Intellectual Property: A Confusion in a Muddle
From the "Roger Donway White Collar Crime" topic, khalling wrote: "... I do not suggest that discoveries or inventions cannot have near simultaneous conceptions, but only the first is the discover or the inventor. ... The invention is separate from an instance of the invention. The inventor is the creator of the invention. The person building an instance of the invention is the owner of that version, however the inventor has right in that as well. No different than songs, movies."
My point is that two or more people can have independent discovery of a principle and also that two or more people can invent something independently. Both (all) are discoverers.
As for songs:
Variations on a Theme by Haydn
Variations on a Theme by Paganini
Variations on a Theme by Erik Satie
The Minka Variations
In "Back to the Future" when Martie "invents" _Johnny B Goode_, he tells the band "Blues riff in B and try to keep up." Who owns the blues riff in B?
As a published author who depends on some minimum of intellectual property rights, I certainly do recognize the value in them. I maintain, however, that the body of our laws derives from medieval concepts of LAND. You cannot create new land. But you can create your own computer. In fact, the very process of reverse engineering successfully results in the virgin creation of a working duplicate, albeit by sometimes different mechanisms. In computer chips, the venture capitalist hires an engineer who figures out what the chip does and write a book of description of inputs and outputs. Then, another engineer who SWEARS on a stack of Bibles that she has no contact whatever with the original chip takes the "playbook" and writes (or draws) the plans to create a chip that does those things. It is a new product.
How would this "first inventor" theory work for The Bible? Apparently no human is allowed to publish one, ever. (BTW: when a new Jewish congregation is formed, they copy their Torah from another congregation. How can you presume to prevent that? I mean exactly capital-W-Who give whom permission? What if the second previous suddenly has a problem with the second subsequent? Can they prevent the copying? Who owns the work?)
To me, I look at just about everything like mathematics. You cannot have internal contradictions. As Ayn Rand said, "Contradictions do not exist." So, if you run into a contradiction - as in the myriad of problems with existing intellectual property law - then some or all of the premises must be false. I see the first false premise as attempting to treat ideas as if they were land.
My point is that two or more people can have independent discovery of a principle and also that two or more people can invent something independently. Both (all) are discoverers.
As for songs:
Variations on a Theme by Haydn
Variations on a Theme by Paganini
Variations on a Theme by Erik Satie
The Minka Variations
In "Back to the Future" when Martie "invents" _Johnny B Goode_, he tells the band "Blues riff in B and try to keep up." Who owns the blues riff in B?
As a published author who depends on some minimum of intellectual property rights, I certainly do recognize the value in them. I maintain, however, that the body of our laws derives from medieval concepts of LAND. You cannot create new land. But you can create your own computer. In fact, the very process of reverse engineering successfully results in the virgin creation of a working duplicate, albeit by sometimes different mechanisms. In computer chips, the venture capitalist hires an engineer who figures out what the chip does and write a book of description of inputs and outputs. Then, another engineer who SWEARS on a stack of Bibles that she has no contact whatever with the original chip takes the "playbook" and writes (or draws) the plans to create a chip that does those things. It is a new product.
How would this "first inventor" theory work for The Bible? Apparently no human is allowed to publish one, ever. (BTW: when a new Jewish congregation is formed, they copy their Torah from another congregation. How can you presume to prevent that? I mean exactly capital-W-Who give whom permission? What if the second previous suddenly has a problem with the second subsequent? Can they prevent the copying? Who owns the work?)
To me, I look at just about everything like mathematics. You cannot have internal contradictions. As Ayn Rand said, "Contradictions do not exist." So, if you run into a contradiction - as in the myriad of problems with existing intellectual property law - then some or all of the premises must be false. I see the first false premise as attempting to treat ideas as if they were land.
There is an inventor of x. Only one owner (which could be a group), the original creator, is the first. Everyone else, even if they were completely isolated from the knowledge that x had been created, is second.
Second, you are incorrect that all of our IP laws have their origin in medieval property law. medieval property law was superseded by the works of William Blackstone who based property law on Locke's Theory of Natural Rights. Blackstone, as you know, is the cornerstone of US common law, which is where our property rights and IP laws come from. My husband is an intellectual property attorney and has written extensively on these subjects. www.hallingblog.com, "State of Innovation."
This is demonstrated by US law, Homestead Act of 1862, which shows that creation, not of the land, but in improvement of the land, i.e. building a structure, is the basis of property ownership.
Let me make an aside here. Under natural rights, there is a difference between ownership of property and its market value. Not the same thing. A straightforward part of natural rights is that I may trade my creation(s) for another's. value for value. you have a right to contract. I acquire the right to say ranch land, which I may or may not improve, based upon my creation(s0 before.
The reverse engineering argument you make, confuses copyrights with patents. I started that, but my goal was to point out that there multiple people can have rights in a creation.
The difference is: copyrights are there to protect the artistic expression (software, computer chip). Because copyrights only protect the artistic expression, getting the same functionality without copying someone's work is allowed under copyright law. But not under patents. Patents are about the functionality.
In patents, someone who reverse engineers an invention is not the inventor of that which they reverse engineered.
A discussion of the current patent laws in the US I can have here, but most will not probably enjoy or be interested in. Suffice it to say, the passage of the recent America Invents Act changed the Constitution's intent of "inventor" to first to file. Who do you think will win that game? The inventor or a large corporation? We will head back to trade secret which does not advance technology, which is the only way to increase real per capita wealth.
There are some things that I find fairly self evident (which seems to be a problem with laws - they don't seem to like things that are self evident)
If as an amateur photographer (pro being defined as someone who makes more money on the activity than they spend - and that would NOT be me) - I take a photograph of a mountain - I can copyright that photograph. Which doesn't stop the person behind me walking up when I'm done, dropping their tripod into the holes left by mine, and making essentially the same photograph. It does cover them downloading mine from the web and putting their name on it. I find copyright easier to understand - and potentially harder to enforce.
Patent covers inventions -based on my understanding (probably flawed) I can also patent a process by which something is accomplished. For example, Arthur C. Clarke could have gotten a patent on the concept of the geostationary communications satellite (and really should have), - the process of using a satellite in a fixed orbital position to enhance communications - with out having actually created one. I can not, however patent something like fermentation - it's a natural process.
I find myself confused by anyone's ability to patent a gene sequence - the process of splicing genes by virus or what ever - sure - the gene sequence NO - and yet, I believe it's happened. I view that as a contradiction - genes and gene sequences are a part of nature - you can't patent nature - a particular gene sequence is based on prior art - and should therefore not be patentable.
I also find the idea of prior art, and obvious extension to be useful but flawed - I've seen ideas in software that got patented that were so obviously extensions of prior art, that they should have never been allowed - the people handing out patents are WAY behind the curve, which makes it easier for those with deep pockets to use the force of the government to prevent competition.
What happens for example when someone like Clarke "invents" the geostationary satellite but doesn't patent it - but someone finds the idea and attempts (and succeeds) in getting the patent - is it valid? I would hope not, even though publishing an idea would be covered under copyright - it's not a patent, but it should establish prior art which would make the attempt by the idea thief unpatentable - yet I don't think it works that way - does it?
your picture example: copyrights are about artistic expression. So, unless someone makes an exact copy of your photo, they may have their own artistic impression of the same scene. This would not violate your copyright.
Gene sequencing: this statement you can patent a gene sequence that exists in nature is a myth. What people have patented were highly modified chemical compounds that related to DNA sequences that are in humans. This is no different than patenting a new and useful chemical compound. Unfortunately, this idea that we were "patenting human genes" was fabricated by propagandists and marketeers and the Supreme Court, none of whom have even the most basic science background or any knowledge of patent law -bought into it.
software patents:We hear all the time about obvious extensions of existing ideas. But what we find, is these comments are made by those who haven't the most basic clue as to how claims are written or work in a patent application. They tend to be made by those who do not read an entire application/patent and they rely on broad statements made by people who are anti-property propagandists, who are not interested in inventors' rights. Patent law is not something one can understand quickly or easily. This makes it no different than quantum mechanics. It requires hard work and discipline and years of study.