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Intellectual Property and

Information Control

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Intellectual Property and

Information Control

Philosophic Foundations and

Contemporary Issues

Adam D. Moore

Transaction Publishers

New Brunswick (U.S.A.) and London (U.K.)

Copyright © 2001 by Transaction Publishers, New Brunswick, New Jersey

08903.

All rights reserved under International and Pan-American Copyright Conven￾tions. No part of this book may be reproduced or transmitted in any form or by

any means, electronic or mechanical, including photocopy, recording, or any

information storage and retrieval system, without prior permission in writing

from the publisher. All inquiries should be addressed to Transaction Publishers,

Rutgers—The State University, New Brunswick, New Jersey 08903.

This book is printed on acid-free paper that meets the American National Stan￾dard for Permanence of Paper for Printed Library Materials.

Library of Congress Number: 2001027885

ISBN: 0-7658-0070-5

Printed in the United States of America

Library of Congress Cataloging-in-Publication Data

Moore, Adam D.

Intellectual property and information control : philosophic foundations and

contemporary issues / Adam D. Moore.

p. cm.

Includes bibliographical references and index.

ISBN 0-7658-0070-5 (alk. paper)

1. Intellectual property—United States. 2. Computer systems—Law

and legislation—United States. 3. Data transmission systems—Law

and legislation—United States I. Title.

KF2979 .M66 2001

346.7304'8—dc21 2001027885

Dedicated to Kimberly, Alan, and Nancy

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Contents

List of Tables ix

Preface xi

Acknowledgments xiii

1. Introduction and Overview 1

2. The Domain of Intellectual Property 9

3. Against Rule-Utilitarian Intellectual Property 37

4. A Pareto-Based Proviso on Original Acquisition 71

5. Toward a Lockean Theory of Intellectual Property 103

6. Justifying Acts, Systems, and Institutions 121

7. A New Look at Copyrights, Patents, and 147

Trade Secrets

8. Intangible Property: Privacy, Power, and 181

Information Control

9. Employee Monitoring, Nondisclosure 195

Agreements, and Intangible Property

10. Owning Genetic Information and Gene 211

Enhancement Techniques

11. Information Control and Public Policy: 223

The Encryption Debate

Bibliography 237

Index 249

List of Tables

Table

1.1 Worldwide Software Piracy Table

2.1 Systems of Property

2.2 Simplified Relationships Between Patents, Copyrights,

Trademarks, and Trade Secrets

4.1 The Baseline Table

4.2 Opportunities Table

5.1 Rivalry of Goods

6.1 Pareto Superiority and Private Property Relations

6.2 Levels of Justification

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Preface

This work contains numerous arguments, sketches, views, and

theories and not all are central to the main thesis. I have tried to

make the model of intellectual and intangible property presented in

these pages accessible while maintaining a fair amount of rigor and

depth. I thus skirt the line of boring the expert and overwhelming

the novice. My hope is that I have done neither.

After gaining the overview offered in chapter 1, the reader who

wishes to move rapidly may want to skim or omit certain sections or

chapters. Chapters 3-6 are the argumentative core of the book while

chapters 7-11 contain applications of the theory. Sections of chap￾ters are appropriately titled so that the reader can quickly surmise if

skimming or omission would be appropriate. For example, experts

in moral theory may want to skip the second section of chapter 3

entitled A General Overview of Utilitarian Theory while those well

versed in intellectual property law (copyrights and patents) may want

to omit the first few sections of chapter 2.

The claim that “there is room for words on subjects other than last

words” is certainly true of this work. I do not pretend to offer a

complete theory that is unassailable and neatly packaged — the moral,

legal, and political issues discussed herein are resistant to easy an￾swers. What you will find is an intuitive model of intangible prop￾erty that is both clearly presented and well reasoned. The tensions

between intellectual property, information access, privacy, free

speech, and accountability have been highlighted with the coming

of the networked world. My hope is that this work will add to what

has become a lively area of philosophical debate.

A.D.M.

xi

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xiii

Acknowledgments

I would like to thank Don Hubin (Ohio State University) and Pe￾ter King (Ohio State University) for reading and commenting on the

first draft of the manuscript. Their comments and criticisms have

profoundly influenced this work. Thanks to David T. Wasserman

(University of Maryland, College Park), Ken Itkowitz (Marietta Col￾lege), Jim Swindler (Wittenberg University), Earl Spurgin (John Carol

University), Avery Kolers (University of Arizona), Richard Garner

(Ohio State University), Nancy Snow (Marquette University), Dan

Farrell (Ohio State University), and John Moser (Institute for Hu￾mane Studies) for commenting on specific chapters or sections.

Chapters 3, 4, 5, 8, 9, and 10 benefited significantly from being

presented at various conferences and colloquia series including:

Pacific Division Meeting of the American Philosophical Association

(April 2000); 27th Conference on Value Inquiry (April 1999); Mid￾South Philosophy Conference (March 1999); Ohio Philosophical

Association Conference (April 1998); Central Division Meeting of

the American Philosophical Association (1997); and the Mountain

Plains Philosophy Conference (1997). My gratitude to those confer￾ence participants who provided helpful comments and suggestions.

Parts of chapters 1, 4, and 6 appear in “Introduction to Intellec￾tual Property” and “Toward a Lockean Theory of Intellectual Prop￾erty” in my edited anthology, Intellectual Property: Moral, Legal,

and International Dilemmas (Rowman and Littlefield, 1997). Ear￾lier versions of sections of chapters 4 and 7 appear in “A Lockean

Theory of Intellectual Property” found in the Hamline Law Review

21 (Fall 1997). Chapter 8 draws directly from material that origi￾nally appeared in “Intangible Property: Privacy, Power, and Infor￾mation Control,” American Philosophical Quarterly 35 (October

1998). Material from an earlier version of chapter 9 was published

in Business Ethics Quarterly 10 (July 2000) entitled “Employee

Monitoring and Computer Technology: Evaluative Surveillance v.

xiv Intellectual Property and Information Control

Privacy.” Chapter 10 contains material published in Bioethics 14

(Spring 2000) entitled “Owning Genetic Information and Gene En￾hancement Techniques.” Chapter 11 draws from an article, “Privacy

and the Encryption Debate,” in Knowledge, Technology, and Policy

12 (Winter 2000). I thank editors of these publishers for allowing

me to present this material here.

A special thanks to my friends and loved ones who have sup￾ported me throughout the writing process—Scott Rothwell, Mark

VanHook, Walter James, Bill Kline, Nick Morse, James Summerford,

Nancy Moore, Alan Moore, and Kimberly Moore.

I also would like to thank Nancy Moore for reading, editing, and

commenting on an early draft and the Institute for Humane Studies

(George Mason University, Fairfax, VA) for a summer fellowship

(1997) that provided much needed support during the initial writing

stages.