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Differentiate between personal real and intellectual property issues essay

Property feels right to many of us because of a sense that each of us should own the fruit of our labor. But this is at least not the whole story, because some property - such as land - wasn't created by its owners. Say there's a large stretch of land that's commonly owned, such as the West of the U.

The government decided to open the land for private ownership. It didn't have to do it; it could have kept it as a giant park, and no-one's property rights would have been harmed.

But it gave or sold the land to people who didn't create it, thus limiting the freedom of action of all others. The reason for this was incentive: If people have the right to exclude others from their land, they'll have more incentive to invest effort in improving the land - build homes, plant crops, and so on.

So far, the argument tracks copyright and patent law quite well. The theory of intellectual property is likewise that giving people the right to exclude others from new works or inventions will give people an incentive to invest effort in creating and inventing.

The rhetoric it builds upon seems convincing at first: Unfortunately, the analogy between "idea" and "land" is false. The argument exploits an ambiguity in the common usage of the world "idea" to incorrectly equate the usual meaning of the word "property" and its specific meaning in "intellectual property. This point of view leads to erroneous conclusions about the social value intellectual property laws.

The argument tries to portray intellectual property as nothing else but standard private property adapted to the case of ideas. It is a misleading view, completely divorced from the reality of intellectual property law. It stems from a simple confusion, a confusion that happens to be convenient for rent-seekers with a vested interest in the existing law. It is a view that fails to distinguish between the abstract notion of an idea and the concrete implementation or embodiment of that idea.

Take for example, the idea of the law of gravity. Imagine that you have just discovered this law. An embodiment of the abstract law now exists in your mind. It has economic value: It is clearly rivalrous: That is why they are taking your physics class.

And it is also excludable: From an economic viewpoint it is as much a private good as the chair upon which you are sitting. In fact, it is even more rivalrous and excludable than your chair. If on the other hand, you communicate your idea to me, then my copy of your idea leads an existence entirely independent of your copy. You teaching me the law is a production process through which at least three private, rivalrous, and excludable inputs your idea, your time, and my time generate a differentiate between personal real and intellectual property issues essay, rivalrous, and excludable output: If you were to die, my copy of the idea of the law of gravity would continue to exist, and would be at least just as useful as it would have been had you remained alive.

My copy of the law of gravity possesses, therefore, economic value. Similarly, your copy of the law of gravity also possesses economic value. By way of contrast abstract disembodied ideas have no value. The certitude that some shelf in some hexagon held precious books and that these precious books were inaccessible, seemed almost intolerable.

What is Intellectual Property?

It is the concrete embodiment that is accessible and so has value. So my working knowledge of the law of gravity or the law of gravity as explained in a physics textbook has economic value, while the abstract idea has no value. Once we recognize that the relevant economic entities are copies of ideas, our perspective on "intellectual property" changes.

When you convey your idea to me, it is an act of production - a new good - my copy of your idea - is created. Once you have conveyed your idea to me, I can use this idea without interfering with your use of you original copy of your idea. Confusing abstract with embodied ideas, some economists and lawyers would say that this means that ideas are "nonrivalrous" or a "public good.

Publications

Your copy of your idea and my copy of your idea are distinct economic entities. They are not public goods. To put this in perspective, it is true that my drinking from my cup of coffee does not affect your use of your cup of coffee. No one would go on to suggest from this fact that coffee is "nonrivalrous" or a "public good" and that special laws and subsidies are needed in the coffee market.

  1. Hence we allow you to rent your labor, but not sell yourself.
  2. Intellectual property law is full of considerations like these.
  3. Since the creative effort takes place and yet is poorly rewarded, the indivisibility is small - and so the case for intellectual monopoly weak. A design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or color.
  4. And it is also excludable. As a matter of law, you could not send the police after me.
  5. What intellectual property law is really about is about your right to control my copy of your idea. So how are ideas different than coffee, potatoes or factories?

It is true that there is legal protection for cups of coffee - if you drink my cup of coffee without my permission, this would be an act of theft, and you would be subject to various civil and criminal penalties.

Economists regard these "property rights" in the manner suggested by Eugene Volokh as securing the fruits of labor, and providing incentive to care for property.

But notice that less legal protection is needed for your copy of your idea than is needed for your cup of coffee - while it may be relatively easy for me to steal your cup of coffee by threat or when you are not looking, it is fairly difficult for me to learn your idea without your active assistance. Indeed, it would seem that the legal protection needed would be no more than the legal right not to be subject of physical torture or coercion - a right that we enjoy regardless of the state of copyright and patent law.

Be this as it may, there is no serious challenge to intellectual property in the sense of your right to determine to whom, under what circumstances and at what price you will transfer copies of your idea. All of this brings us to what intellectual property law is really about - a reality that is simply obscured by analogies to other types of property.

Intellectual property law is not about your right to control your copy of your idea - this is a right that we have just pointed out, does not need a great deal of protection. What intellectual property law is really about is about your right to control my copy of your idea. This is not a right ordinarily or automatically granted to the owners of other types of property.

If I produce a cup of coffee, I have the right to choose whether or not to sell it to you or drink it myself.

But my property right is not an automatic right both to sell you the cup of coffee and to tell you how to drink it. It is important to distinguish between property rights and contractual agreements.

  1. When you convey your idea to me, it is an act of production - a new good - my copy of your idea - is created.
  2. To enforce an intellectual monopoly restriction on the usage of those objects requires intrusive, expensive and morally offensive measures. Most commonly, a geographical indication includes the name of the place of origin of the goods.
  3. If I produce a cup of coffee, I have the right to choose whether or not to sell it to you or drink it myself.
  4. The rhetoric it builds upon seems convincing at first. The most significant feature is the agreement not to sell copies of the idea in competition with the person who sold you the idea.

You could sell me the delicious cup of coffee you just made, and have me sign a contract agreeing not to drink the coffee after 4 pm. As a matter of law, you could not send the police after me.

You could sue me for breach of contract - and the courts might or might not decide the contract was valid. But there would be no question of theft or violation of property rights. So what is the contractual arrangement in current intellectual property law? The most significant feature is the agreement not to sell copies of the idea in competition with the person who sold you the idea.

Outside of the area of "intellectual property" such an agreement would be called anti-competitive, and a violation of the anti-trust law. If you reach an agreement with someone else not to compete with them, not only would the courts refuse to enforce such a contract, but you would be subject to substantial civil and criminal penalties. That is what lead them to argue that, if I agree not to redistribute your book, then I should be bound by that agreement.

While this argument is substantially different, and more coherent, than the one equating intellectual monopoly with private property, it is equally faulty from an economic standpoint. In fact such intellectual property "contracts" create substantial and difficult transactional problems - and in our view this is one of the most important reasons for eliminating both copyright law and private contractual arrangements that limit the downstream rights of buyers of ideas.

Let us see why. The closest case is that of slavery. That is, the courts will not enforce a contract in which you sell yourself into slavery.

In the case of slavery, as in the case of intellectual "property" we believe that the economic and moral arguments point in the same direction for the same reason. Your labor is irrevocably bound to your person. To enforce a contract in which you sell yourself to someone else requires them to enforce the contract by differentiate between personal real and intellectual property issues essay, expensive, and morally offensive measures.

Hence we allow you to rent your labor, but not sell yourself. This is not only a "morally just" prohibition, as many economists have argued, it is also an economically efficient one. Just as your labor is bound to your person, so is your knowledge of ideas, regardless of whether such knowledge may have been acquired directly or by learning from someone else.

  • It is the concrete embodiment that is accessible and so has value;
  • Similarly, your copy of the law of gravity also possesses economic value;
  • Say there's a large stretch of land that's commonly owned, such as the West of the U.

Once the ideas have been voluntarily transmitted to you, and the established market price paid, those ideas are bound to your person as much as your labor is. Preventing you from freely using such knowledge is logically equivalent to forcing your mind into slavery. Even in the case of objects you voluntarily purchased in the market at the asked price, such as books, CDs or computer files, these typically reside in your house, your office or some other space which belongs to you.

They are your private property very much in the same way that the cup of coffee you are drinking is your private property. To enforce an intellectual monopoly restriction on the usage of those objects requires intrusive, expensive and morally offensive measures. It is no coincidence that intellectual property law is everywhere the enemy of privacy and freedom.

Contrary to the rhetoric of those who advocate the current law, it is not theft to make copies of a book legally acquired.

To enforce a patent over a particular way of writing a software program, for example, requires a great deal of intrusion into my thought process - did I in fact develop my ideas by making use of your idea? Intellectual property law is full of considerations like these.

In the case of Bright Tunes Music Corp. That is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.

Would the same court rule that Liebniz "subconsciously" stole Newton's differential calculus, or the other way round? It is no coincidence that the battle over intellectual property is so closely tied to debate over freedom and privacy.

For you to control my use of my copy of your idea necessarily requires intrusive measures. So to prevent "piracy" the media industry wants more or less complete control over your personal computer. To prevent "piracy" software producers conduct elaborate "audits" of licensees - poking around in their computers and data to see if there are any "unauthorized" software products.

Types of intellectual property

What is worse - not only is it expensive to enforce these kinds of contracts - but the "intellectual property industry" has with surprising success been able to force other people to bear the enforcement costs. So in FBI investigations of "piracy" it is the taxpayer that picks up the bill. In the case of the internet, it is the network provider who is to bear the cost of policing the network for "illegal material.

  • Economists regard these "property rights" in the manner suggested by Eugene Volokh as securing the fruits of labor, and providing incentive to care for property;
  • My copy of the law of gravity possesses, therefore, economic value;
  • Intellectual property law is full of considerations like these;
  • But we would distinguish between those people that are a party to the contract and those who are not;
  • It didn't have to do it; it could have kept it as a giant park, and no-one's property rights would have been harmed.

We agree that in general these are a good thing. But we would distinguish between those people that are a party to the contract and those who are not. That is, if you and I agree to an exchange, we may presume that we expect to derive mutual benefit from it. This is why collusive agreements let's agree not to compete with each other and charge our customers a higher price are not usually enforceable.