On 8/3/05, Michael K. Edwards <[EMAIL PROTECTED]> wrote: > > If we can't even manage this issue in the context of a single > > paragraph, what hope do we have of codifying protection > > for newly thought up instances of this issue, in law? > > That would be the reason that the integrity and competence of judges > matters. Your Pyrrhonist (I just learned that nifty word) jump from > imperfect certainty to quietism does not persuade me.
Nevertheless, intellectual property is fundamentally different from real property, and the differences, in the general case, make it impossible to determine the boundaries of intellectual property. Establishing property rights on intellectual property is like establishing property rights on shadows. Shadows very definitely exist, and you can write laws about them, but they shift and move depending on circumstances. And note that I've never claimed that intellectual property cannot be the subject of law. I've instead been claiming that such law can never equal the laws for real property. There's simply too much uncertainty about the domain for that to work. > > Answer: codification is easy -- it's easy to put words down on > > paper and call them law -- but it's unlikely that this codification > > will ever be meaningful in a general context. > > > > Thus, no one really wants to take copyright issues to court, > > because fundamentally the laws don't make sense. When > > taken at face value, the concepts are simple enough, but > > the protected works are not real property. As you point out, > > they're not even chattels. > > If you think no one takes copyright issues to court, then you have a > very different perspective on the literature than I do. Copyright law > mostly makes sense to me, and I rarely feel that I would have decided > a recent appellate case differently (though I favor Corey Rusk over > Rano and am not that fond of Eldred v. Ashcroft). I do not think this > can be attributed to a tendency on my part to accept authority. :-) I said no one wants to take these issues to court, not that they are not taken to court. But I wasn't conveying my thoughts properly -- what I meant to point out that letting the court resolve copyright issues is extremely unpopular -- it's just not wise in most circumstances. > > (Though I challenge you to show me any cases of real > > property which does not stake out a physical chunk > > of the planet. (I'm aware that you can, at least in some > > cases, move dirt from one location to another, without > > changing the legal definition of the property boundaries. > > But my point is: you can determine those property boundaries > > because of physical properties of matter, such as the fact > > that mass is conserved, which do not apply in the realm of > > intellectual property.)) > > You certainly have a point that the boundaries of a copyright (or > patent or trademark) holder's rights are imperfectly defined; but if > you have ever owned rural property you may be aware that the same is > often true of land, although survey-grade (centimeter-accurate) GPS > helps. :-) Modern copyright is an imperfect system, but it sure > beats hell out of what preceded it. In those cases, the problem is not one of physics, but one of choice. The properties could be surveyed more precisely, if someone cared enough to do so. With intellectual property, there is nothing to be surveyed. > > As for xemacs and emacs: RMS has not accepted xemacs > > code into emacs because the xemacs developers would not, > > or could not, transfer copyright ownership on that code to > > the FSF. > > Which has little to do with (US) copyright law, given precedents such > as Aalmuhammed v. Lee;... Compare: http://www.law.cornell.edu/copyright/cases/202_F3d_1227.htm "Aalmuhammed never had a written contract..." with http://www.gnu.org/prep/maintain/html_node/Copyright-Papers.html#Copyright-Papers "Before incorporating significant changes, make sure that the person who wrote the changes has signed copyright papers and that the Free Software Foundation has received and signed them." -- Raul
