intellectual property

Intellectual property is a framework, implemented in law, by which the originator of an idea or a work of art has control over all of its expressions. Copyright and patent law implement the concept of intellectual property. The existence of such law is justified as giving creative people incentive to produce new works for the good of society. However, patent law in particular has been used by large corporations in the twentieth century to slow the pace of competitive innovation.

Something I have my doubts about. Ideas are information, and as Daniel Dennett put it (in the pretensiously titled Consciousness Explained):

Information is the one commodity that can be given away and kept at the same time.

This means that `stealing someone's idea` is very different from `stealing someone's car`. Of course, it is't as simple as that. Worth thinking about though. I think this issue will become more and more central as computers and software become more central.

Property is the means of creating wealth.

If, as we are constantly told, ideas are the way of creating the future, then intellectual property will not be an oxymoron, but will by the defining concept of the new age.

Looked at from a certain perspective, the internet is nothing more than a way to control the dissemination of ideas.

As we proceed through this century, I expect that we will see more and more means to create and control this new kind of property.

When you discover that some corporation, like, say Doubleclick.net has sold you internet profile to some other company, or insurance company, or some prospective employer of yours, and you have no way to amend outright falsehoods, and lies--or even if it is true, because it is Doubleclick.net's Intellectual property, then you may change your mind.

Also see patent.

Several write-ups under this node make the common mistake of asserting that intellectual property law applies to "ideas." One of the first points made in virtually all works that deal in practical terms with the laws related to intellectual property is this:

An idea cannot be protected by patent, trademark or copyright.

Only the unique expression of that idea can be protected.

And having acquired a legal right to defend and protect from unauthorized copying your own particular, singular expression of an idea (or combination of ideas) does not give the property owner any legal right to prevent others from expressing the same idea in forms that may not be terribly different from the form the first author/inventor devised, so long as it is more than trivially different in how it goes about expressing the ideas it contains.

If intellectual property were to protect ideas, virtually all products would be instant monopolies, at least for the life of their patents, and one would probably need permission from the owners of dictionary copyrights in order to use words at all.

One company would sell all chickens. Perhaps one company would have the sole right, in fact, to sell anything. given that the notion of "selling" is itself an idea.

While some jokingly contend that this is in fact Amazon.com's business plan, it is unlikely that Amazon would be allowed to overturn centuries of settled law and precedent for its sole benefit, no matter what short-term benefit they may enjoy for as long as they can defend their highly-suspect "one-click" patent.

That said, there certainly can be instances (of which Amazon's patent practices are just one example) where an intellectual property owner with a large store of capital, and the will to litigate could effectively silence less wealthy competitors merely through the threat of infringement suits and costly litigation, even when such a legal maneuvers may prove baseless in material fact. Abuses of the patent system in this vein have been alleged for decades, and those allegations are probably quite well-grounded.

Please note: This node was written before the advent of the legal nightmare I consider the Digital Millennium Copyright Act to be and does not really deal with it in any detail, as my working experience has largely (so far) not required me to understand or do much detailed research on the DMCA. All I can fairly say is that most of what I've read about it, and what I've seen of it in action makes me very sad about the future.

Intellectual property is a catch-all term for a number of legal concepts, including trademarks, commercial secrets, patents, and copyright.

The term has its uses among the legal profession - it can be considered a category of law.

However, it is increasingly being used in a manner that creates the false analogy between property and ideas. The reason it has become widespread is that 'intellectual property' owners¹ wish to exert an increasing level of control over their 'property', under the (possibly misguided) perception that digital dissemination of data forces issues such as ownership to extremities.

The definitions below refer to the US legal system.

A trademark is an identifier for a company or product that is afforded legal protection. This helps competition by providing brand-distinction and preventing the corporate equivalent of identity theft. Parody of trademarks is legally protected.

A commercial secret also known as a trade secret is to a company what documents marked classified and above are to a government. Before being given access to a trade secret, you will probably be asked to sign an NDA. No part of a trade secret may be released without breaking either a law or a contract. Misappropriation of trade secrets is punishable under the Economic Espionage Act of 1996.

A patent is granted on an invention, and grants exclusivity on benefits derived from that invention. This exclusivity is granted as an incentive to invent. An example of an invention would be the Segway. However, the term 'invention' now includes algorithms and business processes. Examples of these include RSA and One-click shopping.

A copyright in the traditional sense is a time-limited monopoly on distribution of a creative work. This is intended to make sure that the author of a creative work benefits. Copyright was introduced shortly after the printing press was invented, and large-scale copyright infringement (aka piracy²) became possible.³ Recently, the Sonny Bono Copyright Extension Act allows corporate-owned copyright to be renewed more or less indefinitely. Mickey Mouse is the prime example and the motivation behind Michael Eisner's backing of the act.

Fair use is a concept that applies exclusively to copyright, and allows you to backup copies of a work that you own (i.e. make personal copies), and use small⁴ portions of the work for educational or critical purposes, among other things. Fair use has been all but eliminated with the introduction of the DMCA, which gives legal credence to access control as opposed to copy protection, and makes circumvention of these access control measures illegal.⁵

With the exception of trade secrets, intellectual property is legally impossible to steal. It is only possible to steal a physical expression of intellectual property such as a book or a CD.

Copyright, patents and trademarks are infringed upon. Infringement does not fit the definition of theft or larceny. The key difference is that infringement does not deprive the original owner of the work; only of potential revenue associated with the work.

Equating the two makes the unfounded assumption that the consumer is presented with a choice between purchasing the work and obtaining an infringing copy. This is a false dilemma; in fact the third choice—doing neither—is the choice of honest citizens for whom the purchase is not a good value proposition. The difference is similar to that between cost and opportunity cost.

''When I use a word,'' Humpty Dumpty said, in a rather scornful tone, ''it means just what I choose it to mean—neither more nor less.''⁷

What the common usage of the term "Intellectual property" does is lump all of these different legal definitions in to one fuzzily-defined concept, ignoring all of the various exemptions and special cases for each specific type, unless they allow some new (more profitable) restriction to be applied.

Combined with the false analogy between ideas and property, and lots of hyperbole about 'stealing', the result of this is an ever-narrowing definition of what is permissible when you take someone else's work and use it. Copyright becomes an absolute, surrounded by a shrink-wrap license, and licensing becomes more and more restrictive.⁶

The logical conclusion of this hoarding attitude is that you the consumer do not own anything - you have a license to read this book, and a license to listen to that CD (twice (on Mondays)) - and that the physical material that changes hands - be it paper, a video or a DVD - is merely symbolic of a contractual agreement between you and the content owner.

A grim future, in my humble opinion.

If I've made any mistakes (gramatical, factual or otherwise) please let me know.

1: Here are clear examples of holders for each type of intellectual property. For copyright - the big five, who own most of the media outlets in the Western world. For patents - any big company with an R&D department, such as IBM. Trademarks - any conglomerate or fashion outlet (Levi, Dockers). Trade secrets - Coca-Cola, Kraft, Phillip Morris, etc.

2: Piracy is a term that was originally applied to printing houses who took an author's work and published it without their permission, in breach of copyright. The Lord of the Rings was first published in America by a pirate publishing house. More recently, a court decision regarding freelance journalism and online duplication rights has found the New York Times guilty of piracy.

3: Before the invention of the printing press, books were copied by hand. Known literature at the time was basically religious, and was disseminated by the Church, and transcribed (with varying degrees of accuracy) by monks.

4: For variable values of 'small'. For example, sampling a musical work in copyright requires explicit permission. When reviewing a film, there is a legally-defined maximum number of frames the critic of a film can use before requiring the permission of the copyright holder.

5: See DeCSS, Dmitry Sklyarov, SDMI, HDCP, WMA2, I could go on but it's really, really depressing, and nobody seems to care anyway.

6: The introduction of UCITA basically changes software sales into licensing deals (to quote legbagede at the aforementioned node).

7: Through the Looking Glass, Lewis Carroll, 1893

Sources:
http://www.nwu.org/tvt/9909pr.htm.
http://news.bbc.co.uk/hi/english/world/americas/newsid_1407000/1407716.stm
e2 :-)

Thanks to Fisher for suggestions.

"He, who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement, or exclusive appropriation. Inventions then cannot, in nature, be a subject of property."

- Thomas Jefferson, Letter to Isaac McPherson, August 13, 1813

Intellectual Property is a term for four legal devices; Trademark, copyright, trade secrets, and patents. Many say that intellectual property laws dampen the pace of progress because they keep information from being freely shared and distributed to all, which would almost guarantee improvement and innovation. The reason intellectual property laws exist is because in a capitalistic system self-interest rules all. Intellectual property laws guarantee that the creator(s) of an idea/invention/etc receive financial gain from their hard work. In essence, the creator(s) of something receives a government sponsored monopoly for his/her product.

Trademark

Trademark law protects the right of a businessman to use marks that distinguish his goods/services from others. Trademark law keeps people who sell similar goods/services from using a similar mark or symbol that could cause confusion. Trademark rights are given on the basis of geographic location and product/services. This way it is legal for two similar or identical trademarks to legally coexist, either because they represent two different products for two different markets, or they are on opposite sides of the globe. Due to globalization and the like, it is very rare to legally have two identical trademarks for similar products. In order to get a trademark, one must register it at the USPTO, the U.S. Patent and Trademark Office. The USPTO has two different trademark registers, the Principal register and the Supplemental register. The Principal register is used to register distinctive trademarks, while the Supplemental is used to register trademarks that lack distinct characteristics. Trademarks may not include the ® until it has be filed with the USPTO.

Copyright

Copyright gives the owner of a novel, movie, etc ownership of it. Copyright can be given to anyone who has created an original work in a tangible medium, be it words, code, or images. To be original the author(s) must have independently created the work. It also must exhibit some degree of creativity. The owner (author or the company the author worked for) has the following rights regarding the work

• The right to reproduce the copyrighted work
• The right to prepare derivative works based upon the copyrighted work (sequels!)
• The right to distribute copies of the copyrighted work to the public by sale or other transfer of ownership. (Applies to different mediums; an author has the right to sell his book, and his book on tape, and possibly a movie based on his book)
• The right to perform/display the copy written works publicly

The instant something copyrightable is created, the author is entitled to the rights thereof. Registering the work with the U.S. Copyright office comes with a number of benefits. Domestic copyright owners must file with the U.S. copyright office before suing someone for copyright infringement. A certificate of copyright obtained before, or within five years, of publication is a holy grail of evidence should the copyright ever be questioned. Copyrighted works are subject to fair use as defined in section 107 of copyright law; criticism, comment, news reporting, teaching, scholarship, and research. Making 20 copies of a Spanish textbook for deprived, tired, hungry schoolchildren is fair, while making 1,000 to sell for profit is not.

Trade Secrets

A trade secret is a secret formula/invention/idea that is the cornerstone of a company. Trade secrets do not have to be registered with the government, but are entitled to trade secret protection. Secrets are entitled to trade secret protection until they are no longer a secret. Knowingly disclosing a trade secret is a crime. The 1996 Economic Espionage act gives the attorney general sweeping powers to prosecute anyone who has, or might spill the beans on a trade secret. A classic trade secret is Coca Cola?s secret formula. The formula has not been patented by Coca Cola, because then anyone could look up the patent and get the formula. Coca Cola, like most companies who wish to protect their trade secrets, require employees who know the big secret to sign a NDA (non-disclosure agreement). If someone who has signed an NDA speaks, the company can sue that person for damages. Coca Cola?s big secret is locked in an Atlanta vault, and known to only two employees, whose identities are secret. These two people cannot fly on a plane together, and are generally kept separate as to keep an accident from wiping them (and temporarily the secret formula) out.

Patents

There are three different types of patents, utility, design, and plant. The following from the U.S. patent office describes what can be patented.

In the language of the statute, any person who ?invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,? subject to the conditions and requirements of the law. The word ?process? is defined by law as a process, act or method, and primarily includes industrial or technical processes. The term ?machine? used in the statute needs no explanation. The term ?manufacture? refers to articles that are made, and includes all manufactured articles. The term ?composition of matter? relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds. These classes of subject matter taken together include practically everything that is made by man and the processes for making the products.

It must be noted that the atomic energy act of 1954 excludes the patenting of inventions useful solely in the utilization of special nuclear material or atomic energy for atomic weapons.

• Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or compositions of matters, or any new useful improvement thereof;
• Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture
• Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plants. With the advent of genetic engineering, plant patents may become obsolete or replaced with a type of patent that can be used for any new life form. A debate rages on whether someone may patent a cell, enzyme, protein, etc that is common to all members of the human race

Limits

As stated earlier, IP laws are designed to further the knowledge of all mankind by encouraging people to come up with new ideas. Inventors and authors get a limited monopoly on their works so that they may reap the benefits. The Berne Convention (in 1886 established that nations recognize of copyrights of other nations) limited copyright rights to someone for their life and 50 years after their death. Assuming current copywrite laws were in effect in the time of Shakespeare, he would have received money from his plays for his entire life, and for fifty years thereafter, whoever was in his will would get the money. After that his works would fall in the public domain (which is where they currently are). That means no one owns the rights to Shakespeare?s work and one can copy and distribute them without fear of reprisals.

In 1998 the Sonny Bono Copyright Term Extension Act (known unofficially as the Mickey Mouse Act) changed all that. It changed copyright law from life plus 50 years to life plus 70 years, in the case of companies, 75 years to 95 years. The act was supported heavily by Disney (most likely proposed to a senator by it) because of a certain cartoon character that makes Disney bazillions of dollars. In 1928 Walt Disney created a short film called, ?Steamboat Willie? staring a certain animated mouse. The passage of the copywrite extension act kept that mouse from falling into the public domain, and kept Disney from having to fall upon other, less entertaining characters.

Many who oppose the act cite the US constitution section 8 clause 8;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

The first copyright law (signed by George Washington in 1790) gave the author 14 years of protection, with a chance to renew it for another 14 years. Without taking into effect infant mortality, life spans have not increased exponentially, and patents still last only 20 years. Now copyrights are given to companies that last longer then the employees that authored property.

IP Laws in the Computer Age

Computer technology speeds millions of times faster then, say, language. IP law remains the same. Computer code can be, and is, copyrighted in the same manner as a novel. In a hundred or so years when the novel falls into the public domain, many will read it. When the computer code falls into the public domain, odds are computers will be unable to compile and run it. When copyright law was originally written, the average Joe didn?t have access to a printing press, and wouldn?t be able to distribute copyrighted works. Now in the age of computers anyone can put something on the internet and watch it multiply as it spreads and is distributed by others. In order to ?protect? copyright holders in the digital age, congress passed the

Digital Millennium Copyright Act

the DMCA, among other things were included in the report I made for school, but they are better explained in more depth in other nodes. Here is a list if you wish to learn more about IP laws in the Age of Computers

• DMCA
• How Long Copyright Protection Endures
• GPL

Disclaimer; this was written about IP laws in the USA. Yours might be different

Node your homework

Ideas cannot be owned

Everything you just read is bullshit. (All four words of it).

Ideas CAN be owned under UK, US, and European intellectual property law. Not all ideas, only some; some ideas cannot be owned, only their "expressions". Most importantly, this ownership only extends for a limited time. So, even if some invented the idea of selling chickens (which, if it had't already been "invented", would be valid as the subject of a US patent on a business method, as is the Amazon "One Click" patent), then only one company would sell chickens for some 20 years after they came up with the idea. Let's look at some ideas that can be owned:

Literature

Literary works, per se, are copyrighted, and the actual text, and variants thereof, are copyright. The real kicker is that under the Berne convention, characters, plots, and storylines are also property. So, you can't write a story too like someone else's, even if every actual word is your own work. Sorry kids, no stories featuring Capt. Cipard and Lt. Cmmdr. Kirer.

Visual and Auditory Arts

Again, the only "ideas" here are images and music that are too alike the originals to be anything but "indirect copies", (AFAIK...and I know less about US and European copyright law than I wold like).

Trademarks

The "idea" owned here is the affiliation with a particular vendor. This only extends as far as owning their name and marks as registered, for a particular market, and once again, marks so alike as to confuse. (Warning: EU and UK only. Don't know about the US, but I believe that it is the same)

Patents

I always save the best for last: Patents represent complete monopoly on ideas and their use. For instance, Remington own the rights to the idea of plucking womens' hair out with rotating springs, in Europe. No-one can make anything that embodies this invention without their say-so, they can't sell it, and anyone who has an unauthorised item embodying the idea, in the UK, can be required to deliver it up to Remington. If you want another example: the cipher IDEA is patented in Europe and the USA, so you can't employ the idea of performing certain mathematical operations in a certain order, except for private non-commerical use. Business ideas? It now only takes one click to own them too, in the USA.

A note on jurisdictions

When I talk of "Europe" in realtion to patents, I mean the states contracting to the European Patent Convention; when I talk of "Europe" in relation to any other intellectual property, I mean the EU.

Almost all problems with intellectual property, and the illegal and legal copying and usage of it stem from one problem:

The basic framework of classical economics is the theory that people compete for scarce resources. While economists since Adam Smith realized that cartels would try to conspire to increase scarcity if they could manage it, there was also the very basic idea that all goods were scarce by nature.

Intellectual property, which is very economically important now, and will only become more so in the future, is hard to deal with under classical economics, or any of its derivatives, because it is not intrinsically scarce. And yet, the creators of intellectual property, be they artists or businesses, are in need of things that are still scarce, from food to medicine to hovercraft. And so they must make what they create scarce so they can exchange it for these naturally scarce items.

A political, moral and practical way to do this is still being found.

_{BrevityQuest07}