Kernel Mustard

I just ran across an article on Patently-O about a patent app that expects to get its first office action (i.e. early in the process) in, oh, about 14 years. Woah.

It’s been a while since I’ve posted on patents. I ran across this post today from Brad Feld today, though, and it started to get the gears turning again: Abolish Software Patents. It’s a interesting (and simple) idea, and something I’ve always been very sympathetic with. Interesting reading.

Steve Rubel has an interesting article about a hypothetical DOJ breakup of Google on his blog. Among other things, he speculates that Google may have to compromise its principle of don’t be evil in the face of pressure to justify the market’s amazing faith in its business[1].

My question is this: isn’t Google’s unique corporate structure supposed to help insulate it from this sort of thing?

[1] Interestingly, Google’s business declined in value this week, partially as a reaction to Yahoo’s bad news. It seems that they lost the entire market cap of Amazon.com in one week. Sheesh.

As a practical reality, intellectual property is one of the most carefully-protected property classes out there today. The combination of statutory law, common law, and code-enforced law have created a legal mess that is almost as hard to wrap your brain around as the tax code. The number of interested, huge, well-funded parties doesn’t help.

But in a purely hypothetical, analytical, theoretical world, I have a question: does intellectual property exist, as a first principle?

Taken for granted: real property exists. This isn’t some argument from radical skepticism that I’m presenting here. I don’t want you to steal my car and drive away with it. I want to kick you off of my land (or my little street corner, as the case may be) if I don’t like you. This kind of property is not what I mean to question.

Intellectual property is fundamentally different. You cannot touch it. Or, as Scott Adams says, you cannot eat it if you try hard enough. I can certainly understand creating a set of rights associated with intellectual property to, as the US Constitution says (approximately), encourage progress in the arts and sciences. But that’s a different question entirely.

My question is this: assuming we decided as a society that we aren’t interested in the trade-off that our Constitution makes concerning IP, would intellectual property exist anyway? I have some ideas about how to think this through, but I haven’t managed to find the time to do so yet. Anyone have an opinion?

I didn’t think I’d have the pleasure of seeing this for a while yet, but I’m pleased nonetheless: Microsoft donates US$25,000 to Creative Commons. Analysis is left as an exercise to the reader.

You’ll note that this blog is one of millions and millions of online works that are provided under a Creative Commons license. There’s still time to donate!