Mike and Vaevictus engage in quasi-intellectual wanking.

[Vaevictis]

Look at all the electronic piracy in other countries

Just because it's my pet peeve, I'm going to pick on this.

In a truly free market system, there's no such thing as electronic piracy.

The government creates artificial scarcity by granting copyright/patents/etc in the intellectual property market. By definition, that's not free market. It's massive regulation.

In a sense, a country that refuses to honor copyright and patents has a market more free than our own. (In that area at least)

(Of course, I'm not actually totally against copyright/patent laws. This is just an example where government regulation -- done correctly -- can actually improve society.)

[Frozen Sooner]

Just because it's my pet peeve, I'm going to pick on this.

In a truly free market system, there's no such thing as electronic piracy.

The government creates artificial scarcity by granting copyright/patents/etc in the intellectual property market. By definition, that's not free market. It's massive regulation.

In a sense, a country that refuses to honor copyright and patents has a market more free than our own. (In that area at least)

(Of course, I'm not actually totally against copyright/patent laws. This is just an example where government regulation -- done correctly -- can actually improve society.)

No offense, but that's ludicrous.

Protection of property rights does not make a market less free. Even the most ardent laissez-faire economist recognizes a legitimate government role in protection of such.

Your argument is akin to saying that having laws against moving into someone's house and kicking them out is a massive government intrusion into the market.

Heck, it could even be argued that it's nonsensical to argue about a market for IP at all without copyright protection, considering that a market consists of willing buyers and sellers.

[Vaevictis]

Protection of property rights does not make a market less free.

Things that are copyrightable and patentable are not property.

[Frozen Sooner]

Yes, actually, they are. Thus the phrase "intellectual property."

There's like a whole body of law that's grown up around property rights in things that are copyrightable and patentable.

[Vaevictis]

Yes, actually, they are. Thus the phrase "intellectual property."

There's like a whole body of law that's grown up around property rights in things that are copyrightable and patentable.

No, they're not. The copyright is property. The patent is property. The things that they protect aren't.

Is the algorithm for long division property? How about the actual text of Romeo and Juliet?

[Frozen Sooner]

The copyright and the patent are the codifications of a right to the property.

Or do you think that a deed is property as opposed to a house?

And yes, the algorithm for long division was the property of the person who came up with it. Since such was not protected by a patent, it passed into public domain-just as a piece of property with no title is in the public domain.

[Vaevictis]

The copyright and the patent are the codifications of a right to the property.

They aren't just codifications, they are the actual creation of scarcity which would not exist but for government fiat.


Or do you think that a deed is property as opposed to a house?

I think both are property, and the house exists as property because it is a scarce resource.


And yes, the algorithm for long division was the property of the person who came up with it. Since such was not protected by a patent, it passed into public domain-just as a piece of property with no title is in the public domain.

Heh, not gonna convince me. I'm one of the folks who think scarcity is a requirement for something to be property.

There is no exclusivity inherent in anything that is copyrightable or patentable. My making use of it does not diminish your ability to do so.

[Vaevictis]

I think both are property, and the house exists as property because it is a scarce resource.

To expand on why I view these as distinct properties:

(1) The title is a claim on government enforcement of your exclusive use of the house -- this claim is itself exclusive, and this makes it property.
(2) The house itself is exclusionary -- this makes it property.

[Frozen Sooner]

My friend, you have a definition of "property" which conflicts a great deal with mine.

That which you own is that which you produce or obtain in trade for that which you produce.

Copyright and patent are legal codifications of that principle.

IP is absolutely different from other property in that it can be duplicated, though I disagree that in all cases such duplication does not diminish value-the value of a new manufacturing technique is greatly diminished if all of your competitors make use of it, the value of your composition is greatly diminished if everyone can record it without compensation, etc.

The defining characteristic of property is alienability-do you have the ability to transfer ownership or not. IP meets this criteria. IP law simply codifies penalties for violation of this ability.

[Frozen Sooner]

Water is a scarce resource.

Who owns the ocean?

[Vaevictis]

Water is a scarce resource.

Who owns the ocean?

Whoever has the guns to hold it.

(which, really, pretty much defines all property)

[Frozen Sooner]

I'd like to refer you to Davoll v. Brown for a definition of ideas as property.

[Vaevictis]

That which you own is that which you produce or obtain in trade for that which you produce.

Heh, this is the problem with definitions of property. This definition, while I'm sure you didn't mean it to be exhaustive, means that received gifts aren't property.


IP is absolutely different from other property in that it can be duplicated, though I disagree that in all cases such duplication does not diminish value-the value of a new manufacturing technique is greatly diminished if all of your competitors make use of it, the value of your composition is greatly diminished if everyone can record it without compensation, etc.

The value of the grain you grow is greatly reduced by the fact that your neighbor is doing the same. Does that mean your property rights wrt the land you're growing on are being infringed? :)


The defining characteristic of property is alienability-do you have the ability to transfer ownership or not. IP meets this criteria. IP law simply codifies penalties for violation of this ability.

This, of course, prompts the question: To what can you attach ownership? As such, I think it's a pretty weak definition.

(Not that I'm saying mine is much better...)

[Frozen Sooner]

Heh, this is the problem with definitions of property. This definition, while I'm sure you didn't mean it to be exhaustive, means that received gifts aren't property.

Sure it does, when you realize that property is alienable. If someone chooses to transfer title to you, then it becomes your property. Beyond that, a strict economic theorist might posit that there is no such Homeric Ideal Gift where there is no exchange of value.


The value of the grain you grow is greatly reduced by the fact that your neighbor is doing the same. Does that mean your property rights wrt the land you're growing on are being infringed? :)

No, as the concept of "growing grain" is already in the public domain and the value of your land already includes the possibility that someone else could grow grain. I might remind you that you were the one who was making the exclusivity argument, not me.


This, of course, prompts the question: To what can you attach ownership? As such, I think it's a pretty weak definition.

Already answered. That which you have produced through your own labor or obtained in trade for the production of your labor.

[Vaevictis]

Already answered. That which you have produced through your own labor or obtained in trade for the production of your labor.

Clearly that is not the sum total of what is necessary for something to be property. I could independently invent long division through my own labor, but that wouldn't make it my property with the ability to exclude everyone else. Would it?

[Frozen Sooner]

Clearly that is not the sum total of what is necessary for something to be property. I could independently invent long division through my own labor, but that wouldn't make it my property. Would it?

I certainly wouldn't stop you from using it or selling it, nor do I think any court in the world.

[Vaevictis]

I certainly wouldn't stop you from using it or selling it, nor do I think any court in the world.

Right, but that brings us back round to the notion of intellectual property under copyright and patent.

My assertion is, as stated, that the underlying processes and/or expressions aren't property. The actual copyright/patents are.

Let's say inventor A invents an algorithm through his own labor.

Inventor B, independently invents the same algorithm, again through his own labor.

By your definition, both have property rights to this algorithm, right?

But, in the end, the person who actually receives the property rights is the one who secures the patent, not the one who develops the algorithm (which in this case is both!)

[Vaevictis]

IOW, yeah, there is a court in the world that would prevent you from using and marketing your own independently invented algorithms.

It happens all the goddamn time in computer science.

[Frozen Sooner]

Right, but that brings us back round to the notion of intellectual property under copyright and patent.

My assertion is, as stated, that the underlying processes and/or expressions aren't property. The actual copyright/patents are.

Let's say inventor A invents an algorithm through his own labor.

Inventor B, independently invents the same algorithm, again through his own labor.

By your definition, both have property rights to this algorithm, right?

But, in the end, the person who actually receives the property rights is the one who secures the patent, not the one who develops the algorithm (which in this case is both!)

Actually, as I understand it, if someone can demonstrate that they simultaneously and independently developed a given process then the patent is not granted. I could be wrong on that, though.

Should someone develop a process subsequently to another having already developed it, it's 1) awfully hard to prove that they truly did develop it independently and 2) roughly analogous to me walking out on to your pasture and building a house. Sure, under a literal interpretation of my definition of property (which was not meant to be exhaustive, as I don't plan to write a complete philosophical treatise here) that house would be my property, but in any kind of a sane world there has to be a concept of precedence of property right.

[Frozen Sooner]

IOW, yeah, there is a court in the world that would prevent you from using and marketing your own independently invented algorithms.

It happens all the goddamn time in computer science.

Thought you were talking about long division. Like I said-if you independently devise long division, I ain't going to stop you from using it, and if you can find someone to buy it from you I don't think anyone's going to stop it. The good folk at Houghton-Mifflin have been selling long division algorithms for years.

[Vaevictis]

Actually, as I understand it, if someone can demonstrate that they simultaneously and independently developed a given process then the patent is not granted. I could be wrong on that, though.

I believe it is whoever has date of first disclosure that wins.


1) awfully hard to prove that they truly did develop it independently

Should that matter? If the person did indeed develop it independently, should they not receive the rights to the fruits of their labor?

Under the patent system, it doesn't matter if you can prove that you developed it independently. If you developed it subsequently, you lose.

[Vaevictis]

Thought you were talking about long division. Like I said-if you independently devise long division, I ain't going to stop you from using it, and if you can find someone to buy it from you I don't think anyone's going to stop it. The good folk at Houghton-Mifflin have been selling long division algorithms for years.

Sorry for not being clearer. I'm really interested in algorithms, of which long division is a specific example.

[Frozen Sooner]

Right. Which goes back to primacy. Any conception of property right has a concept of temporal primacy.

By the way, I used Homeric instead of Platonic earlier. Thanks for not calling me out on it. :D

[Vaevictis]

Right. Which goes back to primacy. Any conception of property right has a concept of temporal primacy.

However, the principle of temporal primacy has entirely different connotations to intellectual property. If you build a house and are the first to possess, it does not permit you to own all houses everywhere, even those built by other people.

Intellectual "property" does.


By the way, I used Homeric instead of Platonic earlier. Thanks for not calling me out on it. :D

What the hell do the Simpsons and SicEm's relationship with every girl on the planet have to do with this conversation?

[Frozen Sooner]

However, the principle of temporal primacy has entirely different connotations to intellectual property. If you build a house and are the first to possess, it does not permit you to own all houses everywhere, even those built by other people.

Intellectual "property" does.


But it does permit you to own all houses exactly like the one you just built, if the concept of exactness includes location. And it does give you the right to be the only person who can sell said house.

[Vaevictis]

But it does permit you to own all houses exactly like the one you just built, if the concept of exactness includes location. And it does give you the right to be the only person who can sell said house.

Ah, but when you apply the concept of "property" to intellectual property, you are stripping out the concept of location because IP exists nowhere.

It's literally -- you own not just this piece of property, but all property like it.

The problem with intellectual property is not that you are excluding people from using your property, that is to say, an implementation of the intellectual property. You are excluding people from using their property -- eg, their implementation.

It's a major ****-up with the whole notion.

[Frozen Sooner]

Ah, but when you apply the concept of "property" to intellectual property, you are stripping out the concept of location because IP exists nowhere.

It's literally -- you own not just this piece of property, but all property like it.

The problem with intellectual property is not that you are excluding people from using your property, that is to say, an implementation of the intellectual property. You are excluding people from using their property -- eg, their implementation.

It's a major ****-up with the whole notion.

That's not correct, though.

If you make a major innovation using already-established principles then you have a property right to that innovation-and IP law recognizes that.

[Vaevictis]

That's not correct, though.

If you make a major innovation using already-established principles then you have a property right to that innovation-and IP law recognizes that.

Heh, okay, so, we're clearly going around in circles here.

Let's change gears: Property rights are, generally speaking, perpetual. If intellectual property is, in fact, property, shouldn't they likewise be perpetual?

[Frozen Sooner]

Now that's clearly a great distinction between intellectual property and real property.

If I were inclined to attack that statement (which I'm not, as I think that there are definable differences between IP and RP) I would use the following lines of attack:

1) Most jurisdictions do, in fact, recognize non-perpetual forms of ownership. Leaseholds are an example of this. Estate taxes are another example.

2) The trend has been to extension of IP rights for longer periods of time. Used to be a copyright only lasted 25 years. Now it lasts as long as your heirs and assigns choose to renew it.

That being said, there is a public interest in a taking of IP rights after a certain amount of time as said property becomes public domain and widespread.

[Ike]

That's not correct, though.

If you make a major innovation using already-established principles then you have a property right to that innovation-and IP law recognizes that.

Except that nowadays with IP, even trivial "innovations" are being granted patents in the IP realm...

[Frozen Sooner]

Except that nowadays with IP, even trivial "innovations" are being granted patents in the IP realm...

Which would tend to support my point. Thanks!

[JohnnyMack]

This thread is gheyer than Dean and Colley in the RV at a tailgate.

[Vaevictis]

This thread is gheyer than Dean and Colley in the RV at a tailgate.

Is that possible? That would be like dividing by zero or something.

[Okla-homey]

My friend, you have a definition of "property" which conflicts a great deal with mine.

That which you own is that which you produce or obtain in trade for that which you produce.

Copyright and patent are legal codifications of that principle.

IP is absolutely different from other property in that it can be duplicated, though I disagree that in all cases such duplication does not diminish value-the value of a new manufacturing technique is greatly diminished if all of your competitors make use of it, the value of your composition is greatly diminished if everyone can record it without compensation, etc.

The defining characteristic of property is alienability-do you have the ability to transfer ownership or not. IP meets this criteria. IP law simply codifies penalties for violation of this ability.

Here's another example. A million lines of code used to program an industrial machine are both a product and the property of the vendor until he sells it to the customer. After the sale, that code becomes the property of the customer. Moreover, that property/product can be deemed "defective" as a matter of law if it causes the industrial machine to go haywire and hurt the operator; just like a lawn mower that is prone by defective design to throw a blade that cuts your foot off.

Now, consider those lines of code. Meaningless and useless for anything except programming that particular machine. Yet, they are property and a product that can be bought and sold. Further, if they are flawed and someone gets hurt, the code writer/programmer gets sued and he loses his Xbox360 and all his Doritos.:D

[Frozen Sooner]

Nice example. I like it. Thanks Homey.

I get my LSAT scores Monday. Gonna be a long weekend.

[TUSooner]

My friend, you have a definition of "property" which conflicts a great deal with mine.

That which you own is that which you produce or obtain in trade for that which you produce.

Copyright and patent are legal codifications of that principle.

IP is absolutely different from other property in that it can be duplicated, though I disagree that in all cases such duplication does not diminish value-the value of a new manufacturing technique is greatly diminished if all of your competitors make use of it, the value of your composition is greatly diminished if everyone can record it without compensation, etc.

The defining characteristic of property is alienability-do you have the ability to transfer ownership or not. IP meets this criteria. IP law simply codifies penalties for violation of this ability.

I have to say that V's concept of property is something I've never encountered in 18 years as a law student & lawyer.

[Half a Hundred]

Here's another example. A million lines of code used to program an industrial machine are both a product and the property of the vendor until he sells it to the customer. After the sale, that code becomes the property of the customer. Moreover, that property/product can be deemed "defective" as a matter of law if it causes the industrial machine to go haywire and hurt the operator; just like a lawn mower that is prone by defective design to throw a blade that cuts your foot off.

Now, consider those lines of code. Meaningless and useless for anything except programming that particular machine. Yet, they are property and a product that can be bought and sold. Further, if they are flawed and someone gets hurt, the code writer/programmer gets sued and he loses his Xbox360 and all his Doritos.:D

Isn't that though why you sign licensing agreements (or inherently do so when making the purchase)? Isn't it that you don't REALLY own the software, but rather have a license from the copyright holder to use that particular instance of that million lines of code? This usually includes liability releases in the case of misuse if I'm not mistaken (whereas defective code is not covered under that license, and you'd be an idiot to sign the agreement). That's always the way I've understood it.

[soonerhubs]

I just wanted to boast that my side comment started this debate.


Please... continue. :D

[Stoop Dawg]

Isn't that though why you sign licensing agreements (or inherently do so when making the purchase)? Isn't it that you don't REALLY own the software, but rather have a license from the copyright holder to use that particular instance of that million lines of code? This usually includes liability releases in the case of misuse if I'm not mistaken (whereas defective code is not covered under that license, and you'd be an idiot to sign the agreement). That's always the way I've understood it.

Most software companies sell a license to use the software, not the software itself. However, in the case of specialized software for a particular purpose (like the example of software embedded in a machine) the software itself can be sold. I'm not sure how it works legally, but it's usually a non-exclusive copy - meaning that even though the customer now owns the software, the vendor can still resell it to other customers.

We occasionally get people who want to "buy the source code just in case something happens". Until we give them the price. We've done a few contracts where the customer automatically gets non-exclusive rights to the source code if the company goes out of business.

[Half a Hundred]

Most software companies sell a license to use the software, not the software itself. However, in the case of specialized software for a particular purpose (like the example of software embedded in a machine) the software itself can be sold. I'm not sure how it works legally, but it's usually a non-exclusive copy - meaning that even though the customer now owns the software, the vendor can still resell it to other customers.

We occasionally get people who want to "buy the source code just in case something happens". Until we give them the price. We've done a few contracts where the customer automatically gets non-exclusive rights to the source code if the company goes out of business.

OK, that makes sense. I'd assume that if you just gave the source code away, there's nothing from stopping that company from reverse engineering a program that was just different enough that when different iterations came along for new hardware, that they wouldn't have to buy again. Needless to say, a bad business model.