Brandon has done a great job of finding materials for me to read. It's been a while since my last post, but I've been busy with other things, and reading a lot of material on this. I'm certainly no lawyer, so I may misunderstand several of the finer points. Brandon will definitely be able to give a much better analysis on the law side of this matter, so I look forward to his analysis. Note: Brandon will probably be postponed in posting for a while, since he is a brand new father!
Our law system has deep ties to England and its law system. This, of course, makes perfect sense. We are a country that was, for all practical purposes, birthed from England. England's laws had developed over a series of several hundred years, so it isn't any surprise that we assimilated many of those laws ourselves.
One of the most interesting things that I found in my studying is the distinction about tangible property, and intangible property. There is consistently a very real distinction about something being physical, and something being intangible. For example, there is a great distinction between trespassing on someone's property, and actually stealing the land itself. And that makes perfect sense. Of course that is different.
So naturally the laws that surround property were adapted to handle this distinction. It is important to note, however, that although there was distinction in these infractions, both remained an infraction. Stealing someone's physical good and using it without their permission are different infractions as well. However, both are against the law because there are laws that deal with each type of infraction in place.
And note the complication that arises already. These are two different infractions, but they are still dealing with physical goods. It is easy to see how things can be quite complicated when the concept of intangible goods is thrown into the mix.
Additionally, much of our understanding about property law rose out of the understanding of physical goods. It is natural to think that all goods should be treated in a similar fashion. There is truth in needing to defend and guard goods, but it certainly becomes more complicated when we deal with intangible goods.
More on that later.
Our law system has deep ties to England and its law system. This, of course, makes perfect sense. We are a country that was, for all practical purposes, birthed from England. England's laws had developed over a series of several hundred years, so it isn't any surprise that we assimilated many of those laws ourselves.
One of the most interesting things that I found in my studying is the distinction about tangible property, and intangible property. There is consistently a very real distinction about something being physical, and something being intangible. For example, there is a great distinction between trespassing on someone's property, and actually stealing the land itself. And that makes perfect sense. Of course that is different.
So naturally the laws that surround property were adapted to handle this distinction. It is important to note, however, that although there was distinction in these infractions, both remained an infraction. Stealing someone's physical good and using it without their permission are different infractions as well. However, both are against the law because there are laws that deal with each type of infraction in place.
And note the complication that arises already. These are two different infractions, but they are still dealing with physical goods. It is easy to see how things can be quite complicated when the concept of intangible goods is thrown into the mix.
Additionally, much of our understanding about property law rose out of the understanding of physical goods. It is natural to think that all goods should be treated in a similar fashion. There is truth in needing to defend and guard goods, but it certainly becomes more complicated when we deal with intangible goods.
More on that later.
Road map - IP (intellectual property).
0 Comments Published by Brandon on April 13, 2008 at 5:46 PM.
So that everyone else out there can follow along, Cyrus and I are going to start by looking at the historical underpinnings of what we know as property law. Why do we have laws for it? What do they do? How do they make my life better? And so on.
After that, we'll take a look at the same questions for intellectual property law, and try to understand how IP is similar/different from regular property.
Next, we'll look at the modern rules governing in each of the IP areas and try to understand why they exist. Specifically, we'll look at the perspectives of the lawmakers who made these rules up.
Next up, we'll examine the other viewpoints on these IP rules and laws - the views of our friends, family, the artist next door, etc. The idea is to understand the viewpoints of the creators and consumers.
Finally, we'll offer up our final impressions and some of the things we've learned along the way.
Also, we should note - we have no idea how long this whole thing will take from subject to subject. IP might take a few weeks or a few months. Who knows. We're trying to be flexible with this, and let it be an organic process. Please bear with us and grant us a little leeway if we take too long or something happens in our actual lives that requires us to go on hiatus for a while. We don't take ourselves seriously enough to think that it would really matter to you, but we also don't want you to take us that seriously either.
Thanks, and here's to learning new things.
After that, we'll take a look at the same questions for intellectual property law, and try to understand how IP is similar/different from regular property.
Next, we'll look at the modern rules governing in each of the IP areas and try to understand why they exist. Specifically, we'll look at the perspectives of the lawmakers who made these rules up.
Next up, we'll examine the other viewpoints on these IP rules and laws - the views of our friends, family, the artist next door, etc. The idea is to understand the viewpoints of the creators and consumers.
Finally, we'll offer up our final impressions and some of the things we've learned along the way.
Also, we should note - we have no idea how long this whole thing will take from subject to subject. IP might take a few weeks or a few months. Who knows. We're trying to be flexible with this, and let it be an organic process. Please bear with us and grant us a little leeway if we take too long or something happens in our actual lives that requires us to go on hiatus for a while. We don't take ourselves seriously enough to think that it would really matter to you, but we also don't want you to take us that seriously either.
Thanks, and here's to learning new things.
I come at intellectual property from a different direction than Cyrus. In law school, I studied both property law and patent law, and before law school I spent four years in engineering school. However, in the legal profession, unlike so many other creative professions, intellectual property isn't generated everyday in a sense that needs to be protected. Some of the work attorneys do can be protected, but for the most part, the documents and notes and everything else that lawyers are generating aren't protected. But intellectual property remains a fascinating subject of discussion for me because I enjoy discussing most aspects of the law.
As for my opinions on property and intellectual property, I guarantee you that they do not run as deep nor as detailed as Cyrus. In fact, I'm on board with this topic to learn about it, and to hear what other people have to say more than anything else. And like everyone else, I download a few mp3s from time to time, and it'd be nice to have a well-reasoned opinion for whether I should be able to pass them along to my friends and family or not.
I think Cyrus hit upon something important though in distinguishing property in the traditional sense as tangible goods from intellectual property which is usually more intangible (but we deal with it in tangible forms). To boil this down, intellectual property is ideas or information, while property in general is much like that old science class definition of matter - anything that occupies space and has mass.
Property law is an interesting area of the law to study because its existence stretches to time before law. I enjoy that historical touch to it, and I'm sure we'll get into reading some really ancient materials as we seek out what property is in the legal and realistic sense. However, Cyrus might be right that its application to ideas and information is a bit like trying to fit a square peg in a round hole. We'll see.
The world certainly seems to be more concerned about intellectual property than it ever was. As technology has advanced in the last century, this seems to have been part of the response. I am a bit concerned by what I perceive as an over-reliance on the many legal forms of intellectual property: patents, copyrights, trademarks, servicemarks, and trade secrets. This intersects most people's lives in the way they obtain music and movies on the Internet, but there are greater concerns that I hope we'll get into.
Also, Cyrus and I have a number of friends who are creative and who produce their own intellectual property in a more traditional sense. They are artists, photographers, musicians, and writers, and the works they create all qualify for legal protection under current law. I am curious what they think about those protections available to them, and whether they think they help them or not. I look forward to hearing their reactions as Cyrus and I explore this together.
One last thought: I really hope Cyrus and I get somewhere that we're both contributing and learning stuff. I think it was Thomas Jefferson who once said (and I'm paraphrasing substantially): "Learn a lot about one thing; learn a little about everything else."
This place is a tribute to that kind of life-long learning. Cyrus and I both hope to challenge ourselves and those who stumble upon our journey to learn new things and have it stick. I believe the world is a better place when we all seek to know more about it. And we are certainly better people and better decisionmakers when we comprehend.
As for my opinions on property and intellectual property, I guarantee you that they do not run as deep nor as detailed as Cyrus. In fact, I'm on board with this topic to learn about it, and to hear what other people have to say more than anything else. And like everyone else, I download a few mp3s from time to time, and it'd be nice to have a well-reasoned opinion for whether I should be able to pass them along to my friends and family or not.
I think Cyrus hit upon something important though in distinguishing property in the traditional sense as tangible goods from intellectual property which is usually more intangible (but we deal with it in tangible forms). To boil this down, intellectual property is ideas or information, while property in general is much like that old science class definition of matter - anything that occupies space and has mass.
Property law is an interesting area of the law to study because its existence stretches to time before law. I enjoy that historical touch to it, and I'm sure we'll get into reading some really ancient materials as we seek out what property is in the legal and realistic sense. However, Cyrus might be right that its application to ideas and information is a bit like trying to fit a square peg in a round hole. We'll see.
The world certainly seems to be more concerned about intellectual property than it ever was. As technology has advanced in the last century, this seems to have been part of the response. I am a bit concerned by what I perceive as an over-reliance on the many legal forms of intellectual property: patents, copyrights, trademarks, servicemarks, and trade secrets. This intersects most people's lives in the way they obtain music and movies on the Internet, but there are greater concerns that I hope we'll get into.
Also, Cyrus and I have a number of friends who are creative and who produce their own intellectual property in a more traditional sense. They are artists, photographers, musicians, and writers, and the works they create all qualify for legal protection under current law. I am curious what they think about those protections available to them, and whether they think they help them or not. I look forward to hearing their reactions as Cyrus and I explore this together.
One last thought: I really hope Cyrus and I get somewhere that we're both contributing and learning stuff. I think it was Thomas Jefferson who once said (and I'm paraphrasing substantially): "Learn a lot about one thing; learn a little about everything else."
This place is a tribute to that kind of life-long learning. Cyrus and I both hope to challenge ourselves and those who stumble upon our journey to learn new things and have it stick. I believe the world is a better place when we all seek to know more about it. And we are certainly better people and better decisionmakers when we comprehend.
Thus begins my voyage into the world of self-learning. My journey begins with a simple step - allowing my current viewpoint on intellectual property work itself out on this blog. I will intentionally leave out any references in this initial post, as I want to demonstrate this fully as my own opinion.
Intellectual Property
Intellectual property is a complicated and devilish beast. It is intrinsically different from tangible property, yet we seem to have a certain reluctance to forgo the concepts and rights that are inherent to physical property.
I will go about this by highlighting similarities and differences in the two.
Both require effort to produce, at least initially. There is a production cost for any physical good and for any intellectual good. At times the cost to produce the intellectual good can even be greater than the cost to produce the physical good!
However, the cost to reproduce a physical good and an intellectual good are completely opposite. There is a reproduction cost for every single physical good. There is zero cost to reproduce an intellectual good (ignoring the cost of the hardware, electricity, storage space, etc. for all of you literalist out there). Additionally, there is cost to distribute the physical good, but the cost to distribute the intellectual good is very near zero.
People often think it is wrong to steal intellectual goods (software, music and video piracy). I will readily agree that it is wrong to deprive the maker of a profit from his or her production. However, I need to split some hairs at this point, for there are consequences in the way we word things.
For starters, you can easily steal a physical good. When you steal a good, you deprive the original owner of the right to use that good at his or her leisure, and the ability to profit off of selling that good. In other words, the original owner is no longer in possession of the good. That is theft (stealing).
However, intellectual goods do not behave in this same fashion. If I copy a song you legally purchased, I did not steal that song from anyone. Several of you will note that by my definition early this is still theft, since they cannot profit off of that good. That isn't accurate. I can still by the good from that person and they could still profit from it. Had I stolen the good, they couldn't sell it to me since I would possess the only copy of that good.
This is copyright infringement. While it is still wrong (I am not advocating piracy in any way), it is not technically theft. The original owner still possesses the original item. While (as noted) that seems like splitting hairs, as we begin to explore this, I hope to flesh out why that is an important distinction.
Patents:
Physical goods can be patented, where as intellectual goods (in my opinion) can not (or rather, should not). For example, you can patent the steam engine. However, you should not be able to patent the steps to produce the steam engine.
Some people balk at this idea, but consider it carefully. We can all agree that the steps to produce something and the thing it produces are, inherently, different. One is the process, the other is the product. The process is nothing more than a series of steps and procedures that end up with a final product. Allow us to abstract this a little further. This essentially becomes an algorithm - a means to do, or produce, something.
Now that we have in hand the concept that producing something is essentially nothing more than a series or steps, or an algorithm, allow us to approach algorithms from a different angle. Isn't it absurd to think that we should be able to patent a mathematical equation? That is nothing more than a series of steps to end up with a final product - an algorithm.
One may end up with a physical product, and may end up with a mathematical answer, but the point remains the same. When you abstract them out of their context, they become no different. One is absurd to patent, the other we believe is acceptable. Perhaps some people would say that since there is so much effort that goes into producing new products, not only the product should be protected, but so should the process. But that downplays the enormous amount of effort that went into developing our own scientific abilities.
Think about where we would be if all of the great scientific and mathematical minds had hoarded their processes from others. If there was no sharing of intellectual thoughts, the world would proceed at a much slower pace.
These are my brief thoughts on business model and software patents (and any other patents of that sort).
Competition
This ultimately brings me to a final point in all of this. Patent lies and copyrights are intended to benefit two parties: the producer, but also the public at large. The intent of patents is to create a temporary monopoly for the original producer to return a profit. Then that patent holder could use those funds to pay back the development costs, as well as develop new products. After a period of time the patent would expire and others could begin to produce the same good, driving cost down and further benefiting the consumer. Competition is a good thing.
Copyright makes sense, to an extent. There is some confusion about its original intent. Some people argue that copyright is intended to protect innocent people from purchasing fraudulent copies of something - in other words, it is intended to ensure that when you bought item X, you knew it was the original. There might be some truth to that, but I think it is missing the point. A copyright is exactly that: the right to copy. I think that it, like patents, should be for a set period of time. Copyrights today can last for many years - longer than the life of the original creator in fact! That, to me, is clearly in the best interest of the producer. In fact, someone could produce something that is incredibly popular, and make a profit off of it for the rest of his or her life, never producing anything else again.
To me, copyrights and patents serve an important purpose: innovation. I said I wouldn't reference something else, but I simply have to at this point. Patents, as noted on the uspto site, are for...
Copyright is another beast. And I think it is ugly, backwards and stupid in so many ways. As I mentioned earlier, it lasts a long time. To be exact, it lasts the duration of the creator's life, plus 70 years after his or her death. 70 years! How does that benefit anyone other than the copyright holder?
Conclusion
Intellectual goods and physical goods are similar, but deeply different in several key ways. The laws that govern them need to be different. We also need to understand the technological impact of our current generation, and adapt the laws to those demands. We must also understand the economy we are in, and how best to make money. While I do not advocate intellectual piracy, I also do not advocate intellectual hoarding (which I believe many corporate entities do).
Consider those differences. What are some of the things that I've missed? What are some of the other view points I've over looked? I've clearly demonstrated my opinion, but I would love to hear some other opinions about this, especially those contrary to mine.
I look forward to the journey of learning more about the laws that govern these things, why they were instituted, and what should be done next to better improve it for the good of everyone.
Intellectual Property
Intellectual property is a complicated and devilish beast. It is intrinsically different from tangible property, yet we seem to have a certain reluctance to forgo the concepts and rights that are inherent to physical property.
I will go about this by highlighting similarities and differences in the two.
Both require effort to produce, at least initially. There is a production cost for any physical good and for any intellectual good. At times the cost to produce the intellectual good can even be greater than the cost to produce the physical good!
However, the cost to reproduce a physical good and an intellectual good are completely opposite. There is a reproduction cost for every single physical good. There is zero cost to reproduce an intellectual good (ignoring the cost of the hardware, electricity, storage space, etc. for all of you literalist out there). Additionally, there is cost to distribute the physical good, but the cost to distribute the intellectual good is very near zero.
People often think it is wrong to steal intellectual goods (software, music and video piracy). I will readily agree that it is wrong to deprive the maker of a profit from his or her production. However, I need to split some hairs at this point, for there are consequences in the way we word things.
For starters, you can easily steal a physical good. When you steal a good, you deprive the original owner of the right to use that good at his or her leisure, and the ability to profit off of selling that good. In other words, the original owner is no longer in possession of the good. That is theft (stealing).
However, intellectual goods do not behave in this same fashion. If I copy a song you legally purchased, I did not steal that song from anyone. Several of you will note that by my definition early this is still theft, since they cannot profit off of that good. That isn't accurate. I can still by the good from that person and they could still profit from it. Had I stolen the good, they couldn't sell it to me since I would possess the only copy of that good.
This is copyright infringement. While it is still wrong (I am not advocating piracy in any way), it is not technically theft. The original owner still possesses the original item. While (as noted) that seems like splitting hairs, as we begin to explore this, I hope to flesh out why that is an important distinction.
Patents:
Physical goods can be patented, where as intellectual goods (in my opinion) can not (or rather, should not). For example, you can patent the steam engine. However, you should not be able to patent the steps to produce the steam engine.
Some people balk at this idea, but consider it carefully. We can all agree that the steps to produce something and the thing it produces are, inherently, different. One is the process, the other is the product. The process is nothing more than a series of steps and procedures that end up with a final product. Allow us to abstract this a little further. This essentially becomes an algorithm - a means to do, or produce, something.
Now that we have in hand the concept that producing something is essentially nothing more than a series or steps, or an algorithm, allow us to approach algorithms from a different angle. Isn't it absurd to think that we should be able to patent a mathematical equation? That is nothing more than a series of steps to end up with a final product - an algorithm.
One may end up with a physical product, and may end up with a mathematical answer, but the point remains the same. When you abstract them out of their context, they become no different. One is absurd to patent, the other we believe is acceptable. Perhaps some people would say that since there is so much effort that goes into producing new products, not only the product should be protected, but so should the process. But that downplays the enormous amount of effort that went into developing our own scientific abilities.
Think about where we would be if all of the great scientific and mathematical minds had hoarded their processes from others. If there was no sharing of intellectual thoughts, the world would proceed at a much slower pace.
These are my brief thoughts on business model and software patents (and any other patents of that sort).
Competition
This ultimately brings me to a final point in all of this. Patent lies and copyrights are intended to benefit two parties: the producer, but also the public at large. The intent of patents is to create a temporary monopoly for the original producer to return a profit. Then that patent holder could use those funds to pay back the development costs, as well as develop new products. After a period of time the patent would expire and others could begin to produce the same good, driving cost down and further benefiting the consumer. Competition is a good thing.
Copyright makes sense, to an extent. There is some confusion about its original intent. Some people argue that copyright is intended to protect innocent people from purchasing fraudulent copies of something - in other words, it is intended to ensure that when you bought item X, you knew it was the original. There might be some truth to that, but I think it is missing the point. A copyright is exactly that: the right to copy. I think that it, like patents, should be for a set period of time. Copyrights today can last for many years - longer than the life of the original creator in fact! That, to me, is clearly in the best interest of the producer. In fact, someone could produce something that is incredibly popular, and make a profit off of it for the rest of his or her life, never producing anything else again.
To me, copyrights and patents serve an important purpose: innovation. I said I wouldn't reference something else, but I simply have to at this point. Patents, as noted on the uspto site, are for...
For over 200 years, the basic role of the United States Patent and Trademark Office (USPTO) has remained the same: to promote the progress of science and the useful arts by securing for limited times to inventors the exclusive right to their respective discoveries (Article 1, Section 8 of the United States Constitution).And I agree fully. But sometimes the business world develops so quickly that a patent doesn't make sense. Once again I fall back to software patents. These are ideas, concepts, algorithms. And new innovations build off of old ones. But too often these new innovations infringe upon overly broad patents. However, that is another soap box, one that I will get on another time.
Copyright is another beast. And I think it is ugly, backwards and stupid in so many ways. As I mentioned earlier, it lasts a long time. To be exact, it lasts the duration of the creator's life, plus 70 years after his or her death. 70 years! How does that benefit anyone other than the copyright holder?
Conclusion
Intellectual goods and physical goods are similar, but deeply different in several key ways. The laws that govern them need to be different. We also need to understand the technological impact of our current generation, and adapt the laws to those demands. We must also understand the economy we are in, and how best to make money. While I do not advocate intellectual piracy, I also do not advocate intellectual hoarding (which I believe many corporate entities do).
Consider those differences. What are some of the things that I've missed? What are some of the other view points I've over looked? I've clearly demonstrated my opinion, but I would love to hear some other opinions about this, especially those contrary to mine.
I look forward to the journey of learning more about the laws that govern these things, why they were instituted, and what should be done next to better improve it for the good of everyone.
