Re: [OS:N:] RE: Open Source as a form of Anarcho-Communism?

[Brendan Scott <bscott gtlaw com au>]

Paul Fitz wrote:
> Hi,
>
> Firstly, sorry about the bad netiquette I had no intention of disrupting the
> mailing list protocols.
>
> Thanks everyone for the great sharing of ideas/feedback, some interesting
> views, particularly on the actual existence of intellectual property.
>
> Brendan,
>
> Fortunately or unfortunately (depending on your viewpoint) the legal
> concepts of copyright and intellectual property do exist in the United
> States and most liberal democracies.
>
> The fact that the supreme court has denied the existence of copyright in the
> US is very interesting, and slightly puzzling because, for all intents and
> purposes, it is still a valid legal notion in the US (IE. I can be
> prosecuted by sony for dupliating digital information owned by them).

It's only puzzling because you don't understand the concepts involved.  What I said was that there is no such thing as 
copyright at *common law* in the US. Legislatures around the world have passed copyright Acts by which they have removed 
rights from citizens (ie the right to copy) and vested them in individuals.  That doesn't create "property" any more 
than liquor licensing laws give property in liquor licenses to hoteliers (copyright laws place a blanket ban on the 
making of reproductions without the license of the copyright holder, liquor licensing laws place a blanket ban on the 
sale of alchohol without a license from the government).

To put it another way, if all legislation was repealed tomorrow, it would still be illegal to take a hammer from someone 
with the intention of permanently depriving them of it because that's stealing at common law. It would *not* be illegal 
to make a million copies of each software package in the world.  The reason is that common law does not recognize that 
as a crime. Legislation takes that right to copy away from (almost) everyone and grants it, by way of a monopoly, in an 
individual.

> I was just working under the assumption that intellectual property is a
> by-product of the lockean notions of the protection of individual rights to
> own personal property.  The entire notion of liberalism/capitalism is to
> protect those individual rights.

Locke talks about property through first appropriation of things. What "thing" is being "appropriated" when someone 
writes software?  The nonrival nature of software renders Locke's analysis suspect, if not irrelevant.  You are 
presuming that concepts which apply to a hammer are appropriate to apply to intangibles. For what it's worth, copyright 
in anything approximating its modern form (Statute of Anne 1709) didn't emerge until after Locke's death (1704).

See http://www.firstmonday.org/issues/issue6_9/scott/


> Opposing those concepts could be seen, as a rejection of part of the
> capitalist doctrine, but at the same time, as you pointed out :) it isn't a
> rejection of locke if intellectual property doesn't exist.  Looking at the
> current legal system, I've gone with the assumption that intellectual
> property is a valid notion, one protected by/attached to capitalist
> philosophy.  (de-bateable I know, but there are always underlying premises
> and assumptions with any theory).

Why not assume the moon is made of swiss cheese?  You use the term "intellectual property" as if it has meaning.  If 
it's in fact meaningless everything your write which relies on the term is equally meaningless. In your particular case, 
given that property is a key concept in your essay you're effectively assuming your own conclusions. Have you even 
looked at the history of the term "intellectual property"?  It is remarkably recent.

Copyright is a monopoly granted for a limited time by the legislature.  Copyright expires.  Property doesn't. The high 
point you could argue is that there is communal ownership of "intellectual property" which is leased by the government 
for limited times (ie the length of the copyright term) to individuals (as evidenced by the fact that copyright only 
persists for a limited time).

At the very least you should define what constitutes "intellectual property".

> > > "By attempting to neutralise the anti-competitive elements of copyright
>
> you can characterise the community as opposing government intervention in
> the content/software industries. On this analysis they're not communist,
> they're capitalist - and extremely so." <<
>
> Given the assumption that intellectual property rights exist, I see the
> anti-competitive elements of copyright as a by-product of the capitalist
> concept of individual property rights.  When seen from that perspective, a
> rejection of copyright is not a capitalist movement, but something else.
> The rejection of capitalist government intervention... anarcho? lol, see
> where I'm coming from? :)

> > > "I think you need to think more about it"
>
> definitely!  Thats why it's good to hear from knowledgeable guys like you, I
> had no idea about that supreme court ruling! :)
> I agree with you as far as the lack of validity of intellectual property
> rights (particularly when it benefits the few over the many)  I've just used
> it as a perfectly valid (I think, as it exists as an absolute legal argument
> at the moment) premise for this paper.

You have a lot of reading to do.

Good luck

Brendan