Subject: Re: termless copyright and patents
From: <stephen@xemacs.org>
Date: Sat, 23 Sep 2006 17:37:33 +0900

David Fetter writes:

 > Ah, another libertarian bullshit stock phrase trots out.  Let's
 > examine this one critically, too.  Show me one government in all of
 > history which did *not* redistribute wealth.

*Exactly* my point.  They all do.  And each redistribution is
different, so (unfortunately) we must give each new one a critical
review.

 > > [1]  I believe that the increase of term length was entirely
 > > motivated as a smokescreen for extension of existing rights.
 > 
 > I quite agree, with the minor quibble that it's more like "licenses"
 > in the sense of "power without responsibility" than "rights."

Whatever else do you think a right is?

 > > "exhausted" and "first sale" are a deliberate reference to the legal
 > > doctrines by those names, but the usage here is different.

 > Could you explain the nature of these differences and your motivation
 > both for using the names of legal doctrines without their legal
 > meaning?

In law, the doctrine of exhaustion (resp. first sale) is that the
rightsholder's right to extract royalties from a product practicing
his patent claim (resp. a copy of his original work of authorship)
ends with the sale of the product (resp. copy).  The rightsholder may
not prohibit you from repairing a device you own in the case of patent
(resp. from donating your copy of a novel to the public library in the
case of copyright).

I'm not sure what the legal history of this kind of doctrine is (for
example, it might be related to the prohibition of "double jeopardy"
rather than any economic argument), but I chose to use the terms
because the economic rationale for those doctrines is the one I gave,
and the cut-off point for the power of the rightsholder is the same as
the point where there is no longer any potential social benefit: the
point where the technique or work is distributed to another person.
The difference is that the legal doctrine is a policy limit on private
benefit, the economic justification is a positive fact about the
social benefits to be hoped for from IP.