Eigentum über Ideen in Lockes Rahmen (IH)
Justin Hughes, The Philosophy of Intellectual Property
Epstein directly, albeit unknowingly, points out a critical difference: we are not in possession of any particular external objects by a kind of natural necessity. If we were, the need for property laws would be greatly diminished. Each person, like a tree, would be rooted to his own parcel of external objects; this would be "of natural necessity," and no one would try to displace another from his natural and necessary attachments. Precisely because "natural necessity" goes no further than the mind/body link, reliance upon the "possession" of body as a foundation for a possession-based justification of property is a bit disingenuous.
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We can justify propertizing ideas under Locke's approach with three propositions: first, that the production of ideas requires a person's labor; second, that these ideas are appropriated from a "common" which is not significantly devalued by the idea's removal; and third, that ideas can be made property without breaching the non-waste condition. Many people implicitly accept these propositions. Indeed, the Lockean explanation of intellectual property has immediate, intuitive appeal: it seems as though people do work to produce ideas and that the value of these ideas -- especially since there is no physical component -- depends solely upon the individual's mental "work."
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The creativity we perceive in an intellectual product may be either in the core idea or in the core idea's execution. I suggest that when we readily can separate the two, execution always seems to involve labor, but it is not always clear that the creation of the idea involves labor. Ideas often seem to arrive like Athena -- suddenly they are here, full and complete. Like Zeus, we may have a headache in the process, but it is some unseen Minerva who puts in the labor.
Yet our inability to formulate any clear separation between idea and execution suggests that we should treat them as one. This apparent inability is reinforced by occasions in which the "execution" step begins before the idea. n96 In many fields, one has to do extensive research to create a necessary launching pad for a new idea. A graduate law student writing his doctoral paper made the telling comment, "If I had six more months to work on this paper, it would be an original idea." n97
The Lockean conception of idea-making provides another ground for [*312] treating idea and execution as a single event. Viewing new ideas as plucked from some platonic common may be reification in the extreme. Yet in that view, the ideas already exist and the chief labor is transporting them from the ethereal reaches of the idea world to the real world where humanity can use them. n98 If ideas are thought of as such preexistent platonic forms, the only activity possible is execution, which consists of transporting, translating, and communicating the idea into a form and a location in which humans have access to it.
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This complete exclusion is impossible for two reasons. First, any propertyT scheme which completely excludes third parties from ideas must enforce its restrictions in ways incompatible with our notions of privacy and individual freedom. Second, successful policing of such exclusion probably would be impossible. This impossibility can be thought of in either technical or economic terms. For the foreseeable future, practical considerations will limit the ways in which people can be excluded from intellectual goods. By any standard, thought-police would look more like Keystone Kops than like the KGB. Such thought policing would certainly not be cost effective. Historically, the only time the cost effectiveness of policing has not been a controlling factor is when the police enforce the claims of the sovereign and not the claims of individuals. Police states guard the interests of the state, not those of persons.
As long as complete exclusion cannot or does not happen, ideas will be available to people in their own thoughts even though these ideas already have become someone else's property. Through this availability, one idea can lead to still more ideas. In other words, once a "new" idea has been put into intellectual commerce, once people know about it, it leads to an "expansion" of the common, or of the accessible common.n116 New idea X may be the key to a whole new range of ideas which would not have been thought of without X. Assuming the Platonic model, putting X into intellectual commerce does not increase the common so much as it enhances the abilities of people to take from the common; it gives people longer arms to reach the ideas on higher branches. In this view, X just makes new ideas Y and Z more easily discovered by a wider range of people. When the range of people and/or ease of discovery is dramatically improved, one can think of the common as being practically enlarged.n117
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Earlier I described two broad categories of ideas to which ascription of private ownership is denied. The first is the category of common, "everyday" [*320] ideas, such as thinking to wash one's car, to add paprika to a quiche for coloring, or to tell mystery stories to your cub scout troop. The second is the category of extraordinary ideas like the Pythagorean theorem, the heliocentric theory of the solar system, or the cylindrical column in architecture.
One reason that we do not permit property rights in either category of ideas may be that doing so would involve tremendous reallocations of wealth toward the property holders of these ideas. If we had to pay a royalty each time we told a ghost story or walked the dog, unprecedented wealth would concentrate in the hands of those "holding" the most common ideas. These common, everyday ideas are too generically useful to allow someone to monopolize them. The common would not have "enough and as good" if they were removed.
The same is true of extraordinary ideas. This category, however, actually contains two distinct groups of ideas. First, there are ideas that are extraordinarily important because they disclose facts about the world, such as the Pythagorean theorem and the theory of electromagnetism. In the case of electromagnetism, the Supreme Court ruled that Samuel Morse could not monopolize the general idea of using galvanic current for long-distance communications, although he could monopolize his particular process for exploiting the idea.n127
A second group of extraordinary ideas -- which contains ideas like the architectural columns -- may not be monopolized because of their widespread public use. At first, this sounds like a poor argument: that the idea of a column is widely used may mean it is a "public idea," but that is hardly a self-evident reason why it must be public. Yet widespread use of something, like columns and vaulted ceilings, has another effect: it makes a particular idea appear to be a basic truth or process. At some point, one hardly can imagine the larger social organization without the lesser object. Columns would appear as a far less basic truth to cave dwellers than to those who inhabit a post-Hellenic world in which columns prevent our buildings from crumbling into impromptu pyramids.
In short, some ideas become "depropertized." Originally, they could have been subject to private ownership (unlike the first kind of extraordinary ideas), but the pressure to keep them in the common increases as the ideas become increasingly important to the society. As an idea becomes extraordinary, it is clear the common will not have "enough and as good" if the rights to the idea continue to be privately held.
