From: T0Morrow@aol.com
Date: Sat Dec 19 1998 - 22:29:31 MST
Paul,
I think you have the basic issue squarely in mind, but there are quite a few
pesky details to cover.
>[T]he
>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
>language?
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
t0morrow@aol.com
http://members.aol.com/t0morrow/T0Mpage.HTML
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