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From: abbott@aerospace.aero.org
Newsgroups: trial.misc.legal.software
Subject: Intellectual Property (was Re: Patents (was Re: Copyrights))
Message-ID: <80414@aerospace.AERO.ORG>
Date: 8 Aug 90 16:23:30 GMT
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Reply-To: abbott@aerospace.aero.org ()
Organization: The Aerospace Corporation, El Segundo, CA
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Brad Templeton writes:

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

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

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

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

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

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

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

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

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

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

-- Russ Abbott