Intellectual property law adds the force of the state to concepts/ideas/media/etc that originated by the sweat of my brow, to encourage the creation of more, and to enable me to make a living from it.
Except that little pesky thing called the constitution doesn't call it intellectual property (rightly so), and the purpose is not to enable making a living from ideas (which doesn't follow; just because someone has a copyright or patent, doesn't mean they'll make a living from those ideas, and not having a copyright or patent doesn't preclude them from making a living off their ideas). The wording is pretty explicit: "to advance science and the useful arts."
You are actually incorrect here as far as the US goes.
Article I, Section 8, Clause 8 of the US constitution states:
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
The whole constitutional purpose of IP law is to spur creative activity. The interests of the creator are only a means to this end. This has, unfortunately, been perverted by regulatory capture.
Intellectual property law adds the force of the state to concepts/ideas/media/etc that originated by the sweat of my brow
Actually, in many countries, including the US, "seat of the brow" is explicitly excluded as a doctrine w.r.t. copyright and patents.
See Feist Publications, Inc., v. Rural Telephone Service Co., where the SCOTUS specifically refers the clarification given by Congress that the fundamental criteria for protection are originality and fixation in tangible form, and sweat of the brow is excluded.
> How else does copyright or patents or any "Intellectual Property" romote progress in science and the useful arts other than by giving creators a limited monopoly in exchange for disclosing the invention or idea or creative work?
The theory is that, by allowing them to profit by sale of the creation, it encourages creation -- particularly creation of things that are unique and suitable for sale (which is, again in theory, a proxy for "useful"), thereby, without or without separate "disclosure" of the form present in patents, promotes progress in science and the useful arts.
The idea that attaching that making something property that someone can profit from (whether for a limited time or not) was a means of promoting development of that class of thing was fairly prominent at the time the Constitution was written, and extremely influential on the understanding of all kinds of property (not just "intellectual property") rights and their purpose in society around the time the Constitution was being written. (Its even more central in modern libertarian thought.)
Note that I think that disclosure is important, and that for IP the restriction to limited terms (and actual, real, substantive limits, such as the Congress seems to have abandoned for copyrights) are practically important for best promoting progress in science and the useful arts -- increasing the scope of the public domain is, I believe, in practice very important to achieving the Constitutional purpose of IP. But increasing the public domain is itself not the explicit Constitutional purpose, its just an important means to that purpose.
In the US, IP law flows from this line of the Constitution:
> [Congress shall have power] to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Are laws like this really helping promote the progress of science and useful arts? Because it sure does seem like it's doing the opposite.
All "property" is imaginary. Having physical things without the backing of the law is just possession. We create a legal notion of property for the benefit of society. Property law adds the force to the state to my possessions, to stop someone beating me on the head and taking them. Intellectual property law adds the force of the state to concepts/ideas/media/etc that originated by the sweat of my brow, to encourage the creation of more, and to enable me to make a living from it.
We can argue to what extent this force is necessary, but to claim that intellectual endeavours are just "imaginary" is to do a huge disservice to millions of people who pour their lives into the creation of new and exciting things.
You and I read the constitution very differently if you think it explicitly forbids copyrights.
I wonder how carefully you're reading. I've cited the copyright clause several times and even paraphrased it. It does not "forbid" copyright. It creates it as a limited monopoly on a creative work.
the Constitution expressly promotes the idea of intellectual property
That's a big leap. It says, in short, that since they think that advancement of the sciences and arts is important, they will allow authors and inventors a limited monopoly on their work, in order to motivate them. Nothing there implies the creation of a pretend property, not does it promote such an idea. And if you read Jefferson, who wrote extensively on the subject, you'll see that he was completely against the idea of "property" consisting of ideas. Paraphrasing him from one of his letters: how can a man own something in another man's mind?
The U.S. constitution makes it quite clear that intellectual property exists for the benefit of citizens, to promote the advancement of useful knowledge and discoveries.
Stephan Kinsella's talk "Intellectual Nonsense: Fallacious Arguments for IP", is a must watch. There's no reason to have IP law and in fact there is actually good reason to believe they stand on shaky legal ground.
One of the arguments he brings up is that the Constitution specifically says "To promote the Progress of Science and useful Arts". It can be argued that IP law does not do this. In fact it does the opposite. As soon as you have a patent or copyright on something you are incentivized to not promote the progress of science and arts, at least not until your monopoly terms expire (which is never, with the copyright extensions).
Property, in the legal sense of the word, refers not to a particular scarce resource, but rather to a state-acknowledged bundle of exclusive rights that an individual may be recognized to hold over said resource. State acknowledgement of real and personal property, <b>combined with the rule of law</b>, are the basis of the stability of, and therefore prosperity of, the so-called 'first world'. Trying to extend these metaphors to intellectual property, to build fences around knowledge, without seriously rethinking the fundamental differences between ideas and manifest things, quickly generates absurdity. Should every teacher that I've ever had be entitled to some portion of the value that I am able to create applying the ideas that they have imparted to me? Did they create those ideas in the first place?
I believe people should be able to make a living from their work. That said, copyright is not an incorruptible shield-maiden descended from the heavens to defend creators. Copyright, among other things, makes legal interest portable. This has many upsides for the clever and the brave, but it also allows the naive and unwary to be fleeced, as the depressing nursing homes full of dirt-poor hit song writers could attest.
> The purpose of copyright and patent law in the US (as stated by the Constitution) is to promote the progress of the arts and sciences by granting a temporary limited monopoly to creators.
Just because that's what the constitution says, doesn't mean that that's the real purpose.
Allowing an artist to control their own art for justice/purity/authenticity reasons is not the spirit of the law. The stated purpose of IP law is to incentivize useful things. Calvin & Hobbes is an example of the law being used contrary to its intended purpose.
> “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
The United States government employs more knowledge workers than all other companies (see NIH, DoD, CDC, NASA, NOAA, NWS, et cetera). Everything they produce is public domain, by law. And yet, the people producing these information products still get paid!
We don't need (c)opywrong laws. We don't need Intellectual Slavery laws. We still have cotton even after the 13th Amendment (we actually have more and better cotton now), and we will still have creative works after the passing of the Intellectual Freedom Amendment (we actually will have more and better creative works) - https://breckyunits.com/the-intellectual-freedom-amendment.h....
Missed the edit window, but thinking about this more:
> Keeping in mind commercial success of a work, author or company is not why copyright exists.
Lets take a look at the clause again:
> To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
Lets go ahead and skip over the fact you're consistently ignoring "useful arts" part as well and keep going.
What exclusive rights do you think they're talking about here? Do you really think they didn't mean the economic rights related to their writings and discoveries? How do you imagine this would "promote" the sciences if not by allowing the creators to share their works and ideas while still retaining economic benefits of their labor?
Reading between the lines, the whole point of IP is to help protect the potential commercial success of sharing your ideas. It doesn't guarantee the idea will actually be a commercial success, but it does give them the exclusive right to the commercial success for a limited time.
There is no monolithic "intellectual property", it's an catch-all, umbrella term that refers to a large body of independent laws on copyright, patent, trademark, and trade secrets, which are historically established under different contexts. A work can be uncopyrigtable, but still restricted from reproduction due to a patent or trade secret status. It's why the term "intellectual property" should be avoided.
> Why couldn't the actual design of a PCB be copyrighted, for instance? I mean, one could argue that there's as much intellectual property being created when you route a PCB than when you write a book.
The bottom line is, just because something takes intellectual efforts to create doesn't imply it must have copyright status.
Copyright is an artificial monopoly constructed by the governments. Usually, the scope of copyright laws is limited to the expression of creative and artistic works, and furthermore, not the ideas or systems themselves, but merely their expressions. Many types of "functional" works are explicitly not covered under the copyright law. Also, it's also important to remember that the ultimate purpose of copyright law is to promote public interest. Thus it's entirely reasonable that the government deliberately decides not to put something under the copyright laws if the public interest takes priority. It's equally possible that the government suddenly wants to put something under the copyright laws because it considers the public interest is better served by granting copyright restrictions to the authors.
A controversial example is the French copyright law. The lawmakers in France apparently decided that the public interest is better served by putting the nightview physical appearance of the Eiffel Tower under the copyright law. In France, if you take a photo of Eiffel Tower at night and post it to the Internet, it's possible that your photo infringes the copyright of the nightview design of the Eiffel Tower. [0]
A better example under the U.S. copyright laws is rasterized fonts in bitmaps and pixmaps, they are not copyrightable, because the fonts are "functional" - it's more of an apparatus/machine for printing texts than a work of art. In the past 200 years, the copyright was never updated to include fonts, likely due to the concern that the lawmakers consider that the rights to the public to use the printing press outweighs the interest of the font authors. However, a digital font, a.k.a the computer program that generates vectorized fonts, is copyrightable as a computer program, but not the pixels it generates. [1]
Another example: a few weeks ago there was a news story about how a volunteer recreated and 3D-printed a ventilator valve and got threatened by the vendor. But if the case is ever brought to a court of law (it's not), the defendant's lawyers may argue that a single physical valve mainly serves as a functional part of the machinery, and by itself, it does not meet the threshold of being a copyrightable work by itself. On the other hand, the original CAD drawing of such a valve is protected under copyright. However, it doesn't stop someone from legally reverse engineering the valve and independently reproducing its CAD drawing, even if the CAD drawing is identical to the original file, you can argue in court that an identical drawing is the only way to express the idea of the valve. Unless the valve has a patent. Unlike copyright, a patent restrict the ideas themselves, not only its expression.
And finally we come back to electronics design. Most aspects of hardware design are not copyrightable, due to the same reason that the layout of integrated circuit wasn't really copyrightable until the 1980s. Back the 1970s, it was possible to produce a chip with the same layout from your competitor. The reason is similar to the font program vs font output: Although the pattern of the layout itself is a piece of artwork thus protected, however, the photomask it produced was generally not copyrightable because it's only an industrial apparatus for producing the chip. Thus, although the artwork layout in itself cannot be copies and redistributed without authorization, but it was legal to produce an identical mask for the chip, thus, it was legal to produce a chip with the same layout straights from your competitor. The only way to prevent others from making an identical chip was patenting the design processes or technology in the chip, however, many chips only use general-purpose technology and process, so it cannot be patented. The lawmakers decided that the U.S. public interest will be better served by allowing the masks to be copyrightable, so the copyright law was modified. [3]
As we see, although many aspects of hardware design can be copyrighted, like a CAD drawing or its physical appearance (as industrial design), however, a lot of other aspects of hardware design was, and still is uncopyrightable due to the same line of reasoning. Ultimately, stopping one from making a functionally identical machinery isn't inside the scope of copyright laws, but patent laws.
Another conclusion is that, while it's good to explicitly release a hardware design under a FOSS license, a FOSS license applied to hardware design is pretty powerless than when it's applied to software. Especially, copylefting hardware itself (You replicated our machines, release the source too) is somewhat impossible.
I don't know. Every legal concept is entirely the government's creation, including both physical and intellectual property, so I'm not sure it's worth quibbling about that part.
Intellectual Property is marketed as encouragement for more creation. At this point, its primary purpose is rent-seeking, like most old institutions, I guess.
You and I read the constitution very differently if you think it explicitly forbids copyrights. According to Wikipedia "the Intellectual Property Clause and the Progress Clause, empowers the United States Congress: 'To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.'" Regardless of what Jefferson may have thought, that's a pretty explicit promotion of the idea of intellectual property (with a vague notion of how long they should last for).
In fact this is exactly what I mean by no logical and coherent argument. A 12 year old could read that and tell you that the Constitution expressly promotes the idea of intellectual property, and gives Congress control over the details. He could also Google for some Supreme Court cases, such as Eldred v Ashcroft, that have upheld it's constitutionality. I'm assuming you're not unintelligent, which means the only way you could come up with "There is no provision in the constitution for the treatment of ideas as property, and the guys who wrote it explicitly disdained that idea." is if you either never actually read the very clause you cited, or if you simply saw what you wanted to see.
Also it's troll as in an internet troll. It had a negative connotation before it was applied in this context. Whatever the derivation, it's clearly derogatory and an ad hominem.
Writers don't write because they love the idea of selling paper. As one I can tell you I'm we're mostly OK with digital distribution. See the Author's Guild's controversial settlement with Google for evidence. But that doesn't mean we want other people able to sell or distribute our work without our permission or compensation. It's not about the media and it never was, media was just a necessary evil.
Except that little pesky thing called the constitution doesn't call it intellectual property (rightly so), and the purpose is not to enable making a living from ideas (which doesn't follow; just because someone has a copyright or patent, doesn't mean they'll make a living from those ideas, and not having a copyright or patent doesn't preclude them from making a living off their ideas). The wording is pretty explicit: "to advance science and the useful arts."
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