Subject: Re: The term "intellectual property" considered useful
From: "Stephen J. Turnbull" <turnbull@sk.tsukuba.ac.jp>
Date: Thu, 04 May 2006 22:16:51 +0900

>>>>> "rms" == Richard Stallman <rms@gnu.org> writes:

    rms> Look at this one:

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

    rms> It doesn't make sense, because trade secrecy is not a legal
    rms> monopoly like a copyright or a patent.  It is simply an
    rms> agreement to keep a secret.  In other words, the term
    rms> "intellectual property" led to a mistaken generalization.

I'm sorry, but you are in no position to speak for me in that way.

The process that took place in my mind was nothing like that.  I
considered each of those statements individually, knowing that you
would try to make an example of any mistake.

I did most definitely *not* specialize from IP to trade secrecy.  As I
understood it at the time I wrote that, a trade secret is *not* an
"agreement".  Tom Lord pointed out that the law provides for remedies
for revealing trade secrets that apply to entities which are not party
to any relevant agreement, whether an NDA or an employment contract.
This surely does partake of the character of a franchised monopoly.  I
don't have *any* authority for it, but I believe trade secrets,
including that franchise, are transferable and licensable, like other
property.  The fact that there exists such a law at all is strong
support for my claim; if a trade secret were a mere agreement, it
would simply be a matter for contract law.

If I made a mistake, it was in relying on Tom's partial quote and
interpretation of the *specific* law, and my own vague knowledge about
transferability etc of trade secrets.

I think the only mistaken generalization here is your generalization
that generalizations are always mistaken.

    rms> I've observed that the term "intellectual property"
    rms> repeatedly leads even experts into mistaken generalizations,
    rms> by making generalization across all these laws seem like "the
    rms> thing to do".

Life is risky.  Too bad for your "experts" who make mistaken
generalizations (and especially for their clients).  My presumption is
that they weren't so expert in the first place.

Do you have any anecdotes involving Richard Posner, Larry Rosen, Larry
Lessig, Eben Moglen, or yourself you'd like to present?  If there are
traps of generalization any of those experts (or experts of similar
stature) have fallen into, I'll be quite likely to concede your point.

Can you document ordinary people making an honest effort to understand
the differences among the laws, and nonetheless falling into false
generalizations?  Again I'd concede your point.

I suspect, however, that most of your examples are of the class where
the attorney for the plaintiff thought his client could gain by
applying the generalization, and he didn't do his homework.  Such
"experts" are prone to all kinds of fallacies, not just mistaken
generalization.  (On expert's fallacies, an excellent discussion is
that of Franklin Fisher et al, "Folded, Spindled, and Mutilated: U.S.
v. IBM," where they subject the government's case to the kind of
treatment that frogs get in high school biology labs.  Not a book for
those squeamish about the blood of "experts.")

    rms> The easiest way to resist this trap, and remember that these
    rms> laws are not really so similar, is to stop using a general
    rms> term to refer to them.

That's also the easiest way to miss generalizations that are correct.
On FSB, it's really crucial to remember *why* VCs and the like are so
hot on IP, because we may want to offer them something in compensation
(so that they don't go running after businesses who do offer them IP).
Some of those reasons are not specific to any particular form of IP.

Some of those reasons are general, but apply with different force
depending on the form of IP.  What else is new?  The need to have
knowledge of such details is why we call it a domain of expertise.

The *right* way to resist the trap is to learn what the terms mean,
and to avoid applications of generalizations to subdomains where they
don't work.  This will be nearly automatic if one learns enough about
the different laws to understand which generalizations apply, and
which don't.  If you don't learn that much about each and every
specific domain, on the other hand, you will not be able to articulate
any generalizations at all---unless you use a general term.


-- 
Graduate School of Systems and Information Engineering   University of Tsukuba
http://turnbull.sk.tsukuba.ac.jp/        Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
        Economics of Information Communication and Computation Systems
          Experimental Economics, Microeconomic Theory, Game Theory