[Upd-discuss] Re: [A2k] EFF, PK Drop ACTA Suit -- Anyone to Take Up the Case Now?

[Michael S. Hart]

On Sat, 20 Jun 2009, Mark Harris wrote:

> Michael S. Hart wrote:
>
> > All the treaties, laws, etc., use that term.
> >
> Actually, they don't. The Berne Convention, still the pre-eminent
> international agreement on copyright, only uses the term as part of the titles
> of the various WIPO bureaux involved in administering it.
>
> Even the WIPO Copyright Treaty (1996) does not attempt to define copyright as
> "intellectual property".

I think you will find that WIPO's underlying texts, even as far back
as 1996, does indeed work with IP terminology.  However, the treaty,
and others, have final wordings usually very diplomatically worded--
perhaps a history of such would be worthwhile to show development of
this kind of thinking, and such a long term development makes it the
"strategic" kind of thinking, rather than the "tactical" as below.


> The TRIPS Agreement is the first introduction of that term into
> the international marketplace and attempts to require regulations
> from signatories to strengthen "intellectual property" rights in
> their domestic legislation. TRIPS is still a bone of contention
> around the world, hence the prolonged DOHA round.

"First introduction"???

Do you have a date for this?

I should think it might be rather easy to find earlier ones.


> The extended and increased use of the term is definitely by design, rather

If it is as you say here, then definitely "strategic" vs "tactical."


> than confusion, in order to conflate the matters of trademarks, patents and

That would tend to support my point that they are not confused.


> copyright in the minds of the public and, more importantly, politicians
> theoretically elected by the public. Witness the creation of WIPO itself, and
> the growth legal industry around "untangling" issues of "intellectual
> property" for businesses and individuals. This is the element of confusion I
> believe RMS is referring to.

As I read the grammar of Stallman's statement, I interpreted it as
meaning they were confused, not as if they were using confusion as
a weapon. . .a strategic weapon, at that.

Yes, I would agree that nearly all legal documents us "confusion,"
strategically, to keep the people confused as to what the law will
mean to them, much as the Catholic church used similar confusions,
strategically, to keep the people confused as to what the law was,
as handed down in the Bible and various other documents.  However,
this is very much the normal strategy for laws in general, and the
clearer the proposed laws today, the less chance of being passed.


> I agree with RMS that by using the term in opposition to ACTA, the Broadcast
> Treaty, and suchlike, or support for the reading disabled treaty and suchlike,
> we cede the ground to those that wish to promote the concept that copyright,
> patents and trademarks are property. That's a short step from them demanding
> that "intellectual property" be treated like any other property, in terms of
> perpetuity, inheritance, transferability, and even confiscation.

As I understood it, copyrights have been bought, sold, intherited,
contracted for, etc., for quite some time now.

Is there something new about this area being proposed?


> > No, this is nonsense. . .no one, even back to the first "patents"
> > that started the entire concept of our copyright laws, ever had a
> > "single policy of copyrights, patents, and trademarks, trade
> > secrets" etc., etc., etc.
>
> You are correct, Michael, in that no-one _intended_ it back then. RMS' point,
> which I support, is that the supporters of the term now do indeed intend that
> this be the case and that one size should fit all. That is the reason that we
> should act, and resist this activity.

Where is this idea proposed that one size of copyright, patent, etc,
should be the case?

As I understand it, the size of each term would be quite different.


> > At least make the substantive points FIRST. . .then semantics.
>
> This is not semantics, but tactics - this is a matter of defining the right
> battleground. It's a truism in debating that s/he who defines the terms has
> the advantage. By fighting the battle of details of "intellectual property
> agreements",

Again, that would make this "strategy". . .as oppposed to "tactics."

I do agree with you that "property" is an incorrect terminology,
and I would support a statement that said copyrights, patents or
whatever were rights "loaned" by the people for "limited period"
as stated in the U.S. Constitution. . .however, if you want talk
about tilting at windmills, the U.S. Supreme Court has ruled, in
Eldred v Ashcroft, that in this case limited means unlimited, in
the more common parlance.

If you keep up with such decisions, you realize they will not do
any revision to that decision in our lifetimes, as Roe v Wade or
any other such decision, even when they would LIKE to overturn a
decision. . .because they fear changing their minds would demean
their positions.


> we lose the war for the protection of the Commons because we were
> in the wrong place and tilting at many very small windmills.

This is exactly what _I_ am saying!!!

Let's put the arguments we have against the giant windmills first--
then follow up in the fine print with the smaller windmills.

Let's go after the actual consequences that removed millions of our
books, newspapers, and other materials from the public domain, just
so the copyright holders could get another 1% profit, while we lose
our rights to all that information.

Thanks!!!


Michael S. Hart
Founder
Project Gutenberg
Inventor of ebooks