Subject: RE: The term "intellectual property" considered useful
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Mon, 1 May 2006 19:17:48 -0700

The term "intellectual property" is not the problem. There clearly exists,
after all, property that is the result of intellectual activities. A
collective name for that type of property is useful in general discussions
and even in legal documents.

My problem is with the term "intellectual property rights" because that
conflates many concepts that are more the in the form of legal monopolies
than "rights" as we find in the first few amendments to the US Constitution.


These intellectual property monopolies authorized by the Constitution are
structured balancing acts between public benefit and private gain. The
*right to exclude* in a patent monopoly is supposedly balanced by public
disclosure of the invention. The *exclusive right to copy* in a copyright
monopoly is presumably balanced by the encouragement of artistry. There are
then important exceptions and limitations to these "rights," such as fair
use to protect intellectual openness and patent exceptions to protect the
public health and welfare. "Intellectual property rights" leaves out
intellectual property wrongs, which also exist in the law.

That's why I now try to avoid the term "intellectual property rights." 

But the term "intellectual property" is itself useful, for it reminds us
that products of the intellect are owned for limited terms as property by
their creators in exchange for public benefit. Including free software....

/Larry Rosen

> -----Original Message-----
> From: Don Marti [mailto:dmarti@zgp.org]
> Sent: Monday, May 01, 2006 10:10 AM
> To: Stephen J. Turnbull
> Cc: rms@gnu.org; fsb@crynwr.com
> Subject: Re: The term "intellectual property" considered useful
> 
> 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