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

[Jeff Williams]

John and all,

John T. Mitchell wrote:

> 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.

  I believe  you mean "Class" of IP here.  And if so, I agree fully
with this notion or thought process..  And even more importantly
perhaps, what jurisdictions a "Class/Type" or specific IP has what
degree of rights and or protection at what level 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.

  Yes, and this is especially true in the Internet medium...

>
> 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).

Understood fully here.  Indeed, extralegal rights are being attempted
to be forced upon or over other's for different classes of IP in order
to construct the "Fences" to which you analogize, John...

>

>
>
> 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.

  Yes the level of rights is being assumed that doesn't or didn't already
exist in some cases ergo "Extralegal"...

>
>
> 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.
> >  > _______________________________________________

Regards,
--
Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 134k members/stakeholders strong!)
"Be precise in the use of words and expect precision from others" -
    Pierre Abelard

"If the probability be called P; the injury, L; and the burden, B;
liability depends upon whether B is less than L multiplied by
P: i.e., whether B is less than PL."
United States v. Carroll Towing  (159 F.2d 169 [2d Cir. 1947]
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