Subject: Re: The term "intellectual property" considered useful
From: "David H. Lynch Jr" <dhlii@comcast.net>
Date: Fri, 12 May 2006 04:21:43 -0400

Thomas Lord wrote:

    All of your arguments below are based on the presumption that the
definition of something is basically what lawyers and courts decide it
means.
    By that argument anything can be declared property and assigned
ownership.

     Besides being wrong it also puts the cart before the horse.
Property and the concept of property existed long before the law.

     Laws are our attempts to establish formal rules for running an
orderly society based on our norms, principles, values, natural law, ...
    Not the other way arround.

    My fundimental point is that you can call an idea or anything you
want property. You can make whatever definitions inside of the law to
appear to make that so, but
    if your definition conflicts with any of the underlying foundations
for our laws then it will fail. The whole intellectual property system
is failing. I think there is little disagreement on that.
    No one that I know aside from myself (there must be others I am
sure) is claiming the system is failing  because it is fundimentally
flawed. The creators of the concepts behind our system in the 17th and
18th century has no misperception that ideas could not be owned. Up
until the 1980's it was an accepted principle of law that Patents
covered only implimentations, and copyrights only expressions. The
concept that intellectual property actually embraces the underlying
ideas is very very modern, and frankly is nowhere near established law -
though I have little doubt we will get there before we are through.
Anyway, most everyone understands the system is failing - particularly
the patnet system. Software appears to be the straw that broke the
camels back, but the real reasons have nothing to do with software. I am
personally opposed to the efforts to stop software patents in the EU,
because the problem is not Software Patents, but patents period.
Regardless, the current efforts to fix the system are more likely to
make things worse than better. I have zero faith that the US congress
can address the issue of IP and not return legislation that makes
patents stronger, broader and longer, regardless of there original intent.

    Of course ideas can be owned if you are willing to redefine ideas as
cows. The approximation you must choose for an idea, needs to fairly
accurately reflect the attributes of an idea.

    God is an idea - do you really want to argue that the concept of god
can be owned ? Gravity is an idea, the laws and theories of mathematics
are ideas.
   
    I will conceede I can not prevent the evolution of a system of laws
that allows the asignment of rights of ownership to ideas.
    But you can not construct a system of laws to do so that will
actually work. The reason you can not is because the properties of ideas
- not your formal or legal conception, but the actual attributes do not
lend themselves to ownership.

    And actually our debate is consistently demonstrating that both RMS
and I are right - that the use of the term property shapes the argument
in ways that seriously misrepresent the issue.

    This is NOT a legal argument. While I beleive the law is wrong, and
more important unworkable.
    Once upon a time we had laws that said people were property and
could be owned. Those were perfectly legitimate, properly constructed,
properly defined laws.
    The only problem with them was that people can not be owned.  People
have alot more of the attributes of property than ideas do. There is
even thousands of years of history
    supporting the ownership of people. You can choose your reasons for
beleiving people are not property, and I can choose mine.
    I hope both of us agree that laws to the contrary not withstanding
people can not be owned.


    As a separate issue, my reading of the US constitution prohibits the
ownership of whatever it is that "intellectual property" entails.
Following your line of argument it does allow congress to
    assign limited rights for limited duration to authors and inventors.
I will conceed that the current supreme court does not seem to find any
meaning to the word limited. Hopefully that will change.
    Regardless whatever it is that the constitution empowers congress to
do, it is pretty clear that it is not grant ownership to ideas. But I am
not going to make my arguments rely on constitutional interpretation.
    I think I can easily win their on the logic, but I fully expect that
the court is going the other way.
   
   
    I do not want to presume I know RMS's mind here and I am certain we
disagree on alot of aspects of this argument. However, I think both of
us beleive that Free Software is about protecting Software and the ideas
embodied in it, from being owned by anyone. The term "Intellectual
Property" presumes that is not only possible but a right.

    You beleive that is the case. I do not think you can possibly
understand how absurd I think that proposition is. But let me try to
argue from your premise - whether ideas can be owned, I think RMS and I
beleive they should not. Further I think we beleive that Free Software
is about that, and therefore Free Software should not embrace language
that assumes the validity of the premise that we are trying to reject.

    Using the GPL as an example, the GPL uses copyright and contract law
to construct a legal framework for a software license that works
completely different from the way that the construct of licenses and
contracts were intended to work. I do not have to accept the underlying
interpretation of copyrights and licenses, but I can not accept the
underlying legal framework and easily reject the GPL.



   

> David H. Lynch Jr. wrote:
>>
>>     If you honestly believe ideas can be owned, then you should be
>> moving towards the elimination of patents, copyrights, .. and towards
>> treating ideas exactly like all other real property.
>
> You have been illustrating my point to RMS by consistently
> demonstrating (sorry)
> a misunderstanding of what "property" means.
>
> There is no such thing as "like all other real property".   The
> details *always*
> matter whether we are talking about various kinds of physical
> possession or
> intangible property.
>
> Property is always, in the U.S., a system of specific rights
> constructed by
> various laws.   Which laws apply depends on the particular kind of
> property and variations even among types of real property make big
> differences.
>
> Of *course* "ideas" can be owned, for a suitably formalized approximation
> of what an "idea" is .... the only serious question is what rights that
> ownership should entail.
>
> -t
>
>


-- 
Dave Lynch 					  	    DLA Systems
Software Development:  				         Embedded Linux
717.627.3770 	       dhlii@dlasys.net 	  http://www.dlasys.net
fax: 1.253.369.9244 			           Cell: 1.717.587.7774
Over 25 years' experience in platforms, languages, and technologies too numerous to
list.

"Any intelligent fool can make things bigger and more complex... It takes a touch of
genius - and a lot of courage to move in the opposite direction."
Albert Einstein