Subject: RE: The term "intellectual property" considered useful
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Sat, 6 May 2006 22:31:35 -0700

Richard, I started to "reply to all" but thought better of it. It will be
better to send this directly to you. If you'd rather bring it back to the
list, I have no objection. /Larry

Richard Stallman wrote:
> The best way to oppose that campaign of confusion is to attack it
> at the root--to say, what is true, that these various laws are much
> more different than similar, and that the use of a term to generalize
> about them is asking for trouble.

I prefer to solve that problem a different way:

A few of us have spent the past several years devising new open source
licenses that address all the relevant intellectual property issues in one
place. We focus on the goal, which is to encourage the development and
distribution of free and open source software, rather than worry about other
people's over-generalizations about legal topics they almost certainly don't
completely understand anyway. 

Our licenses (and the lawyers who write them) often use the generalized term
"intellectual property" when licensing and promoting free and open source
software. We mean to say that "all the intellectual property you need to
practice that licensed software and to create and distribute derivative
works--including all the necessary rights among the confusing plethora of
intellectual property rights in copyright, patent, trademark and trade
secret law--are given to our licensees. All of it!"

Well, never *all* of it! Some rights are always reserved. And so precision
matters in those licenses.

We try to be precise in the text of our licenses when we identify what
intellectual property we are giving away and what intellectual property
rights we are reserving. We try to be precise about what we mean when we use
words from copyright and patent and trademark law; precise about the grants
of license and exclusions there from; precise about the contractual promises
made and the conditions subsequent; precise about the remedies for breach.
We try to be precise about our expectations for attribution in a world where
moral rights under copyright law are all over the map. We try to be precise
in our defensive measures. We try to be precise about which law applies in a
world where there may be a State of Unfreedonia somewhere. And most of all,
we try to be precise about what we mean by "derivative works" where courts
worldwide are dazed and confused about it.

The best way to address the campaign of confusion that arises whenever
anyone propagandizes about free, open source, or proprietary software is to
write clearer licenses that use terms of art correctly. Arguing about the
term "intellectual property" actually adds to everyone's confusion at a time
when they're looking to us for licenses that say precisely what we mean
about which intellectual property is given and which intellectual property
rights are withheld.

And so, respectfully, I request that you spend your time considering how to
make GPLv3 into a clear and precise license that addresses *all* the
relevant aspects of intellectual property law, rather than waste time
transforming a term of art used by the legal profession worldwide, including
many of us who remain supporters of free and open source software.

/Larry


> -----Original Message-----
> From: Richard Stallman [mailto:rms@gnu.org]
> Sent: Saturday, May 06, 2006 4:37 PM
> To: Stephen J. Turnbull
> Cc: fsb@crynwr.com
> Subject: Re: The term "intellectual property" considered useful
> 
>     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.
> 
> I am not sure you 100% avoided them, that time.  But there's no need
> to argue about that.  Once you start paying attention and consistently
> making an effort to catch the overgeneralizations, you will succeed
> most of the time.  (But not 100% of the time, because you're human.)
> 
> It remains true that the term "intellectual property" leads millions
> people to presuppose that they can make broad generalizations about
> these disparate laws.  (An outcome which many of those that promote
> the term find desirable.)  And most of them have no idea that this
> leads them into fallacies.  That is what makes it effective
> propaganda.
> 
> The best way to oppose that campaign of confusion is to attack it
> at the root--to say, what is true, that these various laws are much
> more different than similar, and that the use of a term to generalize
> about them is asking for trouble.
> 
> 	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?
> 
> There are several relevant differences:
> 
> * A unicycle and a Sherman tank have more in common than copyright law
> and patent law (to pick two that are not the most dissimilar).
> 
> * Most people understand unicycles and tanks much better than they
> understand copyright law and patent law.
> 
> * Most people learn about unicycles and about tanks first, and
> "vehicle" only later; thus, the generalization "vehicle" doesn't get a
> chance to shape their first impressions of unicycles and of tanks.
> 
> * There is no social pattern of formulating statements about
> unicycles, or about Sherman tanks, so as to equate one or the other to
> "vehicles" in general.  This is because people generally understand
> that a statement about unicycles describes only _one kind_ of
> vehicles.
> 
>     The problems are (a) that there is a genuine intuition held by many
>     honest people that there *should* be property in intellectual assets,
> 
> The term "intellectual property" grants that intuition a validity
> which I (following the US Constitution) do not wish to grant it.
> 
>     (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.
> 
> And they promote the term "intellectual property" because it tends to
> lead people to see things their way.
> 
>     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".
> 
> I agree completely.  And even when we explain to other people why the
> term "intellectual property" is biased and confusing, the won't make
> these roots of the problem go away.  But it will help thwart the means
> of propagandizing the public to support their side, and that is very
> useful.
> 
> 	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?
> 
> That is twisting my words.
> 
> However, since you raise the question of how these laws affect
> software freedom, let's consider how various "intellectual property"
> laws affect that:
> 
> * Copyright law: developer of a program restrict its copying.
> 
> * Trade secrecy: developer of a program keeps source code out of
> users' hands.
> 
> * Patent law: anyone at all potentially restricts development
> of programs and their use by authorized users.
> 
> * Trademark law: usually no effect.
> 
> The substance of what they do is not common to them.
> 
> This dissimilarity is the reason we are campaigning against software
> patents and not against software copyright.  It is also the reason why
> so many developers of non-free software and custom software join in
> the campaign against software patents.  Thus, a crucial part of this
> campaign is to counter the widespread assumption that software patents
> have effects similar to software copyright--an impression that the
> term "intellectual property" encourages.