Reviewed by Arthur L. Morin
How do these systems of categorization come to be? It appears that our ability to identify/create/articulate categories is significantly -- if not totally -- dependent on the use of language. At the most obvious level, words are how we express and/or explain these categories. As long as there is no disagreement about (a) the meaning of the words, or (b) how words are used to express/explain the categories, the only problematique is (c) to create/discover the categories. Koepsell attempts to satisfy (a) and (b) by resorting to the commonsense meaning of words. However, this creates a Second Problem, the problem of meaning -- but I will defer a discussion of this problem until later. Let us, for the moment, assume that (a) and (b) can be satisfied by relying upon the commonsense meaning of words. That still leaves (c) how to create/discover/articulate the categories.
Koepsell considers two methods by which a legal system of categorization can be developed/discovered.2 One method is a priori reasoning. The other method is empiricism: discerning the system of categorization that is embedded in a legal system through a careful study of it. In either case, if it is to be a logical and consistent system of categorization, then the system must follow all the rules of logic: the system cannot "violate the laws of noncontradiction or excluded middle, or other logical laws" (footnote 1, page 33). A system that meets these criteria is a "'correct' ontology" (33). However, one may find, from the study of a legal system, that the system of categorization embedded in it does not conform with all the logical laws. It is still an ontology, but it is a "'crude' or 'naive' ontology . . . When existing legal ontologies do not comprise correct ontologies, certain practical problems, inefficiencies, or injustices may arise as a consequence" (ibid.). Koepsell's basic claim is that, with regard to intellectual property law -- which pertains to cyberspace -- the American legal system is/has a crude or naive ontology; it needs to be revised.
But let's not go there quite yet. Let's return to a consideration of the two methods. Both methods provide a way to categorize objects. For Koepsell, the term "object" applies to anything tangible or sensible and to any thought a person has. Thus a moral/legal claim is an object. Koepsell relies upon Adolf Reinach to provide an example of the a priori method. Reinach is able to discern when a claim arises (in the moral/legal sense) by examining and developing "categories of legal objects without reference to existing legal categories, but rather [doing] so from first principles" (34). What does Reinach find? "Reinach concludes that claims arise when people make promises which are accompanied by both an inward and outward acceptance" (37).
Koepsell finds Reinach's method incomplete and also inapplicable in certain cases. According to Koepsell, a complete method should examine "the treatment of the legal object within existing legal systems . . ." A complete method should check "whether existing legal systems employ the correct ontology" and, if a naive or crude ontology is being used, "whether it results in problems such as economic inefficiencies or injustice." If there are such imperfections, the method should "[determine] whether altering the law to reflect the correct ontology will avoid these woes" (39). Reinach's method does not do these things. This is not a fair criticism of Reinach, because Koepsell really is asking Reinach to create both an ontology and a system of justice (the First Problem).
The a priori method (Reinach's method) is inapplicable in certain cases because some objects have "no a priori elements or features" (40). Positive law is developed to deal with these cases. Positive law is a social artifact derived from consensus. Without consensus, we have the Second Problem -- more on that later. Koepsell believes that laws pertaining to intellectual property are purely positive laws. Developing an ontology of positive law can be done by using the empirical method but not the a priori method. (Koepsell leaves open the possibility that there may be other methodologies; he wants to make sure that we do not dismiss the need to develop an ontology if we find that the methods he uses are unsatisfactory.) Intellectual property law pertains to cultural objects, which is why intellectual property rights cannot be derived a priori. Intellectual property rights are created by positive law.
Cyber-objects are one kind of cultural object, but they exist in cyberspace. According to Koepsell, "cyberspace is nothing very special . . . [it] is just another expressive medium" (1). He argues that Michael Heim falls short in his attempt to develop an ontology of cyberspace.3 Koepsell believes that in order to develop an ontology of cyberspace we must understand that an object is "intelligible" or "sensible" or both (78). According to Koepsell, "All computer-mediated phenomena are sensible" (78). The components of cyberspace include bits, bytes, words, algorithms, and programs (78, 79). These components are information in a certain form -- though Koepsell also states that bits "are not information, they are a medium by which information is conveyed, stored, or retrieved [emphasis in the original]" (86).4 Hardware is a requisite: "As space is to ordinary objects, so storage media are to cyber-objects . . . cyber-objects are ontologically dependent upon storage media for their existence" (80). However, the storage media are not part of cyberspace. The Internet is a network but it is not synonysmous with cyberspace. But Koepsell does not seem to fully understand the nature of cyberspace. He argues that "the functionality of a network is like that of a computer, only on a larger scale" (82). Yes, but a network is also more than just a computer on a larger scale. A network is a system of multiply connected computers. Several computers operating independently cannot have the same functionality as computers operating interdependently. One simple example of this is a list-serv. A list-serv makes it possible for many individuals to receive and read the same message at the same time. Another example: in its current state, the global electronic network is capable of both 'narrow-casting' and 'broadcasting.' Neither of these functions could be performed by several computers operating independently.
Cyber-objects fall under positive law, and as stated intellectual property law is positive law. Koepsell briefly discusses the history and current status of patent, trademark, and copyright law. He claims that "The law of intellectual property makes, in all of its branches, an important primary distinction between ideas, which are never the subject of exclusive rights, and other things which may be the subject of property rights" (51). In its current form, intellectual property law pertains to objects that can be copyrighted and objects that can be patented. According to Koepsell, intellectual property law makes distinctions on the basis of a particular kind of functionality: it places objects with aesthetic value (books) in the first category and objects with utilitarian value (machines) in the second. We can now return to Koepsell's claim that, with regard to intellectual property, the American legal system has a crude or naive ontology (thus we end the detour that began with the fourth paragraph). Koepsell believes that intellectual property law is now a crude ontology because some software has been patented and some software has been copyrighted. Thus as it stands intellectual property law violates the laws of logic and is therefore not a correct ontology. Koepsell also believes that we are now in a position to see that the distinction between 'aesthetic' and 'utilitarian' is problematic. The upshot: we must "[abandon] the false dichotomy between subjects of patent law and those of copyright" (124). Cyber-objects -- objects that exist in cyberspace -- are just as much objects as books, or tables. How then should we treat software, cyber-objects, and other intellectual property? "[A]ll man-made objects which are intentionally produced are expressions and should be treated equally as intellectual property" (128). In other words, the category of 'intellectual property' has a monadistic quality: it cannot be further divided.
In fact, Koepsell would prefer to remove altogether intellectual property's legal protections. Why? Protecting intellectual property may be advantageous to the innovator, but it stifles further innovation. Because innovation can occur so rapidly, and because it is profitable to market new products, or to add a special feature or feel to an existing product, innovators can still make money. Without legal protection, the incentive is to innovate. Now we are clearly in the realm of a theory of justice: in effect, Koepsell is arguing that it is better for us, collectively, to favor innovation. However, it may be that the basis for distinguishing between an object covered by patent law and an object covered by copyright law is fundamentally sound and that we now have a Third Problem: Koepsell's categorization.
Let us start with a consideration of the Third Problem before we take up the other two. Imagine a simple solution to the question 'how to categorize software' that retains the 'patent-copyright' distinction. Here is the simple solution: In the case of software-as-hardware (e.g., software in the form of an integrated circuit), then patent law is the proper category. In all other cases (e.g., software stored on a CD or written as a program), copyright is the proper category. This simple solution would preserve the 'patent-copyright' distinction that has been accepted in the past, and thus we would not have to build a new social consensus around Koepsell's proposal. The weakness of my simple solution is that, compared to Koepsell's proposal, it may dampen innovation. The issue really boils down to what balance we as a society think is best. Right now, protection of intellectual property is balanced against the drag on innovation such protection creates: "Patent law protects the expression of ideas via machines, but is very limited in time for which protections are granted. This is because patents can often foreclose the development of a particular idea when that idea can be expressed in a very limited number of ways. Copyright laws are broader [sic] in length of time for which protection may be granted because the ideas expressed by visual, verbal or auditory symbols may be expressed in a virtually unlimited number of ways . . ." (94).
The form being protected by current copyright laws is the particular arrangement of the parts of the object -- for example, the idea expressed in a book is not copyrighted, but the particular order of the words is (i.e., the unique way in which the ideas are expressed -- which is why academicians get so heated about plagiarism). The simple solution to categorizing software, outlined above, would ask: "what form is it in?" and then fit the software into the proper category. To say that such an approach is wrong is to leave ontology and enter a discussion on what is just. One can, after all, argue that software-as-hardware has certain advantages that software-as-written-code (for example) does not. The reverse is also true. In fact, Koepsell recognizes that how we value an object plays a role in how it is treated by the law (see page 102; see also pages 111, 114, 117, and 128). Additionally, historical precedent pushes us toward my (as opposed to Koepsell's) solution. I am not convinced that the legal problems caused by software should move us to abandon the distinction that is now made in intellectual property law.
This brings us to the First Problem. I believe Koepsell errs when he claims that "a complete ontology of the law would account for all legal objects including such things as rights and obligations" (115). The purpose of commonsense ontology is to discover the characteristics of a particular object. An ontology of a positive law could describe the characteristics of that law -- what its constituent parts are and whether it violates any rules of logic. But, it seems to me, that once we begin to make judgments pertaining to a social order regarding the rights a person has, and how those rights are weighed against other rights or community interests, we leave ontology and enter the realm of justice (unless, of course you're a Platonist, in which case you may want to argue that they are one and the same). To put this point differently, Koepsell's idea of a legal ontology encapsulates both an ontology of objects and a theory of justice: a method of telling us how those objects (or their characteristics) should be valued. Yes, Koepsell may be concerned about what cyberspace is (the ontology of cyberspace) but what drives this concern is another concern: how software should be valued by society (justice in cyberspace).
This leaves us with the Second Problem: why reliance on commonsense meanings is problematic. When (a) societies experience relatively little change, and there is also (b) fairly widespread agreement on social values where (c) language has remained relatively constant, then (d) arguing for using the commonsense meaning of words is almost self-evident. But when (a) societies experience rapid change, (b) social values are multivalent, fluid (from a historical perspective), and challenged, resulting in (c) a contested language, then (d) what is "commonsense" is itself a matter of dispute. In such a situation, 'commonsense' ontology becomes problematic. Perhaps there is enough consensus in our society regarding the characteristics of cyberspace that a commonsense ontology of cyberspace is possible. On the other hand, one could argue that such a consensus has not yet emerged, and that one of Koepsell's objectives is to help develop that consensus. One could also argue that an effort to develop an ontology of cyserspace may be premature because we do not yet fully understand its characteristics -- the nature of cyberspace may still be unfolding.5 We shall see.
Another example of this lack of care is his definition of software. On page three he defines software as "the symbolic code which acts upon computers to turn certain input into specific output." Yet in footnote six on that same page he writes: "Early computers, such as ENIAC, consisted only of switches, which, when manually switched, computed various functions. The act of flipping those switches was, in such cases, the introduction of software to the hardware of the computer." Yes, there is a similarity in function (which makes software comparable to the roll in a player piano or the card in a loom - see pages 60 and 61), but it unduly stretches the meaning to say that 'manual switching' is 'software.'
A third example can be found on page 78. Here, Koepsell states: "The term 'bit' is short for 'binary digit' and is the smallest unit of information. Computers which employ binary logic consist of switches which may be in one of two states . . . In binary mathematics, bits are repesented by the numerals '0' and '1'." But then in the footnote at the bottom of the page, Koepsell states: "All of our perceptions are of analog information . . . Most things which we perceive fall somewhere on a continuum and not as either ones or zeros . . . All of the information between zero and one is analog." Doesn't that mean that a bit is NOT the smallest unit of information?
A fourth example, referred to in the body of the text: On page 78, Koepsell states: "The term 'bit' is short for 'binary digit and is the smallest unit of information." Then on page 86, he states: "Bits are not information, they are a medium by which information is conveyed, stored, or retreived [emphasis in the original]."
A fifth and final example: "An ontology which is to include every possible object might start with the following basic categories: intelligible and sensible. Every object which may be thought of will fit into one of these two categories. A ukelele is both an intelligible and a sensible object" (78). So why not just say "Every object that may be thought of will fit either one or both of these two categories"?
Arthur L. Morin is an Assistant Professor in the Department of Political Science and Justice Studies at Fort Hays State University in Hays, Kansas. He has taught classes in public administration, American government, and current political issues, and has with another faculty member offered 'distance' education classes in political theory. He has published in both traditional and electronic media. [back to text]