RE: Why DRM exists [was Re: Flame Linus to a crisp!]

David Schwartz
2003-05-02T02:58:37Z

> And no, I am not "trying to set back a complex society by arguing
> that only
> what you can touch has legal meaning." I am trying to make you understand
> that agreements, "real property" (which is land), "property" (which is any
> tangible thing other than land), and copyright (among other concepts) are
> completely dissimilar and are covered by completely different kinds and
> scopes of law. The fact that they are "not the same thing" completely
> negates your "the law of one is the law for all" claim that "property law"
> somehow carries into the other areas.

Do you agree that:

1) A person who thinks of an idea cannot be compelled to disclose it,
especially since nobody would even know that he had it unless he told them
and that therefore absent a contract or other agreement to the contrary, may
refrain from disclosing it to others.

2) The greater includes the lesser.

In any event, my dictionary defines "property" as "something tangible or
intangible to which the owner has legal title".

> There is not now, nor has their ever been, such a thing as "intangible
> property". There is (real and otherwise) property, there are contracts
> (oral agreements, written agreements, common stock, preferred
> stock, trusts,
> etc are all contracts), and there are rights (including copyrights and
> patents) and they are each governed by completely different sets of laws.
> If you go to court to claim that property law says something about
> non-property (like a contract you are a party too) you will get
> laughed at,
> and then you will lose.

Who said anything about "property law"? All I'm talking about, and all I
need, is contract law. What I'm saying is that contractual property acts
like property but it wholly covered by contract law.

If I acquire from you the transferrible right to one day of your lawn
mowing, I have something. It acts like property -- a person can own it,
transfer it, control it. Yet it's not covered by real property law. If you
fail to mow the lawn, I wouldn't argue property law, I'd argue contract law.
The right is a contractual right but it, in every essential way, acts like
property.

> For instance, the authors right to not invent and not share his invention,
> is, wait for it... a RIGHT... and doesn't make the idea any kind of
> property. You even used the words your self "... I have the right to the
> contents of my own head ..." and the follow-in fact that you can get
> together with someone and agree to a contract where you will disclose the
> idea for $10 and a non-disclosure agreement, is contract law.

Absolutely. That's what I'm saying. Intellectual "property" rights are,
morally and conceptually, based in contract law. This is because, unlike
real property, intellectual property consists solely of the right to
control, to some extent, what other people can do.

> (Notice that
> there is still no "property" anywhere in there, its all rights and
> agreements. "Property law" doesn't apply because there is NO
> SUCH THING as
> INTELLECTUAL PROPERTY)

Play word games if you want, but people use the term "property" to cover
intangibles if you can have the exclusive right to them.

> Contrary to your statements, Patent law did less for the patent
> holder than
> copyright did for authors.

I disagree. As a single example, independent creation is a defense to a
copyright infringement claim. However, a patent holder need not prove that
the infringer got the idea from him at all.

> In many cases, an invention is self describing. You build a windmill and
> someone can come along and disassemble the thing and know how to build a
> windmill. In most cases, however, inventors can keep secret the
> nature and
> structure of their invention and still profit from that invention. Patent
> law was really about convincing inventors to record their inventions in a
> public archive instead of taking their invention with them into death.

Sure, but patent law doesn't stop them from failing to disclose just they
didn't have to before. That is, patent law didn't take away your ability to
keep an invention secret. Nor does it stop you from enforcing contractual
secrecy agreements in the absence of a patent, so you can still use
contractual techniques or even quasi-contractual technques like trade
secrets.

> Invention is different than authorship because often times the invention
> doesn't automatically reveal itself. Consider Damascus (sp?) steel or the
> formula for the varnish Stradivarius (sp?) used on the instruments he
> created. These are inventions that have been lost despite the
> fact that we
> still have some of the swords and violins. So many, perhaps even most,
> inventors enjoyed both the protection of keeping their secrets secret and
> still profiting from them.

As they still can if they wish. However, patent law gave them something
they never had under contract or property laws -- the right to control other
people's use of "their" ideas even if the others developed them wholly
independently.

> Copyright, however, gave authors something they didn't have at all. The
> right to control who copied their work once it left their hands.

They always had that. They just write a contract that says so and compel
everyone who receives the work to sign the contract. In fact, copyright
behaves just like an implied contract.

> Books only
> have value if they are read, plays have their value in the
> performance. Art
> is public. Prior to the invention of copyright, if you said your idea
> aloud, wrote it down, painted it, sung it, or whatever, you had
> ceded it to
> the public. Period. End of story.

All you would have had to do was state, before the play, that listening to
the play is contingent on their agreement not to further distribute it. Can
you give me any rational reason such a contract wouldn't be enforceable?

> So you have it exactly backwards. Copyright gave whole classes of
> innovators something they never had before even slightly, while
> Patents gave
> far less new protection to inventors.

Obviously, I 100% disagree with you.

> Saving the best for last, the fact that "you come to own property via a
> contract" doesn't bring the fact of property ownership under the
> purview of
> contract law. The contract *ENDS* and ceases to exist, with
> respect to the
> property, once the agreement is discharged and the ownership is
> transferred.
> The contract law governing the sale of property has nothing to do with the
> body of property law.

I agree with you. I don't believe that I ever said contracts are the
"basis" of real property ownership. However, you can, purely by contract
law, obtain much the same thing as real property ownership with no actual
legal transfer of the title. The distinctions are largely artificial legal
ones, though admittedly created for legitimate and useful purposes.

It is useful to have an actual "owner" for physical object in a way that it
is not useful to have an actual "owner" for an idea. This is the basis for
the laws covering real property.

However, there is another sense of "owner" which still includes the right
of control, use and exclusion. It is this type of ownership that is acquired
by explicit or implicit contract, and it is this type of property that
intellectual property falls into.

Tell me anything significant that copyright law does that an author could
not do by requiring anyone to whom he discloses his idea to sign an
appropriate contract. Tell me anthing copyright law does that contract law
can't do.

DS