Subject: Re: The term "intellectual property" considered useful
From: "Ben Tilly" <>
Date: Sat, 6 May 2006 12:00:42 -0700

 Sat, 6 May 2006 12:00:42 -0700
On 5/6/06, Stephen J. Turnbull <> wrote:
> >>>>> "Ben" == Ben Tilly <> writes:
>     Ben> I suppose that I should also never simplify any technical
>     Ben> topic for my audience?  And while I'm at it, I should always
>     Ben> request an education rather than a simplified answer from
>     Ben> people whose expertise I do not share?
> Of course you should, and while you're at it, of course you should
> not.  But it's as simple as this:
>     "Intellectual property" is a term used to denote certain "rights"
>     such as patent and copyright.  Although it is arguable that
>     creators have certain natural rights in their creations, that is
>     not how the law sees it.  The Constitutional foundation in the
>     U.S. is an explicit trade of public benefit from wide diffusion of
>     innovations, for a limited monopoly protected by the government.
>     Like all monopolies, these have detrimental effects on the
>     economy.  There are strong arguments that in important cases the
>     detrimental effects outweigh the value of the "protected"
>     innovation.  To understand the costs and benefits of these
>     monopolies, we must realize that there are several kinds of
>     intellectual property, and consider the details of each.
> We have a definition with examples.  We have natural rights,
> franchised monopolies, detrimental effects of monopoly, (social) costs
> and benefits.  We have an explicit statement of the limits to the
> generalization.  All of this is familiar to the general public, at
> least at the level where they've gone beyond "less filling"
> vs. "tastes great" and are now concerned with "free beer" vs. "free
> speech".

I'm sorry, but you've just demonstrated RMS's point in spades.  In
trying to find a specific facts that are true across areas of
intellectual property, you've demonstrated how little they have to do
with each other.

Patents and copyright derive from the Constitution in the way that you
describe.  But trademarks and trade secrets do not.  If they did, then
they'd have to have limited terms, which they don't.  I'd guess that
the authority for them derives from the Commerce Clause.

>     Ben> My position here is not one of arrogance.  I am merely
>     Ben> suggesting that we should act as I would have others act were
>     Ben> the tables turned.
> But that *is* arrogant.  What makes you think "how *you* would have
> them act" is what *they* want from you?

In the absence of specific information otherwise, what better standard
do I have to judge from?  Furthermore I've run across very few people
for whom that standard doesn't work.  For instance how many of us are
really prepared to hear an explanation from a doctor which uses full
medical terminology?  I'll be the first to admit that I'm not: I live
with a doctor, I know how quickly she loses me when she tries!

> Specifically, every sentence of my statement above begs a host of
> questions.  Which ones my audience cares about is something I have
> rarely been able to guess successfully.  Let *them* ask!  I think it's
> extremely presumptious to say "I know you're not interested in
> anything general, so let's go directly to the definitions of 'patent'
> and 'copyright'."

That's different.  There I'm saying, "I believe that trying to draw
generalizations here just leads to confusion, so let's try to avoid
that pitfall."  Sure, some will want generalizations first.  I'll deal
with that if it arises.

>     >> You should know that the technicians will not give up their
>     >> technical terms, nor will they bother to use a different set of
>     >> terms merely because the general public might be listening in.
>     >> Thus, on your strategy, the misunderstanding persists
>     >> indefinitely.
>     Ben> Actually I've found that technical people often will use a
>     Ben> different set of terms when they wish to communicate with the
>     Ben> general public. Often they won't as well - but it is only the
>     Ben> former group that succeeds in communicating.
> What did I say that is different?

You claimed that technical people don't change their language because
the general public might be listening in.  I said that many
counter-examples exist to that claim, and the counter-examples tend to
be better at communicating.

> In fact, the former group *also* suffers from substantial
> *miscommunication*, as I pointed out: the members of the general
> public *think* they understand, but then get confused when the
> discussion starts to get technical.

The members of the general public understand what they understand. 
Trying to be non-technical will communicate more effectively, but you
can only communicate so much.  The technical language exists for a
reason, and eventually you have to learn it.

However it seems to me to be the height of arrogance to walk around
saying, "What I know is so important that everyone should learn my
specialized language for it so they can really understand it."  Sorry,
but no.  They aren't going to do that.  And you're not that important
to them.

> Such communication is inherently hard.  You would prefer to get heads
> nodding, I guess.  I prefer to get them thinking, even if at the end
> of the day we agree to disagree.

You guess wrong.  I'd prefer to judge how technical the discussion is
going to be.  If it is going to be very technical then I explain the
necessary background to explain it right.  If it isn't, then I find
ways to say it in a non-technical way.  If I misjudge, then I back off
and try again the other way.

It is surprising how often I *don't* need to be technical.  I've also
noticed that my co-workers have come to value my ability to explain
things in language that they understand.

>     Ben> Hacker is a specific term used within a technical community
>     Ben> with a precise meaning.  I agree that it is not describing
>     Ben> something very technical, but its usage pattern exactly
>     Ben> matches what you expect for technical terms.
> I agree it's nowhere near as abused as the word "fuck", but really,
> now.  There are a number of meanings specific to this technical
> community, and they must be disentangled by contextual analysis.
> A real technical term *establishes* its own context, merely by being
> used.

Really?  Let's try some examples.  Energy, power, derivative, code,
binary, analysis, charge, momentum, click, window, frame, tag,
variable, property, and set are all technical terms in the right
contexts.  None of them establishes its own context by being used.

Many more technical terms, such as entropy, do not establish their own
context because they are terms with very different meanings in
different technical areas.

>     Ben> As an economist, you see things through economic glasses. :-P
> Sure thing!  Just like paranoids, economists are often correct.

Um...economists are not generally known for being right...

>     Ben> To the average Jane it is a non-issue.  Until the RIAA sues
>     Ben> her...
> That is *still* an economic issue, a matter of personal costs and
> benefits.  Unless you're claiming that Average Jane deliberately
> provoked the RIAA so that on Tuesdays and Saturdays she can say to me,
> "Stephen John, what are *you* doing out *there*?"  But you don't
> believe that, do you?

Sure, you can frame the issue in economic terms.  But the point
remains.  The average person simply doesn't care.  Period.

And as long as they don't care, they're not going to be interested in
learning much about it.

>     >> And "stealing" intellectual property is like "stealing" a kiss,
>     >> not like stealing a horse.  Everybody I've talked to about it
>     >> understands that.
>     Ben> The RIAA and press releases from various politicians would
>     Ben> have you believe that it is more like stealing a horse than
>     Ben> stealing a kiss. They go further and tell you how much money
>     Ben> they think has been stolen from them.  (Their estimates are
>     Ben> massively overstated, but that's to be expected.)
> What does bad propaganda have to do with anything, except our
> commitment to fight it?

When you talk to people who don't much understand or care about the
issue, the person who can frame it most simply is likely to be the
person who will convince.  Which means that if you try to counteract
simple RIAA propaganda with complex explanations, they'll win. 

The term "intellectual property" makes the RIAA's job easy.

> Do you think you can fight it by telling Jane "that isn't property,
> so it's not 'stealing'," when she knows very well that she had lusted
> in her heart, and she and Dick, and even Spot, know very well that it
> *was* stealing?  Even if they're wrong about all that?

I don't have a good slogan, sorry.  I merely said that I wished that
everyone called it a "limited monopoly" because then our life would be
easier.  I think that "intellectual property" is a misleading and
confusing terms, and it misleads in ways which are very helpful to the

While I'll avoid bringing the term "intellectual property" up, I'm no
more going to fight its existence than I do the misuse of the word

> You know how successful the "free as in free speech" campaign has
> been.  Now there's *good* propaganda.  Do you think Jane will forget
> what the real issues are once it's been explained that copyright
> infringement is "stealing as in stealing a kiss"?  Can't you just see
> 50 hecklers blowing kisses at Bill Gates as he speaks to the SPA?
> etc?  Worth a try, hm?

"They call a theft of billions, 'stealing a kiss'!?"

That'll convince everyone but the 50 hecklers, who don't count anyways.

>     Ben> You sometimes have the right to make copies, despite there
>     Ben> being a copyright.  But the law doesn't spell out exactly
>     Ben> when.  Doesn't this seem odd to you?  Certainly I was taken
>     Ben> aback when I first encountered this idea.
> To be honest, that's never bothered me.  Exceptions governed by the
> "rule of reason" was something I was taught early.  OK, I'm not going
> to concede but I won't comment further until I've gathered a lot of
> data about other people.

I was taught about that on a personal level, but I grew up thinking
that "the law's the law".  Then I found out that it isn't always. 
That took some getting used to.

>     Ben> My point is that there is an endless supply of uneducated
>     Ben> educable people.  You're not going to make a dent in that
>     Ben> population, though you're welcome to try.
> There are so many responses I'd like to make, but here's the most
> relevant one.  Let me quote Prof. Bernardo de la Paz: "Revolution is
> not an end I expect to achieve; it is an art I pursue."
> Don't forget: he won.

Don't forget: he only existed in fiction.