[UFO Chicago] Intellectual property

Neil R. Ormos ormos@enteract.com
Thu, 28 Mar 2002 16:22:01 -0600 (CST)

Larry Garfield wrote:

> "Neil R. Ormos" wrote:

>> Third, the notion that "ideas" or creative output are
>> somehow fundamentally inconsistent with the application
>> of property concepts is simply wrong.  There are many
>> reasonable analogies that can be drawn between
>> intellectual property and real/personal property.  For
>> example, the essence of a possessory interest in property
>> is the right to exclude others (at least in most
>> common-law jurisdictions).  For real estate and chattel
>> property, the relevant exclusion is presence and use.
>> For intellectual property, the relevant exclusion may
>> well be commercialization.

> Actually, it's a very reasonable and accurate distinction
> to make, for the simple reason stated in the quote that
> began this conversation.

It might be reasonable and accurate to make that distinction
if we lived in an abstract world, in which no one has
experienced the problems associated with misappropriation of
ideas or creative output, or the commercial value thereof.
However, that's not the case, and a regime for protecting
the value of ideas/creative output has been developed which
at least arguably (1) analogizes ideas/creative output with
property and (2) analogizes the right to control
commercialization of the ideas/creative output with the
right to exclude others from real property and the like.

> If I were to dispose of (the general term meaning "to use"
> when using pedantic philosophical language) your property,
> you no longer have it, or have it in the same form.  If I
> borrow it to use it and then return it (e.g., I borrow
> your screwdriver), then for a given period of time you do
> not have it, and afterwards I do not have it.  It is
> finite.

> Now compare that to information.  During the entire time
> in which I make use of the idea that I got from you (by
> whatever means), you still have that idea and full access
> and ability to dispose of it as well.  In fact, you can
> dispose of it twice, or thrice, or a hundred times.  It is
> not finite.

> Most philosophers, including those upon whose ideas this
> nation's founding fathers drew when drafting the
> Constitution and other early legal documents, speak in
> terms of property as something which is finite, and laws
> to protect property being to to keep me from depriving you
> of said finite material.  I cannot deprive you of an idea,
> unless someone invents a brain-scrambling device.  At
> best, I may deprive you of possible, future, imaginary,
> potential other material (green slips of paper) that you
> could possibly obtain in the future, but I have not
> deprived you of the idea itself.

Sheesh, Larry.  For the record, I understood, even without
your extensive elaboration, the distinction being made in
Jordan's quote.  Although the sentiment it expresses is
nice, it oversimplifies the issues.

> Information is neither matter nor energy in that it does
> not obey the Law of Conservation of Matter and Energy.
> Therefore, to claim that it is innately subject to the
> same laws (physical or legal) as matter or energy is
> asinine.

This is false, at least as to the application of law.  The
fact that you can find some distinction between physical
property and intellectual property does not mean that others
can't find similarities.  Whatever differences there may be
between intellectual property (or ideas or creative output)
and real property, there is nothing so fundamentally
different about them that demands that the legislature
classify intellectual property and real property separately,
just as there is nothing fundamental that requires that the
legislature classify them as the same.

> We may choose to pretend that it is to make the writing of
> law easier, or perhaps in a vain attempt to protect
> ephemeral future possibilities (also known as derivative
> works), but understand that such treatment is not natural,
> and is in fact contrary to the fundamental nature of
> information.

If the attempts to "protect ephemeral future possibilities"
were so vain, you would not find them so threatening.  And
classifying the law's treatment of protection of ideas,
information, creative output, or the like, as "natural" or
"unnatural", is simply a matter of opinion.  After all, some
cultures hold that any notion of property ownership is

> (That is the scientific version of "information wants to
> be free" :-)

> And if for intellectual property the relevant exclusion
> may be commercialization, then by definition
> non-commercial use (e.g., use without selling for profit)
> would be exempt from the property restriction.

And an approximation of that is the "fair use" doctrine,
which, for example, allows certain copying that would
otherwise be actionable infringement, and includes as part
of the test for applicability such factors as whether the
copying is for commercial purpose and whether the
unauthorized copying significantly diminishes the market for
authorized copies.

>>> Using terms like "property" and "stealing" are colorful
>>> metaphors that distract discussion away from the issues
>>> at hand.

>> I suppose the last resort of the misinformed pedant is to
>> criticize an earlier post by reciting an 89-year-old
>> dictionary definition of a word that was never used in the
>> earlier post, and then to accuse the original poster of
>> distracting "discussion away from the issues at hand".  What
>> an amazing feat of hypocrisy!

> I suppose the last resort of the self-important pedant is
> to criticize and earlier post by reciting an equally old
> dictionary definition from the same source and then to
> accuse the original poster of being "simply wrong".  What
> an amazing feat of hypocrisy!

Larry, you are a liar, and your intellectual dishonesty
knows no bounds.

The definitions I recited are not "equally old"; in fact,
they are relatively modern.  In contrast to the definition
of "theft" originally posted by Nick, which was (1) a
definition of a word I hadn't even used and (2) posted as
though that definition were the sole accepted definition of
the concept, the definitions I posted for "steal" (which was
the word I had used in the first place) were clearly marked
as inclusive, and not exclusive.

Moreover, my assertion that that Nick was "simply wrong" did
not rely solely on such definitions.  The statement which
you criticised was:

  >> Third, the notion that "ideas" or creative output are
  >> somehow fundamentally inconsistent with the application
  >> of property concepts is simply wrong.

Nick's primary thesis was that "notions of theft cannot be
attributed to ideas."  Nick also says "copyright is a
*limited monopoly*, and is not designed to implement
property law."  That these absolute statements ("cannot be
attributed", "is not designed") are factually erroneous is
demonstrated by extensive evidence, including a (1) large
body of intellectual property law in the United States and
in virtually every other industrial state, which does what
Nick says cannot be done, and (2) numerous examples in the
language explicitly using the word "steal" in the context of
the unauthorized use of creative output.

Here's another example, to gild the lily:

 - Oates' defense contained other questionable elements. But
 - even these were of the sort to give one pause. He seemed
 - to demonstrate, for example, that his predecessor,
 - Thomas, stole material from other Lincoln biographers,
 - and that one of these, Carl Sandburg, stole from still
 - others. 

   Source: Peter Shaw, "The Fatal Pattern of Plagiary",
   Illinois Issues, August-September 1991 (Springfield,
   Illinois: University of Illinois).