Property, Copyrights, Patents and Trademarks Conflated as ‘IP’
Bob Trower, Nov. 23, 2007 – Updated 2022/10/12
[Disclaimer: This is a polemic. It is not legal advice. It is Political, Social and Moral advice.]
It was a debate on Ars Technica entitled “Infringus maximus! Rowling gets injunction against Harry Potter Lexicon” that inspired this polemic. J.K. Rowling managed to get what I felt was an improper injunction on another author’s original work, by conflating her copyrights and trademarks. She could not claim copyright on the new work, nor could she claim that the use of her trademarks in that context interfered with her trademark rights. By conflating the two, she somehow managed to dupe a court into issuing an injunction. That injunction is illegal on several grounds. However, to kill this debate for good, I believe we should simply go back to first principles. We should stop this nonsense by permanently revoking all grants of copyright and affirming the common law limits of trademarks. We should use the same principles used to revoke copyrights to revoke all patents as well.
The term ‘Intellectual Property’ (‘IP’) is a bogus misnomer. I did not invent this objection, but we keep losing it in the shuffle, so I repeat it here. I do not think that the persistence of this vile meme is an accident. There are parties that profit by the lie that IP exists as a legal entity. They nurture and sustain this idea. They try to convince us that it has a substance and validity that it does not possess. It is a pure fabrication. It is a hoax intended to de-fraud the public. It tries to conflate four different things: chattels, ideas, expressions, and brands. Those who deal in the odious term ‘IP’ do it so they can cherry-pick the rights they wish to enjoy and dispense with the boundaries they do not wish to respect. They do this by pretending that what they ‘own’ is all things at once and none of them at the same time. Their ‘IP’ is a mutant legal fiction that suits a purpose for them. However, it has no real support in law. They use this bogus legal fiction so that they may collect ever-increasing tolls on the legitimate activities of others.
Note that although ‘law’ above largely means actual legislation, I think of law more as being the essential customs and rules that the sovereign body politic considers fit to live by. Many political jurisdictions have constitutions that at least in spirit come close to reflecting my notion of law.
I particularly like the Constitution of the United States. It is a document, which reflects a sober, sensible, and prescient wisdom with remarkable clarity. Although I am a Canadian, I look to the U.S. Constitution as a touchstone. It is the instrument that ‘constitutes’, if you will, the Republic of the United States of America. For good or ill, the United States currently has a strong effect on most international debate. As a single sovereign entity, it has by far the largest GDP and that certainly affects this debate.
There are things as such, like cows, milk and cheese, there are ideas, there are expressions of ideas and there are brands. Property law governs property. Patents grant limited rights to the control of ideas. Copyrights grant limited rights to the manifest expressions of ideas. Trademarks confer exclusive use of certain ‘marks’ used to identify or ‘brand’ products in the marketplace.
You may buy and sell things like cows, milk, and cheese. You may milk your own cow and you may make and sell your own cheese. You may NOT simply appropriate someone else’s cows, milk, or cheese. You must buy them. Once you own them, they are yours to dispose of as you see fit.
If someone invents a novel device for making cheese, then that person can patent the device if it satisfies certain criteria. If they get a patent, they can prevent you (for a limited time) from making such a device without their permission. They can charge you for the right make devices of any description that use that idea. Once you buy one of these patented devices, you own the device. You may sell your device, but you may not make and sell a device that uses the idea without the permission of the patent holder. You may only use their novel idea with their permission. For instance, you cannot use that idea to make anything (not just cheese) without their permission. They have control over any working manifestations of the idea itself for the duration of the patent. One thing they do not own is the simple expression of the idea as an idea. You are free to write about the idea. They gain their grant to control the idea in exchange for making the idea known and available for use.
You may choose to license the patent above to manufacture and sell a line of devices that make cheese. You may choose to do a book showing how you make that device. You may sell the book separately without any payment to the patent holder. The idea as an idea in a book is freely available to all.
As the author of the book, you have a copyright on the book itself. Nobody may produce any work that is a direct copy or similar enough to be a copy without your permission. That includes, ironically, the owner of the patent. If they wish to use or sell copies of your book, they must buy the books or the rights to make them like anyone else. You have control over any identical expression of the idea that you have created. However, you do not control either the idea or any of the other ideas in your book (unless you have a patent on the idea). That means, for instance, if you have a great recipe for making cheese with your machines, another author may freely offer up the recipe if they do not copy your exact expression of the recipe, or the recipe is trivial in nature. You gain your control of the expression in exchange for making the expression available under ‘fair use’ guidelines. Fair use is a little slippery. It means that people may use the expression for their own work if it is not equivalent to copying a sizable part verbatim. Those using the work for scholarly purposes and similar pursuits that promote the common good enjoy latitude. We might regard republication of two pages of a book in a magazine as requiring permission. We would regard copying two pages for personal use in a course of study as fair use, requiring no permission. You do not own any unpatented ideas that you express in your book. You may produce an idea for a device and mention it in the book. You must either have a patent or be able to get a patent (there are time limits) or the idea itself passes into the public domain. Anyone is then free to use the idea. It is not patentable at that point by you or anyone else. Your copyright does not confer upon you any control over the ideas expressed in the copyrighted work.
To identify your product line of devices, books, and cheese, to distinguish it from lesser product lines and protect your reputation, you may adopt a distinctive mark or phrase. Over time, as you expand both your product line and your trading area, you begin to gain some rights in the marks and even the words and phrases as they pertain to your product line in its trading area. There are formal legal ways of registering these marks as Trademarks. Registration lends greater credibility to your claim that you have an interest in the marks. However, it is through usage of distinguishable marks associated with your product line that you gain ownership of the marks. For instance, you may create a logo with a wedge of cheese, a book icon, and a stylized drawing of your cheese-making machine. You may superimpose the phrase ‘Iron Cow Cheese Company’. You may use these words in various phrases in marketing literature, advertisements, et cetera. Your use of these marks in terms of identification with your product within a certain region creates your rights in the marks. You can prevent a rival from using ‘Iron Cheese’ or something similar anywhere in your trade area and slightly beyond. However, if you are in Florida and another company produces ‘Iron Cow Beer’, you cannot prevent them from using the name. Similarly, although we may restrict a rival in their use of the various words in their product literature, the author of a book has more latitude. A character who happens to say: ‘he rode the iron cow’, apropos of riding a mechanical bull is free to use the phrase. Your trademark only allows limited control of the marks and expressions as they pertain to trade in your product.
You cannot claim ownership of the ideas, the expression of those ideas, or the words and marks in a picture that you own. You may incidentally own them, but the ownership of the picture does not confer them. You cannot claim copyright on an idea. You cannot claim patent on an expression. You cannot claim trademark on ideas or expressions or things per se. We should note that you could have both a trademark AND a copyright on a particular mark that is a non-trivial expression. However, you obtain your copyright rights and your trademark rights separately, according to the ordinary rules that govern them. That would allow, for instance, worldwide control of your graphic by virtue of copyright, even though your control of the ‘iron cow cheese’ mark may only apply within your trading area.
There is, to be sure, some ‘bleed’ across boundaries. You can buy and sell all the above, for instance. However, we do not have ‘Intellectual Property’ laws. We have property laws that govern traditional chattels and even those are not homogeneous. We have copyright laws. We have patent laws. We have trademark laws. These vary from place to place, but the essential differences correctly make them the subject of different legislation.
Part of the rationale behind separating these things is to limit the rights each confers to the minimum necessary to suit the needs of the sovereign. In most first-world jurisdictions, sovereignty flows directly from the body politic (you and me). That is, these laws are all there to serve the public good.
There should not even be a debate on particulars like this nonsense about a Harry Potter lexicon. The ‘right’ to control one’s writing is a GRANT from you and me. We can take it away any time we like. That is, the body politic can simply abolish copyrights altogether. They (we) should.
I do not accept the unlawful extensions made by governments in various parts of the world. Even if I did, copyright is still clearly LIMITED. It is also still a GRANT. It comes with some obligation not to abuse that GRANT.
Rowling, like the RIAA has long since given up all rights since she has flagrantly abused the GRANT that we gave her. She revoked it herself when she began to abuse the rights reserved by the GRANTERS (you and me). Rather than speaking to how much more she should get, we should be talking about how much of her ill-gotten profits she should disgorge back to the public purse. Really, we should be arguing at which point she gave up her rights. Ill-gotten gains from that time forward do not belong to her. They belong to us.
It cracks me up that copyright holders and other ‘rights holders’ such as patent owners have managed to shift the debate to the fine points of THEIR ‘rights’. They are not their rights. They are ours. We have granted them control at our pleasure so that they may contribute to our well-being. At this point, WE should shift the debate to whether it still makes sense to grant them the use of OUR RIGHTS at all.
Current copyright legislation in the United States should be unlawful. It violates the clear directives set out in the Constitution. Anyone with knowledge of the historical debate surrounding the article that grants rights knows that the inclusion of the POWER TO GRANT was tenuous at best. It barely made it into the Constitution at all. Had the framers known what would have become of it, they not only would not have allowed congress the power to make that grant, but they would also have specifically and forcefully forbidden it. [It is Article 1, Section 8, that mentions this stuff, but I am going from memory]. I am a Canadian, so have not memorized the United States Constitution.
Note that the Constitution does not GRANT these rights. It allows the legislative assembly to grant the rights. That means that a simple change of guard at the legislature is all that we need to revoke those grants. A simple majority vote should be all we need. It is painfully clear that the body politic already has a majority opinion and it is not favorable to supposed ‘rights holders.
YOU AND I are the ones who decide what rights (IF ANY) WE GRANT to authors. If I had to vote on it today, I would abolish copyrights and patents altogether.
These GRANTS were to serve one and only one purpose. That is to maximize the public good. This has nothing to do with individual rights such as liberty, et cetera. They are not really ‘rights’ per se. They are a GRANT made at our pleasure. I do not know about you, but I am certainly not too pleased right now.
Copyright and patent laws clearly do not serve the public good. I hold copyrights and stand to inherit others (many dozens) from a family member. They do me little good and the laws allowing them to exist do massive harm to the public. Even as a party with a ‘vested interest’ in them, copyrights do me more harm than good. I pay more than I earn.
Screw the crazy, ill-informed debate on what fine-point of existing legislation applies or does not apply. The legislation itself would not stand a proper legal challenge in front of an informed jury. Let us shift the debate to the very crux of the matter: do these GRANTS serve the public good or not? If they do not, then we should simply REVOKE THE GRANTS.
The public has ‘voted with their feet’ to say that they do NOT adhere to the prevailing ‘legal’ view of copyright. It is, IPSO FACTO, true that copyrights as currently legislated and as the courts interpret them have no real force in law.
We are the sovereign here, not the corporations, not their shameless lobbying groups, not even the legislative, judiciary or executive branches of government. Ultimately, NOT EVEN the constitution itself has any force of law except that WE make it so.
We need to quit quibbling about whether so and so says this or that about copyright. There is little evidence in favor of continuing copyright and patent law and a TON of evidence against it.
Lobbyists have somehow managed to get the legitimacy of copyrights be implicit A PRIORI. By agreeing to that premise, we lost the debate going in. Instead of allowing the lobbyists to lead us by the nose, we should focus on the real debate. It is up to those who favor copyrights to present hard evidence that they serve the public good. If they cannot produce that evidence (like, duh, they cannot even come close), then we should revoke their grants with extreme prejudice. By prejudice, I mean that there should be an amnesty period where they lay down their arms or we go after them to disgorge monies retroactive to the new legislation. Let us put the RIAA and other malefactors on notice that their amnesty period clock is ticking. They made it personal by going after women and children so I would say that all officers and other interested parties should be personally liable for whatever penalties we assess.
Nineteen-eighty-four by George Orwell illustrates how the control of language controls the debate and more. I expect most have read the book, but it is well worth another read.
It is improper to use a term such as ‘Piracy’ to describe the use of copyrighted works. That term prejudices, obscures, and perverts the debate. Any use of copyrighted work is not ‘Piracy’ and never was.
WE should begin referring to the anti-social practices of copyright holders with language more fitting with what they are doing. If anyone is closer to being a ‘pirate’, it is the true rights abusers, not us.
For instance, what Rowling is doing is ‘molestation’. It is also ‘chilling’. It is also a ‘Strategic lawsuit against public participation’ (SLAPP) – something specifically against the law in at least one jurisdiction. It is also intimidation, bullying and (by their own definition, mind) PIRACY! They are trying to rip-off the copyright holders of the new work. Unlike someone assembling ideas, like the authors of the book in question, Rowling is trying to take away their rights by force.
Like the ridiculous SCO assault on the community, we should meet this assault with fierce resistance. The cheesy con artists that purvey this would suffer the same fate as SCO.
It has been a long time coming, but I am enjoying watching the death-throes of SCO and hope to see the RIAA, Rowling, and other enemies of the public good go the same way.
The sovereign revokes all copyright and patent grants.
Copyright © 2007-2022, Bob Trower
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