Subject: Re: [arch-dev] universities struggling to avoid making money
From: "Benjamin J. Tilly " <>
Date: Tue, 27 Aug 2002 08:46:25 +0500

"Stephen J. Turnbull" <> wrote:
> >>>>> "Benjamin" == Benjamin J Tilly <" <>> writes:
>     >> I think you should review the definition of theft.
>     Benjamin> OK.  Is the definition at
>     Benjamin> 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."

Is it not equally ownership that I have the right to
do what I like with the stories written by the Brothers
Grimm, and that Disney has the right to decide whether
I may publically perform their versions of the same?

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

IANAL so I cannot speak to the formal definition under
law.  However a great many people feel that the RIAA
wishes to take something that they thought was theirs
from them.  Whether or not a lawyer would agree that
it was theft, it sure feels that way.

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

Agreed on their being fundamental.  Though if this
conversation continues much longer this will be both
fundamental and private - because fundamental won't
stop people from (rightly) say that it is OT. :-(

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

For "stealing from society" read "stealing a small thing
from each person in society".  The individual thefts are
small, but the aggregate theft supports a monopoly worth
many millions of dollars each year to Disney.

Oh.  And please note that I believe that the notion of
property is socially constructed.  The social construct
in question informs and motivates the legal framework
which in turn tends to define the original construct.
There is no absolute notion of "property" or "right" in
my books outside of society.

> 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.

In the US the government of the moment is not presumed
truly representative of society.  That is why there is a
system of checks and balances with government's ability
to speak for the public restricted by the more
fundamental statement of the will of the people given in
our Constitution.

And the Constitution is both where we can clearly draw
support for our notion that we have the right to have a
healthy public domain which we may draw upon, and also
the right to own a temporary monopoly on that which we
create.  Without Constitution and an agreed on system of
law, neither are rights because the term "rights" doesn't
make much sense.  Within that framework, the government
may pass laws, but has to recognize that balance.

But is it fair for government to make this decision
about where the boundary is drawn, when at least one
person will disagree and think that their proper rights
have been infringed on?  I think it is.  First of all
the Constitution says that government has the right to
make that decision.  Secondly the concept of eminent
domain (recognized in the Constitution and as far as I
know a basic part of common law) says that private
property may be taken by governments for public use and
with just compensation (with the value of the
compensation not under the control of the former
property owner).

The Copyright Clause has almost exactly this form: it
identifies the property that may be taken from each
and every person for what public good.  But rather
than compensate each and every person the public good
is itself also compensation (similarly diffuse in
nature to the original property taken).

So there is a boundary to be defined, and as long as it
makes decisions in accord with the assigned framework
(which it hasn't - that is the subject of Eldred v.
Ashcroft), the government defines that boundary at any
given moment in the US.

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

Happy with which?  Stallman's conclusion?  No.  The
principles from which a balance is supposed to be
drawn?  Yes.  The actual balance that we have after
decades of Disney defining the debate?  No.

> 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.

On that we may have to agree to disagree.

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

I don't know whether abuse of eminent domain is legally
theft or not, but that is certainly what *people* call
it when it happens to them.

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