Subject: Re: The term "intellectual property" considered useful
From: "Ben Tilly" <btilly@gmail.com>
Date: Fri, 12 May 2006 10:14:56 -0700

 Fri, 12 May 2006 10:14:56 -0700
On 5/12/06, David H. Lynch Jr <dhlii@comcast.net> wrote:
> 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.

I'd call that presumption correct when it comes to legal affairs.  At
least as long as the police and populace accept and enforce the
decisions that judges give, which they do.

>     By that argument anything can be declared property and assigned
> ownership.

Indeed.  And one can get around such pesky things as the fourth
amendment by suing your possessions rather than suing you.

By the way that was NOT a hypothetical example.

>      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.

That is what laws started as, I agree.  However long ago it became
generally accepted that laws are usually the province of
professionals.  And there has long been a two-way feedback between
society and law.

>     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.

There is little disagreement that it is failing, but much on how.  I
say that it is failing by trying to make monopolies ever stricter than
they should be.  The RIAA says that it is failing to give them their
due.

>     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.

I beg to differ and strongly suggest that you learn history.  Here is
a broad hint: Thomas Jefferson was *not* the only creator of the
concepts behind our system.  And there was a vigorous debate about
whether or not ideas could be owned.

[...]
>     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.

Perhaps you also have to redefined owned?

>     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.

Newton's Law of Gravity.  Stokes' Theorem.  DeMorgan's Laws.

Our language reflects the practice of science: ideas are owned by
their discoverers, whose ownership rights are limited to an insistence
that they be acknowledged. :-)

>     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.

The same can justly be said about water.  That has not, and will not,
stop society from trying to invent and enforce such rules.

[...]
>     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

I would beg to differ.  People CAN be owned and HAVE been owned.
However it is WRONG to own people, and once it became economically
feasible to act on that, society did.

>     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.

I agree that we should not be owned.  I don't agree that we can't be.

>     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.

I share that hope.

[...]
>     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.
[...]

I'm not so sure that RMS believes that.  He DOES believe that it is an
injustice to halfway give a man software - that is give him the binary
and not give him access to fix problems that might be encountered.
From my understanding he believes that this is unjust whether or not I
give you the binary and allow you to copy it further.

That is, he would say it is wrong for me to give you the binary and
keep secret the code whether or not society says that I own that code.
 Which is why the GPL is fashioned to allow him to assert, through his
ownership of the code, that nobody shall perform this injustice using
code that he owns.

Cheers,
Ben