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.
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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?
Does this help at all?
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.
http://en.wikipedia.org/wiki/List_of_mul...
Did John Locke ever address the property-rights implications of this issue?
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")
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!
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.
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.
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.
You make anything original--it's copyright yours.
That just strikes me as common sense.
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.
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.
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.
Ignorance of other people's property rights is not a valid argument for violating them
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.
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.
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