The ethical case against ip.ppt

13-04-23

Challenge the future

DelftUniversity ofTechnology

The Ethical case against IPDavid Koepsell, JD/PhD,

Asst. Prof., Delft Univ. of Technology, NL, Philosophy Department, TPM Faculty

2The Ethical Case Against Intellectual Property

Axiom 1We have fundamental rights to

autonomy of our minds and bodies


Axiom 2We have fundamental rights to

freedom of expression (consistent with Mill’s “liberty principle”)


Premise 1All man-made objects intentionally

produced are “expressions” and these are the only subjects of IP laws


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)



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.



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)


Premise 2Rights of ownership stem from

brute facts of possession and laws are “just” when grounded in brute facts


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)



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.



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.”


Premise 3There are parts of the world that

cannot be justly owned


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



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).



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).



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)



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)



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.”



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.



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)



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.


Premise 4IP rights are exclusionary rights

that prevent the unauthorized expression of protected idea types.


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.



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.



Expressed ideas belong to the category “commons by necessity,” as there is no meaningful way of possessing or enclosing them.



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.



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.



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.


exampleTake, for instance, the lack of an

“independent discovery” exception in patent law


Thanks!

http://www.davidkoepsell.com

The ethical case against ip.ppt

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