Subject: inventor's rights a social construct? (was Re: Open letter to those who believe in a right to free software)
From: "Bradley M. Kuhn" <bkuhn@ebb.org>
Date: Thu, 21 Oct 1999 23:44:11 -0400

Stephen J. Turnbull wrote:

> If you don't do a much better job of explaining why "users' rights" are
> valid and "inventors' rights" are not [...]

[...]
 
> But I really want to know where those "users' rights" come from, if
> they're not written by the vendor into the license contract.  I'd like
> to believe in them, but I don't.

[...]

> Will you help me? 

I'll give it a try, and I hope that I can be of help.

I think the reason that you are not understanding these points has to do
with the fact, as RMS mentioned, that you have a different set of premises
than those on the other side.

When you frame the issue in terms of "inventor's rights", I think you are
adding an implied premise: "Individuals can own ideas."

In my analysis, the only way an individual can truly own an idea is if she
has yet to share it with anyone.  Then, the idea is confined to her brain
only, which is part of her physical person, and I think most would agree
that a person has ownership of the person's own physical presence.

However, once that idea is made known to another person, how does the
inventor now own that idea, or have any rights to it?  I realize there is a
long legal history in the USA (and most parts of the world) that dictates
that if certain things were done (patents, copyright), that idea can be
owned.  Fundamentally, though, I see no compelling reason to say that the
inventor owns the idea outright once it is known to others.

I do, however, see reasons that the inventor does not own the idea.  The
recipient of the inventor's idea now has, in nature, all the rights and
privileges that the inventor had.  If the idea is a formula for hair gel,
now both can make hair gel and have great looking hair.  If the idea was a
code to a software program, both can use that program and gain full benefits
from it.

Under current copyright and patent systems, we have chosen to *construct*
inventor's rights.  These were originally intended to make information flow
more freely---to encourage inventors to make that initial step to let the
ideas leave their brains.

Thus, inventor's rights themselves are really only a construction of the
current status quo.  There is no reason to accept that status quo without
evidence that shows it is still valid and germane to modern society.  

I realize that you are dealing with a community (economists) that you have
described as accepting the status quo without question.  There is not much
that can be done about that, I suppose.  However, I think for us to have the
discussion here on this list (if it is an appropriate forum for it) on what
reasons there might be for inventor's rights in today's society, it might be
useful to your quest.  Do you think so?


In summary, I am saying that to address the idea of "users' rights", we have
to be sure that "inventor's rights" is even a valid concept to be
considered.  Indeed, it seems to me that there is really no such thing as
"inventor's rights" (saving the right for the inventor not to have her mind
read to extract ideas), and that what we call "inventor's rights" today are
a social construct that is outdated.
-- 
         -  bkuhn@ebb.org  -  Bradley M. Kuhn  -  bkuhn@gnu.org  -
                          http://www.ebb.org/bkuhn