturer owned the component parts before they were
assembled and he owns the assembled element afterwards, but creativity
was not involved.  If the assembled element is more valuable that the
component parts, it is the assembly process that has provided some
value-added.  But creativity needn't (and usually doesn't) play a part
in that value added.  

In addition, a manfuctured product is not owned because the manufacturer
built it, it is owned because the pieces were owned ahead of time.  If
you built something out of stolen components, you would not own the
result.  In fact, you would not even be entitled to ownership of whatver
value added your work provided; the original owner would.

(2) Very little of what is created is considered owned by the creator.
As I've pointed out before, hardly anyone thinks people own their ideas.
(You may be an exception.)  Did you ever hear of a scientist, political
analyst, etc. say about an idea, that it was his and that no one else
could use it?  Of course not because no one would take him seriously.

>... I am open to hearing what other people feel is the simple
>basis of property.

I would be interested in that also.  I wonder whether the notion of
ownership is a primitive or if there is something more primitive on
which it can be based.  I don't know what the philosophical status of
the notion of ownership is.

-- Russ Abbott

brad@looking.on.ca (Brad Templeton) (08/15/90)

Of course most people didn't create what they own.  But they almost always
traded something for it, namely money, which they (in theory) earned.

And they earned it in exchange for labour or creative work.  (I am
including labour here.)

There are other examples, most of them centered around land, which you
get to own without creating.  And a few around luck, like lotteries.

But by and large the way the system is supposed to work is that ownership
is derived from creation/labour, and of course ownership gets traded.
-- 
Brad Templeton, ClariNet Communications Corp. -- Waterloo, Ontario 519/884-7473

abbott@aerospace.aero.org (Russell J. Abbott) (08/15/90)

In article <1990Aug14.172413.10447@looking.on.ca> brad@looking.on.ca (Brad Templeton) writes:
>...
>[B]y and large the way the system is supposed to work is that ownership
>is derived from creation/labour, and of course ownership gets traded.

Even though you have broadened your claim that ownership is derived from
creation to the claim that it is derived from labor generally, I'm
afraid I still can't agree with you.  

Most typically ownership is *traded* for labor not *derived* from it.  I
trade you my ownership of some money for your services; you don't derive
your ownership of that money from your labor.  You might argue that you
"own" the services that you provide before providing them.  But I'm not
sure what it means to say that you own a service that you haven't yet
provided other than that you have the right to chose not to provide it.
I'll certainly grant you that.

Of course there is the question of how ownership starts in the first
place if all one can do is trade it.  I guess that gets back to issues
of value-added and stewardship.  How is it decided who owns land?  (It
is said that all wealth derives from land.)  Given that someone does,
that person is generally granted ownership of the stuff that grows on
the land, etc.  In general, if one is creative about adding value to
things that one owns, then one's wealth increases--as does that of
society.

But none of this says to me that ownership is derived from creativity or
labor.  I would agree, though, that the *value* of what one owns may be
effected by one's creativity or by the amount of labor one puts into it.
Perhaps that is the notion that you are after.  

I'd certainly agree that creativity and labor often create wealth.  I'd
also agree that a person exercising creativity or performing labor
typically increases his or her wealth.  If you prefer, one can say that
as a consequence of performing some labor, a person typically "owns"
some additional wealth--which is often in the form of money.  That's one
of the nice things about using money as a medium of exchange of wealth.
But in most cases this happens only if one either adds value to
something one already owns or if one agrees beforehand to be paid for
one's labor.  The labor or creation doesn't create new ownership--
although it may increase the value of something already owned as I said
above.

To summarize, I agree that labor and creation typically increase the
wealth of the person performing them.  I suppose that is the work ethic
that we have all grown up to revere.

-- Russ Abbott

gumby@Cygnus.COM (David Vinayak Wallace) (08/15/90)

   Date: 14 Aug 90 17:24:13 GMT
   From: brad@looking.on.ca (Brad Templeton)

   But by and large the way the system is supposed to work is that ownership
   is derived from creation/labour, and of course ownership gets traded.

People often call Stallman a Communist, but this is the first time
I've ever heard Marx's labour theory of value cited as a defense of
the "intellectual property" laws.

Unfortunately the synergism that capitalism provides is impeded by the
IP laws as they carrently are evolving.  How ironic if it turns out
that Free Software is the capitalist tool of the 90's!

brad@looking.on.ca (Brad Templeton) (08/15/90)

One need not be a marxist to agree that labour has value, and that thus
labour and its results are property.  (Property of the labourer)  One can
still believe, as I do, that the value of the labour is defined to be
how much people are willing to pay for it -- which is the non-marxist
value system.

That labour is the source of value does not make it define the quantity
of value.  The market still does that.   I'm talking about the definition
of property.  And Marx said that property is theft.   When it comes to I.P.,
Richard agrees with him.

The market has shown that creative thought (the source of I.P.) is the
most valuable property there is.  Nobody ever got rich at unskilled labour.
All the really rich people in the world got rich by selling their ideas
and skills.  (The word "selling" is used broadly here.)

More evidence that I.P. is the truest form of property.

-- 
Brad Templeton, ClariNet Communications Corp. -- Waterloo, Ontario 519/884-7473

brad@looking.on.ca (Brad Templeton) (08/15/90)

In article <80981@aerospace.AERO.ORG> abbott@antares.UUCP (Russell J. Abbott) writes:
>To summarize, I agree that labor and creation typically increase the
>wealth of the person performing them.  I suppose that is the work ethic
>that we have all grown up to revere.

But what is "wealth" (non-spiritual) but the ownership of property?
To say that wealth is created through labour and creativity is to say that
property dervives from these things.

Indeed creative work, as I said in a previous posting, is the most
valuable thing there is in the world.  Some forms of creative work you
can easily guarantee you'll get paid for -- others you can't because there
is either no protection or people simply ignore the protective laws (piracy).

But this is a matter of law, not of defining philosophy.

I have yet to see any other suggestions about sources of property other
than creation, other than the Utilitarian ("We have the concept of
property because we benefit as a group from it.")   That latter definition
would be fine if we were all Utilitarians, but we are not, nor, it seems, do
people wish that ethic to be the basis of law.
-- 
Brad Templeton, ClariNet Communications Corp. -- Waterloo, Ontario 519/884-7473