Subject: RE: The term "intellectual property" considered useful
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Sun, 7 May 2006 22:55:33 -0700

Lawrence Rosen wrote:
> > Intellectual property *is* personal property. It can be possessed,
> > transferred, inherited, etc.

Simo responded:
> The problem is confusing the possession of a title, with the possession
> of the work in abstract.

I know that many people confuse things about intellectual property. I spend
a significant part of my life trying to correct such confusion. :-)

Forget "the work in abstract." It is a meaningless phrase. By the term
"intellectual property" I mean those things that can be owned as a result of
the copyright, patent, trademark and trade secrecy laws. Those things are
creations of the intellect and they have the legal properties of personal
property. They are not just abstractions. They are presumably worth money
because their owners can do things with them.
 
> This confusion is very common, and that easily make one draw wrong
> conclusions.

Yep. That's why I insist upon precise language in my licenses. I want both
licensors and licensees to know exactly which intellectual property they are
getting and what they may be required to do in exchange. 

Read the licenses and you will know what intellectual property is and what
you may do with it.

> As "normal" property means you own something forever, and pass it to
> your descendants, laymen are pushed to think that you must "own" an
> intellectual work forever, or that copying it is really like stealing a
> physical object.

What's "normal" in this world? What's "forever"? I could regale you with
stories about the "Rule Against Perpetuities" in real property law that
perplexes law students and explains that forever isn't so even for pieces of
land. Confusingly enough, some intellectual property is limited in duration
and some continues indefinitely as long as certain conditions are met. In
many ways it is just like other forms of property and property rights.

Why should you care, though, about normalcy and forever? You're a software
professional aching to give away your work on free and/or open source terms.
Choose your license to say exactly what you and your lawyer think it should
say about your copyright, patent, trademark and trade secret grants and the
conditions and reservations there from. That's all about intellectual
property that you and your licensees really need to know about the work in
question. 

You'll know, if you read the license for a work, whether "copying it is
really like stealing a physical object" or whether it is free and open
source software that you can copy without stealing.

> My opinion is that there's nothing "intellectual" in the property you
> refer to. You own a title, a concession from the state, a right to a
> monopoly, you do not own a work itself.

Sorry. It is a creation of the intellect. And the "work itself" can be
owned, as described in the laws of the state.

/Larry

> -----Original Message-----
> From: simo [mailto:s@ssimo.org]
> Sent: Saturday, May 06, 2006 10:25 AM
> To: lrosen@rosenlaw.com
> Cc: fsb@crynwr.com
> Subject: RE: The term "intellectual property" considered useful
> 
> On Sat, 2006-05-06 at 09:49 -0700, Lawrence Rosen wrote:
> > >     So the problem *here* is not that people confuse
> > >     patent with copyright; it's that people confuse intellectual
> property
> > >     with real property or personal property.
> >
> > Intellectual property *is* personal property. It can be possessed,
> > transferred, inherited, etc.
> 
> The problem is confusing the possession of a title, with the possession
> of the work in abstract.
> 
> This confusion is very common, and that easily make one draw wrong
> conclusions.
> 
> As "normal" property means you own something forever, and pass it to
> your descendants, laymen are pushed to think that you must "own" an
> intellectual work forever, or that copying it is really like stealing a
> physical object.
> 
> My opinion is that there's nothing "intellectual" in the property you
> refer to. You own a title, a concession from the state, a right to a
> monopoly, you do not own a work itself.
> 
> IMHO, IANAL, etc...
> 
> Simo.