I write this month in CIO Insight, href="http://www.cioinsight.com/article2/0,1540,2124841,00.asp">“IP Law vs. Moore’s Law,” that the legal fiction treating intellectual creations as a kind of property has proven less and less useful as technology for creating, reproducing, and distributing those creations has grown faster, cheaper and smaller.
As partisans on both sides line up to begin shooting at each other in a copyright war, it's worth remembering that the fiction of intellectual property law was only an approximation. IP has never been given the same degree of legal protection as personal property or real estate, and for a very good reason.
From the Middle Ages, it has been understood that civilization only advances when the intellectual creations of all those who have gone before us are freely available--and by freely I mean cheap and with minimal transaction costs. Bernard of Chartres is credited with the phrase "dwarfs standing on the shoulders of giants," a metaphor for the incremental improvements each generation makes on the work of its predecessors.
The metaphor is rendered literally in the lancets of the South Rose window at Chartres Cathedral (c. 1200), where the New Testament authors are shown standing on the shoulders of their Old Testament counterparts. Sir Isaac Newton paraphrased Bernard in the seventeenth century to explain his improvements to our understanding of natural phenomenon.
IP protection is a necessarily evil--necessary to encourage the creation of new ideas and other "content," evil because the grant of a monopoly slows the speed with which that content enters the public domain. Finding the right balance has been a feature of every IP regime, starting with the Statute of Anne (1710).
It's also worth remembering that even as the balance seems to have eroded in the last century in the direction of over-protection, at least as far as limiting the duration of the monopoly, there are still other limits that persist--limits on the nature of intellectual creation that is worthy of copyright (my novel, yes, my shopping list, no), the degree of control (expression, yes, ideas, no), and the distribution of copies (no restriction on resale of authorized copies), and so on.
Which is a good thing for novelist Mark Helprin, whose silly op-ed in a recent New York Times called for the removal of all limits on the copyright monopoly. As the author of a novel entitled "A Winter's Tale," Helprin would have needed to seek out the descendants of William Shakespeare (all of them, presumably), for permission to use the title of Shakespeare's play of the same name.