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Re: Hypothetical situation to chew on

On Wed, Jan 05, 2005 at 01:36:46PM -0800, Michael K. Edwards wrote:
> The classical forms of intellectual property -- copyright, patent,
> trademark, and trade secrets -- were developed to protect very
> different kinds of "intangible assets".

That's a myth, spread by a propaganda campaign run by large
corporations over the past few decades. They want people to believe it
so that they can claim moral authority for the continued protection of
these assets.

Before printing was invented, effectively all books were controlled by
the church, because the only way to produce them in any quantity was
to have monks copy them out. The church therefore controlled the
content of all books, and they used this to great political effect
(dissenting opinions were not permitted). This was before the
separation of church and state.

When printing came along in the 15th century, the church was afraid
that this loss of control over the creation of books would lead to
spreading dissent against them. They pressed for, and got,
restrictions in law granting them control over what books were
printed. The purpose here was censorship, pure and simple.

Over time, the church's political influence was reduced. Governments
began to grant permission to other groups to control the printing of
books. These were the first publishers.

This process culminated in 1710, with the enactment of the Statute of
Anne in the UK, marking the first form of copyright as we know it
today. It permitted anybody to print anything, with certain
restrictions designed to protect the revenue stream of the publishers
(essentially the ones we have now, time limit 28 years). It also
prohibited the charging of prices "conceived to be too high or
unreasonable". No prizes for guessing why that last part was in there
(British law at the time was mainly concerned with reacting to
observed problems, rather than trying to second guess possible future

Copyright was not designed to protect assets. It was designed to take
them away. Rights of authors did not enter into it, nor was there any
'trade' of rights between publishers and the people (another popular
myth). The purpose of copyright in its modern form was to grant the
people the right to copy works, which they did not previously have.

Everything since then has been the publishers trying to claw back some
part of what they lost. They've been fairly successful, and have
mostly regained their position of power.

[I've skipped a fair number of details, but those are the significant

Patents follow a fairly similar story; they began as monopolies on a
certain trade, prohibiting anybody else from competing with a
specified person, this time created by the state rather than the
churce, as a method of raising funds. Widespread abuse led to them
being locked down in 1624 by the Statute of Monopolies (again in the
UK), which was the beginning of the modern patent system.

Again, it was to take assets away, not protect them.

Trademarks are essentially unrelated. They began as a way of marking
some property as yours (think of branding cattle), with prohibitions
on altering them introduced as basic anti-theft measures. They then
developed into the current system of branding sometime between the
10th and 15th centuries (I forget the details of when and how, but it
was started in the UK again - did we invent *all* of this crap?).

Trade secrets are a modern (20th century) perversion, but they're also
a US perversion. They aren't considered property in Commonwealth
countries. Breaking into your competitor's offices and stealing their
files is theft, but there's no law against obtaining them via means
that would otherwise be legal (except in the US and a few countries
who duplicated their insanity). They're probably the only one designed
to protect assets.

> In the US, the DMCA and UCITA amount to attempts to create a new form
> of intellectual property specific to software and digital media.  I
> happen to think they are very poor public policy in their details. 
> But I'd prefer a well-thought-out "digital rights" legal formula over
> distortions to the existing mechanisms.  The way it is now -- stealth
> amendments bought by software and media giants, regulatory capture at
> the USPTO, DRM arms races, and widespread contempt for the law -- is
> no good.

That's no surprise, since the system was never designed to cope with
this sort of thing. Given its position in history, the intent was
probably to continue to introduce new laws to stop this kind of crap
as it came up; that was the prevailing approach to legislation at the
time. But the political landscape shifted to favour the large
corporations, so that never happened.

  .''`.  ** Debian GNU/Linux ** | Andrew Suffield
 : :' :  http://www.debian.org/ |
 `. `'                          |
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