[Air-l] ethics - aol data

[burkx006 at umn.edu]

On Aug 29 2006, Jim Porter wrote:

>
>> But that's an odd conception of "owned," isn't it? I still own my horse,
>> even after it gets out of the barn, because I hold a property interest in
>> it.
>
>But horses are not intellectual property. They are material/physical
>property, subject to different property rules. 

Well, no, not in the sense we are talking about. You are entirely right 
that one has to be careful about analogy (see for example, Dan L. Burk, 
Legal Consequences of the Cyberspatial Metaphor in INTERNET RESEARCH ANNUAL 
VOL. 1: SELECTED PAPERS FROM THE ASSOCIATION OF INTERNET RESEARCHERS 
CONFRENCES 2000-2002 17 (Mia Consalvo et al., eds., 2003).)

But "property" is generally understood as the right to exclude, and is a 
right good against the world. Chattels and copyrights share that 
characteristic.

>Or at least I thought so. So
>I want to raise a question about this analogy, an analogy that I see RIAA
>and other copyright maximalists advancing (or, more frequently, assuming):
>i.e., the effort to elide the difference between physical property and
>intellectual property. I'm not really advancing a claim here so much as
>raising a question. I'm curious about the implications of this analogy and
>would appreciate some elaboration on it. 

You raise an excellent point if we are talking about whether intellectual 
property SHOULD be treated under a property regime -- given that the 
subject matter of copyright and related systems has, unlike a horse, the 
characteristics of a public good, it may be that creating artificial 
scarcity via a property regime is a bad idea. The elision you point out 
usually appears in the rhetoric of "theft" regarding movies and music -- I 
can't "steal" music in the sense that someone "steals" a horse, since in 
one case posession of the item is a zero-sum proposition -- either I have 
the horse or you do -- and in the other we can both possess the item 
simultaneously.

I can't "steal" movies or music in the zero-sum sense, but can instead 
*infringe* copyright in movies or music, meaning I have violated the legal 
right of exclusion that is intended to place the copyright owner in the 
position that materiality places the owner of the horse.


-- 
Dan L. Burk
Oppenheimer, Wolff & Donnelly Professor
University of Minnesota Law School
229 19th Avenue South
Minneapolis, MN  55455
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