Newsgroups: trial.misc.legal.software
Path: utzoo!utgpu!watserv1!maytag!looking!brad
From: brad@looking.on.ca (Brad Templeton)
Subject: Re: Intellectual Property (was Re: Patents (was Re: Copyrights))
Organization: Looking Glass Software Ltd.
Date: Thu, 09 Aug 90 05:14:38 GMT
Message-ID: <1990Aug09.051438.18943@looking.on.ca>
References: <80414@aerospace.AERO.ORG>

I say that intellectual property is the truest form of property from
a philosophical standpoint, not a legal one.  The legal system does not
quite recognize this yet.

Legal ownership is of course a construct of society.  But my relationship
to my creations and my labour is real.  "Joe built that gadget, it is
Joe's gadget." is a true statement regardless of the existence of any other
people or any society or law.  "That is Joe's land" hasn't got nearly that
strength.

What is valuable, to us, about any material thing, other than the most
primative foods and freely found raw materials?   It is the human creativity
and labour that went into it, not the basic constituents.   A car is more
valuable than a pile of metal.  A car made by good manufacturing methods is
more valuable than one shoddily made, and a car of good design is yet more
valuable.  The value lies not in the pile of metal, but in the skilled labour
and the design.

This is true in just about everything.   So in fact, in the case of a
piece of physical property that we value, what we *really* value is the
combination of intellectual property and labour in it.  If not, mind if I
trade your car for an equivalent hunk of scrap metal?

There are some special exceptions, such as real estate, but by and large this
is the rule.

You own your own body -- that's the first ethic of a free society.  You own
your labour and your thoughts.  Nothing is more "yours."

Expanded into law, this says that intellectual property should be the strongest
form of property.

BUT:  It is important to remember that while you own your own thoughts and
creations, so do other people own theirs.  Even if they are identical.  The
law has trouble dealing with that.  Morally, this is how it should be.  In
the law, it's tougher.   Most of the problems people have with IP law are
actually these problems of enforcement, or so I feel.

I find no problem in identifying those intellectual creations which should
belong to a person.  Some people say, "how can you own an idea?"  I say,
"how *can't* you own it?"  But that applies to everybody.

In forming the law, people have already seen that (with the concept of
copyright) some things are very clear.  A novel or long piece of software
are clearly associated with their creator.  The simpler the thing, the
tougher the decision gets.

When it comes to patent, some express concern that people might patent
"laws of nature."  I find little ambiguity.  It is clear that F = ma is
a law of nature, it is equally clear that complex algorithms that nobody
ever thought of before are not.  Mathematics itself is a human construct.
Laws of nature can be expressed within mathematics, but mathematics itself
is no law of nature.

This is not an easy problem, but I believe it can be codified reasonably well
with time.  We're really only starting now.
m
-- 
Brad Templeton, ClariNet Communications Corp. -- Waterloo, Ontario 519/884-7473