23-4-2014
Challenge the future
Delft
University of
Technology
The Ethical case against IP
David Koepsell, JD/PhD,
Asst. Pr...
2The Ethical Case Against Intellectual Property
Axiom 1
We have fundamental rights to
autonomy of our minds and
bodies
3The Ethical Case Against Intellectual Property
Axiom 2
We have fundamental rights to
freedom of expression
(consistent wi...
4The Ethical Case Against Intellectual Property
Premise 1
All man-made objects intentionally
produced are “expressions” an...
5The Ethical Case Against Intellectual Property
The Ontology of Cyberspace
Cyberspace presented a unique problem:
two prev...
6The Ethical Case Against Intellectual Property
The Ontology of Cyberspace
Cyberspace is not ontologically
unique. The onl...
7The Ethical Case Against Intellectual Property
The Ontology of Cyberspace
The flexibility of the medium of cyberspatial o...
8The Ethical Case Against Intellectual Property
Premise 2
Rights of ownership stem from brute
facts of possession and laws...
9The Ethical Case Against Intellectual Property
Property vs. “Intellectual Property”
Rights to land and moveables stem fro...
10The Ethical Case Against Intellectual Property
Property vs. “Intellectual Property”
There is no way to exclusively posse...
11The Ethical Case Against Intellectual Property
Property vs. “Intellectual Property”
Just laws are grounded in brute fact...
12The Ethical Case Against Intellectual Property
Premise 3
There are parts of the world that
cannot be justly owned
13The Ethical Case Against Intellectual Property
Who Owns You? : genomes and
commons
If IP law is a creature of the positi...
14The Ethical Case Against Intellectual Property
Who Owns You? : genomes and
commons
A gene is the arrangement of nucleoti...
15The Ethical Case Against Intellectual Property
Who Owns You? : genomes and
commons
A patent on cDNA, I argue, is not dif...
16The Ethical Case Against Intellectual Property
Who Owns You? : genomes and
commons
There are two types of commons: “comm...
17The Ethical Case Against Intellectual Property
Who Owns You? : genomes and
commons
Commons by necessity are parts of the...
18The Ethical Case Against Intellectual Property
Who Owns You? : genomes and
commons
The human genome is a constantly evol...
19The Ethical Case Against Intellectual Property
Who Owns You? : genomes and
commons
Discovering the nature of “commons by...
20The Ethical Case Against Intellectual Property
Who Owns You? : genomes and
commons
Myriad, for instance, when it uses it...
21The Ethical Case Against Intellectual Property
Who Owns You? : genomes and
commons
I argue that it is our right in commo...
22The Ethical Case Against Intellectual Property
Premise 4
IP rights are exclusionary rights that
prevent the unauthorized...
23The Ethical Case Against Intellectual Property
IP and expressions revisited
While an author or inventor “owns” their IP,...
24The Ethical Case Against Intellectual Property
IP and expressions revisited
The law allows many types of restrictions on...
25The Ethical Case Against Intellectual Property
IP and expressions revisited
Expressed ideas belong to the category “comm...
26The Ethical Case Against Intellectual Property
IP and expressions revisited
Besides the ethical problems of governmental...
27The Ethical Case Against Intellectual Property
IP and expressions revisited
IP laws in general do what gene patents do: ...
28The Ethical Case Against Intellectual Property
IP and expressions revisited
Expressed ideas are like genes… it isn’t so ...
29The Ethical Case Against Intellectual Property
example
Take, for instance, the lack of an
“independent discovery”
except...
30The Ethical Case Against Intellectual Property
Thanks!
http://www.davidkoepsell.com
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The ethical case against ip.ppt

  1. 1. 23-4-2014 Challenge the future Delft University of Technology The Ethical case against IP David Koepsell, JD/PhD, Asst. Prof., Delft Univ. of Technology, NL, Philosophy Department, TPM Faculty
  2. 2. 2The Ethical Case Against Intellectual Property Axiom 1 We have fundamental rights to autonomy of our minds and bodies
  3. 3. 3The Ethical Case Against Intellectual Property Axiom 2 We have fundamental rights to freedom of expression (consistent with Mill’s “liberty principle”)
  4. 4. 4The Ethical Case Against Intellectual Property Premise 1 All man-made objects intentionally produced are “expressions” and these are the only subjects of IP laws
  5. 5. 5The Ethical Case Against Intellectual Property The Ontology of Cyberspace Cyberspace presented a unique problem: two previously mutually-exclusive categories were both applied to its objects This implied either: a) cyberspace is a unique “hybrid” object, or b) the categories of patent and copyright have been incorrectly drawn Open Court (2000)
  6. 6. 6The Ethical Case Against Intellectual Property The Ontology of Cyberspace Cyberspace is not ontologically unique. The only thing distinguishing its objects from Jacquard looms, steam engines, the telegraph, and smoke signals is speed. The differences are of degree, not kind.
  7. 7. 7The Ethical Case Against Intellectual Property The Ontology of Cyberspace The flexibility of the medium of cyberspatial objects revealed the faulty ontology of Intellectual property, which distinguishes between types of expressions (ideas made manifest outside of minds) that are either: Primarily utilitarian or primarily aesthetic (patents) (copyrights)
  8. 8. 8The Ethical Case Against Intellectual Property Premise 2 Rights of ownership stem from brute facts of possession and laws are “just” when grounded in brute facts
  9. 9. 9The Ethical Case Against Intellectual Property Property vs. “Intellectual Property” Rights to land and moveables stem from pre-legal “brute facts.” Actual possession and indicia of possession give rise to just claims of legal ownership. Exclusivity and the necessity of force or violence for dispossession make claims of legal ownership “grounded” (see Ontology of Cyberspace, and Reinach’s Apriori Foundations of the Civil Law)
  10. 10. 10The Ethical Case Against Intellectual Property Property vs. “Intellectual Property” There is no way to exclusively possess an expression type (as opposed to token), nor does dispossession (reproduction of the type) of an expression type once expressed require force or violence. Nor does it impinge upon individual autonomy to do so. Unlike land and moveables, intellectual property laws are not “grounded” in any brute facts of possession.
  11. 11. 11The Ethical Case Against Intellectual Property Property vs. “Intellectual Property” Just laws are grounded in brute facts. The positive law may be unjust if it conflicts with “grounded” laws. E.g., if laws were passed to make private property unlawful, those laws would be unjust. (see Ontology of Cyberspace, and Reinach) Intellectual property is a pragmatic response to a perceived economic need. It is not a “natural right” nor is it “grounded.”
  12. 12. 12The Ethical Case Against Intellectual Property Premise 3 There are parts of the world that cannot be justly owned
  13. 13. 13The Ethical Case Against Intellectual Property Who Owns You? : genomes and commons If IP law is a creature of the positive law, ungrounded in brute facts, it may be unjust where it conflicts with “grounded” rights. A critical inquiry is: are there parts of the world for which the granting of IP rights conflicts with other, grounded rights? Example: genomes
  14. 14. 14The Ethical Case Against Intellectual Property Who Owns You? : genomes and commons A gene is the arrangement of nucleotides that codes for a protein. Its action involves the creation of proteins by mRNA, which as it creates the proteins, reads the beginning and end of the gene, and leaves out the introns. This is the same mechanism employed by humans when we make intentionally create cDNA (and then try to patent it).
  15. 15. 15The Ethical Case Against Intellectual Property Who Owns You? : genomes and commons A patent on cDNA, I argue, is not different than the patent on the gene itself as there is nothing new about the cDNA. Nature devised long ago the methods of reading genes and making proteins. cDNA is thus not novel and not properly patentable. (ultimately, though, my “commons” argument trumps this).
  16. 16. 16The Ethical Case Against Intellectual Property Who Owns You? : genomes and commons There are two types of commons: “commons by choice” and “commons by necessity” Commons by choice involve parts of the world that could be possessed, but for which we make conscious decisions to keep them in the public domain. (e.g national parks, international waters) (Who Owns You, ch. 7)
  17. 17. 17The Ethical Case Against Intellectual Property Who Owns You? : genomes and commons Commons by necessity are parts of the world that cannot be possessed or enclosed in any meaningful sense. Examples include: all of the oxygen in the atmosphere, bands of the radio spectrum, laws of nature (f=ma, e=mc^2, etc.) (Who Owns You, ch. 7)
  18. 18. 18The Ethical Case Against Intellectual Property Who Owns You? : genomes and commons The human genome is a constantly evolving object that involves every member of the species, and is, I argue, a commons by necessity, like outer space, the atmosphere, sunlight, laws of nature, and radio spectra. We have rights in common to these objects. These common rights supercede conscious decisions about how to use them. Note this is not a pragmatic argument, but an ontological one regarding the nature of the underlying objects. It differs significantly from arguments regarding “anti- commons.”
  19. 19. 19The Ethical Case Against Intellectual Property Who Owns You? : genomes and commons Discovering the nature of “commons by necessity” like a genome, replicating their processes, and using them to our personal benefit cannot ethically be done to the exclusion of others. Granting exclusionary rights to discoverers of genes that are part of that genome interferes with our common rights as beneficiaries and possessors of parts of the human genome.
  20. 20. 20The Ethical Case Against Intellectual Property Who Owns You? : genomes and commons Myriad, for instance, when it uses its patent on the BRCA1 and 2 genes that are linked to breast cancer, prohibits meanwhile the replication by others of the genes themselves. It has sent cease and desist letters to scientists who were doing lab work on those genes. (see complaint in ACLU and PubPat v. Myriad)
  21. 21. 21The Ethical Case Against Intellectual Property Who Owns You? : genomes and commons I argue that it is our right in common to explore and investigate our individual genomes, as well as the human genome, unhindered by claims of others. What Myriad "owns" through its patents is a right to stop you from doing that, and they have exercised that right to our common detriment.
  22. 22. 22The Ethical Case Against Intellectual Property Premise 4 IP rights are exclusionary rights that prevent the unauthorized expression of protected idea types.
  23. 23. 23The Ethical Case Against Intellectual Property IP and expressions revisited While an author or inventor “owns” their IP, they can exclude others from making unauthorized reproductions of their expressions. They can receive royalties for any reproduction made. They can enjoin the expression by others of their protected idea types.
  24. 24. 24The Ethical Case Against Intellectual Property IP and expressions revisited The law allows many types of restrictions on expression, typically to prevent physical harms or incitement of physical harms. IP laws are government restrictions on expression having nothing to do with physical harms or incitement.
  25. 25. 25The Ethical Case Against Intellectual Property IP and expressions revisited Expressed ideas belong to the category “commons by necessity,” as there is no meaningful way of possessing or enclosing them.
  26. 26. 26The Ethical Case Against Intellectual Property IP and expressions revisited Besides the ethical problems of governmentally curtailing free expression, IP as a category of law is an attempt to enclose a “commons by necessity.” IP rights prevent the free use of expressed ideas, which are a commons by necessity like radio spectra, genes, and laws of nature.
  27. 27. 27The Ethical Case Against Intellectual Property IP and expressions revisited IP laws in general do what gene patents do: they attempt to enclose an unencloseable space that is not just a commons by choice, but one by necessity. Positive laws may be unjust where they impinge on “grounded” rights. Our shared rights to commons by necessity are grounded in the brute facts of their unencloseability.
  28. 28. 28The Ethical Case Against Intellectual Property IP and expressions revisited Expressed ideas are like genes… it isn’t so much that “they want to be free” They just are. And attempts to enclose them are as morally wrong as attempts to enclose genes, sunlight, oxygen, or any other commons by necessity.
  29. 29. 29The Ethical Case Against Intellectual Property example Take, for instance, the lack of an “independent discovery” exception in patent law
  30. 30. 30The Ethical Case Against Intellectual Property Thanks! http://www.davidkoepsell.com

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