Can Learning About Libertarianism Lead to Fiscal Conservatism and Profit?

[russ_watters]

TheStatutoryApe - you've previously rejected the concept of "intellectual property" altogether, right? So any discussion of how it fits into the framework for rights in general is kinda moot - you're simply rejecting the concept out of hand and not dealing with the reality/history of how it is treated.

The reality is that "intellectual property" is property like any other: your house, your car, your land, your ipod -- your patent. All property. The primary difference with intellectual property is that it has an expiration date. But whether you agree that intellectual property should work this way, that doesn't have any bearing on the fact that intellectual property does work this way. This isn't an opinion to be argued, it is a historical fact.

 

[russ_watters]

Saying that, say, the patent office of the government gives me intellectual property rights is like saying the county property deeds office gives me the rights on my home.

Yes, that's a good example - those agencies don't grant the rights to ownership, they only keep track of the ownership.

 

[TheStatutoryApe]

No, that's a fundamental misunderstanding of rights under the US constitution. All of those rights - speech, property, free association - are there before the government comes into being. And absent the rule of law, if I have a bigger stick than yours, I can come and deprive you of any of them, property and speech. We might have a lengthy discussion on the definition and limits of these rights, but government is instituted to secure these rights, not give them. The constitution is mainly a negative document insuring the government does not similarly infringe on them.

Saying that, say, the patent office of the government gives me intellectual property rights is like saying the county property deeds office gives me the rights on my home.

The constitution gives Congress the power to issue patents and copy rights. The constitution does not include intellectual property as an enumerated right. If it did then the government could not take it from you.

TheStatutoryApe - you've previously rejected the concept of "intellectual property" altogether, right? So any discussion of how it fits into the framework for rights in general is kinda moot - you're simply rejecting the concept out of hand and not dealing with the reality/history of how it is treated.

The reality is that "intellectual property" is property like any other: your house, your car, your land, your ipod -- your patent. All property. The primary difference with intellectual property is that it has an expiration date. But whether you agree that intellectual property should work this way, that doesn't have any bearing on the fact that intellectual property does work this way.

I did not reject the concept all together. I believe that it is a useful legal fiction. I do on the other hand believe it has been abused and current intellectual property laws should be changed. Particularly I have issue with the current idea that 'Intellectual Property' is a natural right as evidenced by the opinions in this thread. It was never meant to be, still is not, and in my opinion never ought to be.

As for 'Intellectual Property' being the same as any other property, that is false. There is a legal distinction between "Intellectual Property" and "Real Property" and they are treated rather differently. You may also want to note that your ownership of your home or any other 'real property' does not expire.

 

[mheslep]

As for 'Intellectual Property' being the same as any other property, that is false. There is a legal distinction between "Intellectual Property" and "Real Property" and they are treated rather differently.

Well there are many different types of property - real estate, financial securities, cars, planes, boats, and businesses. Granted, they all may be treated differently under the law. But the fundamentals are the same: owners can not be deprived of any these without due process of law, including intellectual property rights. IP rights are not an invention (hah!) of Rand acolytes.

You may also want to note that your ownership of your home or any other 'real property' does not expire.

Yes I mentioned that above. To my mind this doesn't mean that intellectual property is any less a property, it is simply different and has different problems of definition. Over time my original idea/invention likely becomes increasingly difficult to delineate from other technology, i.e., it becomes impossible to define the limits of my property over time. Witness the airplane, and the migration from the Wright flyer to a 787. Where would one cut out the idea of 'airplane' from a 787 and its millions of incremental evolutions? The point is the ideas become impossible to define as separate from others over time, thus they naturally expire.

Other forms of property are not immune from these problems of definition. Real estate title searches can be extremely complex. They always require an attorney in my state. Exactly where is that south east property corner on the back 40 acres, last surveyed in 1911? Oh wait, there's an old fence from the adjoining property running across the line, they'll have to move it. Oh wait, its been there 90 years and no one objected, sorry its grandfathered in this state. Well at least we enjoy this nice stream on the rest of the property, think we'll dam a bit a make a swimming pond. Oh wait, down stream people have water rights, our deed covenants say we can't touch the stream. And so on.

 

[Al68]

A rather niggling and inaccurate distinction. A drawing and description on a piece of paper is all that is required for a patent. This would generally fall under the category of "idea". The idea need not have actually been fully realized in a complete and fabricated form and doesn't even necessarily need to actually work in order for it to be patented.
Also while patents are more precise in delineation copyright is not. Copyright is far less detail oriented. It only requires that one has used a very similar idea or even just a single part of an idea that is significantly similar to another.

I pointed out that distinction in the context of whether I thought the law should prevent someone from selling a product that resulted partly from someone else having "just an idea" for it. In that sense a literary work, song, or invention is much more than "just an idea".

Yes, it may be niggling, but the distinction is important in the context of belittling intellectual property rights as exclusive rights to "just an idea". And the words idea and invention, while related, are hardly synonyms.

And you're right that it doesn't have to "work". Don't quote me on it, but I'd say there have been more patents for things that didn't work than for things that did. But the government isn't vouching for the quality of the design, just its originality.

But I wouldn't call it "legal fiction", because patent protection is being exchanged for public disclosure of the design. I agree that governmental patent protection itself is not a natural right, since it requires government action, but it's traded for what is a natural right: the right of an inventor to keep his designs private. Without patent protection, not only would there be much less incentive to invest in R&D and invent things, but there would be no incentive to publicly disclose the results.

Obviously the importance of those factors vary greatly with the particular field of technology, so I'm not saying the world would have ended if those miniature umbrellas they put in margaritas hadn't had patent protection. I know somebody was just itching to bring up that example.

 

[TheStatutoryApe]

I pointed out that distinction in the context of whether I thought the law should prevent someone from selling a product that resulted partly from someone else having "just an idea" for it. In that sense a literary work, song, or invention is much more than "just an idea".

Yes, it may be niggling, but the distinction is important in the context of belittling intellectual property rights as exclusive rights to "just an idea". And the words idea and invention, while related, are hardly synonyms.

I think our only difference here is that I consider an idea to be a rather weighty thing. So to call something "only an idea" seems silly to me. Some are simple, some are complex, some are grand, and some are worth a grand or two. I have no issue laying them all out under the same umbrella.

But I wouldn't call it "legal fiction", because patent protection is being exchanged for public disclosure of the design. I agree that governmental patent protection itself is not a natural right, since it requires government action, but it's traded for what is a natural right: the right of an inventor to keep his design private. Without patent protection, not only would there be much less incentive to invest in R&D and invent things, but there would be no incentive to publicly disclose the results.

No one has any natural rights to their ideas. Anyone can have them. I can come up with the same idea as someone else and attempt to do something with it. If I see an idea I like I can work with it and don't have to 'take' anything from anyone to do so. There is nothing stopping me from doing these things except for the legal fiction that this idea is the 'property' of some other person who came up with it first. That is what I mean by 'legal fiction'. We are sort of pretending, for utilitarian purposes, that this intangible 'thing' is similar to physical property and that it can be possessed and owned until we remove this legal fiction and it becomes unownable as it naturally is.

Well there are many different types of property - real estate, financial securities, cars, planes, boats, and businesses. Granted, they all may be treated differently under the law. But the fundamentals are the same: owners can not be deprived of any these without due process of law, including intellectual property rights. IP rights are not an invention (hah!) of Rand acolytes.

I never said that it was the invention of Rand Acolytes.
All of these types of property which you mention, except intellectual property, are things of which you can have exclusive possession. This is untrue of intellectual property, its 'ownership' being based solely on the belief and perception that the idea 'belongs' to a person. The idea can, and most likely will, wind up in the 'possession' of anyone who discovers it either on their own or through communication. It is through a legal fiction that only one person is allowed 'rights' to that idea.

And even aside from this other fundamentals of property ownership do not apply to intellectual property. As I already noted the law only allows you to 'own' an idea for a finite period of time.

You may not buy, sell, trade, or otherwise transfer ownership of a patent or copyright. Permission for rights to use may be given but you are not legally capable of transferring ownership in anyway unlike any other type of property.

The law does not punished 'taking' intellectual property since it can not be 'taken'. Rather it punishes one for theoretically 'stealing' potential profits from the 'owner' of an idea either by selling your own version of their idea or being in possession of something based on their idea without having paid them for it.

These are the fundamentals of intellectual property and none of them match up with the fundamentals of physical property.

Yes I mentioned that above. To my mind this doesn't mean that intellectual property is any less a property, it is simply different and has different problems of definition. Over time my original idea/invention likely becomes increasingly difficult to delineate from other technology, i.e., it becomes impossible to define the limits of my property over time. Witness the airplane, and the migration from the Wright flyer to a 787. Where would one cut out the idea of 'airplane' from a 787 and its millions of incremental evolutions? The point is the ideas become impossible to define as separate from others over time, thus they naturally expire.

Incorrect. Laws granting intellectual property are, and have always been, based on the idea of giving a person a limited amount of time to profit from their idea before it belongs to the public domain. It is not at all a matter of distinguishing one invention from another. In fact if a new invention is hardly distinguishable from an old one then it is not eligible for patent even if the old invention is now in the public domain. A person is certainly free to reproduce that old invention if they wish but they are not allowed a patent or exclusive rights to it. And that is the real point of the expiration. So that a company can produce an airplane without having to get permission from the holder of every single patent that has ever been granted for anything and everything to do with making an airplane. Ideas are supposed to fall into the public domain so that the world may freely benefit from them as it should be naturally, that's why.

Thomas Jefferson and James Madison, drafters of the Copyright Clause, were both quite skeptical to the monopolies of copyright, and monopolies of patents, and wrote extensively on the subject.

"Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made anyone thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possesses as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. 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 in 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, to Isaac McPherson 13 Aug. 1813 Writings 13:333--35

http://en.wikipedia.org/wiki/Intellectual_property

 

[mheslep]

Thanks for the Jefferson letter, I'd had not seen that one. Given my respect for Mr Jefferson, I may have to rethink. But I still see some fallacies below:

No one has any natural rights to their deas. Anyone can have them. I can come up with the same idea as someone else and attempt to do something with it. If I see an idea I like I can work with it and don't have to 'take' anything from anyone to do so. There is nothing stopping me from doing these things except for the legal fiction that this idea is the 'property' of some other person who came up with it first. That is what I mean by 'legal fiction'. We are sort of pretending, for utilitarian purposes, that this intangible 'thing' is similar to physical property and that it can be possessed and owned until we remove this legal fiction and it becomes unownable as it naturally is.

We've been through this and those assertions. I can also assert that the deed to your house is a 'legal fiction', and say that nothing is stopping me from moving into to your living room except that fiction. Indeed, there are people on the fringe in the US that completely deny the validity of land rights.

All of these types of property which you mention, except intellectual property, are things of which you can have exclusive possession. This is untrue of intellectual property, its 'ownership' being based solely on the belief and perception that the idea 'belongs' to a person. The idea can, and most likely will, wind up in the 'possession' of anyone who discovers it either on their own or through communication. It is through a legal fiction that only one person is allowed 'rights' to that idea.

See above. Circling back to the law is a fiction for the basis of the argument. Obviously I can have exclusive rights to a copyright or patent.

And even aside from this other fundamentals of property ownership do not apply to intellectual property. As I already noted the law only allows you to 'own' an idea for a finite period of time.

Yes, and as I've noted its this is because it is a practical impossibility to write the law in other way - its the nature of IP to be undefinable over time. Financial property can also share this trait.

You may not buy, sell, trade, or otherwise transfer ownership of a patent or copyright. Permission for rights to use may be given but you are not legally capable of transferring ownership in anyway unlike any other type of property.

This may be a semantic quibble, but clearly I can sell all rights to my patent/copyright. My name may be forever recorded with the original patent, as is the original owner of my home, but I can sell it for cash to someone else who then can collect the royalties, and I can then be sued by the new owner if I subsequently infringe on the patent even though I invented it. In all ways that we can measure, IP acts like other property.

The law does not punished 'taking' intellectual property since it can not be 'taken'. Rather it punishes one for theoretically 'stealing' potential profits from the 'owner' of an idea either by selling your own version of their idea or being in possession of something based on their idea without having paid them for it.

The asserted difference again. In matters that we can measure, they're identical. Granted that goes to how IP is actually treated under current law, not fundamentally what it is.

And that is the real point of the expiration. So that a company can produce an airplane without having to get permission from the holder of every single patent that has ever been granted for anything and everything to do with making an airplane. Ideas are supposed to fall into the public domain so that the world may freely benefit from them as it should be naturally, that's why.

I'm happy that it works out that way.

 

[DrClapeyron]

If you want to be libertarian the best two things to do are: side with a loser in every election and beat yourself senseless about things no one else cares about.

 

[TheStatutoryApe]

We've been through this and those assertions. I can also assert that the deed to your house is a 'legal fiction', and say that nothing is stopping me from moving into to your living room except that fiction. Indeed, there are people on the fringe in the US that completely deny the validity of land rights.

I was referring to the concept of a person having exclusive possession of an idea. It is not possible. You may have exclusive possession of a house until such time as you give it up or someone takes it. But all the world can not be in possession of your home while all the world can be in possession of your idea. And no one has to take anything from you in order to be in possession of your idea. The concept of anyone person having exclusive possession of an idea is a legal fiction; ie, it does not reflect reality.

See above. Circling back to the law is a fiction for the basis of the argument. Obviously I can have exclusive rights to a copyright or patent.

I was describing reality. The concept that a person can be in exclusive possession of an idea is a legal fiction. There is absolutely no means for a person to assure their possession of, and rights to, such 'property' except through general acceptance of a fiction. You can not stand over an idea with a gun, you can not build a fence around it, you can not lock it away in a safe. It will always be possible for someone to have access to that idea no matter who they are, where they are, or if they have ever even met you or seen/heard/touched/ect 'your' idea.

Yes, and as I've noted its this is because it is a practical impossibility to write the law in other way - its the nature of IP to be undefinable over time. Financial property can also share this trait.

As I already noted this is false. It does not reflect the purpose of intellectual property laws or even the execution of them. The very idea of a patent is that it is definable over time. Any patent or copy right which encroaches upon a previous one, no matter how old, is illegal. Technically future patents rendering a previous patent 'undefinable' is not legally possible.

This may be a semantic quibble, but clearly I can sell all rights to my patent/copyright. My name may be forever recorded with the original patent, as is the original owner of my home, but I can sell it for cash to someone else who then can collect the royalties, and I can then be sued by the new owner if I subsequently infringe on the patent even though I invented it. In all ways that we can measure, IP acts like other property.

What is law other than semantics? There is a very important legal distinction in that a patent or copyright holder is always the 'owner' of their creation until such time as it expires. As 'owner' of the intellectual property they always possesses rights to it.
With intellectual property you can stipulate the use of the property in a contract. You can not do this with tangible property. Once sold the new owner of tangible property is capable of doing with it as they choose and you have no control over it.
If a buyer of intellectual property creates something new based on it they must get permission from the 'owner' to use it. When you sell tangible property you lose all control over it and any sorts of alterations, copies, derivations, ect.
With intellectual property you can still claim ownership and profit from that claim. You can not claim ownership of sold tangible property and profiting off of claims of owning it would be called fraud.
You can use your own intellectual property for your own purposes so long as you are not using it for profit (note that profiting from ownership is separate from profiting from use). Once you sell tangible property you have no right to any access to it what so ever.
If you die no one may inherit your intellectual property. If a patent or copyright are still in existence an estate must be set up to control them and collect any benefit and someone may be made beneficiary and/or executor. The 'ownership' still may not be given up to someone else and a buyer of that intellectual property is not even considered a 'joint owner' who will receive ownership upon death of the original owner.

So inability to transfer ownership of intellectual property is an incredibly important distinction, it is not merely an inconsequential bit of semantics. And we can see that in most important and 'measurable' ways intellectual property is treated quite differently from tangible property.

 

[Al68]

That is what I mean by 'legal fiction'. We are sort of pretending, for utilitarian purposes, that this intangible 'thing' is similar to physical property and that it can be possessed and owned until we remove this legal fiction and it becomes unownable as it naturally is.

I'd say that makes it "legal fact", since IP law does exactly that, but I won't argue the point. And since you previously said you didn't oppose IP rights, I'm not sure what your position is exactly.

With intellectual property you can stipulate the use of the property in a contract. You can not do this with tangible property.

Sure you can. People do it all the time. Deed restrictions are very common. As are sales contracts that do the same thing.

For that matter, I can sell anything I own with a contract that not only restricts its use, but stipulates that I get it back under specified conditions, that the buyer can't resell it within a certain time period, or anything else both parties agree to.

So inability to transfer ownership of intellectual property is an incredibly important distinction, it is not merely an inconsequential bit of semantics.

I don't know what to make of this, since patents can be sold, licensed, mortgaged, assigned or transferred, or given away just like any other property right.

 

[TheStatutoryApe]

I'd say that makes it "legal fact", since IP law does exactly that, but I won't argue the point. And since you previously said you didn't oppose IP rights, I'm not sure what your position is exactly.

So a thing that is not true is a fact? Is a corporation a person?
http://en.wikipedia.org/wiki/Legal_fiction
This all started with whether or not IP rights were protected under general constitutional property rights and whether or not it is a natural right. I have been arguing that general property is not the same thing as IP and that you can not have a natural right to IP.

Sure you can. People do it all the time. Deed restrictions are very common. As are sales contracts that do the same thing.

For that matter, I can sell anything I own with a contract that not only restricts its use, but stipulates that I get it back under specified conditions, that the buyer can't resell it within a certain time period, or anything else both parties agree to.

A deed restriction has nothing to do with a contract for sale, it is established before a sale ever occurs.
And yes people can make contracts but they can only extend so far and once a piece of property is the actual property of a person you no longer have any control over it unless there is a joint-ownership of some sort.

I don't know what to make of this, since patents can be sold, licensed, mortgaged, assigned or transferred, or given away just like any other property right.

Rights can be sold, transferred, ect. Ownership always stays with the creator.

 

[Al68]

So a thing that is not true is a fact? Is a corporation a person?

No, it's an agent for several people. What is it you are saying is "not true" about IP rights, but the law says is true, making it a "legal fiction"? The law treats a patent like an entitlement, not a natural right.

A deed restriction has nothing to do with a contract for sale, it is established before a sale ever occurs.

The restriction's force lies in the fact that a sales contract (or right of way contract) stipulates the restriction. If someone agrees to a restriction when they buy property, then tries to sell it without the restriction (if still active), it's either fraud or a mistake by selling property rights they don't have. That's one of the purposes for a title search.

And yes people can make contracts but they can only extend so far and once a piece of property is the actual property of a person you no longer have any control over it unless there is a joint-ownership of some sort.

The contract extends as far as the parties agree for it to extend.

Rights can be sold, transferred, ect. Ownership always stays with the creator.

What "ownership" are you referring to, if not ownership of the IP rights?

 

[mheslep]

I can't nail down the exact basis of our disagreement here, that's why I mentioned semantics. Can we agree that patents and trademarks can be bought and sold, that this happens every day? Can we agree that once they're sold the previous owner may forfeit all rights?

... There is a very important legal distinction in that a patent or copyright holder is always the 'owner' of their creation until such time as it expires. As 'owner' of the intellectual property they always possesses rights to it.

That's false. If I am the owner, I can sell my patent/copyright to someone else and forfeit ALL rights to it. This happens all the time; I'll provide examples if you like. I've also worked for firms where the business owned all rights to any inventions I may have created, a condition of employment take it or leave it. I had NO rights to the invention, even though the original idea was largely my own. That's why, e.g., the USPTO has this http://www.uspto.gov/web/patents/patog/week39/OG/help/help.htm#[B phrase in the application process, and not simply 'The Creators Name'. That's the way it works in the US, perhaps it is different elsewhere.

With intellectual property you can stipulate the use of the property in a contract. You can not do this with tangible property. Once sold the new owner of tangible property is capable of doing with it as they choose and you have no control over it.

Also false. I've sold real estate property with a covenant in the contract that the buildings on the property must be maintained to a certain standard by the new owner of the property.

If a buyer of intellectual property creates something new based on it they must get permission from the 'owner' to use it. When you sell tangible property you lose all control over it and any sorts of alterations, copies, derivations, ect.

That can be true. It's not absolutely true as it depends on the contract as above.

...You can use your own intellectual property for your own purposes so long as you are not using it for profit (note that profiting from ownership is separate from profiting from use). Once you sell tangible property you have no right to any access to it what so ever.
If you die no one may inherit your intellectual property. If a patent or copyright are still in existence an estate must be set up to control them and collect any benefit and someone may be made beneficiary and/or executor. The 'ownership' still may not be given up to someone else and a buyer of that intellectual property is not even considered a 'joint owner' who will receive ownership upon death of the original owner.

Also not absolutely true. Estates can of course hold on to the IP, but they can and do sell outright ALL rights to the IP unless prohibited by the Will/Testament.

 

[TheStatutoryApe]

No, it's an agent for several people. What is it you are saying is "not true" about IP rights, but the law says is true, making it a "legal fiction"? The law treats a patent like an entitlement, not a natural right.

Read the link I provided regarding the definition of a "legal fiction". The idea that one person may exclusively possesses an idea is a legal fiction because it is not possible in reality to have exclusive possession of an idea. I already explained all of this.
The law treats a patent as an entitlement to "ownership", or exclusive possession, of an idea. It treats it like property to a limited degree.
This, as I already stated, has been my entire point. It is not 'property' in the same sense as anything else. It is not a natural right the same as the natural right to ownership of property as stipulated in the constitution. That is where this argument started.

The contract extends as far as the parties agree for it to extend.What "ownership" are you referring to, if not ownership of the IP rights?

'Ownership' of the idea itself! What the hell? I can not figure out how you two have such a hard time getting this. You seem to ignore about 90% of my points and find some small technicality to argue.

Lets put it this way. When you rent out a piece of property you are giving rights to the property to another person however limited or unlimited by the contract you are not giving them ownership of the property and they have none of the basic rights associated with ownership of the property such as the ability to destroy give away or sell the property.
Selling rights to IP is pretty much the same. You will maintain ownership of the IP and the buyer will only have rights, however limited or unlimited, to use the property but none of the fundamental rights of ownership.
You might say that if you buy IP rights from someone you can stipulate in the contract that you are capable of selling these rights yourself. True, but only rights not ownership such as if you were to rent a property from a person and stipulated in the contract that you are capable of subleasing which does not allow you to sell ownership of the property only rights to the property.
Also, for a good example, as owner of a piece of intellectual property you may give up the intellectual property to the public domain forfeiting ownership of it. A person who purchases rights to IP has no such ability because they do not possesses the ownership to be able to give it up in the first place.

Make more sense now?

I can't nail down the exact basis of our disagreement here, that's why I mentioned semantics. Can we agree that patents and trademarks can be bought and sold, that this happens every day? Can we agree that once they're sold the previous owner may forfeit all rights?

The owner may forfeit their rights by not acting on them but they can not contractually forfeit their fundamental rights as owner of the IP. A very basic and straight forward example would be that the buyer can not claim "ownership" of the IP (ie, "This is my invention") and in the case that they do claim ownership the actual owner, the creator, may sue them for having done so no matter what is in the contract (accepting binding moderation as a form of suing).
Trademarks are a different story. They technically are not even necessarily connected to a person or their creator, at least as far as US law, and are only considered IP because they are an intangible asset connected to an idea. You can not even maintain ownership of a trademark in and of itself, you must actually use it for business. Its quite a different animal from copyright and patents.

That's false. If I am the owner, I can sell my patent/copyright to someone else and forfeit ALL rights to it.

As I already noted you can not contractually forfeit all rights to your own patent or copyright. You will always possesses ownership of it. You can only transfer rights. See my argument above.

And yes corporations are capable of owning copyrights and patents as you note from your link. That does not mean that they can buy ownership of copyrights or patents. Generally a corporation owns a copyright or patent on the end product, the sum of the work of the individual creators that work for them. For anyone invention or piece of copyrightable material produced by a single employee to be protected though it must be patented or copyrighted under the creator's name regardless of their work contract or any preexisting agreement that the rights to their work will belong to the company.


Edit: I have just hacked up my post because I decided it was too unnecessarily long winded and trailed off in too many directions.

 

[Al68]

Read the link I provided regarding the definition of a "legal fiction". The idea that one person may exclusively possesses an idea is a legal fiction because it is not possible in reality to have exclusive possession of an idea.

If IP law said that, then it would be legal fiction, but it doesn't.

The law treats a patent as an entitlement to "ownership", or exclusive possession, of an idea.

No, it doesn't. See below.

'Ownership' of the idea itself! What the hell? I can not figure out how you two have such a hard time getting this.

Because we were talking about ownership of IP rights, not ownership of the "idea". Those are two different things.

IP rights are the right to restrict others' use of an invention, not ownership of the invention itself. That important distinction is made clear here:

A patent is not a right to practice or use the invention. Rather, a patent provides the right to exclude others...

http://en.wikipedia.org/wiki/Patent

 

[mheslep]

As I already noted you can not contractually forfeit all rights to your own patent or copyright. You will always possesses ownership of it. You can only transfer rights. See my argument above.

Well my definition of ownership is different than yours, maybe we'd just go round and round on that. I usefully define ownership only by who has rights to buy, sell, or otherwise use the invention for purposes of commerce. Where you say 'ownership' I think 'creator' would be a better word. The creator can never change, but under the US system ownership easily can for IP.

And yes corporations are capable of owning copyrights and patents as you note from your link.

Agreed

That does not mean that they can buy ownership of copyrights or patents.

Disagree, I expect again on the definition of ownership vs creator.

Generally a corporation owns a copyright or patent on the end product, the sum of the work of the individual creators that work for them.

Agree, depending on the employment agreement. Some companies allow employees to own and control patents outright.

Given the letter written by Jefferson late in his life, I am dissuaded for the moment from calling IP a natural right, but its unquestionably a legal property right (fictitious or otherwise) under the current US system for any usable, practical definition.

 

[TheStatutoryApe]

If IP law said that, then it would be legal fiction, but it doesn't.No, it doesn't. See below.Because we were talking about ownership of IP rights, not ownership of the "idea". Those are two different things.

IP rights are the right to restrict others' use of an invention, not ownership of the invention itself. That important distinction is made clear here: http://en.wikipedia.org/wiki/Patent

:sigh:
http://www.uspto.gov/web/offices/pac/mpep/documents/0300_301.htm
http://www.uspto.gov/web/offices/pac/mpep/documents/0900_901_02.htm

Actual patent ownership must always go to the inventor. The inventor may then license or assign ownership rights to another party. Actual ownership never changes hands. Since the original patent always goes to the original owner this means that a patent may only be abandoned or given up to the public domain by the original patent owner but not by an assignee. If an assignee gives up rights to the patent then those rights revert to the original owner unless the original owner has abandoned the patent as well.

This is important because the original objection I made was to the argument that the law treats IP the same as real tangible property, the rights to which are stipulated as a natural right by the constitution, made here and here. Aside from the fact that the constitution gives the right to congress to issue IP rights, which would not be necessary if it were a natural right, IP is obviously not treated as real property in many respects including the fact that actual ownership of the property can never change hands.

I think that we are mostly agreeing and that you are just not seeing where my argument is coming from and that we are not necessarily disagreeing with one another.

I do think however that you are missing certain nuances to the law in regards to IP law that would be of interest to you as a free marketer and libertarian. Consider that IP law gives individuals and corporations a limited sort of monopoly. Consider modern changes to copyright in the Digital Millennium Copyright Act that makes simple possession of product based on patented or copyrighted material that has not been paid for illegal. That the DMCA allows a corporation the de facto right to tell you how you may or may not use product which you own and have paid for. Have you ever considered the fact that the software terms of use agreement is not even agreed to until after you have purchased the product and attempted to use it? Could you imagine buying a car and finding that when you go to drive it home you are suddenly told that you must only drive a certain speed, use a certain type of oil, and use a certain type of gasoline or else you forfeit your right to use the vehicle?

For a more hyperbole filled version of my objections to current IP laws and their abuse see here

 

[TheStatutoryApe]

Given the letter written by Jefferson late in his life, I am dissuaded for the moment from calling IP a natural right, but its unquestionably a legal property right (fictitious or otherwise) under the current US system for any usable, practical definition.

Since the issue of it being a natural right was my main point of contention I will be happy to lay this to rest here and quit my bickering. I suppose until Moonie's guy or some other person with expertise in this area of law comes along we will simply have to agree to disagree on the rest. As I stated above though I believe that some of the finer nuances of IP rights are really rather important to larger issues of current laws and their interpretation. IP is coming closer and closer to be considered a natural right due to modern interpretations of law and I for one am rather concerned about the development.

 

[Al68]

:sigh:
http://www.uspto.gov/web/offices/pac/mpep/documents/0300_301.htm
http://www.uspto.gov/web/offices/pac/mpep/documents/0900_901_02.htm

Actual patent ownership must always go to the inventor. The inventor may then license or assign ownership rights to another party. Actual ownership never changes hands.

What are you calling "actual ownership", then, if not ownership of the patent rights which are transferable. I read both of those links, and they don't say anything like what you're saying.

This is important because the original objection I made was to the argument that the law treats IP the same as real tangible property, the rights to which are stipulated as a natural right by the constitution, made here and here.

Whether a right is a natural right or not depends on whether it exists independent of government, not on how government treats it. The fact that IP rights can be sold, transferred, etc. in the same way as tangible property rights in no way implies that since tangible property rights are natural rights, then IP rights must be, too.

Of course, I think you and I agree that IP rights are not natural rights. The actual right of an inventor to use his invention could be a natural right, if recognized, but that's a different issue.

I do think however that you are missing certain nuances to the law in regards to IP law that would be of interest to you as a free marketer and libertarian.

Well, I might agree with you on some of those. I never said I was in favor of current IP law in its entirety. And for all I know, we might agree completely about what should be changed.

 

[Al68]

You seem to ignore about 90% of my points and find some small technicality to argue.

I just wanted to comment on this, because you're right. I do tend to bias my responses to points of disagreement. But that just means I probably agreed with the other 90%, not that I ignored it or didn't read it.

I guess that's why there's no such thing as a "heated agreement".