Re: Coercion = Intellectual Property Rights?
Sun, 20 Dec 1998 00:29:31 EST


I think you have the basic issue squarely in mind, but there are quite a few pesky details to cover.

>notion of owning an "idea" or "meme" strikes me as absurd.

No recognized category of intellectual property (IP) grants rights to mere ideas or memes. U.S. copyright law, for example, covers only particular expressions of ideas; it expressly forbids granting rights to ideas. See the 1976 Copyright Act s. 102(b). U.S. patent law, for example, covers only new, useful, and non-obvious devices or processes. See Patent Act ss. 101-103.

>[D]efending and
>enforcing intellectual property rights can itself be a most
>pernicious from of coercion.

Yes, copyright and patent look suspect, at any rate. Trademark law less so. The problem with the former two are that they contravene established rights to tangible property. Trademark law closely resembles a cause of action for fraud (if you want to think of it in tort terms) or breach of contract (on the basis of an implied warranty). Those rights co-exist comfortably with rights to tangible property, so trademark differs from copyright and patent law. The only really dicely thing about trademark is that the right vests in the holder of the mark, rather than in consumers. Administrative reasons may excuse that switch, though.

>What would people think if I decided to copyright the english

I'd think that you could not do so, per (again) s. 102(b).

>Ok, what if I decided to copyright the word "organic" . . . .

Sounds like you have trademark in mind, there. But there's a bar on generic marks, so you would never win trademark rights to that word in that context. You could probably call, say, your *skateboard* company "organic," though. Consider the contrast between Apple Fruit Co. and Apple Computer.

>. . . . my last name is McDonald . . . . And I decided to open a
>small business online called "McDonald's Electronics". . . .

It is not so clear that you would lose that trademark case, since the acid test of infringement is likelihood of consumer confusion. But you are right to assume that there is no absolute right to use one's birth name in commerce. You can thus give up on the idea of opening up "McDonald's Eatery."

>Can somebody here tell me how this is *not state-sponsored coercion?

Well, sure it is. But it is also statist coercion to call the cops to keep some creep from trespassing on your land. You may have problems with statist coercion, but trademark law really isn't much worse a reason for filing suit than real property law (see my caveats above, however, about the vesting of the right).

>Ok, so far I have focused on simple trademark law as opposed to
>intellectual protection of entire works of art or literature.
>The question is, where do we draw the line? At 10 words, at 100
>words at 1000 words?

Sounds like you have copyright's fair use doctrine in mind. Yes, it presents inexcusably large grey areas. But copyright as a whole is suspect--not just the scope of that particular defense.

>I propose that it
>is more in line with the individualistic self-direction
>principles that if your creative work means that much to you,
>then it is *you* who must take responsibility to protect your
>work from theft or fraud and not resorting to the strong arm of
>government to do it for you. And if someone manages to bypass
>your copyright protection encryption, then it is your
>responsibility to strengthen your encryption.

Sounds OK to me. Convince Disney, though!

>Paul Hughes

T.0. Morrow