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

[Brendan Scott <bscott gtlaw com au>]

Jens Hardings wrote:
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> Brendan Scott wrote:
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> | To put it another way, if all legislation was repealed tomorrow, it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.
>
> I don't get that one. If all legislation is repealed, there would be
> nothing that dictates that it is illegal for me to take something from
> anybody else. It would not be possible to say that anything is illegal,
> since there would be no legal system on which to base such an
> allegation. Or is it that "common law" is not legislation? What is it then?

Common law, in common law systems, is judge made law. Without legislation there are still social norms that people call 
law and which people expect others to comply with.  That's the common law. You might also call it custom, tradition and 
usage.

> | 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.
>
> So you basically are stating that the term "intellectual property" is
> badly chosen. Probably it is, but that discussion really makes no

No, it's well chosen.  It was chosen so that rent seekers can acquire more subsidies from the government.  In this aim 
it has succeeded handsomely. It was also chosen so that people like Paul would simply adopt it without thinking.  Again 
it appears to have succeeded.  As a descriptive term (is the result of intellectual endeavour property?) it is simply 
incorrect.

> sense here, it only tends to confuse everybody because intellectual
> property is a well-known and widely used term that groups several
> methods of granting some exclusivity to certain individuals in certain
> circumstances. Copyright is one of them, there also are trade secrets,
> patents, trademarks. That fact we have to face or make the whole legal
> community change their wording.

btb trade secrets have even fewer of the characteristics of property (not binding on bona fide third parties who receive 
the information without notice of the confidentiality).
> Probably, a small paragraph in the article indicating what is meant by
> "intellectual property" would avoid this whole discussion.

I did suggest that to him.

> - --
> Jens.

Brendan