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.comment: A Moderate Approach to Intellectual Property

"Mom, the Germans Are Doing It Again . . ."

July 11, 2001

It has been argued, not without evidence, that anytime Europe makes it an entire generation without destroying itself in intramural warfare, it's soon to indulge in the kind of mischief that prods the overdue conflict into existence.

But warfare comes less and less in the form of people with guns and submarines and cannon killing each other and breaking their stuff. Today's battles are increasingly economic ones. Like the battles of old, the combatants play for advantage, choosing the battlefield where they have the best chance of winning. Those battlefields are determined by venue shopping, in the case of class-action lawsuits, and by, now, country shopping, as in the case of Adobe v. KDE.

Under the current German system of laws (called, one might think from this case, Reich 3.1), lawyers get to bring what amounts to suit against people in behalf of people who have not authorized them to do so. They then get to bill not the plaintiff but the defendant for their efforts.

We've had a German lawyer employ German law to enforce the American trademark of an American company. The company, which named itself after the chief ingredient of many of the world's finer mud huts, has trademarked the perfectly ordinary word "illustrator," perhaps in the belief that this will give it some advantage against the vastly superior Corel DRAW!.

The victim of this collection of absurdities -- a/k/a the defendant -- is a German university, on whose web page appeared information connected with KIllustrator, the vector graphics program that is part of KOffice, the KDE office suite.

It's obvious that we can criticize Adobe for filing for a trademark that is ridiculous, and the U.S. government for granting it, and Germany for having ridiculous laws as to the enforcement of trademarks, and the whole system in which a word constitutes "intellectual property."

To stop there would be to miss the point, and it's a point to which all of us to whom Linux matters would do well to focus upon. The title of this section is in quotation marks because it is exactly the kind of response that does no good, yet to which it's easy to be drawn.

The Columbia Law School professor, Eben Moglen, could well be a powerful moderator and representative of views held by many of us, but, frankly, anyone who writes monographs with phrases like "the death of copyright" in their titles has already staked out a position so uncompromising that it's difficult for anyone but his own little cheering section to take his work very seriously. Intellectual property is a good thing. Without it, the incentive for writers to write would all but disappear, except for very bad writers of whom there are many. Americans (and others who have interest in American literature) need look no farther than Mark Twain's writings on the subject. The death of copyright would be cause for general mourning.

The theory is that writing -- including the writing of software -- is like scientific advances: It has an inevitability; if I don't discover it today, you will tomorrow, and therefore my discovery today oughtn't be mine. (Whether this theory holds up, whether the supposed inevitability exists, is highly questionable, but let's let it pass for now.)

So it is said, too, of patents -- all discoveries are destined to be made, so the first person there oughtn't be rewarded.

There's a terrible flaw in all this, though: It's manifestly wrong. The profit motive, as codified by intellectual property ownership, is the reason in many cases why research and development were undertaken to begin with. I know (to the extent that I have interviewed him on a number of occasions) a brilliant fellow who discovered on his own a broad-spectrum, nontoxic antibiotic that would eliminate whole classes of protozoan and bacterial infections for which, until his discovery, there was no effective treatment at all. What's more, he came up with a way to synthesize it for $4 per pound. A pound would treat hundreds of people. Pretty cool, no? No.

He developed all of this while in government employ, meaning that his work is in the public domain. Bringing a drug to market involves jumping through approval hoops costing, on average, $500 million. Yes, half a billion dollars before the first pill gets distributed. But, because the formula is in the public domain, any company going to the trouble to get it approved would be instantly undercut by another company, without the huge overhead, marketing the now-approved drug at just over the next-to-nothing it costs. The effect? Nobody is even trying to get approval, and the world is denied a very cheap and enormously effective drug -- because its formula is available to everyone.

Yet this compound is so effective for so many ills that, were it privately developed and the rights to it therefore privately owned, the amortization of the development and approval costs would be little per dose -- and it would be available, which it isn't now.

So the issue of intellectual property rights isn't as black and white as the tub thumpers would have us believe.

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