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Justifying IP

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David Lametti

on 29 November 2011

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Transcript of Justifying IP

Justifying Intellectual Property
Why Justify?
"essentially controversial"
by definition, inquality
by definition, confers powers, creates duties
by definition, creates have and have-nots
How does it play out?
How can we Justify?
hence we need to justify and re-justify, continually
ultimately a contextual phenomenon
use political and ethical philosophy
Arguments from the individual

"natural rights"
Arguments from the larger group

"teleological" or "consequentialist"
actions
qualities
moral actions
moral utilitarians
"Tully's Locke"
"Protestant Locke"
Carol Rose

"you always need mom"
Bentham
Aristotle
Aquinas
Efficiency
"The Tragedy of the Commons"
but collective actions? (Ostrom)
gathering
collecting
cutting turfs
farming
adding value
improving
mixing
finite stock?
Lockean provisos:
no spoils
'Nuf and as good
John Stuart Mill's view: "creation without wrong"
Personhood? Radin
German Romantic philosophy
GWF Hegel's Philosophy of Right
Pluralistic Justifications
context dependent
Limits
ownership is limited
Locke
and there are alternatives:

common property, public domains
Utility
§ 41

A person must translate his freedom into an external sphere
in order to exist as Idea. Personality is the first, still wholly
abstract, determination of the absolute and infinite will, and
therefore this sphere distinct from the person, the sphere
capable of embodying his freedom, is likewise determined
as what is immediately different and separable from him.
§ 44

A person has as his substantive end the right of putting
his will into any and every thing and thereby making it
his, because it has no such end in itself and derives its
destiny and soul from his will. This is the absolute right
of appropriation which man has over all 'things'.
public domain versus IPR
Self-expression: Charles Taylor's Hegel
ultimately affects how you understand (c) (or IP, or property)
public domain
scope of copyright
fair use/dealing
three-step test
DRM, TPM
starting points
authorship
creativity
parody
technology accentuates these starting points
http://www.vggallery.com/painting/f_0668.jpg
although, copying has always been with us
(c): does this give us a "property" right?
If so, how absolute?

Wendy Gordon: limited by Locke himself
goal?
More works? Better works?
Creativity? Knowledge?



Statute of Anne; US Constitution
Role of Public Domain
Individualistic?
Side note:
IP ownership is limited
time

scope
(c) : life + 50/70
user rights?
a third way?
Virtue Ethics

action-focused
The Good, good actions
friendship
sharing
knowledge (education)
nature of "copying"
Moral rights in (c)...
But "property"-like rights??
IP? expressions, not ideas...
applied science, not science...


Create without wronging?
Still the public domain: is it diminshed?
how should we act regarding:
music
videogames
academic books
books
how should copyright holders act:
fair use
DRM, TPMs
transformative uses
UGC
C-11? TPMs vs User Rights/FD
look to:
formal norms
informal norms
ethical rules
context
practical wisdom
Tragedy of the
Anti-commons
too much fragmentation
of ownership rights leads
to an impasse
"Patent thicket"

Music samples
Full transcript