What Does "IP" Really Mean?

For readers of Linux Journal, "IP" almost certainly refers to the Internet Protocol, part of the TCP/IP suite that underpins the Internet. But to most people, if it means anything, "IP" refers to something known as "intellectual property". This widespread recognition is rather curious, because "intellectual property" does not exist.

As is so often the case when it comes to clear thinking about what is really going on, Richard Stallman has put together an extremely useful statement of what the problem is:

It has become fashionable to toss copyright, patents, and trademarks — three separate and different entities involving three separate and different sets of laws — into one pot and call it "intellectual property". The distorting and confusing term did not arise by accident. Companies that gain from the confusion promoted it.

A good example of that confusion can be seen in the case of happily now-moribund SCO suits against companies like IBM. These are routinely presented as lawsuits about "intellectual property", but I bet that even readers of Linux Journal would be unsure quite what that really meant in these cases. Indeed, I suspect that, if pressed, most people would guess that it had something to do with patents, since patent infringement is widely – and rightly – regarded as the biggest threat to open source programs. And yet the SCO suits are mostly about alleged copyright infringement, which is quite different from patent infringement.

In the context of software, copyright is about the particular way a program is written, and copyright infringement involves copying parts of that code. Patent infringement, by contrast, is about an invention – although when applied to software those inventions amount to little more than mathematical algorithms, which is why software patents should not exist (since it is generally accepted that "pure" knowledge cannot be patented.)

Needless to say, Stallman has a solution to this problem he has identified with "intellectual property": "The clearest way out of the confusion is to reject the term entirely," he writes:

Thus, any opinions about "the issue of intellectual property" and any generalizations about this supposed category are almost surely foolish. If you think all those laws are one issue, you will tend to choose your opinions from a selection of sweeping over-generalizations, none of which is any good.
If you want to think clearly about the issues raised by patents, or copyrights, or trademarks, the first step is to forget the idea of lumping them together, and treat them as separate topics. The second step is to reject the narrow perspectives and simplistic picture the term "intellectual property" suggests. Consider each of these issues separately, in its fullness, and you have a chance of considering them well.

That's certainly true, but I think there are two problems with this approach.

The first is that however much Stallman may deprecate the use of a single term, people are still going to seek one when they are talking about this area. Telling them they should really only speak of copyright or patents separately is not going to work. Without an alternative, they are bound to fall back on the old "intellectual property."

The second is that however incorrect it may be to lump disparate things like copyright and patents together, they do share one important property: they are frequently misused by those who wish to see open source – and related areas like open content – crushed. To fight those attempts it would be good if we could fight back by using a term that conveys succinctly what the problem is with copyright and patents, and why their use must by strictly circumscribed or even abolished.

Happily, there is a term that fits the bill nicely. Instead of speaking of "intellectual property", which invokes that feel-good idea of property and ownership, we should speak of "intellectual monopolies". For this is precisely what copyrights and patents are: they are monopolies granted by governments for a limited period as part of a bargain - that, in return, those who are granted those monopolies hand them over to the public domain once the term of the monopoly has lapsed. (For an extremely accessible explanation and exploration of this idea, see Against Intellectual Monopoly, a book by Michele Boldrin and David K. Levine, which is available as a free download.)

Using "intellectual monopoly" instead of "intellectual property" has a number of major advantages. First, nobody wants to be branded a monopolist – just ask Bill Gates - because everyone's instinctive reaction is that monopolies are bad for society. It is clear that a monopolist is exerting a disproportionate power over you and everyone else – that is why the monopoly is time-limited by governments. Speaking of intellectual monopolies makes it clear that copyrights and patents are – at best – short-term compromises that people may choose to accept provided the benefit is great enough.

The other huge benefit of speaking of intellectual monopolies is that it gives the lie to the whole idea of "piracy" - another term, like "intellectual property" that is employed to trick people into drawing incorrect conclusions. For it is impossible to steal an intellectual monopoly – by copying content or an invention, for example: the worst you can do is infringe on it. Put in these terms, it is clear that the facile comparisons of copyright infringement with stealing CDs is utterly ridiculous: depriving someone of a physical object is in no way comparable to infringing on their monopoly.

Finally, the use of the term "intellectual monopoly" whenever copyright or patents are being discussed does one other very important thing: it gives everyone – even those of us who otherwise have no influence in the economic, legal and moral battles over the rightness of granting these monopolies, and of the (manifest) error of extending them – the means to make a contribution. By refusing to employ the phrase "intellectual property" we can begin to reframe the discussion in terms that more accurately reflect the underlying facts: that copyright and patents are monopolies, and as such should be reduced to an absolute minimum, not a form of property that should be maximised.

The more of us that use the term "intellectual monopoly", the more widely this concept will become understood, and the more likely it is that lawmakers around the world will begin to understand the distortions of the copyright and patent systems they have been tricked into introducing over the last years, thanks to intensive lobbying by industry groups. Once that happens, we can even begin to contemplate reducing copyright terms, and narrowing the range of what is patentable to rational levels – both of which will help protect open source and open content from attacks based on alleged infringements of copyright and patents.

Glyn Moody writes about open source at opendotdotdot.

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I concern to that type of

Alex T.'s picture

I concern to that type of people who think that IP address (Internet Protocol address) is a unique address that certain electronic devices use in order to identify and communicate with each other on a computer network utilizing the Internet Protocol standard (IP)—in simpler terms, a computer address (wikipedia). Services like traceroute, reverse ip, whois are ordinary for this days.
Actually I think that "intellectual property" is philosophical concept and requires too much time to discuss.

Stephen Kinsella has written extensively on this.

Bob Robertson's picture

There are extensive writings on this subject concerning the economic abuses that copyright and patent cause.

For example,

http://blog.mises.org/archives/002708.asp

"The Internet is becoming an essential tool for the spread of knowledge and information. So it is not surprising that copyright is hampering individuals' ability to do this. This NY Times article, One Internet, Many Copyright Laws shows how copyright law can lead to confusion and bullying tactics by states and copyright holders that discourage the publication of books and other materials on the Internet. It demonstrates how the US is pressuring other states, such as Australia, to adopt ever longer copyright terms to prevent works still copyrighted in the US from falling into the public domain in other countries."

Kinsella's home page: http://www.stephankinsella.com/

Yes, "Monopoly" is the better term

Tim Hodkinson's picture

Monopoly is a better term than "property" because it is the creation of exclusivity that is the essential purpose of "intellectual property" (sorry, I had to use it...).

Copyright, patents, whatever... they are all set up to allow the author to exclude others from copying or using their work without permission, paying a fee, licence...

Monopoly is also a better term because it more accurately describes the anti-community, anti-sharing, selfish motives which intellectual "property" holders exhibit.

Ironically, it is the sharing of knowledge which allows intellectual activity to progress and this same sharing is what the concept "intellectual property" attempts to stop by taxation (licensing, permission fees...).

Intellectual Monopoly --a better term.

Virtual Property

ZG's picture

Patents, copyrights and trademarks, are all property. They all also belong to a general group of property that don't actually exist in the real world, they exist as ownership concepts in a virtual world, in our minds(intellectual)eye. Intellectual property is actually not that bad a term to use to generally categorize these types of virtual property, however, the term "Virtual Property" would probably be a better way to express the general category more cleanly.
While current law allows all these types of property to be (time)limited, exclusive monopolies, they needn't be in all cases. The GNU/GPL as a case in point, is specifically written --its primary purpose-- as an inclusive monopoly. This exclusive/inclusive sub division muddies your suggested term "Intellectual Monopoly". Monopoly being deeply ingrained in the publics minds as exclusive only. The negative knee-jerk reaction to calling the GNU/GPL copyright license ownership an Intellectual Monopoly would likely be considerable.

I'm wondering if an attempt to communicate with RMS on some IP issue is what prompted you to write this article. Reason being, I too have had to run the RMS IP gauntlet when I contacted him regarding virtual property (trademarks), and why I have put quite a bit of thought-time over the past few years on it.

There already is a term to

Anonymous's picture

There already is a term to describe what you are talking about it's intangible asset.

RE:There already is a term to

ZG's picture

Using the term IA (intangible assets) instead of IP (intellectual property), a term that(as you say)is currently being used for other purposes, to "better" describe the general category of property which are patents, copyrights and trademarks etc..? It's clearly logical and makes good sense to adopt it. In addition, needless reinventing of the wheel needn't happen, just simply switch to using this more concise accounting term.
IA(intangible assets)could logically solve the controversy. Those who are uncomfortable using the word property in the description must concede that they are certainly indeed, assets. At least, that is, until their(legislature set)terms expire. What say ye, Mr. Moody?

http://www.investopedia.com/terms/i/intangibleasset.asp

Assets

Glyn Moody's picture

Well, I agree intangible assets is an accurate description, but I see two problems. One is that the leap from "IP" is too far, and the connection is lost. Instead, intangible assets sounds like something to do with accountancy, and not directly related.

The other issue I have with it is that it obscures the nature of copyright and patent law: that is, that they are about granting monopolies. As I've written in the column, once people start thinking in terms of monopolies they will also start to question whether we need to extend copyright terms or extend the limits of patentability. The term "intangible assets" doesn't really help us understand what's going on here, because it still suggests - erroneously - that the more we have of these "assets" the better off society would be, but that is not the case, because we would be extending monopolies, not real assets - quite a different matter.

Re: Assets

ZG's picture

Your aversion to the words assets or property, and apparent death-grip on the word monopoly would indicate that you are trying to attain a political fix to what are obvious problems with IP (intellectual property) law by poring Bernays-Sauce (Edward Bernays) over the issue. That changing the IP category name to include "monopoly" will change the perception of the problem and somehow lead to your desired legal and political end. That's akin to calling the country of China "the Paper-Towel Peoples Republic of China" to high-lite their wholesale human rights abuses (where they use up and throw away their citizens as they see fit without any, even basic, ethical considerations). People who care, or can be made able to care about these various issues already know the situation. If you believe that a name change will substantively change anything to the better, then have at it. However, time might well be better spent by "inventing" a way to game the game. Much like RMS did with the GNU/GPL copyleft. That was truly inventive, and clever...

That's my point

Glyn Moody's picture

I don't think people who care *do* know this stuff. And I do think that using the term "monopoly" explains a lot in a quick and easy way. That's why I stick with it. As for inventing ways to game the game, I'm open to suggestions.

Interesting theory....

Glyn Moody's picture

... but not actually true - I've not been talking to RMS recently.

The point about calling the GNU GPL licence a kind of intellectual monopoly is interesting, and one that I pondered when thinking about this article. Since, as you say, the concept of a monopoly has negative connotations, that would seem to imply that even the GNU GPL is "bad"; but maybe it's only as bad as the copyright laws.

GNU GPL depends on copyright to work, so it ceases to work when the copyright term expires. If that term were 14 years, say, as it was originally in the Statute of Anne, the harm of that monopoly would be circumscribed, but copyleft would still function for the vital first few years, and free software would still be protected for a while. This fits well with the argument that software is so fast-changing that long copyright terms protecting it are inappropriate anyway.

I'm still not convinced that we should call any of this stuff "property", even "virtual property", because there are so many connotations that confuse the thinking around the term. I feel "intellectual monopoly" gets the balance right: it is an evil, but one that society may decide to accept as a quid pro quo for promoting innovation. But for that bargain to work, it has to be balanced, which it most certainly is not currently, as the spate of ridiculous patent cases proves, and as the unreasonable terms for copyright underline.

might be good

Aaron Klemm's picture

This could work. Please do report back when Mr. Stallman comments on your idea. If he does not, please email him directly for comment. Breaking the habit of saying "Intellectual Property" is insanely difficult and, while Mr. Stallman is correct about the issue, we need a better action to make something happen.

As I understand it, "Intellectual Property" does not have any codified or legal meaning. Do lawyers use the term in court? Could they successfully use "intellectual monopoly" instead?

ak

I can't see it

Glyn Moody's picture

RMS tends to stick to his guns - in this case, that a single term is unhelpful. So I can't see him adopting "intellectual monopoly."

I have to agree. While

JHanely's picture

I have to agree. While reading the article, I couldn't help but think: 'But patent is a whole different animal! Stop equating it with trademark and copyright!'
A very important distinction in my mind between patent and copyright is that in order to infringe copyright, you must see the protected work, and reproduce it or portions of it.
Patent can easily be infringed with no knowledge whatsoever of the protected idea.
So the word 'stealing' or 'pirate' may apply in some way to copyright, but simply cannot apply to patent.

"Intellectual Property" meaning

Nedd Ludd's picture

"As I understand it, "Intellectual Property" does not have any codified or legal meaning. Do lawyers use the term in court? Could they successfully use "intellectual monopoly" instead?"

Your understanding would be incorrect. 'Intellectual Property' has a legal meaning just as 'real' property and 'chattel' have meanings. Title 17 and 35 of the US code define the rights and protections covered by intellectual property law. Other countries would have similar laws.

The term 'intellectual monopoly' is cant. It could be used in a legal proceeding, since you can say what you want to support your position. 'Intellectual monopoly' isn't a defined term so you'd end up wasting your time defining the term instead of furthering position.

BTW -- Stallman is incorrect about intellectual property on an issue of fact. IP's existence is a fact.

links?

Aaron Klemm's picture

Could you provide some links with explanation? If you go into court claiming "MY IP is being infringed" that certainly wouldn't be clear enough. As in you would have to specify the type of infringement; trademark, copyright, or a patent infringement. So that's sort of RMS's point.

Let me know where I can find the US Codes you cite. IANAL, so if you are, please give more clear information to this board for all of our benefit.

ak

Links

Nedd Ludd's picture

I don't know what types of links you're looking for but...

Here's the US governments explanation of what IP is:
http://usinfo.state.gov/products/pubs/intelprp/

Cornell University has the US Code on line at:
http://www.law.cornell.edu/uscode/

Title 17 covers Copyright. The general scope of copyright law is described in Chapter 1 Section 102:
http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000102----0...

Title 35 covers Patents. Part II, Chapter 10 Section 101 describes the items that can be patented.
http://www.law.cornell.edu/uscode/html/uscode35/usc_sec_35_00000101----0...

Can you walk into a court room and say, "My intellectual property is being infringed"? Yes. Expect a follow-up question requesting more detail regarding the property and the nature of the infringement. But yes, that would be a reasonable statement.

Can you walk into a court room and say, "My intellectual monopoly is being infringed"? Yes. Expect a follow-up question requesting that you define the term 'intellectual monopoly'.

Stallman's objects to an umbrella term being used to describe a number of laws. If he doesn't want to use then that's his business. The term exists and many find that it facilities communications.

Stallman's statement that IP doesn't exist is wrong.

''Can you walk into a court

Anonymous's picture

''Can you walk into a court room and say, "My intellectual property is being infringed"? Yes. Expect a follow-up question requesting more detail regarding the property and the nature of the infringement. But yes, that would be a reasonable statement.''

Not in an American court of law, it wouldn't. The judge would throw any such lawyer who did that out of the courtroom, and the case along with it, due to no basis in law. Stallman's statement that "intellectual property" doesn't exist is correct.

And, BTW, "IP" actually stands for "Internet Protocol" and has for nearly 30 years. Folks who are smart enough to read (and write for!) Linux Journal would be expected to know that. I believe Mr. Moody does.

Intellectual Property

Nedd Ludd's picture

Here is a list of cases that the US Supream Court heard on the topic of Intellectual property.

http://caselaw.lp.findlaw.com/scripts/viewcase.pl?court=ussc&subject=Int...

To claim it IP does not exist is a denial of reality.

BTW -- it is not uncommon for an abbreviation to have more than one meaning. IP is no different.
http://www.abbreviations.com/IP

Can't even spell "Supreme Court", eh? Hehehe

Anonymous's picture

Yeah, you're credible, and you can't even spell "Supreme Court" right. Geez...what a troll.

You're == You are

Nedd Ludd's picture

Yeah and 'you're' is a contraction of 'you are' as in 'you are a retard'.
Watch your grammar if you're going to critique spelling.

Seriously, Glyn and I disagreed on the issue of intellectual property. People are allowed to disagree.
We discussed the disagreement like adults and avoided childish name calling. Because it was a civil discussion, we both have a better understanding of position of those with an opposing view. We are both better off for the discussion.

Now get into your Spiderman jammies and go to bed before your mommy finds out you're using the internet past your bed time.

Intellectual Property

Nedd Ludd's picture

Intellectual Property is an umbrella term that covers non-physical items like copyrights and patents. To claim that there is no such thing as IP is either ignorant or a lie. Quoting Stallman's *opinion* on whether IP exists as *fact* is deceptive at the very least. Stallman's opinion on the existence of IP is incorrect on a matter of fact.

Intellectual Property law protects to creator. Copyrights are designed to protect written materials such as prose, paintings, speeches etc. Copyright law helps protect David Bowie and Queen when Vanilla Ice uses a melody that they wrote. Patents protect inventors. Someone can invent a physical item like a safety pin or Velcro. Someone can also invent a process. Examples of invented processes could include galvanization or gene splicing.

So the question is whether software should be covered by copyright law or patent law. Is software more like a song or novel or is it more like a process. Programs usually have an entry point (main() in C) then it moves to the first command then the next the perhaps a decision (if() statement) is made then perhaps a conditional loop(while()) is executed until the execution stops. Software program describes a series of tasks so it is more like a process. Processes are covered by patent law so there is nothing wrong with software patents.

I checked w/ a lawyer friend in DC

Sum Yung Gai's picture

Nope, there is no such actual legal construct as "intellectual property", according to him. It's a term often used by lawyers, especially those who focus on patent law and copyright law and trying to appeal to corporate big-wigs to use their firm. However, note that SCO did *not* try an "intellectual property" lawsuit in front of Judge Dale Kimball. SCO tried (and lost) a *copyright infringement* lawsuit. Acacia and its new former Microsoft executive are now conducting a *patent infringement* lawsuit against Red Hat and Novell, not an "intellectual property" lawsuit. Had either of these trolls (SCO or Acacia) attempted to file an "intellectual property" lawsuit, they would've been summarily thrown out for lack of basis in law.

The term 'intellectual

Nedd Ludd's picture

The term 'intellectual property' is used in the context of patent and copyright law because it is the umbrella term used to describe those areas. Allow me to use an analogy, do mammals exist or only dogs, cats, cows, etc? Mammal is the umbrella term to describe animals with some shared characteristics. IP describes property that is not real or chattel.

I am not surprised that the legal proceedings are described as patent or copyright infringement. Intellectual property is a general term and the court usually wants to be more specific. You hear about dog bites going to court. If the complaint is about a mammal bite then it too would be thrown out of court.

One fallacy in this argument

Sum Yung Gai's picture

There are actually two fallacies in this argument. I'll deal with one of them here. It is that the argument attempts to group apples and rocks and call them part of the same group. In the strictest sense, this would be correct, as both are objects. But they're drastically different types of objects. For example, we don't generally speak of "eating objects," which could include an apple, a dog, or a rock. Rather, we speak of eating an apple (at least in the USA). We also speak of walking our dog, not our "object" (please, no "Pet Rock" jokes--been there, done that). Attempting to put patent law and copyright law under the same umbrella is similar; you might as well include "murder law" or "traffic-ticket law" or "bankruptcy law" under that same umbrella. They are *that* different.

--SYG

Missing the point

Glyn Moody's picture

I fear that the point of my column has passed you by, although it's hard to tell whether this is because I am a "liar" or an "ignoramus" as you kindly put it.

There is no debate over whether "intellectual property" as a term is used, or even whether it's defined in some jurisdictions. One point - RMS's - is that it makes no sense to mix such utterly different concepts as copyright and patents, which otherwise have little in common. This is not an "opinion", but a fact: they are different, as the very different case law around them proves.

The other, larger, point, is that "intellectual property" is a complete misnomer, since it is not property in any meaningful sense (even if people and the law use that as a shorthand) but more exactly a monopoly right, granted by the government, in order to promote further innovation - not to reward previous achievements, as many seem to believe. As such, it needs to be treated very differently from property. Of course, those in favour of intellectual monopolies insist on the "property" label and exploit the confusion with real property in order to draw all kinds of unreasonable conclusions.

As to the point about processes, you're right, software is a process - of mathematical operations. This is known as an algorithm: it is pure knowledge, and therefore outside the domain of patents. If we allow people to patent mathematical knowledge, or the laws of physics, it is clear that the world of business will just come grinding to a halt. No sane person could support patenting such fundamental elements of knowledge.

Saying it does not make it so

scott preece's picture

"One point - RMS's - is that it makes no sense to mix such utterly different concepts as copyright and patents, which otherwise have little in common. This is not an "opinion", but a fact: they are different, as the very different case law around them proves."

Sorry, but a statement that something "makes no sense" is inherently a statement of opinion, not fact. It is RMS's opinion that it does not make sense, but it clearly does make sense to many other people. The fact that there are differences between patent and copyright law is no proof that it does not "make sense" to consider them part of the same branch of legal practice. Humans group things for many reasons.

Even if the only reason for grouping the different IP areas together was that they tend to be interesting (as subjects for careers) to the same people, that would still be a basis for "making sense." In fact, however, there are ways in which IP actually is like real property, and that's where the term comes from. There are also differences, and that's why there's a modifier ("intellectual") in front of "property".

Is he just jerking your chain?

JJSans's picture

I am guessing that Nedd Ludd is a pseudonym from the character often claimed to be the inspiration for the Luddites (http://en.wikipedia.org/wiki/Ned_Ludd). Just as they opposed (often violently) the introduction of disruptive technology in the milling industry, this poster is taking the position that the status quo is a natural law that cannot be argued against. However there have been a number of treatises that make reasonable arguments against all intellectual monopoly (I like it and will start using it :-), such as: http://logosfoundation.org/copyleft/whatswrong.html.

I have exchanged emails with RMS on the subject of patents and don't entirely agree with him. His position is that he only opposes software patents and that the only solution is to completely eliminate them. My position is that there are bad patenting practices outside of the software realm, and it is makes a lot of sense to join with all of those who oppose bad patents. I am also convinced that too many have too much invested in patents for a complete reversal in policy, and the supporters are actually helped by those who take an extreme position that is easy to dismiss.

My complaint with software patents (and others that cover such things as business processes and gene sequences) is that they give a much broader monopoly to the holders than 'normal' patents. It is possible to invent and patent a better mousetrap because a schematic for the invention must be included. This makes it possible to compare inventions and make a reasonable judgment on whether there is duplication (ie. theft). But these new kinds of patents do not have a requirement for a prototype, which makes it possible to patent not just the mousetrap, but the concept of mousetraps.

Therefore, I believe that an argument that may hold up in court is that all patents must include a prototype which is the reference point for infringement claims. As I said, RMS does not agree.

BTW, I have given you a hard time in the past for knocking RMS's attitudes (as opposed to his ideas), so I feel obligated to acknowledge that this piece and your responses to the talkbacks are objective and reasonable.

Later . . . Jim

Yes, a key point

Glyn Moody's picture

"My complaint with software patents (and others that cover such things as business processes and gene sequences) is that they give a much broader monopoly to the holders than 'normal' patents."

This is certainly a key point: very often such patents block all further innovation - exactly the opposite of what the patent system was set up to do. That's particularly clear in the case of gene patents, since there is simply no way to come up with an alternative to Nature. It's also why knowledge can never be patented: imagine if someone obtained a patent on Newton's Laws, or Maxwell's equations: that would hardly lead to a flowering of innovation.

When this kind of thing happens, you know something is deeply wrong with the application of the patent system.

Intellectual Property

Nedd Ludd's picture

There is nothing wrong with intellectual property covering two different concepts. Chattel can be fungible and non-fungible. The laws surrounding a transaction of non-fungible chattel are different than those surrounding a transaction of fungible goods. Just because chattel can be fungible and non-fungible does not invalidate the concept of chattel. Just as there are various types of chattel, there are various types of intellectual property. Humans have a habit of categorizing things that have similarities then sub-categorizing them based on their differences. That is what was done with IP, patents and copyrights.

The term, 'intellectual property' is not a misnomer. It is used to describe non-real/non-chattel property. 'Intellectual property' rolls off the lips a little easier than 'non-real/non-chattel property', so why not use it? The rights and protections

I don’t think the protections from intellectual property law are neither to promote future innovation nor to reward previous innovation. Intellectual property law protects the creator of the innovation itself. Copyright law assured Arthur Miller receive the benefits from authoring 'Death of a Salesman'. The play was his creation/innovation and he should receive the benefit from its reproduction. The copyright protection didn't protect previous nor subsequent works.

I am glad we agree that software is a process. That means that, at least in the US, copyright law is not applicable to software. See Title 17, Chapter 1, Section 102(b):

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000102----0...

One could interpret that sections as saying procedures and processes (hence software) are not covered by copyright law in the US. If that is the case then to receive the benefits and legal protections from code someone writes then they'd have to look to patent law.

apples and oranges

Glyn Moody's picture

Fungible and non-fungible chattels are clearly closely related concepts: they are both chattels, and the only variability is their fungibility or otherwise - it's just a sub-category A and its complement not-A. Patents and copyright are not both any unified thing to start with - to say that they are two types of "intellectual property" is a circular argument.

As for copyright not being applicable to software, well, be that as it may. But it's a non-sequitur to use that as a justification for making programs subject to patent law - especially when there are such strong reasons for not subjecting mathematical algorithms to this particular kind of exclusion.

Patents

Nedd Ludd's picture

Patents and Copyrights are unified in that they are not physical items. Grouping them using the term Intellectual Property is appropriate.

It’s a non-sequitur to bring up the topic of mathematical algorithms. I don't understand why you would consider them non-patentable. A quick, off-the-top-of-my-head list algorithms that are patentable would be:

Actuarial algorithms used by insurance companies to compute risk
Securities evaluation algorithms used by brokers to evaluate stocks.
BCS's algorithm used to rank college football teams.

Why would these mathematical algorithms be patentable? Because these algorithms are processes. They are processes for evaluating risk, value and comparative quality. Processes are patentable in the US:

"Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title."

http://uscode.law.cornell.edu/uscode/html/uscode35/usc_sec_35_00000101--...

Mathematical algorithms can be processes and therefore they are patentable.
As you stated earlier, software is a process and therefore it is patentable.

You are entitled to disagree. Your recourse is to write your congressman and get the law changed.

The wording of Title 35 also addresses your concern regarding alogithms such as Newton's Laws. What Newton described was not new. Patent law requires that a discovery be both "new and useful". Gravity and naturally occurring genes are all prior art and would not be patentable. Your concern is a red herring.

Algorithms

Glyn Moody's picture

Algorithms are not a non-sequitur: they go to the heart of software patentability. But you don't have to take my word for it; this is what Donald Knuth, generally recognised as the world's greatest authority on the theoretical underpinning of computation, wrote to the US PTO some time back:

"I am told that the courts are trying to make a distinction between mathematical algorithms and nonmathematical algorithms. To a computer scientist, this makes no sense, because every algorithm is as mathematical as anything could be. An algorithm is an abstract concept unrelated to physical laws of the universe.

Nor is it possible to distinguish between "numerical" and "nonnumerical" algorithms, as if numbers were somehow different from other kinds of precise information. All data are numbers, and all numbers are data. Mathematicians work much more with symbolic entities than with numbers.

Therefore the idea of passing laws that say some kinds of algorithms belong to mathematics and some do not strikes me as absurd as the 19thcentury attempts of the Indiana legislature to pass a law that the ratio of a circle's circumference to its diameter is exactly 3, not approximately 3.1416. It's like the medieval church ruling that the sun revolves about the earth. Man-made laws can be significantly helpful but not when they contradict fundamental truths.

Congress wisely decided long ago that mathematical things cannot be patented. Surely nobody could apply mathematics if it were necessary to pay a license fee whenever the theorem of Pythagoras is employed. The basic algorithmic ideas that people are now rushing to patent are so fundamental, the result threatens to be like what would happen if we allowed authors to have patents on individual words and concepts. Novelists or journalists would be unable to write stories unless their publishers had permission from the owners of the words. Algorithms are exactly as basic to software as words are to writers, because they are the fundamental building blocks needed to make interesting products."

Algorithm Patents

Nedd Ludd's picture

I've already posted the section of patent law that describes what is patentable. Since you read it you know that the patentability of Pythagoras's Theory and 'words' are red herrings since they are not new. Patent law specifically uses the word 'new'. 'Words' and Pythagoras's Theory have both been around a while.

I agree that 'words' are fundamental to writers and are free for everyone to use. Combinations of words are protected by copyright law. I can not say, "The bottle was dusty but the liquor was clean", without properly attributing the phrase to the Grateful Dead (save for 'fair use'). I am sure you agree that copyrights on literary works are acceptable. If you don't find copyrights acceptable then please let me know. I like to post your articles everywhere on the internet and attribute them to me.

Fundamental mathematic algorithms are not patentable. If an algorithms is used in a unique way to create something new then the result is patentable. The Octet Truss and Geodesic Dome that R. Buckminster Fuller patented are examples.

You said, "Congress wisely decided long ago that mathematical things cannot be patented". The phrase 'mathematical things' is pretty broad and because of that it would be unenforceable. After all, a geodesic dome is a 'mathematical thing' and geodesic domes are patented. I am sure if patent law were amended to exclude 'mathematical things' then they would have defined which 'mathematical things' that are public domain. Could you share a link to the law that describes the type of mathematical things that are inherently public domain?

An individual algorithm is not patentable. One can not patent Pythagoras's Theory nor can they patent printf(). One can patent a process that that takes advantage of Pythagoras's Theory along with other concepts to create something new, unique and useful. Using printf() along with the 100 or so other C functions in a unique combination to create something new is (and should be) patentable.

There are two criteria for patentability of something: it needs to be new and useful. I've also seen the phrase 'non-obvious' used as a criterion as well but I don't know if it is codified in law.

I'd say that most of the software patents that I'd describe as the most disruptive to the computer industry are for processes that I wouldn't describe as 'new'. They're for things like "Use e-mail to notify someone that …" or "Click twice quickly on an icon to …". In other words, the process that's being patented is not new. These patents can be successfully challenged based on the fact that they process described is not new. Since these patents can be successfully challenged, they pose no long term threat to the industry (provided someone challenges them).

I agree that there are trivial software patents out there. There is no long term threat to the computer industry from the trivial patents since a process exists to challenge them. Three cheers for the programmers who've written truly new, unique and useful software and chose to protect the work with a patent. Good for you and I hope you continue to profit from your hard work.

I look forward to your reply on this post but I think I've said my peace. Thank you for the discussion.

I think we'll have to agree to disagree

Glyn Moody's picture

Your arguments are essentially based on what the law and courts have said so far (and more particularly what US laws and courts have have said, which is very different from European law and courts as far as software patents are concerned). I am arguing from a more philosophical viewpoint about what the law *should* say, based on our best knowledge - for example, Knuth's, who is widely acknowledged as knowing far more about algorithms than any lawyer or legislator.

Basically, I'm with Marx on this one: "philosophers have only interpreted the world, in various ways; the point however is to change it".

And as for reposting my words, you're welcome to do so: in my main blog I use a CC licence which encourages this. All I require is attribution. As you can see, I'm not so much interested in what traditional copyright law says, as changing it....

To claim that there are such

Anonymous's picture

To claim that there are such things as "non-physical items" is deceptive at the very least and blatant lie at its most.

non-physical items

Nedd Ludd's picture

Physical items have mass

What is the mass of a performance of Hamlet?
What is the mass of a the song "Who let the Dogs Out"?
What is the mass of the General Electric Logo?
What is the mass of galvanization?
What is the mass of the geodesic structure?

The things listed above don't have mass so they are not physical.
The term non-physical applies well to things that are not physical.
It is ignorant to claim that non-physical items don't exist.

Informational monopolies?

Anonymous's picture

I don't like the term 'intellectual monopoly' either, having met people that most eagerly bandy "intellectual property" around and make it their business. For those folks, 'intellectual' is an undeserved compliment.

The trouble is...

Glyn Moody's picture

...that's a double jump from "intellectual property": it'll be hard enough getting people to use "intellectual monopolies". But if we ever do, we could move on to "informational monopolies" afterwards....

Intellectual property is a purposely deceitful term...

Don Ritchey's picture

The problem is my view is that the term "intellectual property" has been conflated with "real property" to increase the perceived value of the objects protected.

If I am the owner of the house at the northeast corner of 1st Street and Maple Avenue, then there is only one house and one lot at the location. There cannot be two copies of it and for someone else to use fruits of the property (for example, apples from my tree), they must necessarily trespass on my property to get them.

If I "own" the copyright to a book on "Legal Rights for Homeowners", then the value of my copyright is only valuable if someone wants to read the book or use it for a reference. If a student makes copies of pages 56 though 62 of my book to use in an essay, then the value of the book is not diminished, and may even be enhanced if someone reading the essay decides to go out and buy the book.

The Intellectual Property establishment (the publishers, the lawyers, the infrastructure that supports the "idea" of there being intellectual property at all) is very much in favor of perpetuating the fiction that the ownership of ideas and creative expression should be perpetual. The Walt Disney Company has made many fortunes from mining the public domain for story ideas, but resists the obligation to fertilize the commons for the next generation of artists by permitting the copyrights to naturally expire (thus the Mickey Mouse Copyright Extension Act of 1998).

The music and movie industries are being disingenuous in their claims of "piracy", since the main piracy going on in America at present is the hijacking of musical talents of musicians for the enrichment of the major record labels and the hoarding of the internet fortunes made by the entertainment producers, denying the writers a share of the loot (thus the writer's strike).

Absolutely...

Glyn Moody's picture

...which is why I'm proposing something else closer to the facts of the situation.

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