Subject: Re: [arch-dev] universities struggling to avoid making money
From: "Stephen J. Turnbull" <stephen@xemacs.org>
Date: Tue, 27 Aug 2002 11:29:24 +0900

>>>>> "Benjamin" == Benjamin J Tilly <" <ben_tilly@operamail.com>> writes:

    >> I think you should review the definition of theft.

    Benjamin> OK.  Is the definition at
    Benjamin> http://www.dictionary.com/search?q=theft acceptable?

    Benjamin>   1. (Law) The act of stealing; specifically, the
    Benjamin> felonious taking and removing of personal property, with
                                                        ~~~~~~~~
    Benjamin> an intent to deprive the rightful owner of the same;
                                                ~~~~~

Please explain the referents of "property" and "owner" in the context
of the "public taking."

In law, neither is present here: the copyright has (by hypothesis)
expired, so there is no intellectual property, a fortiori it cannot be
"owned."

This is not mere hair-splitting; it cuts to the fundamental issues:

Morally, you could argue that "the government" is "stealing" from
"society."[1]  I contend that "social property" is an oxymoron.

However, if you insist it has meaning, I don't see how you avoid
Richard Stallman's conclusion that all private intellectual property
is immoral, since the basis of IP as we know it today is "public
taking".  Note that in the definition of "theft" there is no reference
to "without adequate compensation"; if the public taking is theft,
it's because it's done without permission.  Now you're in big trouble;
either any one person can veto the taking, or there is some notion of
a "representative of society"---but that _must be the government_,
else IP is the least of our problems!  More to the point, if the
government is not plausibly the representative of society, then any
public taking must be presumed theft, and you're back to rms's
position.  If the government is plausibly the representative of
society, then the public taking must be presumed the will of society.

Are you happy with that?  If so, we'll just have to agree to disagree.

However, as far as _I_ can see there is no theft here, "merely" a
definition of property rights where there were none before.  Since no
individual has property in the intellectual asset, I don't see how
their "rights" are violated by this.  Nor are rights "property".

I would still agree, with you and with Uncle Milton, that this is
horribly wrong public policy.  But it's not theft.


Footnotes: 
[1]  IANAL, but I wonder if it is possible for the government to
commit theft (in law).

-- 
Institute of Policy and Planning Sciences     http://turnbull.sk.tsukuba.ac.jp
University of Tsukuba                    Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
 My nostalgia for Icon makes me forget about any of the bad things.  I don't
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