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isthisthingon
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« on: November 07, 2009, 08:43:48 PM »

Perks - The following is from Richard Stallman.  I'm sure we disagree on many things but honestly I haven't found anything worth mentioning yet.  It seems like he's a far better communicator than I am but holds an extremely similar set of values.  If you would be so kind as to read this text, in its entirety, I hope that you will have a better understanding of where I'm coming from, since this one in particular is precisely how I feel and it relates to the concept of "intellectual property."

Thanks in advance for reading it!!

http://www.gnu.org/philosophy/not-ipr.html


Quote
Did You Say “Intellectual Property”? It's a Seductive Mirage
by Richard M. Stallman

It has become fashionable to toss copyright, patents, and trademarks—three separate and different entities involving three separate and different sets of laws—into one pot and call it “intellectual property”. The distorting and confusing term did not arise by accident. Companies that gain from the confusion promoted it. The clearest way out of the confusion is to reject the term entirely.

According to Professor Mark Lemley, now of the Stanford Law School, the widespread use of the term “intellectual property” is a fashion that followed the 1967 founding of the World “Intellectual Property” Organization (WIPO), and only became really common in recent years. (WIPO is formally a UN organization, but in fact represents the interests of the holders of copyrights, patents, and trademarks.)

The term carries 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, the bias introduced by the term “intellectual property” suits them.

The bias is reason enough to reject the term, and people have often asked me to propose some other name for the overall category—or have proposed their own alternatives (often humorous). Suggestions include IMPs, for Imposed Monopoly Privileges, and GOLEMs, for Government-Originated Legally Enforced Monopolies. Some speak of “exclusive rights regimes”, but referring to restrictions as “rights” is doublethink too.

Some of these alternative names would be an improvement, but it is a mistake to replace “intellectual property” with any other term. A different name will not address the term's deeper problem: overgeneralization. There is no such unified thing as “intellectual property”—it is a mirage. The only reason people think it makes sense as a coherent category is that widespread use of the term has misled them.

The term “intellectual property” is at best a catch-all to lump together disparate laws. Nonlawyers who hear one term applied to these various laws tend to assume they are based on a common principle and function similarly.

Nothing could be further from the case. These laws originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues.

Copyright law was designed to promote authorship and art, and covers the details of expression of a work. Patent law was intended to promote the publication of useful ideas, at the price of giving the one who publishes an idea a temporary monopoly over it—a price that may be worth paying in some fields and not in others.

Trademark law, by contrast, was not intended to promote any particular way of acting, but simply to enable buyers to know what they are buying. Legislators under the influence of the term “intellectual property”, however, have turned it into a scheme that provides incentives for advertising.

Since these laws developed independently, they are different in every detail, as well as in their basic purposes and methods. Thus, if you learn some fact about copyright law, you'd be wise to assume that patent law is different. You'll rarely go wrong!

People often say “intellectual property” when they really mean some larger or smaller category. For instance, rich countries often impose unjust laws on poor countries to squeeze money out of them. Some of these laws are “intellectual property” laws, and others are not; nonetheless, critics of the practice often grab for that label because it has become familiar to them. By using it, they misrepresent the nature of the issue. It would be better to use an accurate term, such as “legislative colonization”, that gets to the heart of the matter.

Laymen are not alone in being confused by this term. Even law professors who teach these laws are lured and distracted by the seductiveness of the term “intellectual property”, and make general statements that conflict with facts they know. For example, one professor wrote in 2006:

    Unlike their descendants who now work the floor at WIPO, the framers of the US constitution had a principled, pro-competitive attitude to intellectual property. They knew rights might be necessary, but…they tied congress's hands, restricting its power in multiple ways.

That statement refers to Article 1, Section 8, Clause 8 of the US Constitution, which authorizes copyright law and patent law. That clause, though, has nothing to do with trademark law. The term “intellectual property” led that professor to make false generalization.

The term “intellectual property” also leads to simplistic thinking. It leads people to focus on the meager commonality in form that these disparate laws have—that they create artificial privileges for certain parties—and to disregard the details which form their substance: the specific restrictions each law places on the public, and the consequences that result. This simplistic focus on the form encourages an “economistic” approach to all these issues.

Economics operates here, as it often does, as a vehicle for unexamined assumptions. These include assumptions about values, such as that amount of production matters while freedom and way of life do not, and factual assumptions which are mostly false, such as that copyrights on music supports musicians, or that patents on drugs support life-saving research.

Another problem is that, at the broad scale implicit in the term “intellectual property”, the specific issues raised by the various laws become nearly invisible. These issues arise from the specifics of each law—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; patent law has nothing to do with this. Patent law raises issues such as 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 such matters.

Neither of these issues is solely economic in nature, and their noneconomic aspects are very different; using the shallow economic overgeneralization as the basis for considering them means ignoring the differences. Putting the two laws in the “intellectual property” pot obstructs clear thinking about each one.

Thus, any opinions about “the issue of intellectual property” and any generalizations about this supposed category are almost surely foolish. If you think all those laws are one issue, you will tend to choose your opinions from a selection of sweeping overgeneralizations, none of which is any good.

If you want to think clearly about the issues raised by patents, or copyrights, or trademarks, the first step is to forget the idea of lumping them together, and treat them as separate topics. The second step is to reject the narrow perspectives and simplistic picture the term “intellectual property” suggests. Consider each of these issues separately, in its fullness, and you have a chance of considering them well.

And when it comes to reforming WIPO, among other things let's call for changing its name.
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perkiset
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« Reply #1 on: November 08, 2009, 12:56:47 PM »

An interesting read, and a nice clarification of the generalized notion of IP.

However, he does not address the notion of copyright, patent and trademark themselves, only the notion that they are utterly different. And I appreciate that clarification. But I don't see how what he is saying dispels any of the compelling thrust of copyright, or patent or trademark, in and of themselves.

I understand how, collectively and by obfuscation, these methods can be used to intimidate, profit or even extort. But I don't think he is asserting that each of those three need to be tossed, only that the collective notion must be clarified. Am I missing you here?
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isthisthingon
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« Reply #2 on: November 08, 2009, 01:29:56 PM »

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I understand how, collectively and by obfuscation, these methods can be used to intimidate, profit or even extort. But I don't think he is asserting that each of those three need to be tossed, only that the collective notion must be clarified. Am I missing you here?

Nope that's about it for me.  I'm not sure how he feels on deeper levels in each category, in fact we may disagree about those details.  But it's pretty safe to say that our assumptions about IP are largely based on over generalizations and that "reasonable remedies" for various forms of "infringement" are difficult at best to be certain about.  Since it's rather impossible to determine if there was an infringement of a copyright in so many gray areas, then assertions about the fairness of remedies are also unfounded IMO.

Software straddles both copyright and patent protections in concept but is solely protected by copyright.  Copyright was never intended to protect anything that had function.  As soon as something has function, like a bridge, a watch, or a computer, it's no longer appropriate in any way to attempt to protect the creators with a copyright - which expires a whopping 50 years after the "creator" dies.  This is a really important part of the issue.  As you've pointed out, corps are treated like people. 

Squeezing yourself into copyright protection when you have function, the function of which is the true component trying to be protected, is like getting a patent on a new medicine you "invented" that provides you a monopoly on this life saving drug for the rest of "your" life.  That "your" would be Wall Mart, for example.  IMO copyrights for software should exist only as a temporary monopoly, if at all.  Copyleft should be used in 99% of all cases 
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« Reply #3 on: November 08, 2009, 01:59:37 PM »

Software straddles both copyright and patent protections in concept but is solely protected by copyright.  Copyright was never intended to protect anything that had function.
This is precisely the issue. And I'm not asserting that it should, only that at the moment it is. This is why software (writ large) needs to be readdressed and assessed for what exactly SHOULD be considered "IP" (put here for effect) and how the originators/inventors/authors (confusing as hell) are either protected, or not, in the future.
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« Reply #4 on: November 08, 2009, 03:14:15 PM »

Quote
This is precisely the issue. And I'm not asserting that it should, only that at the moment it is. This is why software (writ large) needs to be readdressed and assessed for what exactly SHOULD be considered "IP" (put here for effect) and how the originators/inventors/authors (confusing as hell) are either protected, or not, in the future.

I'm with you on that one.  Not only is software not art, it's an insult to art to hijack a privilege usually bestowed upon the creator of something entirely unique - art.  Quoting authors aside, when was the last time you read a book that was a gigantic hive of hierarchical copyrights all fighting for their "fair" share of the sales revenue?  What if the book's story was constantly changing and the order of the words had very little to do with the outcome of the story? 

These issues are enough to make me agree with rejecting the term intellectual property all together in favor of individual and relevant terms for specific industries, like ours Smiley

So again, I'm with ya on that one.
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« Reply #5 on: November 08, 2009, 03:57:54 PM »

Another related thought regarding DRM.  It just really sunk in about the truth of the battle, or at least more true than I saw it before.  The Internet is the most disruptive technology in our lifetimes.  It does something that literally renders an entire industry unnecessary.  The primary reason for the existence of record companies was promotion, production and distribution of hard copy media containing the actual art people wanted to buy.

In a flash, these became useless or as close to useless as you can get for what they actually "provide" anyone.  So DRM is nothing more that an outmoded industry using the threat bankruptcy and prison time to maintain a clearly unneeded system of art distribution.  DRM is nothing but harmful to the creators of music, the artists, since it continues favoring the pimps of art - who aren't even doing anything anymore!  I mean ok I understand, you produced and shipped millions of records while promoting me... well there's the value. 

But you just sat back and collected as if you still did those things for me?  The death of DRM will be a great day in the lives of artists IMO.  Regardless of when it comes, who in the world actually thinks it isn't?
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« Reply #6 on: November 12, 2009, 09:15:07 AM »

Economics operates here, as it often does, as a vehicle for unexamined assumptions. These include assumptions about values, such as that amount of production matters while freedom and way of life do not, and factual assumptions which are mostly false, such as that copyrights on music supports musicians, or that patents on drugs support life-saving research.
Pretty much sums it up  ROFLMAO

Using legislation to protect a crappy technology so you can profit from it. Nothing new in that Smiley
If various interests who profit from DRM can maintain the current legislation for 10 years, how much will they profit from it Smiley
Inevitably they will lose, but they will still end up winners $$$ wise.

It is a nice article by stallman, and he does not really need to differentiate between the different types of IP, just that there is a difference.
In a sense "crack pots" like stallman serve a function Smiley. They make people aware that there is a problem. Sometimes that is all that is needed Smiley
The system will correct itself Smiley.

Kind of off topic. But just finished reading the autobio by Sam Wyly.
This guy is a hard core republican. Also quite a bit of his $$$ where made from the oil industry. And he is from dallas to boot.
I was a little shocked when he ends his book with companies have to start being energy efficient, that the gov't should have a "carbon tax". Which would force companies to look for alternative energy sources.

Even MS is seeing the economic advantages of some types of open source.
The best way of enforcing "laws" is when people enforce them themselves.
Also the consumer might not know all of the intricacies of IP etc. But it does not take a rocket scientist to figure out that something is wrong with the system when a CD in the store costs $X and meanwhile you can DL the same thing off rapidshare or a torrent for free.
You can play the "prison card" so many times and then it fails.

In Canada for example it is not so much the pot is legal, but that the cops for the most part have decided that prosecuting people for have 1-2 joints is a waste of time.
So even when i was a kid, if u got nailed for illegal pot / booze most of the time (unless u mouthed the cop off) he would just destroy it in front of you and let you go.

Internet and telephones probably have been the most disruptive technology ever.
In the past you had the 100 years war between britain and france, the soldiers and the people had not problem fighting it.
Probably because there was almost zero communications Smiley

Vietnam changed all that. Pretty hard to hide what is going on when u call ur friends on the phone and find out guys are getting killed. Soldiers are coming back and saying this war is stupid.
Even in the soviet union, Afganistan was basically thier vietnam. The people and the soldiers decided to stop supporting the war in a relatively short period of time.
Again u can censor the news media, but pretty hard to hide the fact that guys are dying over there, and the soldiers think that the war is unwinnable.
Open source or at least open standards are economically the best way to go Smiley.

DRM either can change, or they can go the way of the buggy whip company Smiley
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isthisthingon
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« Reply #7 on: November 12, 2009, 12:22:02 PM »

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DRM either can change, or they can go the way of the buggy whip company

Nice one  Grin
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isthisthingon
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« Reply #8 on: February 11, 2010, 09:15:21 AM »

  to the Cache wiki  Roll Eyes
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