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I know "exclusive" strikes one that way at first. But really if you think about it, "exclusive" also in a stronger way than you might think, conveys to people that that "excluding" is going on, that it's artificial, that it's being devised legislatively. All of this really is communicated automatically pretty well to listeners when you use the term. The other side of doing this, using the original Constitutional language, is that it lets us (Americans) leapfrog all the bogus notions encouraged by the way exclusive rights policy has been developed over the years: bringing the "stakeholders" together to hash out their differences and write up the law themselves, then having them present that to Congress to sign off on, leaving the public out of the equation and encouraging authors and inventors to get incorrect notions whereby they see these rights as somehow natural. There's a tendency that needs to be avoided, of casting things in terms of small authors versus big publishers -- i.e., the "we need moral rights to fight the publishers" outlook -- when even though one chooses the small guy (I do, anyway) in that dispute, fighting that out on those terms means both sides have some of the same misconceptions. I don't use the term "exclusive rights" because of an impression that the US Constitution is some sort of preferred model. I use the term only to assert a historical register, pointing back to a language that doesn't even prejudge whether the right policy should be called "copyright" or "patents," and a clause that expresses the fast that the public are the chief beneficiaries of exclusive rights. In Europe, you might be able to assert even older historical registers, might discover terms that don't even say "exclusivity." I think community knowledge should be understood by its advocates as intrinsically free, as reflecting the fact that knowledge is like that essentially (this is ineradicable, except by passing laws that make "pirates" of people who parse and process and make "fair use" of information published in expressive works -- laws that outlaw general purpose computers). I don't see legal categories for "community knowledge" as the right thing to do. The real win is just saying the truth: "information is free." It's not that it "wants to" be. It's just a matter of whether we can incentivize people to publish, so the information is available. Seth Martin Hardie wrote:
Seth My one concern with this approach or maybe two is that I am not sure (and I will say more about this during the week as I had a long think, well over 3 expressos actually, about it yesterday) about the suitability of basing any description of such a thing on the US Constitution. Ithink using US Constitutional principles as a starting point creates for many of us as many roblems as its may appear to solve. Secondly, the community knowledge, and that is what I think we are talking about in the end, is not in itself something created by statute but it exists prior to statute and we are merely trying to fit into one of those categories in order to get some cover. The third (yeh I said one point) - "exclusive" troubles me a little. As I said I will get back to ox-en about this US Constitutional stuff soon; I think it is a double edged sword at best. Take Care Martin On Saturday 01 November 2003 09:49, Seth Johnson wrote:I use the term "exclusive rights" when I speak in general terms about these categories. In the States, it reflects the actual Constitutional language, and draws closer to the recognition that these are all statutory "rights" created by legislators for the public benefit. Seth Johnson Martin Hardie wrote:Fwd: Re: [ox-en] the oekonux list has picked up this thread about IP: On Friday 31 October 2003 23:30, Graham Seaman wrote:patents, copyright, and design rights do have something in common - they involve the legal granting of a right of monopoly---------- Forwarded Message ---------- Subject: Re: [ox-en] The term "intellectual property" Date: Saturday 01 November 2003 09:41 From: Martin Hardie <auskadi tvcabo.co.mz> To: list-en oekonux.org, Graham Seaman <graham seul.org> Yes I too sympathise with what rms is trying to do. I think that trying to pose the question from the othe side is a noble exercise, ie using language that describes the thing in a way that capital may not, but Graham's point is right I think. What rms seems to be doing by differentiating beteeen Positive Legal categories may be falling into the same trap as he is trying to avoid by not using the term IP. It's better, I submit, to understand that at their core they all have the factor noted by Graham in common, and then commence your enquiry/re-imagination of the term or concept from that point. In rejecting the term IP you need to reject the lowest common denominator of all its categories, not just hive off one and say we only want to deal with that. To put it another way - my work in part involves thinking about the production of community knowledge in Aboriginal Australia and in FOSS. Raher than trying to "manage difference" by creating different legal categories I am wondering if there is not a global model of mainating the integirty of all these community projects across the board - i.e. a global solution based upon the common factor of community knowledge production rather than the exchange of a commodity/form of IP that the various locales of community knowledge produce. I am not sure if that helps anyone here deal witht the topic, but to repeat I think what rms proposes - searching for a new term is a good idea, ie rejecting the characterisation as property; but as Graham says (or as I read him) you can't divide and rule between different forms of IP because at their core they have the same logic/raison d'etre. Thanks Martin On Friday 31 October 2003 23:30, Graham Seaman wrote:patents, copyright, and design rights do have something in common - they involve the legal granting of a right of monopoly-- http://openflows.org/~auskadi/ "Mind you, I am not asking you to bear witness to what you believe false, which would be a sin, but to testify falsely to what you believe true - which is a virtuous act because it compensates for lack of proof of something that certainly exists or happened."Bishop Otto to Baudolino ------------------------------------------------------- -- http://openflows.org/~auskadi/ "Mind you, I am not asking you to bear witness to what you believe false, which would be a sin, but to testify falsely to what you believe true - which is a virtuous act because it compensates for lack of proof of something that certainly exists or happened."Bishop Otto to Baudolino _______________________________________________ prep-l mailing list prep-l geneva03.org http://lists.emdash.org/mailman/listinfo/prep-l-- :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: http://openflows.org/~auskadi/ "Mind you, I am not asking you to bear witness to what you believe false, which would be a sin, but to testify falsely to what you believe true - which is a virtuous act because it compensates for lack of proof of something that certainly exists or happened."Bishop Otto to Baudolino
-- DRM is Theft! We are the Stakeholders! New Yorkers for Fair Use http://www.nyfairuse.org [CC] Counter-copyright: http://realmeasures.dyndns.org/cc I reserve no rights restricting copying, modification or distribution of this incidentally recorded communication. Original authorship should be attributed reasonably, but only so far as such an expectation might hold for usual practice in ordinary social discourse to which one holds no claim of exclusive rights. _______________________ http://www.oekonux.org/
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