In the modern world, "property" may be tangible or intangible, as the law may recognize it.
Law may take all sorts of forms. In the U.S., it may take the form of a federal constitution or a state constitution, or of a federal statute or a state statute, or of a federal administrative regulation or a state administrative regulation, or of a federal court decision or a state court decision.
For example, with patents, you have a constitutional provision that empowers the federal legislative branch to authorize grants of limited patent monopolies, you have federal statutes dating back to 1792 that implement that authority by conferring rights on inventors to apply for and obtain patents, you have a regulatory framework under the USPTO that sets out a framework for evaluating what is or is not patentable, and you have federal courts that adjudicate disputes affecting the enforcement of patent rights. One can argue over whether patent grants are "property" or not but this is really more a philosophical argument than a legal one. Those who oppose patents philosophically will argue that patents are nothing more than monopoly grants that cannot be said to have equal dignity with tangible forms of property and that are therefore not worthy of the label "property." In this view, the "property" label has merely been hijacked by those who seek to unfairly skew the debate over whether patent monopolies should ever be granted in the first place. Yet, while this sort of discussion frames the philosophical debate, the law gives patent holders a full complement of rights that confer all the attributes of property: under indisputable governing law today, such rights can be owned exclusively by someone to the exclusion of all others, they can be licensed to others by the rights holder via a license in exchange for value given (fees or royalties, one-time or recurring) or otherwise, either exclusively or non-exclusively, they can be assigned, transferred, or sold for valuable consideration, they can be passed by inheritance in the case of individuals or sold out of bankruptcy court in the case of any holder, and each successive buyer of the rights has valuable, exclusive rights that certainly resemble "property" whatever the philosophical arguments pro or con in using that label. When the Nortel patents sell for several billion dollars on auction, or when Google buys Motorola for many billions of dollars when the main asset is its patent portfolio, the commercial players are buying valuable intangible assets, i.e., bundles of legal rights that can be possessed, used, improved upon, bought, sold, sued upon, and legally enforced to the exclusion of others. In every functional sense, that is "property" whether it is ultimately some fundamental right or not in the philosophical sense.
The same goes for copyright, which protects tangible forms of creative expression, whether writings, films, compositions, software code, or many other items. As with patents, the rights associated with legal protections of such creative expressions can have huge value and such rights can be "owned" by a specific holder to the exclusion of all others, can be licensed, sold, gifted, passed by will, etc. in much the same manner as can tangible forms of property. Such rights, then, in a legal functional sense, have all the attributes of "property" whatever they may be in a fundamental, philosophical sense.
The same goes for trademarks - a form of intangible right by which the law protects a merchant's right to use marks or symbols to identify the origin of goods or services so that others cannot fraudulently pass off their goods or services as those of another. Unlike patents and copyrights, trademarks have their origin in judicial decisions by which the courts decided to grant forms of "property" protection to protectible marks created by merchants while selling their goods or services in commerce. Later, federal statutes and regulatory structures were set up to facilitate more efficient registration of such marks. The result, though, is the same as in the case of patents and copyrights: trademark rights can be bought and sold, licensed, sued upon for enforcement, etc. in all the ways that tangible forms of property can be and in this legal, functional sense they are "property" as much as anything else can be called that.
So too trade secret rights are ascribed to commercial information that is both proprietary (i.e., "owned" by someone) and confidential and such rights similarly can be sold, etc., as in asset sales or stock sales by which entire companies are acquired.
At every level of law (federal and state constitutions, statutes, regulatory bodies, and courts), the foregoing forms of intangible rights are recognized and protected as "property." In the legal sense, then, IP is indisputably treated as "property" whether or not it is "fundamental."
SOPA is illegitimate not because copyrights are illegitimate by nature but because it seeks to take a reasonable enforcement scheme relating to copyrights across the web and turn it into a bastardized version that is grossly unfair and highly destructive. One can argue that copyrights are illegitimate by nature but that is a philosophical argument and not a legal one. Legally, copyrights have consistently been enforced in the U.S. since the adoption of the federal constitution. Are they always legitimately enforced? As a matter of policy, they have not been, in my view. The copyright extensions, the grabbing of public domain materials to put them back in copyright, etc. have been products of grotesque lobbying efforts and cravenly legislative efforts that serve no proper purpose other than to favor a privileged few in efforts that clearly damage the broader society (this is another way of saying they don't serve the legitimate purposes of copyright in the first place). That said, however, the core of copyright has a long and well-recognized place in American law and (I believe) broad significant support from the many people who believe that creative efforts should not be treated as common property but should be protected (within limits) for the benefit of their creators.
It thus seems to me irrelevant to say that IP is not a "fundamental" right (I would agree that IP rights are not fundamental in the constitutional sense). Yes, Congress could constitutionally act to repeal the implementing statutes. But so what? Copyright has been consistently implemented and enforced in the U.S. since the beginning of the nation and there is every reason to believe that it will continue to be protected as "property" in the sense I describe above for many years to come. Copyright may not be "fundamental" in the constitutional sense but it is deeply entrenched in our nation and (in my view) continues to have strong support among the broader public. One can support it while adamantly opposing SOPA. The two should not be confused.
I do not say that copyrights (and patents) are illegitimate by nature. All I'm saying is that it's important to keep in mind why copyrights exist: it is not because the Founders thought it was a fundamental, inalienable right, it is because IP is a pragmatic solution to a practical problem: how do you encourage people to put forth the effort required to invent things and create art? The default state is not that people have a "right" to their work, the default state is that everything is in the public domain, and copyrights and patents are a deviation from that ideal. They are a legitimate deviation for a legitimate purpose, but a deviation nonetheless. I think that it becomes clearer that SOPA is illegitimate when viewed with that perspective.
One might argue that the "default state" for all forms of property, including my car and dinner plates, is in the public domain. What fundamental law that transcends the Constitution says my car is "mine"? Yeah the Constitution has some base in natural law, but that's subjective western thought too, nothing universal. I agree 100% that IP laws today need tweaking, or scrapping, but GP is right that the philosophical debate over it is an unrelated issue.
Taking your car or movie is a fundamental issue.
Copying your car or movie is not.
Edit: reflecting on my comment I realize everyone, me included, is looking at this wrong. There is a Constitutional issue - Fourth Amendment "secure in papers and effects". Nobody has a right to just look at & act on the contents of your "papers" (now extending to digital video etc), and contractual access thereto must be respected. You may not like the contracts limiting access to something, but you have a natural obligation to respect them. Copyright and patent law were stopgap measures in place for where such controlled access was hard to implement.
Indeed, communists do argue that, and the experiment of basing a society on that theory has been done a number of times. The outcomes have generally been poor.
There is also a physical difference, which has been pointed out many times: if I take your car and dinner plates, you no longer have them. If I make a copy of your data, you still have it.
There is also a contemporary debate about whether the term of ownership for physical property should be for limited times, or whether rent should be charged on physical property. Of course, the debate is not framed this way, it is instead framed in terms of levying property taxes, sales, taxes, and inheritance taxes. This is another example of how framing the debate can affect the outcome.
> it is not because the Founders thought it was a fundamental, inalienable right, it is because IP is a pragmatic solution to a practical problem: how do you encourage people to put forth the effort required to invent things and create art?
Is this accurate? Many of the early thinkers applied Lockean property theory to intellectual property and we have many of them referring to it as a right. John Locke himself thought that his theory justified intellectual property rights, even before the particular legal concepts of patents and copyrights existed. Whether or not you agree with Locke, it seems false to claim that those who created IP laws in the U.S. would not have been influenced by such thinking.
In fact, many early US court cases used Lockean property theory to justify patents and copyrights, suggesting that they did not view it as just a pragmatic solution to the problem you bring up, but a fundamental right.
Here's one recent source to justify what I am claiming:
I'm sure some people back then believed in IP as a fundamental right, just as some do today. But the authors of the Constitution manifestly went out of their way to distinguish between physical and intellectual property, and to constrain IP protection in ways that physical property protection is not. I haven't read Locke so I can't speak to that. However:
> we have many of them referring to it as a right
It is a right (re-read the text: "... to secure ... the exclusive Right to...") but it's not a fundamental right. Not all rights are created equal. There are fundamental rights (sometimes called "recognized" rights) which are the inalienable rights to which men are endowed by their Creator (to use the terminology of the Declaration). These exist independent of any law. Then there are other "granted" rights, which exist because a law has been passed. For example, the right to vote is a granted right in the U.S., not a fundamental right. Granted rights can be taken away by changing the law. Recognized rights can't. At least that's the theory.
I think the current copyright laws are already too overreaching and need to be overhauled. They are basically owning a work forever now, and that's not how copyright was supposed to work. Copyright was supposed to protect the creator for a while, and then release it in the public domain, so other creators can make variations of it, and further enrich the culture, which was actually the ultimate goal of copyright.
Protecting the creator was just a means to an end, not the very end itself, which is how MPAA and RIAA are acting right now - like they own everything and forever (with the perpetual 20 year extensions), and are entitled to laws that further protect it, no matter what other rights they abuse to do that (case in point: SOPA, Internet disconnections, ISP monitoring for piracy, etc).
And no, "intellectual property" is not just like real property. Why? Because you can't just take someone's property and make variations of it, but you can do it with creative works, and it has been done since the beginning of time. And again, this was the ultimate goal of copyright, to allow other people later on to use those works, for the betterment of the whole society:
So don't assume that just because they named it Intellectual Property now, it's exactly the same as real property. It's actually more unlike real property than it is like it. IP is more of a misnomer in this case. It's the same thing with patents. It's probably safe to assume that they changed it to that name exactly because people would think of it as real property, and give them more control over it than they ever should've had.
I think you're absolutely right: this is very much a philosophical matter, rather than a legal one. There are plenty of reasons to oppose SOPA, after all, both philosophical and practical. But to return to and expand upon the philosophical side of things, here is an excerpt from a good review of Patry's _Moral Panics and the Copyright Wars_ that deals with some of these issues:
"Patry’s book focuses on the role rhetoric and metaphor have played in legislative and public debates relating to copyright lawmaking, and how they were instrumental in the continuous expansion of copyrights in both duration and scope. In particular, Patry explores the function metaphors like 'property' and 'piracy' have played in the lawmaking process. Because abstract concepts such as copyright law are difficult to grasp, people tend to rely upon and fall prey to imperfect metaphors, especially when they are used repeatedly by industry lobbyists.
Patry is no fan of a common stock of well-worn copyright metaphors, and he attacks one after another: expressive works as bearing a personal relation to their author (the 'copyright as giving birth' and 'orphan works' metaphors), ownership of copyrighted works as an absolute, unlimited title (the 'property' metaphor), copyrighted works as the singular product of genius (the 'creation on a clean slate' metaphor), and the money to be earned from copyrighted works as the rightful reaping of what an author has sown (the 'agrarian' metaphor).
In Patry’s view, these inapt metaphors serve only to distract us from the real issue, which is how to structure copyright law - a form of economic regulation - to best promote authorship, learning, innovation and progress. And while Patry documents various rhetorical tricks played on Congress’s floor, he also laments what has been missing from the debate: 'in my 27 years of practicing copyright law, I have never seen a study presented to Congress that even makes a stab at demonstrating that if the proposed legislation is passed, X number of works that would not have been created will be.'
Central to Patry’s argument is the structural role that 'moral panics' have played in this process, namely the furtherance of a public state of hysteria respecting illusory threats emanating from 'folk devils'. Such panics often concern youth behavior and new technologies, both of which are not well understood and portrayed as a danger to core social values. Such panics are manufactured in order to capitalize on public (over)reaction to such (imaginary) threats in order to advance economic and social regulation that entrenches incumbent interests. Moral panics contain the following elements: the suggestion that a dire state of emergency is being brought about by a new threat to social order; the suggestion that swift action must be taken in order to prevent imminent social harm; the presentation of false and misleading data to lawmakers regarding the magnitude of that harm; and the suggestion that preemptive action - in this case action protecting copyright industries - serves the national interest. As one would suspect, Jack Valenti makes guest appearances throughout the book."
Law may take all sorts of forms. In the U.S., it may take the form of a federal constitution or a state constitution, or of a federal statute or a state statute, or of a federal administrative regulation or a state administrative regulation, or of a federal court decision or a state court decision.
For example, with patents, you have a constitutional provision that empowers the federal legislative branch to authorize grants of limited patent monopolies, you have federal statutes dating back to 1792 that implement that authority by conferring rights on inventors to apply for and obtain patents, you have a regulatory framework under the USPTO that sets out a framework for evaluating what is or is not patentable, and you have federal courts that adjudicate disputes affecting the enforcement of patent rights. One can argue over whether patent grants are "property" or not but this is really more a philosophical argument than a legal one. Those who oppose patents philosophically will argue that patents are nothing more than monopoly grants that cannot be said to have equal dignity with tangible forms of property and that are therefore not worthy of the label "property." In this view, the "property" label has merely been hijacked by those who seek to unfairly skew the debate over whether patent monopolies should ever be granted in the first place. Yet, while this sort of discussion frames the philosophical debate, the law gives patent holders a full complement of rights that confer all the attributes of property: under indisputable governing law today, such rights can be owned exclusively by someone to the exclusion of all others, they can be licensed to others by the rights holder via a license in exchange for value given (fees or royalties, one-time or recurring) or otherwise, either exclusively or non-exclusively, they can be assigned, transferred, or sold for valuable consideration, they can be passed by inheritance in the case of individuals or sold out of bankruptcy court in the case of any holder, and each successive buyer of the rights has valuable, exclusive rights that certainly resemble "property" whatever the philosophical arguments pro or con in using that label. When the Nortel patents sell for several billion dollars on auction, or when Google buys Motorola for many billions of dollars when the main asset is its patent portfolio, the commercial players are buying valuable intangible assets, i.e., bundles of legal rights that can be possessed, used, improved upon, bought, sold, sued upon, and legally enforced to the exclusion of others. In every functional sense, that is "property" whether it is ultimately some fundamental right or not in the philosophical sense.
The same goes for copyright, which protects tangible forms of creative expression, whether writings, films, compositions, software code, or many other items. As with patents, the rights associated with legal protections of such creative expressions can have huge value and such rights can be "owned" by a specific holder to the exclusion of all others, can be licensed, sold, gifted, passed by will, etc. in much the same manner as can tangible forms of property. Such rights, then, in a legal functional sense, have all the attributes of "property" whatever they may be in a fundamental, philosophical sense.
The same goes for trademarks - a form of intangible right by which the law protects a merchant's right to use marks or symbols to identify the origin of goods or services so that others cannot fraudulently pass off their goods or services as those of another. Unlike patents and copyrights, trademarks have their origin in judicial decisions by which the courts decided to grant forms of "property" protection to protectible marks created by merchants while selling their goods or services in commerce. Later, federal statutes and regulatory structures were set up to facilitate more efficient registration of such marks. The result, though, is the same as in the case of patents and copyrights: trademark rights can be bought and sold, licensed, sued upon for enforcement, etc. in all the ways that tangible forms of property can be and in this legal, functional sense they are "property" as much as anything else can be called that.
So too trade secret rights are ascribed to commercial information that is both proprietary (i.e., "owned" by someone) and confidential and such rights similarly can be sold, etc., as in asset sales or stock sales by which entire companies are acquired.
At every level of law (federal and state constitutions, statutes, regulatory bodies, and courts), the foregoing forms of intangible rights are recognized and protected as "property." In the legal sense, then, IP is indisputably treated as "property" whether or not it is "fundamental."
SOPA is illegitimate not because copyrights are illegitimate by nature but because it seeks to take a reasonable enforcement scheme relating to copyrights across the web and turn it into a bastardized version that is grossly unfair and highly destructive. One can argue that copyrights are illegitimate by nature but that is a philosophical argument and not a legal one. Legally, copyrights have consistently been enforced in the U.S. since the adoption of the federal constitution. Are they always legitimately enforced? As a matter of policy, they have not been, in my view. The copyright extensions, the grabbing of public domain materials to put them back in copyright, etc. have been products of grotesque lobbying efforts and cravenly legislative efforts that serve no proper purpose other than to favor a privileged few in efforts that clearly damage the broader society (this is another way of saying they don't serve the legitimate purposes of copyright in the first place). That said, however, the core of copyright has a long and well-recognized place in American law and (I believe) broad significant support from the many people who believe that creative efforts should not be treated as common property but should be protected (within limits) for the benefit of their creators.
It thus seems to me irrelevant to say that IP is not a "fundamental" right (I would agree that IP rights are not fundamental in the constitutional sense). Yes, Congress could constitutionally act to repeal the implementing statutes. But so what? Copyright has been consistently implemented and enforced in the U.S. since the beginning of the nation and there is every reason to believe that it will continue to be protected as "property" in the sense I describe above for many years to come. Copyright may not be "fundamental" in the constitutional sense but it is deeply entrenched in our nation and (in my view) continues to have strong support among the broader public. One can support it while adamantly opposing SOPA. The two should not be confused.