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Intellectual property – a defense Eugene Volokh, the head Volokh Conspirator, has a thoughtful post on the conceptual validity of intellectual property.
Long, but worth a read if you are interested in the topic. I confess I haven’t fully digested it myself, but it seems pretty sound (his stuff generally is).
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Francis Poretto at The Palace of Reason has written an excellent piece regarding Intellectual Property. That article can be found here.
While sound, I think the Volokh article fails to address the point of contention in many IP issues. As the article says, property rights do include both the right to use and the right to exclude, and the rivalrous or nonrivalrous nature of the property does not change this. In other words, I can do with my property as I see fit, even if there is an unlimited supply of said property.
What I think this fails to address is the nature of IP transactions, sales, and trades. Software and media producers are willing to sell the right to use, but they wish to retain the right to exclude. They wish to sell you the right to use a song, but wish to retain the right to exclude your friends from getting a copy.
Thus, if the parable of the well in point 4 of the article is to be an accurate reflection of the problems of IP, the farmers would not be taking the water from the well-digger. Instead, they would be given the water freely by the well-digger’s customers. I think the property rights of the well-digger in such a case are much less clear.
Intellectual property may have many features in common with real property, but it is not being used like real property. When real property is sold both the right to use and the right to exclude are transferred to the buyer, while intellectual property sales attempt to separate these rights and only transfer one of them.
Scott – that’s why you generally license software rather than buy it outright. All that fine print that you click through when installing new software is a license agreement, not a document of title. Licenses of anything, IP or not, generally transfer only a limited right to use the property licensed.
IP licenses are on all fours with licenses of real property. For example, I license hunting land. That license gives me the right to use the land for limited purposes, but not the right to allow as many of my friends to use the property as I might wish, just as software licenses allow me to use the software but do not allow me transfer copies to my friends.
Many transactions involve the transfer of less than the full bundle of ownership rights. Leases are perhaps the most common, giving as they do the right to use (often to the exclusion of the owner), but not the right to transfer, or, often, even to sublease without the owner’s permission.
Fair enough R. C. However, I have two points.
One, what you say is only true of software. There are no such license agreements for music, movies, etc.
Two, in the case of licensing rather than sale, software piracy would be more of a contract violation than a property dispute, not unlike someone violating a nondisclosure agreement. In which case you could certainly punish the person who broke the contract, however I do not think there is any way you could legally pursue third parties that traffic in the pirated software but never accepted the agreement.
Not true Scott, have you read the fine print on the back of a movie ticket in the US lately? Or the fine print license right before or after the FBI warning (the “licensed for home use only” disclaimer).
Movies and music are harder than software to enforce licenses for, as they are self-revealing media (you have to completely disclose it for it to be used), a.k.a. the ‘analog hole’.
But they still try to license it…
Very nice blog