Subj : Re: GNU Public Licences Revisited (again)
To   : comp.programming
From : niklasb
Date : Thu Sep 22 2005 09:24 pm

Chris Sonnack wrote:
> niklasb@microsoft.com writes:
>
> > For you, it seems to be an axiom that creative works are a form of
> > property (i.e. IP) and can therefore be owned. However, others start
> > with different axioms.
>
> I agree that is the heart of this discussion!  What I find utterly
> unconvincing is the logic behind the perception that I may not own
> what I create.
>
> And I disagree that it's an axiom, because it is logically supportable,
> not a matter of faith.  The question is whether others AGREE with the
> line of logic.

Fine.

> >> And tell me, why do you believe I may not own the fruits of my labor?
> >
> > It depends on whether the fruits of your labor are something which
> > can be owned. Obviously if you build something tangible like a chair
> > then you own it -- unless you're working for hire, in which case
> > your employer owns it.
>
> We agree on this, of course.
>
> > At least some intangibles can also be owned. If you create a company,
> > then you own that company. The thing you own in this case is a legal
> > entity.
>
> Indeed.  And an important part of this is the understanding that one
> *can* own intangibles that are the results of their own effort.

Agreed, although I would point out that all we have shown so far as
that at least *some* intangibles can be owned.

> > On the other hand, perhaps you labor for world peace. If against
> > all odds you were successfull, would you "own" the resulting peace?
>
> Interesting that we suddenly jump from very common mundane examples
> to something preposterous.  Hard to find examples, is it?  :-)

The preposterousness of the example is the point: while some
intangibles
can be owned, others cannot.

> Nevertheless, given the preposterousness of the idea, why wouldn't I
> own some aspect of the work I did to achieve world peace?  Other than
> that the idea probably offends, I mean?  My work, my property.

Your notion of "my work, my property" would indeed imply this. The very
absurdity of the idea suggests that the distinction between "ownable"
and "non-ownable" intangibles must lie elsewhere.

>
> Why is my company ownable, but my world peace is not?

Because the company is a legal entity which, as a matter of law, can
be owned.

Similarly, patents and copyrights are legal entities, granted by the
government to authors and inventors, which can be owned.

World peace is not a legal entity can cannot be owned.

For that matter, an idea is not a legal entity and cannot be owned,
no matter how hard you might have thought to come up with the idea.
Nor can mere ideas be copyrighted or patented.

> Doesn't that seem a very shaky dividing line to you?  TANGIBLE results
> of my labor are *clearly* my property, SOME intangible results of my
> labor are also clearly my property (and hence it is NOT true that
> intangibles cannot be property).....
>
> But for some reason, after all that consistancy.... sometimes it's not?
>
> That is usually a sign that the analysis is off the mark.

All this means is there must be something which distinguishes "ownable"
intangibles from "non-ownable" ones.

I submit that the "ownable" intangibles are legal entities which are
explicitly defined by law. All other intangibles are "non-ownable"
by default.

> > More modestly, suppose you labor to bring about a reconcilation
> > between estranged spouses. Now if you're a professional counselor
> > they may pay you for your labors, but if so you're merely being
> > paid to provide a service. In no case do you "own" the fruit of
> > your labor -- i.e., the resulting reconciliation.
>
> If I write a piece of music that makes you cry, you're suggesting I
> own your tears.  Your *response* to my work is yours and yours alone.
> The music, however, I do own.

As a matter of law, you don't own anything unless the music is
written down or recorded in some tangible form. At that point, a
copyright is automatically granted by the federal government. You
then own -- not the music itself -- but the copyright on that music,
which is a bundle of exclusive rights concerning reproduction of the
music and so on. See http://www.ipwatchdog.com/copyright.html.

> As a counselor, I do not own the results achieved by someone else--
> I did not force them to reconcile.  If they, pigheadedly, refuse to
> reconcile, nor do I own that reaction.
>
> What I DO own is my technique, my method, my approach, any books I
> write, any magazine articles I write..... etc.
>
> (And now it should be clear why I could only own a fraction of the
> world peace--because it would involve billions of other reactions.)

How do you account for the fact that an idea, which might be
entirely your own labor, cannot be copyrighted or patented?

When we say intellectual property the "property" in question is the
copyright or patent, not the protected work or invention. These are
special cases, defined (in the U.S.) by the Constitution to serve
the social purpose of promoting authorship and invention. These
protections apply only to certain specific types of works, which
are specifically enumerated in law. They do not follow from some
general rule that work necessarily confers ownership.

> > To see that these are different things, consider that the novel
> > may be copied any number of times but there is still only one
> > copyright and one copyright owner.
>
> If I make 50 chairs, there's 50 chairs and one owner.  Me.
> If I hire workers to make 5000 chairs, still one owner.  Me.

Yes, but if buy a copy of your book I own my copy. All you own is
the exclusive right to make more copies, i.e., the copyright.

> > Consider also that the novel may in theory live forever but the
> > copyright eventually expires.
>
> A legal process designed to protect authors from thieves.
> Copyright is approximately based on author's lifetime or a fair
> time for recompensation.

Yes, because copyrights are special legal entitites which exist to
serve the social purpose of encouraging authorship.

> > This would be very irregular if you actually owned the novel
> > itself because ordinary property rights do not expire in this
> > way, but there is nothing odd about a legal entity like a
> > copyright having a finite lifetime.
>
> So?  Copyright is a *legal* entity for protecting authors.  When
> it comes to legal entities, there's all sorts of weird things.

Yes, and this legal entity exists because it is *granted* by the
government -- not as a result of some natural law that labor confers
ownership.

> > Copyright does not follow automatically from the notion that you
> > own the product of your work. The product of an author's work is an
> > intangible of a sort which (like world peace) cannot itself be owned.
>
> I'm sorry, these are just statements of your opinion.  I'm not seeing
> any kind of convincing argument here.

I'm describing how copyright works in our legal framework. You're
describing your own theory of property based on your intuition that
labor ought to confer ownership.

> > Copyright exists as a matter of law because it serves a social good
> > by allowing creators to profit from their efforts.
>
> By protecting them from thieves, yes.

By temporarily conferring exclusive rights so as to give the author
an advantage over free riders who would otherwise be able to reap
the benefits from the work without sharing in the initial investment.

> > None of this is to say that copyright (or patent) infringement is OK.
> > It is both legally and morally wrong, and those who argue otherwise
> > are often just rationalizing their own self-serving behavior. However,
> > it is not the same thing as theft.  I would say it is more akin to
> > trespassing. The trespasser improperly uses someone's land without
> > permission, and the infringer improperly uses someone's copyright
> > without permission.
>
> Interesting that, after all your attempts to deny that my novel is a
> form of property you compare copyright violation to an explicit
> *property* violation!

Yes, your property is the copyright or patent.

> Maybe you need to rethink this a little?  (-:
>
> And, we would appear to agree that, in either case, it's legal violation
> of my rights as *owner*.

Sure on a practical level I think we agree. My only argument is that
the
basic principles underlying intellectual property law are different
than
you suppose.

Anyway, it's been fun. :-)

.