[DMCA-Activists] Re: [Patents] Washington Times: Internet Patents Divide Industry

[Seth Johnson]

Hartmut Pilch wrote:
> 
> > Seth Johnson wrote:
> >     > "Intellectual property" is not property.
> >
> >     The term could be turned around to be useful.
> >     E.g. one could say that only an exclusion scope that it is so narrow 
> > that
> >     it is attributable to an individual is "intellectual property".
>
> Richard Stallman wrote:
> >
> > The term "intellectual property" encourages overgeneralization, which
> > leads people to choose between a few bad across-the-board alternatives.
> > There is no way to turn the term around to prevent that problem.
> > We have to attack it.
> 
> There are in fact many contexts in which "IPR" should simply be replaced
> by "patents" or "copyright" or whatever is meant.  When companies do
> dishonorable things with patents, it is nowadays standard behavior to hide
> this behind the term "IPR".  Some general concepts are even specifically
> created for the purpose of such hide-and-seek games.  E.g.
> "computer-implemented invention".
> 
> But "intellectual property" is not such an example.  The generalisation
> in this term is needed in many contexts.  We can not chose whether we want
> this concept to exist, we can only chose how to name it.
> 
> The main problem with the term seems to be that "property" has a positive
> connotation.  Just as "monopoly" has a negative connotation, although the
> denotation of both of these words is the same: exclusive control over
> something.
> 
> If fighting the propagandistic effect of the word "intellectual property"
> is our primary goal, then we should perhaps say "intellectual monopoly".
> But that could be silly, because we do not want to launch these emotional
> weapons indiscriminately against everything that is usually lumped
> together as "intellectual property".
> 
> One good alternative which does not convey irrational connotations is
> "exclusion rights".
> 
> German law also has traditional terms such as "law of immaterial goods"
> (Immaterialgueterrecht) or "immaterial assets" (immaterielle
> Vermoegensgueter) which are in many contexts good replacements for "IPR".
> 
> Whatever we chose, we can not prevent people from using this general
> concept preferably in a context where they have some bad specific thing
> (such as software patents) to hide.


"Exclusive rights" is a very good general term.

While you can't stop people from using the term "intellectual property"
because they have something they're trying to pull off by the use of the
term (successfully, I might add), you can correct it when you encounter it. 
This is an essential aspect of affecting the discourse, called "violating
the premises."  "Intellectual property" conveys numerous bogus premises.

We will never reverse the syllogisms that have been allowed to play the last
20-odd years, by tiptoing around them.

Our job is to open up the conversation to the right premises, to move it
forward on a correct basis.

"Exclusive rights" conveys the fact that these are statutory things that
need to take into consideration the social circumstances and the correct
purposes.  The term might seem like it will be unfamiliar to people, but
actually its legal-technical character works to tip people off that some
"vulgar" notions they have might be incorrect.  There's an extent to which
it sounds like the sort of thing that's "worked out" and articulated, rather
than just some sort of absolute rights.

It is certainly true that the legal and other media, lawyers and the
judiciaries have begun using the term.  That's something that is recent, and
that specifically needs correcting.  We will benefit greatly from some
precedent-setting case in which somebody asserts that the term is incorrect,
based on an informed account of the history of the origin of the term, as
well as the judicial precedent prior to the term which refutes its veracity.

But this correcting should also be done continually outside the legal realm.

Seth


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