Free Software, Open Source, and al Qaeda

The Islamist Attack on Intellectual Property, by Thomas Lifson,” RealClearPolitics, 28 February 2006,

Shortly after I commented that leveraging (“exploition”) is a normal part of politics, I was enraged at a particularly dishonest form of leveraging in the world of patents. Such is life.

Tom Lifton notes that some Islamist, somewhere (he doesn’t bother to cite, opposes the idea of “intellectual property”

It becomes clearer with every day that the Islamist faction within the Muslim world has an idealized vision of society entirely at odds with foundations of American society, and with the values of modern civilization. Free speech (including cartoon speech), religious pluralism, or female equality are only starters, important though each of these principles may be to us.

Recently, I was reading an Islamist website and discovered the following logo in an advertising-like box:

“Oppose Intellectual Property”

Of course, “intellectual property” isn’t mentioned in the U.S. Constitution

What is mentioned is the “exclusive Rights to their respective Writings and Discovers” for “authors and inventors” “ To promote the Progress of Science and useful Arts,.” Unlike actual property that is diminished by sharing, “intellectual property” is an artificial, temporary, government-granted monopoly on an abstraction. There is no “value” (that is, moral) issue associated with it. Rather, like the ability “to establish Post Offices and post Roads” that immediately precedes it, the exclusive Rights is a utilitarian device of the Congress to help economic growth.

To me, this article seems like a stealth attack against free software and open source software. I won’t go into the difference between “free” and “open-source” software, except to note that the free software crowd is more ideological while supporters of “open source” are more pragmatic. I used both for my thesis and my blog.

Both are part of the same decentralized tradition, that helped America win the cold war against the Soviets, Britain win the culture war against the French, and blogs win the 2004 election against the mainstream media.

Fighting against this people-power, against both the free software and open source movements, against the British newspapers and American blogs, are the monopolists. From the monopolists’ last gasps in the media to continuing political power, they seek to concentrate power for themselves.

Such behavior is natural. As are attempts to bolster their power by conflating people-power with al Qaeda. But it’s still sickening.

3 thoughts on “Free Software, Open Source, and al Qaeda”

  1. dan: i have a hard time in the post understanding what you mean. ip rights are, like the rights of creditors for example, rights in intangibles… correct?

    in particular, it seems there is a big difference between a copyright & trademark, on the one hand, and a patent, on the other…. is there not?

    conversion of a trademark, for example, has a real economic, and in the cases of commercial confusion, a real moral impact. moreover, trademarks specifically are fee simple ownerships (so long as use is continuous)… and copyrights equivalent to a life estate plus a term of years…

    i understand your post to apply only to patents therefore. is that right?

  2. Federalist,

    Debts are described separately in the Constitution (Article I, Section III, Clause IV). These are not what is considered as “intellectual property,” as the debt ultimately rests on a tangible (if nothing else, money).

    The “exclusive Right…” that establishes what the article calls “intellectual property” is in I/VIII/VIII.

    “Intellectual property” refers to all patents and many copyrights. It would not refer to trademarks. A history of incompetence by the USPTO, as well as politicking, does not make the distinction between the three as clear as it should

  3. dan: first off, let's clean something up here. article I, sec. 3, clause 4 of the US CONST has nothing to do with debts. it establishes the vice president as president of the senate (an interesting part of the constitution, true, but altogether unrelated). “debts” proper are ONLY covered by art VI, clause 1… and it only deals with debts entered into before the constitution became effective. “debts” generic, and debtor/creditor rights (outside of bankruptcy) in general, are a matter of state and common law. in other words, they are protected by the 10th amendment (implicitly).

    now, as for the definition you offer for intellectual property, i would beg to differ. “intellectual property” refers to copyrights, trademarks, and patents. if you don't believe me, let's consult black's…

    intellectual property. 1. A category of intangible rights protecting commecirally valuable products of the human intellect. The category comprises primarily trademark, copyright, and patent rights [NOTE: they put trademark first!], but also includes trade-secret rights, publicity rights, moral rights, and rights against unfair competition. BLACK'S LAW DICTIONARY copyright 2001 [i couldn't help myself] West Group

    in other words, it is the body of law concerned with the rights to intangible products of the mind. that was my point. i'm not trying to attach this to this constitution. merely positive versus common law.

    trademarks are very different creatures. the origin of the law was consumer protection. to prevent “inferior goods” from being passed off as “name brand”. and trademark is not something which is exclusively federal. the colonies inherited and brought with them as states a rather robust trademark law from the english common law. so trademarks, while being covered to some degree by the lanham act, are also covered by the tenth amendment. this would mean that at least some of the law that compromises current trademark law is based on the very same constitutional protections that the rights to real property are based on. as one of three areas of intellectual property then, you'd have to admit that at least “some” intellectual property is guaranteed by the constitution.

    further, trademarks ARE diminished by sharing. indeed, as i pointed to, the very origination of trademark law was to prevent confusion by the consuming public. knock-off gucci bags are immoral, not just illegal.

    now copyrights, on the other hand, are exclusively federal. or so that's what they teach in law school. in practice however, there are still remnants of a state or common law copyright law. this deals with works that are not fixed in a tangible medium of expression (like an extemporaneous speech, or jazz virtuoso, or perphaps an oral speech, for example). another area where states may proceed either through common law or through statute is the “right to publicity.” typically the common law will allow injunctive relief where a person's name or likeness has been appropriated for commercial benefit by another. this again is based on property theory, protected by the 10th amendment, and its origin is not merely economic, but moral as well. for a somewhat funny review of this, see Carson v. Here's Johnny Portable Toilets 698 F.2d 831 (1992).

    so, i don't agree that there is no moral value associated with the protections of intellectual property. i believe your point is made best against patents. especially the so-called “business method” patents. the granting of these is a balancing act. and at times, the PTO and congress both go too far to one side. but i don't think you can fairly characterize all, or even say half, of intellectual property law as amoral.

  4. Federalist,

    Thanks for catching my typo — I should have writte “VIIII,” not III. [1]

    The qutoe from Black's Law is important, but I don't think relevant in this context. As discussed politically, “intellectual property” extends to discussions of patents and copyrights (particularly of books and software). For the purposes of our discussion, the rest of the definition is tangential. You help make your point by extending the discussion into issues of states-rights, colonial brands, etc. Those aren't at issue.

    The intellectual defense of trademarks go even deeper than consumer protection, to the definition of “fraud.” A trademark (brand) indicates the authorship of a work.


  5. they don't call it blackletter law for no reason dan. trademark, copyright, and patents, that is intellectual property. and when you say intellectual property, whether you realize it or not, you invoke all three. that doesn't mean its a good thing, it just means that is the way it is. a trademark is a piece of intellectual property. therefore, trademark law is part of intellectual property law. i'm not trying to be pedantic here, but really, trademarks are ip. if they aren't, then please tell me what they are?

    and then there you are making my point for me. if a trademark indicates authorship of work, then by god a copyright is pretty similar to a trademark isn't it? the right to publish what you authored has to somehow be involved with the act of authorship doesn't it? (an intellectual, not a legal question)

    and please don't make the academic mistake of confusing bankruptcy with debtor-creditor rights. that's like confusing torts with contract. bankruptcy laws were created in order to avoid gunfights between debtors and creditors. plain and simple. oh, and sheriffs too. to do this, a legal fiction was created, and has been imposed, in what we call bankruptcy. outside of bankruptcy, debt is fixed income, inside bankruptcy, debt is equity.

    but even still, creditors routinely have rights in intangibles, like intellectual property, for example. but also they have rights in more mundane things, like accounts receivables, assingments of future contracts, or even, nothing at all.

    all that said, you have a good point here. just as applied to patents, not all of ip.

  6. Federalist,

    I'm not sure what you are arguing. A phrase like IP can be used differently in different context. In my post, I used it in reference to the “exclusive Right[s]” in the Constitution. If you find “exclusive Right” more accurate or precise to say, then use that phrase instead.

    Nor am I sure what you are saying (regarding the post and discussion) on bankruptcy. That you consider debts to be IP as well? Something else?

    I am not sure how your comments are substantive, though I appreciate you as a commentator.

    Perhaps begin again?


  7. dan: let me narrow it down. you say ip has no moral value. you then define ip as a utilitarian device for economic growth. but what you are really talking about is only patents. and even then, you are probably not talking about all patents. copyrights and trademarks, and even arguably some patents, are not “merely utilitarian”. there is a retributive principle at work in their legal recognition… that was what i was saying. clear?

    the point about intangible debts is that they differ in no substantial way from intellectual property. the right to call an intangible product of your mind your own, and therefore be able to assign its benefit to others is akin to the right to call your accounts receivables your own, and assign them to others. but this point is barely tangential, i admit, to your discussion. and i still think you need to address the above paragraph. moral issues are associated with various types of intellectual property, if you want to exclude those types of ip from your analysis, you do so artificially.

  8. Federalist,

    I have allowed you to become confused. Let me clarify for you, so you can offer substantive criticism if you so choose.

    “Intellectual property,” as it is used in current political discussion refers to the exclusive Rights in I/VIII/VIII. Debts and bankruptcy are elsewhere enumerated. As you mention, trademarks and brands often call under Amendment X. I'm not refer to either. I am refering only to the “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” “To promote the Progress of Science and useful Arts”
    This includes patents. This includes copyrights of words and codes.
    All other things are outside the domain of my post.
    I'm happy to continue this discussion, but I want to make sure we at least agree on what we are talking about.

  9. yes, i am confused. but you make it sound like thats a bad thing! i can limit my language to federally recognized ip if you like. i am curious though, was the author of the article you referred to in your post using the phrase ip as narrowly? if so, there is a profound language barrier between what you describe as “political” definitions and those used by the bar (wouldn't be the first time of course, but am truly curious)

    secondly, limiting my language to federally regulated ip only… is there any reason why we should exclude 17 USCA s 1 et seq, from the discussion as well?

    the reason i ask this is because, while the constitutional purpose is explicitly fashioned as economic, the actual statute governing copyrights reciprocates the morals we see applied by the common law in trademarks.

    moreover, the entire doctrine of “fair use” and the defenses therein are a balancing act between economic and moral considerations. the very term “fair use” connotes the equitable posture which courts take in these cases. it may not be kantian morality which ultimately the courts use to decide these cases, but when, for example, a court restrains the use of injunctions against a person authoring a parody, they do so not merely to benefit the economy, but because parody is not the same as theft…. you aren't as morally culpable when you write satire as you are when you plagiarize.

    would this qualify then as a moral value attached to federally recognized ip?

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