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February 10, 2014

IP is Property Even Though Infringement Doesn't Deprive the Owner of Its Use

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One of the arguments that IP skeptics use against intellectual property protection is to attack the idea that it is property at all. And, in their mind, a major argument against it being property is that infringement doesn't deprive the supposed owner of his or her supposed property.

In the IP skeptics' mind, if someone steals your car, they've deprived you of the use of your car, so that's wrong. If they steal your phone, or your house, or your toothbrush, that's obviously wrong because you've been deprived of the use of the item.

They contrast that with IP goods, in which if your song or book or software is copied, you are not deprived of the use of the item, so it's NOT theft because it's NOT property.

This passes for logic to the IP skeptics. It's not logical, but they think it is. The reason it's not logical is that they are arguing from a wrong assumption: Their definition of property is wrong.

This is clear and non-controversial to anyone who knows the law or who has studied the law.

As the New York Court of Appeals explained in 1856:

"Property is the right of any person to possess, use, enjoy and dispose of a thing. . . . A man may be deprived of his property in a chattel, therefore, without its being seized or physically destroyed, or taken from his possession."

That's from Wynehamer v. People, 13 N.Y. 378, 433 (1856).

Property is not limited to "that which only can exist in a single, physical, tangible, non-duplicable state."

So, please, spare me the argument that IP isn't real property because it can be copied without denying the owner use of his or her property. Wrong definition, folks.

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