INTELLECTUAL PROPERTY LAW

Intellectual Property Law

Intellectual Property Law

In general, when a person receives a patent for intellectual property, he or she has invented something. The patent gives the inventor the right to exclude other people from making, using, selling, or importing the product. Patent infringement occurs when a person, other than the patent holder, makes, uses, sells, or imports the product without permission from the patent holder. For instance, suppose that Jane Smith has received a patent for inventing a certain kind of hearing aid. If John Doe starts to manufacture the same hearing aid, without Jane's permission, he would be committing intellectual property theft.

Copyrights are commonly given to authors of original works, regardless of whether those works are published. Items commonly copyrighted include television shows, music, and movies as well as books, magazines, and websites. In a copyright intellectual property infringement case, the copyright owner may sue another party for violating the owner's exclusive rights to the copyrighted work. For example, if a person illegally downloads songs from a website, she is guilty of copyright infringement. (Ali 2002 73-81)

But both Denny and Sam - and, along with them, virtually every writer who's tackled this point in the public sphere so far - put the cart before the horse here. They think that we need to start by thinking about whether the making of unauthorized copies of art is theft; once we've settled that question, we can decide whether or not online piracy violates the rights of holders of property rights. Thus, using ever more extravagant metaphors, they endlessly agonize about the supposedly complex concept of theft. “Is an illegal download more like stealing a Mercedes or more like Jesus multiplying fish?”, they ask.

But this is confused. The concept of theft is much simpler than they realize: it is the act of infringing on another's property rights. We therefore need to start with an entirely different question, to wit, “what property rights do we have reason to grant producers of artworks in our society?” Once we have settled that prior question, the supposed mystery about theft and intellectual property implodes: (immoral) theft of intellectual property is any infringement on another's (just) property rights. (Blessing 2004 13-25)

This brings us to our second question. In our legal tradition, we don't think of property rights as rigidly encompassing the exact same rights and duties in every circumstance. Rather, the famous metaphor used in first-year law classes is of property rights as a bundle of sticks: a property holder does not hold all sticks in all circumstances. It is up to the legislator, taking account of considerations including economic efficiency and the public's interest, to decide what kinds of sticks holders of a particular kind of property should be assigned in particular circumstances. So if we want to decide whether holders of intellectual property should be assigned the right to stop others from making electronic copies of their work, we first need to determine what would happen if we didn't assign them this particular ...