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

["Paul Fitz" <pfitz dodo com au>]

Hi Brendan,

Oh no!  I didn't want to get that far into the intellectual property debate
:P  There's a 60'000 word thesis there for you to undertake brendan :)

For this paper (we are talking about 3500 words!) I have to go with the
basic premise that in our modern western society, the legal concept of
intellectual property does exist, is associated to copyright and is a
product of private property concepts established by Locke.  You can deny it
all you want, but until I see you in court battling microsoft (hopefully
soon, I'll send you some money for the case :)) for the right to access
their source code, I'm using that it's (intellectual property) existence and
association with private property rules are a valid premise for other
arguments.

Also, if you deny the validity of Intellectual Property, then patents for
inventions are not valid either?  The design for new products should be open
source and any individual should have the right to make physical items from
those ideas/inventions.

Btw, initially you said that copyright has only existed in recent times, can
you give more detail on the Statute of Anne 1709?  Was that any where near
the modern concept we have of intellectual property?  It doesn't matter so
much that Locke was dead when it came about, Marx was dead when communism
began!

Your input is very helpful and enlightening, if you can accept that I'm
using the intellectual property premise (flawed as you think it may be), do
you have any other ideas on the real nature of open source comunities?

Cheers,
Paul




-----Original Message-----
From: open-source-now-list-admin redhat com
[mailto:open-source-now-list-admin redhat com]On Behalf Of Brendan Scott
Sent: Thursday, March 20, 2003 8:56 AM
To: open-source-now-list redhat com
Subject: Re: [OS:N:] RE: Open Source as a form of Anarcho-Communism?




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



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