Andrew Suffield wrote (in response to me): > You imply that "protecting intangible assets" is an improvement, and > that this was not done before, but neither of those are particularly > accurate.
No, I imply that an asset is a property right, and that the previous regimes didn't create property rights in abstract property -- at least as a matter of law, reasonably reliably and impartially. I consider that an improvement over anarchy and despotism, but YMMV. > > ... and was enacted in an environment where previously no property > > right in ideas or expression was widely recognized > > That's not accurate. You're dismissing the previous widely recognized > property rights because they don't fit your notion of "fair". That > doesn't change the fact that they existed. They were just held by the > publishers. No, I'm relying on legal historians' assessments of the regime prior to the Statute of Anne, in which the Stationers' Company (a cartel authorized by the Crown) exercised monopoly power and settled internecine squabbles via the Star Chamber. That's not my idea of "widely recognized property rights", and was rejected as precedent by the Donaldson court. I refer you again to Lord Camden's eloquent summary in that case; he observes that the Statute of Anne was immediately preceded by some fourteen years of complete anarchy (or freedom if you like), and that publishers themselves "brought with them their wives and children to excite compassion, and induce parliament to grant them a statutory security". (A real lawyer and historian's view may be found in William F. Patry's _Copyright_Law_and_Practice_; excerpt at http://digital-law-online.info/patry/patry2.html .) > > That just doesn't fit the history. The Statute of Anne created a > > legal foundation for an automatic exclusive right of publication, > > something that was previously subject to the whim of royal ministers. > > It did not do so in a vacuum. It replaced an existing system. It replaced anarchy following the lapse of the Stationers' Company's royal charter in 1694, which was preceded by royal prerogative and the 1681 bye-law of the Stationers' Company, preceded in turn by the Licensing Act of 1662 (focused on censorship rather than property rights). As Lord Camden pointed out with regard to the records of the Stationers' Company, "Every man who printed a book no matter how he obtained it, entered his name in their books, and became a member of their company: then he was complete owner of the book. Owner was the term applied to every holder of copies; and the word 'author' does not occur once in all their entries." That's not a legal foundation, that's a cartel created at despotic whim. > > Ironically enough, trade secret is the only form of intellectual > > property that I cited which doesn't create an asset, in the sense that > > it doesn't create any tradable right like copyright or patent. > > Trade secrets are routinely traded in the US, by means of contracts > and NDAs. No, the secrecy of trade secrets is maintained by means of these mechanisms. Like any other thing of value, unpublished knowledge may form part of a contractual exchange; but a tradable right in publicly disclosed knowledge, as created by copyright, patent, and trademark law, is a creature of statute, and trade secret law doesn't create such a thing. Personally, I find it sobering to realize that my livelihood depends on the continuation of these frail legal fictions, especially as I dislike some of the uses to which they are put. But you can always spot a legal fiction that is sufficiently well established to be taken for granted; people start calling it an "inalienable right" while it erodes all around them. (Does an indirect reference to Thomas Jefferson's slaveholding invoke a corollary to Godwin's Law?) Cheers, - Michael
