Subject: Re: The term "intellectual property" considered useful
From: Norbert Bollow <nb@bollow.ch>
Date: Fri, 26 May 2006 13:29:15 +0200 (CEST)

David H. Lynch Jr <dhlii@comcast.net> wrote:

> Stephen J. Turnbull wrote:
> >>>>>> "David" writes:
> >>>>>>             
> >
> >     David>       I have been attempting to argue the absurdity of the
> >     David> proposition that the the term "Intellectual Property" is
> >     David> useful, by carrying it to its logical conclusion - that
> >     David> ideas can be owned.
> >
> > Unfortunately for that kind of argument, nobody on FSB who uses the
> > term does so in that way.  So those who find it useful find its
> > usefulness elsewhere.  Your argument is entirely moot.
>
>     I am not sure what this means ?
>    
>     FSB is in consensus over the meaning of "Intellectual Property" ?
>     Everyone on FSB understands that "Intellectual Property" does not
>     mean ownership of ideas ?

I would argue that "intellectual property" means some degree of
legal ownership of what is in other people's heads.  How else would
one explain what all the various legal rights that are grouped under
the label "intellectual property" have in common?

In general this legal ownership of what is in other people's heads
is IMO a totally repulsive concept, although in some areas (such as
trademarks rights) I find this to be morally acceptable.

Someone who writes a scholarly paper may have a legitimate need to
group something which is morally wrong together with something that
is morally alright because of similarities between the two.  But
this requires careful definitions, and after the conclusion of that
particular argument has been reached, the moral aspect should be
brought up to again establish the distinction between what is
morally wrong and that which is morally alright.

But outside of such a scientific framework I think it is morally
wrong to use a term like "intellectual property" which groups that
which is morally wrong together with that which is morally alright.

>           My view is that software is NOT fundimentally different from
> anything else that currently IS patentable, and should not be.

I agree with you that there are valid arguments against patents
(in the sense of monopoly rights on the commercial use of some
idea) in general.

However software *is* fundamentally different from material goods
in that software can be copied an arbitrary number of times
without depleting any scarce resources.  Together with computer
memory being as cheap as it is today, this fundamental truth
about the economics of software has resulted in a market
situation where in order to be economically successful, software
businesses have to provide software that incorporates *many*
ideas.  In the context of this market situation, there are strong
arguments against software patentability which are not applicable
to other fields where inventions are currently patentable.

>     I am not currently aware of an argument against software patents
> that I do not believe can be applied equally well to other types of
> patents.

In the field of software, patentability provably has a negative
effect on innovation.  At least at the current stage, this argument
cannot "be applied equally well" to other types of patents, because
in those other fields it is IMO not proved beyond reasonable doubt
that there must necessarily be more innovation without patentability
than with patentability.  In fact I would expect that in those other
fields, the effect of patentability on innovation could be positive
or negative depending on market structures and other circumstances.

In addition, software patents are much more dangerous than other
types of patents because they could allow a monopolistic company
which sells closed-source computer operating systems to kill all
competing computer operating system projects and then work together
with the next Hitler-like evil politician to rule the world in a
Big Brother like manner.

>           The fact is (in the US) software is patentable, at this point
> the patent office may have issued more software patents than any other
> kind (no I do nto have hard facts, but I think that is a reasonable
> guess). And yet the software development process as a whole even in the
> US (with a few exceptions) is conducted completely oblivious to the
> existence of software patents.
>           That is a huge train wreck waiting to happen.

Given that the legal foundation upon which those software patents
are based is neither a law nor a decision of the US supreme court
but a decision of a lower court, the "train wreck" scenario is IMO
totally unplausible, in the US at least.  Either the swpat-related
problems (patent trolls etc) remain at a level which does not hurt
the overall economy too much, or the court decision which led to
software patentability will be reversed (this could happen either
by a court decision or by a legislative act).

Generally speaking, even badly-designed and very buggy economic
systems don't crash in a manner analogous to a segfault or a train
wreck, as long as there is no globally-fatal environmental disaster.

>           Regardless, at best my personal view is that the intellectual
> property system does not actually work.

It does not work as advertised: At least in the field of software,
all statements about patentability being good for innovation are
deceptive propaganda.

However it works in the sense that it allows big corporations with
many patents on important ideas to get a significant economic
advantage from owning those patents.  If/when the system stops
working in this sense, it will get changed soon after it stops being
beneficial for big patent holders.

> But you can not restrict connections for the purpose of fostering
> ecomonic growth and accept the principles of free markets.

I agree that a rational human mind cannot do this.  However legal
systems are not the product of a single human mind.  They are the
result of interactions between many stakeholders each working to
ensure that the legal system provides a legal environment which is
acceptable from their respective perspectives.  Most of these
stakeholders do not particularly care whether the various
philosophical ideas upon which the legal code is based are in
contradiction with each other.

I agree that besides other properties, an ideal legal system must
have the property that it does not contain any such philosophical
contradiction.  However I believe that the economics of legal
systems are such that in the absence of divine inspiration it is
not reasonable to expect a legal system without such philosophical
contradictions to become established.

Greetings,
Norbert.