[dublinben]

>property rights and freedom of speech as being truly inalienable

That's a simply preposterous belief though, and we should treat it as such. Many people have their rights to property and speech infringed on a regular basis. There isn't even a consensus on what those rights entail, as is clear any time 'hate speech' is brought up.

[Zigurd]

"Inalienable" is quite an idealistic and American word in this context. Nevertheless, the US federal constitution is written with some assumptions, and a "sense," That is, it is addressed to the government, from the people and the states, which predate the existence federal government, and which can undo the federal government through a constitutional convention. The ninth and tenth Amendments spell out the assumption that rights are not granted by the government, but powers are delegated to the federal government. Rights are open-ended. Powers are enumerated. This is an elegant way of making the constitution future-proof (so beware of people who start a sentence with "The Framers never had...").

Copyright and patents are a notable exception to the above. They are an explicitly granted monopoly, through an explicitly enumerated power of the federal government. The "property" part appears nowhere in the constitution and is a tendentious word added later, like "pro-life."

[SEMW]

> The "property" part appears ... is a tendentious word added later, like "pro-life."

Don't be silly. The word "property" in "intellectual property" is used in its legal sense: a particular and well-defined set of characteristics that a bundle of rights can have (such as being transferable to other entities, and binding the world).

The definition comes from common law, and certainly predates your country's constitution.[1] By the legal definition, modern implementations of patents, copyright, and trademarks are very definitely property rights (in the UK and USA anyway).[2]

Whether they should be is a different question, but at the moment, they are. E.g. in my country, the relevant Act begins with "Copyright is a property right" - that isn't trying push a point of view, it's defining it as a property right. To use a programming analogy, it's telling you that Copyright inherits from the class IntangibleProperty (which itself inherits from Property), which gives it a bunch of preexisting attributes and methods.

[1] Which isn't to say that copyright etc. was a property right back in 17whatever - especially as, back then, choses in action were generally untransferable - only that "property right" was defined back then.

[2] Well, mostly: in some countries (IIRC not the US), writing a work that qualifies for copyright also gives you a few non-proprietary rights, called 'moral rights'. If you're being picky you could argue these aren't technically "IP" rights, but they're usually included under the IP banner for convenience.

(IANAL)

[humanrebar]

"Whether they should be is a different question"

That's the exactly question we're discussing. The legal term "intellectual property rights" steal gravitas from more important (physical) "property rights", which are natural rights and are essential in a free society.

Your point is that "intellectual property" is a legal term. No one disagrees. The point of the people railing against the phrase "intellectual property" is that the phrase is misleading and that it should be replaced with something more apt. Perhaps you are missing that point?

[SEMW]

> The point of the people railing against the phrase "intellectual property" is that the phrase is misleading

I venture you may have missed my point. The phrase isn't misleading, it's correct.

Having the word "property" in its name isn't what makes it a property right. It's a property right because it behaves as a property right (ownable, transferable, binds the world). "Replacing [the word 'property' in IP] with something more apt" is like insisting that you can't call mallards 'ducks' - they're still going to walk like a duck and quack like a duck.

When I said "Whether they should be is a different question", I meant 'should the right have this set of legal characteristics', not 'given that it has this set of characteristics, should it be called "property"'.

Whether the use of the word "steals gravitas" from physical property rights is neither here nor there. Law isn't poetry, it's programming. Renaming a class doesn't change what methods it has.

[humanrebar]

In this case, intellectual property "rights" are not natural rights because they are neither essential for a free society nor essential to the survival of an individual. My objection is exactly that intellectual property rights do not quack like natural rights and that legal terminology (and eventually laws themselves) should respect that.

Referring back to the U.S. Constitution, a limited monopoly was granted "To promote the Progress of Science and useful Arts". No one would argue that those aren't noble goals, but one wouldn't be oppressed if his patents and copyrights were violated.

If one's home or savings were stolen or unfairly confiscated on the other hand...

If you want to talk programming, it is a design bug to label patent monopolies as "intellectual property rights" because the "property rights" abstraction does not fit the idea of limited monopoly powers. Because, among other reasons, violations of "property rights" have side effects of a different kind and magnitude than a failure to respect monopoly privileges.

[SEMW]

To be clear, I wasn't making any comment on whether IP rights are 'natural rights' or not, only on whether they're property rights (which ISTM is a much more concrete question). Apologies if I wasn't clear about that. (On the main point, see my reply to your other post).

[Zigurd]

Is a government granted monopoly "property?" Is cancelling such a monopoly a "taking?"

[SEMW]

> Is a government granted monopoly "property?"

Is a car red? Some cars are red, some aren't. Some red things are cars, some aren't.

Government-granted monopolies can create property rights, sure. Other property rights (even intangible property rights) exist that are neither government-granted nor monopolies - obvious example, a debt. And a government can grant a monopoly without creating a property right, e.g. by choosing to award all its rail contracts to a single company.

[humanrebar]

I think the word "red" isn't a fair comparison. I'd use the word "love".

If Pat told Alex, "I love you", Alex would rightly infer that Pat had just expressed romantic interest. If Pat then said, "...like I love my dog," Alex would then rightly be confused (and angry).

In the same way, the term "intellectual property rights" overloads the phrase "property rights". It's a poor choice of words and since "intellectual property rights" is the neologism, it should change. Otherwise, we'll have to come up with a new term for natural "property rights" and teach everyone what that term means.

And debts are not properties, they are stipulations in contracts that can sometimes be transferable. There are rights involved with forming contracts, but they aren't the same as property rights.

[SEMW]

AFAICS we just have different priorities in what we want the terminology to do. You're prioritising the impression that the term "intellectual property" creates in a layman, i.e. that it calls to mind an analogy (with tangible property) that is in many ways misleading. I'm prioritising the technical accuracy of it as a legal term per common law definitions of proprietary right.

So I think we'll just have to agree to disagree here, based on our different sets of priorities.

(As for debts, in English law they are choses in action, and so intangible moveables. See e.g. Lord Goff's comments in Lipkin Gorman v Karpnale [1991] 2 AC 548, p. 574 at [A]. So a debt isn't quite a purely contractual right: the difference is between a claim in debt, e.g. an action for the price, and a claim for damages. The former will often allow some kind of proprietary remedy - e.g. a lien over goods if the debt is from a sale of those goods, the ability to trace your title to the debt into other people's pockets (as in Lipkin, which was a purely personal action for unjust enrichment), or in some circumstances even a full-blown constructive trust (e.g. in a Chase Manhattan v Israel-British Bank type situation). The latter never will.

That said, I did perhaps choose a bad example, as the line can be a thin one. A better example of a property right that doesn't give you a monopoly might've been be an easement. (Freehold covenants are another interesting example, as starting in the mid-19th century, they've sortof morphed from purely being personal, contractual rights into being property rights)).

[humanrebar]

The work "inalienable" implies that it's outside the moral authority of culture, society, and government to remove those rights. It doesn't imply that those rights can never be infringed. That is, violating those rights is immoral, not impossible.

In fact, the consensus that rights are infringed proves they exist. This is a correct example of the often misused phrase, "the exception that proves the rule".

But you are right that the specifics of weighing rights against each other are tricky. That's where cultures, governments, and legal systems come in. To be clear, those human organizations do not create inalienable rights, but they are responsible for enforcing them. And a failure to do so would be a moral failure, not an impossibility.