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Intellectual Property Rights in a Networked World: Theory and Practice by Richard A. Spinello, Herman T. Tavani (Information Science Publications, Idea Group Inc.) Exceptionally lucid and jargon-free introduction the main issues of intellectual property rights as they affect IT and internet communication and commerce. Intellectual Property Rights in a Networked World is a collection of recent essays offering fresh perspectives on the scope and future of intellectual property rights. The tripartite division of the book is designed to make this inter-disciplinary topic more accessible and intelligible to readers of diverse backgrounds. Part I consists of a single essay that provides a broad overview of the main themes in intellectual property scholarship, such as normative intellectual property theory and the legal infrastructure for property protection. The second section of the book presents several essays that are intended to deepen the reader's understanding of intellectual property theory and show how it can help us to grapple with the proper allocation of property rights in cyberspace. And the final section further develops the themes in Part II but in greater detail and with a more practical orientation. While intellectual property rights create dynamic incentive effects, they also entail social costs, and they are sometimes in tension with the development of a robust public domain.

Excerpt: The rapid development of the "knowledge economy" has temporarily stalled, but few doubt that it will soon be getting a second wind. This new economy, in which a company's major resources are its intellectual assets, has undoubtedly moved the topic of intellectual property into sharp focus for decades to come. The notion of intellectual property rights, opposed by many cyberspace libertarians, triggers many elusive questions about the extent and precise nature of those rights. For example, the digital music and movie revo­lution has swept across the Web, and yet many of the vexing issues raised in the Napster case remain unresolved.

Network and digital technologies also have the potential to usher in a new era of decentralized creativity and public discourse. These technologies have made it so much easier to accomplish the distribution of creative material. So why shouldn't we celebrate this new found freedom?

Some critics maintain that the traditional property rights system, which tends to "propertize" all forms of information, will interfere with the realization of this ideal. On the other hand, how can we protect the rights of artists and content providers to distribute their creations and receive appropriate payment without preserving traditional copyright law?

Of course, intellectual property issues are not confined to the sharing of digital music files. It is not surprising that access to digital information is be-coming a matter of great social and economic import. Poorer countries ac­cuse wealthy nations of "information imperialism," contending that they can-not overcome the digital divide unless intellectual property rights are loosened considerably. As a result, the battle rages over whether intellectual property should be given strong or weak protection or perhaps no protection at all in the digital realm of cyberspace.

Intellectual Property Rights in a Networked World seeks to provide some fresh perspectives on this theme by presenting diverse papers that cover both theoretical and practical concerns. This book is based primarily on papers that were delivered at the Sixth Annual Ethics and Technology Confer­ence that was held at Boston College in late June, 2003. These conferences, sponsored by a group of American Jesuit universities, date back to 1996 when the Internet's social challenges were just becoming apparent. At the 2003 conference, a joint effort organized by the Carroll School of Management and the Boston College Law School, information technology professionals, ethi­cists, and legal scholars from all over the world came together in order to grapple with some of the more thorny ethical problems that have great sa­lience for the knowledge economy.

There were sessions devoted to the seemingly esoteric theories of phi­losophers such as John Locke and G.W.F. Hegel. These theories have shaped the debate about the moral primacy of property rights, and the writings of these thinkers can still be mined for valuable insights. Thus, included in Section II of this volume are papers that consider the relevance of Locke's phi­losophy as a grounding for intellectual property rights. Also included is a theoretical discussion of the problems inherent in distinguishing an idea from its expression, which relies on the ontological distinction between universals and particulars. That dichotomy is a crucial but unsettled element in modern copyright law, and the confusion is reflected in the philosophical debate over this matter that dates back to Plato.

In addition, more pragmatic issues were hotly debated at the confer­ence. These issues included the scope of trademark rights over domain names used in cyberspace, the development and control of digital media, trespass in cyberspace, the ethical acceptability of copying software for one's friends, appropriate policies for webcasting technology, and the role of policy makers in promoting the use of open source software. Many of these topics are discussed in the papers included in Section III.

Finally, to round out the collection, this book opens with a comprehen­sive introduction that enunciates the fundamental issues underlying the evolu­tion of intellectual property protection in cyberspace. This essay has been written by the two editors, Richard A. Spinello and Herman T. Tavani, and it will be an invaluable resource for every reader. It carefully considers the traditions supporting intellectual property rights along with the perspectives of those who contest those rights. Postmodernist scholarship, for example, ques­tions concepts of authorship and originality, while some legal scholars point to the indeterminacy of traditional property theories. But Spinello and Tavani conclude that there is a case to be made for a regime of moderate intellectual property protection that spurs creativity and innovation without disrupting the integrity of the public domain.

If this is the reader's first plunge into these complex issues he or she may find that the waters are difficult to navigate. The introduction, however, should make the task of navigation much easier. Of course, all of the questions raised in the introduction and in the succeeding chapters deserve more debate and discussion. But the insights offered by each one of these authors are sure to be of great assistance to anyone daring enough to explore these uncharted waters. John J. Neuhauser, Academic Vice President & Dean of Faculties Boston College

…Despite the centrality of intellectual property issues in our networked society, ethicists and other scholars outside the legal commu­nity have not sufficiently given this topic the attention that it truly deserves. With that in mind, we have collected in this volume some recent essays that attempt to fill this void by offering some insights and perspectives on these controversial issues.

The tripartite division of the book is designed to make this material more accessible and intelligible to readers of diverse backgrounds. Section I con­sists of a single essay that provides a broad overview of the main themes in intellectual property scholarship, such as normative intellectual property theory and the legal infrastructure for property protection. This essay also includes a cursory review of the main legal disputes that have shaped the current debate about property in cyberspace. For the uninitiated, this chapter will be an indispensable guide for what is to follow.

Section II presents several essays that are intended to deepen the reader's understanding of intellectual property theory and show how it can help us to grapple with the proper allocation of property rights in cyberspace. Particular attention is paid to Locke's seminal theory of property, including the question of whether a property right can be construed as a natural right.

Section III further develops the themes in Section II but in greater detail and with a more practical orientation. For the most part, the essays in this section illustrate the costs and benefits of applying property rights to cyberspace. While intellectual property rights create dynamic incentive ef­fects, they also entail social costs, and they are sometimes in tension with the development of a robust public domain. The reader may find some redun­dancy between the introductory section and the subsequent chapters on Locke,

copyright protection, or the information commons in Section II and Section III. Repetition of key arguments, however, will allow the reader to keep clearly in view some important and basic perspectives about intellectual prop­erty theory and law.

Each of these chapters presents critical issues that jurists and business people must face in the New Economy. While there is no uniformity among the viewpoints expressed, each essay contributes a complementary perspec­tive on the intellectual property topics that have recently begun to dominate contemporary discussion of cyberethics and cyberlaw.

Chapter I, written by the book's two editors, comprises Section I of Intellectual Property Rights in a Networked World. It presents some foun­dational concepts and issues in intellectual property, and it reviews some of the normative justifications that have been advanced to defend the granting of property rights for intellectual objects. This sets the stage for some consider­ation of the philosophical case opposing intellectual property rights. That case is rejected in favor of a position for balanced property-rights frameworks that avoid the polar extremes of over- and under-protection. The chapter then reviews the four different kinds of protection schemes for intellectual property that have been provided by our legal system: copyright laws, patents, trade-marks, and trade secrets. Finally, recent litigation, including the Napster, Grokster, Microsoft, and DeCSS cases, are critically examined. Many of the issues and controversies introduced in this chapter are explored and analyzed in greater detail in the subsequent chapters of this book.

The three chapters that comprise Section II of the book — Chapters II through IV — examine philosophical theories that undergird the rationale for many of our current intellectual property laws. Chapters II and III examine aspects of John Locke's theory of property as a backdrop for analyzing con-temporary disputes involving ownership claims pertaining to intellectual ob­jects. In Chapter II, Kai Kimppa shows how a "liberalist view" of intellectual property rights involving software can be justified using arguments found in Locke's Second Treatise on Civil Government. Kimppa notes that Chap-ter V of Locke's Second Treatise, titled "Of Property," has traditionally been seen as the starting point of the liberalist argument for property, in both its material or immaterial forms. Kimppa argues that even though Locke promotes the need for ownership of property, Locke does so from the viewpoint of necessity. (Because of the nature of material or tangible objects, Locke realized that one cannot have something that already is possessed by another.) But Kimppa claims that Locke's thinking about property in this respect should not be taken for granted as we move to the world of immaterial or intellectual objects. Kimppa believes that at this level, other values, such as cooperation,

should be promoted, and he seeks to demonstrate that Locke would agree with this position through a careful exegesis of key passages in Chapter V of the Second Treatise. Kimppa points out, for example, that Locke "wants for a world in which there would be as much justice and good as possible" for everyone. Thus, Kimppa sees some of the goals espoused in the classic writ­ings of John Locke to be compatible with those advocated by Richard Stallman, founder of the Free Software Foundation and powerful advocate of open source software. Kimppa concludes that Locke's and Stallman's goals of greater cooperation regarding the development of intellectual objects (such as software) are goals worth pursuing.

In Chapter III, Michael Scanlan examines another aspect of Locke's theory of property. Like Kimppa, Scanlan focuses his attention on the pro-vocative fifth chapter of Locke's Second Treatise, and is especially concerned with the question: How can a right of ownership arise in previously unowned goods? He notes that many take Locke's theory, introduced in the 17th Cen­tury, to be applicable today in situations involving the original acquisition and ownership of intellectual property. Scanlan explains how a "quasi-Lockean theory" could support a "very limited natural right to a species of intellectual property." He also notes, however, that this theory by itself would not be strong enough to support a natural right in an intellectual property of the sort given by current copyright law. Scanlan concludes that such property rights must be provided as a result of positive law.

In Chapter IV, Thomas Powers analyzes the notion of intellectual prop­erty in general, and software copyright law in particular, via the classic philo­sophical debate known as the "problem of universals." At the heart of this problem is the ontological question: Are there universals, or classes of par­ticular objects, that exist in addition to the particular objects themselves? And if universals do exist, in what (ontological) sense can they be said to exist? Powers notes that a distinction in US copyright law, which is of particular importance to protecting software, is made between ideas (themselves) and their expressions. He also notes that the "idea vs. expression" distinction has been the focus of many copyright cases in the courts. This distinction has been especially apparent, Powers points out, in cases where there is an alleged infringement of non-literal parts of a computer program, such as "structure, sequence, organization, and look and feel." Powers argues that this legal distinction ultimately relies on the ontological distinction between universals and particulars. Because copyright law relies on this distinction — one that has proved to be problematic for philosophers for more than two millennia — Powers argues that the legal doctrine of copyright has inherited many of the conceptual confusions and "philosophical troubles" underlying the problem of

universals. He also argues that there are at least three plausible ways in which to construe the differences between universals and particulars, which in turn requires a closer examination of some arguments put forth on this topic by thinkers such as Plato, Aristotle, Locke, and (the later) Wittgenstein. Powers concludes that the unsettled nature of the philosophical debate about univer­sals serves as a good explanation of the "meandering of case law" in the area of copyright law.

Section III of Intellectual Property Rights in a Networked World be-gins with Chapter V by Ann Bartow, who explains how the "likelihood of confusion" criterion is the basis of successful trademark infringement actions in the US. She argues that determinations of this "likelihood" are much too subjective, and that they are also too often premised on a very low estimation of the intelligence of the typical consumer. Nevertheless, in the US, "likeli­hood of confusion" jurisprudence has gained a strong foothold in cyberspace. Consequently, trademark holders win in most cases, and the result has some-times been an especially broad set of property rights that prevail throughout the world.

Chapter VI, by Dan Burk, also focuses on cutting-edge legal issues. Professor Burk examines the relationship between hypermedia and feminist discourse. The essay takes a critical stance toward the role of copyright in suppressing such discourses. Given the salience of "non-hierarchical, asso­ciative webs to feminist discourse," digital media may be ideally suited to feminist modes of thinking. However, current copyright doctrine assumes that works should be more linear and more tightly controlled. According to Burk, copyright law is inimical to these nontraditional, collaborative works and to "relational user engagement." In the long run, this hostility will not further the promotion of creative discourse as the copyright law intends.

In Chapter VII, Herman Tavani critically examines current copyright pro­tection schemes that apply to digital information. Beginning with a brief ac-count of the way in which copyright law has evolved in the US, from its Anglo-American origins to the present, Tavani examines three traditional philosophi­cal theories of property that have been used to justify the granting of copyright protection. Arguing that each property theory is, in itself, inadequate, he next considers and rejects the view that intellectual property should not be pro­tected at all (and thus should be completely free). Tavani then critically ana­lyzes the notion of information, arguing that it should not be viewed as a commodity that deserves exclusive protection but rather as something that should be communicated and shared. Building on this view, he argues for a new presumptive principle for approaching the copyright debate — namely, the principle that information wants to be shared. Finally, Tavani argues that presuming in favor of this principle would enable us to formulate a copyright policy that can avoid the extremes found in the two main competing contem­porary positions, both of which are morally unacceptable: (1) access to all digitized information should be totally free; and (2) overreaching, and argu­ably oppressive, copyright laws, such as the Digital Millennium Copyright Act and the Copyright Term Extension Act, are needed to protect digital information.

In Chapter VIII, Richard Spinello focuses on the theme of trespass in cyberspace. In order to prevent unauthorized use of their data, several US companies have hastily filed lawsuits alleging "trespass to chattels." eBay, for example, has accused metasites of trespass for sending "softbots" that roam the eBay website in order to aggregate auction data. In the author's view, legal scholars have rightly criticized this trend because it creates a novel prop­erty right in factual data, which is not eligible for copyright protection. Aside from reviewing the legal issues in this case, the author argues that Internet companies like eBay should be less preoccupied with property rights and more concerned with the Internet's common good. Both Eastern and West-ern philosophies enunciate the need to recognize and respect the common good of a community or common venture. This awareness should temper a company's narrow focus on proprietary property rights. Corporations like eBay should seek a prudent balance between their property entitlements and their duty to support the Internet's common good, which is manifest in the sharing and communication of information.

Chapter IX, by Elizabeth Buchanan and James Campbell, examines the growing threats to the "information commons" that result from strong property rights that have excessive longevity or too broad a scope. This discussion follows up on and expands upon critical issues that were introduced in Chap-ter I of this book. The authors discuss the importance of the commons or public domain for future creative efforts. They advocate looser protection schemes that will make for a more robust commons.

Chapter X, the final selection in this book, is by Melanie Mortensen. This chapter examines the ethical and legal issues that are triggered by shifts in communications technologies such as webcasting. Her presentation is an example of how traditional laws are misapplied to new technologies with "trou­bling" ethical results. She argues persuasively that in this new milieu, we must consider carefully what constitutes piracy, and she offers some ethical guidelines for doing so. Those guidelines are grounded in principles that are based upon "the essential nature of communications technologies."

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