Subject: RE: The term "intellectual property" considered useful
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Sat, 6 May 2006 22:39:50 -0700

Sorry, my last email was supposed to go to RMS only. I goofed. /Larry

> -----Original Message-----
> From: Lawrence Rosen [mailto:lrosen@rosenlaw.com]
> Sent: Saturday, May 06, 2006 10:32 PM
> To: fsb@crynwr.com
> Subject: RE: The term "intellectual property" considered useful
> 
> 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.