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Re: Hypothetical situation to chew on

On Fri, 7 Jan 2005 11:04:21 +0000, Andrew Suffield <asuffield@debian.org> wrote:
> On Thu, Jan 06, 2005 at 06:20:29PM -0800, Michael K. Edwards wrote:
> > > > ... 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,
> Blaming somebody else for doing it doesn't make it valid.

No, the fact that there was no property right in works of authorship
in England prior to 1710 makes it valid, and the legal historians'
assessments establish that fact.  All English laws on publishing and
printing had lapsed fourteen years earlier, and no cases were brought
during that period in which anyone attempted to restrain a printer, on
grounds of lack of ownership, from printing what he pleased.

It was widely recognized, at the time of the 1774 Donaldson case as it
is now, that the Stationers' Company scheme (extant on and off from
1557 to 1696) had been a system of censorship and trade restraint, not
of property rights, and in particular had not created a property right
in authorship separate from the ownership of individual copies.  And
before you say it -- yes, there is a difference between the two.

> > That's not a legal foundation,
> > that's a cartel created at despotic whim.
> There's no difference.

It made plenty of difference in the Donaldson case -- the court
declined to find a common-law copyright prior to the Statute of Anne,
precisely because despotic whim doesn't create law fit to be treated
as precedent.  If you meant to say that all legal foundations are
cartels created at despotic whim, I'm not going to follow you down
that rathole.

> > > > 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.
> No difference there either.

What part of "trade secret law doesn't create a tradable right" is
confusing?  Trade secret law entitles victims of breach of contract,
breach of confidence, and industrial espionage to injunctive relief
and, in some cases, monetary damages.  It's pure tort law, not
contract or property law.  This being law we're talking about, there's
a difference -- or did I wander into debian-if-I-were-king by mistake?

- Michael

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