[From the extended “Re: [p2p-research] Repurposing Profit for User Freedom” available in P2P Research list’s February archives]

[Last Updated 2/22/10. This is the last update, since we seem to have reached the point of simply restating our positions. And anyway, trying to nest all these layers of comments is a pain in the ass.]

KEVIN CARSON: [The term “intellectual property”] fits patents because patents restrict one’s right to configure material elements in a particular pattern.

RICHARD STALLMAN: That description of patents will mislead, because the patent is not defined in terms of any physical pattern. It is defined in terms of an idea. Whatever implements the idea(s) stated in the patent claims is forbidden.

KEVIN CARSON: So it’s a restriction on the implementation of an idea in physical reality, using the implementer’s own tangible property, based on the idea “owner’s” monopoly.

RICHARD STALLMAN: That’s true.

KEVIN CARSON: The ownership of an idea to the extent of controlling replication and interfering with tangible property rights is the patent’s area of commonality with other forms of IP.

RICHARD STALLMAN: It is still not vague enough to fit all these dozen or more laws. For instance, trademark law only concerns how products are marketed, not what they do. In order to fit them all, you have to make this “area of commonality” extremely abstract.

Experts have succeeded in doing that, but why bother? It is the details of each law that make it good or bad. Focusing on this abstract “area of commonality” is just a distraction from everything that matters. Thus, the deep harm in the term “intellectual property” is that it leads people to focus on an abstract generalization instead of the concrete requirements and effects of patent law, the concrete requirements and effects of copyright law, and the concrete requirements and effects of a dozen other laws.

KEVIN CARSON: See below.

KEVIN CARSON: And the main area of trademark law it doesn’t fit is the one area with some arguably legitimate basis (preventing outright identity theft or fraud).

RICHARD STALLMAN: Enabling buyers to tell what they are buying is the nominal purpose of trademark law. It covers how things are marketed, not what they are.

KEVIN CARSON: Key word “nominal.” It also prohibits marketing identical products minus the trademark or with an anti-trademark.

RICHARD STALLMAN: I am not sure what you mean by “identical”. Do you mean, same logo on the side of the glass? Identical packaging? Same shape or color of the bottle? That is not the product, that is how it is marketed. So I stand by what I said.

KEVIN CARSON: I may be wrong about the effect of trademark law in constraining freedom of physical production. If it’s only patent law, and not trademark law, that makes it illegal to sell sneakers identical to Nike’s (I mean identical in the sense that the shoes are physically identical in design and materials, but minus the Swoosh), then I stand corrected.

RICHARD STALLMAN: I don’t know whether the precise form and coloring of a shoe is covered by trademark law. It would be interesting to find out for certain. But I am sure that you could make a sneaker that is very similar in structure and manufacturing that would not infringe the trademark.

KEVIN CARSON: Thanks for the clarification. I wonder if it would be possible to make a shoe with identical structure and materials, and specifically market it as an anti-Nike at (say) 25% the price.

KEVIN CARSON: Ownership of trademark prevents job-shop owners in Asia from marketing goods identical to those they produce for Western TNCs, minus the 400% brand name markup, and with the original logo in a circle-and-slashbar (which would obviously create no genuine misapprehension as to the producer’s identity).

RICHARD STALLMAN: You are grasping at the meager shreds of commonality among these laws, but why try? Whatever commonality you might find is irrelevant to understanding what any of these laws does or judging whether it is good or bad.

KEVIN CARSON: I guess we’ll have to agree to disagree on this. See below.

KEVIN CARSON: I like to use IP in the converse way: turning the enemy’s self-description into a pejorative (“decuperation”?).

RICHARD STALLMAN: These unrelated laws do totally different things. To oppose them all is a snap judgment.

KEVIN CARSON: They all create artificial scarcity by restricting people’s freedom to replicate/implement an idea/information/pattern in the material realm.

RICHARD STALLMAN: Not all of them. Trademarks don’t create an artificial scarcity of anything that matters. (Is a scarcity of images of Mickey Mouse a problem for society? I don’t think so.)

KEVIN CARSON: I think there’s some harm to society, even if relatively minimal, in restricting mashup use of imagery (all the trademark “dilution” crap).

RICHARD STALLMAN: A logo is an image, not an idea.

KEVIN CARSON: I’m using “idea” in a sense of “pattern of information,” which includes images.

RICHARD STALLMAN: A definition is not very helpful if it gives the terms a nonstandard meaning. However, the worse problem is that you have stated a criterion so broad that it does not say much.

RICHARD STALLMAN: And trademark law only concerns marketing, not the contents of artistic works. So trademark law does not involve “owning an idea”.

Neither does copyright law. Copyright law explicitly excludes ideas.

To find a generalization to cover all these laws (and a dozen more) is not going to be easy. You will have to drop the “owning an idea” approach, and find another.

You might be able to make it work — I once saw a definition which was written by experts and took several lines — but it serves no useful purpose. These laws are very different from each other. What they have in common is so meager and abstract that it is not important. To generalize about them is a bad habit, so why struggle to continue it.

If we want to think about good policies, we have to think at the level of specific laws.

KEVIN CARSON: I guess our mileage just differs. For some reason, the whole idea that ideas/ patterns of information can be owned just seems to click intuitively as the misconceived idea at the root of all ideas of IP, and I feel driven to combat them by attacking that root assumption. But again, “let a thousand flowers bloom” and all that.

RICHARD STALLMAN: That is a simplistic blanket position. One of the drawbacks of the term “intellectual property” is that it suggests choosing among some simplistic blanket positions.

KEVIN CARSON: It still falls under the heading of ownership of an idea. IMO trademark law is only valid to the extent that it prohibits outright fraud or identity theft, in cases where there really is an attempt to pass one’s product off as that of another company and there’s a genuine risk of confusion. That would rule out the vast majority of trademark litigation in which it’s used for bullying, pure and simple.

There’s an important tradition of defacing trademarks as a form of Alinsky’s political jiujitsu, turning the trademark’s strength around and using it against a symbolic corporate target.

RICHARD STALLMAN: I am not quite sure what this means in concrete terms. Could you give me a concrete example of something like this which is prohibited by trademark law?

KEVIN CARSON: Well, I’m not sure myself how much of the “political jiujitsu” I describe is prohibited by the letter of trademark law, and how much of it is simply de facto prohibited by the willingness of corporations to use SLAPP lawsuits as a weapon even in cases where the courts would probably rule against them, simply because the defendant doesn’t have deep enough pockets to fight the issue.

But what I’m thinking of is the kinds of parody uses of trademarked corporate imagery, the cultural monkey wrenching, that Naomi Klein describes in No Logo.

RICHARD STALLMAN: I thought that lots of that still goes on. We do it to Microsoft.

KEVIN CARSON: If opposing them is a snap judgment, it’s one I’ve formed over many years.

RICHARD STALLMAN: I retract saying its was a snap judgment. Please forgive me. I should have said, “an overgeneralization, based on giving an abstract point more importance than practical effects.”

RICHARD STALLMAN: The term “intellectual property” encourages people to focus on the abstract little they have in common. Further, it encourages people to consider this abstract little, rather than on what really matters: the effects of each law. This is how that term skews one’s thinking.

KEVIN CARSON: The term “intellectual property” points to a common fallacy used to justify all its different forms: ownership of ideas, patterns, and information. My goal is to encourage people to consider the wrongness of the ownership of ideas and to reject “intellectual property” in all its forms. “Intellectual property” points to the common fallacy that the intellect can be property, and thereby lays out a framework for attacking it on the ground that intellect cannot be property.

RICHARD STALLMAN: Historically, these laws were established for various specific reasons. It is the term “intellectual property” that encourages people to believe in a single, abstract invalid justification for them. I agree we should reject this supposed justification. If we want our rejection to have influence, we should reject the term”intellectual property” that spreads and encourages that supposed justification.

KEVIN CARSON: IMO it’s useful to strike at the root.

RICHARD STALLMAN: The laws never had a common root. They are not based on any common idea. They are totally different.

KEVIN CARSON: But I oppose them even as separate issues, so I find some value in taking the falsification as a handy target presented to me by the enemy.

RICHARD STALLMAN: The term “IP” was chosen to falsify their history, to invent a fictional common root for them, which misleads people about all of them. The way to strike at this falsificatoin is to reject the term “intellectual property”, and explain that these laws are separate issues.

KEVIN CARSON: If the advocacy of IP is based on the assertion of a general principle that ideas can be owned, it’s useful to attack the core ideological principle behind such advocacy. It’s useful to make a case that ideas cannot be owned, and that the rationale behind such ownership claims, in all their forms, is therefore invalid. As you put it in the GNU Manifesto, “‘Control over the use of one’s ideas’ really constitutes control over other people’s lives…”

Advocates of property in ideas have created the term “intellectual property” as a commonality to serve them as a weapon, but in so doing they’ve also made it into a single, almighty big target. IMO it would be a mistake not to take advantage of it.

But IMO all this just reflects a difference in opinion over strategic approach. “Let a hundred flowers bloom,” and all that.

RICHARD STALLMAN: Rejecting that general supposed justification does not mean that all these laws are bad. Rather, it means we judge each one specifically based on other criteria. Some of these laws are good, at least in part, for the same specific reasons that motivated them in the first place.

KEVIN CARSON: Which of them do you consider good, and why?

RICHARD STALLMAN: Copyright law for works of art and opinion may beneficial if some of the restrictions of today’s copyright law are eased.

Patent law may be beneficial outside of certain specific fields where it causes specific problems. These specific fields include software, agricultural plants and animals grown for food, and medicine in poor countries.

Trademark law seems mostly ok to me, but I am interested to see specific information about the abuses you mentioned regarding Alinsky-style logo manipulation.

KEVIN CARSON: I guess we disagree on this. I consider copyrights and patents to be universally illegitimate, and trademarks to be illegitimate beyond prohibitions on outright fraud or identity theft.

RICHARD STALLMAN: I think we should to judge each of these laws based on its effects. And each has different effects.

KEVIN CARSON: Each has the effect of creating artificial scarcity, and IMO artificial scarcity resulting from artificial property rights is the central evil of corporate capitalism.