Categorical Intellectual Property
This discussion naturally turns towards what I call "categorical I.P.," and how wide of a "fence" is legitimate to place around I.P. For the purpose of simplifying discussion, lets presume that an unique 1mb file is a legitimate form of I.P. due to the impossibility of it randomly reoccurring in nature (see: "Form vs Matter" section "1s and 0s").
That 1mb file may contain a portion of a song or an image. By recompressing or changing the format of the song or image, the bits do not match identically. Would this also be a legitimate form of I.P.?
Consider a person who claim property rights to an entire mountain. Due to the broad nature of this claim, it is highly likely that many Libertarians and Anarchists will naturally object to this claim, even if that person managed to somehow "homestead" the entire thing. If that mountain had never been homesteaded by that person, it is very likely that the mountain would have been homesteaded by many persons.
Consider a person who claim property rights to the concept of "gravity" or "2+2=4." Due to the broad nature of this claim and the high likelihood of that others would eventually make this discovery, the claim obviously become problematic. The claim become even more problematic, when one recognizes that this claim prevents others from pursuing other forms of intellectual-wealth creation, such as advanced mathematical formulas or machines that exploit gravity.
No Property is Infinite
Consider two persons homestead lands approximately 1/2 a mile apart. Slowly they spread their homestead, but creating farms, windmills, and other improvements to the land(s). Eventually their properties will begin to meet or intersect. Further, a body of water may be "shared" or run through both of their properties, as well as the property of others. The person in one homestead may also require the ability to travel across the other person's land if they are somehow "trapped" behind it. What about a fruit tree that begins to cross into another's land claim? Use of one's property may also pose problems for another person, such as mud-runoff, use of a gun, hoarding a river, and making loud noises at night.
As one begins to examine property law and common law, these issues of property rights are quite common, and that attempts to "balance" these property rights quickly demonstrates that no property right is infinite, and that nearly all property has some ambiguity.
Just as with physical property, with intellectual property the question arises, how far should these fences extend? Should there be time-limits? What about fair use? OR public domain? What about abandoned I.P.? What about someone who naturally creates something similar? What about the natural propagation of ideas as they become part of culture?
Copyright and patent law in its current form contains many imperfect answers to these imperfect questions. In many ways, the concept of intellectual property can be used to protect minor "violations" of Intellectual Property, and protect fair-use, public domain, and limits to the "categorical" nature of an I.P. claim. If two persons create a similar work of art, the concept of I.P. for the second creator naturally limits the categorical claims and tyranny that the first I.P. owner might make.
Given the ambiguity of property, one might also recognize similar ambiguity in intellectual property.
- Strong: It should be up to the content owner & let the free market sort it out. In some cases it may be wise for a content owner to have full control over their property, and as a result place the responsibility and consequences of their decisions in their own hand. Perhaps their "tyranny" will be destructive and drive away customers, or perhaps it will allow them to monetize and continue to develop their ideas. The I.P. owner may even be able to prevent others from creating similar ideas.
- Strong Fair Use: "Fair Use" and "Public Domain" concepts seek to limit the scope in which one can be "tyrannical" with their property. A property owner may be able to send a "cease and desist" if he feels his I.P. is being violated, but generally unable to sue for minor and non-commercial violations. The I.P. owner may also be able to suppress certain forms of derivative works as well. Excessively tyrannical acts, such as suing someone who hums your song, will generally be throw out.
- Weak Fair-Use: The benefit of the doubt is slanted towards "fair use." I.P. is not abolished, however in order to punish any "violator" the I.P. owner must demonstrate a clear case of damages. Derivative works are also granted their own I.P., but generally can't be suppressed, and only extend so far as the derivatives are unique. Derivatives may be required to recognize the original author & work as to avoid plagiarism. Most non-commercial activities, such as creating backups of songs/music/books for non-commercial private use are considered protected activities by default, unless it cn be shown to cause damages.
- No I.P. What I.P.?
Strong I.P. and no-I.P. both obviously contain a variety of problems, however this does not presume that the opposite polar extreme is a productive stance to take. As such, I generally advocate for a moderate fair-use; which may be imperfect and slightly arbitrary, but far better than any alternative(s) I am aware of.