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Re: Hypothetical situation to chew on

On Thu, Jan 06, 2005 at 02:14:41PM -0800, Michael K. Edwards wrote:
> On Wed, 5 Jan 2005 23:48:40 +0000, Andrew Suffield <asuffield@debian.org> wrote:
> > 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.
> With regard to developments in the last two decades, extending the
> life and scope of existing copyrights in a way that benefits only a
> few corporate owners of entertainment properties, I largely agree. 
> But I think you present a somewhat one-sided view of the European
> history of abstract property rights, and by implication of 19th and
> most of 20th century US and world history in this area as well.
> I'm no historian (and no lawyer), but I don't think the record's hard
> to read.  At least in England and its colonies, the creation of
> statutory property rights in commercial applications of knowledge has
> fairly consistently been an improvement over the previous practice. 

You imply that "protecting intangible assets" is an improvement, and
that this was not done before, but neither of those are particularly

> > 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).  ... [snip]
> ... and was enacted in an environment where previously no property
> right in ideas or expression was widely recognized

That's not accurate. You're dismissing the previous widely recognized
property rights because they don't fit your notion of "fair". That
doesn't change the fact that they existed. They were just held by the

> > 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.
> That just doesn't fit the history.  The Statute of Anne created a
> legal foundation for an automatic exclusive right of publication,
> something that was previously subject to the whim of royal ministers. 

It did not do so in a vacuum. It replaced an existing system.

> > 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.
> Again, it was to formalize a statutory property right, administered
> via civil judiciary mechanisms, to replace a widely abused system of
> executive prerogative (which had nominally been abolished in 1610).

And the same again here.

> Ironically enough, trade secret is the only form of intellectual
> property that I cited which doesn't create an asset, in the sense that
> it doesn't create any tradable right like copyright or patent.

Trade secrets are routinely traded in the US, by means of contracts
and NDAs.

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