.comment: A Moderate Approach to Intellectual Property - page 3
"Mom, the Germans Are Doing It Again . . ."
Lawyers can no more be characterized than software developers can. There are good ones, bad ones, and all that's in between. We can, though, observe accurately that lawyers more than anyone else shape the laws of nations. This means that in many respects laws are drawn from the lawyer's perspective.
We are facing broad new challenges, what with the Digital Millennium Copyright Act, the World Intellectual Property Organization treaties, the advent of the European Union, and the attempt, such as it is, to mortise existing national laws to these vast changes.
Rightly or wrongly, the free and open software movements have gained a reputation for militant opposition to the very idea of intellectual property. The result is that our voice is deemed to be so loud that it cannot be heard over its own noise. We are in many respects ignored, when we have in fact useful things to say and might be heard if only we dropped some of the Maoist fervency.
We have in many respects taken the tone that we are above, or at least outside, the market forces that govern other software products and that we therefore can -- forgive me, Adam Smith -- give the market the invisible finger. But the world that exists is the one in which we have to live and work, and right now things are not going our way in the intellectual property side of things.
It is as ridiculous for us to argue that there should be no such thing as intellectual property as it is for Adobe to trademark the word "illustrator" and for some German law firm to go picking on an innocent university. Abuses and unreasonable activity can be dealt with on an individual basis, without the attempt to bring about sweeping changes. The fire truck that enroute to a fire runs over a child provides no argument for the elimination of fire trucks, though it does suggest that fire truck drivers, parents, and children ought to pay attention to what they're doing.
Likewise the Adobe v. KDE issue. If there were a problem (which I doubt; no one in the world would confuse the KDE program KIllustrator with the Windows program Adobe Illustrator, anymore than people confuse KWord or AbiWord or Word Perfect or Word Pro with Microsoft Word), it could easily and happily have been solved by a simple letter from Adobe, or for that matter an email to the KOffice development mailing list, saying, "Look, we have to protect our trademark, and that means we need to object to the naming of KIllustrator. We like your work and applaud your efforts, but please -- how about calling it something else? Our legal department says that we'll have to press this, but we'd rather arrive at an amicable solution." There would have been some grumbling, but it would have ended in KIllustrator being renamed. The company would not have lost the goodwill that it lost when the loose cannon lawyer set about squeezing money out of the university in the name of Adobe.
In any society, there is an underlying reliance upon sensibility and civility. This becomes all the more crucial as commerce moves increasingly to the international stage. The recent debacle involving the merger of two American companies, General Electric and Honeywell, in which the European Union provided a veto (while continuing to subsidize EU companies), demonstrates some fierce cultural and legal issues that will need to be sorted out. Adobe v. KDE is a smaller symptom of the same problem.
We'll not take our part in resolving them by denouncing intellectual property, or by denouncing Adobe, or by denouncing all lawyers or even all German lawyers. There is room to make all kinds of noise about the specific provision in the German law that allowed this to take place, and room to pressure Adobe on this particular issue. There is room to lobby for "good faith" amendments to the law, such that a company must inform anyone alleged to have violated a trademark who in turn would have the opportunity either to challenge the claim or remove the offending material before lawyers start sending bills. There is certainly room to campaign against venue shopping of all kinds, before the idea of country shopping becomes established.
Calm voices who have gone largely unnoticed have been saying for several years that the next war will be a commercial one, with the wired world at its center. Intellectual property is likely to be a leading weapon in that war, and to say that the notion of intellectual property is evil is to be both factually and tactically wrong. The dispute involving Adobe should serve as warning that we cannot simply sit back and wait for the war to happen, and then conquer the world once the smoke has cleared.
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