Of course, while IANAL, I believe the litigated standard is that the legal standing of an email footer read after you have already read the document is null.
------------- Legal Footnote ------------------
"Any ideas accidentally divulged in this email are not just my personal property, but may be taboo in your jurisdiction. Please forward legal fees to me immediately or, because of the taboo thing, pluck out your own eyes as indicated by the relevant customs."
On Tue, May 6, 2008 at 3:07 PM, Ed Barkmeyer < edbark@xxxxxxxx> wrote:
Ken Laskey wrote:
> The problem with IPR is similar to the age-old academics feuds of who
> came up with what first.
Ah, if only that were the issue.
The age-old academic feuds were about getting peer recognition and
credit for the work or the idea. Academics had no expectation of
significant income from their ideas -- the best they could hope for was
increased sales of their books.
Modern IPR in industrial communities is about using a form of
"copyright" as a substitute for "patent", and the expectation is that
"license" will/may produce significant income for someone, or keep
others out of a domain in which the person/firm hopes to produce a
product that will generate significant income.
This difference in motivation is key to understanding why IPR is a big
deal. It is not about getting credit for an idea, it is about who makes
the money on the idea.
License for copyrighted material used to be about reproduction, because
that was the means of dissemination and therefore the means of making
money on it. But we can no longer easily control the reproduction of
any representations of ideas or artistic contributions because the
physical medium is publicly accessible and cheap. So the artistic
professions are busy inventing artificial legal controls on the
dissemination rather than the reproduction.
But somehow, in IT and then other engineering and scientific
communities, we have turned these artificial controls into a new legal
concept -- "intellectual property rights". When we talk about IPR, we
are talking about "owning a concept", not just the right to reproduce a
particular representation. And traditionally, ownership of a concept
that has commercial value is the domain of *patent*. Patent is about
owning the use of an idea in a device for a particular purpose. And to
get a patent, you have to demonstrate that the idea is new, the
application to the purpose is new, or the mechanism of use of the idea
in the device is radically different from any other device for the
purpose. You don't just assert that you had the concept first; you
demonstrate that you used that advantage in time to create the first
useful application.
Instead of using patent intelligently and being more careful about our
information leakage, we have created a field day for the lawyers. We
are trying to shortcut the patent process by claiming ownership of an
idea based solely on publication of the concept, without having to have
an associated product design and a feasibility demonstration. And in so
doing, we are trying to patent ideas instead of uses of ideas, concepts
instead of designs.
Artists don't copyright concepts; they copyright performances and works.
Authors don't copyright ideas; they copyright their presentation of
them. And engineers don't patent concepts; they patent designs that
demonstrate the use of them.
But now we have "intellectual property rights" -- ownership of ideas.
And we should all be very afraid.
> You don't want to overly limit what can be
> brought into a discussion ...
That depends on who "you" is. In engineering communities, if you are
developing product designs, you don't bring your ideas to public forums
until after you have made the patent applications. And if that is what
you are doing, you don't contribute to the public forums anything more
than is needed to accomplish whatever your objective in participation
is. It's a different world, and joint engineering activities have very
careful disclosure rules, in order to avoid compromising patentable designs.
> For Ontolog, we exchange ideas and if anyone feels infringed upon,
> the recourse would seem to follow the traditional academic paths.
It would, if we didn't need lawyers to protect those paths.
We are hiring lawyers and developing IPR rules to protect the free
academic exchange of ideas from the misguided and the conniving and
their lawyers. That is, we are protecting our academic exchange from
intruders who do not have the academic mindset.
> If people feel there is a need to make disclosure statements that are
> readily available for others to find, we may need to consider such a
> process.
If people feel the need to "make disclosure statements", to the effect
that a given email contains licensed intellectual property, as distinct
from simply citing a published work, further discussion of the topic in
question should terminate instantly, and the viability of the forum is
in doubt. And yes, if we start to see that kind of thing as a regular
occurrence, "free academic exchange" will be a thing of the past.
-Ed
P.S. I apologize for the soapbox performance, but I view the current
legal work on IP with great alarm. Maybe, once enough lawyers have been
paid to craft the language under which we can continue doing business as
usual in tripartite (industry/academe/government) communities, the whole
magilla will blow over. But "I pray thee, put in to yonder port, for I
fear a hurricane."
P.P.S. This is NOT a NIST position. It is mine. (And I hope I'm too
late to claim the IPR.)
--
Edward J. Barkmeyer Email: edbark@xxxxxxxx
National Institute of Standards & Technology
Manufacturing Systems Integration Division
100 Bureau Drive, Stop 8263 Tel: +1 301-975-3528
Gaithersburg, MD 20899-8263 FAX: +1 301-975-4694
"The opinions expressed above do not reflect consensus of NIST,
and have not been reviewed by any Government authority."
--
________________________________________
"When one door closes, another opens; but we often look so long and so regretfully upon the closed door that we do not see the one which has opened for us." -- Alexander Graham Bell
________________________________________
Toby Considine
Chair, OASIS oBIX TC http://www.oasis-open.org
Toby.Considine@xxxxxxxxx
Phone: (919)619-2104
blog: www.NewDaedalus.com
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