How To Use 'Intellectual Property' Properly
from the separating-the-content-from-the-ip dept
Okay, let's get this out there upfront: many people who read this site hate the term "intellectual property" and get very upset when anyone uses it. And we agree with many of the reasons behind this thought process. In the past, we've explored some of the alternatives, but none are really that great or useful. We admit that "intellectual property" is not a great term -- in large part because it implies something that just isn't there: mainly, economic concepts that apply to rivalrous goods but simply don't apply to non-rivalrous ones. Even so, for the most part, our response to this has been to try to use the specific name of the specific form -- i.e., copyright, patents, trademark, trade secrets, publicity rights, etc. -- rather than the generic term "intellectual property." But oftentimes that doesn't feel appropriate either. And, let's face it, most of the rest of the world still uses the term "intellectual property", and denying that is kind of silly.I've been thinking about this a lot lately, and I think the real issue is that there are two different ways to use the term, and only one is really valid. "Intellectual property" is a useful term, but only when it refers to the copyright, patent or trademark itself and not the underlying content, invention or mark. For one thing, the only reasonable arguments for how "intellectual property" has some characteristics of actual property are the ones based on this idea — e.g. a copyright is rivalrous as it is held by a specific person or group, and it functions in many ways like a piece of property (it can be bought and sold), but the underlying song (or movie, book, etc.) is not rivalrous. Describing a company that owns a variety of copyrights, patents and trademarks as having "a portfolio full of intellectual property" makes sense; saying a music pirate has "a hard drive full of stolen intellectual property" does not. Of course, both things are still artificial — the piece of intellectual property that is a copyright only exists because the law creates it — but at least it does exist as a rivalrous thing, whereas no amount of law or enforcement will ever succeed in making content itself rivalrous.
Unfortunately, many intellectual property system supporters and maximalists frequently confuse the two, and interchangeably switch around the underlying content/invention for the copyright/patent. It's why we see ridiculous things like car manufacturers arguing they still own some of your car, or DVD makers arguing they still own part of your DVD. It's the same thinking that leads to ridiculous reports that attribute all of the economic contribution of content, inventions and trademarks (even in grocery stores!) to "intellectual property" -- allowing them to falsely imply that the "intellectual property laws" are responsible, rather than the underlying content, inventions and marks.
So it's high time to call this out and make the clear distinction. If people are going to go on using the term "intellectual property" -- and they will -- then at least point out that the content or the invention or the logo or whatever are not the "property". The property is the artificial monopoly itself, granted by the government, in the form of the copyright, the patent or the trademark. Then, we can look more honestly at the actual contribution of those laws and at the true nature of ownership. If GM holds the copyright on the software in your car, it has no actual ownership stake in any part of your car. We should all agree on that. But it can still own the copyright on that software -- and it can do as it wants with that copyright. But the actual copy of the software (inasmuch as that's even a discrete thing that actually exists) remains yours.
I recognize that some will fight this and continue to insist that any use of the term "intellectual property" is a bad idea, but that's a losing battle. Let's admit that there are certain property-like aspects in the legal instruments by themselves, but reject the false notion -- often pushed by those abusing intellectual property laws -- that the underlying content, invention, trademark, etc. has any property-like rights itself.
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Filed Under: copyright, intellectual property, patents, trademark, words
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I absolutely promise you two things: use the word "idea" where "IP" is used, and you'll get more people aware of the problem.
The second will be the current stupid pool of maximalists loving the term because now, everyone will understand why they need to lock them up, treat consumers like thieves, and demand more and more revenue.
Sort of like the "Streisand Effect", by using "idea", then the true problem starts to reveal itself.
Let's see how this works:
"Today, the Disney company forced a daycare to take down a wall painting of its ideas, including Mickey Mouse and Donald Duck."
By changing a simple word, the context of the issue changes instantly. "Intellectual Property" is a term purposely used to mislead.
I concur the term should stop being used, but instead, use what the controlling jerks believe how it's defined.
Then, maybe the public can understand why their dancing baby video was taken down.
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It only implies something is not there if you begin with the definition that "property" refers only to tangible, rivalrous things. That's a narrow definition of "property," and it completely ignores the fact that the word has come to meaning something broader over the last few centuries. "Property," in the broader sense--the sense that those who consider IP to be P use it--simply refers to the bundle of intangible rights one has in a given thing. It doesn't matter if that thing is tangible, like a car, or intangible, like a copyrighted work. "Property" refers to the rights in the thing, not the thing itself.
I've been thinking about this a lot lately, and I think the real issue is that there are two different ways to use the term, and only one is really valid. "Intellectual property" is a useful term, but only when it refers to the copyright, patent or trademark itself and not the underlying content,
The underlying work is intangible, as is the copyright. For example, if I write a poem on a piece of paper, I have the physical embodiment of the work on the paper. That copy is not the underlying work, though. If I burn the paper, the copy disappears but the underlying work does not. The copyright is merely the intangible rights the copyright holder has in the intangible underlying work. IP only refers to these intangible things. Physical copies are not IP.
Describing a company that owns a variety of copyrights, patents and trademarks as having "a portfolio full of intellectual property" makes sense; saying a music pirate has "a hard drive full of stolen intellectual property" does not.
The company owns the IP. It has intangible rights in the underlying intangible things. The music pirate violates these rights when he makes copies. He has not stolen the physical copies, which are not IP, but he has stolen the IP. Theft of IP simply means doing something inconsistent with the IP holder's rights. The IP is stolen when the pirate violates the rights that make up the IP.
Unfortunately, many intellectual property system supporters and maximalists frequently confuse the two, and interchangeably switch around the underlying content/invention for the copyright/patent.
You appear to be confused yourself.
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Can't tell if serious. If so, please elaborate!
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Patents are about ideas for inventions because 'ideas are unique'.
Copyrights are about details in creative expression and not about ideas, apparently 'ideas are not unique'.
Trademark is about identity and being clear to customers which product is from which company.
Take the different things for what they are: different things and avoid the confusion of someone suing someone else for copyright infringement of a patented trademark (or something like that).
There are several stories about this kind of confusion on TD.
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You assert this. Can you provide any example of non-rivalrous property ?
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Sorry, still not theft. He hasn't stolen anything. If for the sake of argument I concede that the copyright itself were property owned by the holder, that hasn't been stolen either as the holder still has it. An infringement on that copyright is all that has occured. That is it. Infringement is not, never was, and never will be theft no matter how badly you wish to conflate the two.
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Intellectual Property
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I see a lot of syllogisms and circularity in your argumentations as to avoid specifying the borders.
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IP
Yet, there is a simple solution. Use the term "IPR" or "Intellectual Property Right" for the group of exclusive monopoly rights such as copyright and patents.
Note that there are two distinctive groups of IPRs: those that officially aim to promote innovation and creativity (patents, copyrights) and those that have as their aim to identify a product, service or provider (trademarks). Those two categories have very distinct purposes and characteristics. (Ignore for the moment that the way the innovation IPRs are implemented has caused them to tax innovation rather than promote it - the same cannot be said in the same way about identity IPRs).
Call the underlying innovation or creativity as expressed in the song or invention "Intellectual Assets" - this leaves their non-rivalrous character intact, and does not use the incorrect word "property". I agree it makes no sense to use the word "property" for non-rivalrous assets.
If you want to know more about why IPRs are not property rights, read my book "The Wealth of Ideas" - available on Amazon/Kindle and downloadable from my website.
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Since that didn't happen, I think you need to critique, if possible, what was said.
The granted monopoly right is not tangible, but it is the only part, correctly observed in the article, that is rivalrous. One owns a monopoly (theoretically time-limited) on their expression of some idea. The fact that the courts and bureaucracies let people get away with extremely vague expressions, or sue over vague similarities and obvious and cultural ideas does not make such ideas property themselves.
Of course, many like that idea. But it's funny how the (poor) metaphor of their monopoly lapsing as some sort of theft or government redistribution of thoughts never seems to be a major argument for extension as do things like "moral rights" or e.g., changing things just enough to refile for a copyright or patent that locks out very different expressions or implementations that provide a similar function.
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I'm not confusing anything. The notion of theft of intangibles is well-entrenched in the law. I'm not talking about stealing ownership of the copyright itself. The copyright owner's title is not affected. Deny it all you want, but I can dig up tons of statutes and case law discussing theft of all sorts of intangibles. This has been around for a long time.
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I can't do that with IP because it's not real property. As in so many cases, words and meanings are being stretched and changed in an attempt to justify what is no longer justifiable.
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Back in the Day...
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How about the first definition in Black's Law Dictionary:PROPERTY, Black's Law Dictionary (10th ed. 2014).
This stuff is really basic, and it's been settled for a long time. TD is apparently unfamiliar, but that doesn't make it not so.
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Okay, let's talk Masnick's reputation. Also intangible, but not intellectual.
That's all I'm going to argue this attempt at theft by semantics.
Continue to take other's property, pirates, and you'll deserve a real live actual brick-and-mortar cell next to greasy blob Dotcom.
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I'm familiar with the opinion. The copies themselves were not stolen property, so the defendant wasn't transporting stolen property. But that's a different issue than whether copyright infringement is theft. I'm talking about theft of intangibles. That opinion is about theft of tangibles.
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"...The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud..."
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NOTE: "From the artists," is not an acceptable resposne, given the accounting tricks that ensure that the vast majority of actual working artists could be constrused as theft.
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Okay, could you please provide several examples of intangible, non-rivalrous things in which there are property rights? Since we're presently debating whether or not things like creative works would qualify, don't cite them as examples.
Intangible property is easy enough; a monetary debt is intangible but is property. But that's rivalrous. That's the big sticking point.
"Property" refers to the rights in the thing, not the thing itself.
So you're agreeing with Mike that the intellectual property is the copyright, not the work to which the copyright pertains?
Theft of IP simply means doing something inconsistent with the IP holder's rights. The IP is stolen when the pirate violates the rights that make up the IP.
Then they're very poorly chosen words. Or more likely very careful chosen but dishonest words. For the intellectual property to be stolen, and for 'stolen' to have any meaning, the rightful holder would have had to suffer their deprivation. But he doesn't. He still has the rights, and in fact will use them against the pirate in that scenario. The pirate meanwhile hasn't got the rights, since he lacks the ability to enforce them against anyone else.
If a copyright were attached to an instrument like a bearer bond, and the instrument were stolen, your argument would make sense. But that never happens, so you've only wound up sounding like an idiot.
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Exactly 100% correct.
If you're interested, here's a thread on Reddit where I schooled someone on the correct use of those terms.
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Use the word Monopoly instead of Right
Copyright --> Copy Monopoly
Patent right --> Patent Monopoly
Trademark --> Trademark Monopoly
That's what these are, monopolies. And artificial ones at that. (As opposed to more natural monopolies, like pipes in the ground running to every building.)
Use the term IPM for Imaginary Property Monopoly.
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You want me to give you a list of intangible property? You're clearly a lawyer, so I'm surprised you'd ask this. Identities, trade secrets, promissory notes, choses in action, debts, and goodwill. That's just off the top of my head. I disagree that a debt is intangible, yet rivalrous. I think the distinction you're referring to is one of excludability, not rivalrousness. There's nothing rivalrous about an intangible debt. It, just like a copyright, is nonrivalrous.
So you're agreeing with Mike that the intellectual property is the copyright, not the work to which the copyright pertains?
No, I'm distinguishing between the copyright, the copy, and the underlying work.
Copyright = bundle of intangible rights in underlying work.
Copy = physical embodiment of underlying work.
Underlying work = intangible work created when first fixed in tangible medium.
Mike is referring to the "underlying content" as the copy. But this is confusing, and it's not how the terms are used. The underlying work is an intangible, and it exists even if all physical copies are destroyed. The underlying work cannot be physically destroyed because it is intangible. IP refers to the bundle of intangible rights in the underlying work. A copy is not IP. Some refer to the underlying work as IP, but I think this is just shorthand for the rights in the thing.
Then they're very poorly chosen words. Or more likely very careful chosen but dishonest words. For the intellectual property to be stolen, and for 'stolen' to have any meaning, the rightful holder would have had to suffer their deprivation. But he doesn't. He still has the rights, and in fact will use them against the pirate in that scenario. The pirate meanwhile hasn't got the rights, since he lacks the ability to enforce them against anyone else.
If a copyright were attached to an instrument like a bearer bond, and the instrument were stolen, your argument would make sense. But that never happens, so you've only wound up sounding like an idiot.
Nothing dishonest about it. I'm not talking about stealing ownership of the copyright. That can be theft. I'm talking about violating the rights of the copyright owner. That can also be theft.
For example, Pennsylvania has this statute:Source: http://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/18/00.039.031.000..HTM
The State of Pennsylvania considers such infringement to be "theft," despite the fact that the thief has not taken ownership of the rights.
Theft of intangibles works this way generally. For example, aggravated identity theft: https://www.law.cornell.edu/uscode/text/18/1028A and theft of trade secrets: https://www.law.cornell.edu/uscode/text/18/1832 . Those are defined to be "theft," even though the right holder has not lost ownership of the rights.
The reason is simple: The rights to an intangible can be the subject of theft whenever someone does something inconsistent with those rights, i.e., violates those rights. Not every state defines this to be theft, but many do. The federal government does as well.
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"IP" vs. Property.
FWIW, I like it.
"Steal" somebody's IP and run off to (eg.) China with it, and you'll arrive with exactly nothing. That regime doesn't have to care about the temporary monopoly the US regime granted. IP rights end at the border.
If you run off with a copy of the work, you'll have a copy of the work. If you then start making copies of that work, you'll be infringing on the IP, but unless you've a trade agreement in place to recognize other countries' IP rights, the infringement will be unrecognized and unenforcible.
I think this is a very useful distinction to make.
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The intellectual property right: The legally defined ownership as defined by Mike.
The intangible implementation of the idea: The music on the CD, the words on the paper, the video on the VCR etc.
The physical object: The tangible object.
He is arguing that the intangible implementation of the idea is part of the property, while the physical object isn't.
His problem is that the intangible implementation is pretty evasive to define. Trying to separate it from the ownership of the physical object is problematic and implies a very restrictive license (circumvention of copyprotection is in line with that thinking).
His definition is not in line with the legal interpretations and particularly supreme court precedence, without some severe mental gymnastics.
He is pushing it as a "logical" implementation, but since the freedom of speech is such fundamental right in our society and other laws takes precedence, his definitions will have some huge holes, irregardless.
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Re: Okay, let's talk Masnick's reputation. Also intangible, but not intellectual.
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Identity theft has little to do with the IPR complex of legislation. Trade secrets come a lot closer, but they are talking about intend and it specifically states that the person needs to intend to use it to enrich an adversary on account of the violated.
Your definition sounds more general than they are and mostly serves to disguise the mental gymnastics you need to define copyright infringement as theft.
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As for the Identity theft law, Identity theft is more appropriately called Identity Fraud. Aside from that pedantry however, I agree something intangible has been taken, but I fail to any rights I am not deprived. Unless the Identity theft is legally remedied, I face accusation and penalty for crimes I did not commit, I can be held to contracts I did not enter into, and in general be held accountable for another's actions. What right do I have that the thief does not also acquire?
As for Trade secrets, you are in general refering to things that you do not have IP rights in (which is why you keep them secret). So you don't exactly have any rights to retain. Moreover, the value in the secret often goes away once it is disclosed (aka no longer secret). If you are able to retain that value because you can establish IP protection and so have the leverage to licence or prevent competitors from utilizing that 'secret', you don't need a trade secret law to protect your value (in fact, relying on it may cost you your ability to assert your IP rights if your secret is independently developed). Furthermore, Trade Secret Theft is referred to as misappropriation in federal law, not theft.
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Start a new movement
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Copyright is obnoxious on a personal level, I'll copy all the files I want and it's none of your darn business.
A limited form of copyright? Sure, 10 years and pick one: broadcast or physical (or some different, but still SIMPLE, categories) .. and JUST ONE copyright too. Composer, performer, stage manager, whatever - you guys figure out where the money goes. And that's where I'd be willing to END negotiations.
I could live with a copyright law like that ... and probably more importantly, teach my kids to respect it.
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Seriously? You're citing Pennsylvania as a source for case law? The same state that was just found to be in violation of the frikkin First Amendment with one of its recent laws?
The same state where, say, you wanna throw a dinner party and would like to get a 6 pack of craft beer, a "case" (24 pack) of some regular beer, and a bottle of wine and you have to go to 3 different stores none of which sell anything but the above listed items (eg: you can't buy a loaf of bread at any of them).
The same state where oral sex is a crime?
You wanna use that state to prove your point?
Nice try. You might as well cite L Ron Hubbard as "proof" that Xenu is the "father" of humanity
Just because you can find one idiot that agrees with your idiotic opinion doesn't mean you're right. It just means there's one more idiot.
(source: resident of PA)
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Intangible property rights
Unfortunately, they also share problems with abuse of the underlying resource as unproductive uses crowding out productive ones (golf courses are water law's patent trolls).
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No, I do not. I want you to give me some examples of property which is both intangible and non-rivalrous. In fact, tangible, non-rivalrous property would be a start.
Identities, trade secrets, promissory notes, choses in action, debts, and goodwill.
All of those are rivalrous, except for goodwill. Goodwill is a suggested form of intangible, nonrivalrous property which I'll have to think about. I'm not sure that I agree with you yet, but it's an interesting idea.
I disagree that a debt is intangible, yet rivalrous. I think the distinction you're referring to is one of excludability, not rivalrousness. There's nothing rivalrous about an intangible debt. It, just like a copyright, is nonrivalrous.
Excludability is just a policy decision; it's not an inherent quality. And a debt is rivalrous. If I have a savings account holding $100, this means that the bank has been given $100, most of which it will invest per the usual practice of fractional reserve banking, and it will owe me a debt of $100. If I share with you the right and ability to access the $100, it's not rivalrous so long as neither of us takes action, not that there's any enjoyment to be had out of being perpetually owed a debt which you never collect, but the moment one of us finally calls in the debt, the other can't enjoy so much of it. That it's rivalrous is the reason why we would want to exclude others from it. There's usually little reason to engage in exclusion from nonrivalrous things.
The underlying work is an intangible, and it exists even if all physical copies are destroyed.
No, the underlying work is an intangible, is non rivalrous, and exists so long as one physical copy exists. Otherwise you're just treating memories as if they were physical copies; once they're lost too, so is the work.
IP refers to the bundle of intangible rights in the underlying work.
That is certainly the best argument you can make for the term 'intellectual property' having any kind of meaning. That is also exactly what Mike said, by the way:
The State of Pennsylvania considers such infringement to be "theft," despite the fact that the thief has not taken ownership of the rights.
Super. So does this mean that if the federal government attempts to engage in prior restraint against me, I can claim that they've stolen my right of free speech, that this is theft, an essential element of which is taking, and thus they owe me money under the 5th Amendment's eminent domain clause, which prohibits takings without compensation?
Probably not, but this sort of nonsense is what lies down the road you and many others are intent on going down.
The better terminology remains 'infringement.'
'Theft' is a bullshit word, meant to evoke inapplicable concepts related to tangible, rivalrous, personal property. It is nothing but emotional. It certainly isn't accurate, nor does it lend clarity when it is used. This isn't a new tactic. Unauthorized (and yet often lawful) printers were called pirates back in the day when real pirates armed with swords, guns and cannon, flying honest-to-God Jolly Roger flags were a real menace on the seas. Why do you even bother saying 'theft?' Just say that copyright infringing is terrorism, murder, rape, and child molestation, and be done with it. You may want to look up the meaning of hyperbole too.
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Never mind, not sure why I bother. In the words of Upton Sinclair: "It is difficult to get a man to understand something, when his salary depends upon his not understanding it!"
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It only implies something is not there if you begin with the definition that "property" refers only to tangible, rivalrous things.
The key word here is not "intangible," it is rivalrous. You know how everyone can tell? Because "tangible" was not even mentioned in the article, and was entirely a creation of your own. Way to argue against straw men.
"Property," in the broader sense--the sense that those who consider IP to be P use it--simply refers to the bundle of intangible rights one has in a given thing.
No. "Property" refers only to the thing. "Property rights" refers to the bundle of intangible rights that one has in that given thing. That's kind of the point.
The company owns the IP. It has intangible rights in the underlying intangible things.
No. It has intangible rights in the underlying tangible things. This is black-letter law: a work must be fixed before it has any copyright protections.
He has not stolen the physical copies, which are not IP, but he has stolen the IP.
No, he absolutely has not. In order to "steal" the IP, he would have to posess the exclusive rights that are granted to copyright holders in 17 USC 106. This is not debatable:
The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.
In order to "steal" someone's IP, you must "assume physical control over the copyright" or "wholly deprive its owner of its use."
For example, a company that takes open-source software and locks it up under their own copyright absolutely is "stealing" the IP. A publisher who forces an author to assign their IP in order to get published could be said to be "stealing" the IP (though you have to examine how much of a choice the author has). But a pirate who downloads something from The Pirate Bay absolutely is not stealing anyone's IP.
You appear to be confused yourself.
Pot, meet kettle.
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*clicks report*
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My neighbor has a new gun, just bought from a gun store under the principle that he has the RIGHT to bear arms. He already has a pair of hunting rifles he's had for years.
The guy across the street, who is back from a stint for armed robbery and has been forbidden from purchasing a firearm decides he needs the gun more then my neighbor and snitches it while my neighbor's away.
He has committed THEFT. However, my neighbor has not lost his RIGHT to bear arms; the government is not allowed to march into his house and take his remaining firearms, for example.
The guy across the street, meanwhile, indeed IS bearing an arm, but does not have the RIGHT to bear arms. The government is quite free to march into his house and take the weapon (well, they can anyway because its stolen property, but that aside).
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Actually sometimes they ARE stolen - as in when a big content company uses content ID to monetise a YouTube music video that they don't actually have the rights to.
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• It is common to describe property as a “bundle of rights.” These rights include the right to possess and use, the right to exclude, and the right to transfer
All of which are rivalrous.
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Let's take a step back before we go any further down this tangent. Mike had said that "intellectual property" is not a good term because it implies something that is not there, namely, rivalrousness. In his narrow view, the only resources that qualify as "property" are those that are rivalrous. I disagreed, pointing out that IP is P because rivalrousness is not the test. I defined "property" as the rights a person has in a given thing, that is, proprietary rights in rem. In support, I quoted the very first definition of "property" in Black's Law Dictionary: "property (14c) 1. Collectively, the rights in a valued resource such as land, chattel, or an intangible." Mike's definition of "property" is narrower than the dictionary's definition, as Mike's definition does not allow any intangibles to be labeled "property." My argument is that this is wrong. Do you agree with me or Mike? I'm getting confused since we've shifted to other issues like whether debts are rivalrous.
No, the underlying work is an intangible, is non rivalrous, and exists so long as one physical copy exists. Otherwise you're just treating memories as if they were physical copies; once they're lost too, so is the work.
From where are you getting that notion? Section 102 provides: "Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression . . . ." There is nothing that says once that original, tangible medium is destroyed, the underlying work and/or copyright are destroyed too.
That is certainly the best argument you can make for the term 'intellectual property' having any kind of meaning. That is also exactly what Mike said, by the way:
So it's high time to call this out and make the clear distinction. If people are going to go on using the term "intellectual property" -- and they will -- then at least point out that the content or the invention or the logo or whatever are not the "property". The property is the artificial monopoly itself, granted by the government, in the form of the copyright, the patent or the trademark.
My critique was that he did not further distinguish between the underlying work, which is intangible, and the copies, which are not. He was using "underlying content" to refer to physical copies. That's confusing, and wrong. "IP" can refer to the intangible rights in the underlying work or to the intangible underlying work itself. Mike conflated the distinction between the underlying work and copies, and he incorrectly concluded that IP cannot refer to the underlying work. He is correct that IP does not refer to the copies, but he was incorrect to conclude the copies = underlying work.
Super. So does this mean that if the federal government attempts to engage in prior restraint against me, I can claim that they've stolen my right of free speech, that this is theft, an essential element of which is taking, and thus they owe me money under the 5th Amendment's eminent domain clause, which prohibits takings without compensation?
No, because the First Amendment does not create proprietary rights in rem.
The better terminology remains 'infringement.'
'Theft' is a bullshit word, meant to evoke inapplicable concepts related to tangible, rivalrous, personal property.
You are conflating "theft" and "larceny." Theft is a more recent term, and it is in fact applied to intangibles. Larceny was confined to tangibles; theft is not. Nothing bullshit about it. It's descriptive fact.
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Oral and anal sex is illegal in NO STATE Whatsoever,... , Lawrence v. Texas, 539 U.S. 558 (2003), saw to that... Besides, the PA Supreme Court in Commonwealth v. Bonadio invalidated the sodomy laws in 1980 and they were repealed by the legislature (though unconstitutional, and unenforceable) in 1995...
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Good call. However, an identity isn't property either.
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Re: Okay, let's talk Masnick's reputation. Also intangible, but not intellectual.
1. Nobody is taking your property, that is, your copyright.
2. Some people, somewhere, are merely infringing the copyright.
3. Do you know of any actual pirates here?
Free clue for the clue challenged: when someone discusses the fact that copyright infringers exist, participating in such a discussion does not make that person a pirate.
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True or false: Pennsylvania defined something we both agree to be infringement as "theft."
Here's the text again: "A person is guilty of theft if he publicly presents for profit, without the consent of the author thereof, any unpublished dramatic play or musical composition."
So your argument is, despite the undeniable fact that Pennsylvania defines that infringement to be "theft," infringement can never be theft? Is that right?
My suggestion: Your definition of "theft" is narrower than Pennsylvania's. Can you at least admit that?
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Re: Intangible property rights
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Trade secrets?
Even with copyright, Mike is right that we must look only to the contours of the right. The private performance of a movie, for example, is never infringing. It is perfectly legal to watch a movie, and to privately perform a movie. The fact that I do so from a stolen DVD makes no difference. The fact that I do so from an infringing copy makes no difference. So, I'm caught watching a movie using a DVD that I stole from a homeless man, that he found in the trash, that was illegally made from an illegal cam-cording of a movie being illegally shown in a theater using a reel that was stolen at gunpoint in order to finance a terrorist group? Watching it is perfectly legal, and protected b the First Amendment.
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"Written in error"? What evidence of that do you have? None, I assume. As far as your conspiracy theory about content industry lobbying, that's more faith-based FUD. And it doesn't explain why there's been a gradual change to recognize intangibles as property that started well before the content industry started lobbying. You seem unable to accept the obvious: Intangibles have been considered "property" for a long time.
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The statute predates Dowling. Regardless, the issue isn't Dowling. It's preemption. The court would find it preempted, not forbidden by Dowling. Dowling interpreted the federal NSPA. It did not hold that states could not enact laws protecting federally-unprotected works under their theft statutes.
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OK, at this point you are just trolling right? Let's try this one more time:
"Intangible" and "non-rivalrous" are not the same fucking thing.
You've used the word intangible like fifty times in these comments despite the fact that absolutely nobody else is talking about tangibility. Everyone acknowledges that intangible things can still be rivalrous and thus still be property, such as many of the examples you listed. How does Mike's definition -- which focuses on rivalrousness -- "not allow any intangibles to be labelled property"? Mike didn't say that. Nobody said that. You just can't seem to separate the two concepts.
Here's a challenge: refute this definition without using the word "intangible", since nobody has said anything about tangibility and it has zero relevance to this discussion.
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Radio spectrum allocation is intangible, rivalrous property. A domain name is intangible, rivalrous property. Conversely, while all tangible property is rivalrous at a fundamental level, in terms of functional economics some is not, such as air which is considered both non-rivalrous and non-excludable despite being tangible.
It is true that there are occasional conflations of rivalrousness and excludability throughout this thread. It's an inaccuracy, though a largely understandable one, as the two concepts are heavily intertwined -- hell, compared to your absurd conflation of rivalrousness and tangibility, it's a model of semantics.
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I'm happy to chat with you, but if you're going to continually insult me, I don't see the point.
A domain name is intangible, rivalrous property.
I disagree. As an intangible, a domain name is nonexcludable and nonrivalrous. See, e.g., Michael A. Carrier, Cabining Intellectual Property Through A Property Paradigm, 54 Duke L.J. 1, 32 (2004) ("As a public good, information is nonexclusive and nonrivalrous."); J. Janewa OseiTutu, A Sui Generis Regime for Traditional Knowledge: The Cultural Divide in Intellectual Property Law, 15 Marq. Intell. Prop. L. Rev. 147, 174 (2011) ("As intangible goods, intellectual creations are non-rivalrous and non-excludable."). Domain names, like copyrights and patents, give the owner the right to exclude. But that doesn't make them rivalrous.
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You can disagree all you want, but as I stated from the outset: wrong on all counts, sorry.
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Notice that you've convinced absolutely nobody that your obsession with tangibility is in any way relevant. You're going to have to do a way better job than you've been doing -- or, smarter still since that goal is impossible, give it up and talk about what we're actually talking about.
Until then, you're just wailing about nonsense.
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Notice that you've convinced absolutely nobody that your obsession with tangibility is in any way relevant. You're going to have to do a way better job than you've been doing -- or, smarter still since that goal is impossible, give it up and talk about what we're actually talking about.
Until then, you're just wailing about nonsense.
If these are "clear economic principles," then evidence thereto should be a simple matter for you to produce.
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I'm not saying they are the same concept. I'm saying that all intangibles are nonrivalrous. You've declared this to be wrong, claiming to rely on "clear economic principles." If you've studied these principles, and if they are so clear, then let's see there. Where does it say that intangibles can be rivalrous? if such evidence exists, then perhaps we can reconcile the disparate sources. Maybe there's more than one definition of rivalrousness. I don't know. But let's see these "clear economic principles" you are relying on.
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Where does what say? What god are you appealing to? This is not complicated. An intangible is anything which is not physical in nature and cannot be touched. A rivalrous good is anything where consumption by one consumer precludes simultaneous consumption by other consumers. An excludable good is one where it's possible to prevent non-paying consumers from consuming it.
Radio spectrum is intangible, rivalrous and non-excludable by nature, made excludable by law. Domain names are intangible, rivalrous and excludable by a combination of their technological and administrative nature. Your muddled, out-of-context citations fall flat in the face of simple logic.
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A better term would be "usufruct"
Unfortunately, "usufruct" is terminology from civil law which does not have a good parallel in common law.
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Radio spectrum is intangible, rivalrous and non-excludable by nature, made excludable by law. Domain names are intangible, rivalrous and excludable by a combination of their technological and administrative nature. Your muddled, out-of-context citations fall flat in the face of simple logic.
Sigh. How does one consume a radio spectrum? How does one consume a domain name? They are intangible. They cannot be consumed. Can you really cite nothing?
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It has not gone unnoticed that you continue claim to have sources, yet you have not actually produced any. Who is an economist that defines "consumption as the final purchase of a good"? Does that economist say that intangibles can be consumed? What do other economists say? How many say that intangibles cannot be consumed? Which is the majority view? How do you know this? So many questions. I'm sure you have a fancy Ivy League degree, but it's strange how you just make conclusory claims.
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Neither "a recording of a song" nor "a range of radio spectrum" can be touched. And yet there is a clear distinction between the two: no matter how many people make use of a recording of a song, it does not become less useful or less available to other people; but when one party makes use of a range of radio spectrum, it ceases to be useful to anyone else (and, were everyone to attempt to use it at once, would cease to be useful at all).
Do you deny that this distinction exists and is relevant?
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You spoke of "clear economic principles" and "some economists," so you have appealed to authority. When your bluff is called, and your authority questioned, you've got nothing. You can't produce any authority.
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But like I said, I'm not interested in playing your childish game anyway. I've re-posed the question to you in clear and basic terms, free of any words with ambiguous definitions. It's self-contained. You should be capable of understanding it without needing citations or additional sources. Responding to it? That I'm not so sure.
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It has never been repealed.
But you did get this right: it is both unconstitutional and unenforceable.
Which is exactly why it's idiotic to cite PA for case law. I guess that went right over your head. Idiot.
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Neither "a recording of a song" nor "a range of radio spectrum" can be touched. And yet there is a clear distinction between the two: no matter how many people make use of a recording of a song, it does not become less useful or less available to other people; but when one party makes use of a range of radio spectrum, it ceases to be useful to anyone else (and, were everyone to attempt to use it at once, would cease to be useful at all).
Do you deny that this distinction exists and is relevant?
I think I see the problem. I'm talking about intangibles in the context of property law. Intangible property cannot be possessed. It cannot be consumed. It is nonrivalrous. It is purely a product of the mind. You, however, simply are not talking about the phrase "intellectual property" while referring to the law of property. You don't care if it's purely a product of the mind. You don't care about property law. That's fine, but the phrase comes from property law. IP is a legal concept.
That said, can you explain how the thing you're talking about is relevant? Of course there is the difference between a recording of a song and the radio spectrum, for the reason you suggested. So what? What does your economic reasoning lead you to conclude?
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But like I said, I'm not interested in playing your childish game anyway. I've re-posed the question to you in clear and basic terms, free of any words with ambiguous definitions. It's self-contained. You should be capable of understanding it without needing citations or additional sources. Responding to it? That I'm not so sure.
OK, so I think I've got the gist. You are upset that the phrase "intellectual property," as it is used in property law, i.e., the rights a person has in a given thing, does not match the concept of property as you are familiar with in economics. Is that right? The phrase "intellectual property" makes perfect sense in property law. I've explained why many times. If the phrase makes sense in property law, where it is being used, why does it have to conform to some other understanding that is not property law? It's not like people don't understand that many people can use the resource at once. That's fundamental to IP. Everyone knows that. How does calling it "intellectual property" in the property law sense upset the thing you're focusing on?
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Use it. Only one transmitter can use a frequency at a time assuming they don't share. Otherwise, they'd interfere, possibly cause noise. Once you've filled the spectrum used by that sort of equipment (radio?), you've filled the spectrum. Governments like to have auctions for blocks of spectrum; artificial scarcity is a lucrative business.
Allocate it to its buyer assuming it's available.
They just were. That doesn't mean they need to disappear now. They still exist. They're intangible.
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I thought we were finally getting somewhere. Can you just tell me the punchline? What is the point you're trying to make with all of this? Cut past all of the insults and dodging and just make your point.
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https://books.google.com/ngrams/graph?content=intellectual+property&year_start=1800&year _end=2000&corpus=15&smoothing=3&share=&direct_url=t1%3B%2Cintellectual%20property%3B %2Cc0
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- Neal Stephenson
It's pretty obvious that you fall into the "well-educated" camp but sadly on the stupid side. Just because you somehow learned enough to use Westlaw (or whatever) to find citations that you think agree with your opinion doesn't make you smart.
In fact, it shows your inability to think for yourself.
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What subtleties am I too stupid to understand? I'd love to hear about them, in detail. It should be easy, given your superior grasp of these subtleties.
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https://books.google.com/ngrams/graph?content=literary+property&year_start=1750&year_end =2000&corpus=15&smoothing=3&share=&direct_url=t1%3B%2Cliterary%20property%3B%2Cc0
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All of them?
The fact that you're asking me explain the subtleties that you don't grasp is pretty strong evidence that you are incapable of grasping them. It's pretty much the definition of being obtuse.
But, just for the sake of argument, here's just one:
Your pathetic attempt use a citation from a state that has a bevy of idiotic and unconstitutional laws as "proof" of your position.
Somehow you manage to cling to that single (and wrong) opinion of the court that James Burkhardt totally dismantled as proving the opposite of what you thought it proved.
That's a pretty good example (just one of many) of you being blunt and dull. It doesn't help your case at all that you couldn't be bothered to respond to either of the assertions I linked to.
So go ahead and fire up Westlaw or Google Scholar and find some other idiotic citation that in a VERY NARROW sense seems to support your position and continue to demonstrate to us all how you just don't (or, more likely, can't) get it.
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You state:
I cite to authority
You may not realize it (I'm actually quite sure you don't) that when you say that you "cite TO authority" you're revealing how much you are incapable of thinking for yourself.
To put it another way, this would be you: "I can see that the sky is blue. But my Masters are telling me it is yellow. The Masters are never wrong, therefore, the sky must be yellow. Damn my lying eyes!"
Secondly, an Appeal to Authority is one of -- if not the most -- well known examples of Logical Fallicies
I would suggest that you get your nose out of your law book (or Westlaw or Google Scholar or whatever) and instead actually educate yourself rather than delving further into the morass of Confirmation Bias you are currently wallowing in.
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Clearly you have no idea what Confirmation Bias is. Here's the link again. Try reading it and educating yourself for a change.
Nice use of weasel words, too ("probably", "some other", "somewhere") instead of addressing the specific ruling I referenced, the ruling that you yourself brought up. The very same ruling that comes out of a backwater state that has a loooooong history of idiotic laws. That very same ruling which James B. actually explained to you means the fucking opposite of what you think it means.
And you think I am the one who lacks a legal education? Bwahahahahaha.
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"Money, money, money, money!" Youtube it.
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My thoughts
Whenever I get into "copyright" issues, I point out how it's "corporate rights."
Because that's the honest truth. Corporations have influence over the public that is served by the right to copy. There's literally no property involved. Artists don't have power to hold a song indefinitely. Corporations do. All an artist does is sell an idea. So why am I protecting someone's hold on an idea when I can sing it, hum it, change it, or whathaveyou?
There is no right to copy anymore. The rules of infringement allow corporate rights to silence speech and stifle innovation for the sake of corporate interests.
Because that's who holds the majority of these useless pieces of paper. It's not artists or creators, it's corporate interests.
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They defined theft as theft. There was no copyright to be infringed.
Try slowing down and actually understand what you are reading.
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The property is the artificial monopoly itself, granted by the government, in the form of the copyright, the patent or the trademark.
But that is a privilege, not a property right. We need to push back against the use of the term "Intellectual property" BECAUSE the rest of the world has been convinced to use it by maximalists. We ALSO need to push back against the notion that content can be consumed. If no peristalsis takes place and the content itself is not altered by being experienced (I'm not talking about wear and tear on your CD or player), nothing has been consumed. At all.
To continue to use these loaded terms is to hand the narrative over to the maximalists and remain on the back foot fighting a losing battle as they ratchet up the term lengths by presenting their cause as a battle for property rights. That the rest of the world uses them is due to the fact that we haven't pushed back hard enough to gain control of the narrative ourselves. Let's keep pushing, people.
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It can't and it's not. If you violate my human right to privacy, has theft occurred? No. Why? My right to privacy still exists, it has not been taken away.
Until a thing has been entirely removed from its owner no theft has occurred.
Copyright theft occurs when someone takes the copyright monopoly privilege status away from the rightsholder. Or the term is lengthened by another 20 years, which removes the work itself from its public domain status, thereby taking it away from the public.
Again: if nothing has been taken away, no theft has occurred, you simply have a gooseberry on your copyright date, as it were; someone else is using or selling copies of your work, unwanted and uninvited.
Infringement: http://www.thefreedictionary.com/infringe
Learn what words MEAN. The dictionary is your friend.
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