[Ecommerce] Re: [Hague-jur-commercial-law] Contracts that restrain competition or impede the transfer of technology

[John T. Mitchell]

Richard may have a valid point not to be dismissed  so quickly, and one
that is illustrated by Jeff's reply.  My first reaction was to agree
with Jeff, but upon Friday evening reflection, I realize that this
lumping together blurs some very fundamental lines of distinction
between different types of IP.  Thus, it is not just a question of what
is or is not "IP" in the umbrella sense (copyrights, trademarks, trade
secrets, patents -- even "databases" of information), but distinguishing
which specific "IP rights" are involved.  By doing so,we can better
discern what is not IP at all or, perhaps even more importantly, what
are limitations upon a specific type of IP, that must be respected.

We are already witnessing an alarming deterioration of the law as
certain individual "IP rights" are leveraged into control over others.
Patents being used to control the flow of copyrighted works, copyrights
in some works being used as leverage to gain extra-copyright control
over those works or economic power in the distrubution of others,
databases of copyrighted works or technological "IP" fences around
copyrighted works threatening to circumvent the statutory limitations
upon them, trademarks being enhanced to nullify limitations upon the
copyright (e.g., when Mickey Mouse finally enters the public domain and
you can copy him and make derivative works of him, you may have to call
him something else if Disney still owns the trademark).

The courts of 60 years ago (the Congress of 100 years ago and the
Department of Justice of 60 years ago) seem to have understood more
clearly a world in which it is illegal to leverage the limited grant of
exclusive rights using any particular (and very specific) form of
intellectual property into control over anything outside of that limited
grant.  Today's courts and policymakers (fortunately, with many positive
exceptions)seem to take an attitude of "well, it's their IP, they can do
what they want with it," ignoring a long history and public policy of
valuing the limitations upon the exclusive rights as much as the rights
themselves.

While I might not go so far as to criticize every use of the term
"intellectual property," I think I do need to do my part to point out
when "intellectual property" is being used in the same manner as
"liberal" or "free trade" -- just a term used to express an idea to be
loved or hated, without bothering to check whether it is just a duck.

My two cents worth.

John

>  -----Original Message-----
On Behalf Of
>  Jeff Williams
>  Sent: Friday, April 02, 2004 12:48 AM
>
>  Richard and all,
>
>   I think your advocating the other extreme here in your
>  final remark. Rather we need to "Question" what is
>  legitimate "Intellectual property" and what is not.
>
>  Richard Stallman wrote:
>
>  > Use of the term "intellectual property" encourages people to lump
>  > together disparate laws such as copyrights and patents.
>  Not only the
>  > public, but even legislators, are led astray, as witness
>  the recent
>  > disastrous "intellectual property enforcement" directive in the EU.
>  >
>  > We have got to stop conceding this first fudamental point
>  and start
>  > criticizing the term "intellectual property" wherever we see it.
>  > _______________________________________________