Intellectual Property
Rights in a
Networked World:
Theory and Practice
Richard A. Spinello
Boston College, USA
Herman T. Tavani
Rivier College, USA
Hershey • London • Melbourne • Singapore
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Foreword vi
Preface ix
SECTION I: OVERVIEW
Chapter I
Intellectual Property Rights: From Theory to Practical
Implementation 1
Richard A. Spinello, Boston College, USA
Herman T. Tavani, Rivier College, USA
SECTION II: THEORETICAL P ERSPECTIVES
Chapter II
Intellectual Property Rights in Software — Justifiable from a
Liberalist Position? Free Software Foundation’s Position in
Comparison to John Locke’s Concept of Property 67
Kai Kimppa, University of Turku, Finland
Chapter III
Locke and Intellectual Property Rights 83
Michael J. Scanlan, Oregon State University, USA
Chapter IV
Ideas, Expressions, Universals, and Particulars: Metaphysics
in the Realm of Software Copyright Law 99
Thomas M. Powers, University of Virginia, USA
SECTION III: ETHICAL AND LEGAL P ERSPECTIVES
Chapter V
Exporting Trademark Confusion 113
Ann Bartow, University of South Carolina, USA
Chapter VI
Feminism and Copyright in Digital Media 161
Dan Burk, University of Minnesota, USA
Chapter VII
Recent Copyright Protection Schemes: Implications for Sharing

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 pay-
ment 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 ac-
cuse 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.
Foreword
vii
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 pa-
pers that were delivered at the Sixth Annual Ethics and Technology Confer-
ence 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, ethi-
cists, 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 sa-
lience for the knowledge economy.
There were sessions devoted to the seemingly esoteric theories of phi-
losophers 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

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
ix
In his Foreword, Dr. Neuhauser explained the origin of the essays in this
book along with the book’s general structure. Nonetheless, a few prefatory
remarks are in order. Despite the centrality of intellectual property issues in
our networked society, ethicists and other scholars outside the legal commu-
nity 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 con-
sists 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.

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 ob-
jects. 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 pro-
motes 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,
xi
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 writ-
ings 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.

Powers argues that the legal doctrine of copyright has inherited many of the
conceptual confusions and “philosophical troubles” underlying the problem of
xii
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 univer-
sals 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, “likeli-
hood 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, asso-
ciative 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.

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 ex-
ample of how traditional laws are misapplied to new technologies with “trou-
bling” ethical results. She argues persuasively that in this new milieu, we must
consider carefully what constitutes piracy, and she offers some ethical guide-
lines for doing so. Those guidelines are grounded in principles that are based
upon “the essential nature of communications technologies.”
We wish to thank the contributors who so graciously agreed to have
their work included in this modest volume. Their enthusiasm, cooperation,
and strong support for this project have inspired our efforts.
As noted in Dr. Neuhauser’s Foreword, most of these papers were origi-
nally presented at the Sixth Annual Ethics and Technology Conference held at
Boston College during the summer of 2003. This conference is an annual
event, and it is a joint effort of Boston College, Holy Cross College, Loyola
University/Chicago, St. Louis University, University of Detroit/Mercy, and Regis

Rivier College, USA
ABSTRACT
This chapter presents some foundational concepts and issues in intellectual
property. We begin by defining intellectual objects, which we contrast
with physical objects or tangible goods. We then turn to some of the
normative justifications that have been advanced to defend the granting
of property rights in general, and we ask whether those rationales can be
extended to the realm of intellectual objects. Theories of property
introduced by Locke and Hegel, as well as utilitarian philosophers, are
summarized and critiqued. This sets the stage for reviewing the case
against intellectual property. We reject that case and claim instead that
policy makers should aim for balanced property rights that avoid the
extremes of overprotection and underprotection. Next we examine four
different kinds of protection schemes for intellectual property that have
been provided by our legal system: copyright laws, patents, trademarks,
and trade secrets. This discussion is supplemented with a concise review
2 Spinello and Tavani
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of recent U.S. legislation involving copyright and digital media and an
analysis of technological schemes of property protection known as digital
rights management. Finally, we consider a number of recent controversial
court cases, including the Napster case and the Microsoft antitrust suit.
Many of the issues and controversies introduced in this chapter are
explored and analyzed in greater detail in the subsequent chapters of this
book.
INTRODUCTION
It is now a common refrain that the ubiquity of the Internet and the
digitization of information will soon mean the demise of copyright and other
intellectual property laws. After all, “information wants to be free,” especially

commitment to private ownership in the digital realm.
The result of these public and controversial squabbles is that the once
esoteric issue of intellectual property rights has now taken center stage in
courses and books on cyberlaw and cyberethics. The economic and social
stakes are quite high in these disputes, so they should not be regarded in a
cavalier manner or dismissed as inconsequential. The centrality of the property
issue becomes especially apparent when one realizes that other social issues in
cyberspace (such as speech and privacy) are often closely connected to the
proper scope of intellectual property rights. For example, Diebold Election
Systems, a manufacturer of voting machines, has pursued college students for
posting on the Internet copies of internal communications, including 15,000 e-
mail messages and other memoranda, discussing flaws in Diebold’s software.
The company claims that this information is proprietary and that these students
are violating its intellectual property rights, while the students say that their free
speech rights are being unjustly circumscribed. They contend that copyright law
is being abused to stifle free speech.
This tension between intellectual property rights and the First Amendment
has been addressed by many commentators on the law. As Volokh (1998) has
pointed out, “Copyright law restricts speech: it restricts you from writing,
painting, publicly performing, or otherwise communicating what you please.”
One could easily use the intellectual property issue as a lens to examine the
expanding field of cyberethics since the most salient issues seem to have a
property dimension. In addition to speech, personal privacy is another issue
closely connected with intellectual property. Employers, for example, often
invoke property rights to justify monitoring the e-mail communications of their
employees. Since the IT systems and e-mail software are the property of
employers, they assume the prerogative to ensure that their property is being
used in accordance with company rules and regulations.
Given the breadth of the intellectual property field, it is impossible to
review all of the current topics and controversies. Our purpose in this

attractive features? What are the costs and benefits of relying on technology
to protect digital content? Under what circumstances should secondary liability
for copyright infringement be invoked? And finally what can moralists bring to
this debate that so far has been dominated by legal scholars? We begin with
a conceptual background on the nature of intellectual objects.
INTELLECTUAL OBJECTS
Property is a dynamic concept, which has evolved dramatically since the
18
th
Century. Originally, it referred exclusively to land but eventually it was
extended to include things or physical “objects” such as farms, factories, and
furniture (Hughes, 1989). The kinds of objects that count as property now
include entities that reside in the non-tangible or intellectual realm as well.
Different expressions have been used to refer to the kinds of objects or entities
at stake in the intellectual property debate. Sometimes these objects are
referred to as ideal objects or non-tangible goods (Palmer, 1997). Following
Hettinger (1997), however, we use the expression intellectual objects to refer
to various forms of intellectual property. Unlike physical property, intellectual
property consists of “objects” that are not tangible. These objects are creative
works and inventions, which are the manifestations or expressions of ideas.
Intellectual Property Rights 5
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permission of Idea Group Inc. is prohibited.
Unlike tangible objects, intellectual objects (such as software programs or
books) are public goods. Public goods are both non-rivalrous and nonexclu-
sive. An object is non-rivalous if consumption by one person does not diminish
what can be consumed by others. So if A owns a desktop computer, which is
a physical object, then B cannot own that computer, and vice versa. However,
consider the status of a word-processing program that resides in A’s computer.
If B makes a copy of that program, then both A and B possess copies of the

is creative or original. If the idea is literary or artistic in nature, it must be
expressed (or “fixed”) in some tangible medium in order to be protected. Such
6 Spinello and Tavani
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permission of Idea Group Inc. is prohibited.
a medium could be a physical book or a sheet of paper containing a musical
score. And if the idea is functional in nature, such as an invention, it must be
expressed in terms of a machine or a process. Whereas authors are granted
copyright protections for expressions of their literary ideas, inventors are given
an incentive in the form of a patent for their inventions. Both copyright law and
patent law, along with other legal schemes for protecting intellectual property,
are discussed in detail in later sections of this chapter.
Finally, even if an intellectual object, such as a novel or musical composi-
tion, “belongs” to its author in some way, should it be described as that author’s
“property?” Are other characterizations more suitable? While references to
“intellectual property” have become commonplace, many scholars regret the
ill-effects of the ascendancy of this form of “property rhetoric.” One such effect
is the tendency to regard the unauthorized use of intellectual objects as “piracy”
or “theft,” with all of the negative connotations of those words. The popularity
of the term “intellectual property” can be traced back to the foundation of the
World Intellectual Property Organization (WIPO) by the United Nations in
1967. To be sure, this term appeared prior to the founding of WIPO, but
according to Lemley (1997), these previous uses “do not seem to have
reflected a unified property-based approach to the separate doctrines of
patent, trademark, and copyright … ”
NORMATIVE JUSTIFICATIONS FOR
INTELLECTUAL PROPERTY RIGHTS
What is the basis for the claim that intellectual property (or, for that matter,
any kind of property) ought to be protected? The current legal system offers
such protection in a web of complex statutes. But we must inquire on what

have a natural right or entitlement to the fruits of their labor. In general terms,
labor establishes the boundaries of one’s property before civil society even
exists. Thus, property is a natural right because it precedes civil society, which
comes into being in part in order to protect property. But how do the specific
elements of Locke’s argument unfold?
Labor belongs to the laborer and when that laborer takes an object from
the bountiful commons and mixes that object with her labor, it can be said that
she has appropriated that object. Thus, if someone takes common, unusable
land and through the sweat of the brow transforms it into valuable farm land that
person deserves to own this land, which has been “mixed” with her hard work.
According to Locke (1952), “As much land as a man tills, plants, improves,
cultivates, and can use the product of, so much is his property. He, by his labor
does, as it were, enclose it from the common” (p. 20; emphasis added).
As the preceding citation implies, if labor is to engender a property right,
it must be useful and purposeful. Moreover, such labor often involves infusing
one’s very being or personality into the object in question. According to
Olivecrona (1974), one’s labor is an extension of one’s personality and “when
the object appropriated has been included within [an individual’s] sphere [of
personality], it will be an injury to the possessor to deprive him of it.”
Locke’s argument for a property right is partly based on the premise that
labor is an unpleasant and onerous activity. Hence, people engage in labor not
for its own sake but to reap its benefits; as a result, it would be unjust not to let
people have these benefits they take such pains to procure. In short, property
8 Spinello and Tavani
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rights are required as a return for the laborers’ painful and strenuous work. As
Locke (1952) maintains, one who takes the laborer’s property “desire[s] the
benefit of another’s pains, which he has no right to” (p. 20). Appropriation of
this property against the laborer’s will inflicts an unjustifiable harm on this

composition.
This application of Locke’s theory to intellectual property seems plausible
enough. As Easterbrook (1990) remarks, “Intellectual property is no less the
fruit of one’s labor than is physical property.” Thus, a person has a legitimate
claim to ownership in works to the extent that they have been created by that