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The following is a response to the article by James Boyle.
Your Sep 26 article by James Boyle presented three tendencies that lead to bad decisions on "intellectual property rights". I'd like to point out one more: the chic term "intellectual property rights" itself, which lumps together disparate laws, including copyright, patent, trademark, trade secret--and the proposed broadcaster monopolies.
The "intellectual property" part of the term acts to distract. What these laws have in common is their form: each one gives certain parties a special power that can be bought and sold. But what determines the effects of each law is its substance: the details of the special power it imposes on the public. "Intellectual property" focuses on the form instead of the substance--a recipe for bad decisions.
The "rights" part takes the viewpoint of the party that gets the special power, over and above everyone else. These laws have one other small thing in common: each one supposedly aims at some public benefit. The special powers granted are the means to that end. That's exactly what we forget if we call these powers "rights". Confusion of means with ends leads to bad decisions--and no one would try to study whether these laws achieve their public goals once those goals are forgetten. No wonder Boyle finds a dearth of such studies.
The term "intellectual property rights" is a fad promoted by WIPO itself. We can encourage clear thinking about these disparate issues by firmly refusing to use it.
President, Free Software Foundation
Cambridge, Mass, USA
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