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

[Seth Johnson]

Seth Johnson wrote:
> 
> Okay, so we need to make this part of the argument in a prominent case.
> 
> In the meantime, let's clean house outside the courts . . .


Wait --

I didn't read what you said closely.

Exclusive control over something under the term property is different from
the idea of having various specified exclusive rights.  You can change what
those exclusive rights are in response to changing circumstances.  In
America, we have done this numerous times -- every time an established
industry confronts a disruptive technology (think radio, player pianos,
movies, phonograms) -- then the decision is eventually made to rejigger what
the rights are, for instance through compulsory licensing.  Exclusive rights
are not things that inhere in the work, or attributes of "property."

(Compulsory licensing has actually usually been the outcome for the sorts of
technology we've dealt with before computers and the internet, largely
because it works as an effective way to gloss over the basic questions
raised by new technologies -- 1] can producers of technologies that disrupt
exclusive rights go ahead and sell those technologies? and 2] to what extent
do the stakeholders in the disrupted fields have to let them?  Methinks that
with digital computers and the internet, we will need to answer these
questions much more directly.)

I would be very interested in when and under what circumstances your
historical moment arose wherein the term "Intellectual Property" came into
use in Germany as a counterpoint to "Industrial Property."

I am also thinking that you're translating a German term that might have a
complexity that the term "property" doesn't have in English.  Or that German
culture and legal tradition have a more complex notion of what your
correlative term for "property" means.

But then what I'm driving at is that in the English vernacular, it might be
best not to translate into the English term "property," even though this is
the closest analogue for the German term.

It's still best to use "exclusive rights" and the general term.

Seth Johnson


> Hartmut Pilch wrote:
> >
> > > 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.
> >
> > That is quite easy.
> >
> > The term "exclusion rights" (Ausschlussrechte) and "law of immaterial
> > goods" (Immaterialgueterrecht) are both firmly established, at least in
> > german and some other european traditions, whereas the term "IP", as
> > presently used, is new and aberrant from its original uses.  In
> > particular, it is wrong to subsume patents and trademarks under
> > "intellectual property", and even using it to denote copyright has the
> > drawback that value connotations are conveyed (same as would be the case
> > if we called it "intellectual monopoly", just positive instead of
> > negative).  Therefore the term "IP" as used to day can only be said to be
> > a propaganda term, not suitable for serious debate.
> >
> > "Intellectual Property" came into use only as an antonym to "Industrial
> > Property", e.g. for the purpose of creating a dichotomy between copyright
> > (related to individual intellect, somewhat closer to natural law) and
> > patents etc (related to the industrial sphere, not interfering with civil
> > life, subject to utility considerations only).

-- 

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