Subject: Re: The term "intellectual property" considered useful
From: "Stephen J. Turnbull" <turnbull@sk.tsukuba.ac.jp>
Date: Sat, 06 May 2006 23:06:28 +0900

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

    rms> Please pardon me for that assumption about how you reached
    rms> that incorrect statement.

I forgive you, for your mistaken assumption, for the factive use of
"incorrect", and for giving a verbal attack the form of an apology.

    rms> It remains, nonetheless, incorrect.

Excuse me?  You conceded my point, although you try to obscure that
fact, and to minimize its importance.

      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.

    rms> Yes and no.  Those laws extend enforcement of trade secrecy,
    rms> but trade secrecy remains, at the root, an agreement between
    rms> parties to keep a secret.

But I'm not talking about "trade secrecy", only about the portion that
is protected by specific laws.

That is *not* a mere "extension" of an agreement; it is a creation of
new rights/powers that did not exist before, and the enfranchisement
of a specific owner.  Those powers have as object persons not party to
the contract.  Were a trade secret a mere contract, there would be no
reason to include it in discussion of the term "intellectual
property".  Please note that this kind of extension would only occur
to someone used to thinking in terms of intellectual property (whether
he used that term or not).

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

    rms> If you are going distort what I said, it is not worth
    rms> responding.

I'm not distorting what you said; I didn't claim you said it, only
that it's "yours."

I do apologize for the imputation that you believe it.  That was nasty
of me.

    rms> What I said is that "intellectual property" tends, for
    rms> specific stated reasons, to lead to mistaken generalizations.

And I proceeded to demonstrate that I (for one among many) am
perfectly capable of avoiding those fallacies.  It really doesn't take
strenuous effort.  Merely willingness.

    rms> When a person makes an strenuous effort to study the
    rms> differences, he may well succeed.  The problem is that the
    rms> term suggests to people that there is no need to make that
    rms> effort.

Excuse me?  Does the term "vehicle" suggest that there is "no need" to
make an effort to distinguish between a clown's unicycle and a Sherman
tank?  Of course not.  So, what's the difference?

The problems are (a) that there is a genuine intuition held by many
honest people that there *should* be property in intellectual assets,
(b) that the intangibility creates a commonality, and (c) there is a
group of powerful people with an interest in maintaining and extending
property in intellectual assets.  In the case of (c), there is an
important subset (capitalists) who do not care about the differences
so long as owning IP is profitable (enough so that they can hire
lawyers to worry about the differences for them).

For all these reasons, many people have a psychological or financial
vested interest in resisting our analysis of the effects of
intellectual property in software.  None of these problems will go
away simply because *we* refuse to use the phrase "intellectual
property".  And it doesn't help to divide our analyses according to
kind of IP; the sources of the resistance are similar.

	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.

I continue to maintain this.  Viz:

    rms> What these laws have in common is mainly a matter of form
    rms> (and not even that applies to them all), not substance.

I do not believe my eyes.  Richard Stallman denying that restriction
of software freedom is an important matter of substance?

Of course that's not what you meant.  But nonetheless, that's what is
implied by what you wrote and the context, and it was a bad mistake,
one that would cost you many words over several posts to fully
recover, I suspect.  Crucially important to my argument, though, it is
one that I doubt you would have made if you were trying to help people
to use the term "intellectual property" correctly, rather than trying
to deny it any use in the context of the battle for software freedom.

    rms> We don't want to tell the VC that "intellectual property" is
    rms> a problem, or offer them a substitute for "intellectual
    rms> property"--that would be an overgeneralization.  Copyrights,
    rms> patents, trademarks and trade secrets raise totally different
    rms> issues for us with them.  The VC may be accustomed to lumping
    rms> them together, but when we raise our issues with them, we
    rms> need to separate them.

Nonetheless, they have the common characteristic that they threaten
software freedom.  For that alone we should give them a common name.

And even if we don't, the VCs will, because they share the common
characteristic of securing a revenue stream---as a direct consequence
of their threat to software freedom.

-- 
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