The limits of IP


Samson Corwell

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Because I've always been a tech-oriented person, I've become familiar with the ins and outs of intellectual property, an institution which I wouldn't exactly call "property" but one I still believe is legitimate. In addition to copyright, patents, and trademarks, there are also database rights, mask work protections, plant breeder's rights, trade dress protections, and indigenous IP. The important question where are the limits.

Some of the statements made by some pro-IPers have made me gag. I could not support SOPA for the havoc it would have wreaked on the multistakeholder model of the internet and ICE's domain name seizures are an unjust unilateral action in the international sphere. So, when I see support for these things I usually can't help but feel I'm kore informed than the supporters.(When's the last time a free market think tank understood the multistakeholder model?) I recall Richard Epstein saying that patented inventions should be seen not as tking from the commons but adding something that wasn't there before. I facepalmed. Then again, this was the man some stupid comments about the GNU GPL and the open source movement a while back.

Now, I support some software patents and I'm fine with existing copyright protections. Genetic patents are right out. The situation with Myriad and its patents on BRCA1/BRCA2 sounded too much like a parody of capitalism than anything serious. It also screams Repoman.

I do not believe, as some libertarians do, that IP protections are monopolies. Not the right word for them. Any objection to IP on the grounds that intrudes on tangible property by restricting its use is silly on the basis that exclusive doesn't mean any use. I can't drive my car at 1000 miles per hour on the highway and I can't build outwards and block out the sun over my neighbor's house.

However, it is true that every kind of exclusive claim limits what others can do. This is neither good nor bad on its own, but is case-dependent. Onr man having exclusive rights over a large plot of land is indistinguishable from a country and can easily be the basis of despotism (i.e., King Leopold II and the Congo Free State). The thing about IP, like mineral rights in the continental shelves, is that it requires international agreement and can quickly lead to incompatibility. The European Union has database rights and moral rights whereas we do not, for example.

Intellectual property is property, but it's also not. It's a complicated issue, certainly moreso than land, and there a variety of opinions on the matter.

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