Intellectual Property
Rights in a
Networked World:
Theory and Practice
Richard A. Spinello
Herman T. Tavani
Information Science Publishing
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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
Information Science Publishing
Acquisition Editor: Mehdi Khosrow-Pour
Senior Managing Editor: Jan Travers
Managing Editor: Amanda Appicello
Development Editor: Michele Rossi
Copy Editor: Jane Conley

Locke, John, 1632-1704 Views on property. I. Spinello, Richard A. II. Tavani, Herman T.
K1401.I566 2005
346.04'8 dc22
2004003761
British Cataloguing in Publication Data
A Cataloguing in Publication record for this book is available from the British Library.
All work contributed to this book is new, previously-unpublished material. The view expressed in
this book are those of the authors, but not necessarily of the publisher.
For our spouses, Susan Brinton and
Joanne Tavani
Intellectual Property
Rights in a
Networked World:
Theory and Practice
Table of Contents
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
S
ECTION 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

Melanie J. Mortensen, Montreal, Canada
About the Authors 275
Index 278
vi
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 de-
cades 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 revo-
lution 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 mate-
rial. 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 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.

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 comprehen-
sive introduction that enunciates the fundamental issues underlying the evolu-
tion 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, ques-
tions 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
viii
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
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-

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 perspec-
tive 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 foun-
dational 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 consider-
ation 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 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-

must be provided as a result of positive law.
In Chapter IV, Thomas Powers analyzes the notion of intellectual prop-
erty in general, and software copyright law in particular, via the classic philo-
sophical debate known as the “problem of universals.” At the heart of this
problem is the ontological question: Are there universals, or classes of par-
ticular 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 dis-
tinction 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
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

xiii
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 contem-
porary positions, both of which are morally unacceptable: (1) access to all
digitized information should be totally free; and (2) overreaching, and argu-
ably oppressive, copyright laws, such as the Digital Millennium Copyright Act
and the Copyright Term Extension Act, are needed to protect digital informa-
tion.
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 prop-
erty 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

Herman T. Tavani, Rivier College, USA
January 2004
Acknowledgments
xiv
Section I
Overview

Intellectual Property Rights 1
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permission of Idea Group Inc. is prohibited.
Chapter I
Intellectual Property Rights:
From Theory to
Practical Implementation
Richard A. Spinello
Boston College, USA
Herman T. Tavani
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

continue to download copyrighted music and movie files with relative impunity.
Everyone knows, however, that the content industry will not sit idly by and lose
its main source of revenues. It will fight back with legal weapons such as the
Digital Millennium Copyright Act and technological weapons such as trusted
systems.
Of course, debates about intellectual property rights are not confined to
digital music and movies. There is apprehension that the Internet itself will be
swallowed up by proprietary technologies. Currently, developing countries
argue that they can never surmount the digital divide if intellectual property
rights remain so entrenched. Governments debate the pros and cons of
endorsing open source software as a means of overcoming the hegemony of
Microsoft’s control of certain technologies. And some claim that the impending
“enclosure movement” of intellectual objects will stifle creativity and even
Intellectual Property Rights 3
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permission of Idea Group Inc. is prohibited.
threaten free speech rights. Hence, they argue, we must abandon our
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

well as a legal perspective.
We contend that information socialism, where all intellectual objects are
“unowned,” is an impractical and unworkable alternative to the current system.
But we also argue that information capitalism, which promotes strong rights
and thick protection that can impair the intellectual commons, is also misguided.
Policy and law should neither overprotect rights nor underprotect them, but
instead should seek the Aristotelian mean or intermediate position between
these two deficient policy options. It is difficult, of course, to determine the
“right” amount of protection that rewards creators for their efforts and
stimulates creativity while not impairing the intellectual commons, but in the
course of this analysis we offer some suggestions.
Along the way, we hope to offer reasoned answers to some important
questions. For example, how do we assess the validity of the normative
justifications for intellectual property rights? Can a case be made for a “natural”
intellectual property right, or can this right be grounded only on a more
pragmatic, utilitarian foundation? Can cyberspace accommodate intellectual
property rights (and the laws that protect those rights) without losing its most
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.

The characteristic of scarcity that applies to many physical objects —
which often has caused competition and rivalry with respect to those entities —
need not exist in the case of intellectual objects. Consider that there are
practical limitations to the number of physical objects one can own, and there
are natural and political limitations to the amount of land that can be owned.
However, most kinds of intellectual objects are easily reproducible and
shareable. For example, countless digital copies of a Microsoft Word program
can be reproduced and distributed at a marginal cost of zero.
Intellectual objects are also distinguishable from physical objects by virtue
of what exactly it is that one can legally claim to own. It is impossible to “own”
an abstract idea or concept, at least in the same (legal) sense that one can own
a physical object. One cannot exclude others from using that idea once it is
revealed, as one can exclude people from using land or some other physical
object.
As a result, abstract ideas and algorithms are not the kinds of things for
which governments have been willing to grant ownership rights to individuals.
Instead, legal protection is given only to the tangible expression of an idea that
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-

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permission of Idea Group Inc. is prohibited.
It must be said at the outset that no single theory presented here is
comprehensive enough to withstand critical scrutiny. Each is subject to
interpretation and each has certain flaws and shortcomings. Nonetheless, the
ultimate indeterminacy of these theories should not discourage this endeavor.
At a minimum, these theories are useful as avenues of reflection that can provide
a more orderly method of thinking through the moral implications of intellectual
property policy decisions. They can also help to resolve specific disputes when
the law is unclear or ambiguous. According to Fisher (1998), while these
theories may not always persuade us with inexorable logic, they can be used to
“strike a cord of sympathy” and evoke a response, such as “that rings true to me.”
Locke and the Labor Desert Theory
John Locke, in The Second Treatise of Government, was one of the first
philosophers to thematize the issue of property in a comprehensive manner.
Locke’s theory of property has undoubtedly been one of the most influential in
the entire philosophical tradition. Locke’s main thesis is simple enough: people
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).

that has come to be known as the Lockean proviso. According to this moral
principle, one can only appropriate an object from the commons through labor
when “there is enough, and as good left for others” (Locke, 1952). Thus,
individuals should not be greedy or wasteful and take from the commons more
than they can use “to any advantage of life before it spoils” (p. 17). One must
have a need and a use for what one appropriates from the commons.
Although Locke had in mind physical property such as land, it would seem
logical that this theory is applicable to intellectual property as well. An author
or creator owns her labor and therefore must own the creative product of that
labor. After all, should not those who expend intellectual labor be rewarded
by ownership in the fruits of their labor and be allowed to “enclose it from the
common”? In this case, the relevant common resource is not land or unowned
physical objects but common knowledge or the “intellectual commons” (that is,
unowned facts and other raw material such as ideas, algorithms, musical scores,
or general plot lines). And the Lockean inspired argument is that one’s
intellectual labor should entitle one to have a natural property right in the finished
product of that work, such as a novel, a computer program, or a musical
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