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``Intellectual property''
Publishers and lawyers like to describe copyright as ``intellectual property''---a term that also includes patents, trademarks, and other more obscure areas of law. These laws have so little in common, and differ so much, that it is ill-advised to generalize about them. It is best to talk specifically about ``copyright,'' or about ``patents,'' or about ``trademarks.''

The term ``intellectual property'' carries a hidden assumption---that the way to think about all these disparate issues is based on an analogy with physical objects, and our ideas of physical property.

When it comes to copying, this analogy disregards the crucial difference between material objects and information: information can be copied and shared almost effortlessly, while material objects can't be. Basing your thinking on this analogy is tantamount to ignoring that difference. (Even the US legal system does not entirely accept the analogy, since it does not treat copyrights or patents like physical object property rights.)

If you don't want to limit yourself to this way of thinking, it is best to avoid using the term ``intellectual property'' in your words and thoughts.

``Intellectual property'' is also an unwise generalization. The term is a catch-all that lumps together several disparate legal systems, including copyright, patents, trademarks, and others, which have very little in common. These systems of law originated separately, cover different activities, operate in different ways, and raise different public policy issues. If you learn a fact about copyright law, you would do well to assume it does not apply to patent law, since that is almost always so.

Since these laws are so different, the term ``intellectual property'' is an invitation to simplistic thinking. It leads people to focus on the meager common aspect of these disparate laws, which is that they establish monopolies that can be bought and sold, and ignore their substance--the different restrictions they place on the public and the different consequences that result. At that broad level, you can't even see the specific public policy issues raised by copyright law, or the different issues raised by patent law, or any of the others. Thus, any opinion about ``intellectual property'' is almost surely foolish.

If you want to think clearly about the issues raised by patents, copyrights and trademarks, or even learn what these laws require, the first step is to forget that you ever heard the term ``intellectual property'' and treat them as unrelated subjects. To give clear information and encourage clear thinking, never speak or write about ``intellectual property''; instead, present the topic as copyright, patents, or whichever specific law you are discussing.

According to Professor Mark Lemley of the University of Texas Law School, the widespread use of term "intellectual property" is a recent fad, arising from the 1967 founding of the World Intellectual Property Organization. (See footnote 123 in his March 1997 book review, in the Texas Law Review, of Romantic Authorship and the Rhetoric of Property by James Boyle.) WIPO represents the interests of the holders of copyrights, patents and trademarks, and lobbies governments to increase their power. One WIPO treaty follows the lines of the Digital Millennium Copyright Act, which has been used to censor useful free software packages in the US. See http://www.wipout.net/ for a counter-WIPO campaign.

The hypocrisy of calling these powers "rights" is starting to make WIPO embarassed.

If you recorded the Simpsons, removed the commercials, put in your own ads, and rebroadcast it, is it theft?

[Let's assume] you owned a furniture store and wanted to sell Lazyboy chairs, but you didn't want to pay for them. So you made your own chair, that looks exactly the same, and then put a lazyboy logo on it. [You then] sold it for next to nothing; is [this] theft?

The fundamental problem with the thinking comes about because of the nature of what we're dealing with. Information is trivially reproduced, even when spoken. I suggest you study the history of copyright, to fully understand the nature of the laws. Today, we have a society where such information can be reproduced for (effectively) free. It's my personal opinion that Copyright is a doomed concept. However, we have not come up with a suitable reward yet for authorship to promote the science and arts that is not Copyright. Until we do, we will be stuck with this system that so obviously maps so poorly to reality.

There are certainly cases where the line between copyright infringement and theft is very blurred. For instance, if one breaks into a computer system and makes copies of information that were never intended to be made public. One has obviously violated copyright in that case, since U.S. law regards all authorship as copyrighted. Is it theft? In that case, I don't know; just as "breaking and entering" is considered "breaking and entering" (vandalism and trespass, if you prefer), if you don't steal anything for entering, but instead copy important documents, you've not stolen the documents, but made copies in violation of the wishes and reasonable expectation of the holder. The company or individual never intended to release the information to the public for profit (the point of copyright), the information was reasonably expected to remain private, and consent for this action was implicitly denied. In that regard, information violation seems more analogous to rape than theft: one has expressly violated the wishes of the holder of the information, taken nothing from them, but used them in a way inconsistent with their will. Copyright infringement on released goods, however, is similar to using a hooker for her intended purpose, but refusing to pay her. One has no implied contract, the other does. The penalties for rape are spelled out in the law, and include government-sanctioned prison time. The penalties for not paying your prostitute are the same as for not paying any service person: if your bill is not paid, you are sent to a collection agency, which then may take you to court to seek damages. It is (often) not treated the same as theft, since the "goods" (a service) are intangible, you have not deprived anyone of anything except time invested (which has value, but is again intangible and cannot be stolen) and potential profits. In some cases, particularly where the one infringed upon believes the intent was to defraud (once again, fraud law, not theft), they may seek criminal remedies. Most don't, though, because by so doing they are depriving themselves of a potential customer, getting bad press, and preventing the infringer from quickly paying the damages by depriving him/her of income.

Note that the paragraph above is entirely my opinion, and not really part of my initial refutation. I simply think that most software companies and authors would do well to remember that they simply sell their time for money. Their "product" is a service, and our current model of copyright attempts to treat information as a tangible good, which it is not. Those prepared to acknowledge this fact (as Microsoft seems to be doing with their license renewal services) will probably do OK as the economy transforms to take advantage of new realities. Those who insist on treating intangible as tangible will eventually go out of business as realists (the customers) begin to treat it as the intangible, inherently value-less thing it is.

A few links for you to peruse:

• This is far more of a rant on why copyright is bad law than the history of copyright, but still worth a read.
• A useful timeline and overview of U.S. copyright law. It's useful to note that copyright was initially designed to prevent authors from attempting to enforce their rights to a particular piece of work interminably. Copyright was made to allow works to enter the public domain, not prevent them from doing so. A very, very important distinction we'd do well to remember in this age of 100+ year copyrights.
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  Fundamentally, it's a thorny issue with a whole lot of ramifications. Those who attempt to cast copyright infringement as a black and white case of theft are intentionally misleading you as to what is going on. It is its own legal domain with its own remedies and penalties, entirely aside from traditional laws regarding property theft. There is no such thing as "intellectual property": there are patents, trademarks, and copyrights which give rights to works based upon a well-established but sorely broken legal framework.

Great, I write a piece of speculative fiction about this, and it's already outdated and not nearly extreme enough...

I am not certain that neo-liberal international fora will agree with the Congressman's position. MS will say "we cannot sell to the public sector in Peru w/o having our IP expropriated" and I wouldn't be shocked if a WTO or FTAA tribunal was sympathetic.

I would be extremely surprised if MS isn't talking to USTR to apply pressure. MS is definitely not shy talking to USTR (think about US pressure on China to stop piracy) or about trying to get other countries laws changed (a la Sri Lanka).

The recent essay contest sponsored by Wipout drove this point home: the license cost for a single seat of, say, Visual Studio is as much as sixty percent of the per capita income of your average Sri Lankan. There's no concievable way that people from those parts of the world can afford to put the software on very many machines legally. The options are to pirate or to do without, and doing without doesn't do much for their software industry, or indeed any industry.

I think that the link at the bottom takes care of the visually impared problem, or at least addresses it.

This site looks best at 800x600. Netscape users please click here

Under lynx, of course, all you see is an vast landscape of clickable (and un-ALT tagged) GIF's.

They may be all for freedom of expression, but they haven't yet mastered freedom of browsing!

I resigned over this very issue. I submitted two essays to the Wipout competition on the matter: The Intellectual Slave, and Current Thoughts on Intellectual Property. The first is the more relevant of the two: the only detail that the second adds is the fact that I did resign.

I resigned over this very issue. I submitted two essays to the Wipout competition on the matter: The Intellectual Slave, and Current Thoughts on Intellectual Property. The first is the more relevant of the two: the only detail that the second adds is the fact that I did resign.

The Great Rogerborgio will use his mysterious powers of prediction to determine what will happen in this debate:

• Much confusion between strictly limited copyright on specific content (good), unlimited time copyright (bad), the protection of ideas (very bad) or even the protection of markets (pronounced "corruption").
• Kindergarten comments about how you need to pay for content, or you won't get good content. Flick through your 100 cable channels. Find the one channel with quality original (first showing) content. Explain why you are paying for 100 channels at that moment, or why the good content should only get 1% of your money. You're not paying for content, you're paying for access to 100 channels running commercials intersperced with "content breaks" to keep your eyes on the screen. The model is already broken. Advertisers or marketing execs decide how much money we're going to give them, then the content producers churn out exactly enough content to convince us that we've got our money's worth.
• Much ranting about fair use by people who have never so much as read a brief overview of it, and who probably don't even know how copyright actually works.
• "Write your elected representatives" / "Don't write your elected representatives, they're all corporate whores, do XYZ instead" / "Stop writing this on here and go do something useful" / "No, you go do something useful" / "No, you go do something useful" (...)
• Much sound and fury about IP in general, none of which will translate into WIPOUT essays.

Flame away, but far better if you get over to WIPOUT and actually write it down where someone other than the /. regulars might read it.

The Great Rogerborgio will use his mysterious powers of prediction to determine what will happen in this debate:

• Much confusion between strictly limited copyright on specific content (good), unlimited time copyright (bad), the protection of ideas (very bad) or even the protection of markets (pronounced "corruption").
• Kindergarten comments about how you need to pay for content, or you won't get good content. Flick through your 100 cable channels. Find the one channel with quality original (first showing) content. Explain why you are paying for 100 channels at that moment, or why the good content should only get 1% of your money. You're not paying for content, you're paying for access to 100 channels running commercials intersperced with "content breaks" to keep your eyes on the screen. The model is already broken. Advertisers or marketing execs decide how much money we're going to give them, then the content producers churn out exactly enough content to convince us that we've got our money's worth.
• Much ranting about fair use by people who have never so much as read a brief overview of it, and who probably don't even know how copyright actually works.
• "Write your elected representatives" / "Don't write your elected representatives, they're all corporate whores, do XYZ instead" / "Stop writing this on here and go do something useful" / "No, you go do something useful" / "No, you go do something useful" (...)
• Much sound and fury about IP in general, none of which will translate into WIPOUT essays.

Flame away, but far better if you get over to WIPOUT and actually write it down where someone other than the /. regulars might read it.

For the benefit of the hordes who will post "I thought satire/fair use yadda yadda yadda", don't speculate, go and read about it.

There is a specific codification of fair use for parody or satire, but satire alone is not automatically enough to protect you.

The factors relevant to this case are:

• Commercial/non commercial. Goldmember is a commercial production. This counts against it.
• Nature of work. Goldmember is "creative" rather than "informational". This counts against it.
• Amount of copyrighted work used. Probably just a small member. This counts for it.
• Effect on potential market or value of the copyrighted work. Minimal, I'd have thought. Goldmember won't compete directly with Goldfinger, nor will it cheapen a franchise that includes characters like Pussy Galore and Dr Goodhead. This counts for it.

Prima facia, it's about 50-50. Mike is trading on someone else's idea for profit, but in a small way compared to his original content. Using the character in the title was rather asking for it though. Mel Brooks got away with that, and with significant use of Star Wars material in Spaceballs, because he also parodied at least another 21 sources, and used his borrowed characters to perform a fair amount of critical commentary ("moichandising, moichandising").

Remember that but fair use is an exception to the law, and as Mike is clear about where he's taking his material from, it really is up to him to prove his innocence. He shouldn't have much trouble doing so, and this is likely just a well timed gambit to land a quick out of court settlement, one that the Goldmember people really should have anticipated and prepared for. But heck, it lands them free publicity, so the only losers here are a few PR executives.

(Incidentally, I agree with other posters that this article really is -1 Offtopic. If we really care IP issues, then why not run my submission on how all the sound and fury about IP on Slashdot has failed to translate into actual support for the WIPOUT essay competition. For gods' sake, all you have to do is CC your usual Slashdot rants to them!).

they need you

wipout.net

Actually, I know that it was, because I wrote it for the Wipout competition, which is spookily enough another /. story of the day.

I wrote this story in early September, pre-11th. It postulates a society where knowledge of crypto is so strongly controlled that... well, read the story.

At the time that I wrote it, it was science fiction. It now looks like I was way too conservative, and events are already on the way towards overtaking my predictions. Hey ho.

Actually, I know that it was, because I wrote it for the Wipout competition, which is spookily enough another /. story of the day.

I wrote this story in early September, pre-11th. It postulates a society where knowledge of crypto is so strongly controlled that... well, read the story.

At the time that I wrote it, it was science fiction. It now looks like I was way too conservative, and events are already on the way towards overtaking my predictions. Hey ho.

Actually, I know that it was, because I wrote it for the Wipout competition, which is spookily enough another /. story of the day.

I wrote this story in early September, pre-11th. It postulates a society where knowledge of crypto is so strongly controlled that... well, read the story.

At the time that I wrote it, it was science fiction. It now looks like I was way too conservative, and events are already on the way towards overtaking my predictions. Hey ho.

Heh, I submitted this essay in early September, on the theme of mnndatory licensing of encryption know-how. At the time, it was science fiction. In the light of the hacker==terrorist backlash, and the SSSCA, it's already looking out of date and not nearly extreme enough. Go figure.