Why Do We Call It Intellectual Property?
By Erik Schmidt on 2.3.08
I attended the Internet Collaboration: Charting the Waters of Virtual Worlds, Web 2.0, and the GPL symposium last Friday. I loved it. But I am biased, because I’m very interested in social networks, virtual worlds, and F/OSS (Free and Open Source Software), all of which were covered at the event.
In-house counsel from Facebook, Linden Lab, and Sun Microsystems were on hand. Academics who had spent time researching the legal ramifications of emerging Internet social frameworks delivered findings. Judge Alex Kozinski of the 9th Circuit Court of Appeals delivered a speech on privacy, which served as a reminder that you don’t have to be a Luddite to be concerned about the loss of privacy new forms of online interaction can bring.
Richard Stallman, founder of the Free Software Foundation, and creator of the GNU Public License (GPL) was also present. Stallman is known for his outspoken political beliefs and his attention to semantics. He reiterated his “It’s GNU/Linux, not Linux” mantra, and fired a few salvoes into the panel moderator for calling him the “father of the Open Source movement.” He also took issue with “intellectual property,” a term he considers propagandistic and misleading.
Stallman’s argument is that copyright, patents, trademark, and trade secret laws are quite different from each other. Copyright and patent law both spring from the same clause in the Constitution, while unfair competition (trademark and trade secrets) derive from common law and statute. Perhaps Stallman is concerned that use of the term “intellectual property” is one of the reasons we now have sui generis protection for boat hull designs and plants. The more broadly the term is used, the more broadly the right of legal protection is interpreted, and the more likely courts are to expand the scope of property rights in the expression of ideas. In a conversation after the panel discussion, he forwarded the notion that the term also distorts public understanding of the separate concepts involved.
If the term “intellectual property” is dangerously sloppy, are we only to refer to copyright, patent, and unfair competition law as separate disciplines? Is there a better framework for bringing some or all of these disciplines under one roof? If Stallman is incorrect, is convenience the best rationale for sticking all of these branches on one tree, or is there some more fundamental rationale for dismissing Stallman’s critique?
2.3.08 • Internet Policy/Net Law
4 responses to Why Do We Call It Intellectual Property?
2.5.08 • Eric
Sure, we’re sloppy in using the term. But I don’t think you can blame use of the “IP” label for the steady expansion of IP rights. The public already has a distorted conception of what can be protected. How many times have you heard of a story where someone sees something on TV, thinks, “hey, I thought of that first,” and then tries to get something for his idea because he feels a sense of ownership and entitlement to that idea? Corporations, too, think that their rights extend to controlling all use and dissemination of content they’ve created, even to the point of stifling free speech.
I’m particularly worried about trademark rights, especially the federal cause of action for dilution. Trademarks last forever, and given how broadly one interprets Lanham Act 43(c) (how weakly you interpret a “famous” mark and whether you relax the requirement that the accused mark be identical), it could potentially swallow copyright.
This debate is not new. An interesting place to start is Gordon’s Restitutionary Impulse, http://links.jstor.org/sici?sici=0042-6601(199202)78%3A1%3C149%3AOOIIPA%3E2.0.CO%3B2-3
2.5.08 • Erik Schmidt
Eric,
Thanks for the comment. You’re certainly right in noting that the debate isn’t new. But in Silicon Valley you don’t come across many people who are even aware that there are those who oppose ongoing expansion of patent, trademark, and copyright protections. It’s an assumed part of the business culture here.
Here’s a clean link to Wendy J. Gordon’s 1992 piece, On Owning Information: Intellectual Property and the Restitutionary Impulse.
2.7.08 • Taran Rampersad
Having discussed this with Stallman himself via correspondence, and not necessarily agreeing 100%, I would like to point something out. When Eric writes:
“But I don’t think you can blame use of the “IP” label for the steady expansion of IP rights.”
it doesn’t seem the same to me as if he had written:
“But I don’t think you can blame use of the “IP” label for the steady expansion of Copyright, Patent and Trademark rights.”
That said, I agree to a point with Eric. However, no one mentions Trade Secrets, which are really a very important part of any form of creation of the mind that could be called ‘property’. The difference is that it is not ‘public’.
I’ll offer that explaining the rights separately might make more people aware of these things. I often run into people who think, for example, that parts of patent and copyrights are similar. Trademarks are pretty clearcut for people, but patents and copyrights are a serious cause of confusion for a lot of people - including children being prosecuted by the RIAA.
I think there are few cases where ‘IP’ is an appropriate phrase. If you are talking about patents - talk about patents, etc. In an abstract sense, ‘intellectual property’ makes sense. But the Laws do not fit with that abstract sense very well, and that is probably the biggest rub.
2.21.08 • Erik
Over at Public Knowledge, Christopher Sprigman addresses the question in response to my query: http://www.publicknowledge.org/node/1404#comment-998