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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 }

Person August 3, 2007 at 10:39 am

Stephan_Kinsella: Airwaves–spectra–are indeed scarce, since one person’s use excludes another’s.

Okay, I know you don’t like rigor in arguments, but the devil is in the details here. What do you mean by “excludes use” here? After all, you transmitting at frequency X does NOT stop me from transmitting at frequency X. So how has my use been excluded? Be precise. My point is that here, you necessarily contradict previous arguments used in your justification of the anti-IP position.

DC: I did respond to any of your points before because I addressed all of them, several times, in a previous thread, and you didn’t say anything new. Now, whether or not you were joking about the “no pee = no property” rule, you do need to reconcile your objections to ownership of intangibles, with your support of property in frequencies.

Stephan Kinsella August 3, 2007 at 11:07 am

Person:

Stephan_Kinsella: Airwaves–spectra–are indeed scarce, since one person’s use excludes another’s.

Okay, I know you don’t like rigor in arguments, but the devil is in the details here. What do you mean by “excludes use” here? After all, you transmitting at frequency X does NOT stop me from transmitting at frequency X. So how has my use been excluded? Be precise. My point is that here, you necessarily contradict previous arguments used in your justification of the anti-IP position.

The resource here is what is being used–it’s the EM spectrum in a given area at or around a given wavelength. It is used in a certain way in accordance with its nature, like all resources–it’s used by transmitting a useful signal over it. The fact is that two people transmitting over this medium at the same time interfere with each others’ signals. Only one of them can use the band at a given time. This is why it is different from “ideas” or “recipes”, which can be used by an infinite number of people at the same time.

Go read the Kelley and Marcus pieces I linked before.

Person August 3, 2007 at 11:27 am

The resource here is what is being used–it’s the EM spectrum in a given area at or around a given wavelength. It is used in a certain way in accordance with its nature, like all resources–it’s used by transmitting a useful signal over it. The fact is that two people transmitting over this medium at the same time interfere with each others’ signals. Only one of them can use the band at a given time.

What you mean is, only person, TO HIS SATISFACTION, can manipulate HIS PROPERTY (in the transmitter) in such a way that it “uses the band” at a time. That’s what “differentiates”

a) two people cooking a recipe

from

b) two people transmitting at frequency X,

right?

That one of them doesn’t like the result when the other also gesticulates his property in that manner.

But oops — that’s not a difference, since it applies to IP as well! The author *does like* others using *their property* in a particular manner.

In order to get yourself out of this mess, you’re going to have to appeal to dubious assumptions about the “nature of intangible things” that you DEFINTELY didn’t defend (and would probably ridicule) in your IP paper.

Go read the Kelley and Marcus pieces I linked before.

Sure, if you briefly summarize what it contains that you don’t think I’m already aware of. I didn’t think I’d have to remind you, but I *know* the answers to all the questions I’m asking you. I’m not stupid. I’m not ignorant about radio waves. The reason I’m posing these challenges to you is because you are incapable of reconciling your answers to them with your anti-IP bias-appealing arguments. So referring me to some tutorial on rights in radio waves isn’t going to prove anything.

Person August 3, 2007 at 11:28 am

sorry, that should be “What you mean is, only one person, to his satisfaction, …”

DickF August 3, 2007 at 1:40 pm

Person wrote:

If you feel I’ve been inconsistent in my use of those terms, please say where. Otherwise, it seems like your inquiry is just a time suck that would better be served by reading previous threads.

My mistake. I actually thought you might be interested in debate that would mean something. I am more interested in light than heat. Thanks for your time.

Jesse August 3, 2007 at 1:44 pm

Stephan Kinsella: “The fact is that two people transmitting over this medium at the same time interfere with each others’ signals. Only one of them can use the band at a given time. This is why it is different from “ideas” or “recipes”, which can be used by an infinite number of people at the same time.”

This isn’t entirely accurate. You can have multiple independent transmissions on the same frequency and in the same location, for example if the signals are directional. The trick is that only one signal can usefully interact with a given receiver at a time. The receiver, not the signal or spectrum, is the private property, and creating a signal that interacts with a pre-existing receiver (or anything else) against the will of its owner is the trespass. This applies for things not intended as receivers as well — if your signal fries someone’s computer, or causes health problems, that would be trespass for exactly the same reasons.

On the other hand, if you can transmit a signal such that it doesn’t interact with any existing property without permission then there is no trespass. If your signal pre-exists the receivers — meaning they were set up to interact with the signal and not visa-versa — then there is also no trespass.

Bob Kaercher August 3, 2007 at 1:52 pm

Patents and rights of “intellectual property” are nothing more than transfer-of-wealth schemes to pick the pockets of bother producers and consumers in order to stuff the pockets of lawyers, government clerks and the rest of the state-privileged legalistic bureaucracy.

Kinsella: Yeah, I’d say you should get to work on that book pronto. As you can see by some of the posts in the comments thread, it’s sorely needed.

Kevin B August 3, 2007 at 2:13 pm

Jesse,

I completely agree, and have no idea why some people have such a hard time with this.

You noted that if “your signal pre-exists the receivers — meaning they were set up to interact with the signal and not visa-versa — then there is also no trespass.” The radiation is property. The property it affects is property. A frequency is not property. The subject lends no assistance to the IP advocates, rather it hurts their case.

DC August 3, 2007 at 2:19 pm

Person, your “response” in the other thread was to insist that the distinction that I made didn’t matter, without addressing the distinction itself. That tactic falls rather neatly into the “Ignore” category that I mentioned above.

Here, I’ll try: Person, your claim isn’t true, so it’s irrelevant.

Kevin B August 3, 2007 at 2:28 pm

ktibuk,

I will try to be more clear.

First:
Since companies who use DRM, leasing, etc. as you describe are not actually affecting IP (remember that IP is imaginary so that you can’t affect its scarcity) but are actually affecting real property, then it follows that state is behind enforcement of IP in every case. It is a fake right that can only be backed by coercion. DRM and leasing arrangements are not forms of coercion.

Second:
I’m not an “IP socialist.” IP isn’t real. It feels like you’re arguing for “God’s law” to be enforced. You’re arguing that we must enforce a law for something which carries no tangible existence. The problem is that the enforcement of “rights” for the nonexistent is aggression against the rights of that which actually exists in physical form.

“Just meaningles talk abaout intangibility”

You’re trying to make people pay with earthly goods for claims you make on property in heaven. I don’t see why it is meaningless to point that out.

Brent August 3, 2007 at 3:16 pm

So besides talking down to people, Person doesn’t believe immitation should be legal. I think the *consequences* of that policy would be horrible.

ktibuk August 3, 2007 at 4:38 pm

Do you IP socialist ever heard of term “it is mine”.

Can you honestly say to Mark Twain that “Huckleberry Finn” isn’t his? Beacuse it is intangible, or he wouldn’t lose anything if you copied it?

Or can you dare tell Beethoven his symphony number 5 isn’t really his but everyones.

Have you no shame?

Those intangible things that you deem free are created by individuals and their labor. They are not your slaves thus you dont have a right to the fruit of their labor.

Kevin B August 3, 2007 at 5:23 pm

Really, ktibuk, your use of the word “socialist” is out of place.

What do you mean when you say that Huckleberry Finn belonged to Mark Twain? Do you mean that the imaginary character belonged to him?!? While I grant you that Mark Twain’s imagination belonged to him, the fact is that my imagination belongs to me. If Mark Twain writes a book about a character named Huckleberry Finn, and I read the book, that doesn’t allow Mark Twain to homestead my imagination.

If you mean that Mark Twain owned the pages with the words “Huckleberry Finn” on them, then sure..until he sold them.

“Those intangible things that you deem free are created by individuals and their labor. They are not your slaves thus you dont have a right to the fruit of their labor.”

You are imagining things, and those things in your imagination are not real. If they were tangible, then it would be possible for me to steal them, but (I know I’m beating a dead horse here) they aren’t real so I can’t steal them.

When you are imagining things, you are actually altering your physical property – your brain. That is the only real result of your labor. If I scoop out that part of your brain against your will then I guess you could consider that action as theft of your intellectual property.

IP skeptic August 3, 2007 at 5:54 pm

“a) two people cooking a recipe

from

b) two people transmitting at frequency X,”

Is not the difference that the frequency is destroyed, yet the idea (i.e. the recipe) is not destroyed by simultaneous use?

Jean Paul August 3, 2007 at 7:30 pm

So, really it’s simple.

OWNERSHIP is the moral authority to use the force required to exclude actors from interacting in any way with the owned thing – the PROPERTY. Property can and should be viewed as an extension of the owner’s person.

TRESPASS is willful action which violates this rule of exclusion. Note, the violation need not be willful or intended – the violation may be inadvertent – but the action must be willful. Being flung by a passing tornado into someone’s yard would not be trespass; but accidentally bashing your car door into the next car in the lot absolutely would be. Vandalism, theft, assault, murder, etc., are all best viewed as degrees of trespass.

Anyway, point is, trespass is derived from and defined by property.

And as SK says, moral actors don’t live by permission. Moral actors are born, and live, free to act with infinite… uh, freedom… :) so long as no action of theirs trespasses against any one else. That’s the non-aggression axiom stated as succinctly as possible. It is immoral to disobey it. That’s the fundamental axiom.

A RIGHT is simply permission to interact with some property in some particular defined way (i.e. a specific relaxing of the rule of exclusion). Rights in some property are granted by the owner who would otherwise be trespassed against. Thus rights are defined by, derived from, and consequent to, property.

Lastly, PROPERTY is acquired via trade, or via the homesteading rule (which allows UNOWNED things to become property).

——-

OK, so, the IP advocate needs to find a way to take the above, and turn it into “I am allowed to cook moon waffles, but NO ONE ELSE, PRESENT OR FUTURE, is allowed to, and that’s because I announced the idea for it first.”

You can get there in the present by somehow having every person in existence grant YOU the exclusive right to use their present and future property to make moon waffles (thereby preventing them from doing so). This doesn’t really help you in the future since newborns didn’t participate in this deal. Possibly you could find a way to coerce them, since that’s probably what you had to do to convince every single present actor to agree to such a ridiculous proposal… but then you wouldn’t be a moral actor anymore.

Alternatively, you can try to find a way to define “Cooking moon waffles” as homesteadable property. How do you define it as such, person? Defend it! The burden of proof is on you to show it can be done.

Note that “when I am the first to think of an idea, the scarce good of ‘the right of exclusive use of the idea’ becomes mine, and that’s how I homestead it” requires you to know with certainty that the “the right of exclusive use of the idea” is UNOWNED.

Seeing as you don’t have access to the omniscient oracle, prove that no one else owns that scarce good already. PROVE it.

Person,
you lose.

Ray G August 4, 2007 at 2:13 am

What rubs here is the essential belief that personal property is sacred.

Let’s call that a first principle and frame this in a manner after a basic logic problem.

Being a first principle it proves itself and needs no other proof. Property is sacred.

Now we get to the point that we are making an exception to certain kinds of property; that which is difficult to prove ownership over (though we know there are many other definitions for IP).

If my secret chicken recipe is in actuality a mere heavier dose of garlic, then it is likely that someone, somewhere will at sometime come up with the same recipe.

However, adhereing to our first principle of sacred property rights, I ought to at least have an arena in which to make a case for rights to my recipe in the marketplace. Maybe the other guy worked for me, or I could prove in some way that he very likely got the idea from me. Then the guy is taking something from me that is not necessarily tangible, but nonetheless leads to a tangible product that I have exclusive rights to.

This is a safe way to go, because if the other chicken guy has had absolutely no contact with me, or he’s on the other side of the continent or what have you, it would be equally simple for him to show the court “Hey, it’s only a difference of X amount of garlic per whole chicken, and I’ve never even been to Arizona.”

Which leads to another basic premise in that the more complicated the idea, the easier it will be to defend, and vice versa. The earlier “doo wop a doo” example is so absurdly simple, that it would never make it to court. And et cetera.

And I still haven’t read anything to credibly counter my initial statement that by what Kinsella has written, if the protection of property can be shown to be detrimental to the community, then the property shouldn’t be protected. This flies in the face of basic property rights that even a good Republican would recognize.

Jean Paul August 4, 2007 at 2:56 am

Ray G: “Now we get to the point that we are making an exception to certain kinds of property; that which is difficult to prove ownership over (though we know there are many other definitions for IP).”

That’s the key disagreement here. You say I am following my rules inconsistently because I am making exceptions for certain kinds of property. To that I reply, “no, I allow EVERY kind of property; EVERY SINGLE ONE. But ‘IP’ is not any kind.” And I find it utterly painless to distinguish what property is from what property aint.

As an illustration of your mistake, consider: “Vegetarians should not eat meat; but note that vegetarians illogically allow the eating of certain kinds of meat – the kinds that grow from plants, also known as vegetables. The foolish vegetarian is so ignorant of the flaw in his reasoning. Vegetables are just a certain KIND of meat, and because the vegetarian prohibits meat, he must therefore prohibit vegetables.”

The problem here is that there is a RELEVANT DISTINCTION between my use of force to exclude a rival from {damaging / consuming / obstructing my use of} MY physical artifact, versus the use of force to prevent my rival from doing anything with HIS physical artifact.

Like, another example. Yesterday I posessed two sticks. I could do anything at all with them, and that was the definition of property. I OWNED those sticks. The only thing I could not do with them is trespass against someone else.

If I wanted to, I could rub them together and maybe discover fire. This was my ‘right’ (if you want to call it that), yesterday.

But then today you rubbed two sticks together thus demonstrating the creation of fire… and suddenly it is no longer my right to rub my two sticks together and make fire? But it was ALWAYS my right, and I never relinquished that right.

And it doesn’t matter how complicated the recipe is. Once the recipe is within reach of the technology to reproduce it, there can be no opposition to such reproduction, unless there is some kind of contract willfully agreed to.

George Gaskell August 4, 2007 at 8:26 am

Once the recipe is within reach of the technology to reproduce it …

That’s everything.

“What one fool can do, another can.”
– Silvanus P. Thompson

Ray G August 4, 2007 at 10:35 am

So for Jean Paul, it’s as simple as a problem of semantics.

Intellectual Property is simply a misnomer, and so the word property shouldn’t even be in there.

There’s really no room for agreement there then. If I have a singular idea, regardless of whether it produces a new widget i.e. tangible property or it produces a song or image i.e. the intangible creative it is still my idea.

If a person creates an image or a song, why is it suddenly public domain? That just makes no sense at all. The general argument goes that once a person purchases a CD or film, then all rights for reproduction transfer to that new owner of that creative property.

But this is an absurd and dishonest leap of logic.

If I make an image or song, it is mine. If you make one similar, we can fight it out I suppose, but to say that there should be no arena for the fight is simply dishonest.

Here’s fodder for another discussion along these lines.
http://men.msn.com/articlees.aspx?cp-documentid=5146008&;gt1=10215

Ray G August 4, 2007 at 10:56 am

More of the same for clarification:

I would make a distinction between “doo wop” in a song, and an exquisitely written novel. However, here the belief seems to be that all ideas are universal.

So a singularly written piece of literature is no different than the universal occurrence of fire. Anyone can produce fire after all. But not just anyone can produce the specific piece of literature.

And so whether it’s a very specific recipe, a song, an image, literature or what have you, the anti-IP camp still asserts that these things are as universal as fire.

That is absurd.

Jean Paul August 4, 2007 at 12:32 pm

all of these things are just communication. if i learn enough of an idea to reproduce it, you’ve communicated it to me, and it’s mine now too. if i am able to comprehend it, then to that extent it becomes mine. sorry guys but it’s ‘inadvertent sharing’. you can’t retract your communication or attach conditions to it AFTER you’ve communicated it. it’s over at that point. figure out a way to get people to agree to cooperate up front, or you’re out of luck.

Jean Paul August 4, 2007 at 12:34 pm

* … figure out a peaceful way, purely voluntary that is. Violent action is not an acceptable way.

Kevin B August 4, 2007 at 2:29 pm

Ray G: “If a person creates an image or a song, why is it suddenly public domain? That just makes no sense at all.”

Ray, you are failing to see the point. If a person creates an image or a song, then it is his. The physical (tangible) existence of the image/song is his, but it is not his in any intangible, metaphysical, or basically imaginary form. That is what would be absurd.

George Gaskell August 4, 2007 at 3:44 pm

If I make an image or song, it is mine.

That’s just it, Ray — what is the “it” that is supposedly yours?

Any right that you supposedly have to forcibly prevent me from singing or writing would require you to infringe my right to use my voice, my recording equipment, my paper, etc., all of which I own absolutely.

ktibuk August 4, 2007 at 5:20 pm

Jean Paul: OK, so, the IP advocate needs to find a way to take the above, and turn it into “I am allowed to cook moon waffles, but NO ONE ELSE, PRESENT OR FUTURE, is allowed to, and that’s because I announced the idea for it first.”

No thats not it at all.

Why do you IP socialist always use patents to argue.

No IP advocate libertarian says that. Announcign first doesnt mean anything.

Homesteader rule has two requisites for tangible property.

First comer and mixing your labor.

For intangible property there is no need for the first comer, but labor part is still there.

That is the reason why IP socialist like Kinsella avoids the labor mixing part. Because IP socialist know he faces a problem there.

ktibuk August 4, 2007 at 5:24 pm

A song is a song and a novel is a novel.

Yes they may be intangible like labor but they are goods. Meaning they are good for people.

You can not dismiss these things just because they are intangible.

They are products.

You IP socialists are advocating these goods are public goods. At least be honest about that.

ktibuk August 4, 2007 at 5:33 pm

“Really, ktibuk, your use of the word “socialist” is out of place.”

No it is not, since the key aspect of socialism is denying property rights.

Yancey Ward August 4, 2007 at 6:22 pm

It is quite remarkable just how many comments these IP discussions generate.

George Gaskell August 4, 2007 at 10:20 pm

No it is not, since the key aspect of socialism is denying property rights.

Your pro-IP position denies my property rights in my voice, my musical instruments, my paper, etc.

Kevin B August 5, 2007 at 1:42 am

ktibuk: “You can not dismiss these things just because they are intangible.”

You cannot own that which has no physical existance.

If you disagree, then I have a bridge in the netherworld to sell you.

Kevin B August 5, 2007 at 1:48 am

*existence

You know what I mean. ;)

rtr August 5, 2007 at 5:51 am

Hi. Wow, it’s like the LVM grade school show and tell hour. If I they ain’t too afraid of my posts, that is. Been setting the direction straight on IP at slashdot.org under monxrtr.

And check it. Massive mistake to not open up the forum for blog comments, on at least another section, on pure economies of scale contributory inputs. Could still make a separate open forum section. Or become irrelevant, even in the field of Austrian Economics at the site devoted to Austrian economics. ;; Simple economies of scale of open voluntary contributions. It’s amazing how fast one can be relegated as secondary.

I’m back, now and then, or I’m not, back, now and then.

“But not just anyone can produce the specific piece of literature.”

Yes! Exactly. No specific piece of literature has ever been produced that did not copy an idea of another. Go ahead and try to give a single example.

It really is kind of sad, that y’all are missing out on the biggest uploading Boston Tea Party 2.0 protest in 200 years, which dumped tons more tea content into the public domain sea than you realized, or even vaguely acknowledged. Bleh, it’s like ordering y’all to run laps around a field.

Whatever, test for whether I’m still banned or not from posting. So much for succinct proof from no other sources. And surprise, surprise, not a single N.P. proof in the meantime, by absolutely every “Austrian”: except me. Why is that? Unproved gibberish claims. Too bad.

ktibuk August 5, 2007 at 10:42 am

Kevin B,

“Real” and “tangible” are different things. There are real intangible goods that people pay for and they are known as the service industry in general.

It is hard being a socialist and being coherent at the same time.

ktibuk August 5, 2007 at 10:50 am

“Your pro-IP position denies my property rights in my voice, my musical instruments, my paper, etc.”

No George, you just assume that. You are attacking a straw man.

I gave lots of examples.

You are not buying a book but leasing it so it is not your paper.

You are not buying a song but leasing it, so whatever medium it is on, it is not yours to do whatever you wish.

And this is not something to do with only the tangible. A blank notebook is not the same thing as a novel. A novel has IP embedded in the tangible property.

And in the future if there would be a technology that erases just the relevant human memory that would be a way to keep IP scarce too and be perfectly fine with libertarian law. A DRM for the human brain if you will.

ktibuk August 5, 2007 at 11:03 am

“But not just anyone can produce the specific piece of literature.”

Yes! Exactly. No specific piece of literature has ever been produced that did not copy an idea of another. Go ahead and try to give a single example.”

Yes simple themes and bits of information may be shared but humans whether in afirca or america witness the same things too.

And you are undermining the complexity of the literature.

There is no way anyone else could have written Romeo and Juliette other than Sheakspeare but that doesnt mean there wont be tragic lovestories written by other people.

If you say “everybody copies everybody” you are implying Romeo and Juliette is “just a tragic love story” and nothing else. Nothing else puts it apart.

But the fact is, R&J has a uniqueness that could only come from Sheakspeares own unique life experiences. R&J is R&J not just any love story. It has a producer it has an owner. If it wasnt for that producer or owner, it wouldnt exist.

And if you deny Sheakspeare his ownership, you are infact implying anybody and everybody owns his fruits of labor.

scott August 5, 2007 at 2:17 pm

“You are not buying a book but leasing it so it is not your paper. You are not buying a song but leasing it, so whatever medium it is on, it is not yours to do whatever you wish.”

if my heat pump broke down and i needed something to get the fireplace started books would work well.

and

“And this is not something to do with only the tangible. A blank notebook is not the same thing as a novel (i can write and scribble in each). A novel has IP embedded in the tangible property.”
(dont forget about the spiral binding technology)

until i copy it to loose leaf paper and large type – and ditch the ‘novel’ (the 4x7x2 clump of paper, glue and ink). now my loose leaf, large type, double spaced (with room for my own personal notes) sheets have the IP imbedded in them, right?

the IP has found a new host, iow?

also -

i suppose i could tote my desktop computer on my back to play unaltered filetypes. but neither of those things makes any sense to me.

but i cant see a ‘property conflict’ (let the bidding begin….) between moving data (and storing) from a magnetic disk to an optical disk to flash memory.

“And in the future if there would be a technology that erases just the relevant human memory …”

wouldnt the be the equivalent of a bat to the head, that is if you didnt consent to having your memory (brain) tampered with?

oh wait..its just (your own) brain and memories.

ktibuk August 5, 2007 at 2:30 pm

:-)

I am used to arguing with socialist who mock the thing, property rights, that is so sacred to me so go on scott make fool of yourself with your gibberish.

ktibuk August 5, 2007 at 2:38 pm

“if my heat pump broke down and i needed something to get the fireplace started books would work well.”

Maybe, but you dont own the damn thing so if you burn it then you are in trouble.

“until i copy it to loose leaf paper and large type – and ditch the ‘novel’ (the 4x7x2 clump of paper, glue and ink). now my loose leaf, large type, double spaced (with room for my own personal notes) sheets have the IP imbedded in them, right?”

You maybe in a state of denial but, if you pay more for a novel than a blank notebook that proves you are paying for something you deny existing.

Whatever you do after that is your business. There will be criminals in the worid, no doubt. But thats not a real justification for crime.
“wouldnt the be the equivalent of a bat to the head, that is if you didnt consent to having your memory (brain) tampered with?”

And thats the thing. There would be consent and if the technology let it the only relevant memories would be erased so thats not the same thing as getting hit in the head.

Anthony August 5, 2007 at 5:02 pm

“And thats the thing. There would be consent and if the technology let it the only relevant memories would be erased so thats not the same thing as getting hit in the head.”

My guess is there would be consent due to the contract involved?

scott August 5, 2007 at 8:35 pm

i dont know you..you may be a bigger fool than i and capable of every bit as much ‘gibberish’.

if i lease an apartment..when i die or leave…the apartment or tiller or power painter goes back to someone for further leasing or sale.

my digital data, book etc. doesnt.

for me, claiming lordship over previous acts (the time it took to sing or write a book, short periods of history, iow.) seems outside the scope of leasing – and just wrong.

when i pay for the literisitc value applied to paper and ink and glue – i have done just that. to throw away, pass on to heirs, etc.

if it ends up on a used book store shelf after marking in it, dogears etc. does the author get further lease income??

should i arrange to have my music and books sent back to the authors upon my death?

just ignore me if you dont like my posts.

Kevin B August 6, 2007 at 12:20 am

ktibuk,

You know that I was using “real” and “tangible” interchangably.

Although, admitting as much wouldn’t have allowed you to post that there are such things as “real intangible goods,” in other words “tangible intangible goods.” Now that would sound silly, wouldn’t it? [emphasis mine, of course]

So, are you buying a bridge in the netherworld or not? Can you own that which does not physically exist? *crossing my fingers*

ktibuk August 6, 2007 at 2:39 am

Scott you dont need to die for this scenario.

Can you imagine leasing a movie online, downloading it and after one viewing it deletes itself.

I can even imagine a time, when you hear a song on a contract, you enjoy it for a while and forget it completely. Technology erases that part of your memory on contract.

You are betting all you have to the loss of control of the IP after it is out there. Surely you can not deny the fact that if I dont share you can’t have it. But once I share it is out there and it is hard to control its copying process.

Also on your death scenario.

Can’t you imagine a lifetime lease scenario? You use it as long as you are alive but on certain conditions. You dont own it so you cant do whatever you like bu you can use it till you die.

ktibuk August 6, 2007 at 2:46 am

Kevin B,

If I thought of a poem and it is in my head it is real, it exist but it is not in tangible form.

Once I write it down in takes tangible form.

So yes there are real intagible things.

At least the way I am using the terms.

Also the difference between a blank piece of paper and the same paper with the poem written on it, is not only the addition of ink on it. Once you can realize this then you may realize the existence of IP.

George Gaskell August 6, 2007 at 5:58 am

I would have absolutely no problem if authors of various forms of works that are now protected by IP attempted to use ordinary contracts (such as leases) to control their customers and prevent copying.

After all, if you want to restrict exposure to your creative work to those who agree not to copy it, then this form of agreement is no different than a non-disclosure and secrecy agreements that many employers use with their employees. I am a vigorous defender of contracts.

The problem is that copyrights and patents have NEVER been based on contracts, and operate in an entirely different way. The essential element of all contracts is that they are only formed based on mutual assent. IP does not operate that way, no matter how you may try to pretend that it does.

Your mis-characterization of the way in which IP operates is reminiscent of Rousseau’s “social contract” theory, which was a terrible smear on the good name of contracts — the idea that a person makes an “implied agreement” to give up all sorts of rights simply by going about his life not harming anyone.

Anthony August 6, 2007 at 7:11 am

I agree with Mr Gaskell.

ktibuk August 6, 2007 at 8:12 am

George, who said I was defending every law and custom regarding IP, especially patents?

But that doesnt mean there no contracts regarding IP today. In every movie you lease the contract is there. Whether you own the plastic disc or not is a technicality. When you lease the movie you know full well what the contract is.

Also the person filming the movie in the theatre with a handycam knows what he is doing. He perfectly knows the contract when he buys the movie ticket but delibirately breaks it.

This is true in almost every case of IP theft that is going on in the market.

And I believe the agression against copyrights are much bigger issue relative to patents.

I am all for attacking the patent laws, they are ridiculous. But attacking IP all together is a form of Socialism whiich I cant stand for.

In short I defend the position Rothbard took. Thats all.

ktibuk August 6, 2007 at 9:17 am

George also Rousseau’s “social contract” is a contract you cant get out of which supposedly youı born into.

Copyrights are not the same thing at all.

This implied contract is about people who willingly trade with eachother.

Not being able to “shout fire” is also implied when you buy the movie ticket not just “not videotaping it secretly” clause.

Also when you lease an apartment, “you may not use it as a brothel” may not be in there as a clause but if it says leased as a residence it is surely implied.

And one more thing.

If it is explicitly implied that you can not burn the book you “lease for life” in case your boiler gets broken or “use it as a paperweight” or “kill a fly with it”, would this be an issue at all to the book buyer? Would it even change the price?

And the publisher dont care about these things but he cares about copying it and let it being copied. You are entrusted with the book so you only read it and protect it against copiers. Why can’t you respect that?

Stephan Kinsella August 6, 2007 at 9:53 am

Ktibuk:

George, who said I was defending every law and custom regarding IP, especially patents?

You’ve called me and other who oppose patents and copyright “IP socialists.” But this is unfair and disingenuous for a few reasons. First, it is question-begging since the debate is over whether so-called “ideal objects” are property or not. Second, it is actually IP that is socialist. Why? Because the essence of socialism is institutionalized aggression against private property rights. And theft is of course a type of aggression. IP is theft since what it does is take already-owned property and transfer partial control (ownership) of it to third parties who did not homestead or contractually acquire it.

I am all for attacking the patent laws, they are ridiculous. But attacking IP all together is a form of Socialism whiich I cant stand for.

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. If you had any awareness of how actual patent and copyright law works, you would realize that the problems are endemic to such a system; you would realize that if you try to come up with an alternative system it will just have the same problems. There is no escaping this.

ktibuk August 6, 2007 at 12:44 pm

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. 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.

So I believe the term socialist is fitting and I am not trying to use it as a way of insulting.

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

For copyrights this is not the case.

Look at which areas are affected by copyright problems and piracy. Movies, books, songs and software (not patent but copyright).

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

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

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.

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?

And what about DRMs and artificially controlling the copying process.

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

Kevin B August 6, 2007 at 1:20 pm

ktibuk: “If I thought of a poem and it is in my head it is real, it exist but it is not in tangible form.”

So if I dream of pink elephants, that makes them real? No no no no, ktibuk, it is all in your head. Your brain is real and the neurons firing are real, but the pink elephants are not real. The fairies and dwarves and oompa-loompas and Spock and Snoopy and Bugs Bunny and your fairy godmother – none of them are real. They are make-believe. They cannot be owned because they do not exist.

Those against IP are not against property ownership as you claim. Simply put, only that which really exists can be property. Willy Wonka’s chocolate factory cannot actually be owned because it doesn’t actually exist.

Oh, but I think of my little ponies in my head so they’re real. No they aren’t! Take your meds. You’re hallucinating. Your brain cells are real, and because of them you imagine Goldilocks, but the whole time you’re imagining her and the three bears – none of them are real. You own your brain and that’s as much of the real Winnie the Pooh as you can own.

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