Why Intellectual Property Rights? A Lockean Justification
well researched paper by Professor Mossoff. It begins with an historical treatment of Locke and Anglo-American development of legally protected intellectual property and moral justification. The paper then addresses especially the Libertarian arguments against IP, including the utilitarian model of property rights in land and scarcity arguments.
It is common for young software companies to completely ignore any and all patents and not go looking for them as they can only sew fear uncertainty and doubt and they can hardly afford to license them anyway. And the theory is that they aren't worth suing as they are too small anyway.
However patent trolls are the next form of negative effect. They buy up patents and aggressively go after all possible parties with legal threats to pay extortion or be hauled into a court battle they cannot afford.
I think any thinking person can see that this mess is far far beyond the green field vision of the rights of and rewarding creators. The system has become deeply sick and contrary to intent in many ways.
Patents are supposed to teach those skilled in the art how to actually accomplish something, but in practice the vast majority of software patents read like elevator pitches for new dot com ventures or boil down to something from the lips of Captain Obvious.
The really sad thing is that most Law Schools push the lie that no real world programmer would write a single of line of code but for the chance that it might lead to a software patent. In truth the majority of software patents are applied for to defend against other patents or as a lure to attract venture capital because everyone else is filing them.
Perhaps mere original concept, if lacking a product made available for consumption is, or should be, insufficient to support a claim of patent protection?
Small wonder that our lives have become subjected to the so-called Rules of Law, always written by the lawyers for the PTB, who rarely if ever consider anything beyond more Force!
Ignorance of other people's property rights is not a valid argument for violating them
My logic is fine and I know a LOT about software. Check your attitude. A sort algorithm, for instance, is certainly not a way of wiring an electronic circuit. The wiring doesn't change one iota when you run a program. That is the entire point of a general purpose computer after all.
Software runs on hardware, but it's NOT hardware. The reason you use software at all is to AVOID having to build single-purpose hardware for every single instruction the computer has to carry out. This makes the computer flexible and able to run a myriad of different instructions rather than being limited to only what the hardware itself is wired for.
This is pretty much what all signal processing electronics does. The electronics is the controlling factor, not the signal. There is nothing the program can do to get the circuits to do something other that what they are already wired to do.
The differences in opinion that I'm observing here may have to do with the current programmers' viewpoint that software lives in a separate world from hardware. As proof of that, most of the younger software developers that I've interracted with have no idea how the operating system works and have no concept, or interest, in the machine language / compiler interface to the hardware. To be fair, with current computer capabilities and development levels, perhaps they don't need to. But when one tries to dissect the cat, as in patent application, perhaps a different story emerges, as the software does not live in a separate world from hardware.
I grant you, when you are dealing with microcode that is hard coded into a specific device as a part of the device it might be appropriate, although copyright can work with that as well.
Certainly the BIOS in the PC is copyrighted, not patented. Although one can argue that IBM may have been better off patenting it. I do think that patenting something as complex as a BIOS would be an amazing challenge. The concept of a BIOS was existing art. It does make an interesting example since considerable effort was made to duplicate the function without copying the code.
Television is electronics. The story presented on the CRT is not television, it is a story. Programming is not like the story, because the story does not tell the television how to do anything. The television just presents an image and sound that is captured in one place and displayed on a screen.
Or, another example, 6615130900. I have a phone on my desk that if I punch those numbers into it, will allow me to get a pizza. The number is not a 'device for ordering pizza', it is a series of instructions I type into hardware to produce a result. I do not rewire the phone system, it makes temporary connections. I do not even have to use this phone, I have cell phone of completely different design that will achieve the same result.
When I write code, I do so for the purpose of illuminating my thought processes for myself and anyone else who might want to modify my code in the future. There is an entire movement called Literate Programming that calls on programmers to craft systems that can stand on their own as works of literature.
The fact that I can express myself within the formal constraints of a programming language, selecting from a myriad of alternative ways of making a program achieve my desired end in no way takes away from its qualitative nature as an "artistic performance".
The argument db is trying to make is like saying that Francisco D'Anconia and Hank Reardon do the same thing because they both work with metal. Those of us who actually work in the industry understand the critical differences between the two.
If he wants to be reasonable and inquire about _why_ we view things the way we do and then present counterpoint, we can go with that. But the WAY he approaches the entire argument is nothing short of the tyrannical "my way or the highway" approach. I get that that may be what works in a court of law, but it's the wrong tack to take in a forum. And he only gives fuel to our perceptions of him as an intolerant ideologue when he devolves to ad hominem attacks and spurious references to "religion". Those types of outbursts speak larger than any logical argument he would make and have no other outcome than to alienate. If he wants others to seriously consider his arguments, he needs to demonstrate that he will seriously consider theirs. And I'll be perfectly honest with you that he isn't building any bridges on this topic.
1) Software without any hardware is what?
2) What is a computer?
3) How does software interact with a computer?
4) What is a compiler? Why is it needed?
5) How were the first computers "programmed'? Why were they programmed?
Your position is so absurd as to be off the charts. You and the people on this post are being intellectually dishonest and attempting to avoid the hard work of thinking. You are all a bunch of second handers.
You all chose to spam the site with your religion instead of addressing the serious scholarship of this paper.
2. A computer is a programmable tool. If you can't program it (alter its ability to function and solve different problems) it isn't a computer. An abacus is NOT a computer. Babbage's differential engine was a _very_ rudimentary computer.
3. That question doesn't make sense. Software doesn't "interact". Users interact. Please explain.
4. A compiler takes the "code" written by a software programmer in a second-, third-, or fourth-generation language and translates it into byte code that actually gets processed through the hardware as pulses of electricity (or light if you're using optronics). If you don't compile the code, it is just ideas from a human about what a computer should do. The compiler translates the _should_ into _can_ and _how_. If you take the very rough example of an automobile engine, the compiler is the transmission. It takes the energy being generated through internal combustion and channels it into a mechanical action that moves the car forward.
5. The original ENIAC was massive and configured to do one thing and one thing only: calculate artillery trajectories. They physically had to re-wire the entire thing to get it to perform a different task. My dad did his programming using stacks of punch-cards when he was in college. Those stacks were the "software" used to set up the computer to perform a single set of computational tasks. In order to change the task, you had to put in a new set of punch cards and you were in real trouble if you got one out of order or dropped that two-foot high stack. Modern computers simply make it very easy to change out the current task(s) of the computer by being able to constantly reconfigure themselves logically - but not physically. That's the beauty of software - it introduces the flexibility to alter a computer's operations and use without physical/hardware change.
Your argument is of the equivalent that every modern computer is no different than ENIAC. What I am trying to point out is that yes, one CAN hard-wire a computer to solve any specific problem given it. But just like ENIAC, the computer would be useful for that purpose and that purpose ONLY. With the addition of software, the computer can shift purposes in nanoseconds to address a whole myriad of increasingly-complex problems - all without the need for more silicon or wire. But that difference is critical in how we see intellectual property in its application to computing.
Gotta laugh at the ad hominem. Gotta laugh at the fact that it is only you who is trying to advance the absurdity that software and hardware are the same thing in spite of all the field experts around you. You want to try to tell us it is we who are being unreasonable or intellectually dishonest. Good grief. Programmers and Electrical Engineers are literally the most logical people you will ever meet. It is ingrained in everything we do. Cause -> Effect. If your position were so overwhelmingly logical, we'd already be buying into it. It should say something spectacularly obvious that we are united in a different interpretation.
I would further note that it is this very definitional argument which colors the two ways we approach this issue. I don't have a problem with software as an intellectual endeavor worthy of property protection. But I also recognize software for what it is - virtual instructions - and what it is not - a physical manifestation. The gas to the engine.
Of course computer operators prided themselves on picking up a whole 2000 card box at once and stacking it into the reader.
Poplicola is right, there is more to a program than instructions for running the computer, there is documentation and structure for supporting the maintenance of the program by other people.
I wouldn't go as far as the literate programming movement, but I do try to converse with others within my code -- even if it is my future self. When you are working on a program for twenty years, you have to leave a lot of notes.
Back in the mid 70's I was reading some code for the sort/merge routine on a mainframe. There was two pages of uncommented assembler code with only a single comment in the middle: "Now I'm doing something tricky". We try not to do that kind of thing.
db has written software. He is an electrical engineer and a physicist.
I will not comment any further on this post to you.
My comments on the 'second inventor' are about the moral underpinnings because they represent a situation where someone is deprived of the product of their intellect.
As to the portions related to people independently inventing something, that's on point. Locke's argument is that a person has a property right in the creation of their intellect. I absolutely agree. The idea that only the first person to create something has that right is not supported in the text.
I would also suggest that there is some artistic style to source code, certainly people who read and write it regularly can recognize that.
Of course it's not exactly the same but it certainly isn't wiring either.
It would be interesting to know just when humans began to treat their "inventions" or improvisations as personal property. In earliest times it was simply animals imitating each other when one came up with an innovation, like washing one's food. The 100th monkey paradigm showed that sharing led to improved methods.
With no lawyers to formulate contracts, early man built on each new discovery that emerged from any member of the clan. Physical property was what one could protect. The notion of respect for others' property came later. In the most elementary stage, if I climb a tree to fetch a banana, it is mine to eat unless I care to share it. It was a breakthrough concept, until marauding and pillage became an established practice for acquiring goods. Then we went through the phase of "might makes right" where the chief or king owned everything, even the serfs. We've come a long way, baby!
It seems to me that the first layers of the ownership meme were possession of physical objects, and as the human intellect developed into higher stages of complexity, ideas became a kind of property as well. Once language and writing were achieved, it became easier to document where ideas came from and whose they were. The notion that first-come, first-served, or the first to occupy a piece of land, or the first to find an oil well or copper mine, is its rightful owner is a throwback to a time when there were still things to be found that no owner had already claimed. Finders, keepers.
In today's world, ownership should certainly belong to the creator, although the creator can choose to give it, rent it, or put it into open source. My own logic suggests that anything an individual creates, by investment of energy through muscle or mind, rightfully belongs to that individual along with all benefits or profits from it. That is the basis of a civilized world.
In the ever more complexified social systems of laws, redefined rights, and government intrusions into individuals' lives, devious methods of extraction have been set up, whether through taxes or licenses and fees, through which the amount an individual is allowed to keep is no longer within the individual's control, and more and more of his substance is syphoned away for those others whom the controllers want to benefit.
We have the illusion of still having property rights, physical and intellectual, so we endure. And this system crept in so gradually that we are being bled to death by imperceptible stages, having accepted it as the norm that we own only what the government allows. But Ayn Rand noticed, and there is the antidote if only we can heed it. -- Sorry if I've drifted a bit past the patent law topic.
You make anything original--it's copyright yours.
That just strikes me as common sense.
Land cultivated by the mind and hand or any material improved by the mind (invention) and or hand are equally valid as property. Property is that which the owner has the exclusive right to dispose of as he sees fit.
Does this help at all?
But on this point I can say that in my experience as a software developer, either as a full-time employee or as a contractor, you always have to sign an agreement saying that any software you write that may have value as an "invention" (I'm not sure if that's the correct terminology. Let's just say if you write some software for a project that the company can resell or make money from), it belongs to the company.
Your more general point may also make sense in some software situations I have had experience with: if I have an idea for a software product that is unique but would require a team to develop, i.e., too much to develop on my own, I might present the idea or design to a software development company (after getting a non-disclosure agreement) and if they agree on its potential value we may come to some sort of agreement to share the rights and develop jointly.
http://en.wikipedia.org/wiki/List_of_mul...
Did John Locke ever address the property-rights implications of this issue?
There are often near simultaneous claims to property land, when property rights are properly defined as in the homestead act. Mining claims, hunting and fishing. The law has practical ways of sorting out the competing claims. This is not unique to patent law.
If two people independently invent the same thing without reference to each others work, why is the first one morally entitled to own the work? In both cases the work is a product of human reason, neither of them benefited from the work of the other.
While the law can award the rights to one of them, does that mean that the other had no moral claim on his work?
If the patent is broadly written, it will cover a vast number of ways that something can be done. Copyright, on the other hand, covers the way that the person did it.
From a moral perspective, I don't think the fact that someone else came up with the same thing removes your moral rights to the fruit of your labor.
It is insufficient to search for patents related to your general product. The nature of software is that an algorithm you use could be in common with a completely different product in a different field and might well be patented.
I do agree that someone who lies about inventing independently is a thief.
How could you possibly claim that two people could not independently come up with the same idea? Note, I'm not saying simultaneously, simply that the second has no way of knowing that the first person has done so.
If the second person is unaware of the first person's creation than their creation is the fruit of their own labor and there is no moral reason to deprive them of it.
You are ignoring this possibility, which is probably not all that uncommon, because it undermines the moral support for patents. It then becomes a practical matter.
This is much the same as the argument between first to invent and first to file. I agree with you that first to invent is more just, but first to file is easier to administer as a practical matter.
Mainly, although I've only had time to skim the article, it looks great.
Also, I've just recently re-read Locke's Second Treatise, and a modern application would be great to read and excellent timing.
Finally, I've only recently run into some Libertarian friends who argue against IP rights. Huh???? I'm a software developer and have run into my share (thankfully a minority) of fellow developers who trumpet: "All software should be free!!!!" It's only recently I've heard of some Libertarians saying the equivalent. I'm looking forward to seeing that addressed.
I rely on intellectual property protection for my product to allow me to maintain it and provide a living for the couple dozen people who work for me.
I admit that it doesn't protect the underlying algorithms, it protects that particular implementation of the algorithm. The bulk of the work is coding and testing the algorithms, and if you copy the sequence of instructions you've violated the copyright.
And, of course pretty much everyone hides their code as a trade secret. In fact it's very rare to release source code.
As we've argued over this, I've examined my own mental process and I have to say that I don't really think of what I do as 'inventing', I feel it is much more akin to writing -- which you do as well. How would you patent part of your novel?
Would you patent a plot? Any writer can tell you that plot is just the starting point. It's the way that the plot is implemented, how it hooks into the rest of the story that makes it yours. If I tell you the plot to a novel, you can't just go to your word processor and repeat it.
Similarly, an algorithm, out of context of the rest of the program is like a plot idea. Reusable in lots of situations but the magic lies in the implementation.
What our dispute is over is whether patent protection is the best way to achieve that goal. My experience having watched the computer industry grow over the last forty years is that while it has always used copyright protection to safeguard IP, the growth of patent protection as a means of guarding IP in the last 20 years has slowed the progress and generated a barrier to entry that wasn't present during the years when Microsoft grew from a company selling a memory board to one of the largest companies in the world.
Yes, one thing is not exactly like another. Architecture isn't prose or plot, yet it is protected by copyright. In modern times Howard Roark would have his designs protected by copyright, not by patent.
I will comment that having written a very small amount of prose some 40 years ago, I recently began writing fiction again and was astonished at how similar the process was to working on a large program.
If this were just about the "issue" which would be procedural under the law, I would agree with you that this was an "issue." However, this is about principles of morality and natural rights.
We will continue to argue over the definition of software, copyrights and patents.
There is a rights discussion underlying this, of course. We both agree that the creator of IP has a right to his creation. The question is what types of creations qualify for protection.
If I look out the window and see the sun shining and exclaim "it's a wonderful day", this should not prevent you from independently looking out the window and making the same observation. Now, if I write a poem about that observation, then I should be able to copyright that.
To my mind, software patents are an attempt to prevent me from making the obvious conclusion that it is a beautiful day. In essence, it is an attempt to prevent other practitioners of the art from exercising their skills -- and that is, at least in my opinion, immoral.
(ed. I should have said "independently exercising their skills")
You were responding to a post where I supported intellectual property rights without specifying the mechanism -- deliberately to avoid being provocative.
Personal integrity
Why are patents and copyrights an issue? Because individuals have chosen to ignore their own honesty in pursuit of money. In a society of strict personal integrity (honesty), no person would think about taking someone else's idea for their own use without compensating them for it. No one would present another's ideas as one's own or pretend to authorship of something he did not invent.
That why so many inventors on You Tube desplay their creations there by making them public.
The second and a rule of mine. I don''t copyright nor patent in any country that can't protect the copyright or patent. I believe the inventor of the internet failed in that respect as well as in abdicating any kind of right to claim moral values. But the porn industry sure did love Al Bore.
Third the intellectual genesis is rarely the start point given the educational and genetic background but he or she IS the one with spark of creativity. I tend to weigh in on their side for that reason.
Case in point a musician or an author. I pay for their value to my life. What I won't do is pay for it more than once regardless who invents the next medium. I paid for that when I bought the computer and the program. One time.