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Source link: http://archive.mises.org/6930/revisiting-some-problems-with-patents/

Revisiting some problems with patents

August 2, 2007 by

I was recently talking with a very intelligent fellow patent attorney, and we got around to the subject of policy issues. One thing led to another and he discovered, and was a bit shocked by, myt opposition to patent and copyright. He was interested in some further information on the topics we discussed so I compiled an email with some information. As this corrals some useful links, material, and arguments about patents, I’ve provided an edited version below.

[Update: See my post, What are the Costs of the Patent System?]

The Principled Case Against Patents

For a theoretical critique of patent and copyright, see my 2001 JLS article Against Intellectual Property. A condensed version of the arguments presented there can be found in In Defense of Napster and Against the Second Homesteading Rule (LRC 2000). (The longer one has been translated into Spanish, Polish, and Georgian.) I must admit IP is not my greatest policy interest–I find other things more interesting, like rights theory, economic methodology, philosophy, etc.–but I’ve been pulled into this since there are so few people with clear understanding of IP and also a clear (libertarian) understanding of economics and (property) rights. Perhaps some day I’ll do a monograph or book version of some of these ideas.

Update: See also Jacob Sullum’s Reason column, The Knock Against Knockoffs, which also summarizes flaws with the moral case for IP.

Studies on the Costs of the Patent System

As for more utilitarian aspects–the alleged “net gain” provided by a patent system–this is addressed in There’s No Such Thing as a Free Patent, Mises.org, 2005 (the title is a take off on the Robert Heinlein phrase “There Ain’t No Such Thing As A Free Lunch,” sometimes attributed to Milton Friedman). I argue in this piece that patent attorneys and other advocates of the IP system claim the patent system is justified because it stimulates innovation, but they almost never try to really figure out whether the alleged benefits are greater than the costs. Here’s a good example of that: “A Patent Success Story”. This post notes that Patent attorney Dennis Crouch had written he was “proud of the patent system” in the case of the patented drug Zocor, because “[t]here is no question that patent rights played a major role in providing incentive to Merck to develop and test Zocor … The incentive worked ….” I asked him what exactly the surplus was (the “benefits” of the patent system, minus its “costs”). In reply, he backed down and said that “my little anecdote here does not prove anything and there are dozens of questions that must be analyzed before we would could determine whether the patent grant on simvastatin [Zocor] was an overall public good.”

When I noted that to my knowledge there are no serious studies concluding the patent system is a net gain, my colleague remarked that he thought that someone named Machlup had done a study at one time showing that the patent system is beneficial and what the “optimal” patent term should be. However, Machlup, in An Economic Review of the Patent System (a 1958 study cited in note 10 of my There’s No Such Thing as a Free Patent piece), does not, as far as I’m aware, determine any “optimal” patent term, nor does he conclude that the patent system encourages innovation that is worth more than the cost of the system. In fact, Machlup says:

No economist, on the basis of present knowledge, could possibly state with certainty that the patent system, as it now operates, confers a net benefit or a net loss upon society. The best he can do is to state assumptions and make guesses about the extent to which reality corresponds to these assumptions. … If one does not know whether a system “as a whole” (in contrast to certain features of it) is good or bad, the safest “policy conclusion” is to “muddle through”–either with it, if one has long lived with it, or without it, if one has lived without it. If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it.” (see pp. 79-80)

Hardly a ringing endorsement! As noted by French researches Francois Leveque and Yann Meniere of the Ecole des mines de Paris (an engineering university):

“The abolition or preservation of intellectual property protection is … not just a purely theoretical question. To decide on it from an economic viewpoint, we must be able to assess all the consequences of protection and determien whether the total favorable effects for society outweigh the total negative effects. Unfortunately, this exercise [an economic analysis of the cost and benefits of intellectual property] is no more within our reach today than it was in Machlup’s day [1950s].”

The most recent study I’m aware of is reported in my post Do Patents Discourage Innovation? Yeah. But So What.: Boston University Law School Professors (and economists) Michael Meurer and Jim Bessen conclude (as summarized by Patently-O):

“the pair has compiled a tremendous amount of economic data regarding patents and companies who patent. … Meurer & Bessen’s bottom line: On average, the patent system is bad for innovation. They agree innovator firms often profit from their own patents. However, the pair’s data shows that the innovator firms are also the ones most likely to be targeted by other patent holders. (litigation, licensing, etc.) In today’s system, they find, the disincentives created by other people’s patents outweighs the incentives to build your own portfolio. I.e., on average, the patent system discourages innovation.”

And here’s another recent study about how patents harm innovation: Patents Chilling Effect on Science, reporting that:

“The American Association for the Advancement of Science recently conducted a survey on the effect of patenting on the sciences. The results are frightening: 1/5th or more of all research projects in the United States are being chilled by patent holders. The sheer amount of research being canceled because of licensing issues is astounding, but at the same time many of these researchers hold their own patents and therefore contribute to the problem.”

See also Mike Masnick, The Case For Patents Harming Innovation, TechDirt (2006); The Patent Epidemic: It’s wasting companies’ money and slowing the development of new products, Business Week (Jan. 9, 2006).

Other sources that talk about whether the patent system is worthwhile are collected in the post Intellectual Property Resources, including:

See also Michele Boldrin & David K. Levine, Growth and Intellectual Property (draft). In this paper, Boldrin & Levine do a calculation, in the context of a model in which patents are good for innovation (in fact, an extreme version: no innovation at all without at least some patents). From an email by Boldrin to me, 9/28/07: “Then we compute what a ‘benevolent dictator’ would consider to be the socially optimal degree of patent protection. By assumption all the transaction/legal costs you are looking at are assumed away here. Then we go on and use data to figure out if the current level of IP protection in different industries/countries is too high or too low. We find it is too high, sometimes by orders of magnitude.”). The paper assumes “a standard model in which IP protection is socially beneficial” (even though they reject the “standar model” and argue elsewhere “that IP is not generally socially beneficial.” Even assuming a world in which IP is “socially beneficial,” they conclude that

  • The elasticity of total monopoly revenue is increasing, hence the term of IP protection should decrease over time as the market size
    increases. Our best estimate, given the historical growth rate of market size, is that IP protection terms should decrease of about two months per year.
  • Current copyright and patent terms are equivalent to complete monopoly protection for the full economic life of new goods, and are dramatically higher than optimal ones, sometime by two orders of magnitude.
  • On the basis of the available evidence, our best estimate of the length of optimal copyright term is about one year, and that of patents is about seven to thirteen years.Distortion of Innovation and Innovation without PatentsAnother classic commentary is that of Arnold Plant, which explains that patents distort the innovative process. Quotes from Plant and Rothbard on this, as well as other relevant links, can be found in my first comment to the blogpost The Three Stages of Invention. Here Plant explains why it’s incorrect to assume that without patents there will be no innovation, and that the patent system clearly distorts the realm of innovative and investment activity. This topic is also discussed in n. 44 and accompanying text of my Against Intellectual Property. As for Plant’s views, see his The Economic Theory Concerning Patents for Inventions, sections 16, 19, 20, 24:

    The patent system may, on the one hand, be expected to affect the making of inventions in two ways. The first is to divert inventive activity into those fields in which the monopoly grant will be expected to prove most remunerative. It may, secondly, affect the total amount of inventive activity.

    … the utilitarians assumed that the patent system was responsible for the greater part of inventing activity. The question which they one and all failed to ask themselves, however, is what these people would otherwise be doing if the patent system were not diverting their attention by the offer of monopolistic profits to the task of inventing. By what system of economic calculus were they enabled to conclude so definitely that the gain of any inventions that they might make would not be offset by the loss of other output? By no stretch of the imagination can the inventing class be assumed to be otherwise unemployable. Other product which is foregone when scarce factors are diverted in this way completely escaped their attention.

    … at the beginning of this century Professor J. B. Clark was still writing: “If the patented article is something which society without a patent system would not have secured at all – the inventor’s monopoly hurts nobody… His gains consist in something which no one loses, even while he enjoys them. No inkling here that the patent inducement to invent diverts scarce human effort from other production, and that the subsequent exploitation of patents again interferes with the disposition of scarce factors which would obtain under competitive conditions.

    … It seems unquestionable not only that a very considerable volume of inventive activity must definitely be induced by price conditions, but also that that activity is diverted by price movements from other types of endeavour as well as from other fields of invention. Entrepreneurs faced with new difficulties or with new opportunities will divert not only their own attention, but that of every technician who can be spared, from the business of routine production to that of urgent innovation. They will not rely exclusively upon those types of professional inventors whose autonomous output pours out in a stream of unvarying size, and some of whom may be prepared, in return for the inducements which the entrepreneurs can offer, to transfer their spontaneous activity to their service. It cannot be assumed that all who are capable of innovation spend their whole lives in inventing. Many of them are also able administrators and production controllers; some in the past have been clergymen and barbers, and in our own time there is a steady flow of technicians from the research laboratories of pure science into those of industrial invention and out again. … The patent system … enables those who “have the monopoly of the right to use a patented invention to raise the price of using it … and in that way to derive a larger profit from the invention than they could otherwise obtain. The effect must surely be to induce a considerable volume of activity to be diverted from other spheres to the attempt to make inventions of a patentable type. [emphasis added]

    See also Rothbard, Man, Economy, and State, ch. 10, sec. 7:

    It is by no means self-evident that patents encourage an increased absolute quantity of research expenditures. But certainly patents distort the type of research expenditure being conducted. . . . Research expenditures are therefore overstimulated in the early stages before anyone has a patent, and they are unduly restricted in the period after the patent is received. In addition, some inventions are considered patentable, while others are not. The patent system then has the further effect of artificially stimulating research expenditures in the patentable areas, while artificially restricting research in the nonpatentable areas.

    Update: See also Jacob Sullum’s Reason column, The Knock Against Knockoffs, which summarizes the argument that innovation can occur without IP; and Douglas Clement’s article Creation Myths: Does innovation require intellectual property rights?, which discusses the anti-IP theories of Boldrin and Levine.

    Web Poll

    You may find of interest this informal web poll I did–among both patent attorneys and libertarians (and others, such as Digg readers), in which 78% of respondents said “YES” to this question “Would you give up your right to sue others for patent infringement in exchange for immunity from all patent lawsuits?

    Chicago School and Wealth-Maximization

    As for the Chicago-school types following the innovation-stimulation/wealth-maximization logic of the patent system to its end, see my post Patents and Utilitarian Thinking Redux: Stiglitz on using Prizes to Stimulate Innovation, which has Stiglitz arguing for a government panel of experts to give taxpayer financed cash awards to innovators (instead of a patent system). Other such proposals abound; see, e.g. Patents and Utilitarian Thinking and The Perils of Utilitarian Thinking.

    Admissions by Patent Attorneys

    I provided above one example already, re “A Patent Success Story”, regarding patent attorney Denis Crouch’s crawfishing. And here’s another fun one involving the same guy: as I noted in Patent Attorney Admission, Crouch admits: “Patents are intended to lure potential inventors into the business of innovation. The truth is, however, that very little is known about how patents really drive innovation.” Ha!

    This is one of my favorites (see: Miracle–An Honest Patent Attorney!): — I published a letter in the trade magazine IP Today (see Patent Trolls and Empirical Thinking) where I critiqued patent litigator Joseph Hosteny’s defense of patent trolls–in particular his comment that: “the patent system is necessary for there to be invention and innovation.” In my letter I wrote:

    “There is … no conclusive evidence showing that the purported benefits of the patent system–extra innovation induced by the potential to profit from a patent; earlier-than-otherwise public disclosure of innovation–exceeds the significant and undeniable costs of the patent system…. Is the patent system “worth it”? Who knows? Apparently no one does. It seems to follow that we patent attorneys ought not pretend that we do.”

    In response I got an interesting email from a respected patent attorney, a senior partner in the patent department of a major national law firm. Not a political type, just a regular guy–these are just his honest observations based on his long experience in the field:

    “Stephan, Your letter responding to Joe Hosteny’s comments on Patent Trolls nicely states what I came to realize several years ago, namely, it is unclear that the U.S. Patent System, as currently implemented, necessarily benefits society as a whole. Certainly, it has benefited [Hostey] and his [partners] and several of their prominent clients, and has put Marshall, Texas on the map; but you really have to wonder if the “tax” placed on industry by the System (and its use of juries or lay judges to make the call on often highly complex technical issues that the parties’ technical experts cannot agree on) is really worth it. Of course, anyone can point to a few start-up companies that, arguably, owe their successes to their patent portfolios; but over the last 35 years, I have observed what would appear to be an ever increasing number of meritless patents, issued by an understaffed and talent-challenged PTO examining group, being used to extract tribute from whole industries. I have had this discussion with a number of clients, including Asian clients, who have been forced to accept our Patent System and the “taxes” it imposes on them as the cost of doing business in the USA. I wish I had the “answer”. I don’t. But going to real opposition proceedings, special patent courts with trained patent judges, “loser pays attorney fees” trials, retired engineers/scientists or other experienced engineers/scientists being used to examine applications in their fields of expertise by telecommuting from their homes or local offices throughout the Country, litigating patent attorneys providing regular lectures to the PTO examiners on problems encountered in patent infringement cases due to ineffective or careless examination of patent applications, and the appointment of actually qualified patent judges to the CAFC, may be steps in the right direction.”

{ 138 comments }

ktibuk August 6, 2007 at 1:39 pm

Kevin B please explain to me,

What is the difference between a blank notebook and a novel made of the same exact materials, same paper same bindings same cover?

Just the “extra real ink” on the novel?

ktibuk August 6, 2007 at 1:43 pm

Let me rephrase the question since a blank notebook and a novel that you don’t care about can be worth the same.

“What is the difference between a blank notebook and your favorite novel (that you paid for once upon a time) made of the same exact materials, same paper same bindings same cover?

Just the “extra real ink” on the novel?”

Stephan Kinsella August 6, 2007 at 1:45 pm

ktibuk:

Stephan: “Second, it is actually IP that is socialist. Why? Because the essence of socialism is institutionalized aggression against private property rights”

This is not true. Socialism “denies private property” not theoritacally agresses against.

Any socialist system takes property from its owners–theft–and lets the state control it.

That is what we libertarians say because we believe there are private property rights unlike socialists. And if you deny IP rights, you are basically doing the same thing as a socialist albeit on a narrower domain.

Not true; IP is a way of re-assigning ownership rights in things to others; it’s a type of theft. It’s failure to respect the integrity of property rights.

Stephan: “The problem is you pro-IP libertarians can never say what you are for. You say you agree that there are problems with the existing law; yet you want some version of it. You never specify the details.”

This is also not true. Patents are wrong because they assume that independent discovery is impossible. “First comer” makes no sense for discoveries.

You are just confused: see my reply to you in the other thread.

The verdict is autamatically in for the independent discoverer as him being a thief.

This is gibberish.

Can you say Romeo and Juliette is just a love story like thousands that are out there or is there a uniquness to it that sets it apart that makes it some unique individuals creation.

“Uniqueness” does not imply “protectable as property.” Every number is unique. Are numbers ownable too?

Or can you say the difference between a blank notebook and a novel is only the tangible ink on the novel? Do people value the novel more just because of some ounces of ink on it, or is there something else going on?

The reason why people value impatterned objects is irrelevant.

Kevin B August 6, 2007 at 1:54 pm

ktibuk,

Existentially, the difference is in the ink. How could it be otherwise?

Placing less or more subjective valuation on something doesn’t change its physical characteristics.

ktibuk August 6, 2007 at 1:58 pm

Stephan: “Any socialist system takes property from its owners–theft–and lets the state control it.”

I am saying the same thing to you when you agress against IP rights but you deny their existance so in your head it is not agression at all. That is what the socialist do with all property. They deny existence of property rights so they say there is no theft is involved. If you deny a property right than you are a socialist, period.

I will answer to the patent stuff on the other thread.

Stephan: “”Uniqueness” does not imply “protectable as property.” Every number is unique. Are numbers ownable too? ”

Maybe it doesnt imply by itself but it establishes the reality of the thing. The reality that some of you try to deny.

There is a play called Romeo and Juliette. It is not just a copy of a general play about a love story. And it is not just the ink on apiece of paper. This is about the claim that everybody copies everybody argument.

“The reason why people value impatterned objects is irrelevant. ”

Yeah I thought it might. The most relevant thin the unique creation of a human suddenly becomes “impatterned object” and becomes irrelevant.

You won’t get rid of your contradictions and paradoxes unless you answer the irrelevant question. It may even visit you in your dreams.

George Gaskell August 6, 2007 at 2:08 pm

Can you honestly say that a man secretly filming a movie with his handycam is not commiting a crime[?]

Yes.

What is the difference between a bootlegger and a man that shouts fire in the movie theatre.

Several key differences come to mind.

First, the fire-shouter, as I understand the parable, is a fraud. The whole idea is that there is no fire, but the shouter takes advantage of other peoples’ lack of perfect knowledge to deceive them into thinking their lives are in jeopardy. There is no fraud aspect to the seller of copied creative works.

Second, the intended reaction sought by the fire-shouter is panic, which is itself a genuine threat to life and limb. There is no threat to life and limb by the seller of copied creative works.

Third, the seller of copied creative works is providing a valuable product to a willing buyer — i.e., he’s engaged in productive economic activity. You may not approve of that activity, but it is still productive. In contrast, the fire-shouter merely gets his jollies by watching people freak out, and they get nothing in return.

In short, I can’t think of a single way in which they are alike, except perhaps that they are both mammals.

Kevin B August 6, 2007 at 2:13 pm

ktibuk: “There is a play called Romeo and Juliette. It is not just a copy of a general play about a love story. And it is not just the ink on apiece of paper.”

What you are referring to does not exist apart from the mind.

ktibuk August 6, 2007 at 2:17 pm

See George, you are an utilitarian.

I am not.

I believe aside from the consequences a person can not shout fire in a theatre because he doesnt have the right, extended to him with a contract when he buys a ticket.

Also I dont believe there is freedom of speech, freedom of expression or freedom of religion.

I believe there is just property rights and extensions of it.

And since I am not an utilitarian like you I dont have answers for you. My brain is not wired to work like that.

ktibuk August 6, 2007 at 2:25 pm

Kevin B: “Existentially, the difference is in the ink. How could it be otherwise?

Placing less or more subjective valuation on something doesn’t change its physical characteristics.”

BUt I thought they were not real, make belief. How can people subjectively value them more, are there hallucinating just like me?

And existentially speaking, is there a difference between two notebooks with the same amount of same quality of ink but one of them with a certain complex pattern that when you read it you learn about economics like “Human Action” and another book covered with ink but unrecognizble patterns?

If there is what the hell is it?

George Gaskell August 6, 2007 at 2:57 pm

Also I dont believe there is freedom of speech, freedom of expression or freedom of religion. I believe there is just property rights and extensions of it.

I agree entirely with this sentiment.

I agree that the person with the handycam in the movie audience is violating the property rights of the owner of the theater premises, just as the fire-shouter is.

But that’s not what you are saying. You are saying that the handycam guy is violating the property rights of the maker of the movie on the screen. To my knowledge, that is not typically the same person as the owner of the theater.

But let’s say that the theater owner is contractually bound to the distributor to prohibit handycams, and the distributor is contractually bound to the movie studio to demand that the theater owners prohibit handycams, so that the theater owner is, in effect, required to enforce his property right to prevent customers from recording the the flickers of light on his screen.

Fine. In that case, I’ll say it again — to the extent that all of these restrictions are handled with ordinary premises-property rights and contractual agreements, I’m all for it.

But that is NOT what IP claims to cover. It claims rights far in excess of the right to control one’s premises, or the rights under a genuine contract. It is this excess that offends me.

Kevin B August 6, 2007 at 3:00 pm

ktibuk: “BUt I thought they were not real, make belief. How can people subjectively value them more, are there hallucinating just like me?”

The books are real, and having different physical characteristics is a good reason to value them differently. Humans are complex and can come up with all sorts of reasons for valuing things differently.

“And existentially speaking, is there a difference between two notebooks with the same amount of same quality of ink but one of them with a certain complex pattern that when you read it you learn about economics like “Human Action” and another book covered with ink but unrecognizble patterns?”

There is a difference in physical characteristics, yes. There is nothing existing but the physical characteristics.

When you speak of valuation, you are bringing the mind into the picture. At that point, there is nothing existing but the physical characteristics of the books and the mind.

There is a book about Peter Pan. You read it. Does Peter Pan come into existence? No. The book exists. Your mind exists.

Scott D August 6, 2007 at 3:03 pm

ktibuk,
You make a pretty big jump here:

This is not true. Socialism “denies private property” not theoritacally agresses against. That is what we libertarians say because we believe there are private property rights unlike socialists. And if you deny IP rights, you are basically doing the same thing as a socialist albeit on a narrower domain.

Let’s come up with a cool new type of “property right”. I’m going to proclaim that anything that I shine my flashlight on becomes my property. By seeing my light on it, I homestead that property and can prevent anyone else from using it, as long as my light remains on any part of it. Anyone who doesn’t acknowledge my property right is a “flashlight socialist”.

You are asserting the positive, that IP is a legitimate property right, so now it is your responsibility to explain why the “intellectual property right” is not an arbitrary set of rules like my flashlight example. As Kinsella indicates, the arguments “IP is property because it is a form of property” or “IP is property because its use can be restricted” are not valid arguments at all.

I am open to considering such an argument, if anyone is able to formulate one. I have no agenda on this except to cut through the bad logic and misinformation. So far, the lack of such an argument leaves me no choice but to reject the legitimacy of IP.

Can you honestly say that a man secretly filming a movie with his handycam is not commiting a crime.

Crime, as libertarians define it, means initiating aggression. How has the man and his handycam aggressed against anyone? I think you are confusing crime and contractual breach.

Isn’t it a crime to hack a DRM protected song, aggressing against the songs integrity after explicitly agreeing not to do?

Currently? I am aware of no such contracts. Theoretically? That is breach of contract, not theft.

ktibuk August 6, 2007 at 3:07 pm

George: “But that is NOT what IP claims to cover. It claims rights far in excess of the right to control one’s premises, or the rights under a genuine contract. It is this excess that offends me.”

I know what I claim. Please don’t assume my position or put words in my mouth. You may quote and argue against what I have written but please lets not get into general pro IP positions whatever they are.

If you agree there can be contracts extended from the producer to the consumer, including middleman, regardin IP then it is fine with me.

That means you don’t deny IP. You might deny stupid irrational and wrong laws like patent laws just like me but thats another thing.

ktibuk August 6, 2007 at 3:10 pm

Kevin B, I am afraid you are sounding more and more like a character out of a Rand novel, and not a good character either.

Maybe it is because English is my second language but I can not understand you anymore.

If there is a differecen between Human Action, and a book with just random patterns of ink that is the thing you deny existing.

Kevin B August 6, 2007 at 3:26 pm

ktibuk,

I’m not sure how to put it more plainly. Two books, “Human Action” and (pretend) “Random Action” exist. They are different only in that the ink is placed on the pages differently. There is nothing existentially different between the two. You read the first. Your mind is altered, and you imagine all sorts of things. Still, only you and the book exist. You pick up the second and try to read it, but it doesn’t make sense. Your mind is altered, but not in any way you feel positive about. So, you value “Human Action” more than “Random Action.”

Where is the IP?

ktibuk August 6, 2007 at 3:27 pm

Scott D: “Crime, as libertarians define it, means initiating aggression. How has the man and his handycam aggressed against anyone? I think you are confusing crime and contractual breach.”

Yes I define contractual breach as crime.

“You are asserting the positive, that IP is a legitimate property right, so now it is your responsibility to explain why the “intellectual property right” is not an arbitrary set of rules like my flashlight example. As Kinsella indicates, the arguments “IP is property because it is a form of property” or “IP is property because its use can be restricted” are not valid arguments at all.”

This may take sometime and I may not be able to get around it here but I will try to give pointers.

For a thing to be a property of someone there are some prerequisites.

I am assuming we all support self ownership.

The most important one is the one, mix your labor, transfer a part of you (your unique past experience, your unique mind and body) to a product. This doesnt have to be a tangible product. It may be a service too.

The second is the first comer, and this is needed only if there is external scarcity involved. This means if you are going to mic yourself with a scarce tangible outside object.Internal scarcity is you I might add at this point.

So if we are talking about a certain land a scarce external tangible good there needs to a tie breaker, and that is the first comer.

But if the product in question is no externally scarce meaning if you need only non scarce intangible “raw materials” (like other knowledge) then the first comer tie breaker is not needed.

Lets take Romeo and Juliette. The creator doesn’t only use scarce resources in order to produce this play. Others can use most of the same resources, the words and concepts, so there is no conflict there.

But once you finish the product it is unique. It bears a part of the author that is unique not just random words and concepts that everybodu knows. Thus it can’t be reproduced independently.

So the product is the authors. He mixed his labor a part of him with the general words and concepts.

He can keep it to himself. He can tell it only to his immediate family and no one else may known it existence, he can give it away for free or he can put it on a piece of paper and lease it on a special contract. It his in his control what to do with it.

This implies total control and ownership.

The difficulty arises when it is out there, out of his control. And from this point on this is not a theoratical issue we already establised the ownership.

But it is a practical issue of protecting the property. And yes it is harder than tangible property. But difficulty of protecting can not be and argument against the right.

ktibuk August 6, 2007 at 3:33 pm

Kevin B,

If you call it mind alteration then IP is mind alteration. Some people produce unique ways of it and some people value and pay for it, believe it or not.

So it is not a nature given free good that you seem to equate with.

And it exists.

George Gaskell August 6, 2007 at 3:40 pm

I know what I claim. Please don’t assume my position or put words in my mouth. You may quote and argue against what I have written but please lets not get into general pro IP positions whatever they are.

What you have written is a defense of “copyrights.” When you use the term “copyrights,” I have to assume that you mean “copyrights” as that term is generally defined in Anglo-American legislation.

If you have some other meaning of that word, or any word, unique to yourself, it is incumbent on you to so state.

If you agree there can be contracts extended from the producer to the consumer, including middleman, regardin IP then it is fine with me. That means you don’t deny IP.

Yes, I deny IP. There is no such thing as IP. A copyright is no more a genuine form of property than the social contract is a genuine form of contract. These IP and social contract arguments are merely attempts to draw on the legitimacy of property and contracts, respectively, by extending their application through some kind of half-baked metaphor. They are attempts to exploit the good reputation that property and contracts have.

A copyright is a claim that NO ONE can copy a work, or even approximate it within a (vague) degree of similarity. This claim is asserted regardless of ANY privity of contract whatsoever between the claimant and the alleged infringer, and regardless of ANY claim to property rights concerning a tangible object (e.g., a book or a disk).

I can be driving in my car and somebody can pull up to me playing loud music that I neither expect nor want. But I hear it anyway. Let’s say I remember it. Let’s say I can duplicate it from memory. The musician whose recording I heard can then sue me, under an IP theory, to prevent me from playing or recording my approximation of his song. But I never contractually agreed to anything. I bought nothing. I merely overheard a sound pattern in a public place. What is the property and/or contract theory, other than IP, that justifies that claim? That the original musician owns all sound waves and electronic blips everywhere that approximate a particular pattern?

ktibuk August 6, 2007 at 3:52 pm

George, I gave lots of real life examples regarding copyrights and contracts based on copyrights and you said you don’t have a problem with that.

Now you bring an obscure example to deny IP. I dont even want to bring up social contract analogy which has nothing to do with this.

If you hear a sound on the street, is it difficult for you to extinguish a sound made by man and a sound made by nature?

And if you can distinguish it as a man made thing, is it difficult to assume it has a creator thus an owner?

Please stop with these weird examples and talk about real life issues like movie, song, book and software piracy.

Are these piracies and consuming pirated goods accidental incidences? Or is it deliberate undermining of property rights?

Please lets get real.

What you are doing is the same thing as talking about life boat situations in property rights debate all the time. It is not as complicated as you seem to think.

Kevin B August 6, 2007 at 3:55 pm

ktibuk,

Fantastic! You went there.

What is commonly considered as IP is actually mind alteration. But the mind is already owned and covered by physical property rights. Any other rights (such as IP) must cover dubious non-physical property rights.

But you yourself acknowledge that “IP” is really PP (Physical Property), the mind. So IP claims are redundant, at best, but conflictory when usually applied.

scott August 6, 2007 at 4:01 pm

Kibutt – “But it is a practical issue of protecting the property. And yes it is harder than tangible property. But difficulty of protecting can not be and argument against the right.”

…”protecting the property.”

Still…something called ‘IP’ as i seem to understand it here requires some form of or attatchemnt to ‘Real Property’ and/or some form of agreement on the use of the ‘IP/RP’ mix that results.

Otherwise IP is nothing. But RP is still RP.

Words must be on paper…songs must be on tape, etc, Broadcasts must be agreed too.

GG – “Yes, I deny IP. There is no such thing as IP. A copyright is no more a genuine form of property than the social contract is a genuine form of contract.”

Could IP just be called ‘altered RP’?

‘I own a plane Corell plate and I also own a Corell plate with custom artwork by (artist)?’

ktibuk August 6, 2007 at 4:04 pm

Kevin B please read my longer post where I try to justify IP and reply there.

Mind alteraiton and stuf are just words.

And you dont really need to set a trap for me.

Is consiousness physical, is it covered by the pysical part of the brain?

What if I could erase a certain part of your memory on previous agreement. Meaning you keep owning your brain but that bit of info I gave you can be deleted after sometime or someuse?

Doesn’t that imply even thought the spesific info is in your brain for a period of time, you dont actually own it but merely rent it?

If so, is IP merely a technological thus practical problem for you?

ktibuk August 6, 2007 at 4:14 pm

Scott,

“Words must be on paper…songs must be on tape, etc, Broadcasts must be agreed too.”

No it doesnt. But it helps.

You may tell a story, sing a song etc etc. It doesn’t have to be on some tangible thing.

There is a market for both.

But since it is harder for people to remember and copy after they just hear it, copyright violations happen to complex IP on some tangible medium.

You can’t make a living telling about a movie you saw to people around you.

But you can make killing once you tape it copy it and sell it.

To appreciate IP you must first realize it is not the same thing as nature given abundant free goods. It is created by man.

George Gaskell August 6, 2007 at 4:38 pm

It’s not an obscure example at all. My point is that it takes only one instance of some performance to be revealed publicly for it to be out there.

if you can distinguish it as a man made thing, is it difficult to assume it has a creator thus an owner?

I deny that the sound is even capable of having an owner. Do the original musicians pretend to own the vibrations of my eardrums, too? The synapses in my brain?

Even if the first link in the chain of “piracy” as you call it (a term I reject completely, by the way) is 100% illegal — somebody violates some explicit agreement not to reveal the contents of some book or song — the people down the line who hear it next have made no such agreement. No contract claim can be made against them.

But IP pretends to follow the pattern wherever it may go.

Kevin B August 6, 2007 at 4:39 pm

ktibuk,

I’m trying to get my point across, not set a trap for you.

“Is consiousness physical, is it covered by the pysical part of the brain?”

Yes.

“What if I could erase a certain part of your memory on previous agreement. Meaning you keep owning your brain but that bit of info I gave you can be deleted after sometime or someuse?”

That would be a physical property right.

“Doesn’t that imply even thought the spesific info is in your brain for a period of time, you dont actually own it but merely rent it?”

If agreed to beforehand as such, then yes. As I said before, the only thing close to real intellectual property is what is known as the brain.

“If so, is IP merely a technological thus practical problem for you?”

IP is a redundant claim on physical property. There is no issue until you use IP to claim physical property already belonging to someone else, such as their brain. If you want them to sign a contract that rents out that part of their brain that knows something in particular, then..well..I think the right to the use of one’s brain is inalienable, is it not? Still, I can’t foresee anyone signing such a contract. At least I wouldn’t.

Regardless, leasing of one’s mind isn’t the basis for IP..and even if so then IP wouldn’t be necessary anyway because such a contract would be covered by physical property rights.

scott August 6, 2007 at 4:41 pm

“It (IP) is created by man.” Well..not exactly.

“IP” is only ‘intellectual endeavor’ ( i can appreciate some of that, not property. until it is attatched to some form of RP (fashioned into usable tangible goods by man) and given a label of ‘IP’….and even then its really only altered RP.

“You can’t make a living telling about a movie you saw to people around you.”

i dont think anyone should. but i wouldnt stop’em from trying

ktibuk August 6, 2007 at 5:41 pm

George: “I deny that the sound is even capable of having an owner. Do the original musicians pretend to own the vibrations of my eardrums, too? The synapses in my brain?”

Firstly the song exists whether you hear, meaning your ears and brain get involved or not. So no original doesnt pretend anything.

“Even if the first link in the chain of “piracy” as you call it (a term I reject completely, by the way) is 100% illegal — somebody violates some explicit agreement not to reveal the contents of some book or song — the people down the line who hear it next have made no such agreement. No contract claim can be made against them. ”

Forget the third parties for now, do you consider violating the original contract is a crime or not?
And if you reject it on what grounds can a person like you that regards contracts highly can do so?

ktibuk August 6, 2007 at 5:46 pm

Kevin B: “If you want them to sign a contract that rents out that part of their brain that knows something in particular, then..well..I think the right to the use of one’s brain is inalienable, is it not? Still, I can’t foresee anyone signing such a contract. At least I wouldn’t.”

So you wouldn’t buy (or lease) a DRM protected song or a movie. Ok, but millions of people do it.

They buy the song or the movie knowing they can’t move it to some other media, that they can’t play on certain players and sometimes can only use for a certain time.

The song or the movie might get hacked, the contract broken by hackers and pirates but that just shows there are criminals in the IP domain just as there are criminals on tangible property domain.

George Gaskell August 6, 2007 at 6:17 pm

Forget the third parties for now, do you consider violating the original contract is a crime or not? And if you reject it on what grounds can a person like you that regards contracts highly can do so?

No, it’s not a crime. It’s AT MOST a violation of a contract, or perhaps a violation of the terms of use of the property where the movie is exhibited, or a violation of the terms of the agreement between the book/CD seller and his customer.

If I am on someone else’s premises, then they have the property right to control my behavior while I am voluntarily there. But for someone to record something is not, in itself, a crime.

Not all property or contract violations are crimes. Not at all.

Now, we get to the third parties — once you get beyond the first property/contract violator, the down-stream users of the movie, book or song have no contractual or non-IP-property relationship with the author. None. Only IP — a contrived, artificial, unjustified theory — can be used to control those people.

That’s why IP was invented, of course: LEGITIMATE property and contract rules don’t cover that sort of thing.

Anthony August 6, 2007 at 6:45 pm

Ktibuk: “They deny existence of property rights so they say there is no theft is involved. If you deny a property right than you are a socialist, period.”

We deny property rights in other human beings. Not all property rights are legitimate – only those established via first-comer homesteading.

Incidentally, I think this debate is moving nowhere. Ktibuk, from what I can tell by IP you mean contractual agreements between buyers and sellers not to reproduce the good sold, violate the terms of ownership etc. Fair enough, no libertarian disagrees that such copyright protection would occur in a free society. Anti-IP libertarians are against IP laws and rights though, not against such voluntary agreements.

Kevin B August 7, 2007 at 1:00 am

ktibuk,

I’m not sure what you mean by “IP” anymore. Now it sounds as if you mean voluntary contracts, as Anthony pointed out.

“So you wouldn’t buy (or lease) a DRM protected song or a movie. Ok, but millions of people do it.”

Those songs and movies are physical property. So, what do they have to do with IP?

Honestly, you’ve gone from saying something like “Mark Twain has rights to the intangible aspects of Huckleberry Finn” to “people should be held to the restrictions they agree to before downloading music.” That’s a complete 180. IP —> RP

Peter August 7, 2007 at 2:26 am

You can’t make a living telling about a movie you saw to people around you.

But you can make killing once you tape it copy it and sell it.

How so?

ktibuk August 7, 2007 at 4:10 am

Kevin B DRM proptected IP is just like the erasing of info on the brain.

You said no one would agree to it, but in the case of DRM proptected IP and harddisk of your computer it is being done today.

In hte future the asme thing may be possible with human brains. DRM doesnt hurt rest of your computer, and erasing of certain memories wouldnt hurt rest of you brain. So where is the problem? Physal or alteration of electricity in your brain or computer, these are really moot points.

When you own IP you own a unique manmade way of mind alteration. Not all mind alterations are the same, some are nature given some are manmade.

If they are man made the mad who made it has a claim over it. Is it that hard. I tried to explain the whole thing but you guys only chose and pick sentences you like. NO coherency in you arguments.

ktibuk August 7, 2007 at 4:13 am

Anthony “Fair enough, no libertarian disagrees that such copyright protection would occur in a free society.”

I wish that was the case bu it is not. See George agrees on one post, and denies the same thing on another post.

And if breaking a valid property contract is not an agression against property and crime I dont know what is?

Anthony August 7, 2007 at 7:44 am

Ktibuk what is your position on actual IP laws as they currently exist? Forget firms contractually restricting reproduction of their discoveries for now.

ktibuk August 7, 2007 at 9:52 am

Anthony I have written extensively about it over on this thread. I have justified IP, gave real world examples and argued against anti IP people.

Please read those and you can quote and ask questions if you like about those posts.

In short I believe in copyrights but nor patents, and defend the same position as Murray Rothbard.

I believe IP exist, it is real, it is produced by man, valued by different men and can not be treated as nature given free goods like air and water.

Kevin B August 7, 2007 at 7:17 pm

ktibuk: “DRM proptected IP is just like the erasing of info on the brain.”

“I believe IP exist, it is real, it is produced by man, valued by different men and can not be treated as nature given free goods like air and water.”

What do you mean by “IP???”
Digital media, songs and movies, are tangible. Your brain is tangible. Air is tangible. Water is tangible. Tangible goods are already covered by physical property rights. So what, pray tell, do your proposed IP rights cover but the intangible?

defector October 2, 2007 at 10:50 pm

How about the adage, “if it aint broke, don’t fix it.” Obviously, the U.S. patent system has done something right, given that the last 150 years or so the U.S. has been a leader in almost every technological revolution. Now, if that weren’t the case, I’d say there might be merit to your argument regarding the costs of the patent system. However, we are the richest society that has ever existed on this planet. I don’t accept the notion that Americans are somehow smarter or just more inventive than people in other countries. The only real distinguishing feature, aside from being the first major democracy, is having the first egalitarian patent system where inventors were awarded limited monopolies (“right to exclude” for the pedantic among us) in exchange for being the first to invent and for willingness to publicly disclose this new knowledge. Until recently, no patent system on the planet matched ours. Even our classification index has been a unique and valuable resource that no other country could match. The system isn’t perfect, and it isn’t efficient. The benefits aren’t quantifiable but they don’t need to be. No one is forced to file a patent application. No one is forced to infringe a patent. If you are in business, you can either pay this cost of doing business, or get out. Your choice. Therefore, it seems to me that whatever the “cost” of the current system, it must be worth it.

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