On Wed, Jan 05, 2005 at 01:36:46PM -0800, Michael K. Edwards wrote: > The classical forms of intellectual property -- copyright, patent, > trademark, and trade secrets -- were developed to protect very > different kinds of "intangible assets".
That's a myth, spread by a propaganda campaign run by large corporations over the past few decades. They want people to believe it so that they can claim moral authority for the continued protection of these assets. Before printing was invented, effectively all books were controlled by the church, because the only way to produce them in any quantity was to have monks copy them out. The church therefore controlled the content of all books, and they used this to great political effect (dissenting opinions were not permitted). This was before the separation of church and state. When printing came along in the 15th century, the church was afraid that this loss of control over the creation of books would lead to spreading dissent against them. They pressed for, and got, restrictions in law granting them control over what books were printed. The purpose here was censorship, pure and simple. Over time, the church's political influence was reduced. Governments began to grant permission to other groups to control the printing of books. These were the first publishers. This process culminated in 1710, with the enactment of the Statute of Anne in the UK, marking the first form of copyright as we know it today. It permitted anybody to print anything, with certain restrictions designed to protect the revenue stream of the publishers (essentially the ones we have now, time limit 28 years). It also prohibited the charging of prices "conceived to be too high or unreasonable". No prizes for guessing why that last part was in there (British law at the time was mainly concerned with reacting to observed problems, rather than trying to second guess possible future problems). Copyright was not designed to protect assets. It was designed to take them away. Rights of authors did not enter into it, nor was there any 'trade' of rights between publishers and the people (another popular myth). The purpose of copyright in its modern form was to grant the people the right to copy works, which they did not previously have. Everything since then has been the publishers trying to claw back some part of what they lost. They've been fairly successful, and have mostly regained their position of power. [I've skipped a fair number of details, but those are the significant highlights] Patents follow a fairly similar story; they began as monopolies on a certain trade, prohibiting anybody else from competing with a specified person, this time created by the state rather than the churce, as a method of raising funds. Widespread abuse led to them being locked down in 1624 by the Statute of Monopolies (again in the UK), which was the beginning of the modern patent system. Again, it was to take assets away, not protect them. Trademarks are essentially unrelated. They began as a way of marking some property as yours (think of branding cattle), with prohibitions on altering them introduced as basic anti-theft measures. They then developed into the current system of branding sometime between the 10th and 15th centuries (I forget the details of when and how, but it was started in the UK again - did we invent *all* of this crap?). Trade secrets are a modern (20th century) perversion, but they're also a US perversion. They aren't considered property in Commonwealth countries. Breaking into your competitor's offices and stealing their files is theft, but there's no law against obtaining them via means that would otherwise be legal (except in the US and a few countries who duplicated their insanity). They're probably the only one designed to protect assets. > In the US, the DMCA and UCITA amount to attempts to create a new form > of intellectual property specific to software and digital media. I > happen to think they are very poor public policy in their details. > But I'd prefer a well-thought-out "digital rights" legal formula over > distortions to the existing mechanisms. The way it is now -- stealth > amendments bought by software and media giants, regulatory capture at > the USPTO, DRM arms races, and widespread contempt for the law -- is > no good. That's no surprise, since the system was never designed to cope with this sort of thing. Given its position in history, the intent was probably to continue to introduce new laws to stop this kind of crap as it came up; that was the prevailing approach to legislation at the time. But the political landscape shifted to favour the large corporations, so that never happened. -- .''`. ** Debian GNU/Linux ** | Andrew Suffield : :' : http://www.debian.org/ | `. `' | `- -><- |
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