intellectual property
twojestudia.pl
What is the best definition?
Thanks,
Luke
Arnoud Galactus Engelfriet
twojestudia.pl <luk...@twojestudia.pl> wrote:
>What is intellectual property?
>What is the best definition?
For many people, the term "intellectual property" (IP) or
"intellectual property rights" (IPR) covers patents, copyrights,
trademarks and database rights. Other IP rights are trade secrets,
plant breeder's rights, semiconductor topology rights and geographical
indications.
Legal scholars often make a distinction between intellectual and
industrial property. Intellectual property then covers copyright and
related rights, whereas industrial property means patents, trademarks,
trade secrets, plant breeder's rights and so on.
Today the distinction between the two has almost disappeared. Most
people use "intellectual property" as a catch-all term, including
patents and other items that traditionally were considered "industrial
property."
For more information, see my site:
http://www.iusmentis.com/ip/
Arnoud
--
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
PTravel
"twojestudia.pl" <luk...@twojestudia.pl> wrote in message
news:%zDkf.13678$Yo5....@fe1.news.blueyonder.co.uk...
> What is intellectual property?
> What is the best definition?
Intellectual property is intangible property, as distinguished from real
property and personal property.
It includes copyright, trademarks, patents and trade secrets.
The legal practice area of intellectual property also includes licensing,
rights evaluation and acquisition, and related issues, e.g. First Amendment
issues, defamation, right of publicity and various contracts issues.
> Thanks,
> Luke
>
>
Ben Pfaff
> What is intellectual property?
"Intellectual property" is a term invented to induce confusion.
It should not be used. For more information, read Richard
Stallman's essay on the topic:
http://www.gnu.org/philosophy/not-ipr.xhtml
--
"The road to hell is paved with convenient shortcuts."
--Peter da Silva
Roger Schlafly
>> What is intellectual property?
> "Intellectual property" is a term invented to induce confusion.
> It should not be used. For more information, read Richard
> Stallman's essay on the topic:
> http://www.gnu.org/philosophy/not-ipr.xhtml
What did he do? Design a web page that would work on
everybody's browser except Msft's? Is that a legitimate
business practice? <g>
Ben Pfaff
> "Ben Pfaff" <b...@cs.stanford.edu> wrote:
>>> What is intellectual property?
>> "Intellectual property" is a term invented to induce confusion.
>> It should not be used. For more information, read Richard
>> Stallman's essay on the topic:
>> http://www.gnu.org/philosophy/not-ipr.xhtml
>
> What did he do? Design a web page that would work on
> everybody's browser except Msft's?
According to validator.w3.org, that webpage is "Valid XHTML 1.0
Strict".
> Is that a legitimate business practice? <g>
If Microsoft would create a web browser that would conform to web
standards, then there would be no problem, would there?
But in fact, the FSF guidelines for webpages, which are at
http://www.gnu.org/server/fsf-html-style-sheet.html
explicitly state that Internet Explorer should be used for
testing. You could drop the webmasters a line if it bothers you
that IE doesn't work on that page.
--
Ben Pfaff
email: b...@cs.stanford.edu
web: http://benpfaff.org
d...@soundmathtech.com
Ah, the guy who argued that programmers should be paid less, preferably
nothing,
in order for them to work better ???.....
Yeah, study his writings ... I can give couple more references to RMS's
"intellectual legacy", like GNU manifesto and his KHT speech - truly
amazing examples of lunacy, to put it politely...
Ben Pfaff
> Ben Pfaff wrote:
>> "Intellectual property" is a term invented to induce confusion.
>> It should not be used. For more information, read Richard
>> Stallman's essay on the topic:
>> http://www.gnu.org/philosophy/not-ipr.xhtml
>
> Ah, the guy who argued that programmers should be paid less, preferably
> nothing,
> in order for them to work better ???.....
Do you have any actual argument against what he says in the
essay, or are you planning to just bring up irrelevancies?
PTravel
"Ben Pfaff" <b...@cs.stanford.edu> wrote in message
news:87iru41...@benpfaff.org...
> d...@soundmathtech.com writes:
>
> > Ben Pfaff wrote:
> >> "Intellectual property" is a term invented to induce confusion.
> >> It should not be used. For more information, read Richard
> >> Stallman's essay on the topic:
> >> http://www.gnu.org/philosophy/not-ipr.xhtml
> >
> > Ah, the guy who argued that programmers should be paid less, preferably
> > nothing,
> > in order for them to work better ???.....
>
> Do you have any actual argument against what he says in the
> essay, or are you planning to just bring up irrelevancies?
Okay, I'll provide actual argument against what he says, though most of the
essay is unsupported assertion and opinion. Here goes:
"One effect of the term is a bias that is not hard to see: it suggests
thinking about copyright, patents and trademarks by analogy with
property rights for physical objects. (This analogy is at odds with
the legal philosophies of copyright law, of patent law, and of
trademark law, but only specialists know that.)"
Intellectual property rights ARE property rights, just as real and personal
property rights are property rights. They are inheritable, assignable,
transferrable and alienable, as a matter of law. I have no idea by what the
author of the essay meant by claiming the analogy to other forms of property
rights is "at odds with the legal philosophies" of the applicable laws.
However, these "legal philosophies," contemplate intellectual property
rights that are, in every significant aspect, analogous to other forms of
property rights.
"According to Professor Mark Lemley, now of the Stanford Law School,
the widespread use of the term "intellectual property" is a fad that
followed the 1967 founding of the World "Intellectual Property"
Organization, and only became really common in the past few years."
I'm unfamiliar with Professor Lemley. However, I've been an intellectual
property lawyer since 1992, hardly "the last few years," and, moreover,
hardly a "fad."
"There is no such unified thing as "intellectual property". It is a mirage,
which
appears to have a coherent existence only because the term suggests it
does."
That will come as quite a shock to my clients. There most certainly is a
"thing" as "intellectual property." As for the author's use of the word,
"unified," that's a straw man -- there is no "unified" law of any kind of
property ownership. In the real property arena, leaseholds are treated very
differently from fee simple ownership. Does that mean that real property
law is, similarly, "not unified"? It is a distinction without a difference
and irrelevant to an understanding of the nature of rights addressed by the
term "intellectual property."
"The term "intellectual property" operates as a catch-all to lump
together disparate laws."
Well, of course -- in exactly the same way as "personal property law" is a
catch-all for laws addressing ownership of everything from automobiles to
firearms to fly flishing rods. Intellectual property, however, means a very
specific thing: INTANGIBLE property, i.e. products of the mind, that which
can not be held in the corporeal.
"Copyright law was designed to promote authorship and art, and
covers the details of a work of authorship or art. Patent law was
intended to encourage publication of ideas, at the price of finite
monopolies over these ideas--a price that may be worth paying in some
fields and not in others."
Right on copyright law, wrong on patent law. Both, at least in the United
States, since its founding, were intended as incentives to CREATION.
Apparently, the author is unfamiliar with the plain language of Article I,
Section 8 of the United Staets Constitution.
"Trademark law was not intended to promote
any business activity, but simply to enable buyers to know what they
are buying; however, legislators under the influence of "intellectual
property" have turned it into a scheme that provides incentives for
advertising (without asking the public if we want more advertising)."
Wrong again. Trademark law is intended to reduce consumer search costs by
ensuring that specific marks will be associated with specific levels of
quality (or the lack thereof). There are no "incentives for advertising" in
trademark law.
"I regularly find that experts on patent law, copyright law, and trademark
law, even law professors who teach these subjects, have been lured by the
seductiveness of the term "intellectual property" into general
statements that conflict with the facts they know. "
An example of an empty and unsupported assertion by the author. I'll simply
counter it with my own assertion: I RARELY find that experts on patent law,
copyright law and trademark law, even law professors who teach these
subjects, have been lured etc. etc. into general statements that conflict
with the facts they know.
"For instance, rich countries impose laws on poor countries to squeeze
money out of them. These laws often fit the category of "intellectual
property"--so people who question the fairness of these laws often use
that label, even though it does not really fit."
Oh really? How do "rich countries" do that? The US is trying to force some
laws on Iraq, but I wasn't aware that it included intellectual property law.
Iraq aside, I'm not aware of ANY countries that "impose laws on poor
countries to squeeze money out of them."
"The term "intellectual property" also leads to simplistic thinking.
It leads people to focus on the meager commonality in form of these
disparate laws, which is that they create special powers that can be
bought and sold, and ignore their substance--the specific restrictions
each of them places on the public, and the consequences that result."
And this is, perhaps, the stupidest statement of all. As I indicated,
earlier, the purpose of copyright law and patent law is as an incentive to
creation. Moreover, these incentives work, and have since the Statute of
Anne (and before). Trademark law works -- otherwise consumers would be
buying Kias branded Mercedes Benz. ALL law imposes specific restrictions on
conduct. The consequences that have resulted from intellectual property
law, generally, have been very favorable. The author's unsupported
assertion to the contrary, lacking even a single example, is not only not
credible, it's just ridiculous.
"These issues arise from the specifics, precisely what the term
"intellectual property" encourages people to ignore. For instance, one
issue relating to copyright law is whether music sharing should be allowed."
That's not an issue relating to copyright law. "Music sharing" is allowed,
and no law addresses it. The law does, however, address unauthorized
copying and distribution -- it's illegal in many (though not all)
circumstances under U.S. law.
"Patent law has nothing to do with this. But patent law raises the issue of
whether poor countries should be allowed to produce life-saving drugs and
sell them cheaply to save lives. Copyright law has nothing to do with
that."
An obvious, and incorrect, assertion. Patent and copyright address
different species of intellectual property law, just as landlord/tenant and
quitclaim deed law address different species of real property law. However,
patent law is specific to the country in which it is enacted -- U.S. patents
do not reach foreign soil, and vice versa.
So, there you have it. The author's article is rife with errors and betrays
a fundamental misunderstanding of the nature of intellectual property (not
to mention an obvious agenda).
I'm sure it is a favorite citation of college students who think they should
be able to download music for free. It is not, however, persuasive in any
sense of the word, and doesn't begin to address the real issues facing
intellectual property law today.
twojestudia.pl
about IP and got confused about the definition. Thanks a lot.
Luke
Uzytkownik "Ben Pfaff" <b...@cs.stanford.edu> napisal w wiadomosci
news:87zmng1...@benpfaff.org...
Chris Torrero
<ptr...@travelersvideo.com> writes
as BIRPI Bureaux Internationaux Reunis pour la Protection de la
Propiete Intellectuelle (United International Bureaus for Protection of
Intellectual Property) since 1893.
See http://www.wipo.int/about-wipo/en/gib.htm#P29_4637
>I'm unfamiliar with Professor Lemley. However, I've been an intellectual
>property lawyer since 1992, hardly "the last few years," and, moreover,
>hardly a "fad."
>
Remainder of PTravel's analysis deleted (because I agree with it and he
expressed it better than I could).
--
Chris Torrero
Ben Pfaff
Ben Pfaff wrote:
>> >> http://www.gnu.org/philosophy/not-ipr.xhtml
> "One effect of the term is a bias that is not hard to see: it suggests
> thinking about copyright, patents and trademarks by analogy with
> property rights for physical objects. (This analogy is at odds with
> the legal philosophies of copyright law, of patent law, and of
> trademark law, but only specialists know that.)"
>
> Intellectual property rights ARE property rights, just as real and personal
> property rights are property rights. They are inheritable, assignable,
> transferrable and alienable, as a matter of law. I have no idea by what the
> author of the essay meant by claiming the analogy to other forms of property
> rights is "at odds with the legal philosophies" of the applicable laws.
> However, these "legal philosophies," contemplate intellectual property
> rights that are, in every significant aspect, analogous to other forms of
> property rights.
Some analogies work. Many don't. That's the problem.
Here is an example. Copyright is granted, in the United States,
"To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors..." Thus, copyright must, according
to the constitution, be limited in duration. But analogy with
real property would suggest that it should be perpetual. In
fact, that analogy is often used by those in favor of longer
copyright terms, and with great success because the similarity of
terms makes the argument simple and persuasive. (Heck, *Mark
Twain* used that analogy in his own 19th century argument for
perpetual copyright terms.)
Another example: if I buy a loaf of bread, I can do anything with
it I like. That includes figuring out the ingredients, baking
more just like it, and selling them. If I buy a CD, I could get
in big trouble for the equivalent.
> "According to Professor Mark Lemley, now of the Stanford Law School,
> the widespread use of the term "intellectual property" is a fad that
> followed the 1967 founding of the World "Intellectual Property"
> Organization, and only became really common in the past few years."
>
> I'm unfamiliar with Professor Lemley. However, I've been an intellectual
> property lawyer since 1992, hardly "the last few years," and, moreover,
> hardly a "fad."
I'm not concerned about what specialists and lawyers know. The
problem is that laymen do not understand the wide range of
variety in intent and mechanism for everything classified under
the catch-all of "intellectual property." Ordinary people do not
have a good idea of the differences among copyright, trademark,
patent, and trade secret law. These differences often lead to
intentional or accidental confusion.
> "Copyright law was designed to promote authorship and art, and
> covers the details of a work of authorship or art. Patent law was
> intended to encourage publication of ideas, at the price of finite
> monopolies over these ideas--a price that may be worth paying in some
> fields and not in others."
>
> Right on copyright law, wrong on patent law. Both, at least in the United
> States, since its founding, were intended as incentives to CREATION.
> Apparently, the author is unfamiliar with the plain language of Article I,
> Section 8 of the United Staets Constitution.
The publication of ideas is "Progress of Science and useful
Arts". So is creation. I don't understand what you are
disagreeing with.
> [...trademarks...]
I don't have any major objections to trademark law, so I won't
bother to respond.
> "For instance, rich countries impose laws on poor countries to squeeze
> money out of them. These laws often fit the category of "intellectual
> property"--so people who question the fairness of these laws often use
> that label, even though it does not really fit."
>
> Oh really? How do "rich countries" do that? The US is trying to force some
> laws on Iraq, but I wasn't aware that it included intellectual property law.
> Iraq aside, I'm not aware of ANY countries that "impose laws on poor
> countries to squeeze money out of them."
I don't have any citations, and I don't know what RMS was
thinking of here. But I've heard claims that the U.S. imposes
copyright and patent legislation on other countries, or increased
vigilance of enforcement, as a string attached to international
aid, treaties, etc., made with third-world nations. That would
seem to fit the bill, if true.
> "The term "intellectual property" also leads to simplistic thinking.
> It leads people to focus on the meager commonality in form of these
> disparate laws, which is that they create special powers that can be
> bought and sold, and ignore their substance--the specific restrictions
> each of them places on the public, and the consequences that result."
>
> And this is, perhaps, the stupidest statement of all. As I indicated,
> earlier, the purpose of copyright law and patent law is as an incentive to
> creation. Moreover, these incentives work, and have since the Statute of
> Anne (and before). Trademark law works -- otherwise consumers would be
> buying Kias branded Mercedes Benz. ALL law imposes specific restrictions on
> conduct. The consequences that have resulted from intellectual property
> law, generally, have been very favorable. The author's unsupported
> assertion to the contrary, lacking even a single example, is not only not
> credible, it's just ridiculous.
I think that you may be demonstrating his point here. Instead of
talking about specific issues with each form of intellectual
property, you are making a blanket statement ("The consequences
that have resulted from intellectual property law, generally,
have been very favorable") and thereby encouraging treating
disparate forms of intellectual property in similar ways. Being
in favor of a fuzzy concept called "intellectual property" makes
it more difficult to make distinctions than being in favor of,
say, copyrights or trademarks.
> "These issues arise from the specifics, precisely what the term
> "intellectual property" encourages people to ignore. For instance, one
> issue relating to copyright law is whether music sharing should be allowed."
>
> That's not an issue relating to copyright law. "Music sharing" is allowed,
> and no law addresses it. The law does, however, address unauthorized
> copying and distribution -- it's illegal in many (though not all)
> circumstances under U.S. law.
Are you making a joke here? Many forms of music sharing are in
fact unauthorized copying or distribution, and thus fall under
copyright law. That's "relating to copyright law," and only a
lawyer could fail to see that.
> "Patent law has nothing to do with this. But patent law raises the issue of
> whether poor countries should be allowed to produce life-saving drugs and
> sell them cheaply to save lives. Copyright law has nothing to do with
> that."
>
> An obvious, and incorrect, assertion. Patent and copyright address
> different species of intellectual property law, just as landlord/tenant and
> quitclaim deed law address different species of real property law. However,
> patent law is specific to the country in which it is enacted -- U.S. patents
> do not reach foreign soil, and vice versa.
Yes, as you say, patents and copyrights are different. That is
what RMS is saying, and why he says that using a catch-all term
such as "intellectual property" is a bad idea. If his example is
imperfect, so be it.
> So, there you have it. The author's article is rife with errors and betrays
> a fundamental misunderstanding of the nature of intellectual property (not
> to mention an obvious agenda).
>
> I'm sure it is a favorite citation of college students who think they should
> be able to download music for free. It is not, however, persuasive in any
> sense of the word, and doesn't begin to address the real issues facing
> intellectual property law today.
Of course RMS has an agenda, but it's interesting that you think
his agenda is to abolish intellectual property. The essay is
about the *term* "intellectual property" and why it should not be
used (and for that reason I doubt anyone would cite it in favor
of downloading music for free). But, somehow you have
interpreted it as a screed against intellectual property itself,
in all forms. Although RMS is certainly against many of the ways
that various forms of intellectual property are used today, I
have never gotten the impression that he is actually in favor of
abolishing all of them.
PTravel
But what's the point of this kind of analogy? Horses are analogous to
zebras . . . except for the stripes. The author's point, as best as I could
tell, was that "intellectual property" is a misnomer because it's not really
property. That's just silly. All property rights carry the right to
exclude others on the part of the property owner. Real property exclusion
rights are qualified by such doctrines as eminent domain, adverse possession
and exigent circumstances (with respect to police officers in hot pursuit).
Some intellectual property rights are qualifed as to term (trademark and
trade secret are not). Saying there isn't a perfect analogy between
intellectual property and real or personal property is obvious, meaningless
and doesn't support the author's contention.
>
> Another example: if I buy a loaf of bread, I can do anything with
> it I like. That includes figuring out the ingredients, baking
> more just like it, and selling them. If I buy a CD, I could get
> in big trouble for the equivalent.
Actually, if, for some reason, the loaf of bread entails a process protected
by patent, you've infringed by baking more just like it and selling them.
On the other hand, if the CD contains a public domain piece of music, and
you learn to play it on your guitar by studying the CD, then record your own
CD and sell it, you've done nothing wrong.
What's your point?
>
> > "According to Professor Mark Lemley, now of the Stanford Law School,
> > the widespread use of the term "intellectual property" is a fad that
> > followed the 1967 founding of the World "Intellectual Property"
> > Organization, and only became really common in the past few years."
> >
> > I'm unfamiliar with Professor Lemley. However, I've been an
intellectual
> > property lawyer since 1992, hardly "the last few years," and, moreover,
> > hardly a "fad."
>
> I'm not concerned about what specialists and lawyers know.
That's obvious. Why do you think ignorance is preferable?
> The
> problem is that laymen do not understand the wide range of
> variety in intent and mechanism for everything classified under
> the catch-all of "intellectual property."
And I tend to agree. How does that support abolition of the concept of
itnellectual property?
> Ordinary people do not
> have a good idea of the differences among copyright, trademark,
> patent, and trade secret law. These differences often lead to
> intentional or accidental confusion.
Yes, so? Ordinary people don't have a good idea of the differences between
tenancy-in-common and joint tenancy with right of survivorship. That's
exactly why you SHOULD be concerned about what specialists and lawyers know
about their fields.
>
> > "Copyright law was designed to promote authorship and art, and
> > covers the details of a work of authorship or art. Patent law was
> > intended to encourage publication of ideas, at the price of finite
> > monopolies over these ideas--a price that may be worth paying in some
> > fields and not in others."
> >
> > Right on copyright law, wrong on patent law. Both, at least in the
United
> > States, since its founding, were intended as incentives to CREATION.
> > Apparently, the author is unfamiliar with the plain language of Article
I,
> > Section 8 of the United Staets Constitution.
>
> The publication of ideas is "Progress of Science and useful
> Arts". So is creation. I don't understand what you are
> disagreeing with.
Publication isn't the purpose of patent protection. Incentivizing invention
is. Patent protection would work, even if publication wasn't required upon
the issue of a patent. Providing exclusive rights in an invention allows
the inventor to exploit it for his own benefit -- that's an incentive.
Requiring publication benefits the public good but doesn't incentivize
creation. Re-read Article I, Section 8.
>
> > [...trademarks...]
>
> I don't have any major objections to trademark law, so I won't
> bother to respond.
The author did, except that the author was completely wrong. Perhaps, next
time you reference an article, you could be a little more specific about how
you think it supports whatever point you wanted to make. Incidently, this
was your proposition (from your earlier post):
"'Intellectual property' is a term invented to induce confusion.
It should not be used. For more information, read Richard
Stallman's essay on the topic: http://www.gnu.org/philosophy/not-ipr.xhtml"
Trademark is a subspecies of intellectual property. Are you saying that
you're okay with trademark being intellectual property, but not copyright,
patent and trade secret because the term, in that context, "induces
confusion"?
>
> > "For instance, rich countries impose laws on poor countries to squeeze
> > money out of them. These laws often fit the category of "intellectual
> > property"--so people who question the fairness of these laws often use
> > that label, even though it does not really fit."
> >
> > Oh really? How do "rich countries" do that? The US is trying to force
some
> > laws on Iraq, but I wasn't aware that it included intellectual property
law.
> > Iraq aside, I'm not aware of ANY countries that "impose laws on poor
> > countries to squeeze money out of them."
>
> I don't have any citations, and I don't know what RMS was
> thinking of here.
I don't know what he's thinking of either. More to the point, I still don't
understand where you find support for this:
"'Intellectual property' is a term invented to induce confusion.
It should not be used. For more information, read Richard
Stallman's essay on the topic: http://www.gnu.org/philosophy/not-ipr.xhtml"
Your words, not RMS'.
> But I've heard claims that the U.S. imposes
> copyright and patent legislation on other countries,
It doesn't. You've heard wrong.
> or increased
> vigilance of enforcement, as a string attached to international
> aid, treaties, etc., made with third-world nations.
Yep, you got that right. How does that translate into, "rich countries
impose laws on poor countries to squeeze money out of them"? If a country
wants something from us, why is it wrong to ask something in return? No
country has to respect U.S. intellectual property rights. However, if they
don't they can't participate in the Berne Convention (which will protect
their intellectual property rights, as well), receive foreign aid from us,
etc.
> That would
> seem to fit the bill, if true.
How does that equate to, "rich countries impose laws on poor countries to
squeeze money out of them"?
>
> > "The term "intellectual property" also leads to simplistic thinking.
> > It leads people to focus on the meager commonality in form of these
> > disparate laws, which is that they create special powers that can be
> > bought and sold, and ignore their substance--the specific restrictions
> > each of them places on the public, and the consequences that result."
> >
> > And this is, perhaps, the stupidest statement of all. As I indicated,
> > earlier, the purpose of copyright law and patent law is as an incentive
to
> > creation. Moreover, these incentives work, and have since the Statute
of
> > Anne (and before). Trademark law works -- otherwise consumers would be
> > buying Kias branded Mercedes Benz. ALL law imposes specific
restrictions on
> > conduct. The consequences that have resulted from intellectual property
> > law, generally, have been very favorable. The author's unsupported
> > assertion to the contrary, lacking even a single example, is not only
not
> > credible, it's just ridiculous.
>
> I think that you may be demonstrating his point here.
What point is that? That laws impose restrictions on conduct? Obviously,
they do. ALL law, not just intellectual property law. If you prefer
anarchy, then make a case for it. The author's article is simply sophistry
and error.
> Instead of
> talking about specific issues with each form of intellectual
> property, you are making a blanket statement ("The consequences
> that have resulted from intellectual property law, generally,
> have been very favorable") and thereby encouraging treating
> disparate forms of intellectual property in similar ways.
That's right -- overall, intellectual property law, like other ancient laws,
including real property laws, laws against murder, laws against theft, laws
against driving on the wrong side of the street, and so on, have proven
beneficial to those socities that have imposed them. That's why they are
near universal, and continue to be in force to this day. On the other hand,
laws like primogenitor, chattel ownership of women and slavery have proven
significantly less beneficial, consequently they are not the laws of most
nations.
Intellectual property law -- all intellectual property law -- exist, at
their most fundamental, to provide incentive to the owner of the specific
right to provide some form of public benefit. Copyright law encourages the
creation of expressive work. Patent law encourages invention. Trademark
law encourages businesses to provide consistent quality. Trade secret law
encourages fair competition.
There's nothing "confusing" about this, nor has RMS (or you) provided any
coherent alternative.
> Being
> in favor of a fuzzy concept called "intellectual property" makes
> it more difficult to make distinctions than being in favor of,
> say, copyrights or trademarks.
There is nothing "fuzzy" about the concept of intellectual property.
Nothing you've written, nor the article you've cited, suggests that there
is. The concept of intellectual property is well understood by those whose
job is to protect it, or to own it. Only those who are not "concerned about
what specialists and lawyers know," and whose study of the subject is
confined to internet opinion pieces have trouble with the concept.
>
> > "These issues arise from the specifics, precisely what the term
> > "intellectual property" encourages people to ignore. For instance, one
> > issue relating to copyright law is whether music sharing should be
allowed."
> >
> > That's not an issue relating to copyright law. "Music sharing" is
allowed,
> > and no law addresses it. The law does, however, address unauthorized
> > copying and distribution -- it's illegal in many (though not all)
> > circumstances under U.S. law.
>
> Are you making a joke here?
No, I'm not joking. The law doesn't address something called "music
sharing." I share music with my wife every day -- I turn on our CD player
and we listen to music. I share music with my friends -- I buy them copies
of CDs that I enjoy so that they can enjoy them as well. I play piano and
guitar for my family. I refer colleagues to websites that have musical
selections.
All of this is music sharing, and there is no law that addresses it, per se.
"Music sharing" is not a term of art, any more than is "knife wielding."
You can wield a knife under lots of circumstances -- the law doesn't care.
If, however, you wield the knife in such a way that it penetrates a
stranger's abdomen, then you've violated laws against battery. The law
exists to prevent battery, and it exists to prevent copyright infringement.
It does not exist to prevent sharing music.
> Many forms of music sharing are in
> fact unauthorized copying or distribution, and thus fall under
> copyright law.
That's right -- the law addresses unauthorized copying and distribution.
Calling unauthorized copying and unauthorized distribution "music sharing"
is as meaningless as saying the theft of a car is "automobile sharing."
> That's "relating to copyright law," and only a
> lawyer could fail to see that.
Yes, that's right. I'm really rather stupid and thick. Let's see -- which
one of us gets paid (and rather well) to advise others about copyright law?
Hey, that's me! It obviously isn't you.
Next question: which one of us is NOT allowed to advise others about
copyright law? Let's see -- that would be you! Now, why do you think that
is?
Here's something you apparently never learned: when someone disagrees with
you, it doesn't mean they're stupid. It may mean, you're wrong.
Think about it.
>
> > "Patent law has nothing to do with this. But patent law raises the
issue of
> > whether poor countries should be allowed to produce life-saving drugs
and
> > sell them cheaply to save lives. Copyright law has nothing to do with
> > that."
> >
> > An obvious, and incorrect, assertion. Patent and copyright address
> > different species of intellectual property law, just as landlord/tenant
and
> > quitclaim deed law address different species of real property law.
However,
> > patent law is specific to the country in which it is enacted -- U.S.
patents
> > do not reach foreign soil, and vice versa.
>
> Yes, as you say, patents and copyrights are different. That is
> what RMS is saying, and why he says that using a catch-all term
> such as "intellectual property" is a bad idea. If his example is
> imperfect, so be it.
His example isn't "imperfect," it's assinine. By his logic, the term "law"
shouldn't be used, since so many instances of it are different. Let's drop
the term "medicine," too, since it embraces everything from holistic healing
to plastic surgery. Boy, they sure are different, aren't they?
>
> > So, there you have it. The author's article is rife with errors and
betrays
> > a fundamental misunderstanding of the nature of intellectual property
(not
> > to mention an obvious agenda).
> >
> > I'm sure it is a favorite citation of college students who think they
should
> > be able to download music for free. It is not, however, persuasive in
any
> > sense of the word, and doesn't begin to address the real issues facing
> > intellectual property law today.
>
> Of course RMS has an agenda, but it's interesting that you think
> his agenda is to abolish intellectual property.
RMS has an agenda, and I don't. I don't make the laws, I simply explain
them to my clients and apply them to specific factual circumstances. My
only "agenda" is that I prefer the application of law to be consistent, and
in total compliance with the Constitution of the United States (I did, after
all, take an oath to uphold it).
Do you understand the purpose of law? I'll bet you don't, so I'll explain
it to you. One of it's primary purposes is to ensure predicatability of
outcome in social interactions. This requires having a defined body of law,
understandable by those who must be bound by it (and, frequently, that
understanding requires the assistance of someone actually schooled in the
subject, e.g. a lawyer).
RMS' agenda isn't the abolition of intellectual property, because he doesn't
have a clue what that is. It is, apparently, the abolition of penalties
against trespass on intellectual property that he finds inconvenient.
> The essay is
> about the *term* "intellectual property" and why it should not be
> used (and for that reason I doubt anyone would cite it in favor
> of downloading music for free).
I don't know why anyone would cite it for anything. Why did you? How does
it support your thesis:
"'Intellectual property' is a term invented to induce confusion.
It should not be used. For more information, read Richard
Stallman's essay on the topic: http://www.gnu.org/philosophy/not-ipr.xhtml"
I read his opinion piece. It did not, in any way, illuminate your
contention, nor have you explained how it does. If you don't want to rely
on your citation, fine, then just explain it yourself. How is "intellectual
property" a term invented to induce confusion?
> But, somehow you have
> interpreted it as a screed against intellectual property itself,
> in all forms.
No, it's a screed against enforcement of intellectual property law. In your
case, you want to download free music -- you know, engage in "music
sharing." Tell me how changing intellectual property law to suit your
desire in any way furthers the purpose of copyright protection as stated in
Article I, Section 8 of the U.S. Constitution. Why is what you want to do
an exception to the Constitution?
> Although RMS is certainly against many of the ways
> that various forms of intellectual property are used today, I
> have never gotten the impression that he is actually in favor of
> abolishing all of them.
The only impression I got of RMS is that he doesn't know what he is talking
about, isn't a scholar of any sort, and just writes facile opinion pieces
that further his own selfish interest.
infer...@my-deja.com
James White
> the catch-all of "intellectual property." Ordinary people do not
> have a good idea of the differences among copyright, trademark,
> patent, and trade secret law. These differences often lead to
> intentional or accidental confusion.
Your solution to ignorance is to change the actual facts to whatever weak
minded, ignorant people, happen to believe????? Um, . . . which ones???
Perhaps you haven't heard, the Renaissance was several hundred years ago and
there have been only a few recidivist periods since then. I say 'off with
their heads!!!!!'
Good by Ben.
Swish-t splat.
> Of course RMS has an agenda, but it's interesting that you think
> his agenda is to abolish intellectual property. The essay is
> about the *term* "intellectual property" and why it should not be
> used
Can you actually cite passages that would lead one to get this impression
from the essay?
Can you cite ten times as many that would lead to the "abolish IP"---the
laws---conclusion?
--
James E. White
Inventor, Marketer, and Author of "Will It Sell? How to Determine If
Your Invention Is Profitably Marketable (Before Wasting Money on a
Patent)" Info Sites: www.willitsell.com www.inventorhome.com,
www.idearights.com www.taletyano.com www.booksforinventors.com
[Follow sig link for email address. Replies go to spam bit-bucket]
Bruce Lewis
> Intellectual property rights ARE property rights, just as real and personal
> property rights are property rights. They are inheritable, assignable,
> transferrable and alienable, as a matter of law. I have no idea by what the
> author of the essay meant by claiming the analogy to other forms of property
> rights is "at odds with the legal philosophies" of the applicable laws.
I think he's mainly concerned with words like "steal" and "theft" as
applied to these rights, in that with tangible property you leave the
owner with less. If people just said "infringe" it would take the wind
out of that argument. Or, if you really want to draw analogies to
non-intellectual property, you could say "trespass".
> "Copyright law was designed to promote authorship and art, and
> covers the details of a work of authorship or art. Patent law was
> intended to encourage publication of ideas, at the price of finite
> monopolies over these ideas--a price that may be worth paying in some
> fields and not in others."
>
> Right on copyright law, wrong on patent law. Both, at least in the United
> States, since its founding, were intended as incentives to CREATION.
> Apparently, the author is unfamiliar with the plain language of Article I,
> Section 8 of the United Staets Constitution.
Wow. I've been following patent discussions for years, and I've heard a
lot of misstatements about the reasons for patent law. I've never heard
one quite as bad as yours. Incentives to create are there with or
without patent laws. Incentives to publish are exactly what patents
provide. That's how they promote progress -- progress being the key
word in the US Constitution, not creation as you state.
> "For instance, rich countries impose laws on poor countries to squeeze
> money out of them. These laws often fit the category of "intellectual
> property"--so people who question the fairness of these laws often use
> that label, even though it does not really fit."
>
> Oh really? How do "rich countries" do that? The US is trying to force some
> laws on Iraq, but I wasn't aware that it included intellectual property law.
> Iraq aside, I'm not aware of ANY countries that "impose laws on poor
> countries to squeeze money out of them."
Through trade treaties, as described below.
http://multinationalmonitor.org/hyper/issues/1992/12/mm1292_09.html
MM: Why do you think the United States is working so hard to impose
U.S.- style patent laws on the Third World?
Balasubramaniam: It is only the pharmaceutical industry that has been
trying to force the entire world to adopt U.S.-style patent laws. No
other industry has entered the debate. The Pharmaceutical Manufacturers
Association (PMA) of the United States appealed successfully to the
U.S. government to take retaliatory trade measures against Third World
countries which did not change existing national legislation that
provided no protection to pharmaceutical products. The PMA has insisted
on these countries offering strong patent protections to pharmaceutical
products. The General Agreement on Tariffs and Trade (GATT )
negotiations are still at a deadlock but the PMA has already been
successful in getting several Third World countries including Brazil ,
Chile , Indonesia , Korea , Mexico , Thailand and Venezuela to change
their patent laws. The industry argument is that strong patent
protection is essential for R& D and new drug development. I do not
agree with this.
> "The term "intellectual property" also leads to simplistic thinking.
> It leads people to focus on the meager commonality in form of these
> disparate laws, which is that they create special powers that can be
> bought and sold, and ignore their substance--the specific restrictions
> each of them places on the public, and the consequences that result."
>
> And this is, perhaps, the stupidest statement of all. As I indicated,
> earlier, the purpose of copyright law and patent law is as an incentive to
> creation. Moreover, these incentives work, and have since the Statute of
> Anne (and before). Trademark law works -- otherwise consumers would be
> buying Kias branded Mercedes Benz. ALL law imposes specific restrictions on
> conduct.
Yes, but creating an umbrella term covering several laws chosen at
random will likely confuse people into thinking they can be safely
lumped together.
> The consequences that have resulted from intellectual property
> law, generally, have been very favorable. The author's unsupported
> assertion to the contrary, lacking even a single example, is not only not
> credible, it's just ridiculous.
In this essay he's arguing against the words "intellectual property",
not the various laws. If you want to argue against that assertion,
first find an essay where he makes it.
> "These issues arise from the specifics, precisely what the term
> "intellectual property" encourages people to ignore. For instance, one
> issue relating to copyright law is whether music sharing should be allowed."
>
> That's not an issue relating to copyright law. "Music sharing" is allowed,
> and no law addresses it. The law does, however, address unauthorized
> copying and distribution -- it's illegal in many (though not all)
> circumstances under U.S. law.
Now you're finally making sense on something. Stallman's use of
"sharing" is just as inappropriate as others' use of "theft" in the same
context. Sharing involves a certain amount of self-sacrifice; copying
involves hardly any. Both "sharing" and "theft" are putting stronger
moral implications into the issue than are really there; they merely
push in opposite directions.
> So, there you have it. The author's article is rife with errors and betrays
> a fundamental misunderstanding of the nature of intellectual property (not
> to mention an obvious agenda).
What is "the nature of intellectual property" exactly? The thrust of
the essay is that no such nature exists.
> I'm sure it is a favorite citation of college students who think they should
> be able to download music for free. It is not, however, persuasive in any
> sense of the word, and doesn't begin to address the real issues facing
> intellectual property law today.
Please name a "real issue facing intellectual property today" that has
implication for copyright law, patent law, and trademark law.
College students who want to infringe copyright would be better off
keeping the disparate branches of law confused. For example, what if
copyright holders were obligated to defend their copyright or lose it
the way trademark holders are?
Bruce Lewis
> "Ben Pfaff" <b...@cs.stanford.edu> wrote in message
> news:87bqzw1...@benpfaff.org...
> > Ordinary people do not
> > have a good idea of the differences among copyright, trademark,
> > patent, and trade secret law. These differences often lead to
> > intentional or accidental confusion.
>
> Yes, so? Ordinary people don't have a good idea of the differences between
> tenancy-in-common and joint tenancy with right of survivorship. That's
> exactly why you SHOULD be concerned about what specialists and lawyers know
> about their fields.
Why don't we invent an umbrella term "intellectual tenancy law" that
covers both kinds, and also throw in jaywalking laws just to confuse
people further? After all, jaywalking also is related to multiple
people and a single right (right-of-way at a specific place). Anybody
know a good intellectual tenancy lawyer?
> Publication isn't the purpose of patent protection. Incentivizing invention
> is. Patent protection would work, even if publication wasn't required upon
> the issue of a patent. Providing exclusive rights in an invention allows
> the inventor to exploit it for his own benefit -- that's an incentive.
> Requiring publication benefits the public good but doesn't incentivize
> creation. Re-read Article I, Section 8.
Isn't publication a disincentive to patenting? Why put that
disincentive in there if law exists as an incentive to creating?
Answer: you wouldn't. Your idea of the purpose of the law is clearly
wrong. Publication is how patent law promotes progress. Re-read
Article I, Section 8.
It sounds like you're confusing patent with copyright. In copyright,
the creator can't make money on the work without publication or public
performance. That isn't the case with patents.
> Yep, you got that right. How does that translate into, "rich countries
> impose laws on poor countries to squeeze money out of them"? If a country
> wants something from us, why is it wrong to ask something in return? No
> country has to respect U.S. intellectual property rights. However, if they
> don't they can't participate in the Berne Convention (which will protect
> their intellectual property rights, as well), receive foreign aid from us,
> etc.
Which trademarks of theirs will the Berne Convention protect? Which
patents? Thank you for illustrating how confusing the umbrella term can
be.
> Yes, that's right. I'm really rather stupid and thick. Let's see -- which
> one of us gets paid (and rather well) to advise others about copyright law?
> Hey, that's me! It obviously isn't you.
Of course you get paid well. Both the time you spend confusing people
with terms like "intellectual property" and the time you spend
straightening them out afterward are billable.
Bruce Lewis
> Although the name WIPO dates from 1967, the organisation had been
> known as BIRPI Bureaux Internationaux Reunis pour la Protection de la
> Propiete Intellectuelle (United International Bureaus for Protection
> of Intellectual Property) since 1893.
>
> See http://www.wipo.int/about-wipo/en/gib.htm#P29_4637
And on that very page we see an example of confusion: "The impetus that
led to the Paris and Berne Conventions - the desire to promote
creativity by protecting the works of the mind - has continued to power
the work of the Organization, and its predecessor, for some 120 years."
What creativity is promoted by trademark law?
All these disparate laws have in common is that they involve "rights"
that may be "infringed" in situations where the owner of the right and
the infringer are in different countries. The laws work differently and
have different motivations. Stallman is on the mark in saying that
the term "intellectual property" promotes confusion, and that the
individual branches of law should be discussed separately.
Lee Hollaar
>"PTravel" <ptr...@travelersvideo.com> writes:
>
>> "Ben Pfaff" <b...@cs.stanford.edu> wrote in message
>> news:87bqzw1...@benpfaff.org...
>> > Ordinary people do not
>> > have a good idea of the differences among copyright, trademark,
>> > patent, and trade secret law. These differences often lead to
>> > intentional or accidental confusion.
>>
>> Yes, so? Ordinary people don't have a good idea of the differences between
>> tenancy-in-common and joint tenancy with right of survivorship. That's
>> exactly why you SHOULD be concerned about what specialists and lawyers know
>> about their fields.
>
>Why don't we invent an umbrella term "intellectual tenancy law" that
>covers both kinds, and also throw in jaywalking laws just to confuse
>people further? After all, jaywalking also is related to multiple
>people and a single right (right-of-way at a specific place). Anybody
>know a good intellectual tenancy lawyer?
Or why don't we through together intellectual property law, personal
property law, and real property law into an umbrella study of how one
can transfer different exclusionary rights to others.
We could even call the umbrella study "property law".
But you tossing in jaywalking laws shows how silly you are willing to
get to defend one of RMS's diatribes.
But if you really don't want to use the term "intellectual property"
because of all the confusion it causes you and others, then think of
some other term, and post it to misc.<whatever-term-you-come-up-with>.
Lee Hollaar
>"twojestudia.pl" <luk...@twojestudia.pl> writes:
>
>> What is intellectual property?
>
>"Intellectual property" is a term invented to induce confusion.
>It should not be used. For more information, read Richard
>Stallman's essay on the topic:
> http://www.gnu.org/philosophy/not-ipr.xhtml
Certainly not even close to the confusion that comes from Stallman's
use of the term "free" to describe a particular type of restriction
placed on the redistribution of computer software.
When you have to say things like "To understand the concept, you should
think of 'free' as in 'free speech,' not as in 'free beer,'" it's likely
you have picked a term that will induce some measure of confusion.
Bruce Lewis
> Or why don't we through together intellectual property law, personal
> property law, and real property law into an umbrella study of how one
> can transfer different exclusionary rights to others.
>
> We could even call the umbrella study "property law".
Wouldn't "rights transfer" be a better name for the study? That more
clearly states the common element being studied.
If I saw lots of misleading sweeping statements about "property law" I
would object to that term too.
> But if you really don't want to use the term "intellectual property"
> because of all the confusion it causes you and others, then think of
> some other term, and post it to misc.<whatever-term-you-come-up-with>.
I don't want another term. I want the different laws distinguished when
discussed. This newsgroup doesn't need to be split for that to happen.
Bruce Hayden
>>Intellectual property rights ARE property rights, just as real and personal
>>property rights are property rights. They are inheritable, assignable,
>>transferrable and alienable, as a matter of law. I have no idea by what the
>>author of the essay meant by claiming the analogy to other forms of property
>>rights is "at odds with the legal philosophies" of the applicable laws.
>>However, these "legal philosophies," contemplate intellectual property
>>rights that are, in every significant aspect, analogous to other forms of
>>property rights.
>
> Some analogies work. Many don't. That's the problem.
>
> Here is an example. Copyright is granted, in the United States,
> "To promote the Progress of Science and useful Arts, by securing
> for limited Times to Authors..." Thus, copyright must, according
> to the constitution, be limited in duration. But analogy with
> real property would suggest that it should be perpetual. In
> fact, that analogy is often used by those in favor of longer
> copyright terms, and with great success because the similarity of
> terms makes the argument simple and persuasive. (Heck, *Mark
> Twain* used that analogy in his own 19th century argument for
> perpetual copyright terms.)
Ok, how did we jump from intellectual property to real property?
Intellectual property is intangible personal property.
Of course, we are used to personal property that expires or
otherwise terminates. In another post someone points out that
horses and zebras are the same, except for the stripes (not
quite accurate, but close). However, both are potentially
tangible personal property that terminate much sooner than
does a copyright, and, indeed, most often sooner than a patent
if properly renewed (i.e. both zebras and horses die).
There are, of course, other examples of intangible personal
property that also terminate, such as annuities.
But then, anyone who has taken a real property class in
law school can list of examples of interests in real property
that expire. Indeed, Rule Against Perpetuities is liable to
terminate most temporary interests in real property more
quickly than a copyright will expire.
> Another example: if I buy a loaf of bread, I can do anything with
> it I like. That includes figuring out the ingredients, baking
> more just like it, and selling them. If I buy a CD, I could get
> in big trouble for the equivalent.
Not quite sure your point here.
>>"According to Professor Mark Lemley, now of the Stanford Law School,
>>the widespread use of the term "intellectual property" is a fad that
>>followed the 1967 founding of the World "Intellectual Property"
>>Organization, and only became really common in the past few years."
>>
>>I'm unfamiliar with Professor Lemley. However, I've been an intellectual
>>property lawyer since 1992, hardly "the last few years," and, moreover,
>>hardly a "fad."
Mark has a couple of claims to fame, but most notably here,
he teaches IP law at Stanford (before that, Berkeley and Texas).
> I'm not concerned about what specialists and lawyers know. The
> problem is that laymen do not understand the wide range of
> variety in intent and mechanism for everything classified under
> the catch-all of "intellectual property." Ordinary people do not
> have a good idea of the differences among copyright, trademark,
> patent, and trade secret law. These differences often lead to
> intentional or accidental confusion.
I see from your points above that laymen also don't understand
real property either. Luckily, you have attorneys that you
can go to to tell you the difference between a fee tail and
property in the entirety.
>>"Copyright law was designed to promote authorship and art, and
>>covers the details of a work of authorship or art. Patent law was
>>intended to encourage publication of ideas, at the price of finite
>>monopolies over these ideas--a price that may be worth paying in some
>>fields and not in others."
>>
>>Right on copyright law, wrong on patent law. Both, at least in the United
>>States, since its founding, were intended as incentives to CREATION.
>>Apparently, the author is unfamiliar with the plain language of Article I,
>>Section 8 of the United Staets Constitution.
>
> The publication of ideas is "Progress of Science and useful
> Arts". So is creation. I don't understand what you are
> disagreeing with.
>>"For instance, rich countries impose laws on poor countries to squeeze
>>money out of them. These laws often fit the category of "intellectual
>>property"--so people who question the fairness of these laws often use
>>that label, even though it does not really fit."
>>
>>Oh really? How do "rich countries" do that? The US is trying to force some
>>laws on Iraq, but I wasn't aware that it included intellectual property law.
>>Iraq aside, I'm not aware of ANY countries that "impose laws on poor
>>countries to squeeze money out of them."
>
> I don't have any citations, and I don't know what RMS was
> thinking of here. But I've heard claims that the U.S. imposes
> copyright and patent legislation on other countries, or increased
> vigilance of enforcement, as a string attached to international
> aid, treaties, etc., made with third-world nations. That would
> seem to fit the bill, if true.
Well, we do push countries to respect our IP rights in trade
for better trade status with our country. A good example is that
of China. For years, it led in knocking off U.S. records, tapes,
movies, etc. Then, we held out favorable trade provisions to
them, and they have come around and are making more of an effort
to help us enforce our copyrights there.
But what precisely is wrong with that?
>>"The term "intellectual property" also leads to simplistic thinking.
>>It leads people to focus on the meager commonality in form of these
>>disparate laws, which is that they create special powers that can be
>>bought and sold, and ignore their substance--the specific restrictions
>>each of them places on the public, and the consequences that result."
I don't see the relevance of this.
>>And this is, perhaps, the stupidest statement of all. As I indicated,
>>earlier, the purpose of copyright law and patent law is as an incentive to
>>creation. Moreover, these incentives work, and have since the Statute of
>>Anne (and before). Trademark law works -- otherwise consumers would be
>>buying Kias branded Mercedes Benz. ALL law imposes specific restrictions on
>>conduct. The consequences that have resulted from intellectual property
>>law, generally, have been very favorable. The author's unsupported
>>assertion to the contrary, lacking even a single example, is not only not
>>credible, it's just ridiculous.
> I think that you may be demonstrating his point here. Instead of
> talking about specific issues with each form of intellectual
> property, you are making a blanket statement ("The consequences
> that have resulted from intellectual property law, generally,
> have been very favorable") and thereby encouraging treating
> disparate forms of intellectual property in similar ways. Being
> in favor of a fuzzy concept called "intellectual property" makes
> it more difficult to make distinctions than being in favor of,
> say, copyrights or trademarks.
I think what you are saying is that if we debundle IP, then
we can talk about patents, copyrights, trademarks, and trade
secrets separately. But, of course, we can, and often do,
already do that.
>>"These issues arise from the specifics, precisely what the term
>>"intellectual property" encourages people to ignore. For instance, one
>>issue relating to copyright law is whether music sharing should be allowed."
In other words, you are asking whether you should be free to infringe
the copyrights of the artists writing and creating these musical works
because, I guess, you just want to. After all, it is cheaper (for you)
that way.
>>That's not an issue relating to copyright law. "Music sharing" is allowed,
>>and no law addresses it. The law does, however, address unauthorized
>>copying and distribution -- it's illegal in many (though not all)
>>circumstances under U.S. law.
Plenty of law addresses it. For the most part, it is illegal.
> Are you making a joke here? Many forms of music sharing are in
> fact unauthorized copying or distribution, and thus fall under
> copyright law. That's "relating to copyright law," and only a
> lawyer could fail to see that.
>
>
>>"Patent law has nothing to do with this. But patent law raises the issue of
>>whether poor countries should be allowed to produce life-saving drugs and
>>sell them cheaply to save lives. Copyright law has nothing to do with
>>that."
Let's see if I understand this. A company spends billions of
dollars developing and licensing a given drug that saves lives.
But because it saves lives, others should be able to make it
without having to pay for the R and D invested in the drug.
Makes sense - except that the next time the company is thinking
about investing in another drug or investing in T-Bills, they
might just pick T-Bills instead.
>>An obvious, and incorrect, assertion. Patent and copyright address
>>different species of intellectual property law, just as landlord/tenant and
>>quitclaim deed law address different species of real property law. However,
>>patent law is specific to the country in which it is enacted -- U.S. patents
>>do not reach foreign soil, and vice versa.
True.
> Yes, as you say, patents and copyrights are different. That is
> what RMS is saying, and why he says that using a catch-all term
> such as "intellectual property" is a bad idea. If his example is
> imperfect, so be it.
If you want to list the subareas of IP law separately, that
is your choice. But I, for one, am going to continue to use
the catchall of "IP Law" as a shorthand for the combination
of these areas of the law.
--
--------------------------------------------------------------------
The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 2005 Bruce E. Hayden,all rights reserved
My work may be copied in whole or part, with proper attribution,
as long as the copying is not for commercial gain.
--------------------------------------------------------------------
Bruce E. Hayden www.softpats.com
Dillon, Colorado bha...@ieee.org
Phoenix, Arizona bha...@highdown.com
PTRAVEL
"Bruce Lewis" <brl...@yahoo.com> wrote in message
news:nm9lkyz...@mass-toolpike.mit.edu...
> "PTravel" <ptr...@travelersvideo.com> writes:
>
>> "Ben Pfaff" <b...@cs.stanford.edu> wrote in message
>> news:87bqzw1...@benpfaff.org...
>> > Ordinary people do not
>> > have a good idea of the differences among copyright, trademark,
>> > patent, and trade secret law. These differences often lead to
>> > intentional or accidental confusion.
>>
>> Yes, so? Ordinary people don't have a good idea of the differences
>> between
>> tenancy-in-common and joint tenancy with right of survivorship. That's
>> exactly why you SHOULD be concerned about what specialists and lawyers
>> know
>> about their fields.
>
> Why don't we invent an umbrella term "intellectual tenancy law" that
> covers both kinds, and also throw in jaywalking laws just to confuse
> people further? After all, jaywalking also is related to multiple
> people and a single right (right-of-way at a specific place). Anybody
> know a good intellectual tenancy lawyer?
I have no idea what point you are trying to make. Intellectual property law
has clearly demarcated boundaries and is well understood by those who
practice it.
>
>> Publication isn't the purpose of patent protection. Incentivizing
>> invention
>> is. Patent protection would work, even if publication wasn't required
>> upon
>> the issue of a patent. Providing exclusive rights in an invention allows
>> the inventor to exploit it for his own benefit -- that's an incentive.
>> Requiring publication benefits the public good but doesn't incentivize
>> creation. Re-read Article I, Section 8.
>
> Isn't publication a disincentive to patenting?
Yes and no. Publication is a requirement of issuing a patent. An inventor
could, I suppose, choose to rely on trade secret law to protect the
invention. I wouldn't, however, characterize it as a disincentive -- patent
provides an exclusive monopoly over the invention for a fixed term. The
scope of patent protection is greater than any other protection afforded
intellectual propert.
> Why put that
> disincentive in there if law exists as an incentive to creating?
Congress decided to include a collateral public benefit. It does not,
however, detract from the incentive, i.e. the exclusive monopoly.
> Answer: you wouldn't.
That's your answer. I don't agree, and neither did Congress.
> Your idea of the purpose of the law is clearly
> wrong. Publication is how patent law promotes progress. Re-read
> Article I, Section 8.
You re-read it.
>
> It sounds like you're confusing patent with copyright.
No, I'm not confusing anything, but I am getting tired of arguing with
dilettantes.
> In copyright,
> the creator can't make money on the work without publication or public
> performance.
That's wrong, but also irrelevant.
> That isn't the case with patents.
>
>> Yep, you got that right. How does that translate into, "rich countries
>> impose laws on poor countries to squeeze money out of them"? If a
>> country
>> wants something from us, why is it wrong to ask something in return? No
>> country has to respect U.S. intellectual property rights. However, if
>> they
>> don't they can't participate in the Berne Convention (which will protect
>> their intellectual property rights, as well), receive foreign aid from
>> us,
>> etc.
>
> Which trademarks of theirs will the Berne Convention protect?
Obviously, none. Are you familiar with the Berne Convention?
> Which
> patents? Thank you for illustrating how confusing the umbrella term can
> be.
It's only confusing when people like yourself engage in deliberate
sophistry.
>
>> Yes, that's right. I'm really rather stupid and thick. Let's see --
>> which
>> one of us gets paid (and rather well) to advise others about copyright
>> law?
>> Hey, that's me! It obviously isn't you.
>
> Of course you get paid well. Both the time you spend confusing people
> with terms like "intellectual property" and the time you spend
> straightening them out afterward are billable.
Considering the number of lawyers, patent agents, scholars and other
knowledgable and intelligent people who frequent this newsgroup, I have to
say that I am surprised to have run into two people like yourself in just
two days.
I don't engage in discussions with people whose only recourse is insult.
Grow up, read a little, and come back when you're capable of mature
discussion.
Tim Jackson
> progress being the key
> word in the US Constitution, not creation as you state.
So you think that the creation something new and better than what has
gone before is not progress?
--
Tim Jackson
ne...@timjackson.plus.invalid
(Change '.invalid' to '.com' to reply direct)
Absurd patents: visit http://www.patent.freeserve.co.uk
Tim Jackson
On 05 Dec 2005 12:26:22 -0500, Bruce Lewis wrote...
> "PTravel" <ptr...@travelersvideo.com> writes:
> > Publication isn't the purpose of patent protection. Incentivizing invention
> > is. Patent protection would work, even if publication wasn't required upon
> > the issue of a patent. Providing exclusive rights in an invention allows
> > the inventor to exploit it for his own benefit -- that's an incentive.
> > Requiring publication benefits the public good but doesn't incentivize
> > creation. Re-read Article I, Section 8.
>
> Isn't publication a disincentive to patenting? Why put that
> disincentive in there if law exists as an incentive to creating?
> Answer: you wouldn't. Your idea of the purpose of the law is clearly
> wrong. Publication is how patent law promotes progress.
Actually you're both right (and both wrong for denying the other).
Patent law promotes progress by providing an economic incentive to those
who invest time, money and effort in innovation. And it *also* promotes
progress by publishing the results.
Yes, sometimes publication is a disincentive to patenting, but the
economic incentive regularly overcomes that too.
Ben Pfaff
>> Of course RMS has an agenda, but it's interesting that you think
>> his agenda is to abolish intellectual property. The essay is
>> about the *term* "intellectual property" and why it should not be
>> used
>
> Can you actually cite passages that would lead one to get this impression
> from the essay?
How about the first two paragraphs:
It has become fashionable to describe copyright, patents, and
^^^^^^^^^^^
trademarks as "intellectual property". This fashion did not arise
by accident--the term systematically distorts and confuses these
^^^^^^^^
issues, and its use was and is promoted by those who gain from
^^^^^^^
this confusion. Anyone wishing to think clearly about any of
these laws would do well to reject the term.
^^^^^^^^^
One effect of the term is a bias that is not hard to see: it
^^^^^^^^
suggests thinking about copyright, patents and trademarks by
analogy with property rights for physical objects. (This analogy
is at odds with the legal philosophies of copyright law, of
patent law, and of trademark law, but only specialists know
that.) These laws are in fact not much like physical property
law, but use of this term leads legislators to change them to be
^^^^^^^^^^^^^^^^
more so. Since that is the change desired by the companies that
exercise copyright, patent and trademark powers, these companies
have worked to make the term fashionable.
^^^^^^^^
As far as I can tell, you (and "PTravel") are simply blind to the
actual words in the essay. Somehow you interpret criticism of
the term "intellectual property" as something else entirely.
Josh Dougherty
news:R7Lkf.31752$tV6....@newssvr27.news.prodigy.net...
Did someone say "unsupported assertion and opinion"?
So-called "intellectual property rights" aren't property rights. They're
market monopoly rights. The "rights" are over a market for a product, not a
piece of "property". That's the problem with the term, and why Stallman is
correct.
Market monopoly rights are granted to prevent third-party competition in a
market, to prevent others using their own property to make things to compete
in the market, and thereby allow the beneficiary of the monopoly rights a
means to acquire more property that he doesn't yet own, and which he
couldn't acquire in a competitive market. In the case of "intellectual
property", these particular market monopoly rights were originally intended
and designed for the benefit of society, not for the benefit of the receiver
of the monopoly rights.
"Property rights" exist to protect pieces of property already owned against
dispossession. And the primary intent of these is to benefit the property
owner, and protect him from society.
These are quite different in character, though may have some marginal
similarities in some cases. "Intellectual property rights" are the first
kind of rights, not the second. Thus, using the phrase imposes the idea
that we should conceive of them the second way, and thereby ensure that we
misunderstand the issue before we even begin.
> They are inheritable, assignable, transferrable and alienable, as a matter
of law.
No, you're describing the copyrights and patents themselves. But those
things themselvers aren't the supposed "intellectual property" are they?
They "protect the intellectual property". The "intellectual property" is
something else, some vague notion of something that others aren't allowed to
make with their actual property.
Remainder of "unsupported assertions and opinions" snipped.
ptr...@travelersvideo.com
I didn't publish an essay. You don't seriously expect citations from
me, do you?
>
> So-called "intellectual property rights" aren't property rights. They're
> market monopoly rights.
That's wrong. Patent and copyright confer the right to exclude usage
by anyone, whether or not in a commercial context.
> The "rights" are over a market for a product, not a
> piece of "property". That's the problem with the term, and why Stallman is
> correct.
Except that you (and Stallman) are wrong. Intellectual property rights
are not framed in the context of markets for a product.
>
> Market monopoly rights are granted to prevent third-party competition in a
> market, to prevent others using their own property to make things to compete
> in the market, and thereby allow the beneficiary of the monopoly rights a
> means to acquire more property that he doesn't yet own, and which he
> couldn't acquire in a competitive market.
Again, that's simply wrong as the interests reserved to intellectual
property owners are not specifically related to markets (except for
trademark). What you're saying is no different than the old Marxist
saw, "property is theft."
> In the case of "intellectual
> property", these particular market monopoly rights were originally intended
> and designed for the benefit of society, not for the benefit of the receiver
> of the monopoly rights.
You can view IP rights in terms of primary and secondary beneficiary.
With respect to copyright and patent, the rights owner is the primary
beneficiary, by virtue of the exclusive monopoly grant that permits
exclusive exploitation of the IP. The secondary beneficiary is the
public who, in exchange for the exclusionary grant, receive an
increased stream of original expression and invention. With respect to
trademark, the primary beneficiary is the public, who experience lower
search costs, and increased quality of goods and services. The
trademark owner is the secondary beneficiary Take a look at Richard
Posner's Law and Economics -- he has some intersting things to say
about economics of rights allocation.
>
> "Property rights" exist to protect pieces of property already owned against
> dispossession. And the primary intent of these is to benefit the property
> owner, and protect him from society.
See above. Intellectual property rights exist to protect pieces of
property already owned against trespass.
>
> These are quite different in character, though may have some marginal
> similarities in some cases.
There is one key difference, and it's the one that seems to give
everyone a problem: IP i's intangible and real and personal property is
not. That doesn't make IP any less "actual.
> "Intellectual property rights" are the first
> kind of rights, not the second.
But you miss the purpose of preserving IP rights in the first place.
With respect to real property, there is no secondary beneficiary -- the
public doesn't benefit when your real property rights are preserved,
except to the extent that such laws provide consistency and
predictability, i.e. you expect your real property rights to be
protected as well. Real property rights exist because they conform to
a philosophy, both legal and economic, of property ownership that
underlies feudal and capitalist systems. It is possible to posit a
society in which there is no ownership of real or personal property --
the Communists did it, as did Native Americans.
IP rights are protected specifically because there is a positive,
incidental societal benefit in doing so. I've yet to hear any of those
who argue against IP rights explain why anyone would continue to create
IP without an incentive to do so.
> Thus, using the phrase imposes the idea
> that we should conceive of them the second way, and thereby ensure that we
> misunderstand the issue before we even begin.
Sorry, I don't get it. What "misunderstanding"? That the character of
IP rights is different, in some respects, from other property rights is
obvious (IP is intangible, other forms of property are not) and, in the
context of this discussion, meaningless, as "ownership" of anything is
an abstract economic concept.
>
> > They are inheritable, assignable, transferrable and alienable, as a matter
> of law.
>
> No, you're describing the copyrights and patents themselves. But those
> things themselvers aren't the supposed "intellectual property" are they?
Yes, they are. I really don't get your point.
> They "protect the intellectual property".
Okay, now I see (I think).
> The "intellectual property" is
> something else, some vague notion of something that others aren't allowed to
> make with their actual property.
No, the "property" protected by copyright is the specific original
expression. The "property" protected by patent is the novel, useful
process, i.e. the invention.
>
> Remainder of "unsupported assertions and opinions" snipped.
As I said, I'm not publishing essays. Your post isn't supported,
either (though it is civilly argued, for which I thank you).
Bruce Lewis
> On 05 Dec 2005 11:29:21 -0500, Bruce Lewis wrote...
> > progress being the key
> > word in the US Constitution, not creation as you state.
>
> So you think that the creation something new and better than what has
> gone before is not progress?
Creation of something new and better is necessary but not sufficient for
progress. Others must be able to learn from the invention. Publication
is the best way to enable others to learn from an invention.
Restating what I said elsewhere: If the patent system existed primarily
to promote creation, the stringent publication requirements would be a
hindrance. The design of the patent system clearly shows it to be a
vehicle for publication.
Alexander Terekhov
[...]
> IP rights are protected specifically because there is a positive,
> incidental societal benefit in doing so. I've yet to hear any of those
> who argue against IP rights explain why anyone would continue to create
> IP without an incentive to do so.
Try http://www.everything2.com/index.pl?node_id=1219423 ;-)
regards,
alexander.
Bruce Hayden
>>"One effect of the term is a bias that is not hard to see: it suggests
>>thinking about copyright, patents and trademarks by analogy with
>>property rights for physical objects. (This analogy is at odds with
>>the legal philosophies of copyright law, of patent law, and of
>>trademark law, but only specialists know that.)"
>>
>>Intellectual property rights ARE property rights, just as real and
>> personal
>>property rights are property rights.
>
> Did someone say "unsupported assertion and opinion"?
Ok, maybe U.S. statutes might be a bit more persuasive than
Richard Stallman.
17 USC 201
(d) Transfer of Ownership.—
(1) The ownership of a copyright may be transferred in whole or in part
by any means of conveyance or by operation of law, and may be bequeathed
by will or pass as personal property by the applicable laws of intestate
succession.
(2) Any of the exclusive rights comprised in a copyright, including any
subdivision of any of the rights specified by section 106, may be
transferred as provided by clause (1) and owned separately. The owner of
any particular exclusive right is entitled, to the extent of that right,
to all of the protection and remedies accorded to the copyright owner by
this title.
35 USC 261
Subject to the provisions of this title, patents shall have the
attributes of personal property.
> So-called "intellectual property rights" aren't property rights. They're
> market monopoly rights. The "rights" are over a market for a product, not a
> piece of "property". That's the problem with the term, and why Stallman is
> correct.
Ok, and how do you define property rights?
Let me suggest here that the problem is that there are two
very legitimate ways of looking at IP. On the one hand, you
can look at what a patent, copyright, etc. allows someone
to do (or, more accurately, to prevent). The other though
is to look at them as intangible personal property with
all that that entails. Just like other property, you can
buy, sell, license, subdivide, devise, inherit, encumber,
etc. IP rights. Stallman concentrates on the former,
and those of us who actually deal with IP for a living
spend a lot of time dealing with the later.
> Market monopoly rights are granted to prevent third-party competition in a
> market, to prevent others using their own property to make things to compete
> in the market, and thereby allow the beneficiary of the monopoly rights a
> means to acquire more property that he doesn't yet own, and which he
> couldn't acquire in a competitive market. In the case of "intellectual
> property", these particular market monopoly rights were originally intended
> and designed for the benefit of society, not for the benefit of the receiver
> of the monopoly rights.
Not really. Or at least for a long time now, at least patents and
copyrights are seen as a bargain - the federal govt. gives you a
monopoly to exclude others and in trade, you disclose your
invention or expression.
> "Property rights" exist to protect pieces of property already owned against
> dispossession. And the primary intent of these is to benefit the property
> owner, and protect him from society.
And the basis of this claim is?
> These are quite different in character, though may have some marginal
> similarities in some cases. "Intellectual property rights" are the first
> kind of rights, not the second. Thus, using the phrase imposes the idea
> that we should conceive of them the second way, and thereby ensure that we
> misunderstand the issue before we even begin.
But that is the point. A patent, a copyright, a trademark, are all
pieces of property. They can be encumbered, devised, bequeathed,
sold, rented, subdivided, etc. to an almost unimaginable level.
This is why they are considered property, BECAUSE THEY ARE.
>>They are inheritable, assignable, transferrable and alienable, as a matter
> of law.
> No, you're describing the copyrights and patents themselves. But those
> things themselvers aren't the supposed "intellectual property" are they?
> They "protect the intellectual property". The "intellectual property" is
> something else, some vague notion of something that others aren't allowed to
> make with their actual property.
One more time. Patents, copyrights, etc. can be utilized to
prevent someone from doing something. In other words, they
are negative monopolies. But more important here, since we
are talking about the word "property", this right has value.
This right can be bought, sold, bequeathed, devised, inherited,
subdivided, encumbered, etc. No different than any other
property, and, indeed, although it is considered intangible
personal property, what you can do with this right is almost
closer to what you can do with real property.
Bruce Lewis
> "Bruce Lewis" <brl...@yahoo.com> wrote in message
> news:nm9lkyz...@mass-toolpike.mit.edu...
> > "PTravel" <ptr...@travelersvideo.com> writes:
> >
> >> "Ben Pfaff" <b...@cs.stanford.edu> wrote in message
> >> news:87bqzw1...@benpfaff.org...
> >> > Ordinary people do not
> >> > have a good idea of the differences among copyright, trademark,
> >> > patent, and trade secret law. These differences often lead to
> >> > intentional or accidental confusion.
> >>
> >> Yes, so? Ordinary people don't have a good idea of the differences
> >> between
> >> tenancy-in-common and joint tenancy with right of survivorship. That's
> >> exactly why you SHOULD be concerned about what specialists and lawyers
> >> know
> >> about their fields.
> >
> > Why don't we invent an umbrella term "intellectual tenancy law" that
> > covers both kinds, and also throw in jaywalking laws just to confuse
> > people further? After all, jaywalking also is related to multiple
> > people and a single right (right-of-way at a specific place). Anybody
> > know a good intellectual tenancy lawyer?
>
> I have no idea what point you are trying to make. Intellectual property law
> has clearly demarcated boundaries and is well understood by those who
> practice it.
Laymen need some understanding as well. We need to ask intelligent
questions. Knowing whether our questions pertain to copyright,
trademarks, patents or trade secrets is a key part of being able to do
this. It is also key to laymen being able to act upon answers we get
from lawyers.
> >> Publication isn't the purpose of patent protection. Incentivizing
> >> invention
> >> is. Patent protection would work, even if publication wasn't required
> >> upon
> >> the issue of a patent. Providing exclusive rights in an invention allows
> >> the inventor to exploit it for his own benefit -- that's an incentive.
> >> Requiring publication benefits the public good but doesn't incentivize
> >> creation. Re-read Article I, Section 8.
> >
> > Isn't publication a disincentive to patenting?
>
> Yes and no. Publication is a requirement of issuing a patent. An inventor
> could, I suppose, choose to rely on trade secret law to protect the
> invention. I wouldn't, however, characterize it as a disincentive -- patent
> provides an exclusive monopoly over the invention for a fixed term. The
> scope of patent protection is greater than any other protection afforded
> intellectual propert.
That benefit to the inventor would not be lessened in the least if
descriptions of patents were available only to the patent office, or if
descriptions were not required to enable an ordinary practitioner to
implement the invention. These requirements are not there to benefit
the inventor; they are there to promote progress by encouraging
publication.
Let me re-quote the part of Stallman's essay that you originally
attacked: "Patent law was intended to encourage publication of ideas, at
the price of finite monopolies over these ideas..."
Other than poor word choice (abstract ideas were not patentable until
recently), Stallman's characterization of the purpose of patent law
seems perfectly fair.
> > Why put that
> > disincentive in there if law exists as an incentive to creating?
>
> Congress decided to include a collateral public benefit. It does not,
> however, detract from the incentive, i.e. the exclusive monopoly.
It doesn't nullify the benefit to the inventor, but it's still a cost to
the inventor. You seem to be saying that encouraging publication was
not an intent in the creation of patent law. That statement seems
inconsistent with how patent law works.
> > It sounds like you're confusing patent with copyright.
>
> No, I'm not confusing anything, but I am getting tired of arguing with
> dilettantes.
>
> > In copyright,
> > the creator can't make money on the work without publication or public
> > performance.
>
> That's wrong, but also irrelevant.
Ok, one can sell a sculpture to a private collector. But the word
"useful" in "promote the Progress of Science and useful Arts" indicates
to me that the founders were thinking of the publishing industry.
Work of the publishing industry would have been published with or
without copyright law.
Other industries in that time did not invent consumer gadgets.
Inventions were largely machinery for use in manufacturing. These
inventions would normally not be published; they would quietly do their
work inside a closed factory.
Work of most other industries early in US history would not have been
published without patent law.
Stallman's example of publication being an important difference between
patent law and copyright law is fair.
> > That isn't the case with patents.
> >
> >> Yep, you got that right. How does that translate into, "rich countries
> >> impose laws on poor countries to squeeze money out of them"? If a
> >> country
> >> wants something from us, why is it wrong to ask something in return? No
> >> country has to respect U.S. intellectual property rights. However, if
> >> they
> >> don't they can't participate in the Berne Convention (which will protect
> >> their intellectual property rights, as well), receive foreign aid from
> >> us,
> >> etc.
> >
> > Which trademarks of theirs will the Berne Convention protect?
>
> Obviously, none. Are you familiar with the Berne Convention?
Vaguely. I thought it covered just copyright, but when I saw you post
that it protected "intellectual property rights" I had to go check.
Yes, it protects intellectual property rights, but only those that are
copyrights. I'm sure if you talk to other lawyers they will know from
the context that you don't mean intellectual property in general, but
copyright in particular. If you talk to laymen like that you will
confuse us.
I'm not saying you have to make every word precise. Just make it clear
that you're being imprecise, e.g. "the Berne Convention (which will
protect their stuff, as well)". The words "intellectual property" sound
to a layman like they are intended to be a precise term.
> > Of course you get paid well. Both the time you spend confusing people
> > with terms like "intellectual property" and the time you spend
> > straightening them out afterward are billable.
>
> Considering the number of lawyers, patent agents, scholars and other
> knowledgable and intelligent people who frequent this newsgroup, I have to
> say that I am surprised to have run into two people like yourself in just
> two days.
I'm not new here. You would do well to learn from others who frequent
this newsgroup. Most of my dialogues with Lee Hollar have involved
disagreements, but every one of his replies shows he actully read what I
wrote. Tim Jackson and I disagree on an issue much more important to me
than this whole terminology discussion, but notice how he asked a
clarifying question rather than just jumping into a big flame. That's
part of why we have had mostly productive discussions.
Your posts are heated, which is not bad by itself, but combined with
your apparent lack of understanding the points Stallman, Pfaff and
myself are making, you come across badly.
> I don't engage in discussions with people whose only recourse is insult.
>
> Grow up, read a little, and come back when you're capable of mature
> discussion.
Don't dish it out if you can't take it. Tone down your own posts first,
ask clarifying questions, and read what you're replying to. If you post
any more "I'm a well-paid lawyer and you aren't" ad-hominems, expect
more retorts.
Josh Dougherty
news:1133875223.2...@o13g2000cwo.googlegroups.com...
You're wrong. The non-commercial usage has a commercial context: the user
didn't pay the monopolist for the usage, which he's supposed to have to do
in the monopoly market.
The user is not allowed to make the product for themselves. That violates,
not "property rights", but the market monopoly right. They're supposed to
only be able to acquire usage via buying from the monopolist. So every
usage has a "commercial context".
...
> > Thus, using the phrase imposes the idea
> > that we should conceive of them the second way, and thereby ensure that
we
> > misunderstand the issue before we even begin.
>
> Sorry, I don't get it. What "misunderstanding"? That the character of
> IP rights is different, in some respects, from other property rights is
> obvious (IP is intangible, other forms of property are not)
The misunderstanding is that it's (whatever that intangible "it" happens to
be) is a piece of "property". You don't even know what "it" is. One minute
it's the copyright/patent itself. Then it's an "original expression",
something tangible, like a recording or a manuscript.
The arbitrary post-hoc phrase that someone invented in the 1960's called
"intellectual property" has you all bungled up. If you listened to Stallman
in his essay you'd gain a better understanding, but you'd lose a weapon of
propaganda and may not be as good a bullshit-artist. So it's a trade off I
guess.
> and, in the
> context of this discussion, meaningless, as "ownership" of anything is
> an abstract economic concept.
>
>
> >
> > > They are inheritable, assignable, transferrable and alienable, as a
matter
> > of law.
> >
> > No, you're describing the copyrights and patents themselves. But those
> > things themselvers aren't the supposed "intellectual property" are they?
>
> Yes, they are. I really don't get your point.
>
> > They "protect the intellectual property".
>
> Okay, now I see (I think).
>
> > The "intellectual property" is
> > something else, some vague notion of something that others aren't
allowed to
> > make with their actual property.
>
>
> No, the "property" protected by copyright is the specific original
> expression.
But the "specific original expression" is tangible, not intangible. You
said "intellectual property" was "intangible".
> The "property" protected by patent is the novel, useful
> process, i.e. the invention.
That's not a piece of property. That's what is patented, and the market
over which the patent holder holds the monopoly.
Josh Dougherty
news:4395ca47$1...@news.peakpeak.com...
This isn't persuasive of anything because copyrights themselves aren't the
supposed "intellectual property". You get this wrong all the way through
the posting. It's another confusion wrought by the phrase "intellectual
property". Nobody knows what the hell the "property" is, even the folks
defending the phrase that's confusing them.
> Let me suggest here that the problem is that there are two
> very legitimate ways of looking at IP. On the one hand, you
> can look at what a patent, copyright, etc. allows someone
> to do (or, more accurately, to prevent). The other though
> is to look at them as intangible personal property with
> all that that entails. Just like other property, you can
> buy, sell, license, subdivide, devise, inherit, encumber,
> etc. IP rights.
But "IP rights" are not the "intellectual property". The "rights" are
supposed to be what you can do with the "intellectual property". My
"rights" to my house, aren't my house. They're two different things.
You're talking about trading or selling the copyright itself again. That
isn't the so-called "intellectual property".
This is the whole point. There isn't any actual "intellectual property".
There's no piece of property. There's a set of rights over a market.
> Stallman concentrates on the former,
> and those of us who actually deal with IP for a living
> spend a lot of time dealing with the later.
>
> > Market monopoly rights are granted to prevent third-party competition in
a
> > market, to prevent others using their own property to make things to
compete
> > in the market, and thereby allow the beneficiary of the monopoly rights
a
> > means to acquire more property that he doesn't yet own, and which he
> > couldn't acquire in a competitive market. In the case of "intellectual
> > property", these particular market monopoly rights were originally
intended
> > and designed for the benefit of society, not for the benefit of the
receiver
> > of the monopoly rights.
>
> Not really. Or at least for a long time now,
The last phrase is important imo. The original intent of the laws has been
lost, for a long time now.
> > These are quite different in character, though may have some marginal
> > similarities in some cases. "Intellectual property rights" are the
first
> > kind of rights, not the second. Thus, using the phrase imposes the idea
> > that we should conceive of them the second way, and thereby ensure that
we
> > misunderstand the issue before we even begin.
>
> But that is the point. A patent, a copyright, a trademark, are all
> pieces of property.
They are not the "intellectual property".
In the "IP" paradigm, they "protect the intellectual property", or they are
the deeds to the intellectual property.
> They can be encumbered, devised, bequeathed,
> sold, rented, subdivided, etc. to an almost unimaginable level.
> This is why they are considered property, BECAUSE THEY ARE.
>
> >>They are inheritable, assignable, transferrable and alienable, as a
matter
> > of law.
> > No, you're describing the copyrights and patents themselves. But those
> > things themselvers aren't the supposed "intellectual property" are they?
> > They "protect the intellectual property". The "intellectual property"
is
> > something else, some vague notion of something that others aren't
allowed to
> > make with their actual property.
>
> One more time. Patents, copyrights, etc. can be utilized to
> prevent someone from doing something. In other words, they
> are negative monopolies. But more important here, since we
> are talking about the word "property", this right has value.
> This right can be bought, sold, bequeathed, devised, inherited,
> subdivided, encumbered, etc. No different than any other
> property, and, indeed, although it is considered intangible
> personal property, what you can do with this right is almost
> closer to what you can do with real property.
One more time. Patents and copyrights are not the "intellectual property".
They grant rights, which in "IP" theory are rights over the supposed
"intellectual property". They aren't one and the same.
Josh Dougherty
news:MPG.1dfec2c3e...@text.usenet.plus.net...
> On 05 Dec 2005 11:29:21 -0500, Bruce Lewis wrote...
> > progress being the key
> > word in the US Constitution, not creation as you state.
>
> So you think that the creation something new and better than what has
> gone before is not progress?
So this week's National Enquirer magazine is someting "new and better than
what has gone before", and is therefore "progress"?
Josh Dougherty
news:4395970C...@web.de...
The other problem is the assumption that acquiring "IP rights" is the only
incentive for making art or inventions, that the lack of "IP rights" would
leave everyone "without an incentive to do so".
All of history disproves this. The writing of the Bible disproves it. The
hundreds of musical compositions by Bach disproves it. The
creation/discovery of relativity theory disproves it. ..etc. etc. etc.
Everything created or invented before the 18th century disproves it. And a
lot of what's created and invented now disproves it, because only certain
kinds of creations or inventions get "IP rights".
So you haven't heard "those who argue against IP rights" (again, misleading
terminology) "explain" this because it's a red herring or straw man that
they don't accept.
PTRAVEL
"Josh Dougherty" <jdoc1...@comcast.net> wrote in message
news:HsmdnaD82o-ffQje...@comcast.com...
> "Alexander Terekhov" <tere...@web.de> wrote in message
> news:4395970C...@web.de...
>> ptr...@travelersvideo.com wrote:
>> [...]
>> > IP rights are protected specifically because there is a positive,
>> > incidental societal benefit in doing so. I've yet to hear any of those
>> > who argue against IP rights explain why anyone would continue to create
>> > IP without an incentive to do so.
>>
>> Try http://www.everything2.com/index.pl?node_id=1219423 ;-)
>
> The other problem is the assumption that acquiring "IP rights" is the only
> incentive for making art or inventions, that the lack of "IP rights" would
> leave everyone "without an incentive to do so".
No one has made that assumption, nor has anyone suggested that exclusive
rights in intellectual property constitute the sole incentive for their
creation. It is, however, the primary incentive in a capitalist society.
PTRAVEL
You have a very flexible definition of "market." "Commercial use," however,
has a legal meaning, e.g. non-commercial use of another's trademark is not
infringing as a matter of law. Unlike trademark, copyright and patent
preclude non-commercial use (though copyright fair use doctrine considers,
among other things, whether a specific use is commercial in character).
>
> The user is not allowed to make the product for themselves. That
> violates,
> not "property rights", but the market monopoly right. They're supposed to
> only be able to acquire usage via buying from the monopolist. So every
> usage has a "commercial context".
Sorry, but the law does not define commercial use as broadly as you do.
>
> ...
>
>> > Thus, using the phrase imposes the idea
>> > that we should conceive of them the second way, and thereby ensure that
> we
>> > misunderstand the issue before we even begin.
>>
>> Sorry, I don't get it. What "misunderstanding"? That the character of
>> IP rights is different, in some respects, from other property rights is
>> obvious (IP is intangible, other forms of property are not)
>
> The misunderstanding is that it's (whatever that intangible "it" happens
> to
> be) is a piece of "property".
It sounds like you're more concerned with economics than with law (and I'm
far more familiar with the latter than the former). "It" is treated as
property by law. Moreover, "it" is treated as property by lay people who,
for example, expect to get paid if someone else uses "it."
> You don't even know what "it" is.
I don't? That will come as news to my clients, my firm and the courts in
which I practice.
> One minute
> it's the copyright/patent itself. Then it's an "original expression",
> something tangible, like a recording or a manuscript.
Oh, please. This is pure sophistry.
The term "intellectual property" refers to intangible property, some of
which is protected by intellectual property rights, including copyright,
patent and trademark. Patent, as an example, is a verb as well as a noun,
i.e. it is certificate issued by the USPTO that identifies a particular
invention in which the patentee has been awarded exclsionary rights.
There's nothing obscure or confusing about this, and I think you are being
disingenuous by pretending otherwise.
>
> The arbitrary post-hoc phrase that someone invented in the 1960's called
> "intellectual property" has you all bungled up.
As I've said, the term "intellectual property" is well understood by those
who use it, and the only people who seem to have trouble understanding it
are those in this thread who, I think, deliberately pretend to a level of
obtuseness that is inconsistent with what they actually understand.
> If you listened to Stallman
> in his essay you'd gain a better understanding,
I read the essay. As I said, it's nothing but unsupported assertion and is
founded on a fundamental misapprehension of intellectual property law.
> but you'd lose a weapon of
> propaganda and may not be as good a bullshit-artist.
Oh, another one of the "all lawyers are bullshit-artists" contingent.
Sorry, there's not much I can do about intentional ignorance, and it
certainly isn't remedied by discussion.
Believe what you like, if it helps you sleep better.
Josh Dougherty
news:3vm8eoF...@individual.net...
>
> "Josh Dougherty" <jdoc1...@comcast.net> wrote in message
> news:HsmdnaD82o-ffQje...@comcast.com...
> > "Alexander Terekhov" <tere...@web.de> wrote in message
> > news:4395970C...@web.de...
> >> ptr...@travelersvideo.com wrote:
> >> [...]
> >> > IP rights are protected specifically because there is a positive,
> >> > incidental societal benefit in doing so. I've yet to hear any of
those
> >> > who argue against IP rights explain why anyone would continue to
create
> >> > IP without an incentive to do so.
> >>
> >> Try http://www.everything2.com/index.pl?node_id=1219423 ;-)
> >
> > The other problem is the assumption that acquiring "IP rights" is the
only
> > incentive for making art or inventions, that the lack of "IP rights"
would
> > leave everyone "without an incentive to do so".
>
> No one has made that assumption,
Then you misworded your claim.
> nor has anyone suggested that exclusive
> rights in intellectual property constitute the sole incentive for their
> creation. It is, however, the primary incentive in a capitalist society.
I don't agree. It can be an incentive, but I don't see how you quantify the
incentives. And I think it's disproven by all of history that this one is
of supreme importance.
And also, this has nothing to do with "capitalism". In a capitalist society
the incentive is not the prospect of monopolizing a market. The incentive
is the prospect of losing out to third-party competition in the market. The
whole basis of capitalism is market competition, not monopoly markets.
"Intellectual property rights" destroy this capitalist incentive by
prohibiting competition in the market, but imposes a different,
non-capitalist, incentive: the prospect of state-imposed market monopoly
rights.
d...@soundmathtech.com
"To promote the Progress of Science and useful Arts, by securing for
respective Writings and Discoveries"
It's been like this for more than 200 years and some hairy guy living
in a cubbyhole on MIT campus is not going to change it... Just
relax...
The real BS artist is RMS himself (and all of his followers including
you).
You are just trying to mislead general public about the necessity of
this particular clause in the Constitution envisioned by the Founding
Fathers.
Josh Dougherty
>
> "Josh Dougherty" <jdoc1...@comcast.net> wrote in message
> news:pbednZGbO8mZTAje...@comcast.com...
> > <ptr...@travelersvideo.com> wrote in message
> > news:1133875223.2...@o13g2000cwo.googlegroups.com...
...
> >> > So-called "intellectual property rights" aren't property rights.
They're
> >> > market monopoly rights.
> >>
> >> That's wrong. Patent and copyright confer the right to exclude usage
> >> by anyone, whether or not in a commercial context.
> >
> > You're wrong. The non-commercial usage has a commercial context: the
user
> > didn't pay the monopolist for the usage, which he's supposed to have to
do
> > in the monopoly market.
>
> You have a very flexible definition of "market."
I think I'm using a pretty standard definition of "market".
> "Commercial use," however,
> has a legal meaning, e.g. non-commercial use of another's trademark is not
> infringing as a matter of law.
I didn't say the use was a "commercial use". I said that non-commercial
uses have a "commercial context" in a monopoly market. The way this impacts
the commercial is that the non-commercial use is supposed to be acquired
only via a commercial transaction with the monopolist, not by the user
making their own non-commercially. Thereby the non-commercial use negates
the need for the commercial transaction, which is the whole point of
establishing the monopoly market.
> Unlike trademark, copyright and patent
> preclude non-commercial use (though copyright fair use doctrine considers,
> among other things, whether a specific use is commercial in character).
Another reason why the term "intellectual property" is misleading and not
very useful. The arguments for or against copyright, patents or trademarks
aren't the same, except possibly certain of the most general ones.
> > The user is not allowed to make the product for themselves. That
> > violates,
> > not "property rights", but the market monopoly right. They're supposed
to
> > only be able to acquire usage via buying from the monopolist. So every
> > usage has a "commercial context".
>
> Sorry, but the law does not define commercial use as broadly as you do.
I'm not defining "commercial use".
> > ...
> >
> >> > Thus, using the phrase imposes the idea
> >> > that we should conceive of them the second way, and thereby ensure
that
> > we
> >> > misunderstand the issue before we even begin.
> >>
> >> Sorry, I don't get it. What "misunderstanding"? That the character of
> >> IP rights is different, in some respects, from other property rights is
> >> obvious (IP is intangible, other forms of property are not)
> >
> > The misunderstanding is that it's (whatever that intangible "it" happens
> > to
> > be) is a piece of "property".
>
> It sounds like you're more concerned with economics than with law (and
I'm
> far more familiar with the latter than the former). "It" is treated as
> property by law.
No "it" isn't. You can't, for instance, steal this supposed "property".
http://www.justia.us/us/473/207/case.html
Using "it" without authorization is treated as a violation of a rule, like
growing pot or speeding.
> Moreover, "it" is treated as property by lay people who,
> for example, expect to get paid if someone else uses "it."
The state expects to get paid if I speed. What does that have to do with
"property" or "property rights"? Is the state the "intellectual property
owner" of speeds over 65mph? If not, I don't see why not. The argument for
that is just as valid, and in fact exactly the same argument. It's just a
stupid analogy.
> > You don't even know what "it" is.
>
> I don't? That will come as news to my clients, my firm and the courts in
> which I practice.
It may come as news to anyone who's deluded by the analogy of "intellectual
property". I don't think it would come as any surprise to courts, as it
doesn't matter to their rulings. Violating a copyright is a violation
regardless of whether we chose to call the "it" a piece of "property" or
not, just as growing pot is a violation or a set of rules regardless of
whether we choose to call it a violation of "property rights" for some
reason.
Alexander Terekhov
Josh Dougherty wrote:
[...]
> All of history disproves this. The writing of the Bible disproves it. The
> hundreds of musical compositions by Bach disproves it.
Bible aside for a moment, who is supposed to play the role of Bach's
patrons in the GNU Republic?
regards,
alexander.
Lee Hollaar
>"PTravel" <ptr...@travelersvideo.com> wrote in message
>news:R7Lkf.31752$tV6....@newssvr27.news.prodigy.net...
>personal
>> property rights are property rights.
>
>Did someone say "unsupported assertion and opinion"?
>
>So-called "intellectual property rights" aren't property rights. They're
>market monopoly rights. The "rights" are over a market for a product, not a
>piece of "property". That's the problem with the term, and why Stallman is
>correct.
So, I'm reading an almost-hundred-year-old Supreme Court opinion
(Continental Paper Bag v. Easter Paper Bag, 210 U.S. 405, June 1, 1908,
because the Court cited it in the eBay case when it granted cert),
and come across this:
patents are property, and entitled to the same rights and sanctions
as other property.
The comment was made in the context of summarizing three prior cases.
The first instance of the term "intellectual property" in a Supreme Court
opinion appears to be in Justice Frankfurter's dissent in the 1949 case
of Commissioner [of Internal Revenue] v. Wodehouse, 337 U.S. 369. And
it isn't being using as if it were defining a new concept.
The term is used in a number of 1950's cases, meaning the same thing
then as it does now.
So that term isn't of recent origin in the United States, either, no
matter what RMS misunderstands.
Rahul Dhesi
>Continental Paper Bag v. Easter Paper Bag ...
> patents are property ...
... [ another citation ] ...
>So that term isn't of recent origin in the United States, either, no
>matter what RMS misunderstands.
The primary reason why confusion occurs in this area is that two
different languages are in use, and people do not take care to make
the distinction. The two languages are:
1. English.
2. L-English.
L-English uses many common English words with different meanings. In
L-English, for example, a burglary can occur only at night; while in
English, a burglary can occur any time, day or night. In L-English,
malice can occur merely though lack of care, while in English, malice
requires some hostile intent.
In L-English, a patent is a type of property; in English, a patent is
just a document that gives you some rights, while property takes some
physical form.
And so on.
The cases you cited are using L-English, not English.
--
Rahul
Tim Jackson
On 06 Dec 2005 08:43:19 -0500, Bruce Lewis wrote...
>
> Creation of something new and better is necessary but not sufficient for
> progress. Others must be able to learn from the invention. Publication
> is the best way to enable others to learn from an invention.
Elsewhere in the thread, you were denying Ptravel's view that the
purpose of patent law is to provide an incentive to create something new
and better. I said that patents promote progress *both* by providing
such an incentive *and* by publishing the results.
> Restating what I said elsewhere: If the patent system existed primarily
> to promote creation, the stringent publication requirements would be a
> hindrance. The design of the patent system clearly shows it to be a
> vehicle for publication.
It's true that modern patent systems are a vehicle for publication.
However, that doesn't prove that it is not *also* a primary purpose to
providing an economic incentive that encourages people to innovate (i.e.
create new things).
Patent applicants may or may not view such publication as a
disadvantage, but another effect of the economic incentive is that they
are generally prepared to accept that publication is a quid pro quo.
What does prove that publication is not the only purpose of patents is
this. Historically, the original patent systems (developed in Europe
long before the US Constitution got in on the act) were also intended to
promote progress. But they did not provide for publication at all.
When they worked well, they did so *purely* by providing an economic
incentive to innovation. (Though sometimes they were also subject to
abuse by monarchs who granted patents as favours.)
Tim Jackson
On Tue, 6 Dec 2005 13:29:42 -0500, Josh Dougherty wrote...
My comment was directed at what Bruce was saying about patents. I
rather doubt that there is anything patentable about this week's
National Enquirer.
More generally, though, the assertion was that both patents and
copyright encourage creation. Being "better" is not a requirement in
either case.
But in with the stuff that is merely new and non-obvious, or merely
original, there will undoubtedly be stuff that is better and/or valuable
to society. And patent and copyright laws will have encouraged its
creation.
Josh Dougherty
>
> On Tue, 6 Dec 2005 13:29:42 -0500, Josh Dougherty wrote...
> >
> > "Tim Jackson" <ne...@timjackson.plus.invalid> wrote in message
> > news:MPG.1dfec2c3e...@text.usenet.plus.net...
> > > On 05 Dec 2005 11:29:21 -0500, Bruce Lewis wrote...
> > > > progress being the key
> > > > word in the US Constitution, not creation as you state.
> > >
> > > So you think that the creation something new and better than what has
> > > gone before is not progress?
> >
> > So this week's National Enquirer magazine is someting "new and better
than
> > what has gone before", and is therefore "progress"?
>
> My comment was directed at what Bruce was saying about patents. I
> rather doubt that there is anything patentable about this week's
> National Enquirer.
>
> More generally, though, the assertion was that both patents and
> copyright encourage creation. Being "better" is not a requirement in
> either case.
>
> But in with the stuff that is merely new and non-obvious, or merely
> original, there will undoubtedly be stuff that is better and/or valuable
> to society. And patent and copyright laws will have encouraged its
> creation.
Possibly, and will have cost society as well.
Josh Dougherty
Anyone who wants him to write new music.
The "GNU Republic"?
Josh Dougherty
news:dn54ov$jss$1...@antitrust.cs.utah.edu...
> In article <N5ydnTy_jpcd0gje...@comcast.com> "Josh Dougherty"
<jdoc1...@comcast.net> writes:
> >"PTravel" <ptr...@travelersvideo.com> wrote in message
> >news:R7Lkf.31752$tV6....@newssvr27.news.prodigy.net...
> >> Intellectual property rights ARE property rights, just as real and
> >personal
> >> property rights are property rights.
> >
> >Did someone say "unsupported assertion and opinion"?
> >
> >So-called "intellectual property rights" aren't property rights. They're
> >market monopoly rights. The "rights" are over a market for a product,
not a
> >piece of "property". That's the problem with the term, and why Stallman
is
> >correct.
>
> So, I'm reading an almost-hundred-year-old Supreme Court opinion
> (Continental Paper Bag v. Easter Paper Bag, 210 U.S. 405, June 1, 1908,
> because the Court cited it in the eBay case when it granted cert),
> and come across this:
> patents are property, and entitled to the same rights and sanctions
> as other property.
Patents themselves are a sort of property. We already covered this.
Again, the patent itself is not the "intellectual property". The supposed
"intellectual property" is that vague intangible thing that the patent
grants rights over. They're two different things.
> The comment was made in the context of summarizing three prior cases.
>
>
> The first instance of the term "intellectual property" in a Supreme Court
> opinion appears to be in Justice Frankfurter's dissent in the 1949 case
> of Commissioner [of Internal Revenue] v. Wodehouse, 337 U.S. 369. And
> it isn't being using as if it were defining a new concept.
>
> The term is used in a number of 1950's cases, meaning the same thing
> then as it does now.
>
> So that term isn't of recent origin in the United States, either, no
> matter what RMS misunderstands.
So RMS may have been about ten years off. (Though I'd appreciate a link to
these cases (if available), so I can read them myself).
But how and why did the courts go 200 years presiding over these cases
without using this term that's supposedly so important, accurate and
meaningful?
Tim Jackson
On Tue, 6 Dec 2005 21:43:08 -0500, Josh Dougherty wrote...
>
> "Tim Jackson" <ne...@timjackson.plus.invalid> wrote in message
> >
> > But in with the stuff that is merely new and non-obvious, or merely
> > original, there will undoubtedly be stuff that is better and/or valuable
> > to society. And patent and copyright laws will have encouraged its
> > creation.
>
> Possibly, and will have cost society as well.
Sure, no-one said there was no cost. There's no such thing as a free
lunch.
The cost is that, in return for creating things that are new or original
(and which may or may not be better), restrictions are imposed on those
new or original things. That's not such a big deal, though. Society
was equally restricted before the new things were created. It couldn't
use those new things beforehand anyway, because they didn't exist.
Lee Hollaar
>The primary reason why confusion occurs in this area is that two
>different languages are in use, and people do not take care to make
>the distinction.
Many fields of endeavor besides law have particular terms that seem
like terms in normal understanding. That one may be confused if they
don't recognize that is mot particularly surprising.
For example, if I happen on a broadcast of a tennis match and I don't
understand that "love" is the quaint way of saying that the person's
score is zero, or that the scoring doesn't increment by one (or even
a uniform amount), then I'll be confused. And I can either try to
learn the language of tennis, or revel in my confusion while insisting
that tennis should change because it's confusing.
There is a strong tendency in law to use a term or phrase as a
shorthand for a set of cases on a particular subject. Sometimes the
term is related to the language of the Constitution or a statute,
sometimes it's coined by people working in the area. For example,
"free speech" or "right to privacy" are considerably more complex
than their normal meaning. If you listen to, say, today's Supreme
Court oral arguments on whether the federal government can cut off
funding to colleges that do not permit military recruiters the same
privileges as company recruiters, you realize that the Court and the
advocates are using "speech" differently than the normal meaning of
"talking."
And sometimes, a term is coined as a collective for a set of related
topics. "Property" is one such term. As anybody who has taken a
law school property course discovers, it not only covers land ownership
but also things like that bane of all first year law students, the
rule against perpetuities.
So it is with "intellectual property" -- a collective term for all the
rules for different interests in a variety of intangible things. It
is a strawman to say that it somehow implies a uniform treatment for
the various species of the genus, just like the treatment of personal
property differs from that of real property.
Quite a while ago, I heard of a law professor (I wish I could remember
who) who had his students think about patents, copyrights, etc. not
under a theory of property, but under other legal theories. A contract-
type theory isn't so hard, if you think of the legislature as negotiating
for the public. It got a little more interesting casting it under a
tort theory, but it is possible.
But "intellectual property" is what got accepted as the collective term
for the regime of protection and rights transfer for intangible things,
and it makes little sense railing against it if it had some meaning in
and of itself, rather than just as a shorthand for a large collection of
statutes and case law.
I expect that by now, if he is even reading this tread, the poor
original poster who asked what intellectual propery was (or something
like that) is wishing he hadn't posted his question. And I expect
that nothing anybody says will change some people's religious views.
Sort of like trying to get RMS to change from "free software" to "open
source" beause it's a better description of the concept.
Lee Hollaar
>Patents themselves are a sort of property. We already covered this.
>Again, the patent itself is not the "intellectual property". The supposed
>"intellectual property" is that vague intangible thing that the patent
>grants rights over. They're two different things.
Whatever. Got any cite to a court decision where your distinction made
any difference, or is even noted?
>So RMS may have been about ten years off. (Though I'd appreciate a link to
>these cases (if available), so I can read them myself).
I didn't find them in any free, Internet-available service. Sorry.
But if you search for "intellectual property" in a database that goes
back pretty far, just look at the early cases.
>But how and why did the courts go 200 years presiding over these cases
>without using this term that's supposedly so important, accurate and
>meaningful?
Because they didn't need to use a collective term because most cases
were about patents only or copyright only?
And I'm certainly not saying that the term "intellectual property"
is "important, accurate and meaningful", just that it is the generally-
accepted collective term.
Josh Dougherty
>
> On Tue, 6 Dec 2005 21:43:08 -0500, Josh Dougherty wrote...
> >
> > "Tim Jackson" <ne...@timjackson.plus.invalid> wrote in message
> > news:MPG.1e003cc5f...@text.usenet.plus.net...
> > >
> > > But in with the stuff that is merely new and non-obvious, or merely
> > > original, there will undoubtedly be stuff that is better and/or
valuable
> > > to society. And patent and copyright laws will have encouraged its
> > > creation.
> >
> > Possibly, and will have cost society as well.
>
> Sure, no-one said there was no cost. There's no such thing as a free
> lunch.
>
> The cost is that, in return for creating things that are new or original
> (and which may or may not be better),
and maybe not even new or original, except to the extent that anything
anyone happens to ever scribble on a piece of paper is "new and original".
> restrictions are imposed on those
> new or original things. That's not such a big deal, though.
I think it is. The original deal was that it would be around 14 or 19 years
that the public would be restricted, and this mostly only applied to
commercial publishers and companies. Copyright law for instance, was mostly
irrelevant to the average Joe in 1790. Now it can go for 100+years and it
restricts every individual in the country, or even on the entire planet.
And this is not the only cost. Another cost, for example, is the actual
property we have to give away to pay all the courts, police & legislatures
to enact, impose and enforce these restrictions on ourselves.
How much of our money was spent last year on paying police, courts and
others to enforce "intellectual property rights", a system now of leviathan
proportions and complexity? Nobody seems to know the answer to this, while
they cavalierly dismiss that the costs are "not such a big deal".
> Society was equally restricted before the new things were created. It
couldn't
> use those new things beforehand anyway, because they didn't exist.
Well, at some point cars didn't exist. Forcing people not to make or use
them would be a big deal regardless.
The only other thing you could possibly be arguing is that the thing
wouldn't otherwise exist, which is to say, iow, that "intellectual property
rights" are the only reason people create or invent things, which is again,
disproven by all of history, as well as just common sense.
And anyway, try telling a dying AIDS patient that it's "no big deal" if he's
not allowed to get the medicines that exist and can help him, because they
didn't exist a few years ago anyway.
For that matter, how about if I'm standing next to you and you're about to
walk in front of a bus by accident. I just won't grab you and stop you.
When your family complains I'll just say that I wasn't standing next to you
a few minutes before the accident, so it's no big deal that I didn't try to
grab you at the time of the accident. So they should consider themselves
lucky that I was standing there at all.
Josh Dougherty
> In article <E_GdnSwL-YR...@comcast.com> "Josh Dougherty"
<jdoc1...@comcast.net> writes:
> >Patents themselves are a sort of property. We already covered this.
> >Again, the patent itself is not the "intellectual property". The
supposed
> >"intellectual property" is that vague intangible thing that the patent
> >grants rights over. They're two different things.
>
> Whatever. Got any cite to a court decision where your distinction made
> any difference, or is even noted?
I think you're the one that needs to answer this question. Not me. If a
court says "patents are property", I'm not disputing that. A patent is
saleable set of legal entitlements. It is a sort of property.
We already know that for the 200 years no court even mentioned the term
"intellectual property" at all, while deciding these cases. I have no idea
if there's a case where they make any declaration about what the
"intellectual property" actually is or isn't. I don't see why they should
or would go to the trouble to define a term that doesn't seem to have any
legal status or relevance to the cases, but is just an arbitrary shorthand
for a bunch of disparate laws.
But, just so I'm clear, you're now claiming that the "intellectual property"
is the patent or copyright itself?
> >So RMS may have been about ten years off. (Though I'd appreciate a link
to
> >these cases (if available), so I can read them myself).
>
> I didn't find them in any free, Internet-available service. Sorry.
> But if you search for "intellectual property" in a database that goes
> back pretty far, just look at the early cases.
Well, I'd like to read the contexts for myself, so...
> >But how and why did the courts go 200 years presiding over these cases
> >without using this term that's supposedly so important, accurate and
> >meaningful?
>
> Because they didn't need to use a collective term because most cases
> were about patents only or copyright only?
Fine. So it's a term that is irrelevant to the laws. We could call it by
any term for all it matters.
> And I'm certainly not saying that the term "intellectual property"
> is "important, accurate and meaningful", just that it is the generally-
> accepted collective term.
So its use is arbitrary. We agree there. The only question then is how
informative or disinformative is the arbitrary choice to use this term as a
description. I think Stallman is quite correct that the term is more
disinformative than informative, and since its use is arbitrary, it should
be discarded.
Rahul Dhesi
>>The primary reason why confusion occurs in this area is that two
>>different languages are in use, and people do not take care to make
>>the distinction.
>Many fields of endeavor besides law have particular terms that seem
>like terms in normal understanding....
>For example, if I happen on a broadcast of a tennis match and I don't
>understand that "love" is the quaint way of saying that the person's
>score is zero...
Ah, yes, T-English! Fortunately T-English speakers, unlike L-English
speakers, have an acute awareness of the difference from English and,
when communicating with those that do not use T-English, will say
something like: "In tennis, love means zero for the purposes of scoring
a game, but that doesn't mean that love IS zero".
--
Rahul
Isaac
wrote:
I'm not sure what you think would be accomplished by doing away with the
term "intellectual property". Doing so would not make the rights lumped
under that term any less real or any less valid.
Maybe the literally correct way to view a patent is as equivalent to a
deed. Like a deed, the patent describes the bundle of rights associated
with something. The rights associated with real property are just as
intangible as the rights associated with an invention or a work of authorship.
Even though real estate is tangible, the right to possess land for
a term and the right to hold the land in perpetuity with possession being
inheritable are not tangibly distinguishable.
Intellectual property simply announces that the underlying material which
is the subject of the property right is not tangible, but is a mental
creation. I'm really not sure why the fact that the term is not dispositive
in cort makes the term illegitimate. Calling something intellectual
property does not cause the right to be treated like property. Instead
the right is treated like property because statutes and the constitution
create such a scheme.
Isaac
Josh Dougherty
news:slrndpd9et...@latveria.castledoom.org...
"The rights" are intangible? So what? "Rights" in any form are
"intangible". The rights associated with abortion are just as intangible as
the rights associated with property. What does that have to do with
anything? Does that mean abortion rights are property rights?
> Even though real estate is tangible, the right to possess land for
> a term and the right to hold the land in perpetuity with possession being
> inheritable are not tangibly distinguishable.
>
> Intellectual property simply announces that the underlying material which
> is the subject of the property right is not tangible, but is a mental
> creation.
You haven't established why it's a "property right". You've just declared
it, by saying that "the rights" are intangible, and saying "property rights"
are also intangible, but which is also like any kind of right.
> I'm really not sure why the fact that the term is not dispositive
> in cort makes the term illegitimate. Calling something intellectual
> property does not cause the right to be treated like property.
No. I think it does. That's part of the reason for the popularity of the
term imo.
> Instead the right is treated like property because statutes and the
constitution
> create such a scheme.
So you too are saying "the right" is the "intellectual property".
I thought "the underlying material which is the subject of the property
right" was the "intellectual property".
???
Lee Hollaar
>Maybe the literally correct way to view a patent is as equivalent to a
>deed.
In fact, what we have been talking about are utility patents.
Patent is short for "letters patent" -- "open letters" -- indicating
that the grant by the government of some right, privilege, or property
is open to the public.
There are other types of patents, including "land patents". Black's
law dictionary defines them as "An instrument conveying a grant of
public land; also, the land so conveyed." When I traced back the
title of my house (actually, the land on which it stands), the chain
of ownship started with a patent from the United States.
So, if one wants to be precise, the patent is the document issued by
the government that coveys the rights, and in the case of a utility
patent the rights granted are those indicated in the statute. But
like the definition in Black's for "land patent," we get a little
sloppy and also use the term for the rights themselves or even the
land subject to the rights conveyed by the patent.
And, in almost every instances, it makes no difference. Except to
people who like to play word games, like RMS and some people here.
Lee Hollaar
>"Lee Hollaar" <hol...@antitrust.cs.utah.edu> wrote in message
>news:dn5l80$ub7$1...@antitrust.cs.utah.edu...
>> In article <E_GdnSwL-YR...@comcast.com> "Josh Dougherty"
><jdoc1...@comcast.net> writes:
>> >Patents themselves are a sort of property. We already covered this.
>> >Again, the patent itself is not the "intellectual property". The
>supposed
>> >"intellectual property" is that vague intangible thing that the patent
>> >grants rights over. They're two different things.
>>
>> Whatever. Got any cite to a court decision where your distinction made
>> any difference, or is even noted?
>
>I think you're the one that needs to answer this question. Not me. If a
>court says "patents are property", I'm not disputing that. A patent is
>saleable set of legal entitlements. It is a sort of property.
I don't think your distinction makes any difference, and I'm not going to
spend any time trying to find some obscure case where it does.
But if you want to be precise, the patent is a government document
conveying rights. But I doubt whether the point the Supreme Court
was making was that the conveyance document was property. They were
saying that the rights conveyed by the document had aspects like other
forms of property, particularly transferability and the right to seek
and injunction to exclude others from the property.
>We already know that for the 200 years no court even mentioned the term
>"intellectual property" at all, while deciding these cases. I have no idea
>if there's a case where they make any declaration about what the
>"intellectual property" actually is or isn't. I don't see why they should
>or would go to the trouble to define a term that doesn't seem to have any
>legal status or relevance to the cases, but is just an arbitrary shorthand
>for a bunch of disparate laws.
I don't know how you get 200 years. Seems like you have tossed that out
and now assume it's a fact, but you are wrong. The first federal patent
statute was in 1790. The first Supreme Court decision using the term
"intellectual property" was 1949. You do the math.
But they used the term (not defined it) because it was a convenient term
already in use as a collective for the various rights conveyed by utility
patents, copyright, trade marks, and other forms of protection for
intangibles.
So, again, you are making up facts to make your argument. It wasn't 200
years and Justice Frankfurter didn't go to any trouble to define the term.
>But, just so I'm clear, you're now claiming that the "intellectual property"
>is the patent or copyright itself?
I'm claiming that the term isn't used as precisely as you seem to demand,
and that people not playing word games like you and RMS aren't bothered
by that.
>
>> >So RMS may have been about ten years off. (Though I'd appreciate a link
>to
>> >these cases (if available), so I can read them myself).
>>
>> I didn't find them in any free, Internet-available service. Sorry.
>> But if you search for "intellectual property" in a database that goes
>> back pretty far, just look at the early cases.
>
>Well, I'd like to read the contexts for myself, so...
And nobody is stopping you.
>
>> >But how and why did the courts go 200 years presiding over these cases
>> >without using this term that's supposedly so important, accurate and
>> >meaningful?
>>
>> Because they didn't need to use a collective term because most cases
>> were about patents only or copyright only?
>
>Fine. So it's a term that is irrelevant to the laws. We could call it by
>any term for all it matters.
>
>> And I'm certainly not saying that the term "intellectual property"
>> is "important, accurate and meaningful", just that it is the generally-
>> accepted collective term.
>
>So its use is arbitrary. We agree there. The only question then is how
>informative or disinformative is the arbitrary choice to use this term as a
>description. I think Stallman is quite correct that the term is more
>disinformative than informative, and since its use is arbitrary, it should
>be discarded.
A lot less disinformative than RMS using "free" to describe his particular
form of license.
Rahul Dhesi
>I'm not sure what you think would be accomplished by doing away with the
>term "intellectual property". Doing so would not make the rights lumped
>under that term any less real or any less valid.
Right now, "intellectual property" stands for at three different ideas.
1. The thing itself -- the creative work, or the invention, etc.
2. The market value of the protected right to that thing. Thus, for
example, A could sell B all rights to a certain patent for $1 million.
B has now acquired "intellectual property" worth $1 million. Like
buying shoes.
3. The right to prevent others from using/copying the thing. Thus,
for example, B, after buying all rights to the patent, could
sue to prevent C from making/using the patented invention. Even
though B bought "intellectual property" worth $1 million, he might
end up getting far more (say $5 milion) in damages from C. What is
happening in this transaction is an excercise of a right to prevent
others from doing something, not a sale of property. Not
like buying shoes, but rather, like throwing a shoe at somebody. :-)
What's the benefit of mixing up these ideas into a single phrase?
--
Rahul
Lee Hollaar
that day.
"It's long," said the Knight, "but it's very, very beautiful. Everybody
that hears me sing it--either it brings the tears into their eyes, or
else--"
"Or else what?" said Alice, for the Knight had made a sudden pause.
"Or else it doesn't, you know. The name of the song is called 'Haddock's
Eyes'."
"Oh, that's the name of the song, is it?" Alice said, trying to feel
interested.
"No, you don't understand," the Knight said, looking a little vexed.
"That's what the name is called. The name really is 'The Aged Aged Man'."
"Then I ought to have said 'That's what the song is called?'" Alice
corrected herself.
"No, you oughtn't: that's quite another thing! The song is called 'Ways
and Means': but that's only what it's called, you know!"
"Well, what is the song, then?" said Alice, who was by this time completely
bewildered.
"I was coming to that," the Knight said. "The song really is 'A-sitting
on a Gate': and the tune's my own invention."
Sometimes, trying to be too precise in terminology when it does not make
and real difference is like an adventure in Wonderland.
Rahul Dhesi
>"Is it very long?" Alice asked, for she had heard a good deal of poetry
>that day.
Oh dear. Before we go too far in using the creatures encountered by
Alice either as role models or to justify the use of confusing language,
let's note what the infamous Wikipedia says:
Taken from this perspective [of some people], [Alice's Adventures in
Wonderland] (as well as Through the Looking-Glass and What Alice Found
There) is a sinister, pernicious world characterized by persons who
exist fully by a self-sustaining logic that exists without reference
to outside influence, including the influence of a sane, rational, and
moral mind. By this perspective, at its essence, Alice's Adventures in
Wonderland is not a dream but a surreal nightmare involving loss of
control, inability to communicate or reason, rampant uncontrolled
change of one's self and everything around, and a total inability to
gain any foundation in the world.
--
Rahul
James White
> commercial publishers and companies. Copyright law for instance, was
mostly
> irrelevant to the average Joe in 1790. Now it can go for 100+years and it
> restricts every individual in the country, or even on the entire planet.
I took the trouble to research and write a book and put a copyright notice
on it. In EXACTLY what way has that RESTRICTED you?
--
James E. White
Inventor, Marketer, and Author of "Will It Sell? How to Determine If
Your Invention Is Profitably Marketable (Before Wasting Money on a
Patent)" Info Sites: www.willitsell.com www.inventorhome.com,
www.idearights.com www.taletyano.com www.booksforinventors.com
[Follow sig link for email address. Replies go to spam bit-bucket]
Bruce Lewis
> On 06 Dec 2005 08:43:19 -0500, Bruce Lewis wrote...
> >
> > Creation of something new and better is necessary but not sufficient for
> > progress. Others must be able to learn from the invention. Publication
> > is the best way to enable others to learn from an invention.
>
> Elsewhere in the thread, you were denying Ptravel's view that the
> purpose of patent law is to provide an incentive to create something new
> and better. I said that patents promote progress *both* by providing
> such an incentive *and* by publishing the results.
Ptravel's assertion was that RMS was wrong to characterize publication
as a purpose of patent law, and as an important distinction between
patent law and copyright law. Ptravel views publication as an
incidental side effect of patent law, rather than a key purpose. For me
to argue against Ptravel I don't need to deny that providing an
incentive is also a purpose of patent law.
Anyway, this thread has gotten out of hand. I'm going to summarize and
get out.
Richard Stallman's brief arguement against using the TERM OR CONCEPT
"intellectual property" can be found here:
http://www.gnu.org/philosophy/words-to-avoid.html#IntellectualProperty
He doesn't want a different term chosen. He wants people to avoid
lumping together disparate issues.
I think Stallman is right that generally it pays to talk about the
different areas of law separately.
At the same time, Stallman objects to the way the word "property"
encourages inappropriate analogies with physical objects, e.g. "theft"
for infringement.
Stallman is technically right that infringement is not the same as
stealing someone's intellectual property. That term makes the act sound
more vile than it really is. But by the same token, making a copy for
someone or permitting copying is not analagous to physical "sharing", so
his use of that term makes the act sound more noble than it really is.
Stallman's longer essay about the term "intellectual property" is here:
http://www.gnu.org/philosophy/not-ipr.xhtml
He talks about when the term came into widespread/common use, apparently
referring to use outside the legal profession. We got some interesting
facts from Lee Hollar about its use inside the legal profession.
He then goes into detail about key differences between the different
areas of law. When he talks about trademarks nobody here (myself
included) seems to know what he's talking about. I could speculate, but
I won't.
Hmm...I have to cut this short. Basically, I see how the common issue
for lawyers among these areas of law the ownership issue of an
intangible right that crosses national boundaries, and in this context
the term makes perfect sense. At the same time, I agree with Stallman's
statement:
The term "intellectual property" operates as a catch-all to lump
together disparate laws. Non-lawyers who hear the term "intellectual
property" applied to these various laws tend to assume they are
instances of a common principle, and that they function
similarly. Nothing could be further from the case.
Bruce Lewis
> Sort of like trying to get RMS to change from "free software" to "open
> source" beause it's a better description of the concept.
"Open source" sounds like it could describe software that comes with
source, but without any redistribution rights. Each term has its own
problem.
This is also a poor analogy because RMS doesn't want to rename the term.
"A different name could eliminate the bias, but won't address the term's
deeper problem: overgeneralization."
If you want to attack RMS on this front, look at how he criticizes the
use of the word "right" in copyright. English overloads the word
"right" for both moral rights and government-granted exclusive rights
just as it overloads "free" for both gratis and freedom.
Alexander Terekhov
Bruce Lewis wrote:
[...]
> http://www.gnu.org/philosophy/words-to-avoid.html#IntellectualProperty
"hypocrisy"
Yeah.
http://sco.tuxrocks.com/Docs/Wallace_v_FSF/Wallace_v_FSF-17.pdf
(FSF's brief)
"courts recognized that the unique attributes of intellectual
property licenses ..." ^^^^^^^^^^^^
^^^^^^^^
-- Counsel for Defendant Free Software Foundation, Inc.
regards,
alexander.
Roger Schlafly
> If you want to attack RMS on this front, look at how he criticizes the
> use of the word "right" in copyright. English overloads the word
> "right" for both moral rights and government-granted exclusive rights
> just as it overloads "free" for both gratis and freedom.
RMS is wrong about this point. The term is not being
overloaded. When the govt issues a copyright or patent
document, it does not care whether the recipient views
the right as a moral right or a govt-issued right. A few
people like RMS like to make the distinction, but no such
distinction is necessary.
Roger Schlafly
> At the same time, Stallman objects to the way the word "property"
> encourages inappropriate analogies with physical objects, e.g. "theft"
> for infringement.
It is called property because there are legal mechanism for buying
it and selling. If RMS doesn't want it to be called property, then
he should lobby for laws against transfering it.
> Stallman is technically right that infringement is not the same as
> stealing someone's intellectual property.
If something can be bought or sold, then it can be stolen.
Bruce Hayden
>
> But "IP rights" are not the "intellectual property". The "rights" are
> supposed to be what you can do with the "intellectual property". My
> "rights" to my house, aren't my house. They're two different things.
Ok, but what you sell is a deed, and that is no different from
selling a patent. It is a piece of paper describing the actual
property. But note, that the patent is not the invention, but
is rather the grant of rights. And that is what I am calling IP.
> You're talking about trading or selling the copyright itself again. That
> isn't the so-called "intellectual property".
It is to me. You are arguing that your definition is correct
and ours is not because, apparently, you state that is so.
And, maybe, one day, Stallman's and your definition of the
term will become more widely accepted than that in the legal
community. But it hasn't happened yet.
> This is the whole point. There isn't any actual "intellectual property".
> There's no piece of property. There's a set of rights over a market.
Which are property. That is why one reason that they
are called intellectual property. Because they can be bought,
sold, etc.
>
> The last phrase is important imo. The original intent of the laws has been
> lost, for a long time now.
Maybe. But that is irrelevant, at least to me.
>>But that is the point. A patent, a copyright, a trademark, are all
>>pieces of property.
>
> They are not the "intellectual property".
Ok, I am a little lost here. You agree that they are
property. Presumably that they are intangible personal
property that have all the attributes of other types of
intangible personal property - that they can be bought,
sold, encumbered, inherited, divided, etc.
You just disagree that they can be called by the name
that lawyers coined for that type of intangible personal
property: "intellectual property".
> In the "IP" paradigm, they "protect the intellectual property", or they are
> the deeds to the intellectual property.
I disagree. Without the copyright, patents, etc., you have
nothing of real value. If it has value, then it can be sold
as property, just like any other type of property.
That Stallman and you define the term in one way that is
not the accepted legal definition of the term is fine.
But that doesn't mean that it is accurate or true.
I think that you need to read Lee Hollar's Alice quote.
>>One more time. Patents, copyrights, etc. can be utilized to
>>prevent someone from doing something. In other words, they
>>are negative monopolies. But more important here, since we
>>are talking about the word "property", this right has value.
>>This right can be bought, sold, bequeathed, devised, inherited,
>>subdivided, encumbered, etc. No different than any other
>>property, and, indeed, although it is considered intangible
>>personal property, what you can do with this right is almost
>>closer to what you can do with real property.
>
> One more time. Patents and copyrights are not the "intellectual property".
> They grant rights, which in "IP" theory are rights over the supposed
> "intellectual property". They aren't one and the same.
You are, of course, entitled to your opinion and your
own definitions. Just don't expect it to be accepted
by those of us who make our living helping people buy,
sell, and procure these rights. Most of us will continue
to use the term "Intellectual Property" to include the
property interests involved.
--
--------------------------------------------------------------------
The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 2005 Bruce E. Hayden,all rights reserved
My work may be copied in whole or part, with proper attribution,
as long as the copying is not for commercial gain.
--------------------------------------------------------------------
Bruce E. Hayden www.softpats.com
Dillon, Colorado bha...@ieee.org
Phoenix, Arizona bha...@highdown.com
Josh Dougherty
news:dn6k4h$3i9$1...@blue.rahul.net...
This is one of the big problems. The "property" in the phrase is like the
pea in a shell game. One minute it's the abstract notion of the "work".
The next minute it's the set of "rights". The next it's the "market value"
of the right. The next it's the "market value" of the "work". The next
it's the "potential market value" of the "work" or the "rights". I've heard
many variations of any and all of these.
It would probably be fun to make a comprehensive list of all the things the
"property" is claimed to be in the phrase "intellectual property".
Josh Dougherty
> In article <z_-dnRt6l8LEwgve...@comcast.com> "Josh Dougherty"
<jdoc1...@comcast.net> writes:
> >"Lee Hollaar" <hol...@antitrust.cs.utah.edu> wrote in message
> >news:dn5l80$ub7$1...@antitrust.cs.utah.edu...
> >> In article <E_GdnSwL-YR...@comcast.com> "Josh Dougherty"
> ><jdoc1...@comcast.net> writes:
> >> >Patents themselves are a sort of property. We already covered this.
> >> >Again, the patent itself is not the "intellectual property". The
> >supposed
> >> >"intellectual property" is that vague intangible thing that the patent
> >> >grants rights over. They're two different things.
> >>
> >> Whatever. Got any cite to a court decision where your distinction made
> >> any difference, or is even noted?
> >
> >I think you're the one that needs to answer this question. Not me. If a
> >court says "patents are property", I'm not disputing that. A patent is
> >saleable set of legal entitlements. It is a sort of property.
>
> I don't think your distinction makes any difference, and I'm not going to
> spend any time trying to find some obscure case where it does.
>
> But if you want to be precise, the patent is a government document
> conveying rights. But I doubt whether the point the Supreme Court
> was making was that the conveyance document was property. They were
> saying that the rights conveyed by the document had aspects like other
> forms of property, particularly transferability and the right to seek
> and injunction to exclude others from the property.
Exclude others from the patent?
> >We already know that for the 200 years no court even mentioned the term
> >"intellectual property" at all, while deciding these cases. I have no
idea
> >if there's a case where they make any declaration about what the
> >"intellectual property" actually is or isn't. I don't see why they
should
> >or would go to the trouble to define a term that doesn't seem to have any
> >legal status or relevance to the cases, but is just an arbitrary
shorthand
> >for a bunch of disparate laws.
>
> I don't know how you get 200 years.
Well, the US Constitution with Article 9 was ratified first in 1787. So
these laws have been in place in some form in the US for about 162 years
before a judge ever uttered the phrase "intellectual property" on record in
some context or other. The Statute of Anne dates from 1710 in England, so
that's 240 years if we go beyond the US.
So take your pick 162, 240 or 200. The point doesn't seem to change.
> Seems like you have tossed that out
> and now assume it's a fact, but you are wrong. The first federal patent
> statute was in 1790. The first Supreme Court decision using the term
> "intellectual property" was 1949. You do the math.
Big difference.
> But they used the term (not defined it) because it was a convenient term
> already in use as a collective for the various rights conveyed by utility
> patents, copyright, trade marks, and other forms of protection for
> intangibles.
>
> So, again, you are making up facts to make your argument. It wasn't 200
> years and Justice Frankfurter didn't go to any trouble to define the term.
Did I claim anyone defined the term? I said I doubted that any court would
bother defining an irrelevant and arbitrary term, particularly when it's
confusing and hard to define.
...
> >Fine. So it's a term that is irrelevant to the laws. We could call it
by
> >any term for all it matters.
> >
> >> And I'm certainly not saying that the term "intellectual property"
> >> is "important, accurate and meaningful", just that it is the generally-
> >> accepted collective term.
> >
> >So its use is arbitrary. We agree there. The only question then is how
> >informative or disinformative is the arbitrary choice to use this term as
a
> >description. I think Stallman is quite correct that the term is more
> >disinformative than informative, and since its use is arbitrary, it
should
> >be discarded.
>
> A lot less disinformative than RMS using "free" to describe his particular
> form of license.
I don't see what's "disinformative" about that, once he clarifies that he's
talking about freedom and not price. It's pretty informative of the
character and intent of the liscense imo.
Josh Dougherty
news:UbydnUelSpojcQve...@comcast.com...
> >Josh Dougherty
> > commercial publishers and companies. Copyright law for instance, was
> mostly
> > irrelevant to the average Joe in 1790. Now it can go for 100+years and
it
> > restricts every individual in the country, or even on the entire planet.
>
> I took the trouble to research and write a book and put a copyright notice
> on it. In EXACTLY what way has that RESTRICTED you?
That hasn't. Copyright law has. If I buy the book from you I'm restricted
from using my book along with my printer or my scanner or whatever tools I
own to make new drafts, copies or images of my book to distribute to others
who need or want the information that I possess therein, for example. I'm
forbidden from helping them. Others are restricted from acquiring the book
from anyone except from one seller with monopoly pricing rights. They're
restricted from seeking out competitors in the market. etc. etc.
This is all pretty obvious.
Roger Schlafly
> Well, the US Constitution with Article 9 was ratified first in 1787. So
> these laws have been in place in some form in the US for about 162 years
> before a judge ever uttered the phrase "intellectual property" on record
> in
> some context or other. The Statute of Anne dates from 1710 in England, so
> that's 240 years if we go beyond the US.
I thought that the complaint with the term "intellectual property"
was that it lumps together patents and copyright. Well, that
1787 sentence authorizing patents copyrights does them both
in the same sentence, so lumping them together is not a new concept.
Isaac
wrote:
First I think you've mischaracterized the use of intellectual property in
the above example. Intellectual property is not described as being the
market value of the work. What was said is that the intellectual
property is what provides the work with market value so that the intellectual
proper can be said to have a worth expressed in dollars. An analogous
statement can be made concerning the value of an estate based on real property.
Further, the term "intellectual property" is not used to refer to the
market value of the work. That's just misuse. But we don't take words
out of the dictionary because some people cannot use them properly.
As for using intellectual property to refer to both the right and the
underlying invention or creative work, that seems to make the phrase
handy rather than useless. Yes it does put some onus on the user to
provide some context or clue as to what is meant, but generally that
context is effortlessly provided. In fact it would usually take someone
with an agenda which requires there to be confusion to find some.
Isaac
James White
> That hasn't. Copyright law has. If I buy the book from you I'm
restricted
> from using my book along with my printer or my scanner or whatever tools I
> own to make new drafts, copies or images of my book
[note, it's not 'YOUR' book, it's your COPY of MY book---the lies you tell
yourself are the worst kind]
> to distribute to others
> who need or want the information that I possess therein, for example.
You're perfectly free to pass on the information---just write it up or yap
it yourself. You also have limited "fair use" rights where you can do some
partial copying. Apparently YOU want to be recognized as the SOURCE for the
information. Why not just buy everyone a copy----I'll even cut you a better
than wholesalers deal if you want to buy them and pass them out---a far
better deal for you than your copying costs!!!!!!!!!
> I'm
> forbidden from helping them.
Harrrrrrrrr, hawwwwwwwwww, ROTFLMAO, hoooooooooo Tell them about my $25 book
and they won't have to put up with a hundred hours of you trying to repeat
what you couldn't understand. Harrrrrrrrrrrrr, hawwwwwwww, . . . You help
someone, harrrrrrrr, hoooo, go ahead, you have every right to with whatever
information you happen to learn from whatever source. MY BOOK IS NOT
STOPPING YOU NOR IS COPYRIGHT LAW-----copyright law is restricting your
ability to ***free ride*** on all the effort I put into creating the book in
the first place. Why would anyone go to the trouble to write a book if
everyone else could just free ride on that
work?????????????????????????????????
> Others are restricted from acquiring the book
> from anyone except from one seller with monopoly pricing rights. They're
> restricted from seeking out competitors in the market. etc. etc.
WOW! I cannot believe such IGNORANCE. YOU CLEARLY DON'T KNOW ONE THING ABOUT
THE PUBLISHING INDUSTRY.
Have you heard of "Stand Alone, Inventor!" by Robert Merrick, "Bringing Your
Product to Market" by Don Debelak, "From Patent to Profit" by Bob DeMatteis,
"The Inventor's Bible" by Ronald Docie, "The Complete Idiot's ..."
Also TREMENDOUS IGNORANCE OF THE MARKETPLACE. STUPENDOUS IGNORANCE, in fact.
Could I sell my book at $125?, $225? $525? Would that in any way block
people from getting the information???? You clearly don't even understand
just what "monopoly" means. GET AN EDUCATION-----SOON.
> This is all pretty obvious.
Obvious that you're pretty bleeping IGNORANT, all you can spout is pretty
BS---parroted BS most likely!
Josh Dougherty
> >Josh Dougherty
> > That hasn't. Copyright law has. If I buy the book from you I'm
> restricted
> > from using my book along with my printer or my scanner or whatever tools
I
> > own to make new drafts, copies or images of my book
>
> [note, it's not 'YOUR' book, it's your COPY of MY book---the lies you tell
> yourself are the worst kind]
It's both.
This is my computer, but it's also my copy of Gateway's computer. Say it
one way or the other. They're both true.
> > to distribute to others
> > who need or want the information that I possess therein, for example.
>
> You're perfectly free to pass on the information---just write it up or yap
> it yourself.
I'm not allowed to write it up myself. That's one of the restrictions
because that would be copying the book. It just takes longer than the
scanner or whatever else.
Look James, you asked me what were the restrictions. I told you. Yes, I'm
free to do all kinds of things other than the things I'm restricted from
doing. You didn't ask me about those things.
> You also have limited "fair use" rights where you can do some
> partial copying. Apparently YOU want to be recognized as the SOURCE for
the
> information.
??? I don't know how or why that's "apparent". You seem to be imagining
things.
> Why not just buy everyone a copy----I'll even cut you a better
> than wholesalers deal if you want to buy them and pass them out---a far
> better deal for you than your copying costs!!!!!!!!!
If you're offering a better deal for copies than other people's copying
costs, there's not much point in having the copyright law.
> > I'm
> > forbidden from helping them.
>
> Harrrrrrrrr, hawwwwwwwwww, ROTFLMAO, hoooooooooo Tell them about my $25
book
> and they won't have to put up with a hundred hours of you trying to repeat
> what you couldn't understand. Harrrrrrrrrrrrr, hawwwwwwww, . . . You help
> someone, harrrrrrrr, hoooo, go ahead, you have every right to with
whatever
> information you happen to learn from whatever source. MY BOOK IS NOT
> STOPPING YOU NOR IS COPYRIGHT LAW-----copyright law is restricting your
> ability to ***free ride*** on all the effort I put into creating the book
in
> the first place. Why would anyone go to the trouble to write a book if
> everyone else could just free ride on that
> work?????????????????????????????????
The same reasons why people wrote books before copyright law.
All you're saying in this hysterical reply is that you like the restrictions
it puts on me and everyone else. Fine. You asked what they were, as if you
didn't think there were any. These are them.
> > Others are restricted from acquiring the book
> > from anyone except from one seller with monopoly pricing rights.
They're
> > restricted from seeking out competitors in the market. etc. etc.
>
> WOW! I cannot believe such IGNORANCE. YOU CLEARLY DON'T KNOW ONE THING
ABOUT
> THE PUBLISHING INDUSTRY.
You're not making any sense. Can I seek out competing publishers of the
book to see how much they're charging if I don't want to pay the price your
publisher is charging? Can I make my own copy instead of seeking out a copy
from a commercial publisher in the first place? If not, then we're talking
about monopoly pricing rights, set by a monopoly seller/maker. This is just
fact.
> Have you heard of "Stand Alone, Inventor!" by Robert Merrick, "Bringing
Your
> Product to Market" by Don Debelak, "From Patent to Profit" by Bob
DeMatteis,
> "The Inventor's Bible" by Ronald Docie, "The Complete Idiot's ..."
>
> Also TREMENDOUS IGNORANCE OF THE MARKETPLACE. STUPENDOUS IGNORANCE, in
fact.
> Could I sell my book at $125?, $225? $525?
Sure, if you wanted to. But maybe nobody would buy it. And since they
can't go to any other seller to find a cheaper price, they either pay the
price you set or they can't get the product anywhere.
> Would that in any way block
> people from getting the information????
Well, yes. Far fewer people would buy it so that information would be
disseminated much less. And others can't afford $525 so they're effectively
blocked from it, while they wouldn't be if it was like $15.
> You clearly don't even understand
> just what "monopoly" means. GET AN EDUCATION-----SOON.
If only one party is allowed to make or sell a product, it's a monopoly.
Everyone knows that copyrights are monopolies. Look back at Jefferson and
Madison's discussions of Article 9, they called them monopolies. Read
economists, they call them monopolies. It appears you don't know what
"monopoly" means.
Josh Dougherty
> You clearly don't even understand just what "monopoly" means. GET AN
EDUCATION-----SOON.
As for my use of "monopoly", for which I need to "get an education", here's
Jefferson & Madison talking exactly about these kind of
monopolies, and using the term in their debate about them, as well as some
economists using the term exactly as I am:
Jefferson:
"The saying there shall be no monopolies lessens the incitements to
ingenuity, which is spurred on by the hope of a monopoly for a limited time,
as of 14 years; but the benefit even of limited monopolies is too doubtful
to be opposed to that of their general suppression."
Madison's response:
"With regard to monopolies they are justly classed among the greatest
nuisances in government. But is it clear that as encouragements to literary
works and ingenious discoveries, they [monopolies] are not too valuable to
be wholly renounced? Would it not suffice to reserve in all cases a right to
the public to abolish the privilege at a price to be specified in the grant
of it?"
Jefferson again arguing for the addition of more clear limitation on these
(his term) monopolies in the Constitution:
"I like the declaration of rights as far as it goes, but I should have been
for going further. For instance, the following alterations and additions
would have pleased me . . . Article 9. Monopolies may be allowed to persons
for their own productions in literature, and their own inventions in the
arts, for a term not exceeding ___ years, but for no longer term, and for no
other purpose." [Jefferson later proposed 19 years as the term]
------------
The US Supreme Court, Sola Electric Co. v. Jefferson Electric Co.:
"The question for our decision is whether a patent licensee, by virtue of
his license agreement, is estopped to challenge a price-fixing clause in the
agreement by showing that the patent is invalid, and that the price
restriction is accordingly unlawful because not protected by the patent
monopoly."
"..that the stipulation for control of the sales price of the patented
articles manufactured by the licensee was a lawful exercise of the patent
monopoly."
"Such a restriction on the price of articles entering interstate commerce is
a violation of the Sherman Act save only as it is within the protection of a
lawfully granted patent monopoly."
--------
And here's an economist, Dr William Coleman - Senior Lecturer in Economics
at the Australian National University:
"The stretch of these laws (IP laws) reveals not an enlightened policy to
preserve the springs of creativity, but a quest for monopoly. Consider how
the time span of copyright protection in the USA has been progressively
extended:
1710: fourteen years, renewable for fourteen more if the author was alive
upon expiration;
1831: twenty eight years, with the possibility of a fourteen year extension;
1909: twenty eight years, with a possible renewal for a further twenty
eight;
1976: life of the author plus fifty years;
1998: life of the author plus seventy years.
The remorseless extension is also manifest in patent laws."
-------------
And economist David Korten: Dr. Korten holds MBA and Ph.D. degrees from the
Stanford Business School and has thirty years experience as a development
worker in Asia, Africa, and Latin America. He has been a Harvard Business
School professor, US Air Force captain, Ford Foundation Project Specialist
in Manila, and Asia regional advisor to the US Agency for International
Development. :
"Indeed, [Adam] Smith was almost fanatical in his opposition to any kind of
monopoly power, which he defined as the power of a seller to maintain a
price for an indefinite time above its natural price. Indeed, he asserted
that trade secrets confer a monopoly advantage and are contrary to the
principles of a free market. He would surely have strongly opposed current
efforts by market libertarians to strengthen corporate monopoly control of
intellectual property rights through the General Agreement on Tariffs and
Trade (GATT). The idea that a major corporation might have exclusive control
over a lifesaving drug or device and thereby be able to charge whatever the
market will bear would have been anathema to him."
----------------
And then there's Joseph Stiglitz, Nobel laureate in economics, is Professor
of
Economics at Columbia University and was Chairman of the Council of
Economic Advisers to President Clinton and Chief Economist and Senior Vice
President at the World Bank.
"By contrast, an intellectual property regime rewards innovators by creating
a temporary monopoly power, allowing them to charge far higher prices than
they could if there were competition. In the process, ideas are
disseminated and used less than they would be otherwise.
The economic rationale for intellectual property is that faster innovation
offsets the enormous costs of such inefficiencies. But it has become
increasingly clear that excessively strong or badly formulated intellectual
property rights may actually impede innovation – and not just by increasing
the price of research."
---------
And an article in the Economist:
"Today, IPR law is the focus of intense interest, and it is not just lawyers
who are paying attention. The original purpose of patents was to encourage
innovation, and thus growth, by creating an incentive for inventors to
disclose the details of their inventions in exchange for a limited monopoly
on exploitation. Some argue that the modern system of IPR law is having the
opposite effect—delaying the diffusion of new technology."
----------
Or economists Boldrin & Levine:
"When you buy a potato, you can eat it, throw it away, plant it or make it
into a sculpture. When you buy a potato you can use the 'idea' of a potato
embodied in it to make better potatoes or to invent french fries. Current
law allows producers of computer software or medical drugs to take this
freedom away from you."
"It is against this distorted extension of intellectual property that we
argue." Better it should be called "intellectual monopoly," they say. "As
far as we know there is no organized movement to provide producers of
potatoes, or any other commodity involving sunk costs, with a government
monopoly."
I could of course go on and on with such references. But I need to go start
my quest to "get an education" soon.
Josh Dougherty
Fine. But people who've argued with me about the issue have referred to it
as such. They were misusing the term, ok. Apparently the term had confused
them.
> But we don't take words
> out of the dictionary because some people cannot use them properly.
>
> As for using intellectual property to refer to both the right and the
> underlying invention or creative work, that seems to make the phrase
> handy rather than useless. Yes it does put some onus on the user to
> provide some context or clue as to what is meant, but generally that
> context is effortlessly provided. In fact it would usually take someone
> with an agenda which requires there to be confusion to find some.
>
Well, look people can call it "bananas" if they want and if they find that
convenient for some reason. But it's important to clarify that you're not
going to gain any real insight about what's being described by literally
thinking of the things as "bananas", or attempting to define what "bananas"
really IS. I'm discussing how accurate or informative the term is for
understanding, and so was RMS I think.
The term "property" could reasonably apply to the set of rights, but
"intellectual property" doesn't make much sense in reference to the rights
because there's nothing particularly "intellectual" about the rights. In
reference to the "underlying invention or creative work" the term
"intellectual" could apply, but the term "property" is just a poor analogy
because it doesn't function like everything else that's called property.
When I sell my property, such as my car, I don't own it anymore. Someone
else now has it and I don't. When I sell my "creative work" someone else
owns it and I still own it. They have it and I have it. I can keep selling
it to 100 more people and I still have it to use or sell. This thing is so
different in this and other characteristics from "property", that conceiving
of it as such is misleading. Again, it's like saying, look at this thing
through the lens of a flawed analogy with a different thing, not for what it
is.
So it lumps together two different things using two words, one of the words
applies to one of the two things, but not the other. And the other word
applies to the other thing, but not the first. It then implies that both
words apply to both things, and they're all really one thing.
Yep, not confusing at all.
Josh Dougherty
news:229b3$4397342e$943f91b6$25...@STARBAND.NET...
> "Bruce Lewis" <brl...@yahoo.com> wrote:
> > At the same time, Stallman objects to the way the word "property"
> > encourages inappropriate analogies with physical objects, e.g. "theft"
> > for infringement.
>
> It is called property because there are legal mechanism for buying
> it and selling. If RMS doesn't want it to be called property, then
> he should lobby for laws against transfering it.
The "it" here is the set of rights. But that's not usually what's implied
by the "property" in the phrase.
> > Stallman is technically right that infringement is not the same as
> > stealing someone's intellectual property.
>
> If something can be bought or sold, then it can be stolen.
The only "it" applicable here is the patent or copyright. I'm not sure if
these can be "stolen" or not, maybe they can. How does someone "steal" a
copyright exactly?
As for the intangible "work", one of the other things often implied as the
"property", the USSC has ruled that it can't be "stolen", showing that
Stallman is correct that infringement is not the same as stealing.
http://www.justia.us/us/473/207/case.html
Alexander Terekhov
[...]
> When I sell my property, such as my car, I don't own it anymore. Someone
> else now has it and I don't. When I sell my "creative work" someone else
> owns it and I still own it.
No. When you sell your copyright someone else owns it and you don't
own it any more. And when you dispose a copy of your copyrighted work
(including electronic distribution when a copy is lawfully made by
recipient), you also don't own it any more and can't control further
distribution of that copy under copyright law. The funny thing is that
neither RMS nor his legal advisor Moglen The dotCommunist seem to be
able to grasp that "first sale" doctrine thoroughly negates the [L]GPL.
regards,
alexander.
Arnoud Galactus Engelfriet
Alexander Terekhov <tere...@web.de> wrote:
>(including electronic distribution when a copy is lawfully made by
>recipient), you also don't own it any more and can't control further
>distribution of that copy under copyright law. The funny thing is that
>neither RMS nor his legal advisor Moglen The dotCommunist seem to be
>able to grasp that "first sale" doctrine thoroughly negates the [L]GPL.
Has it ever been determined by a court that an electronic copy
of a work is subject to first sale?
Arnoud
--
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
Josh Dougherty
news:43993DD0...@web.de...
I wasn't talking about selling a copyright or a physical copy of the work.
I was talking about the intangible "work" that's sometimes assumed to be the
"property" in "intellectual property". What you wrote here has no relevance
to anything I was saying. Did you even read anything I said?
Alexander Terekhov
[...]
> Has it ever been determined by a court that an electronic copy
> of a work is subject to first sale?
Formalistic reading of first sale doesn't cover electronic
redistribution when another recipient makes another replica of
copyrighted content from a copy owned by first recipient which was
created in the course of authorized downloading (instead of transfer
of material object) and when first recipient simply deletes copyrighted
content after electronic transfer to another another recipient. That's
not what I was talking about. Think of burned CDs containing binaries
of publicly available GPL'd works and no sources. The law is quite
clear and even Time Warner agrees.
"We note that the initial downloading of a copy, from an authorized
source to a purchaser's computer, can result in lawful ownership of
a copy stored in a tangible medium. "
As for legality of electronic redistribution, do you seriously believe
that any court outside the GNU Republic (where first sale is
nonexistent) could outlaw
http://www.research.ibm.com/quantuminfo/teleportation
on the grounds of unauthorized replication under formalistic reading
of the statute?
I'm with
http://www.copyright.gov/reports/studies/dmca/reply/Reply008.pdf
regards,
alexander.
Alexander Terekhov
[...]
> I wasn't talking about selling a copyright or a physical copy of the work.
> I was talking about the intangible "work" that's sometimes assumed to be the
> "property" in "intellectual property".
Apart from exclusive rights granted by copyright, it's right to access
and use the intangible work (that passes to a recipient in a first sale)
that's assumed to be property in "intellectual property". It's pretty
similar to right to access and use your home.
regards,
alexander.
Lee Hollaar
>As for the intangible "work", one of the other things often implied as the
>"property", the USSC has ruled that it can't be "stolen", showing that
>Stallman is correct that infringement is not the same as stealing.
>http://www.justia.us/us/473/207/case.html
It shows nothing of the kind.
All it shows is that, under a the language of a particular federal
statute, the conduct of the defendant of making unauthorized copies
of Elvis Presley records was not included.
There is no reason why Congress could not have included what the
defendant did within the National Stolen Property Act. It didn't,
but that doesn't mean that it couldn't.
For example, Utah has a general theft (78-6-401 et seq) as part of its
criminal code, in Chaptre 6, "Offenses against property". And in its
definition of "property," the legislature included not only "real
estate" and "tangible and intangible personal property" but also
"trade secrets, meaning the whole or any portion of any scientific or
technical information, design, process, procedure, formula or invention
which the owner thereof intends to be available only to persons selected
by him."
So, in Utah at least, it is just as proper to say that a trade secret
was stolen as it is to say that a car is stolen, since both violate
the same statute.
Copyrights and patents weren't included in Utah's penal code when it
was revised in 1973, presumably because they were to be subject to
whatever laws Congress passes.
But there is nothing in the Supreme Court's opinion that would prevent
Congress from including criminal copyright infringement within the
particular act that was being considered in Dowling.
Alexander Terekhov
Lee Hollaar wrote:
[... trade secrets/copyrights/patents in Utah ...]
Have some fun...
http://lpf.ai.mit.edu/Patents/rms-pto.html
"... a new form of intellectual property for software could be an
improvement if it /replaces/ all the forms that currently exist. Here
is a proposal for such a system:
- When a program is released to the public, the developer is required
to place the complete source code in escrow at the Library of Congress,
where it is kept temporarily secret.
- The software is then trade secret and copyrighted for four years. The
power of this copyright could be as strict as anyone wishes.
- Four years later, the program enters the public domain, and the
escrowed source code is released by the Library of Congress, also in
the public domain.
No other form of intellectual property monopoly covers software. "
-- The UGNUS President RMS
regards,
alexander.
Roger Schlafly
>> If something can be bought or sold, then it can be stolen.
> The only "it" applicable here is the patent or copyright. I'm not sure if
> these can be "stolen" or not, maybe they can. How does someone "steal" a
> copyright exactly?
The RIAA could explain it to you. <g>
This is a bit like asking how someone can steal land. After all,
the land is still there, no matter what lawbreaking takes place.
Nevertheless, land is property, and if you legally own it, then
the law will help you if someone tries to steal it.
Josh Dougherty
> In article <pqKdnUxtbtV...@comcast.com> "Josh Dougherty"
<jdoc1...@comcast.net> writes:
> >As for the intangible "work", one of the other things often implied as
the
> >"property", the USSC has ruled that it can't be "stolen", showing that
> >Stallman is correct that infringement is not the same as stealing.
> >http://www.justia.us/us/473/207/case.html
>
> It shows nothing of the kind.
>
> All it shows is that, under a the language of a particular federal
> statute, the conduct of the defendant of making unauthorized copies
> of Elvis Presley records was not included.
Fine. Under what other laws is copyright infringment theft?
> There is no reason why Congress could not have included what the
> defendant did within the National Stolen Property Act. It didn't,
> but that doesn't mean that it couldn't.
>
> For example, Utah has a general theft (78-6-401 et seq) as part of its
> criminal code, in Chaptre 6, "Offenses against property". And in its
> definition of "property," the legislature included not only "real
> estate" and "tangible and intangible personal property" but also
> "trade secrets, meaning the whole or any portion of any scientific or
> technical information, design, process, procedure, formula or invention
> which the owner thereof intends to be available only to persons selected
> by him."
>
> So, in Utah at least, it is just as proper to say that a trade secret
> was stolen as it is to say that a car is stolen, since both violate
> the same statute.
>
> Copyrights and patents weren't included in Utah's penal code when it
> was revised in 1973, presumably because they were to be subject to
> whatever laws Congress passes.
>
> But there is nothing in the Supreme Court's opinion that would prevent
> Congress from including criminal copyright infringement within the
> particular act that was being considered in Dowling.
So Utah sort of agrees with you. You should be very proud.
Josh Dougherty
It doesn't seem very much like land. A copyright is a bunch of legal
rights. How does someone appropriate the legal rights and dispossess the
rightful owner of them? I can see how this can work with land, but I'm not
really sure how it works here.
Alexander Terekhov
Josh Dougherty wrote:
[...]
> Fine. Under what other laws is copyright infringment theft?
Go ask comrade Moglen. "The stealing of free software is one place
where, indeed, crime doesn't pay. " (Eben Moglen: Enforcing the GNU
GPL.)
regards,
alexander.
Josh Dougherty
I don't know "comrade Moglen". You or Lee answering will have to do.
Lee Hollaar
>"Lee Hollaar" <hol...@antitrust.cs.utah.edu> wrote in message
>news:dnbqko$6es$1...@antitrust.cs.utah.edu...
>> In article <pqKdnUxtbtV...@comcast.com> "Josh Dougherty"
><jdoc1...@comcast.net> writes:
>> >As for the intangible "work", one of the other things often implied as
>the
>> >"property", the USSC has ruled that it can't be "stolen", showing that
>> >Stallman is correct that infringement is not the same as stealing.
>> >http://www.justia.us/us/473/207/case.html
>>
>> It shows nothing of the kind.
>>
>> All it shows is that, under a the language of a particular federal
>> statute, the conduct of the defendant of making unauthorized copies
>> of Elvis Presley records was not included.
>
>Fine. Under what other laws is copyright infringment theft?
I'm not saying that there is any law in which the word "theft" is used
to describe the infringement of copyright. But then, the statute that
covers the unlawful taking of public money, property, or records (18
U.S.C. 641) doesn't call it "theft" either.
Or how about the "No Electronic Theft (NET) Act," Public Law 105-147,
which amended the criminal provisions of the Copyright Act of 1976.
But you are the one who claims that the Supreme Court ruled that
that an "intangible 'work', one of the other things often implied as
'property'" can't be stolen. I just said that you are misrepresenting
what the case actually said.
Alexander Terekhov
Josh Dougherty wrote:
[...]
> I don't know "comrade Moglen".
You don't know GNUtian Number Two (dotCommunist Number One) and
Chairman of Legal (GNU Law, I gather) Think Tank
http://www.softwarefreedom.org/team.html?
http://www.gnu.org/philosophy/enforcing-gpl.html
Drop him an email.
regards,
alexander.
Rahul Dhesi
>I'm with
>http://www.copyright.gov/reports/studies/dmca/reply/Reply008.pdf
This document seems to entirely ignore shrink-wrap licenses, which when
enforced seem to be able to make the First Sale doctrine irrelevant,
since a typical such license claims that the work is licensed, not sold.
There is no corresponding First License doctrine that I know of.
--
Rahul
Rahul Dhesi
>>Stallman is correct that infringement is not the same as stealing.
>>http://www.justia.us/us/473/207/case.html
>It shows nothing of the kind.
>All it shows is that, under a the language of a particular federal
>statute, the conduct of the defendant of making unauthorized copies
>of Elvis Presley records was not included.
I don't think we need to look to case law to decide whether or not
"infringement is not the same as stealing".
For one thing, the courts do not decide what English words mean.
For another, just consider common usage: If infringement and stealing
were synonyms, they would be used interchangeably, and I don't observe
that to be the case. Nobody says "my car was infringed", for example,
instead of "my car was stolen". And nobody says "they stole my
copyright", for example, instead of "they infringed my copyright".
In some limited emotionally charged contexts, people will substitute one
for the other. This doesn't make them synonymous. Emotionally charged
language tends to exaggerate.
--
Rahul
Josh Dougherty
> In article <XLKdnR-E3_W...@comcast.com> "Josh Dougherty"
<jdoc1...@comcast.net> writes:
> >"Lee Hollaar" <hol...@antitrust.cs.utah.edu> wrote in message
> >news:dnbqko$6es$1...@antitrust.cs.utah.edu...
> >> In article <pqKdnUxtbtV...@comcast.com> "Josh Dougherty"
> ><jdoc1...@comcast.net> writes:
> >> >As for the intangible "work", one of the other things often implied as
> >the
> >> >"property", the USSC has ruled that it can't be "stolen", showing that
> >> >Stallman is correct that infringement is not the same as stealing.
> >> >http://www.justia.us/us/473/207/case.html
> >>
> >> It shows nothing of the kind.
> >>
> >> All it shows is that, under a the language of a particular federal
> >> statute, the conduct of the defendant of making unauthorized copies
> >> of Elvis Presley records was not included.
> >
> >Fine. Under what other laws is copyright infringment theft?
>
> I'm not saying that there is any law
So, none.
> in which the word "theft" is used
> to describe the infringement of copyright. But then, the statute that
> covers the unlawful taking of public money, property, or records (18
> U.S.C. 641) doesn't call it "theft" either.
http://www.washingtonwatchdog.org/documents/usc/ttl18/ptI/ch31/sec641.html
The law appears to fall under "CHAPTER 31 - EMBEZZZLEMENT AND THEFT"
and says:
"Whoever embezzles, steals...knowing it to have been...stolen, purloined"
I'm not a lawyer, but it looks like you're wrong, or are at least
equivocating pretty extensively in that the text doesn't use "theft" but
uses "stealing" instead.
And of course, the rape of another person isn't called "theft". So we have
equal proof that that's "theft". Both copyright and rape law don't call it
theft.
> Or how about the "No Electronic Theft (NET) Act," Public Law 105-147,
> which amended the criminal provisions of the Copyright Act of 1976.
Ah yes, that doozy. Well, put it right alongside "No Child Left Behind" or
the "Clear Skies Initiative" or the "Free Trade Area of the Americas".
Hint: there are children left behind, the skies get less clear, and it's not
free trade. Congressional bills are often given Orwellian names. It
appears any of these sheisters can name the bills anything they want to push
their agenda and frame it in the terms of their ideology, regardless of any
consideration toward reality.
In this case, unlike the 641 you cited, the terms "theft" or "stealing"
don't appear anywhere in the text of the law.
It does however use the phrase "intellectual property" prominently several
times, which sheds some light on the type of thinking behind the Orwellian
name.
I suspect at some point the vested interests that push the "theft" line like
this will get their way and have the whole issue take full form as explicit
thought-crimes in the law, but so far they haven't quite gotten their way
yet.
> But you are the one who claims that the Supreme Court ruled that
> that an "intangible 'work', one of the other things often implied as
> 'property'" can't be stolen. I just said that you are misrepresenting
> what the case actually said.
Ok, I think you're wrong. What I said accurately represented what was said.
If it was stolen you could tack on theft offenses. They said that doesn't
fly. They might reverse that someday, and I would not be at all surprised
if they do. And when that happens, I'll mourn that decline into Orwellian
fascism. But I don't have to do that yet.
Alexander Terekhov
Rahul Dhesi wrote:
>
> Alexander Terekhov ?tere...@web.de? writes:
>
> >I'm with
>
> >http://www.copyright.gov/reports/studies/dmca/reply/Reply008.pdf
>
> This document seems to entirely ignore shrink-wrap licenses, which when
> enforced seem to be able to make the First Sale doctrine irrelevant,
The document says that
<quote>
Copyright Act should state unambiguously that non-negotiated
license terms are pre-empted to the extent that they conflict
with the Act. Consistent with the model from the Boucher-
Campbell Bill cited above (in Section II of these comments)
and supported by the Libraries and a broad coalition of
interested parties, H.R. 3048, section 301(a) of the title 17,
United States Code should be amended by adding the following
at the end thereof:
When a work is distributed to the public subject to non-
negotiable license terms, such terms shall not be enforceable
under the common law or statutes of any state to the extent
that they:
(1) limit the reproduction, adaptation, distribution,
performance, or display, by means of transmission or otherwise,
of material that is uncopyrightable under section 102(b) or
otherwise; or
(2) abrogate or restrict the limitations on exclusive rights
specified in sections 107 through 114 and sections 117, 118
^^^^^^^^^^^^^^^^^^^^^^^^
and 121 of this title.”
</quote>
> since a typical such license claims
no sale/no ownership
http://tinyurl.com/3c2n2
http://caselaw.lp.findlaw.com/data2/circs/2nd/039303p.pdf
http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-07482.PDF
regards,
alexander.
Josh Dougherty
news:dnd040$gcr$2...@blue.rahul.net...
> hol...@antitrust.cs.utah.edu (Lee Hollaar) writes:
>
> >>Stallman is correct that infringement is not the same as stealing.
> >>http://www.justia.us/us/473/207/case.html
>
> >It shows nothing of the kind.
>
> >All it shows is that, under a the language of a particular federal
> >statute, the conduct of the defendant of making unauthorized copies
> >of Elvis Presley records was not included.
>
> I don't think we need to look to case law to decide whether or not
> "infringement is not the same as stealing".
>
> For one thing, the courts do not decide what English words mean.
Well, they do for the purposes of the law. If they say copyright
infringement is legally "theft" then it is, legally speaking, even if the
idea defies common sense, reason, or common usage of the terms.
> For another, just consider common usage: If infringement and stealing
> were synonyms, they would be used interchangeably, and I don't observe
> that to be the case. Nobody says "my car was infringed", for example,
> instead of "my car was stolen".
Well, it's not stolen until someone uses their own hands and steel and tools
to make another car that looks like yours. Then your car was stolen.
> And nobody says "they stole my
> copyright", for example, instead of "they infringed my copyright".
Actually, someone's probably said that one in a fit of confusion at some
point or another.
> In some limited emotionally charged contexts, people will substitute one
> for the other. This doesn't make them synonymous. Emotionally charged
> language tends to exaggerate.
You've stolen the words right out of my mouth.
Josh Dougherty
> Josh Dougherty wrote:
> [...]
> > I wasn't talking about selling a copyright or a physical copy of the
work.
> > I was talking about the intangible "work" that's sometimes assumed to be
the
> > "property" in "intellectual property".
>
> Apart from exclusive rights granted by copyright, it's right to access
> and use the intangible work (that passes to a recipient in a first sale)
> that's assumed to be property in "intellectual property".
It is often assumed, but it doesn't make any sense.
> It's pretty similar to right to access and use your home.
It may be "similar" in some sense, but it's not very similar. If I've
bought the right to keep and use all of the house forever, and as much as I
want, that's my house. I'm not "accessing and using" someone else's house.
The imaginary property doesn't function anything like actual property. It's
just a bad analogy to call it such.
Josh Dougherty
>
> Josh Dougherty wrote:
> [...]
> > I don't know "comrade Moglen".
>
> You don't know GNUtian Number Two (dotCommunist Number One) and
> Chairman of Legal (GNU Law, I gather) Think Tank
> http://www.softwarefreedom.org/team.html?
>
> http://www.gnu.org/philosophy/enforcing-gpl.html
No. I didn't know him, but thanks for the links.
> Drop him an email.
No bother. Lee (equivocally) answered already. There are no such laws.