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<title>Don't Let ‘Intellectual Property’ “Intellectual Property” Twist Your Ethos</title> Ethos
- GNU Project - Free Software Foundation</title>
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  <h2>Don't Let ‘Intellectual Property’ “Intellectual Property” Twist Your Ethos</h2>

  <p>by

<address class="byline">by <a href="http://www.stallman.org/">Richard M.
  Stallman</a><br />
  June href="https://www.stallman.org/">Richard
Stallman</a></address>

<p><i>June 09, 2006</p> 2006</i></p>

  <p>Most free software licenses are based on copyright law, and
  for good reason: Copyright law is much more uniform among
  countries than contract law, which is the other possible
  choice.</p>

  <p>There's another reason not to use contract law: It would
  require every distributor to get a user's formal assent to the
  contract before providing a copy. To hand someone a CD without
  getting his signature first would be forbidden. What a pain in
  the neck!</p>

  <p>It's true that in countries like China, where copyright law is
  generally not enforced, we may also have trouble enforcing free
  software license agreements, as Heather Meeker suggests in her
  recent LinuxInsider <cite>LinuxInsider</cite> column, <a href=
  "http://www.linuxinsider.com/story/50421.html">“Only “<a
  href="https://linuxinsider.com/story/only-in-america-copyright-law-key-to-global-free-software-model-50421.html">Only
  in America? Copyright Law Key to Global Free Software
  Model”</a>.</p>
  Model</a>.”</p>

  <p>However, this is not a reason to press for more copyright
  enforcement in China. Although we would use it to protect
  people's freedom, we have to recognize that mostly it would be
  used by the likes of Microsoft, Disney and Sony to take it
  away.</p>

  <p>Ironically, we might have more success enforcing copyright in
  China than Microsoft, Disney and Sony — because Sony—because what we would
  want to do is easier.</p>

  <p>Disney wishes to stamp out semi-underground organizations that
  sell exact copies. With free software, regardless of precisely which
  free license is used, that kind of copying is legal. What we want to prevent,
  when the free software license is the
  GNU <a href="/copyleft/gpl.html">GPL</a>, href="/licenses/gpl.html">GPL</a>, is the release of
  proprietary software products based on our code. That kind of abuse
  is at its worst when carried out by large, well-known companies
  — and companies—and
  they are easier targets for enforcement. So GPL
  enforcement in China is not a lost cause, though it won't be
  easy.</p>

  <h3>No Chinese Laundry</h3>

  <p>Nonetheless, Meeker's claim that this leads to a global
  problem is simply absurd. You can't “launder”
  material copyrighted in the U.S. by moving it through China, as
  she ought to know.</p>

  <p>If someone violates the GNU GPL by distributing a non-free nonfree
  modified version of GCC in the U.S., it won't make any difference
  if it was obtained or modified in China. U.S. copyright law will
  be enforced just the same.</p>

  <p>Although this error might seem to be the central point of
  Meeker's article, it is not. The real central point of the article
  is the perspective embodied in her use of the term
  “intellectual property”. property.” She uses this term pervasively
  as though it refers to something coherent — something coherent—something it makes
  sense to talk about and think about. If you believe that, you have
  accepted the article's hidden assumption.</p>

  <h3>Loose Language</h3>

  <p>Sometimes Meeker switches between “intellectual
  property” and “copyright” as if they were two
  names for the same thing. Sometimes she switches between
  “intellectual property” and “patents” as if they were
  two names for the same thing. Having studied those two laws,
  Meeker knows they are vastly different; all they have in common
  is an abstract sketch of their form.</p>

  <p>Other “intellectual property” laws don't even
  share that much with them. The implication that you can treat
  them all as the same thing is fundamentally misleading.</p>

  <p>Along with the term “intellectual property” goes a
  false understanding of what these laws are for. Meeker speaks of
  an “ethos” of “intellectual property”
  that exists in the U.S. because “intellectual property is
  in the Constitution.” That's the mother of all
  mistakes.</p>

  <p>What is really in the U.S. Constitution? It doesn't mention
  “intellectual property”, property,” and it says nothing at all
  about most of the laws that term is applied to. Only two of them —
  copyright
  them—copyright law and patent law — are law—are treated there.</p>

  <p>What does the Constitution say about them? What is its ethos?
  It is nothing like the “intellectual property ethos”
  that Meeker imagines.</p>

  <h3>Failure to Execute</h3>

  <p>What the Constitution says is that copyright law and patent law
  are optional. They need not exist. It says that if they do exist,
  their purpose is to provide a public benefit — to benefit—to promote
  progress by providing artificial incentives.</p>

  <p>They are not rights that their holders are entitled to; they
  are artificial privileges that we might, or might not, want to
  hand out to encourage people to do what we find useful.</p>

  <p>It's a wise policy. Too bad Congress — which Congress—which has to carry
  it out on our behalf — takes behalf—takes its orders from Hollywood and
  Microsoft instead of from us.</p>

  <p>If you appreciate the U.S. Constitution's wisdom, don't let
  “intellectual property” into your ethos; don't let
  the “intellectual property” meme infect your
  mind.</p>

  <p>Practically speaking, copyright and patent and trademark law
  have only one thing in common: Each is legitimate only as far as
  it serves the public interest. Your interest in your freedom is a
  part of the public interest that must be served.</p>
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