Intellectual property revisited

Editor's Notes

• #3: What is Intellectual Property? In some respects IP derives from general property and property rights theory and law.  Usually when we talk about IP we not talking about things - about physical inventions such as a paperclip or new kind of airplane. However this distinction is a bit odd, especially in the Information Age.  Even physical inventions are actually a manifestation of a set of intellectual discoveries, research and development actions.   But originally some forms of IP protection only covered physical inventions or implementations and not contents per se.   This was in part due to the inability before the digital age to easily access and copy this content and in part on a limitation of what was and was not allowed certain protection such as a patent. Today Intellectual Property is used to include pretty much anything that can possibly be protected by common IP mechanisms.  Until recently, the purpose of intellectual property law was to give as little protection possible in order to encourage innovation. Historically, therefore, they were granted only when they were necessary to encourage invention, limited in time and scopeCurrently, particularly in the United States, the objective of intellectual property legislators and those who support its implementation is "absolute protection". "If some intellectual property is desirable because it encourages innovation, they reason, more is better. The thinking is that creators will not have sufficient incentive to invent unless they are legally entitled to capture the full social value of their inventions." [11] This absolute protection or full value view treats intellectual property as another type of 'real' property, typically adopting its law and rhetoric.Intellectual rights (from the French "droitsintellectuels") is a term sometimes used to refer to the legal protection afforded to owners of intellectual capital. This notion is more commonly referred to as "intellectual property", though "intellectual rights" more aptly describes the nature of the protections afforded by most nations.Both terms were used in Europe during the 19th century as a means of distinguishing between two different views of intellectual protection. "Intellectual property" was generally used to advocate a belief that copyrights and patents should provide rights akin to physical property rights. The term "intellectual rights" was used by those who felt that such protection should take the form of temporary, limited grants.
• #4: CopyrightGenerally, it is "the right to copy", but also gives the copyright holder the right to be credited for the work, to determine who may adapt the work to other forms, who may perform the work, who may financially benefit from it, and other, related rights. It is an intellectual property form (like the patent, the trademark, and the trade secret) applicable to any expressible form of an idea or information that is substantive and discrete.Creative Commons has been described as being at the forefront of the copyleft movement, which seeks to support the building of a richer public domain by providing an alternative to the automatic "all rights reserved" copyright, dubbed "some rights reserved."[7] David Berry and Giles Moss have credited Creative Commons with generating interest in the issue of intellectual property and contributing to the re-thinking of the role of the "commons" in the "information age". Beyond that, Creative Commons has provided "institutional, practical and legal support for individuals and groups wishing to experiment and communicate with culture more freely."Copyleft is a play on the word copyright to describe the practice of using copyright law to offer the right to distribute copies and modified versions of a work and requiring that the same rights be preserved in modified versions of the work. In other words, copyleft is a general method for making a program (or other work) free (libre), and requiring all modified and extended versions of the program to be free as well.Copyleft is a form of licensing and can be used to maintain copyright conditions for works such as computer software, documents and art. In general, copyright law is used by an author to prohibit others from reproducing, adapting, or distributing copies of the author's work. In contrast, under copyleft, an author may give every person who receives a copy of a work permission to reproduce, adapt or distribute it and require that any resulting copies or adaptations are also bound by the same licensing agreement.PatentA patent consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention.Not all patents are created equal.  In particular the worth of patents including their beneficial or inimical effects may depend on:- type of item to be patented;- length of patent period;- licensing requirements;- whether there is an actual testable invention or merely a concept that is seeking patent;- whether the patent is actually render into product by the holder- what kind of entity (government or private) issues the patent- what critieria are applied to determine whether a patent should be grantedI think most would agree that software is a pretty inimical thing to patented by its very nature.  And that probably process patents generally fall into this category.  I am not so sure about patents on physical devices.   So far I am pretty opposed to most types of gene patents, especially ones that include little or no real invention.    In general patents on things that a competent practitioner would invent with come up with themselves as a reasonable possible solution are a bad thing to put patent roadblocks on.    It may be the general anti-patent case is a lot cleaner to make though.The term patent usually refers to an exclusive right granted to anyone who invents any new, useful, and non-obvious process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof, and claims that right in a formal patent application. The additional qualification utility patent is used in the United States to distinguish it from other types of patents (e.g. design patents) but should not be confused with utility models granted by other countries. Examples of particular species of patents for inventions include biological patents, business method patents, chemical patents and software patents.A patent is not a right to practice or use the invention.[14] Rather, a patent provides the right to exclude others[14] from making, using, selling, offering for sale, or importing the patented invention for the term of the patent, which is usually 20 years from the filing date[3] subject to the payment of maintenance fees. A patent is, in effect, a limited property right that the government offers to inventors in exchange for their agreement to share the details of their inventions with the public. Like any other property right, it may be sold, licensed, mortgaged, assigned or transferred, given away, or simply abandoned.The rights conveyed by a patent vary country-by-country. For example, in the United States, a patent covers research, except "purely philosophical" inquiry. A U.S. patent is infringed by any "making" of the invention, even a making that goes toward development of a new invention—which may itself become subject of a patent.Trade SecretThe precise language by which a trade secret is defined varies by jurisdiction (as do the particular types of information that are subject to trade secret protection). However, there are three factors that, although subject to differing interpretations, are common to all such definitions: a trade secret is information that:is not generally known to the public;confers some sort of economic benefit on its holder (where this benefit must derive specifically from its not being generally known, not just from the value of the information itself);is the subject of reasonable efforts to maintain its secrecy.By comparison, under US law, "A trade secret, as defined under 18 U.S.C. § 1839(3) (A), (B) (1996), has three parts: (1) information; (2) reasonable measures taken to protect the information; and (3) which derives independent economic value from not being publicly known.
• #5: Creative Commons licenses consist of four major condition modules: Attribution (BY), requiring attribution to the original author; Share Alike (SA), allowing derivative works under the same or a similar license (later or jurisdiction version); Non-Commercial (NC), requiring the work is not used for commercial purposes; and No Derivative Works (ND), allowing only the original work, without derivatives.These modules are combined to currently form six major licenses of the Creative Commons.Unintended consequences from proliferation of number of licenses that may be incompatible with one another. This makes for less reuse of prior knowledge and art rather than more in some cases.
• #6: Some question the very validity of the concept of Intellectual Property.  In the IP Con section we will get into some of these arguments.  It is a somewhat difficult point to make because most opponents want to preserve the right of the individual to their own person which includes [some] rights of the individual over what they produce.  One of the linchpins of the argument against Intellectual Property as a concept is that it covers or includes thing (information, knowledge, process, algoritms) that are very different in characteristics from physical property.    Others based their arguments against IP on arguments against the concept of property in general. On the IP Pro side there is commonly a derivation of IP as valid from the validity of property in general and the right of the creator to their own life and thus over their creations.  The other common type of argument is a basically utilitarian argument over the intended and actual benefits and detriments of such IP laws to society.  Specifically these usually address effects on amount of inventions that are realized,  costs of the resulting products and services, effects on creativity and innovation.   
• #7: Given that the concept of IP is valid is IP Protection in general valid and if so in what domains and of what forms?   More precisely, certain types of IP law and practice, whether legislative or in code, are problematic. We develop perfect photographic memories Today we carry devices on our person that can take pictures, record audio, perhaps take movies and email or otherwise send any of this content anywhere we like.  Already some of the devices we can easily carry with us are prohibited in certain places and activities, e.g. carrying a video recorder into a theatre.   Going forward these abilities will only increase.  The devices will become smaller and smaller and eventually possibly be implanted within us.    What happens then?  We will effectively have perfect photographic memories for all we see and hear.    How do IP protecting laws with their assumption of consumption by consumers that do not retain reproductions work then?  Will the movie and record companies demand control of these devices and ultimately of our own brains as we become enhanced?    Will they want to police inside our minds?  http://ip-policy.wikispaces.com/
• #8: http://en.wikipedia.org/wiki/Protect_IP_Acthttp://opinion.latimes.com/opinionla/2011/09/technology-entrepreneurs-blast-the-protect-ip-act.htmlhttp://hothardware.com/News/PROTECTIP-Act-Becomes-EPARASITE-And-Gets-Much-Worse/http://arstechnica.com/tech-policy/news/2011/07/dozens-of-law-professors-protect-ip-act-is-unconstitutional.arshttp://news.cnet.com/8301-13578_3-20093304-38/five-essential-changes-to-protect-ip-act/The Protect IP Act says that an "information location tool shall take technically feasible and reasonable measures, as expeditiously as possible, to remove or disable access to the Internet site associated with the domain name set forth in the order". In addition, it must delete all hyperlinks to the offending "Internet site"At a technical level, nonauthoritative domain name servers would be ordered to take technically feasible and reasonable steps to prevent the domain name from resolving to the IP address of a website that have been found by the court to be “dedicated to infringing activities.”Although this would allow a website to remain accessible by numerical IP address, hyperlinks relying solely on the website’s domain name would not resolve. Also search engines—such as the already protesting Google—would be ordered to “(i) remove or disable access to the Internet site associated with the domain name set forth in the [court] order; or (ii) not serve a hypertext link to such Internet site.According to Sherwin Siy of Public Knowledge, past attempts to limit copyright infringement online by way of blocking domains have always generated criticism that blocking domains would fracture the Domain Name System (DNS) and threaten global functioning of the Internet, with this bill being no different. Ideally, all domain name servers world-wide would contain identical lists; with the changes proposed, servers inside the United States would have records different from their global counterparts, making URLs less universal.The bill has been criticized by Abigail Phillips of Electronic Frontier Foundation for not being specific about what constitutes an infringing web site. For example, if WikiLeaks were accused of distributing copyrighted content, U.S. search engines could be served a court order to block search results pointing to Wikileaks. Requiring search engines to remove links to an entire website altogether due to an infringing page would raise free speech concerns regarding lawful content hosted elsewhere on the site.Imaging the chilling effects of this I find it difficult to see how anyone could be for it and still be considered reasonably humane.Google chairman Eric Schmidt has stated that the measures called for in the PROTECT IP Act are overly simple solutions to a complex problem, and that the precedent set by pruning DNS entries is bad from the viewpoint of free speech and would be a step toward less permissive Internet environments, such as China's. As chairman of the company that owns the world's largest search engine, Schmidt has declared "if there is a law that requires DNSs to do X and it's passed by both Houses of Congress and signed by the President of the United States and we disagree with it then we would still fight it."E-Parasite added:service provider shall take technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States to the foreign infringing site (or portion thereof) that is subject to the order, including measures designed to prevent the domain name of the foreign infringing site (or portion thereof) from resolving to that domain name’s Internet Protocol address. Such actions shall be taken as expeditiously as possible, but in any case within 5 days after being served with a copy of the order, or within such time as the court may order. Under the new bill, ISPs could be ordered to block access through the Attorney General and there's no provision for how a website accused of infringement would challenge that ruling before access is terminated. While the Senate version of the PROTECT-IP act only applied to sites "dedicated to infringing activities", the House flavor includes websites with "only limited purpose other than infringement" and those which "induce infringement." Since induction is broadly defined as "to introduce," the definition is broad enough to include a vast range of legal software--and the content industry is notoriously terrible at defining such behavior. The House version of the bill has been criticized as an attempt to create the Great Firewall of America, but the Big Content industries insist there's no other way they can possibly protect America from the impact of evil foreign file-sharing websites.
• #9: IP as IdeasThis argument is fundamentally that intellectual property is not tangible - not physical - mere "ideas".  This is a rather weak argument that in the information age more and more things that are quite important are informational in nature or in the digital age reducible to just bits.    This does not make those ideas and the content of those bits any less the work of creators than producing physical goods. Even for physical goods much of the value of the physically realized item came from the intangibles that went into its production - its design, manufacturing plan, process, marketing plans and so on.  On the other hand it is true that physical goods are different from informational goods in some crucial respects such as an absence of tragedy of the commons. Government Granted MonopolyThis argument is generally applied the most to patents but also applies to copyright.  Especially when copyright is extended for longer and longer periods of time.  It is true that a patent basically grants the holder the exclusive right to produce and sale the invention and to decide who else to license some part of such rights to and for how much.   The patent holder can also restrain other from creating too close of an equivalent product and bringing it to market.  So it can constrain innovation.  A copyright allows the holder to limit how a work or invention may be used, copied, sold or modified and distributed.   It also may restrain others from making anything that can remotely be called a derivative work.  Which is a restrain on innovation.  
• #10: When, as Lessig points out, code embedded in devices and codecs controls what rights in practice the users of information actually have, quite arbitrary controls and restrictions can be applied.  It has been proposed, for instance, to create textbooks as ebooks so coded that they will automatically erase themselves at the end of course.   When nothing that exist may necessarily be used in a creative project without asking for or checking a lot of permissions, creativity is greatly hampered. For instance, to make a movie today one needs explicit and separately negotiated permissions for every item that may appear in the film that any one may claim any rights to.  Every product and manufactured item, everything.  Many types of creativity, especially in music and film but also in software, build on what has been done before.  If what has been done before has severe enough restrictions on reuse, on mash ups, remix and burn, then many types of innovation do not occur.   In software much that that has been patented or is patentable are algorithms that any competent designer is likely to think of eventually. To make a software patent often the actual software done is not the limit of a the patent but an entire category of problem gets encumbered with a patent.  This is so stifling of innovation that projects and software startups are often advised to proceed ignoring patents.  If they succeed there will be time and money for worrying about patents.  If they do not then no one comes after them anyway.  The RIAA and to a lesser extent the MPAA considers million of people criminals.  They believe they do not pay enough or meet all the criteria these organizations would like to protect music and media publishers.  They pick people nearly at random, usually guilty of at most minor infringements, to harass and sue for damages much larger than any real loss. It would be much better if we could arrive at a system where people were encouraged to widely copy and share content and creators, not middlemen, got paid based on what people played, viewed and enjoyed the most.  Perhaps a subscription service and simple devices that just track how many times a work is experienced but no other information about the users could achieve this.The latest PROTECT-IP legislation is another and extremely chilling example. Arguably the old publisher models of music, video and books are no longer meaningful in a digital age.  Creators and their fans can go straight from creation or performance to high fidelity capture, copies and distribution without involving publishers.  There business model is out of date.  So they twist IP laws to attempt to protect their position. In a more and more information and knowledge dependent age a thousand and one fiefdoms claiming exclusive control over various sections of knowledge and information greatly impede progress and integration.   Whatever ways we find to reward creation we very much need to make sure they do not prevent usability and sufficient access.  
• #11: Right to life That we are individuals with the right to live our lives by our own desires and understanding as we long as we do not interfere with the rights of others has some perhaps germane implications as basis for IP.  In particular if we have the right to "Life Liberty and the Pursuit of Happiness" then how can we not have the right to those manifestations of that life and pursuit that we create?  How can we have the right to life but not the right to own or have control over any means to live or any manifestation of that life?  Right of creatorIf the creator gets no benefits, and is not even necessarily compensated for their effort, then why would they even bother?     There is the joy of creation but that is thin gruel to pay the rent with and live on.   And how much joy is there if everyone may benefit but they need not even acknowledge you and you can expect no other rewards for the what was put into the creating?   It is true that their are some social rewards from those that know of your act of creation and appreciate it.  But with no IP at all anyone may appropriate your creation as if it is their own.IncentiveOne of the original arguments for patents was to reward innovation and foster more of it.  There is some evidence that societies with something like patent advance faster in innovation than societies without it.   If I work for some time with not inconsiderable effort and resources to produce X, shouldn't I be allowed to profit from it for a time more than anyone else who simply copied my invention?   Should I be compelled by law to give away the details of my invention with no compensation or control whatsoever?   I could keep the invention's details a secret and only sale the products, at least for long enough to recoup my costs and what I considered a reasonable first round of profit.  Is this better on the whole for society?  For that period of time, which may be forever, no one can build off this invention because they do not know about it.   They may reinvent this wheel over and over.