That Bongo is an idiot. How can a "pair of arguments" be "a canard"? Hasn't he heard of subject / object agreement?

I hope this comment doesn't appear too much like swatting a fly with a sledgehammer (especially as it’s my first comment in this forum, and I generally find Cory's commentary to be well-informed and worth reading), but while there are some truths cited in the Guardian article, the conclusions are totally fatuous. While it is (successfully) arguable that existing IP law is inadequate in addressing the allocation of rights among creators and users of information, the reason cited--fundamentally, one of terminology--is simply wrong.

The article states "even though [my daughter is] not my property, I still have a legally recognized interest in my daughter." This is offered as an argument that property concepts are exclusive of other types of legal interests.

The article goes on to say that "trying to shoehorn knowledge into the 'property' metaphor leaves us without the flexibility and nuance that a true knowledge rights regime would have."

This pair of observations is a canard.

In fact, all property (real property, chattels, and intellectual property) rights are subject to numerous alternate legal frameworks, including contract, regulation, and various common law doctrines not having specifically to do with property rights (such as tort).

Likewise the observation that certain types of information are not afforded copyright protection in no way diminishes the property-analog characteristics of copyright law. Even if you decided (unwisely) to analogize all knowledge to the totality of real property, it is easy to identify situations where the property law analysis is essentially irrelevant for land, such as public areas, or areas that are so contractually bound up (common areas in a condominium) that the property analysis is never useful.

Notwithstanding those examples, it would be silly to conclude that real property law was an improper framework because it wasn't universally applicable to legal analysis involving land.

Contrary to the unstated assumption that “property” terminology confuses issues of rights of creators / users of knowledge or information, every so-called IP lawyer is well versed in doctrines other than property rights that pertain to knowledge and information. Indeed, by getting bogged down in the nomenclature issue, the article totally ignores critical issues regarding rights that can be protected under various intellectual property regimes.

As Mary Wong at The Franklin Pierce Law Center has noted, among the most restrictive limits being placed on the use of information are contractual restrictions imposed by information creators / distributors, such as end user licenses.

These restrictions are not limited to copyrighted application / driver software, but go to entertainment content (see the recent issue with whether churches are allowed to display NFL broadcasts at their parties) and hardware (licenses for printer hardware that restricts the owner from using third party ink cartridges).

The idea that creators and users of information of knowledge, and legal practitioners working to protect their respective rights and positions are somehow limited in their reasoning capabilities by the language inherited from property law is baseless.

Bongo