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Can developers reclaim donated IP? (Linux.com)
Linux.com muses on the ownership of (so-called) intellectual property, including a discussion with
Richard E. Fontana, of the Software Freedom Law Center. "'Intellectual property is property; like any other form of property, ownership can be transferred to someone else. With respect to copyrights (and also patents and trademarks), an outright transfer of all rights to someone else is called an "assignment." Ownership generally means the ability to exercise all rights associated with a form of property, so to convey ownership of copyrights you would assign them. (If you transfer fewer than all rights to someone else, that's a "license.") You can assign copyrights to someone else in return for compensation, or you can assign them as a gift. In the US, at least, an assignment must be in writing and signed by the person conveying the copyrights.'"
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"Intellectual Property" != property Posted Aug 24, 2007 23:53 UTC (Fri) by josh (subscriber, #17465) [Link] And I'd expect a lawyer to know better, though they may just have used a bad analogy by way of explanation. Copyrights, patents, and trademarks have different sets of laws covering them, entirely different from each other and from property law.
http://www.gnu.org/philosophy/not-ipr.xhtml
Despite the poor choice of wording, the rest of the story does hold true, to the best of my knowledge. On the other hand, in some legal jurisdictions you can revoke a license grant even if the license does not specifically mention revocability, necessitating license language that explicitly grants a non-revocable license.
"Intellectual Property" != property Posted Aug 25, 2007 0:11 UTC (Sat) by josh (subscriber, #17465) [Link] And I'd expect a lawyer to know betterOr, to clarify: I'd expect a laywer for the Software Freedom Law Center to know better, and to choose more appropriate language.
"Intellectual Property" != property Posted Aug 25, 2007 0:54 UTC (Sat) by JoeBuck (subscriber, #2330) [Link] But what language is wrong here? The first sentence says that intellectual property can be transferred like other property. And that is correct for not only copyrights, but also for patents, trademarks, trade secrets, rights to masks for semiconductor chips, and (AFAIK) everything else that goes under that generic name.He then goes on to talk specifically about copyrights. It is RMS, not the SFLC, who always insists that people not say "intellectual property".
"Intellectual Property" != property Posted Aug 25, 2007 5:46 UTC (Sat) by chromatic (guest, #26207) [Link] Can you transfer trademarks? Is it possible to transfer a trade secret?
Conflating all of the separate entities often lumped together as "intellectual property" seems as fuzzy in an area as precise as the law as conflating civil and criminal law or confusing a cease and desist letter with a summons.
"Intellectual Property" != property Posted Aug 25, 2007 9:25 UTC (Sat) by drag (subscriber, #31333) [Link] I agree.
When talking about copyrights, talk about copyrights. When talking about patents, talk about patents. Don't talk about "Intellectual Property", it's not only a on-purpose misnomer, it's just plain confusing. It's difficult to just to know what your talking about. Nothing that applies to copyrights is ever going to automaticly apply to patents or any other sort of 'intellectual property law'. They are entirely two different things governed and treated completely seperately and differently.
It's what I like to call the 'Smurf effect'. If you don't know what they are they are little blue cartoon characters that had a habit of substituting adjectives, nouns, and verbs with the word 'smurf', 'smurfy', or other variations.
They'd say something like:
Same thing has happenned with the term "Linux". Linux doesn't realy mean anything anymore. It can mean a social/subcultural movement, development methodology, operating system, operating system kernel, a way to describe software that is made to run on a certain operating system (and which runs on most other operating system), and a few other things. When people use the term "linux" in a sentance you have to spend a few moments figuring out the context just to know what they are talking about.
Words mean stuff, unless they mean lots of different stuff, then it's just confusing.
"Intellectual Property" != property Posted Aug 25, 2007 22:32 UTC (Sat) by sepreece (subscriber, #19270) [Link] "Words mean stuff"
Yes, and I think if you ask any lawyer what "intellectual property law" means, you'll get pretty much the same answer - copyright, trademarks, trade secrets, and patents. Yes, there are differences between them, but they are conventionally grouped in the study and practice of law, and that's what the word means.
In any case, for the purposes of the particular question the article addressed, that grouping actually makes sense, since all are treated essentially the same [in the US] with respect to how they are assigned and whether the assignment can be undone unilaterally (generally, no).
A Porsche, a Prius, and a Stanley Steamer are all conventionally grouped together as cars, but the technological differences between them are vast. With respect to SOME questions they are almost indistinguishable, with respect to others they have almost no commonality. Most categorizations are like that.
Disclaimer: IANAL. My daughter, however, is an IP attorney. She has worked on litigating patents, licensing copyrights, and trademark interferences over the two years she's been working, though she does specialize in one. She did not review this comment.
"Intellectual Property" != property Posted Aug 26, 2007 5:08 UTC (Sun) by drag (subscriber, #31333) [Link] Ya, but it's very possible that copyrights will be 'reclaimable' and patents are not.
They are two entirely different forms of law and unrelated with their own special set of rules. What rules or court rulings that affect copyright or trademarks will have no impact on patents what-so-ever and visa versa. Lumping them together under one term is misleading.
It's not like cars at all. Or comparing vehicles. It's more accurately described as different planes of existence were physical laws are different. Were in one place stuff falls up, and the other stuff falls down.
IANAL either. :)
"Intellectual Property" != property Posted Aug 27, 2007 2:09 UTC (Mon) by sepreece (subscriber, #19270) [Link] "They are two entirely different forms of law and unrelated with their own special set of rules. What rules or court rulings that affect copyright or trademarks will have no impact on patents what-so-ever and visa versa. Lumping them together under one term is misleading."
I still think you're overreaching. The laws governing the different kinds of IP are different (though they do have some similarities). However, for all that, they are an accepted branch of legal practice, generally learned and practiced by the same attorneys and firms. The words DO mean something clear and distinct, even if what they mean has subdivisions.
[I suspect that, in the US at least, copyrights, trademarks, and patents are all "reclaimable" under exactly the same conditions, which would be tied up in contract,commercial, and criminal law. However, as noted, IANAL.]
"Intellectual Property" != property Posted Aug 26, 2007 18:56 UTC (Sun) by man_ls (subscriber, #15091) [Link] How can you transfer a trade secret? You would have to "unlearn" whatever the trade secret is about, which cannot really be done. The original party will still know the secret even if it promises not to tell.
"Intellectual Property" != property Posted Aug 26, 2007 21:41 UTC (Sun) by JoeBuck (subscriber, #2330) [Link] You answered your own question: you still know the secret, you promise not to tell, but it becomes the legal property of the new owner. This happens all the time when a company is sold.
"Intellectual Property" != property Posted Aug 26, 2007 22:37 UTC (Sun) by man_ls (subscriber, #15091) [Link] Hmmm, I think I get it. So if for example you sell me the secret formula for making a fizzy beverage, then I should have to make you promise not only that you will not tell anyone else, but also not to make any of your own. Disturbing. Luckily trade secrets and free software do not mix well.
"Intellectual Property" = "slavery" Posted Aug 25, 2007 8:43 UTC (Sat) by gvy (guest, #11981) [Link] Exactly. I've been trying to fix dain bramage with some of local law<->foss colleagues but this simulacre seems already well entrenched.
If anything, "intellectual property" quickly boils down to _slavery_ as the only practically known in legal practice medium for intellect is human, to the best of my knowledge.
NB: copyright is completely different thing, of course. Even that much overstretched.
"Intellectual Property" = "slavery" Posted Aug 25, 2007 10:45 UTC (Sat) by angdraug (subscriber, #7487) [Link] Hear, hear! Why no one (FSF in particular) has started to use this line of argument against intellectual property yet? The way gvy puts it, it really is quite obvious, and catchy slogan, too: "Intellectual property means slavery!"
"Intellectual Property" != property Posted Aug 25, 2007 15:39 UTC (Sat) by jordanb (guest, #45668) [Link] Oh boy, just like the VMWare article, we're now going to get a bunch of LWN posters explaining how only they (and not the lawyers) understand the law. ^_^
Value of anonymous legal opinions Posted Aug 26, 2007 16:14 UTC (Sun) by butlerm (subscriber, #13312) [Link] I think the argument was more along the lines of - lawyers will argue any proposition, no matter how tenuous or questionable, to earn their fee. Doesn't mean they actually win. See SCO.
Being an anointed member of the constabulary is meaningless until the courts actually accept your arguments. The decisions that courts actually issue tend to be a great deal more grounded in reality than the idle speculations of the absent, anonymous, and un-named lawyer class.
If some lawyer wants to tell us why "derived work" has anything to do with "functional dependency" why don't they show up and actually make an argument. Until they do their opinions are worthless.
Can developers reclaim donated IP? (Linux.com) Posted Aug 25, 2007 8:32 UTC (Sat) by NAR (subscriber, #1313) [Link] This could be true in the US, but for example under Hungarian law the author cannot assign all of his/her rights and cannot waive them. More specifically the right to decide if the work can be published or not is not assignable and not waivable. Also the author can revoke the work from public any time (with good reason) and this right is not transferable either. I don't know if it's EU-conform or not.
Can developers reclaim donated IP? (Linux.com) Posted Aug 25, 2007 13:39 UTC (Sat) by zotz (guest, #26117) [Link] Are any of the mentioned rights bequeathable / inheritable in Hungary?
all the best,
drew
Can developers reclaim donated IP? (Linux.com) Posted Aug 26, 2007 18:09 UTC (Sun) by NAR (subscriber, #1313) [Link] Yes, they are inheritable.
Can developers reclaim donated IP? (Linux.com) Posted Aug 28, 2007 9:11 UTC (Tue) by nix (subscriber, #2304) [Link] Oh wonderful. So the heirs of a free software developer can force rewriting of anything that developer has significantly contributed to?
Can developers reclaim donated IP? (Linux.com) Posted Aug 28, 2007 9:48 UTC (Tue) by NAR (subscriber, #1313) [Link] Theoretically. However, according to the law, the heirs (and even the original developer) need a profound reason to do this. I don't know a software example, but it might be possible for (song)writer to revoke the rights for his/her early songs if he's/she's so ashamed of them. I know one writer who actually changed his name to hide the ownership of some his early works.
Can developers reclaim donated IP? (Linux.com) Posted Aug 25, 2007 14:07 UTC (Sat) by kleptog (subscriber, #1183) [Link] These are the so called "Moral Rights", part of the Berne Convention.
http://en.wikipedia.org/wiki/Moral_rights
You can't sign them away in the US either, but they're not recognised in the same way as in other parts of the world.
Can developers reclaim donated IP? (Linux.com) Posted Aug 25, 2007 22:34 UTC (Sat) by micka (subscriber, #38720) [Link] Same thing in France I think.
Can developers reclaim donated IP? (Linux.com) Posted Aug 27, 2007 7:22 UTC (Mon) by ekj (guest, #1524) [Link] It depends. Doesn't it always ?
For starters, it depends on your jurisdiction. For example, in some jurisdictions, such as for example Finland and Norway, there exist *ideal* rigths in a copyrigthed work, which cannot be signed away or otherwise lost.
Among these is the rigth to be recognized as the creator of a work that you did, indeed, create. Such rigths *cannot*, not even in principle, change hands, so it follows that they also cannot be reclaimed.
Makes sense to me. If I did indeed write some program, then no amount of compensation from you will change the fact that I am still the *author* of that program. (you may however for example buy from me the exclusive rigth to copy and market the program.)
For those parts that *can* be transfered, it is, again, atleast in some jurisdictions, the same as transfers of physical items. Sometimes the transfer can be reversed, but most often not.
Donated implies, I think, that the work in question was a gift. Gifts can, for example, be reclaimed if there where attached conditions, and those are broken. Say you give someone a car, but on the condition that the recipient never ever drives it while drunk. If the recipient still does and you can prove it (say he is convicted of it) you can reclaim the car. (again, depending on your jurisdiction)
A gift that is given with no strings attached though, can very seldom be reclaimed. There are exceptions in (some) laws, but they're for extraordinary circumstances, it's not the norm.
Physical property is very different from usage rights on information Posted Aug 27, 2007 12:39 UTC (Mon) by ber (subscriber, #2142) [Link] Comparing physical property with rights on software, text or trademarks often is a way to try to convice a public about ethical behaviour. Software and ideas can be shared without being lost, this is quite different from an apple or so. If we want a good debate on copyright, trademarks, patents, ideas, the political term "intellecual property" must be avoided.
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