!@!Re: !@!Re: [Upd-discuss] Did You Say "Intellectual Property"?It's a Seductive Mirage by Richard M. Stallman

[Seth Johnson]

Well, right.  Let me make a few comments, though.

I find it really effective as a counter to "intellectual
property" specifically because it speaks of the form which those
who use "intellectual property" are supposedly "only doing" --
but *without the bias.*  Doing this usually shuts up the more
stupid tendencies among gatherings of lawyers who might otherwise
continue steering discussion by means of rhetoric that hinges on
the assumptions promulgated by "intellectual property."  A lot of
them keep pointedly using "IP" but they don't confront me on it,
while in the meantime those who are listening carefully and
learning see the difference and wonder -- and I think they pick
up on the way the term "exclusive rights" takes away the "natural
right"-ishness of "IP," making it sound much more like the
product of policy, not a matter of fundamental rights.

Then I find that addressing the substance follows directly,
depending on whatever the subject of discussion is.

I use it as a good first step, and a good intermediate answer to
those who ask what term to use instead, that gets them to listen
rather than see me as insisting on a nominalistic point.  When I
start saying "which type of exclusive rights are you talking
about -- copyright, patent or trademarek?" that straightens out
everybody in the discussion really quick.  Even those who
continue to use "IP" realize they are in a discussion that's on
real first principles, not the hypey world they're living and
loving within their "intellectual property" consortia.

I know that it is important to cease using the term "intellectual
property" in public venues, since its purpose is propaganda to
create confusion and encourage a private interest notion of
copyright, patent and trademark.  "Exclusive rights" still works
really well when you want to wade into a situation and convince
people that "intellectual property" isn't even valid in its basic
nature -- by emphasizing that this is the Constitutional language
(and the literal statutory language), I effectively undercut
those who insist on saying "but 'intellectual property' is a term
of art in use by lawyers, law schools, judges and academics" or
"but copyright, patent and trademarks are forms of property in
the law" or all sorts of other arguments that they just
continually trot out, no matter what you say.

I find that saying "this is the constitutional and statutory
language" is an argument that gains purchase much better than
others on their own, such as those talking about the nature of
the policies, which I also do present, having won an opportunity
to do so while having forced people to think about what I have to
say -- somehow the literalism of saying "this is the
constitutional and statutory language" is a real trump card. 
Along with people's general respect for "the word" there's also
the utterly undeniable neutrality and nonbiased-ness of the
point.  Once you show people that there's a nonbiased way of
speaking of the policies, you can get into the substance much
more readily (and obliquely, it shows them the biased-ness of the
term "intellectual property" -- a trick I like is when I can get
people to realize things implicitly, without explicitly stating
them; this is usually a very effective way of convincing people;
somehow saying something is less convincing -- I think things
like this are special cases of the principle of "show, don't
tell").

And even if those on the other side don't admit your point, they
tend to shut up because they know others are listening and will
reach their own conclusions and they know the point is
unassailable and wins many points.

I have (unnoticeably; these things can never be proven) found
people increasingly using the term "exclusive rights" -- and
(consequently!) addressing the separate policy areas in their own
nature! -- in numerous venues where I have pointedly used this
term.  I personally believe that by doing this, I have guided
many important gatherings and discussions in a much more
beneficial direction.  It's something they can keep, an
understanding that lets them *continue* not to use the trendy
term, unlike other, more particular rebuttals.  In these
discussions, natural rights notions are immediately out the
window, and people really do discuss the policy options more
freely and constructively.

But I also almost as often deliberately choose to just use the
individual policy area terms because in public venues it's
important to speak to the particular policy point.  I also have
to do this even when I use the relatively unfamiliar term
"exclusive rights."

For the media, using the particular policy area terms is
tremendously important.  Emphasizing the term "exclusive rights"
isn't really the right play for media, though you might add it to
an article as an interesting detail.  For the media, you can't
work it like a discussion -- you have to put across line, to
delineate positions.

I have just found that "exclusive rights" enables me to transform
discussions.  Even the behavior of those who continue to insist
on using the term "intellectual property" very quickly becomes
self-evidently spurious.


Seth


"Richard M. Stallman" wrote:
> 
> The term "exclusive rights" avoids the bias of the term "intellectual
> property", but shares its confusion.  It focuses attention on the
> _form_ which is common to laws such as copyright, patents, and
> trademarks, and away from their _substance_, in which they are
> completely different.  This is not conducive to clear thinking about
> any one of these laws.
> _______________________________________________
> Upd-discuss mailing list
> Upd-discuss@lists.essential.org
> http://lists.essential.org/mailman/listinfo/upd-discuss

-- 

RIAA is the RISK!  Our NET is P2P!
http://www.nyfairuse.org/action/ftc

DRM is Theft!  We are the Stakeholders!

New Yorkers for Fair Use
http://www.nyfairuse.org

[CC] Counter-copyright: http://realmeasures.dyndns.org/cc

I reserve no rights restricting copying, modification or
distribution of this incidentally recorded communication. 
Original authorship should be attributed reasonably, but only so
far as such an expectation might hold for usual practice in
ordinary social discourse to which one holds no claim of
exclusive rights.