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Re: Hypothetical situation to chew on

Andrew Suffield wrote (in response to me):
> You imply that "protecting intangible assets" is an improvement, and
> that this was not done before, but neither of those are particularly
> accurate.

No, I imply that an asset is a property right, and that the previous
regimes didn't create property rights in abstract property -- at least
as a matter of law, reasonably reliably and impartially.  I consider
that an improvement over anarchy and despotism, but YMMV.

> > ... 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
> publishers.

No, I'm relying on legal historians' assessments of the regime prior
to the Statute of Anne, in which the Stationers' Company (a cartel
authorized by the Crown) exercised monopoly power and settled
internecine squabbles via the Star Chamber.  That's not my idea of
"widely recognized property rights", and was rejected as precedent by
the Donaldson court.  I refer you again to Lord Camden's eloquent
summary in that case; he observes that the Statute of Anne was
immediately preceded by some fourteen years of complete anarchy (or
freedom if you like), and that publishers themselves "brought with
them their wives and children to excite compassion, and induce
parliament to grant them a statutory security".

(A real lawyer and historian's view may be found in William F. Patry's
_Copyright_Law_and_Practice_; excerpt at
http://digital-law-online.info/patry/patry2.html .)

> > 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.

It replaced anarchy following the lapse of the Stationers' Company's
royal charter in 1694, which was preceded by royal prerogative and the
1681 bye-law of the Stationers' Company, preceded in turn by the
Licensing Act of 1662 (focused on censorship rather than property
rights).  As Lord Camden pointed out with regard to the records of the
Stationers' Company, "Every man who printed a book no matter how he
obtained it, entered his name in their books, and became a member of
their company: then he was complete owner of the book.  Owner was the
term applied to every holder of copies; and the word 'author' does not
occur once in all their entries."  That's not a legal foundation,
that's a cartel created at despotic whim.

> > 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.

No, the secrecy of trade secrets is maintained by means of these
mechanisms.  Like any other thing of value, unpublished knowledge may
form part of a contractual exchange; but a tradable right in publicly
disclosed knowledge, as created by copyright, patent, and trademark
law, is a creature of statute, and trade secret law doesn't create
such a thing.

Personally, I find it sobering to realize that my livelihood depends
on the continuation of these frail legal fictions, especially as I
dislike some of the uses to which they are put.  But you can always
spot a legal fiction that is sufficiently well established to be taken
for granted; people start calling it an "inalienable right" while it
erodes all around them.  (Does an indirect reference to Thomas
Jefferson's slaveholding invoke a corollary to Godwin's Law?)

- Michael

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