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

[Seth Johnson]

"Legal backwater?"  The only reason "intellectual property" moved from
being a self-evidently inappropriate term to more general usage, was the
advent of ubiquitous personal computing in the 1980's.  After that
point, the term became intriguing at cocktail parties only because it
was generally understood that computing would have an impact in areas
related to copyright, patent and trademark policy, and saying you were
"in intellectual property" suggested you were in a burgeoning field.
Since all those who aspired to encourage general use of the term
"intellectual property" have failed to actually promote sane policy
under that banner, why should we continue to cater to them?  In the
meantime, these areas of law were never a "legal backwater" except in
the sense that the intrigue of the computer revolution encouraged some
folks to want something different, like to score at cocktail parties or
to make a buck while screwing up the more laudable and fertile
aspirations and potentials of the computer revolution.


Seth




-----Original Message-----
From: michael.davis@law.csuohio.edu
To: rms@gnu.org
Cc: michael.davis@law.csuohio.edu, dean@av8.com, hart@pglaf.org,
hart@pobox.com, hart@readingroo.ms, ankitoner@gmail.com, gwen@eff.org,
seth.johnson@realmeasures.dyndns.org, ecommerce@lists.essential.org,
upd-discuss@lists.essential.org, a2k@lists.essential.org
Date: Fri, 26 Jun 2009 08:49:05 -0400 (EDT)
Subject: Re: [Upd-discuss] Re: [A2k] EFF, PK Drop ACTA Suit -- Anyone to
Take Up the Case Now?

> Richard
>
> I think you are wrong about that. By at least 1915, the term
> "intellectual
> property" was one of the categories in the Reader's Guide to
> Periodical
> Literature; that means it wasn't just mentioned in isolation but was
> considered a category for an entire field. And remember because
> so-called
> IP was not mainstream, its sub-components (patents, copyrights and
> perhaps
> trademark) could be discussed occasionally in isolation. As it became
> less
> of a backwater, discussions became more universal and conscious of
> the
> effect of the entire field, within which the various components share
> much
> more in common than they differ.
>
> I did not say that patents and copyrights are similar in some
> abstract or
> general way. At the applied level and in detail, they are always
> similar
> and often identical.I have been teaching this for decades and have
> four
> editions of a text on so-called "Intellectual Property." That text,
> in
> fact, is organized around the countless similarities between patents
> and
> copyrights, an organizational technique standard to the field. In
> fact,
> one of the main pedagogical tools to teachers of so-called IP is to
> closely examine the differences between the areas because the
> similarities
> are too numerous to use for effective pedagogy. I wouldn't dream of
> contesting any of the basic foundations -- nor of any of the details
> -- of
> programming and computer science. I think you've drifted off base
> here a
> bit.
>
> Mickey
>
> >     It is difficult to say that the term was used only "rarely" in
> the
> > 19th
> >     century since the entire area was a legal backwater until the
> time you
> >     observe the term was used more broadly, the 1980's or so. The
> fact
> > that
> >     you observe it used more during that time simply reflects that
> it
> > became
> >     more socially important.
> >
> > My evidence says otherwise, because it shows that institutions
> which
> > did talk about copyright law and patent law and trademark law did
> not
> > use the term "intellectual property" to describe them.
> >
> >     The problem with the term is not that it lumps copyright and
> patent
> >     together, and often trademark, because to the extent it does
> so, those
> >     areas share some very important and unique characteristics.
> They all
> > enjoy
> >     important and distasteful, and identical, legal characteristics
> >     (especially copyright and patent which are almost
> indistinguishable in
> > the
> >     way they foreclose competition).
> >
> > If two things are "almost indistinguishable" in one very general
> sense
> > at an abstract level, that does not mean they are similar.  And I
> > don't think it is true, either -- copyright does not foreclose
> > competition.  For instance, copyright did not stop me from writing
> GNU
> > and making it obey the commands of Unix.
> >
> >
>
>
> --
> Mickey Davis
> _________________________________
> Prof. Michael H. Davis
> Professor of Law
> Cleveland State Univ. College of Law
> 1801 Euclid Ave.
> Cleveland, OH 44115-2214
> (mailing address: 2121 Euclid Ave. LB 234)
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> _____________________________________________________________
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