The Ethical case against IP
David Koepsell, JD/PhD,
Asst. Prof., Delft Univ. of Technology, NL, Philosophy Department, TPM Faculty
13-4-2015
Delft
University of
Technology
Challenge the future
Axiom 1
We have fundamental rights to
autonomy of our minds and
bodies
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Axiom 2
We have fundamental rights to
freedom of expression
(consistent with Mill’s “liberty
principle”)
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Premise 1
All man-made objects intentionally
produced are “expressions” and
these are the only subjects of IP
laws
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The Ontology of Cyberspace
Open Court (2000)
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
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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.
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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
(patents)
or
primarily aesthetic
(copyrights)
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Premise 2
Rights of ownership stem from brute
facts of possession and laws are
“just” when grounded in brute
facts
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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)
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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.
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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.”
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Premise 3
There are parts of the world that
cannot be justly owned
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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
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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).
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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).
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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)
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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)
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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 “anticommons.”
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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.
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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)
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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.
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Premise 4
IP rights are exclusionary rights that
prevent the unauthorized
expression of protected idea
types.
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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.
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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.
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IP and expressions revisited
Expressed ideas belong to the category “commons
by necessity,” as there is no meaningful way of
possessing or enclosing them.
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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.
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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.
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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.
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example
Take, for instance, the lack of an
“independent discovery”
exception in patent law
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Thanks!
http://www.davidkoepsell.com
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