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

[Mark Harris]

Michael S. Hart wrote:>
 > 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.
 >
WIPO's underlying texts do not the law make, Michael. Their underlying
texts are part of the design to get "intellectual property" accepted
unquestioned as shorthand for "copyright, trademarks and patents". If it
ain't in the agreement, it don't mean diddly-squat.


 >> 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.
 >
Off you go, then. There's a mention in the 19th centurey, and there's
the merger of the offices governing the Berne and Paris agreements, but
there are no treaties or laws mentioning "intellectual property" as part
of the text, as far as I have been able to determine.


 >> 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."

Strategic on the part of the "IP lobby", yes.

 >> than confusion, in order to conflate the matters of trademarks,
patents and
 >
 > That would tend to support my point that they are not confused.

I am puzzled that you hold to this line. The very use of the catch-all
confuses the terms among the general public, and among law-makers. The
people doing the confusing are not themselves confused - they are
deliberately making it difficult for others less knowledgeable or less
willing to review history to separate the three strands, and so are
looking for regulatory environments that affect all three, as "property".


 >> 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.
 >
RMS does appear to make that point and, if so, it would be an area in
which I don't agree with him. He is, I think, correct in assuming that
the lawmakers are confused and that this is by design (and not their
design).

Where, it seems to me, you err is in assuming that the lawmakers are the
ones who have the strategic views. This is the province of the "IP
lobbyists", e.g the RIAA and the MPAA, but not limited to them, as the
big pharmaceutical companies have much ore at stake. ACTA, for example,
is a child of the pharmaceutical companies, by a roundabout route (see
http://tracs.co.nz/gripping-hand/charge-of-the-ip-brigade/) and the
media companies have a stake as well. These are the people I think are
operating "strategically", not law makers and national representatives.


 > 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.
 >
While not disagreeing fundamentally with this, I fail to see your point.



 > As I understood it, copyrights have been bought, sold, intherited,
 > contracted for, etc., for quite some time now.
 >
The key is "perpetuity. Property doesn't expire - copyrights do (or
should, unless a Congress-equivalent passes yet another extension).
Copyright is not a property. While it can be traded and assigned, it
lacs the non-rivalrous nature required to define property, purely
because items can be copied.


 > Is there something new about this area being proposed?
 >
It's the long term plan, in my view. Boiling a frog happens slowly, by
degrees.


 > Where is this idea proposed that one size of copyright, patent, etc,
 > should be the case?
 >
It is inherent in the very concept of "intellectual property".


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

See. We get diverted with details until the frog is well and truly dead.


 > Again, that would make this "strategy". . .as oppposed to "tactics."
 >
No, the strategy is to defeat the opposition's desire to enclose the
Commons by using the tactic of not using their terminology and allowing
the to frame the debate.


 > 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.

Then ask your government for such a statement. That is not what I (and
RMS, I believe) were arguing. I am not an American. I cannot petition my
Congressperson for relief. I can only request that those who can should
do so, for what is done in the US Congress has impact across the world,
sadly, because members of that body have been bought and sold for
generations by vested interests.

 > 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.

True, but my reading of SCOTUS decisions indicate they twist the
Constitution into ever new and interesting shapes to justify their
decisions.

 >> 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.

Then you need to stop playing the game the way your opponent wants you
to. This is not what I have read into your previous messages. It seems
to me that you are more concerned with the details and arguing with
Stallman, simply because he is Stallman. I apologise in advance if I
have misread that.

 > 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.

Let's do that.

~mark

Mark Harris
Technology Research and Consultancy Services Ltd
New Zealand

m: +6421444954
e: mark@tracs.co.nz
s: nzlemming
t: @nzlemming
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