Subject: Re: The term "intellectual property" considered useful
From: Don Marti <dmarti@zgp.org>
Date: Mon, 1 May 2006 10:10:24 -0700

begin Stephen J. Turnbull quotation of Mon, May 01, 2006 at 04:26:42PM +0900:

> I hope that everyone will continue to use "intellectual property"
> sparingly (since it upsets some free software advocates whose input I
> value), but not avoid it when it is appropriate.  Avoiding it when it
> is the accurate and precise term creates confusion.

The term does appear in Black's Law Dictionary.

The problem I've seen with this term is that many
people on the other side assume that authors and
inventors have natural "intellectual property rights",
and that the job of the lawyers is to write laws to
protect this pre-existing property.  It's hard to
use the word "property" without confusing real-world
property to which you have a natural right with
information on which you have a limited monopoly
granted by Congress as part of a government R&D
incentive program.

In fact, in the USA "intellectual property rights"
are more like the "right of way" than they are like
property rights.  (In the US Constitution, the clause
that creates copyright and patent appears in Article
1, Section 8, the section that covers miscellaneous
things that Congress is allowed, but not required,
to do.  Congress is also _allowed_ to issue letters
of marque and reprisal in that section, but you don't
have a right to a letter of marque and reprisal,
or to a copyright, or to a patent.)

For a lawyer to say "Congress needs to change the
law to protect my client's intellectual property"
is like saying "The City Council needs to repaint the
street in order to protect my client's right of way."

The language of "rights" and "property" is out of
place in a discussion of an Article 1, Section 8
Federal economic development program.

-- 
Don Marti                    
http://zgp.org/~dmarti/  FreedomHEC: May 26-27, 2006, Seattle
dmarti@zgp.org           LinuxWorld: August 14-17, 2006, San Francisco