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Intellectual Property Intellectual Property (PDF Draft) 2 / Intellectual Property: Moral Legal and International Dilemmas Edited by Adam D. Moore Rowman & Littlefield Lanham • Boulder • New York • London / 3 To Kimberly 4 / Contents Acknowledgments 6 1. Introduction 9 Adam D. Moore Part I The Moral Foundations of Intellectual Property 2. Justifying Intellectual Property 24 Edwin C. Hettinger 3. Trade Secrets and the Justification of Intellectual Property: A Comment on Hettinger 46 Lynn Sharp Paine 4. The Foundations of Intangible Property 65 James W. Child 5. Toward a Lockean Theory of Intellectual Property 92 Adam D. Moore Part II Intellectual Property Issues and the Law 6. The Philosophy of Intellectual Property 113 Justin Hughes 7. Intellectual Property: A Non-Posnerian Law and Economics Approach 188 Tom G. Palmer / 5 8. Property, Monopoly, and Intellectual Rights ? Michael I. Krauss 9. The TRIPS Agreement: Imperialistic, Outdated, and Overprotective 233 Marci A. Hamilton 10. International Copyright: An Unorthodox Analysis 255 Hugh C. Hansen Part III Information and Digital Technology 11. Why Software Should Be Free 272 Richard Stallman 12. The Virtues of Software Ownership 285 David H. Carey 13. Are Computer Hacker Break-Ins Ethical? 292 Eugene H. Spafford 14. National and International Copyright Liability for Electronic Systems Operators 305 Charles J. Meyer 15. The Economy of Ideas: Everything You Know About Intellectual Property Is Wrong 334 John Perry Barlow Selected Bibliography Index 6 / Acknowledgments Many people have contributed their ideas and time to this anthology. I would especially like to thank my advisors and friends at Ohio State University, Don Hubin, Peter King, Richard Garner, and Dan Farrell; David Mayer of Capital University, Scott Rothwell, James Summerford, Mark VanHook, Larry Sanger, Kimberly Moore, and Nancy Moore. I would also like to thank Jennifer Ruark and Julie Kuzneski of Rowman & Little- field for all of their help in preparing and editing the manuscript. A special thanks to the contributors: John P. Barlow, Electronic Frontier Foundation; David H. Carey, Whitman College; James W. Child, Bowling Green State University; Hugh C. Hansen, Fordham University School of Law; Marci A. Hamilton, Benjamin Cardozo School of Law; Edwin C. Het- tinger, Hollins College; Justin Hughes; Michael I. Krauss, George Mason University; Charles J. Meyer, Woodard, Emhardt, Naughton, Moriarty & McNett; Lynn Sharp Pain, Harvard Business School; Tom G. Palmer, The Cato Institute; Eugene H. Spafford, Purdue University; and Richard Stallman, The League for Programming Freedom. The reprinted articles in this anthology appear in full, unless indicated. "Justifying Intellectual Property" by Edwin Hettinger, originally appeared in Philosophy & Public Affairs (Princeton: Princeton University Press, 1989). Copyright © 1989 by Princeton Univer- sity Press. Reprinted by permission of Princeton University Press. "Trade Secrets and the Justification of Intellectual Property: A Comment on Hettinger" by Lynn Sharp Pain, originally appeared in Philosophy & Public Affairs (Princeton: Princeton University Press, 1991). Copyright © 1991 by Princeton University Press. Reprinted by permission of Princeton University Press. "The Moral Foundations of Intangible Property" by James W. Child, originally appeared in The Monist (La Salle: The Hegeler Institute, 1990). Copyright © 1990 by The Hegeler Institute. Reprinted by permission of publisher. "The Philosophy of Intellectual Property" by Justin Hughes, originally appeared in the Georgetown Law Journal (Washington / 7 D.C.: Georgetown University Law Center, 1988). Copyright © 1988 by the Georgetown Law Journal and Georgetown Universi- ty. Reprinted by permission of publisher. "Intellectual Property: A Non-Posnerian Law and Economics Approach" by Tom Palmer, originally appeared in the Hamline Law Review (Saint Paul: Hamline University School of Law, 1989). Copyright © 1989 by Hamline University School of Law. Reprinted by permission of publisher. "Property, Monopoly, and Intellectual Rights" by Michael Krauss, originally appeared in the Hamline Law Review (Saint Paul: Hamline University School of Law, 1989). Copyright © 1989 by Hamline University School of Law. Reprinted by permission of publisher. "The TRIPS Agreement: Imperialistic, Outdated, and Overpro- tective" by Marci Hamilton, originally appeared in the Vander- bilt Journal of Transnational Law (Nashville: Vanderbilt University, 1996). Copyright © 1996 by Vanderbilt University. Reprinted by permission of publisher. "International Copyright: An Unorthodox Analysis" Hugh Hansen, originally appeared in the Vanderbilt Journal of Trans- national Law (Nashville: Vanderbilt University, 1996). Copy- right © 1996 by Vanderbilt University. Reprinted by permission of publisher. "Why Software Should Be Free" by Richard Stallman and appeared in Computers, Ethics, & Social Values, edited by Deborah Johnson and Helen Nissenbaum (Englewood Cliffs, N.J.: Prentice Hall, 1995). Copyright © 1990 by the Free Software Foundation, Inc. Verbatim copying and redistribution is permitted without royalty. "The Virtues of Software Ownership" by David Carey, originally appeared in Software Ownership and Intellectual Property Rights, edited by Walter Maner and John L. Fodor (New Haven: Research Center on Computing & Society, 1992). Copyright © 1992 by the Research Center on Computing & Society. Reprint- ed by permission of publisher. "Are Computer Hacker Break-Ins Ethical?" by Eugene Spafford, appeared in the Journal of Systems Software 17 (Elsevier Science 8 / Inc., 1992). Copyright © 1992 by Eugene Spafford. Reprinted by permission of Eugene Spafford. "National and International Copyright Liability for Electronic System Operators" by Charles Meyer, originally appeared in the Indiana Journal of Global and Legal Studies (Bloomington: Indiana University School of Law, 1995). Copyright © 1995 Indiana University School of Law. Reprinted by permission of publisher. "The Economy of Ideas: Everything You Know About Intellec- tual Property is Wrong" by John Perry Barlow, originally appeared in Wired Magazine (March 1994). Copyright © 1994 by Wired Magazine Group, Inc. Reprinted by permission of publisher. / 9 1 Introduction Adam D. Moore With the rise of the information age where digital recording, storage, and transmission are the norm, problems centering on the ownership of intellectual property have become acute. Computer programs costing thousands of research dollars are copied in an instant. Digital bootleg versions of almost any musical artist are available at rock-bottom prices. Moreover, there is a general asymmetry between the attitudes individuals have about physical property and intellectual property. Many who would never dream of stealing cars, computers, or VCRs regularly copy software or duplicate their favorite music from a friend's CD. The information superhighway, better known as the internet or the world wide web, is poised to become the scene of information superhighway robbery. Finally, a salient feature of an on-line information age is that these concerns take on a global perspective. Needless to say, developing answers to these problems is philosophically challenging. This anthology was put together so that a number of important articles centering on the ownership of intellectual property and digital information could be found in one work. My hope is that this volume will help education and research in this rapidly expanding area. Before providing a summary of the articles included in this volume, I have given a brief overview of the subject matter or domain of intellectual property. Apart from owning cars, computers, land, or other tangible goods, intellectual property law enables individuals to obtain ownership rights to control works of literature, musical compositions, processes of manufac- ture, computer software, and the like. Setting aside concerns of justifying rights to intellectual property, which is the primary focus of this volume, a brief exposition of what counts as intellectual property would be helpful. The Domain of Intellectual Property At the most practical level the subject matter of intellectual property is codified in Anglo-American copyright, patent, and trade secret law, as well as in the moral rights granted to authors and inventors within the continental European doctrine.1 Alt- hough these systems of property encompass much of what is 10 / thought to count as intellectual property, they do not map out the entire landscape.2 Even so, Anglo-American systems of copy- right, patent, and trade secret law, along with certain Continental doctrines, provide a rich starting point. We'll take them up in turn. Copyright The domain of copyright is expression. Section 102 of the 1976 Copyright Act determines the subject matter of copyright protection. § 102: (a) Copyright protection subsists, in accord- ance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include: literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; architectural works; and computer software.3 The scope or subject matter of copyright, as protected under federal
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