[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:>
> > 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.

My disagreement to your claim here could not be stronger.

Period.

It is hard to believe that you could understand the history
of WIPO and its previous incarnations and not understand it
is the fundamental author of many copyright laws, back to a
large number of even stronger failed "patents" before 1709-
1710 and The Statute of Anne.


> 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.

If you think the letter of the law is what prevails, then I
suggest you reread "Eldred v Ashcroft" and other cases.

The copyright laws have always had more sway than a simple,
confined, legal statement.


> >> 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.

Again, it's the underlying doctrine that counts here,
not "the letter of the law."


> >> 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.

And whom else might we be talking about here?



> >> 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.

>From what you say below, I think we agree on this.

It might merely be an issue with Stallman's grammar.


> 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".

Unless you can get the courts to "separate the three strands,"
this is just more tilting at windmills. . .not that I do not--
just that I like to choose the most efficient manner.


> >> 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).

"The lawmakers are confused?"

This may reflect back on the earlier comments above about
who is making the laws.

I say it is WIPO that is making the laws.

I say WIPO is not confused.

I say it is definitely by design.

If you are saying that WIPO definitely designed a strategy
to confuse the "lawmakers" of record, then I must agree as
it appears they are mostly confused about all lawmaking.

"Two things you never want to let them see you make:
laws and sausages."


I think we agree on the point you make directly below,
and that you have merely missed my point that WIPO was
the real "lawmaker" I was referring to.

> 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 agree whole heartedly.

I just am calling a spade a spade when referring to lobbyists
as lawmakers. . .when that is exactly what they are.

Perhaps we could substitute the term "legislators" here which
might avoid this.

Not all lawmakers are official members of goverments.

Never has been.

But we can always hope for the future.


> > Yes, I would agree that nearly all legal documents as "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.

The point is that even legislators use confusion as a weapon,
a strategic weapon developed over the years and millennia, to
keep the public from actually understanding the laws, giving,
as it were, even greater power to the system, much as was the
case when the Catholic church was more powerful than the many
governments of its parishoners.



> > 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.

The U.S. Supreme Court pretty much decided on the side of
"perpetutity" in "Eldred v Ashcroft."

Given the power the U.S. still holds in terms of ECONOMIC
WARFARE, the question you raise is in serious doubt.

As far as my own situation, I feel I have lived in states
of "perpetual copyright" for nearly my entire life with a
few leaks here and there when they couldn't pass the laws
quickly enough, but nothing yet to come close to the date
of the original copyrights on The Mouse, Pooh, etc.

Copyright certainly seems perpetual in those cases, and a
serious revolutionary event[s] will be required to change
that in any substantive manner.

You do realize you are going up against The Mouse Army on
this, do you not?


> > 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.

I love your analogy, and agree in principle, but. . . .

The truth is that hardly anyone I know is even aware of
the length of copyright today, yesterday, or earlier.

I can't believe how many people do not realize the U.S.
copyright term is not what is was 100 years ago. . . .

That is what it was extended, yet again, to be 28 years
with a 28 year possible extension [that was rarely used
in more than 10% or so of copyrights even though it was
simple and inexpensive.  If you want to talk about laws
lumping things together, talk about how ALL copyrights,
every one of them, were extended without any need for a
simple inexpensive filing, just so 10% of them will not
have to file file for an extension.]


> > 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".

Not a substantive answer.

Talk about a circular argument. . . .

I want you to define where this conclusion was arrived at.


> > 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.

Now you are simply avoiding the issue.

Do you really think our audience here will not see that.

You say this is the case, and that it is obvious.

I simply want to know when/where/how it became obvious.

Please. . . .



> > 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 suggest you look up the difference between

Strategy

and

Tactic

A strategy is a longer term point of view that can include
many other strategies and tactics.

A tactic is an ad hoc response to a particular situation.

Any time the point of view is extended over time periods,
it changes from a tactic to a strategy.

Strategic moves, weapons, plans, etc., cover more areas in
time and space than do tactical ones.

Look up "strategic weapons" vs "tactical weapons."


> > 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.

I have actually raised the copyright issue in press conferences here
and found that the people in question literally had no idea what the
copyright laws were, or how the changes were taking place.

It was rather a disappointing experience.

Equally disappointing was the fact that those making Internet laws I
testified before had never even sent an email, except for one, and I
noted they didn't know the difference between the Net and BBSs, etc.


> > 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.

If you would change the "but" to "and" in that sentense I agree even
more. . .this is exactly the point I am making. . . .

If they can rule that "limited" is "unlimited" then can can rule the
same about "black" and "white" or "up" and "down" and they make this
whole thing totally obvious that it is a sham.

THIS IS THE POINT WE SHOULD BE MAKING EVEN MORE OBVIOUS!!!

Instead we spend too much time on semantics.

We should be making it more obvious how much EVERY CITIZEN
IS LOSING FROM THEIR PUBLIC DOMAIN RIGHTS JUST SO A FEW IN
HIGH PLACES CAN MAKE A COUPLE PERCENT MORE PROFIT. . . .


> >> 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.

YOU need to stop supporrting putting the smaller stuff first!

YOU need to stop pretending what YOU are supporting is "plahying the
game your opponent wants you to!"

YOU need to make the MAJOR POINTS OUTWEIGH THE LESSER POINTS.

Make the people realize what is at stake for THEM!!!

THEY don't care about legalistic definitions. . . .

AND YOU CAN'T MAKE THEM!


> 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.

Yes, you have. . .it appears to me that YOU are the one who is
"more concerned with the details. . .and. . .with Stallman."

Just make the major points major.

It's as simple as that.

If you don't do that, you are just muddying the waters,
confusing the isssues, playing the oppenents' game.


> > 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.

I'm doing that right now. . .and waiting for you to join in.

Thanks!!!


Michael S. Hart
Founder
Project Gutenberg
Inventor of ebooks


Recommended Books:

Dandelion Wine, by Ray Bradbury:  For The Right Brain
Atlas Shrugged, by Ayn Rand:  For The Left Brain [or both]
Diamond Age, by Neal Stephenson:  To Understand The Internet
The Phantom Tollbooth, by Norton Juster:  Lesson of Life. . .

If you ever do not get a prompt response, please resend, then
keep resending, I won't mind getting several copies per week.



>
> ~mark
>
> Mark Harris
> Technology Research and Consultancy Services Ltd
> New Zealand
>
> m: +6421444954
> e: mark@tracs.co.nz
> s: nzlemming
> t: @nzlemming
> w: http://tracs.co.nz/
>