If we examine the market for computer software more closely, we can also see that much of the FUD has concentrated not only on shortcomings and flaws of the competitor's software itself, but also on instilling fear in the customer that the rival's product infringes on "intellectual property rights" - or better still, "may not respect intellectual property rights of third parties". Now, that's a bit of a mouthful and it isn't immediately clear what is meant by this statement. Nor is it meant to be clear what is meant. Let me use a little anecdote to try to convey the nonsensical mashup of concepts which is "intellectual property".
Sport is a fairly broad concept - Wictionary defines sport as "[a]ny athletic activity that uses physical skills, often competitive." Anyone remotely familiar with sport will know of football, basketball, baseball, rugby and probably many more. All of these individual games are collectively referred to as "sport/s". I am now going to use an analogy which is probably flawed in many respects, but nonetheless should serve to illustrate why the concept of "intellectual property rights" simply does not make sense.
Imagine a local basketball team has the "exclusive right" to play basketball in a local sports hall. This local basketball team therefore has the right to determine who they play against and when - more importantly, this basketball team has the right to exclude other basketball teams from playing in their sports hall. This is a fairly logical application of the concept of "property" - the "owner" has the right to exclude others (and also to allow others access, as well as to determine the conditions of access). Currently, nobody is complaining. The basketball team is doing nothing out of the ordinary.
Now imagine that there are other sports club in the locality. There is a football club, a baseball club and a swimming club. Each of these games fits under the collective term "sport", yet nobody would compare swimming with football except to state that both involve a degree of physical activity.
On a certain day, a number of families with children move into the locality. Each local club would love the families to sign up for membership. The manager of the local basketball team sends a letter to each of the families in which he states that the basketball club has "sports rights" in the locality, which may be infringed upon by the other clubs. Each family should thus only obtain membership of the basketball club - as you never know when the basketball club would "feel forced to defend its sports rights". This might be enough to instill enough FUD in a family to actually only sign up for the basketball club. On the other hand, it might also be enough to enrage one of the other clubs to write to the basketball club manager to ask him to specify what exactly he means with "sports rights" and to please state how he believes the other clubs to be infringing upon them.
It is probably already obvious, that the tactics of the basketball club manager will only work as long as the family who receives the letter actually believes the FUD. As soon as the basketball club is asked to put cards on the table and actually state for once and for all what these so-called "sports rights" are, any family would be able to judge for themselves, whether or not the "sports rights" were of any substance. Thus, from an objective standpoint, once these "sports rights" are actually in plain view for everyone to see, the "U" and "D" evaporate from FUD. Maybe even the "F", depending on how the "sports rights" are viewed. This is why it may be more profitable for the basketball club to obscure what property rights it actually has to the greatest extent possible, in order to scare as many of the new families as possible into only joining the basketball club.
So what property rights could conceivably be masked by the phrase "sports rights"? To take the analogy a little further, imagine that the basketball club has applied for and received exclusive rights to
- a new method of connecting an air valve to a rubber ball allowing for much higher interior air pressure and better longevity
- scoring a point by passing a spherical object through a predefined space
Now imagine the locality is called "The Shire" and the traditional colours of "The Shire" are red and white. The basketball team also claims the right to the name "The Shire" and to the traditional colours as its sporting attire. To do otherwise would only cause confusion, the basketball team maintains.
Thus, we can now see the potential property rights which are hidden behind the phrase "sports rights" - we have two claims which are in some way related to sports in general and one claim which is related to the "dress" of the basketball team. To come full circle, the initial two claims could be seen as patent claims and the latter "sporting attire" issue could be seen as a trademark/trade dress issue. Patent law and trademark law are two unique bodies of law which do not have many similarities. Patent law and trademark law are also often lumped together with copyright law and are referred to as "intellectual property rights" in the same manner as the rights in the analogy are lumped together by the basketball team to form "sports rights". The point behind all of this? The basketball team seeks to cause Fear, Uncertainty and Doubt ("FUD") and to gain a competitive advantage from this.
Many people have already made it quite clear that the phrase "intellectual property" is way too broad and shouldn't be used as it lumps together bodies of law which should not be lumped together. RMS is probably the most foremost of these. For 2009, I, for one, will certainly be reducing my use of the phrase - hopefully to zero. More importantly, I will also make an effort to try to explain to others why the phrase is problematic and try to get them to be more precise about what it is they are trying to convey when they use the phrase. Oh, and by the way, I have nothing against basketball!
