People often say “intellectual property” when they really mean some larger or smaller category. For instance, rich countries often impose unjust laws on poor countries to squeeze money out of them. Some of these laws are “intellectual property” laws, and others are not; nonetheless, critics of the practice often grab for that label because it has become familiar to them. By using it, they misrepresent the nature of the issue. It would be better to use an accurate term, such as “legislative colonization,” that gets to the heart of the matter.
Laymen are not alone in being confused by this term. Even law professors who teach these laws are lured and distracted by the seductiveness of the term “intellectual property,” and make general statements that conflict with facts they know. For example, one professor wrote in 2006:
Unlike their descendants who now work the floor at WIPO, the framers of the US constitution had a principled, procompetitive attitude to intellectual property. They knew rights might be necessary, but. . .they tied congress’s hands, restricting its power in multiple ways.
That statement refers to Article I, Section 8, Clause 8, of the US Constitution, which authorizes copyright law and patent law. That clause, though, has nothing to do with trademark law or various others. The term “intellectual property” led that professor to make false generalization.
The term “intellectual property” also leads to simplistic thinking. It leads people to focus on the meager commonality in form that these disparate laws have—that they create artificial privileges for certain parties—and to disregard the details which form their substance: the specific restrictions each law places on the public, and the consequences that result. This simplistic focus on the form encourages an “economistic” approach to all these issues.
Economics operates here, as it often does, as a vehicle for unexamined assumptions. These include assumptions about values, such as that amount of production matters while freedom and way of life do not, and factual assumptions which are mostly false, such as that copyrights on music supports musicians, or that patents on drugs support life-saving research.
Another problem is that, at the broad scale implicit in the term “intellectual property,” the specific issues raised by the various laws become nearly invisible. These issues arise from the specifics of each law—precisely what the term “intellectual property” encourages people to ignore. For instance, one issue relating to copyright law is whether music sharing should be allowed; patent law has nothing to do with this. Patent law raises issues such as whether poor countries should be allowed to produce life-saving drugs and sell them cheaply to save lives; copyright law has nothing to do with such matters.
Neither of these issues is solely economic in nature, and their noneconomic aspects are very different; using the shallow economic overgeneralization as the basis for considering them means ignoring the differences. Putting the two laws in the “intellectual property” pot obstructs clear thinking about each one.
Thus, any opinions about “the issue of intellectual property” and any generalizations about this supposed category are almost surely foolish. If you think all those laws are one issue, you will tend to choose your opinions from a selection of sweeping overgeneralizations, none of which is any good.
If you want to think clearly about the issues raised by patents, or copyrights, or trademarks, or various other different laws, the first step is to forget the idea of lumping them together, and treat them as separate topics. The second step is to reject the narrow perspectives and simplistic picture the term “intellectual property” suggests. Consider each of these issues separately, in its fullness, and you have a chance of considering them well.
And when it comes to reforming WIPO, among other things let’s call for changing its name.
Copyright © 2004, 2006, 2007, 2009, 2010 Richard Stallman
This article was written in 2004 and published in Policy Futures in Education, vol. 4, n. 4, pp. 334–336, 2006. This version is part of Free Software, Free Society: Selected Essays of Richard M. Stallman, 2nd ed. (Boston: GNU Press, 2010).
Verbatim copying and distribution of this entire chapter are permitted worldwide, without royalty, in any medium, provided this notice is preserved.
Chapter 16.
Words to Avoid (or Use with Care)
Because They Are Loaded or Confusing
There are a number of words and phrases that we recommend avoiding, or avoiding in certain contexts and usages. Some are ambiguous or misleading; others presuppose a viewpoint that we hope you disagree with. (See also “Categories of Free and Nonfree Software,”)
BSD-Style
The expression “BSD-style license” leads to confusion because it lumps together licenses that have important differences. For instance, the original BSD license with the advertising clause is incompatible with the GNU General Public License, but the revised BSD license is compatible with the GPL.
To avoid confusion, it is best to name the specific license in question and avoid the vague term “BSD-style.”
Closed
Describing nonfree software as “closed” clearly refers to the term “open source.” In the free software movement, we do not want to be confused with the open source camp, so we are careful to avoid saying things that would encourage people to lump us in with them. For instance, we avoid describing nonfree software as “closed.” We call it “nonfree” or “proprietary.”
Cloud Computing
The term “cloud computing” is a marketing buzzword with no clear meaning. It is used for a range of different activities whose only common characteristic is that they use the Internet for something beyond transmitting files. Thus, the term is a nexus of confusion. If you base your thinking on it, your thinking will be vague.
When thinking about or responding to a statement someone else has made using this term, the first step is to clarify the topic. Which kind of activity is the statement really about, and what is a good, clear term for that activity? Once the topic is clear, the discussion can head for a useful conclusion.
Curiously, Larry Ellison, a proprietary software developer, also noted the vacuity of the term “cloud computing.”[1]
He decided to use the term anyway because, as a proprietary software developer, he isn’t motivated by the same ideals as we are.
Commercial
Please don’t use “commercial” as a synonym for “nonfree.” That confuses two entirely different issues.
A program is commercial if it is developed as a business activity. A commercial program can be free or nonfree, depending on its manner of distribution. Likewise, a program developed by a school or an individual can be free or nonfree, depending on its manner of distribution. The two questions—what sort of entity developed the program and what freedom its users have—are independent.
In the first decade of the free software movement, free software packages were almost always noncommercial; the components of the GNU/Linux operating system were developed by individuals or by nonprofit organizations such as the FSF and universities. Later, in the 1990s, free commercial software started to appear.
1
Dan Farber, “Oracle’s Ellison Nails Cloud Computing,” 26 September 2008, http://news.cnet.com/8301-13953_3-10052188-80.html.