Slave Labor and Intellectual Property
On a misplaced analogy.
The libertarian challenge to the legitimacy of “intellectual property” has created some confusion. It’s understandable. For one thing, there’s an apparent inconsistency: If one favors property rights in tangible things, why not in intangibles? Pro-property IP opponents reply that the tangible/intangible distinction is decisive. When you take someone’s car without permission, not only do you have use of the car, but the owner does not. But when you engage in an IP (copyright or patent) violation, you have not literally taken anything. This is disputed, so let’s look more closely.
Jones invents (and patents) the wheelbarrow and uses it on his land. He intends to produce this great new device and sell it to a world that eagerly awaits it. Smith lawfully walks by Jones’s property and watches him using the wheelbarrow, realizing this is something no one has ever seen before. If Smith goes home and, using her own materials and labor, makes a wheelbarrow from the mental image stored in her mind, what has she taken from Jones? Smith’s mental image is hers. One could say it is the result of her own mental labor (observing, understanding, remembering). When she acquired it, in no way did she interfere with Jones’s access either to his physical wheelbarrow or his mental image of it. Jones had what he started with. That’s how it is with ideas. (Bear in mind that under current law Smith is guilty of patent infringement even if she never saw Jones’s wheelbarrow. Do not assume that patents are primarily about prohibiting copying.)
Smaller Profits
But, someone will object, if Smith competes with Jones in selling wheelbarrows, Jones’s profits will likely be smaller than if the government were to stop Smith from competing in that market. (That’s what patents and copyrights boil down to.) True enough. But now the subject has changed. Instead of talking about property rights in the product of one’s labor, we’re talking about property rights in economic value or potential profits. How can one own economic value? It’s in the eyes of beholders. How can one own yet-to-be-made profits?
But, our critic might say, those profits would have been made had Smith not done what she did. We’re back to square one. What did she do? Again, she used her labor and materials to build a wheelbarrow based on a image in her mind. That image was there as a result of nonaggressive action. Had she broken into Jones’s home, Jones would have a cause of action for burglary. But Smith committed no burglary in our story. Had a contract existed between the two parties with respect to the wheelbarrow, perhaps a breach occurred. That’s also not part of this story. The burden of proof would seem to be on anyone who thinks a rights violation took place.
My example may be rejected because Jones obviously took no precaution against people seeing his wheelbarrow. I think that objection fails. If he owns the very idea wheelbarrow (which is the implication of a patent), why should he have to take such a precaution? Lysander Spooner, who pushed the case for IP as far as it can be pushed, wouldn’t have thought so. If Jones leaves the keys in his car, that certainly would not be a valid defense for a car thief.
Slave Labor
In a recent discussion about copyright, my interlocutor suggested that the unauthorized publishing of a book in effect makes a slave of the author because the publisher profits off the author’s labor without consent. But that begs the question by assuming what is in dispute, namely that the publisher took something that belongs to the author. But what? The intangible book is an arrangement of words, however imaginative or novel. It’s hard to see how that can be owned. (We’ve already dealt with the lost-profits argument.) Of course there is nothing to stop fans of the author from launching a campaign to encourage people to buy the authorized edition. (J. R. R. Tolkien launched such a campaign for himself when The Lord of the Rings was issued in an unauthorized paperback.)
(I do not concede, by the way, that absent copyright, authors would suffer great hardship in the free market. Copyright advocates assert without good grounds that duplicating artistic works and complicated inventions is necessarily a low-cost and automatically lucrative endeavor, which is by no means the case. But that subject is for another time.)
The “slave labor” objection in fact proves too much. If Jones creates a new market by offering a novel product, is he exploited if Smith caters to that same market with a similar yet sufficiently different product? (Apple created a market with the iPod, but soon competitors came along that presumably did not violate Apple’s patents.)
Plagiarism
Finally, it is curious that the first thing that occurs to people on first hearing the anti-IP case is plagiarism: “You mean it would be okay for someone to take an author’s work, put his own name on it, and sell it?”
Two issues are conflated here. One can plagiarize without violating a copyright, and one can violate a copyright without plagiarizing. Under copyright law you may use brief verbatim excerpts of another’s written work without permission as long as you use quotation marks and attribute the text to the author. It’s called “fair use.” (Question for copyright fans: Isn’t even fair use a violation of an author’s rights?) If you were to use an excerpt that otherwise would qualify under the fair-use principle but without attribution, you would be guilty of plagiarism but not copyright violation. The same would be true if you quote Shakespeare without attribution. (Shakespeare wrote without benefit of copyright.)
On the other hand, if you publish Atlas Shrugged with Ayn Rand’s name on it, you would be guilty of copyright violation but not plagiarism.
For the sake of clear thinking, let’s keep these issues separate.
Well, is plagiarism okay? No, it’s not! Obviously it is dishonest and dishonorable to represent someone else’s work as one’s own. But note, according to LegalZoom, “plagiarism is not a criminal or civil offense.” Nor should it be. It’s a breach of good conduct, and there is a plentitude of nonviolent, non-State ways to deal with it, especially in the Internet age.
Comment by Stephan Kinsella on 3 June 2011:
What a perfect, concise piece.
Regarding the “smaller profits” section–”How can one own yet-to-be-made profits?” Exactly. The profits come from revenues, which is money in prospective customers’ pockets. The customers own their money, not Jones.
And an entrepreneur’s profits are always lower in the free market when he faces more competition. That is the nature of the market, and competition.
The notion that an innovator is entitled to profits he would have made is often linked with another fallacy, that of ownership of value–the mistaken notion that an owner of material property has some kind of independent property right in the object’s value, instead of just in its physical integrity. This view sees value as some independently existing substance that can be owned, and it is then used to support the idea of IP: that if the value can be separated from the material object–namely, the idea or pattern that gives the object most of its value–then it can be owned independently of the impatterned material object itself. But of course value is subjective, and depends on what others think of or how they regard the object. The owner of an object cannot own others’ appraisals of the object any more than the entrepreneur owns prospective customers’ money.
One quibble: “Under copyright law you may use brief verbatim excerpts of another’s written work without permission as long as you use quotation marks and attribute the text to the author.”
This seems to imply that you have to give attribution to qualify for fair use. I am not sure this is correct, and you imply as much later in the same paragraph when you say “If you were to use an excerpt that otherwise would qualify under the fair-use principle but without attribution, you would be guilty of plagiarism but not copyright violation.”
Comment by Sheldon Richman on 3 June 2011:
Thanks, Stephan. On fair use, I’ll defer to a legal expert, but it seems hard to believe that an unattributed passage would be regarded as fair use.
Comment by Philip Lewis on 3 June 2011:
IP patents are essentially murky and anti-competitive. This is a concept invented by statists to bolster concentration of wealth and power and restrict entry into a myriad of pursuits. Either we’re libertarians or we’re not … liberty includes the right to mimic and copy. Plagiarism, too is an anti-competitive ploy. How many “original thoughts” are there and who’s capable of being the judge?
Comment by Sheldon Richman on 3 June 2011:
Philip, I think the plagiarism comment is an overstatement at least. If I publish someone else’s writing word for word with my byline, I’ve done something wrong in my view. But you make a valid point. The thought I just communicated has been said by others before, and I surely did not think it up myself ex nihilo. Does that make me a scoundrel or worse? I hope not.
Comment by bionic mosquito on 3 June 2011:
I need look no further than to the method of enforcement. If the system requires state enforcement (as this one does) it is illegitimate on its face. If an “inventor” or “author” wishes to somehow protect his work, let him attempt to do so via contract and other non-coercive means.
Comment by Steve Moffett on 3 June 2011:
You have an entire paragraph in parentheses about 2/3rds of the way through. I would like to hear you expound upon this topic, because when I talk to “regular people” about IP, this is *by far* the most raised objection to eliminating IP protections (i.e. the argument that they, as authors/composers would suffer economically if these protections were eliminated). When they argue this, I have no rebuttal because I do in fact wonder how they would make a living without the current system of laws.
Comment by Sheldon Richman on 3 June 2011:
Steve, fair request. Two points for now: The justice question has to be answered on its own. It cannot count against an answer that some people will have a tougher time making a living (if that is indeed the case). As Charles Johnson has written (did I need to type that?), if your business model requires State aggression to succeed, find a new business model. Second, there is empirical evidence that authors can thrive without copyright. Dickens had no copyright protection in the United States. Anyone was free to publish his books. Yet his American publisher continued to publish his new work. Many beloved authors of old wrote without copyright protection.
Comment by Nate Mason on 3 June 2011:
The market already offers a solution to the issue of lost profits. Netflix and other businesses offer access to content as a service. Content is so voluminous at this point that it is difficult for any individual to sort through to find the music, movies or books they will enjoy. Looking at content as stand-alone products instead of a pool of resources accessed through value-added service providers is a fundamental flaw in IPR proponents’ outlook. It is important to note that content producers profit from both business models.
Outside of digital content, inventors always have the right to sell their ideas to someone else; essentially acting as the value-added service provider for their own idea to the market. Whatever the market is willing to pay for the idea is all they are entitled to. The manufacturing, marketing, funding, etc. of the invention are all value additions. The inventor has no automatic right to assumed profits from the actions of those who provide these services unless they take the risk of forming a company to take the entire financial risk of performing these functions (better than potential competitors) themselves.
Comment by norman on 3 June 2011:
“Copyright © 2007 the freeman” is a weird ending for your post.
Comment by Sheldon Richman on 3 June 2011:
Be aware that under the law, copyright automatically attaches and you can’t renounce it. FEE has an open-reprint policy.
Comment by Stephan Kinsella on 3 June 2011:
Sheldon, I’m more of a patent than copyright expert. I really am not sure about the fair use issue–but I do not think it’s one of the 4 factors. They are listed here http://en.wikipedia.org/wiki/Fair_use#Fair_use_under_United_States_law
” the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
”
There may be caselaw on the attribution issue. I am not sure. But I can imagine cases where an author lifts a few paragraphs from someone else and embeds them in their book. This would be plagiarism but probably not copyright infringement. Consider short aphorisms or quotations of famous expressions–this is done often, without mentioning the author’s name, right? It’s not copyright infringement b/c it’s so short it probably is fair use. Anyway jsut a guess. In your comment you imply at first that if you don’t attribute then it can’t be fair use; a couple sentences later you imply the opposite. I *think* your latter comment is right, but it seems to me it’s one or the other.
Steve MOffett: “When they argue this, I have no rebuttal because I do in fact wonder how they would make a living without the current system of laws.”
A few comments– first, see my posts http://www.stephankinsella.com/2010/07/examples-of-ways-content-creators-can-profit-without-intellectual-property/ and http://blog.mises.org/14823/funding-for-creation-and-innovation-in-an-ip-free-world/ and http://blog.mises.org/13286/the-creator-endorsed-mark-as-an-alternative-to-copyright/
Second, a question (how would I make profit?) is not an argument. The fact that some people are not sure how they would adapt to a copyright free society is not an argument that copyright is justified. Third, in my view it is up to the entrepreneur to figure out how to make a profit in the face of possible competition, even if that competition involves copying the informational aspects of one’s product. But the links above provide some suggestions.
Comment by D. Frank Robinson on 3 June 2011:
Many ‘versions’ or translations of Jules Verne’s novels are now in the ‘public domain.’ Some ‘adaptations’ or abridgements claim copyright. So if I change a few words or many words in a Jules Verne novel to create a ‘new adaptation’ I could copyright it?
This seems absurd to me. Once the copyright monopoly has expired for a work why should any derivative of that work be re-copyrightable?
Yes, I am writing a novel based on Verne’s characters. I have no interest in copyrighting it. In fact, I hope to encourage others to write their own ‘adaptations’ of Verne.
Comment by KL Simmons on 3 June 2011:
Sheldon, you state, “Dickens had no copyright protection in the United States. Anyone was free to publish his books.” Definitely true, and Dickens lost piles of money because of it, resented it deeply and was a major proponent of international copyright laws because of it. He only half-jokingly titled his book about his trip to America “American Notes for General Circulation” because he was sure to lose a lot of money in bootlegged editions.
Dickens could afford to lose that money because he was insanely popular, but a writer less popular would be unlikely to survive for long under those conditions. Additionally, in those days it took a good bit longer to pirate a copy of a book, during which time the writer would be earning money on the only available editions to the public. Nowadays it would take less than an hour. To me it really does appear that copying artistic works for profit IS robbing someone of the fruits of their labor.
Comment by Kevin Carson on 3 June 2011:
K.L. Simmons: I think you’ve got it backwards. It was worth it to undergo the transaction costs of setting up competing print versions of Dickens precisely because he was a blockbuster author. In most cases, where the author serves a smaller niche market and charges only a modest markup over printing costs, it’s doubtful whether it would be worth it.
Actually setting up a book for print involves considerable inconvenience.
That’s true even in the digital age. If you take a facsimile pdf of someone else’s book and set it up as an on-demand print job, you’ve not only got to charge a price that covers the basic cost of the on-demand publisher’s services plus the value of your trouble, but you’ve got to overcome the visibility of a preexisting distribution outlet already associated with the author’s name — one that probably comes up on the first page of Google or Amazon results. So why would most people go to the trouble of searching the print-on-demand version of The Pirate Bay for your book, and try to figure out from the listings whether it was complete, whether it had the same pagination as the standard edition (important if you want to quote it in scholarly work), etc. — all just to save a buck or two?
The main effect of abolishing copyright in music and written work would be to wash out the excessive name-value premiums added to the work of the big blockbuster creators, and the middleman profits of the publishing and record industry.
There are considerable rents attaching to the time and trouble of setting up a book for publication, as well as for authentication and convenience. So long as the author doesn’t get greedy and charge a premium significantly over the amount of this rent, she should be relatively safe.
Comment by Roger Erickson on 3 June 2011:
The unseen and as yet unspoken elephant in this room is entertainment ‘industry’ – music and movies.
These start as an idea or dream too, but with difference of size and commitment of group effort, to make a movie. or a band. (If we agree law should say we must do what we agree, then all must be very careful calculating commitments.)
People get together and make contracts to organize themselves, and teach themselves skills, to build a virtual structure, evidenced by papers and electronic artifacts and billions of pixels, which are physical, have value, and are traded as physical property.
If inventors could not calculate their profit to be worth their expenditure of time, physical resources consumed and worn in their pursuits of each team person’s end goal of happiness, and giving of their liberty -to pursue other goals for sake of the group agreements,- to produce a thing so easily copied and reproduced, -they would not do it. Or at least many more would not.
The most able would not, if their work would likely be better paid by other choices. The least able may, as they do not have as many pursuit of happiness options.
This was the goal of copyright law originally, to prevent Edison’s from eating the parts of Tesla’s brains that begin to consider turning thought into reality.
(I certainly agree it has fallen far short and is as outdated and harmful as required government education, but little room here to discuss properly. Natural economic law (the science, not the Keynesian smoke) will reveal all. Coming next year.
Comment by Sheldon Richman on 3 June 2011:
Stephan, here’s what I meant: If a plagiarist uses a brief passage from someone else’s work, he can’t plead the fair-use doctrine in defense (in the court of public opinion), even though the passage is brief enough otherwise to qualify under the doctrine. The doctrine permits you to quote but not to use without attribution.
Comment by Sheldon Richman on 3 June 2011:
KL Simmons: Yet Dickens’s American publisher continued to buy manuscripts from him. Among other reasons, there was value in being first to market.
Comment by Sheldon Richman on 3 June 2011:
Roger Erickson: And yet throughout history people created with no prospect of patents or copyrights. Today some of those people write open-source software.
Comment by Stephan Kinsella on 3 June 2011:
sheldon: “Stephan, here’s what I meant: If a plagiarist uses a brief passage from someone else’s work, he can’t plead the fair-use doctrine in defense (in the court of public opinion), even though the passage is brief enough otherwise to qualify under the doctrine. The doctrine permits you to quote but not to use without attribution.”
Okay, that’s what I thought you meant initially. I think that’s not correct, as stated–the 4 factors do not seem to mention attribution as being relevant. But I am really not sure. Just my sort of gut. It might factor in, in a close case, but not sure. If I had to bet, I’d say it’s basically irrelevant whether you give attribution or not, to the fair use question.
Comment by Sheldon Richman on 3 June 2011:
I think attribution is assumed.
Comment by Ashelyn Summers on 3 June 2011:
I understand that property rights have been established as a solution to the problem of the allocation of scarce tangible objects. I am not sure if it necessarily follows that there is no problem with the allocation of infinite intangible objects? Perhaps IP would be better considered as a privacy right rather than a property right? (Just trying to understand this. I certainly believe in courtesy and not in coercion.)
Thank you,
- Ashe
Comment by Sheldon Richman on 3 June 2011:
Thanks, Ashelyn. I don’t see a privacy issue here. On the contrary, claims regarding IP arise only because an idea has been made public. If you keep your thought to yourself, there can be no issue at all. You say, “I am not sure if it necessarily follows that there is no problem with the allocation of infinite intangible objects.” But ideas, once they leave one’s mind, are not allocated; that implies scarcity and finitude. They are infinitely reproducible, indeed at lower cost all the time.
Comment by Corey Graham on 3 June 2011:
“Apple created a market with the iPod, but soon competitors came along that presumably did not violate Apple’s patents.”
Actually, Apple didn’t invent the iPod, Kane Kramer did, http://www.dailymail.co.uk/news/article-1053152/Apple-admit-Briton-DID-invent-iPod-hes-getting-money.html#, and apparently the patent system failed in protecting his profits.
If there were no patents, an inventor can still contract with manufacturer(s) where the manufacturer would agree to give a certain percentage of its profits to the inventor, not unlike royalties under patents. Third party manufacturers would be allowed to sell the invention, of course, but it takes time to copy a competitor’s invention and then mass produce it. It is during this time period that the inventor and/or any manufacturers he contracts with will have a monopoly on the market. The more advanced the technology, the longer it will take for competitors to replicate it, which means more ‘monopoly time’ for the inventor/manufacturer. This is more fair than the patent system, which sets the ‘monopoly time’ arbitrarily at 20 years regardless of whether you invent a fusion reactor or a better pencil eraser.
Also, even after competitors begin to sell the invention, the original inventor/manufacturer will still have a competitive advantage due to brand loyalty. The inventor can also charge companies for endorsements since a product that was endorsed by the original inventor would have more value.
Comment by Ashelyn Summers on 3 June 2011:
True, you can keep your expressions to yourself. You can also share them with others under whatever conditions you both find mutually agreeable, including the prohibition of further dissemination. My question, is what (if anything) binds third parties? Does this depend on the nature of the expression? Do I have a different obligation if I come across a copy of your secret diary than if I come across a copy of your bestselling book? (Presuming, of course, that you do not want me to have either as such.) I know this is not the same as being the recipient of stolen goods, but what is it?
Thank you,
- Ashe
Comment by MarkZ on 3 June 2011:
Roger Erickson wrote: “If inventors could not calculate their profit to be worth their expenditure of time, physical resources consumed and worn in their pursuits of each team person’s end goal of happiness, and giving of their liberty -to pursue other goals for sake of the group agreements,- to produce a thing so easily copied and reproduced, -they would not do it. Or at least many more would not.”
This is just not true. Thousands of musical groups in the US exist and happily make music without mainstream popularity. Some of my favorite groups have members who work “real” jobs to supplement their incomes. In my opinion, quality does not suffer. If you want innovative, thoughtful music created by skilled practitioners, you don’t turn to the local pop music radio station.
Many thousands of computer programmers have contributed software to the general public without any expectation of being paid for it. In my opinion, quality does not suffer. Open source software is generally well regarded in comparison to the trash that companies like Microsoft distribute for a hefty price.
The idea that artists only create art for money, or can only create art if it’s their profession, is simply not the reality and never has been. Even if popularity is your measure of quality (which is a crappy measure…), there are countless artists whose fame came posthumously but lived without money or even recognition.
Comment by Grabthar's Hammer on 3 June 2011:
“Many beloved authors of old wrote without copyright protection.”
I think this is a salient point. Since the advent of written language, there have been authors, and they seemed to get by just fine without copyright laws. Certainly technology (especially since the advent of the Internet) has made it much easier to disseminate written works, but so did the printing press back in 1440. Are we to understand that it is now not possible to make even a modest living as an author unless the author has complete permanent control over their published works? I have trouble believing this.
If something is genuinely valued by people, as much literature is, they will pay for it voluntarily. Perhaps not all of them, but many of them. The problem of “piracy” occurs when consumers feel like they are being forced to pay a premium for useless or substandard crap, and/or to have to jump through hoops in order to “enjoy” said crap.
Comment by Sheldon Richman on 3 June 2011:
Ashe, binding third parties is the rub. I don’t see how you can do it legitimately. If you are a guest in my house and you rifle through my desk and find my diary — now that’s an entirely different matter. And it’s not a third-party issue. If I find a book in the trash, how am I bound by any contract or other consideration? If I hear a tune played while in Starbucks, where have I agreed to anything?
Comment by Grabthar's Hammer on 3 June 2011:
I do have one slight quibble in regard to the physicality/non-physicality of IP:
Words, music, and even thoughts and abstract ideas are in fact all physical if we are to define them as things which exist in our physical universe. An idea in someone’s brain is a transitory physical arrangement of neurochemicals and electrical impulses which genuinely exist in our physical universe and which can be measured and quantified. They aren’t some intangible magical substance floating around in the aether.
Sorry, I don’t mean to be pedantic or anything, but I thought this was worth pointing out. And I just wanted to play the devil’s advocate for a second
Comment by Sheldon Richman on 3 June 2011:
GH, well, I think what is most relevant is that if I have an idea and communicate it to you, we now both have ideas with similar content. I don’t want to get into neuroscience, but I must insist that an idea and a transitory physical arrangement of neurochemicals and electrical impulses are not the same (kind of) things. Our use of the terms have different referents. I know what a clever or brilliant idea is, but I cannot fathom what a clever or brilliant transitory physical arrangement of neurochemicals and electrical impulses is.
Comment by MarkZ on 3 June 2011:
Grabthar, they’re not physical in the sense that the physical manifestations of these things aren’t what’s at stake here.
Voltages in your computer are not music, even though that may be the medium in which they’re stored. Grooves in a record aren’t music either. These two things are vastly different physical attributes, even though they may represent the same song. It’s the song that’s off-limits, not the physical medium.
[And I hesitate to use the word "represent" in that paragraph, because the medium does not represent the song. The medium just serves as an encoder/decoder of the song, just like an amplifier circuit is also a necessity for playback and for all intents and purposes is part of the decoding process.]
Ultimately, the song is information. It can be displayed to humans a number of ways — sheet music, for example, can allow us to read it. But the sheet music is just the conveyor of information. It’s not a physical manifestation of a song.
Comment by MarkZ on 3 June 2011:
Sorry, last sentence should read “It’s not the song.”
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Comment by Ashelyn Summers on 3 June 2011:
I promise, no rifling
I might be conflating what is a matter for law (what I must do) and what is a matter for norms (what I should do). To bind by law is, of course, very different than to bind by social convention. Am I reading too much into this, is your argument only about IP law?
Thank you,
- Ashe
Pingback by C4SS Media Coordinator Update, 06/03/11 on 4 June 2011:
[...] but I’ll mention one that seems particularly pertinent to the Center’s approach: “Slave Labor and Intellectual Property” in the Foundation for Economic Education’s The [...]
Comment by Scott Bieser on 4 June 2011:
I think that for the most part this “advantage of being first to market” is mythological. Being first to market can be advantageous for a large corporation with a strong marketing presence and department. But consider the case of a small manufacturer, or a small publisher, which comes up with something brilliant, but has difficulty getting the word out. A much larger company could find it (and in the absence of patents or copyright, large companies would have a strong incentive and ability to employ people for the task of scouting such things), make or publish it themselves, earn huge amounts of money, and leave the original inventor/publisher/artist with nothing.
Are you comfortable with this outcome?
Comment by Chuck Dahmer on 4 June 2011:
Publishers routinely use authors at book signings to promote the printed book. Personal appearances are a potential profit center for writers just as concerts are for musicians. It is in the interest of the publisher to contract and pay the author for promotional events whether at signings or TV appearances. So even if the author made nothing from royalties, personal appearances could provide good remuneration.
In my opinion, applied in a private-law, stateless society, plagiarism is still fraud which would be best handled by a civil suit based entirely on the facts of each case. Absence of specific legislated law is beneficial because establishing liability for damages would require a clear demonstration of the degree of harm rather than adherence to a statute. Hope that made sense.
Comment by Sheldon Richman on 4 June 2011:
Ashe, I was focusing on the law. Custom is another matter but very important. In a freed society I would hope that plagiarism would be seen as a major no-no, prompting boycott, shunning, etc. Other things that today are regarded as IP violations might also be subject to social sanction. A good society would not be unsympathetic to authors trying to make a living. Less Antman has written about this, and I’ll post the link when I find it.
Comment by Sheldon Richman on 4 June 2011:
Scott, that can certainly happen, although you underestimate the advantage. As Boldrin and Levine relate, Travelpro was the first company to put wheels on a suitcase. (What took it so long?) It did not patent the idea, which was quickly copied by every competitor. But Travelpro is still a successful company. One outcome of competition is that some competitors fail even at their own game. Bear in mind that the innovator undoubtedly built on ideas of other innovators. That’s how most progress occurs. Does it matter whether I’m comfortable with a particular state of affairs? I take comfort that free competition protects people from private imposition.
Comment by John Zube on 4 June 2011:
Imagine how we would live now if all the useful ideas to prevent wars, inflation and involuntary mass unemployment, and how to easily prevent dictatorships or overthrow them had already been widely enough published and spread, without copyrights, a century ago. Such ideas existed already then – but are still not widely enough known today.
The same is true for the cure of many diseases. But these cures are still not offered together in a WIKIPEDIA type of electronic health encyclopedia. Even our life spans might have been increased much more than they were.
The utilization of the best ideas and talents of all is the greatest profit all of us could gain from all good ideas and talents. Compared with these benefits all those achieved for some by patents and copyrights laws are trivial.
We all suffer enormous damages from rust – and yet, for over 1,000 years, I believe, there stands a rust-free iron column in Dehli.
America and Australia were discovered dozens of times, glass at least 14 times. Discoveries, ideas inventions, observations, texts should be made permanently, easily and as cheaply as possible accessible to all. They are what forms and increases a human culture and civilization. Nevertheless, consider how woefully are freedom, peace, justice and prosperity ideas and opportunities and numerous valuable books, essays and lectures are still neglected in our times. Libertarians, with their experiences of trying to push libertarian ideas and writings should be quite clear about this situation and should certainly not try to copyright or patent them. I tried to push some freedom ideas already since 1949 and still don’t find it easy. Does anyone? – Possibly all libertarian writings could by now be published on a single large external HD. But are they? – jzube@acenet.com.au
Comment by Russ on 4 June 2011:
“to represent someone else’s work as one’s own”
But this very statement implies one has _ownership_ in one’s work. To then deny this “ownership” and say “one’s own” is akin to speaking of “one’s own wife” or whatever is a genetic fallacy. It denies that _the intellect_ — in form or another — forms the basis of _all_ property — tangible or intangible.
These anti-IP discussions always devolve into wanting to have one’s cake and eat it, too: to deny IP is a valid concept while appealing to one’s “own work” as though one has some legitimate _control_ over it…which, of course, means one has _ownership_ over it…which the anti-IP positions deny.
But property rights ultimately devolve to an issue of _control_. Whether the item is tangible or not is not the fundamental question. It is one’s intellectual contribution to _inventing_ — not _discovering_ — X that forms the basis of _all_ property and rights and control. Even picking up an unowned rock and using it as a hammer involves the (minimal) intellectual component of _recognizing_ how the rock can be used as a tool.
Anti-IP arguments are fundamentally hypocritical bordering on _intellectually_ dishonest.
Comment by Ashelyn Summers on 4 June 2011:
I see. Thanks so much for responding to all of my questions
Comment by Ryan Radia on 4 June 2011:
In a 2006 essay by Richard Epstein (“Why Libertarians Shouldn’t Be (Too) Skeptical About Intellectual Property”) this line of argumentation against IP is addressed: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=981779&
. Epstein argues that the institution of private property itself confers on property owners the right to exclude others from traversing their land. This notion is in deep tension with individual liberty, Epstein points out, but we libertarians nevertheless embrace private property because it outperforms all other systems of allocating scarce resources among individuals.
Similarly, a system of explicit legal protections for intellectual property is frequently alleged to outperform all other institutional arrangements for protecting (or not protecting) original expressions and inventions. To be sure, the virtues of intellectual property are hotly disputed, and many people do not believe that society benefits from any degree of IP protections. However, if you accept the premise that the most socially beneficial system of assigning rights over original inventions and expressions involves granting creators a right to exclude that exceeds the scope of traditional private property and contract law, then intellectual property protections are no less morally justified than the institution of private property itself.
I’m no fan of our current IP laws. They are flawed in more ways than I know. I can’t even rule out the possibility that we’d be better off than we are today if all copyright and patent laws were scrapped. The history of the U.S. copyright act is a case study in public choice theory and the “concentrated benefits, dispersed costs” dilemma. Tom Bell elaborates on this in his book draft, “Intellectual Privilege.” (http://www.intellectualprivilege.com/book.html)
Libertarians have many valid reasons to be skeptical of IP, but the moral case against IP is quite weak compared to the empirical case against it.
Comment by Sheldon Richman on 4 June 2011:
Russ, it’s a metaphorical “own.” I also speak of “my” job, “my” hometown, etc. The point is, the plagiarist represents himself to be something he is not. That’s the moral offense. There’s no attempt to have one’s cake and eat it too. You’re right: The issue boils down to control. IP means that through the State the IP holder gets to control what other people do with their persons, their resources, and the contents of their minds.
“Anti-IP arguments are fundamentally hypocritical bordering on _intellectually_ dishonest.” Nice try. No cigar. Where’s the hypocrisy? Where’s the dishonesty?
Comment by Sheldon Richman on 4 June 2011:
Ryan, I believe the Epstein (a utilitarian) is wrong in his comparison of tangibles with intangibles. Land ownership indeed restricts the nonowners’ freedom of movement, but that is morally appropriate because otherwise the homesteader or purchaser could not use the land as he wishes. The story is with different IP, and the difference is in kind. Smith’s use of an idea in her mind does not interfere with Jones’s use of the highly similar idea in his mind. (Lower profits don’t count as interference.) Two people can bake a cake with the same recipe at the same time. There is no moral problem in defending property in tangibles and opposing it in intangibles. The moral and practical cases go hand in hand.
Comment by Jim Henshaw on 4 June 2011:
re this: “I do not concede, by the way, that absent copyright, authors would suffer great hardship in the free market. Copyright advocates assert without good grounds that duplicating artistic works and complicated inventions is necessarily a low-cost and automatically lucrative endeavor, which is by no means the case. But that subject is for another time.”
Well, no, saying “here is a potentially fatal flaw in my argument and I’m just going to hand-wave it away” doesn’t cut it.
Take the movie “Avatar”. Hundreds of millions of dollars were spent producing this movie, in the expectation of recuperating that upfront expense and turning a profit to boot. Now, I don’t have a problem if someone wants to try to remake this movie, using whichever actors they can find, and then try to market this competing version.
What I would have a problem with is a theater chain renting a single copy of the movie the first day it came out, and churning out thousands of identical, perfect copies of the movie and selling them to every other theater chain in the country for a small amount over the cost of churning out each copy, resulting in the the people who sunk all that money into producing this movie getting paid essentially nothing for their work. Who would ever make another movie like Avatar, knowing that such copying would mean they would bear all the costs of production while other people would reap all the rewards?
Would Ayn Rand have spent years writing “Atlas Shrugged”, knowing that if she sent it to a literary agent to shop it around to publishing houses, that the literary agent could simply bypass all that and churn out millions of copies of Rand’s work, and so long as Rand was listed as the author it would be completely legal? Or if Ayn Rand, knowing this would happen, would have to try to print the book herself, knowing that when that first edition hit the bookshelves, people could immediately copy it and print copies priced at just above the production costs?
Yes, there are many abuses of the copyright law, but absent such a legal regime, certain products with very high R & D costs and very low production costs simply would not be made. Now, perhaps your argument is that the marginal benefits of doing away with copyright law would outweigh the marginal costs — that seems like a reasonable argument to advance and debate — but to simply dismiss the costs as non-existent doesn’t seem to me to be a reality-based argument.
Comment by Jim Henshaw on 4 June 2011:
I think it is important to distinguish between copying concepts and then creatively reinterpreting that concept and adding value, versus copying someone else’s extremely complicated work of “art” (using a very broad definition of “art”) and mass-producing exact copies of these works of art created by someone else, even if the lines between the two can get blurry.
For example, take a Toyota Prius. The concept of making a car more fuel-efficient by capturing the engine output wasted as heat in braking, or wasted by having the engine idle at a stoplight — I don’t think that should be protected intellectual property. Further, you should be able to buy a Prius and tear it apart and find out exactly how they made it work, and then reproduce that concept and innovate on it and try to make that concept work even better. I don’t think such tinkering should be prohibited intellectual work. But, where it gets fuzzy is this: should you be able to then produce an exact copy of a Prius, down to the precise shape of every component, the precise metallurgical composition of parts, the exact shape of every body part, just slavishly copying things blindly without any attempt to innovate at all? That, to my mind, is not a slam-dunk thing where someone can say, well, of course they should be able to do that, of course we would all be better off if that was allowed, of course that is moral and not theft at all.
Perhaps I’m being unintentionally statist thinking this because of some flaws in my thinking, but I’m just not convinced that destroying the incentive for large swathes of R&D to occur is going to necessarily be an improvement over the status quo on either moral or utilitarian grounds. It feels like theft to me, however much you might think that gut feeling is wrong.
Comment by Less Antman on 4 June 2011:
Well done, Sheldon, as usual. I believe the link you mentioned on my guess as to where common law and social norms would take us once the abomination of statutory IP disappeared is here:
http://anarchywithoutbombs.com/2009/06/19/an-anti-ip-defense-of-copyright/
And it remains a guess: the way forward is to remove the chains of IP law and allow an order based on the principle of mutual respect to emerge.
Comment by Sheldon Richman on 4 June 2011:
Jim, who said, “here is a potentially fatal flaw in my argument and I’m just going to hand-wave it away”? Not I.
“What I would have a problem with is a theater chain renting a single copy of the movie the first day it came out, and churning out thousands of identical, perfect copies of the movie and selling them to every other theater chain in the country for a small amount over the cost of churning out each copy,…”
Do you think the movie distributor and the theater chain might have have a contract? Come to think of it, that’s how it works now.
Comment by Sheldon Richman on 4 June 2011:
That’s it, Less. Thanks!
Comment by Jim Henshaw on 4 June 2011:
@ Sheldon: “Do you think the movie distributor and the theater chain might have have a contract? Come to think of it, that’s how it works now.”
How would that contract be enforceable if IP is not legally recognized as a valid form of property in any form whatsover? For example, you and a bunch of other people produce the movie Avatar under the legal regime you are proposing, and then offer a copy to me and tiny little 4 screen movie theater, with a strict contractual provision saying that if I copy that movie and distribute it to other theater chains, I have breached the contract and owe you $100 million dollars. I take the movie and promptly copy it and distribute it to other theaters, and make a buttload of money and hide it in offshore bank accounts. You sue me for breach of contract. I offer the legal defense that the clause in question is legally invalid and severable from the rest of the contract, because there is no legally recognizable thing as IP copyright. I win the lawsuit. Then what? Hell, even if you win the lawsuit, what are you gonna collect? The tiny amount of money my little 4 screen theater is worth? And in any event, those copies I sold to everyone else would not be your property, and those owners could also run off a couple million copies, and you would have no legal basis to sue them. Then what?
A similar example: Our country no longer recognizes the right of people to enslave others. You write a contract with me offering a sum of money, payable to my heirs, in exchange for me becoming your slave. I take that money, give it to my heirs, who spend it all, then run away from wherever you’ve enslaved me. You sue me for breach of contract. I contest the suit on the grounds that there is no legally recognized right to slavery. You lose the suit. Then what?
Comment by Mark D Hughes on 5 June 2011:
What a great post Sheldon… I don’t think I have read more engaging and thoughtful comments on the FreemanOnline (the comments to your post on why not to use the term “capitalism” come a close second).
I have two thoughts/comments.
First, as to plagiarism; it seems to me that if the plagiarist is attempting to (financially) profit from the lifted words, say by selling a book he or she falsely claim as their own creation, then we have a simple case of fraud. And, as you know, fraud is part of the triad of verboten things in the libertarian world, i.e., fraud, theft and coercion.
Second, regarding the history of copyright; I think Jeff Tucker has done some interesting research on this. If I recollect correctly it’s his position that the origin of the legal concept of copyright (15th & 16th cent Europe) had little or nothing to do with the interests of the author/artist but were, rather, the result of concerted lobbying on the part of competing printing press owners. The idea of an author earning ongoing residuals on the sale of his or her work was, until relatively recently, almost unheard of. Indeed, long before Gutenberg, an author would sell his or her manuscript to a copyist or scriptorium for a one time fee (think Cicero’s widely circulated works in Rome). After Gutenberg, people who owned printing presses took on this entrepreneurial role. Obviously the first printer to get the original manuscript had a considerable head start on his competitors who would have to wait for the “official” publication before they could begin making copies. As the number of printing presses increased thought Europe (especially Spain) so to did the competitive pressure on the so-called “official” publishers. It was these old established printers that were the first to lobby for Crown protection from their competitors …enter the age of copyright monopoly.
Comment by Less Antman on 5 June 2011:
@Jim “How would that contract be enforceable if IP is not legally recognized as a valid form of property in any form whatsover?”
It would be enforceable because contractual promises to pay money for services are enforceable. It is true that slavery contracts are unenforceable because of the inalienability of one’s will, but that doesn’t mean that taking money and then not performing services is free of liability: the payer is entitled to the return of their funds. Try the “you don’t own me” defense if you’re a contractor who takes a deposit and then doesn’t do any work or try the “it wasn’t your property” defense if a contractor does work on your house and then you refuse to pay him.
A contract only requires offer, acceptance, and consideration to be enforceable under common law, and this was true in ancient societies WELL before the concept of copyright was invented in 1709 as a tool of censorship. Consideration certainly CAN be a transfer of property, but it can also be any action that confers a benefit on others. Opposition to IP is NOT opposition to paying creators for their work.
Comment by Sheldon Richman on 5 June 2011:
What Less said.
Comment by Sheldon Richman on 5 June 2011:
Thanks, Mark. In the June issue of The Freeman (online), Stephan Kinsella discusses the origins of copyrights and patents.
Comment by Sheldon Richman on 5 June 2011:
Jim, you might also want to contemplate the enormity — and I don’t mean mere enormousness — of the police state that would be required to seriously enforce artificial IP rights in the digital age. As along as we’re thinking about consequences…
Comment by Stephan Kinsella on 5 June 2011:
Scott:
“I think that for the most part this “advantage of being first to market” is mythological… Are you comfortable with this outcome?”
Yes. Whatever happens on a free market whenever people are able to compete is okay. It is not the purpose of law and justice to help Scott Bieser figure out how to profit off of what services he has to offer. It’s at most to protect property rights and let you work within that regime to use your entrepreneurial skillz to figure it out yourself. If for a given endeavor you cannot figure out how to profit from it, don’t do it.
Re the Epstein comment: He is brilliant but he has no serious argument for IP. First, his argument is mired in utilitarian, wealth-maximization reasoning, which is hardly rigorous or principled or libertarian. Second, he has no evidence for his view. it’s all if if if. IF IP grows the size of the pie, then… but he cannot show that it does. It’s all if if if.
Comment by Kate Jones on 5 June 2011:
Yes, there is and should be such a thing as intellectual property. Although we all stand on the shoulders of giants, or even all those who came before us, we each do contribute something new and original to the mix. Intangible though such property may be (disregarding the electrons in the brain), a creator puts time and effort into the work. If an author spends months on research and writing, even though he uses letters and words provided him by his forebears, he has created a collection of thoughts and expressions that have an independent existence and value even before they become tangible in a printed volume. An artist’s image, even though using canvas, paint and brushes made by others, is a unique and individual expression, and that image, apart from its embodiment on canvas, film or paper, is his property.
The US Government recognizes several forms of such property: inventions (patents), authorship (copyrights), and names/slogans/titles (trademarks). The Internet age has introduced exclusive use for registered domain names. The correct thinking is that any commercialization of such property should accrue to the benefit of the creator first. There are various time limits set for just that purpose. Trademarks, for example, must be renewed every 5 years. The costs of registration imply the expected return on such exclusive use. Patents cost thousands of dollars, as future sales of useful inventions are expected to recoup that many times over. Trademarks cost hundreds of dollars, as a brand name is expected to build customer loyalty. Copyrights are around $30, and not even necessary, as the act of creating the work establishes ownership.
The fact that some individuals are willing to give their creations away as shareware, open source, public domain, does not mean everyone should be required to do so. It is the very fact of choice that preserves the freedom of ownership.
The Internet age, has, unfortunately, made it possible for anyone to copy anything and spread it around, not even selling it, just “sharing” it. For authors and musicians, that is a devastating loss. We are thrown back to the hunter-gatherer stage of human evolution. But human-created works are not a natural resource for the taking. There must be an exchange of values by mutual agreement for mutual benefit. Do away with the right to one’s created work as a marketable property, and you will impoverish the culture.
Analogy: One group of villagers plants seeds, grows crops and brings in the harvest. Should some outsiders be allowed to come in and take that harvest because sun and rain helped grow it, and nature made the seeds? What makes those crops the farmers’ property? The work they put into it. Ditto for intellectual output.
I happen to be a case of what Scott Bieser described: a very small business creating original–let’s call them artworks. Several of my designs have now appeared, slightly modified, made in Asia and sold on the mass market, with no attribution and no royalties. I am much too small to sue or object. Yet there is a system of licensing in place for the decent operators who do pay me for using my intangible property. Value is inherent not just in physical objects but in the name, reputation, saleability of a word or idea. The time, energy and money I put into its creation, development, propagation, popularization… those are not for the taking by anyone who wants it. If I can be stripped of them, I have worked for free and they take the product of my labors. That is the definition of slavery.
Likewise, the amount of our earnings that government takes in taxes to redistribute to others is the measure of our degree of slavery. The defining point here is that it is taken by force or fraud. If I choose voluntarily to donate of my possessions, physical or intangible, whether to charity or to individuals of my choice, that is my right. That does not mean everyone else should be forced to match my generosity. By the same token, I should have a choice of what government services I need, want and will pay for.
Those who most generously spread their ideas for free are seeking to have those ideas implanted in others’ minds, and that goal is more important to them than making a lot of money. That’s why political articles and polemics seek to be freely reprinted (with attribution, please, or not). Those who wish to can practice such intellectual socialism. Just don’t deprive the rest of us against our will. For example, I’d be happy to have these comments appear under your column without an author’s fee, as I want you to see what my thinking is on this subject! Heck, I’d pay you $1 to read it!
Comment by Mark D Hughes on 5 June 2011:
Thanks Sheldon, Stephan’s essay is great — his analysis of the common-law impact of Queen Ann’s Statute(s) is right on. Jeff Tucker was taking about the mercantilist pressures on the printing industry in Spain about 150 years earlier. You can find it here http://tinyurl.com/4x35ydk staring at about paragraph 21. He provides some keen insights.
Pingback by Weekly Questioning Copyright Round Up « Living Libre on 5 June 2011:
[...] ‘Slave labor and intellectual property: On a misplaced analogy’ from The Freeman. [...]
Comment by Pate on 5 June 2011:
I work for a Pharmaceutical company that is very dependent on its patents. Obviously I have a biased interest, but the existence of patent laws is critical for our survival. For instance, the average cost to bring a new drug to market from phase 1 is anywhere from 800Million to 1.3 Billion. The ability to patent the product,
“if it is approved by the FDA”, ensures the re-coupe of cost of R&D and adds revenue to the research of new drugs. If patents were non-existent and anyone could copy our drugs, then the incentive to spend the millions or billions would be drastically reduced.
I also believe patents provide incentives for inventors, scientists and companies to take the time and money to develop their own ideas. If anybody can take your idea and run with it, then were does the incentive to create come from?
It’s funny that you mentioned Ayn Rand in the article. Because without patents; I believe the world market would look closer to Atlas Shrugged where those who produce and develop ideas would stop creating because the incentive to do so would no longer be financially viable.
Perceptibly this topic has the potential to be endless and the topic is great one, but undoubtedly in need of greater scrutiny.
Comment by Dave Miller on 5 June 2011:
I find it amusing that the more vociferous defenses of the current IP regime distill down to the following:
Because businesses would not engage in monopoly-dependent business practices if IP monopolies did not exist, IP monopolies are necessary.
That circular logic practically oozes statism. Innovation and creativity predate IP monopolies. All evidence indicates that technological fields are more likely to thrive and progress only after they are out from the yoke of artificial monopolies. That is your utilitarian argument against IP protectionism. Sheldon has already eloquently presented the ethical argument against it.
Comment by Larry Ruane on 6 June 2011:
Kate Jones, your comment gives me the impression that you believe that the only alternative to our current IP system is that everyone should be allowed to copy any and all creative work others have produced. This is not what we (I am on the same side of the argument as Richman and Kinsella) propose. It is private property in tangible resources that prevents this anything-goes alternative that you rightly abhor. You complete the manuscript for a book, and this one and only copy is sitting on your kitchen table. No one has the right to copy your manuscript, for the simple reason that doing so would require violating your physical property rights (trespassing on your land, invading your home). To put it generally: If you don’t want anyone to copy your ideas, then don’t tell anyone your ideas.
Your analogy about the harvest doesn’t work because outsiders taking the harvest is a violation of physical — not intellectual — property. It is true that analogies are not perfect (or they wouldn’t be analogies; they would be the actual thing), but to us this is the crucial distinction.
You are right that value is inherent not just in physical objects, but as Kinsella has pointed out, the purpose of law and justice is not to protect value, only the integrity and rightful control of physical objects (including our bodies). Otherwise, consider this example of what you get: You have a store in a small, isolated town that sells groceries. Another store selling the same items opens up across the street. You lose half of your customer base. The value of your store is now reduced. Are you saying that the new store should not have been allowed to open?
Comment by Sheldon Richman on 6 June 2011:
Pate, on pharmaceuticals, two points:
1) Government is the reason it’s so costly to bring new drugs to market.
2) Quoting Boldrin and Levine, Against Intellectual Monopoly:
“Historically, intellectual monopoly in pharmaceuticals has varied enormously over time and space. The summary story: the modern pharmaceutical industry developed faster in those countries where patents were fewer and weaker…. [I]f patents were a necessary requirement for pharmaceutical innovation, as claimed by their supporters, the large historical and cross-country variations in the patent protection of medical products should have had a dramatic impact on national pharmaceutical industries. In particular, at least between 1850 and 1980, most drugs and medical products should have been invented and produced in the United States and the United Kingdom, and very little if anything produced in continental Europe. Further, countries such as Italy, Switzerland, and, to a lesser extent, Germany, should have been the poor, sick laggards of the pharmaceutical industry until recently. Instead, the opposite was true for longer than a century.”
Kate, value is not inherent in either tangibles or intangibles. Value is a phenomenon of individuals judging the usefulness of a thing then deciding what they are willing to exchange for it. Strictly speaking, “value” is essentially a verb. What is a value? It’s something someone values.
Pingback by Slave Labor and Intellectual Property: On a misplaced analogy on 6 June 2011:
[...] Slave Labor and Intellectual Property [...]
Pingback by Two Convicted in U.S. Over Counterfeit Cisco Gear on 6 June 2011:
[...] with copyright infringement–these are different things (see Sheldon Richman’s “Slave Labor and Intellectual Property: On a misplaced analogy”). Here, finally, is a case where there is actually a [...]
Comment by MarkZ on 6 June 2011:
Jim Henshaw wrote: “Who would ever make another movie like Avatar, knowing that such copying would mean they would bear all the costs of production while other people would reap all the rewards?”
Hopefully nobody.
I say that only half-jokingly. Yes, it’s quite possible that the artistic landscape would change if the state no longer supported IP (then again, it might not, as others have argued). Why is it assumed that this is necessarily a bad thing? Actually, many folks, including myself, would welcome the change from Hollywood-led and -funded “art” with mass-appeal to other forms.
Comment by MarkZ on 6 June 2011:
Pete, I don’t work for a pharmaceutical company, but I am an active researcher in the biomedical field, and at the risk of pissing off you and a bunch of other people, I’ll just say that I know who’s really doing the groundbreaking research and it ain’t you guys. No offense.
To echo what Sheldon has already said, pharm companies spend an exorbitant amount of their resources trying to overcome some of the legal barriers imposed by the US government and its affiliates. I know, this sounds like the blame game, but even a (somewhat) recent article in Nature echoes these sentiments re: Japan’s regulatory strategy. And in case you haven’t noticed, the editors of Nature don’t exactly have a libertarian streak.
Anyway, I’d just like to point out that over a hundred years later, Bayer still makes pretty good money selling aspirin. Just sayin’.
Comment by Larry Ruane on 6 June 2011:
I’m a software developer, and one point that I think is under-appreciated is the extent of the “not invented here” (NIH) attitude, for better or worse. Just because someone comes up with a new idea and pursues it with vigor doesn’t mean that everyone else will agree, have the same vision, and think it’s obvious that this is a great idea. I know from experience that even in a highly technical field such as software or computer design, there is a lot of emotion and intuition at work. Computer industry lore is full of stories of mavericks who are dismissed as crazy by the establishment players, but who turn out to be right (or wrong). The “first to market” advantage is even stronger than most people believe. These successes are not dependent on patents.
In my own job, I have never been asked by my management, nor have I on my own, taken the time to investigate ideas whose patents have expired and are thus free for the taking. I always believe I can do it better on my own — which may or may not be true in any particular instance, but isn’t one of the supposed advantages of the patent system that ideas are eventually released to the public domain for all to benefit from? At least from my professional perspective, that advantage has been nonexistent.
Comment by PPS on 6 June 2011:
When the labouring took place. There was no coercive force. So in the strictest sense of the term can this be described as slavery?
If I read a book or go to theatre and do not enjoy it or feel that I was misled as to the nature of the content, am I entitled to refund? No? Is this not theft?
Think about some of the greatest ideas over history e.g. fire, or the wheel. If they had been turned into intellectual property then where would we be today. Surely It is the dissemination of ideas that has contributed the most to human prosperity and growth!
As to future ideas. Have some faith in your fellow man to do the right thing. There are some great ideas coming along and that are yet to come.
One example: Pioneer One
Comment by Sheldon Richman on 7 June 2011:
Re pharma patents, let’s not forget the resources wasted by companies’ tweaking old products just enough to justify new patents. You can say, “So reform, but don’t dump, the law,” but that’s no help. Some authority will be empowered to decide whether a change is an insignificant tweak or an important improvement. Once again, IP will inject a huge dose of subjectivity into the law.
Comment by Hari Michaelson on 7 June 2011:
Kate Jones, you really need to brush up on your economics.
1. Value is never inherent. Value is subjective. Just because you value something doesn’t mean its property. I value my wife’s love and respect. Love and respect are not property.
2. Long hours of work do not entitle you to anything. This is just an emotional appeal. I can work for a year digging a ditch, then another year filling it in. I don’t deserve anything.
3. Saying the “US government does it” is not a valid argument, and in this forum, it will get you no favors.
4. Creation does not grant ownership. Can I sneak into your house, use the wood from your walls to make furniture then claim I own the furniture? How about this… weroiaslrkajsdlfaiosjfklqwenmandfgajdfoa. Do I now own that word? It means “there is no such thing as copyrights.” According to you, I have now “created” something in which I have ownership. Be careful when you respond; you wouldn’t want to violate my “right” of ownership.
Comment by Paul x on 7 June 2011:
I don’t have a lot of interest in the pro- versus con- utilitarian arguments around Intellectual Property (IP). Both sides have semi-plausible claims in that area. Personally, I think IP proponents should go ahead and protect their IP all they want, as much as they want, in any way they can – without using the state, or any of the state’s tools – aggressive violence and coercion.
If they would do this, there would be no need to have arguments over IP, nor to try to convert other libertarians that their cause is right. It wouldn’t matter what other people thought about it.
If IP proponents don’t limit themselves this way, then they are just statists, not libertarians. Just another bunch of bums using the state for their own personal advantage, no different really than war profiteers…
Comment by Greg on 7 June 2011:
Thanks for the article Sheldon. I am starting to study the idea that IP is not property for the state to protect.
Consider the revised scenario for the “smaller profits” case. Instead of Smith simply observing the device she sneaks into Jones’ laboratory and copies the schematics for the wheelbarrow design, copies the assembly process, and copies the business plan.
Clearly Jones is at a distinct disadvantage from a) not knowing she has a competitor and b) is carrying sunk cost from R&D. When Smith demolishes Jones in the market does Jones have a claim for lost profit?
Smith clearly trespassed but did not steal anything but IP. Is Smith on the hook for Jones’ lost profits?
Comment by Sheldon Richman on 7 June 2011:
A real crime was committed. The profits are the fruits of the burglary and therefore were illegitimately acquired. So perhaps they would constitute proper restitution. I’m interested in seeing a discussion of this.
Comment by Greg on 7 June 2011:
Thanks for the prompt reply. To better narrow down the scenario and attempt to remove the crime of trespassing perhaps Smith obtained the schematics, process plans, and business plans legally.
Perhaps Jones has an ingrate of a daughter who has permission to work in the laboratory. The daughter duplicates the wheelbarrow documents and meets Smith in a market. There the daughter exchanges the IP for a couple of goats and runs off to start her new life.
The same scenario plays out where Smith has the IP for a revolutionary product and can out compete Jones in every way. Thus Smith profits from Jones’ effort,labor, and idea. Jones has obviously lost profit due to replication and trading of her IP without her consent.
Does Smith owe restitution to Jones?
Comment by Mark D Hughes on 7 June 2011:
Greg this may (I’m not saying it does) have merit only if we assume Jones’s daughter has no contractual obligation to keep the “secrets” of the laboratory. If, on the other hand, we assume she does have such obligations then the story is little different than before and as Sheldon says “A real crime was committed. The profits are the fruits of the burglary and therefore were illegitimately acquired.” In a loose sense Smith is the recipient/beneficiary of stolen goods (yes, I know this is imprecise since the IP is not a good or property). Perhaps more precisely, Smith only profits because of the perfidy of Jones’s daughter; his profits are (to misuse a legal concept) “the fruit of the poisonous tree” and thus not (rightfully) entirely his own.
Comment by Greg on 7 June 2011:
Thanks for your comment Mark. Yes we do assume there is no contractual obligation to contain secrets to the laboratory. Thus there was no crime when the documents were copied and no crime when they were exchanged.
The premise is that Smith obtained the IP legally from Jones without her knowledge. Imagine any scenario you’d like to get to that point.
The question remains, with no illegal action taken on Smith’s part (or 3rd party) to obtain the IP did Jones lose profit?
Comment by Mark D Hughes on 7 June 2011:
Well, if there is no agreement (implicit or explicit) between Jones Sr and Jones Jr to keep the secrets of the laboratory then it is as if there were no secrets as far as Jones Jr is concerned. Indeed, we might (emphasis on the might) even go so fare as to say she is acting on behalf of Jones Sr and is making a gift (or in your example an exchange for goats) with Smith. Smith is no more liable for restitution to Jones Sr (for any lost income steam — profit is not the right word) than if Jones Sr simply gave the IP to Smith. Perhaps a better analogy (since it is hard to imagine a case where at least an implicit secrecy covenant did not exist in the family Jones) is if, on a long walk in the park, Jones Sr absentmindedly left working copies the design/idea on a park bench and Smith came along an found them. How, in any reasonable world, could Smith be considered liable for any loss of income Jones Sr might incur because of his own carelessness. Jones Sr may be within his rights to demand Smith return the working copies (that too is debatable). However, no mater how much he demands, he will be unable to erase the knowledge (the IP idea) that Smith now has. Likewise, any attempt on the part of Jones Sr to prohibit Smith, by way of force, from acting on that knowledge is a violation of Smith’s own property rights (i.e., rights to his own body and his thoughts). Notice, this in no way precludes Jones Sr from paying Smith to NOT act on his newly gotten knowledge. This could well be a boon for Smith as there will undoubtedly be some learning curve he must first overcome before he can profit from his new knowledge. It is also a boon for Jones Jr as he does not lose everything due to his own foolishness.
Finally, you cannot lose “profit” as profit is not a thing, that is. it is not property. An entrepreneur has no “right” to any future profit if his rival is capable of competing it away from him. On the other hand, it can be said that if I own a gold mine I have a right to the future income stream from that property. That income stream is also my property because it is a function of my owning the mine. I do not however have any right to any “profit” I may not earn if my neighbor discovers gold in his back yard and sells it to someone who might have otherwise bought from me.
Comment by Mark D Hughes on 7 June 2011:
Well, if there is no agreement (implicit or explicit) between Jones Sr and Jones Jr to keep the secrets of the laboratory then it is as if there were no secrets as far as Jones Jr is concerned. Indeed, we might (emphasis on the might) even go so fare as to say she is acting on behalf of Jones Sr and is making a gift (or in your example an exchange for goats) with Smith. Smith is no more liable for restitution to Jones Sr (for any lost income steam — profit is not the right word) than if Jones Sr simply gave the IP to Smith. Perhaps a better analogy (since it is hard to imagine a case where at least an implicit secrecy covenant did not exist in the family Jones) is if, on a long walk in the park, Jones Sr absentmindedly left working copies the design/idea on a park bench and Smith came along an found them. How, in any reasonable world, could Smith be considered liable for any loss of income Jones Sr might incur because of his own carelessness. Jones Sr may be within his rights to demand Smith return the working copies (that too is debatable). However, no mater how much he demands, he will be unable to erase the knowledge (the IP idea) that Smith now has. Likewise, any attempt on the part of Jones Sr to prohibit Smith, by way of force, from acting on that knowledge is a violation of Smith’s own property rights (i.e., rights to his own body and his thoughts). Notice, this in no way precludes Jones Sr from paying Smith to NOT act on his newly gotten knowledge. This could well be a boon for Smith as there will undoubtedly be some learning curve he must first overcome before he can profit from his new knowledge. It is also a boon for Jones Jr as he does not lose everything due to his own foolishness.
Finally, you cannot lose “profit” as profit is not a thing, that is. it is not property. An entrepreneur has no “right” to any future profit if his rival is capable of competing it away from him. On the other hand, it can be said that if I own a gold mine I have a right to the future income stream from that property. That income stream is my property because it is a function of my owning the mine. I do not however have any right to any “profit” I may not earn if my neighbor discovers gold in his back yard and sells it to someone who might have otherwise bought from me.
Comment by Mark D Hughes on 7 June 2011:
My apologies for duplicating that last post.
One final thought. It seems to me that within the framework of the discussion, i.e., Jones Sr, Jones Jr and Smith, it is not the idea (called IP) that has value, but, rather the secret. The idea, if everyone knows it, cannot possibly have value. It is only if the idea is a secret (or at least contractually kept private — non disclosure covenants, etc.) that the disclosing the idea can generate a profit.
Comment by Mark D Hughes on 8 June 2011:
Upon reflection, I am not sure if I have made the distinction between profit and income stream clear (pardon the pun). Think of income stream as just that, a pathway or course down which income may flow. This “income stream” is a function of some asset or property upon which I must act before any income flows to me. If I wish to sell the asset or property part of the price calculation will include an “estimate” of the present value of the future income flowing down the stream. It is in this sense that the future income stream can be considered my property. None of this, however, has said anything about my right to a specific volume or “flow” of income, i.e., “profit.” Consider the case of a real stream; the volume of water flowing down it can change throughout the year and from year to year for reasons due to mother nature or because of the actions of other property owners further up the watershed (and often independent of the stream itself). Even though I may own the stream I have no “right” to any specific volume of water. Just so with the income stream associated with an asset I may own. I have a right to the stream and what flows down it to me but that is all. Should a rival move in and compete/divert income away form my income stream I have no claim on that diverted income since I had no right to claim any specific amount of income or profit flowing from my asset. Indeed, the profit my rival competes away from me does not belong to me and never did belong to me.
There, now isn’t that clear
Comment by Sheldon Richman on 8 June 2011:
I generally agree with what Mark says.
“Does Smith owe restitution to Jones?” No. This is a matter between Jones and his daughter. She might have violated a nondisclosure contract. Smith nonetheless has a right to act on and profit from what is in his mind. If there was no explicit contract, we may be in the area of customary law. Did Jones have a reasonable expectation that his daughter would not disclose something he clearly was keeping private? We can’t answer all such questions because no proper legal system will have everything written down. Judges resolving particular disputes will have to find the applicable law after examining custom, habit, etc. Jones’s daughter may well have violated a clear custom. If not, then Jones left himself vulnerable and will learn better for next time. He took an entrepreneurial risk and lost.
Comment by Sheldon Richman on 8 June 2011:
Someone mentioned that Bayer still makes a nice profit producing aspirin, though anyone else is free to make it. Here’s another thing about first-to-market advantage: Boldin and Levine point out that publishers pay to be first to market with high-profile government reports, such as the 9/11 commission report. They know full well that anyone is free to publish these public documents in cheap formats. Yet they pay to be first.
Comment by MarkZ on 8 June 2011:
Mark Hughes, neither the idea nor the secret is tied with profit. As you (rightfully) acknowledge in your prior post, IP is not property and we cannot treat it as such. Although trespassing and stealing secrets (e.g. reading their diary) is a serious offense, the act of creating a profit was (presumably) done legitimately (i.e. through free association). Yeah, it sucks that someone can steal secrets and get away with it, but all of you have in my view failed to justify the idea of restitution based on profit. From a practical perspective, this just underscores the importance of developing new ways to safeguard secrets.
Comment by Greg on 8 June 2011:
Great responses.
Sheldon, I seriously doubt a mother and daughter would have a signed NDA (non-disclosure agreement). When the daughter profits from the duplicated information there has been no crime even if a custom is violated there is no legal recourse. I’m no legal expert but I don’t think I can be imprisoned or fined for violating a custom.
MarkZ, really the idea is not tied to profit? Without the idea Smith could not introduce a new product to the market. Idea + Action = Income. Remove the idea and Smith has no income from her wheelbarrow business (in fact she doesn’t even know what a wheelbarrow is).
Profit is simply a function of income. The assumption is that Smith is savvy enough to sell wheelbarrows for more than they cost. I would definitely conclude that the idea is tied to profit.
“Stealing secrets is a serious offense”. This statement implies that secrets are property. Are secrets property that can be stolen? To me IP and secrets are interchangeable. I don’t see the distinction.
It seems like Sheldon, MarkZ, Mark H. and myself are in agreement that ideas or secrets need to be protected. At least protected from ungrateful daughters. The question becomes what is the best way to protect ideas?
Comment by MarkZ on 8 June 2011:
Greg, the idea is not responsible for the profit. Just because I come up with the idea for the flowbee doesn’t mean that I deserve any kudos for it, let alone a profit. Most modern inventions have been thought up by someone else before. The invention comes from actually getting it to a consumer, not by thinking it up. There are lots and lots of intermediate steps between coming up with the idea and actually putting a product into a consumer’s hands. This is why I take issue with Sheldon’s original statement: “The profits are the fruits of the burglary and therefore were illegitimately acquired.” No, the profits weren’t illegitimately acquired. An initial immoral action does not necessarily damn all subsequent actions.
It’s also worth pointing out that it’s impossible to distinguish how much of the wheelbarrow was thought up by Smith and how much by Jones. When engineering the wheelbarrow, Smith may very well have solved some problems that Jones might not have been smart enough to overcome (maybe Jones’ original formuation had square wheels…).
Anyway, not sure how you conclude from what I wrote that secrets are property. Is it because I used the word “stealing”? Please, don’t play the semantics game. This is obviously just a figure of speech. Even IP advocates acknowledge that IP is not property! When you download a DVD off the internet, you won’t be charged with stealing the DVD. You’ll be charged with copyright infringement.
I’ll actually depart with you, Sheldon, and Mark H. about the idea that secrets *should* be protected. I think that approach is generally bad for society (admittedly, this is a very generalized statement). I’m simply acknowledging that those who wish to profit from ideas and secrets need to do a pretty good job of hiding those ideas and secrets if they want to maximize profits. Probably.
Comment by Sheldon Richman on 8 June 2011:
Greg, the daughter might be subject to civil action if her relationship with her father had an explicit formal business aspect — say, if she was working for her father. If he had a reasonable expectation of nondisclosure, based on widespread practice in that society (customary law), he might have a valid claim. It depends on the full context. The Law Merchant that arose among merchants in the Middle Ages used widespread custom and customary expectations as the basis for law and interpretation of contracts.
MarkZ, I agree with this: “I’m simply acknowledging that those who wish to profit from ideas and secrets need to do a pretty good job of hiding those ideas and secrets if they want to maximize profits.”
Comment by Greg on 8 June 2011:
MarkZ, I misunderstood your comment that “stealing secrets is a serious offense”. I’m not trying to play a semantic game.
The premise is that if I uncover your secret design you are not worse off than before. I did not erase the idea from your mind or documents. So, how is this a serious offense?
I agree with you that the journey from idea through implementation to successful selling is not a trivial one to be taken for granted. But I still contend that the idea is a key component of the profit since you cannot remove it and still have a successful product. Plus, per your comment if Smith improves the design by adding a round wheel the initial idea is improved it should yield a larger profit. The better the idea the bigger the profit. The idea is a factor for profit but not the only one.
Again I assumed too much that you were in favor of safeguarding secrets. I get a little nervous around arguments that are based on the “greater good” that it would be better for society to expose trade and patent secrets at the expense of the individual. It has a hint of altruism.
But you do concede that maintaining a secret will maximize the profits for the individual. In that she holds a monopoly until it is revealed. Thus the secret/idea/IP has economic value.
Comment by MarkZ on 8 June 2011:
Greg wrote: “The premise is that if I uncover your secret design you are not worse off than before. I did not erase the idea from your mind or documents. So, how is this a serious offense?”
Sorry if I wasn’t clear. By “serious offense”, I’m referring to the violation of privacy that’s inherent in “stealing a secret.” In this context, we’re talking about reading wheelbarrow schematics. We could very well be talking about reading someone’s personal diary, or watching their homemade videotapes. It’s the same offense, in my view. It’s not the impact of knowing the secret that’s offensive. It’s the act of violating one’s privacy.
Greg also wrote: “But you do concede that maintaining a secret will maximize the profits for the individual. In that she holds a monopoly until it is revealed. Thus the secret/idea/IP has economic value.”
Of course better ideas lead to a bigger profit. But by the same token, better marketing strategies can lead to a bigger profit too. Being a charming salesman can lead to a bigger profit. When I said the trespassing wasn’t tied to profits, I didn’t mean that it, like millions of other things, didn’t contribute to the profit. Hell, it could have contributed to the local lawn seed company’s profits by virtue of there being more consumers with wheelbarrows. But that doesn’t mean that Jones is entitled to any of the lawn seed company’s profits, or that his idea had “economic value” that included lawn seed.
Comment by Jason M on 9 June 2011:
Under your proposed system:
I am Marketsoft. I now take every piece of software currently for sale, free, or open sourced, re-package it, and sell it all over the world on my popular website and in stores. If the creator releases an update, I release the update.
I am Spamazon.com. I now take every e-book on my already popular website and sell it as before…except I pocket all the money. I find everything published on the web, and sell it on my site. Every new e-book published and sold anywhere is _instantly_ copied to my site. Every newspaper, magazine, news story, map, anything that I can easily copy or make digital goes on my site. All mine to sell.
I am yTunes. I sell every song and video as before, but I keep the money. I also take every song off the internet – free songs by new artists, mash-ups, the stuff is endless – and sell it, too. Every TV show and movie, available before it even airs, all packaged and sold.
Do you see? I am already well positioned in the marketplace; it is easy for me to find the customer….you? Nobody knows you. You haven’t got the resources to market or sell your creation. I do. You don’t have a pre-existing customer base. I do. You are nothing but an IDEA. I am the EXECUTION.
You get nothing. I get everything.
That girl who saw the wheelbarrow? That girl works for me. I am happy, of COURSE, to tell anyone who asks that it was your idea, your song, your novel.
Thank you for removing the barriers for my complete domination. I pay nothing for your idea, but I am so much better at selling it than you.
Comment by Mark D Hughes on 9 June 2011:
Very droll Jason. But just how long do you think your world of mega-dominating online publishers will prevail before content producers realize it is simply nuts to publish anything without first trying to sell it to Marketsoft, Spamazon.com or yTunes. I should think these companies would be eager for new content and willing to buy it (assuming it wasn’t freely floating around in cyberspace). Remember, even in this digital world there are still transaction costs involved in finding new content. One way of avoiding these costs is to make deals with content producers.
Comment by Jason M on 9 June 2011:
No. We can wait. We can afford to be patient, while you are working your day job so you can be creative at night, since you can’t make a real living any more as a writer/musician/filmmaker.
Eventually your compulsion to create and share will force you to publish somewhere. Then it’s ours. Or your work just sits in a trunk somewhere, never shared. Those are your options.
All you have done here is reduce our wholesale price to zero. According to commenters above, the world will happily keep producing without any IP protections – all we do is compile it.
Comment by MarkZ on 9 June 2011:
Jason M, please explain how any of your proposed “domination” is different from how things are under the present system. There are, in fact, hundreds of torrent sites that do precisely what you describe, only their money is made from advertisements.
There are thousands of musicians in this country whose work is freely available online for anyone with even the slightest bit of computer knowledge to download. Many of those musicians make a living as musicians. Those who make very little selling their recorded works (iTunes, BTW, pays most up and coming artists pennies on the dollar, or even fractions of pennies on the dollar) often do very well performing live. If they didn’t, I wouldn’t really care. Historically, art has always existed absent financial gain.
You wrote: “According to commenters above, the world will happily keep producing without any IP protections – all we do is compile it.”
In fact, it does already. I’ve offered half a dozen examples, ranging from music, art, software, drugs, and scientific discovery, where productivity is high even in the absence of (direct) financial gain. I’m afraid to say that your doomsday cautions have no basis in reality. They’re only theoretical. And I think the commenters here have offered pretty good mechanistic explanations for why your analysis fails.
Comment by Jason M on 9 June 2011:
Torrenting of copyrighted work is theft under the current law. I don’t see how that supports your argument – the companies they rip off are doing quite well. Also, our products wouldn’t be fakes, or trojans, or some crappy iPhone recording of a movie in the theater, nor require special programs and knowledge to take advantage of. One-click purchase, done.
We would of course make available every currently “free” song – it’s a great enticement to get people to buy our stuff. Also, it might be worth 10-50 cents per song/album for the convenience of not having to hunt them down on the individual band websites. We’re a one stop shop!
Doomsday? This is your dream come true, man. Artists producing…and established distributors doing what they already do better than anyone else. Distributing. Where’s the harm, right?
Theoretical? You couldn’t be more wrong. This is what _would_ happen. The companies you expect to evaporate would actually become more powerful. Why? Because they’re already established, already the best at sales, already have contracts to distribute and shelf space – you’ve simply removed the need for them to compensate producers in any way.
The same technology that makes it easy for people to publish their work makes it just as easy to duplicate. Within seconds of it hitting the internet it is now for sale on our site. We can even create new marketing material using their (non copyrightable) likenesses – thanks for that!
Your cavalier attitude towards the actual artists – you might not care if they can make a living, but believe me, they do – plus your assumption that financial gain is not a genuine motivating factor in creation really cripples your argument.
Comment by Stephen Wardlaw on 9 June 2011:
Disclaimer: As an independent inventor in the biomedical field with over 100 patents, I have used the patent system and have done very well by it, thank you.
First, I believe the current patent system is a complete mess; I think software and business model patents are an abomination and a source of endless mischief and wasted productivity. There are also far too many patents issued for me-too drugs and obvious minor modifications of previous inventions. However, the question arises as to what would happen in the place of the current patent system (a utilitarian argument).
Generally, if an invention is not patented, vital aspects are protected as trade secrets, ringed by non-disclosure agreements as required. In many ways this gives better protection than a patent – at least on modern, complex products. However, the regulatory state tends to short-circuit this approach.
Before approval of a medical device or drug, most aspects must be revealed to the regulatory authorities and become relatively public knowledge. Since a large part of the costs associated with a device or drug are development-related (separating the 99 things that don’t work from the one that does), not being able to protect this investment in some fashion would substantially, if not entirely inhibit private capital investments in such ventures. Showing someone a business plan where a year after product launch the average price drops to 110% of manufacturing cost for a product which took 10 years to develop is a non-starter.
Keeping the trade-secret model for inventions was the norm for centuries, and for all its faults, the patent system does require disclosure of the invention, which is of great assistance to others in developing their own ideas. Unless one could (or should) uproot the regulatory apparatus, it is the only way to ensure continued private investment in some technologically complex products.
Comment by MarkZ on 9 June 2011:
Jason, I provided the example of torrents to demonstrate that artists, programmers, etc can still make a fortune while torrent sites provide exactly the type of landscape you hypothesize. You seem to think that you’re suggesting a new type of scheme, when in fact it’s already in place (operating, in part, because of lack of enforcement of IP law both here and especially abroad). You’re not the first to make these predictions. But the information age has blessed us with the ability to test these hypotheses directly. And, in fact, the opposite of these predictions IS occurring. You predict that power is concentrated in the hands of a few corporate giants when copyrights are violated, when in fact “pirating” primarily hurts the corporate giants, it doesn’t help them. If you want the new Brittany Spears album, you’ll be able to find it for download online within minutes. If you want the new album from your favorite band on an independent label, you’ll probably have a much harder time finding it.
But I do agree with the characterization of my stance that you make in your last paragraph. You’re right, I don’t care about whether the artists profit. I mean, I guess it would be cool if my favorite sculptor made more money than he did. But it would also be cool if my buddy who works at the soup kitchen made some money doing it too. I wish that cancer researchers made more than they did and that CEOs made less than they did. But this is not my call to make. These factors are (err…should be) dictated by the market. Not by politicians, governments, or contrived programs like IP.
Your last paragraph also implies that quality is affected by eliminating IP. But, again, your supposition is entirely theoretical. And when you look more closely at history, instead of relying on some theoretical framework, you’ll discover that every doomsday prediction has failed to come true. Open source software is often considered superior to the alternatives; independent music has historically been of top quality (really, are you going to defend today’s mass market junk?) — this is true not only for the quality of the art but also for the quality of the engineering (see the “Loudness War”); and many of the most famous works of art in history were created by artists whose only recognition came posthumously.
Human beings are remarkable creatures. Sometimes they create for reasons other than profit. I know capitalists usually hate hearing that, but history bears this out.
Comment by Matt N on 9 June 2011:
I’m sorry, but I just don’t see the issue as having anything to do with rights. It’s a pragmatic one… why would a would-be entrepreneur spend his resources (of any kind) on putting up the initial capital and risk required to create a new widget if he knows that there’s nothing to stop anyone and everyone else from simply back-engineering the widget and competing, without having to put up that same initial capital and risk?
It’s sort of arbitrary: In a legal structure that recognizes intellectual property rights, an individual considers the protection that affords them and enters into an endeavor under the knowledge of that protection. At that point, if someone takes the idea and produces it as their own, then they have in fact taken something — all of the initial capital and risk the individual put into the invention that they would not otherwise have expended had they known they would not be protected. On the other hand, in a legal structure that does not recognized IP rights, an individual considers _that_ knowledge, and if they still move forward with the endeavor then they are doing so with the implicit consent that anyone else can take and use the results without compensation.
As someone who considers himself a libertarian, I find this strain of libertarianism somewhat bizarre. The argument always seems to be that IP involves the use of state-initiated force to deprive individuals of rights. I agree with the non-aggression principle, but in this case the “intellectual resource” (to avoid calling it property) that you’re arguing you should have unfettered use of wouldn’t exist if it weren’t for the legal structure created by the state.
On the other hand, if you claim that the “intellectual resource” _would_ exist even without the protection of IP laws, then you’re arguing that the IP laws don’t really have any effect — surely if people exist who would invent something without any promise of protection, they wouldn’t be deterred just because that protection is available to them… Just refuse to work with, or buy the products of, people who protect their inventions under IP laws.*
* One aspect of IP laws that does bother me is the fact that they can be used to punish people who actually come up with the same idea on their own, without “stealing” it. I do think IP protection is overly protective.
Another side of the argument that the author seems to be making is that no aggression is required to “steal” the idea, and that makes it OK…. well just because initiation of aggression is wrong that does not mean that any behavior that does not involve the initiation of aggression is _not_ wrong. Furthermore, that argument could be used by the state: the state doesn’t actually initiate any aggression with respect to, say, Section 111 of the MMSEA of 2007, and yet people comply. Therefore (your reasoning goes), there is nothing wrong, per se, with that particular law (it’s pretty egregious, from a libertarian perspective… look it up).
Bottom line is, art aside, I think we get a lot of valuable innovation in exchange for putting up with an arbitrary legal construct that might otherwise offend our libertarian sensibilities… even though, if you really look at it, it doesn’t involve the loss of any real liberty.
And, frankly, the inability of contra-IP libertarians to make a coherent case for their position adds to the “libertarians are kooks” mentality.
Comment by Matt N on 9 June 2011:
One other comment…
A lot of folks seem to argue that the proliferation of art despite the underground pirating industry is proof that IP protection isn’t necessary.
Art is different. People do it because they enjoy it — even need to do it.
As a software engineer, I can tell you that Open Source doesn’t hack it. It’s fantastic within bounds, but commercial software still beats Open Source for a variety of reasons. If you think companies like IBM, Oracle, Microsoft, Apple, etc., would have developed the software and hardware they did without IP protection, you’re a fool.
In any event, even if non-IP-protected intellectual capital is, or can be, as good as IP-protected, that is no argument against IP protection, because people who don’t care to have their work protected can still release their work freely… no one is forcing them to sue under IP laws. Indeed, we see that in music and Open Source software.
I really just can’t get past the plain fact that people who argue against IP protection are really just trying to rationalize their own desire to steal (one need not initiate aggression to steal). There simply isn’t any coherent argument in defense of their position.
Comment by Mark D Hughes on 9 June 2011:
Mark Z, your last response to Jason is a “bull’s eye.” “Human beings are remarkable creatures. Sometimes they create for reasons other than profit. I know capitalists usually hate hearing that, but history bears this out.” Well said!
Stephen W., you make some insightful comments. The contractual trade-secrets model is, indeed, the only proper method of protecting/maintaining/maximizing the income stream associated with an invention in the genuinely free market. It in no way requires the authority of the state any more than any other genuine contract-based system. Your key insight is that state regulations requiring disclosure of an idea before it will sanction the implementation or production of the idea; this entirely defeats the contractual trade-secrets model. Remember, however, underlying all of this discussion of abandoning conventional IP is the assumption of a libertarian world or at least a libertarian-leaning world. In such a place, it would be my guess that the mass of state imposed product/safety regulations would have been eliminated long before IP laws. Within the sphere of free-market intellectuals, the legitimacy of state imposed product/safety regulations has long since been entirely and universally rejected.
Comment by MarkZ on 10 June 2011:
Matt N wrote: “why would a would-be entrepreneur spend his resources (of any kind) on putting up the initial capital and risk required to create a new widget if he knows that there’s nothing to stop anyone and everyone else from simply back-engineering the widget and competing, without having to put up that same initial capital and risk?”
This is a very interesting psychological question. But it’s also not very important in the context of this discussion, because we know that people DO spend resources developing something that they know won’t be protected. There are lots of things that aren’t protected by IP, yet a ton of effort and resources are still devoted to developing new widgets or techniques. Sometimes there’s still an expectation of financial gain (see my Bayer example, which indirectly addresses this) and sometimes there isn’t (the arts, for example). But what we’ve learned from the arts, and from open source programming, and myriad other industries, is that people produce for reasons other than financial gain. You ask about what these reasons are. I can only suggest you ask an artist this question, or someone who’s freely contributed code, or someone who’s contributed to scientific progress.
Will the landscape look different if IP was abolished? Maybe. But it hasn’t yet been demonstrated that it will look worse. In the case of the arts, there are actually lots of reasons to think it would look better (this, of course, is subjective). Economically, there are also a lot of reasons to think that things will improve.
“On the other hand, if you claim that the “intellectual resource” _would_ exist even without the protection of IP laws, then you’re arguing that the IP laws don’t really have any effect”
No, they have a clear effect. IP protections create monopolies, the effects of which I’m sure I don’t have to explain to you. I think it’s perfectly reasonable to expect that IP protections alter the landscape in a lot of ways. I would consider most of them bad.
“As a software engineer, I can tell you that Open Source doesn’t hack it.”
I’d argue the opposite. This is why, despite having access to just about any OS (with someone else’s money), I still opt for non-commercial OS’s for most applications (especially for servers). Not only because of the open source aspect, which I’m sure you’ll agree is INCREDIBLY useful for purposes of modification and customization, but also because I think it’s just better quality 95% of the time. I’d argue that having motives other than financial gain and mass market appeal is generally a good thing, not a bad thing. You appear to be arguing the opposite.
Regardless, I think the more important lesson from open source is that people produce at an extraordinary rate even in the absence of IP protections.
Comment by Robert K on 10 June 2011:
Mark Z:
I have some questions for you:
What’s the approximate # of users of all torrent/file sharing tools?
What’s the approximate # of users of itunes, amazon, and ebay?
What’s the reason that music sales have maintained or grown in certain sectors after the mp3 pirating boom?
Could you name one open source software that is considered superior to the alternative?
Could you explain how your opinion of better music has more validity than the masses?
Could you explain the purpose and benefits of entrepreneurship?
Thanks
Comment by MarkZ on 10 June 2011:
Robert K,
You’re missing the point of my example of torrents. Torrents (and other file sharing resources) are an easy way to get music and software for free, a scenario that’s not terribly different from the one Jason offered. But you’re exactly right, the number of users are probably quite small in comparison to the number of people who pay for music through other avenues (although the RIAA would have you believe otherwise), which suggests that people really don’t care that much about paying for it. We can think of a number of reasons why this might be the case.
What IP advocates have failed to do in this discussion is 1) offer an explanation of why financial incentive is necessary for production when numerous examples have been offered to demonstrate that production occurs in the absence of financial incentive; and 2) offer an explanation of why financial gain often occurs in systems where IP protection is absent.
IP advocates state that the landscape may change — a possibility that libertarians readily acknowledge as well — but they haven’t shown that this change is necessarily for the worse. They say artists will make less money. That’s a distinct possibility. So please explain to me why this is a bad thing. The only explanation I’ve seen so far is that less money for artists means less art or lower quality art, but this is demonstrably false.
The fundamental problem that IP advocates can’t get past is their belief that financial gain is the only motivating force.
Comment by Robert K on 13 June 2011:
Mark:
Self interest IS the only motivating force for everything. Financial gain is the most commonly accepted method of achieving self interest because it can be used to gain most everything else. Even those “I do it for my love of it” types must eat.
Would you rather your favorite artists be producing art or working their 8-5 jobs so they can live and then doing their art on the side?
I made SEVERAL questions, and you avoided them all, so let me see if I can answer them for you and then draw conclusions from them:
q: What’s the approximate # of users of all torrent/file sharing tools?
Approximately 1 million worldwide.
q: What’s the approximate # of users of itunes, amazon, and ebay?
Approximately 200 million worldwide.
This means that the “easy” idea you attribute to Torrents is bunk, if it WAS easy then it would have far more users, probably more than the other three combined. I use torrents, and quite frankly it’s a pain in the ass. There are risks of getting viruses involved as well as tons of poor quality files.
q: What’s the reason that music sales have maintained or grown in certain sectors after the mp3 pirating boom?
The reason is simple, people share their experiences with their friends who don’t have the skill to use Torrents so they buy the product their friend introduced them to. It’s the masses of people that have no ability to use Torrents that makes the economy of artistic production work.
q: Could you name one open source software that is considered superior to the alternative?
It’s called Linux, and it’s only usable by very skilled people. When it comes to the masses, Windows and Mac OS Linux are the only options and both aren’t free.
q: Could you explain how your opinion of better music has more validity than the masses?
It doesn’t. Your snobbish attitude towards modern popular music is a testament to your inability to see how the real world works for real people.
I have left ONE real question for you to answer instead of sidestepping like you did previously. Please try to answer it:
q: Could you explain the purpose and benefits of entrepreneurship?
Comment by MarkZ on 13 June 2011:
RobertK, I never suggested that anything other than self-interest was the motivator. Not sure where you got that. I said that financial gain isn’t the ONLY motivator, and I hope you’d agree that it obviously isn’t the only form of self-interest. There are lots and lots of reasons why people produce art, software, and even new medical devices and techniques. Utilitarian IP advocates generally posit that financial gain is the only motivator strong enough to maintain these forms of art and technology. As I said, this is demonstrably false, and I’ve offered numerous examples. No rebuttals.
Let me address a few of your comments directly:
“It’s called Linux, and it’s only usable by very skilled people.”
This is absurd. I guess by the same logic, so is OSX (which is essentially a BSD, more or less).
Also, there are plenty of other open source OS’s that are even more dumbed down than XP. And OS’s are only one of many examples of “free” software that appeal to the masses. Internet browsers, media players, and messaging tools are perhaps the best examples.
“This means that the “easy” idea you attribute to Torrents is bunk, if it WAS easy then it would have far more users…”
This doesn’t logically follow. I acknowledged in my last post that most users prefer to pay for music and movies. Even those who know how to use torrents, have access to private trackers (eliminating your “quality” concern), and have the software installed on their computers often choose to pay for them. I know. I’m one of those people.
“It doesn’t. Your snobbish attitude towards modern popular music is a testament to your inability to see how the real world works for real people.”
Thanks for that.
So, we need a public subsidy (that’s essentially what IP or any other form of cronyism is) to ensure that the artists who produce YOUR favorite type of music receive their tithe while the artists who produce someone else’s favorite type of music don’t.
My dislike of some of today’s popular music was mostly a tongue in cheek comment. I offered it to emphasize that just because one set of artists is indirectly propped up by the state doesn’t mean that other sets of artists are of lesser quality. That is, unless you think the all-knowing state is the arbiter of such things.
Again, you have failed to explain how things are BETTER because of IP. You’ve just decided that XYZ “deserves” money for making music (even though ABC doesn’t make money for doing the same thing). Explain to me how this stance is any different from other statists who try to justify the existence of the NEA. They use identical arguments to what you and others here have been using.
Comment by Anonymous on 13 June 2011:
This sounds familiar. I offered a similar argument in Mr. Kinsella’s article a couple weeks ago. I have to wonder if I’m the interlocutor mentioned in the slavery portion?
I haven’t read all the replies yet so please excuse any redundancy.
Mr. Richman is fond of the word “intangible” and Mr. Kinsella enjoys “subjective.” The problem is that cultures, societies, economies, and laws are based on intangible and subjective principles.
The focus on the intangible or subjective is a canard. A commodity does not need to be tangible to have value in exchange; it only needs to be scarce. Skill is scarce. Creativity is scarce. Genius is exceedingly scarce. Taking something that is scarce from someone else without permission or compensation is theft. Trying to get around this concept is an exercise in apologetics.
Bionic Mosquito looks at the enforcement of IP, sees the government, and uses this to measure its validity. Unfortunately all Law including those covering land are a function of the government because Mother Nature doesn’t parcel land and authorize mortgages.
The Native Americans thought Europeans were insane to think they could own land. It was as absurd to them as owning the wind. Even if you could, who would you buy it from? The European solution was having the government acquire land by claim then granting or selling title to this land. So the deed I’m trying to purchase from Well’s Fargo has the same legal weight and origins as the copyrights on JRR Tolkein’s books.
The point being that all ownership is a function of a social agreement that you have the right to determine its use regardless of if the thing in queston is tangible or not.
The reason I brought up plagiarism in Mr. Kinsella’s article is to demonstrate the unethical behavior in taking credit for someone else’s work. If we work in a factory and I put my name on your timesheet thus getting paid for 100 hours of your work the fraud is obvious. When you put your name on my manuscript which took the same 100 hours to write I fail to see why the fraud suddenly becomes less clear?
To be fair to Ms. Smith I don’t begrudge her the wheelbarrow. Some purists might but I’m a firm believer that you can retain the baby while discarding the bathwater.
Mr. Lewis accuses IP of being an anti-competitive, Statist tool used to concentrate wealth when the reverse is intended. As evidence I’d offer Powell vs. Home Depot.
Michael Powell invented a “safe hands” device that would prevent injury to Home Depot staff. This saved HD millions in workers comp and liability suits. Mr. Powell contracted with HD to install eight of these in stores to determine their long term effectiveness and they reduced injuries significantly. Rather than go through with the contract, Home Depot backed out due to “lack of interest” then reverse engineered the invention and installed it in all their stores.
So here we have a billion dollar chain that was going to save far more than it was going to cost to pay the inventor but they saw a chance to get it for free and save millions as well so they decided to steal it.
Ford Motor company did the same thing with intermittent windshield wipers.
IP is not about Statist Monopolies crushing the little guy in an effort to keep wealth in the hands of Corporate America as Mr. Lewis offers (though abuses have occurred). IP is about allowing creative writers, inventors, and researchers that invest time, effort, and money to capitalize on these successes by protecting them from those that would harvest their efforts for free.
This all goes back to a major problem I have with Purist Libertarianism. It can’t work for the same reason Purist Marxism can’t work. People don’t act like that. The strength of Capitalism is it assumes people will act in their own self interest. Looking at 10,000 years of recorded history that’s a pretty safe bet.
It would be nice if I could trust Home Depot and Ford to pay me what I deserve for my ideas. They won’t. It would be nice if I could trust a publisher, readers, and movie producers for the work I invest in writing a book. They won’t. It would be nice if I could trust some mega-corp to give me time to build a wheelbarrow empire before stealing it and undercut my price so I’d go bankrupt. They won’t. That might be possible in some happy Libertarian utopia where Corporate America has as much respect for Locke as the rest of us but they don’t. Smith is their God and Wealth is their Bible. “Life, Liberty, and Property” aren’t rights except for those in the Board Room.
Tyranny comes in many forms. Some tyrants wear crowns. Some wear business suits.
Comment by Jason M on 15 June 2011:
MarkZ: “The invention comes from actually getting it to a consumer, not by thinking it up.”
That’s right. That’s exactly right.
Your world without protection for ideas would mean that the person best able to deliver the idea to the market would get the most profit.
That’s not the musician, author, inventor…it’s the big companies that are already experts at marketing and sales.
And that’s okay with you and your colleagues. Fortunately, most people can see the flaw in your plan, and your ridiculous fantasy will never come to fruition.
Comment by MarkZ on 15 June 2011:
Then what is that flaw, exactly? Because you haven’t yet described what’s wrong with the idea that “the person best able to deliver the idea to the market would get the most profit.”
Comment by Jason M on 15 June 2011:
I have, several others have, but you’ve hand-waved it away. Let’s just agree to disagree on the potential monetary value of ideas, and whether they should be legal property. Your position is clear on this.
Although, I _would_ love to see the results of a survey amongst your favorite artists, musicians, songwriters, authors…the lesser known the better. Something like:
“Instead of the current system, would you prefer a system that allowed for anyone to sell your finished work and collect all of the profit?”
If you like, we can work on the survey question(s) here. Leave the theory and definitions out of it – I’m talking about the practical effect of the policy you promote.
If it is as you say, and monetary self-interest is not a major driving force behind true art, then your favorite producers – the bands who post the free music, the open source programmers, the web publishers – should be on board.
Comment by MarkZ on 16 June 2011:
“If it is as you say, and monetary self-interest is not a major driving force behind true art, then your favorite producers – the bands who post the free music, the open source programmers, the web publishers – should be on board.”
This is not a logical statement. I’ve written freely available code. I would love to be paid for it. Even though I’m not, I still write code.
A survey of plumbers asking whether or not licensure should be required to be a plumber would be a nice exercise too. Or a survey of public school teachers asking whether school should be funded by the state. I think we can predict what the responses would look like. So what do you learn from this?
Everyone thinks their own field is important and probably deserves more money than it gets. I know that most artists think that art is underfunded in the schools, for example. They also disproportionately think that public subsidies should be spent on art. Does this justify national endowments?
While you’re asking these artists your question, don’t forget to ask them: “Would you stop producing art if you made less money?” I think you’ll find that very few artists would admit to being in it just for the cash.
Anyway, back to regularly scheduled programming.
Could you please clarify your position about what, specifically, is wrong with the idea that “the person best able to deliver the idea to the market would get the most profit.” I might be dense for not being able to find it, so you may have to state it more explicitly.
Comment by Robert K on 16 June 2011:
MarkZ:
No, Jason’s point is that many of the reasons you cite for the altruistic creation process would also shrivel up and die in this dystopia you’re proposing.
Here are the reasons for creating:
1. Love of the work.
2. Creating something that everyone can benefit from for free.
3. Notoriety
4. Power/Influence
5. Money
All but #1 are destroyed with your scenario.
Re: 2, 4 & 5, the established marketers will sell the product, and most will buy it from them instead of getting it free or otherwise from the producer.
Re: 3 and 4, with the exception of the most popular authors, the marketer has no reason to include the name of the author.
Let’s just take some of your examples of all the free producers and the result of your plan:
1. Love of the work: No good example here, pretty much everyone has more than this in their heart no matter what you’ve heard.
2. Societal altruism: A group of coders makes some awesome freeware game with the creative commons license. That license of course is completely void in your land so a game networking system called Stream copies it and jazzes up the screen shots and footage with some free music and sells it for $1.99. They’ve got a huge # of existing members that see the ad and buy the product. All the coders that went into it to “make the world a better place, for free!” have now contributed to charging the world for a product, against their wishes, and more and more stop bothering because it’s perpetuating the system.
Re: Notoriety, Power/Influence, and Money
Music band, Sensual Express, wants to get notoriety and fame so they can get chicks and gigs. They release free songs to promote themselves via their own website. Spamazon releases the songs for $0.29 each and has one song free with any book purchase, author unlisted. Their system lets you sample the music. You get directed to it by their, “users who bought x also bought y” system. You get directed to it by their slick profiling system and so on. Spamazon makes money, Sensual Express gets no notoriety or fame or chicks or gigs and keeps going for the love of the art.
Villi Manilli also releases the art and disks and songs on their band with a lip sink video version of the song, taking credit for the song. They’re backed by Big Music Industries and Empty V. Manilli is on every radio station, clips play on jtunes and bandora, and so on. Gaorg, the lead singer of Sensual Express is at a bar and their title track comes on with Villi’s video. Hot girl says, “I LOVE THIS SONG!” and Gaorg says, “I made that song, that’s my band you’re listening to right now!” Hot girl says no, that’s a Manilli Song, you’re a liar. Gaorg goes to a bar and asks to get a venue to play live, the bar pays nothing for their music anymore, so they say no thanks. Gaorg shoots himself in the head and there’s not another Sensual Express song made ever again. They play no gigs, and get nothing else for their efforts.
Here’s the relevant facts:
1. The greatest increase in wealth creation comes from technology.
2. The current system rewards handsomely those that invent.
3. Your system doesn’t reward those that invent at all.
4. No incentive to invent = reduced invention = reduced wealth.
Everyone on the planet suffers if we were to adopt your free for all.
Comment by MarkZ on 18 June 2011:
Robert,
Please describe how each of those 5 things are destroyed in the absence of IP protections. I’ve offered numerous examples of how, even absent IP protections, those things persist. I’ll summarize some of those examples below so that it directly corresponds to the 5 points you made:
1. You don’t dispute this, but I think you understate it. “Love of work” is why there are literally millions of artists who produce art even with no reasonable expectation of financial gain. When I visit Sheldon’s blog, I see him playing a guitar in one of this pictures. I’ve never heard of his group, and I’d be surprised if he actually made much money playing or writing music (sorry, Sheldon
). But he apparently does it anyway. As do several thousands of others in this country. The same, apparently, goes for libertarian writers (and writers of all other walks).
2. “Creating something that everyone can benefit from for free.” People do this even when there isn’t an expectation of financial gain. I offered the example of code writers, open source software, etc. After all, these programs are free, and very often only serve a specialized purpose (e.g. a program that converts one not-often used file format to another). You won’t gain fame and fortune for doing this, but people do it anyway. It’s usually a result of someone needing it for their own purposes and sharing the product of their efforts afterwards. I’ve done this myself, and pride and altruism were probably my main motivators.
3. Notoriety. It should be obvious that this would be a driving force even in the absence of IP protections. Your creation would be, to some extent, attributed to you. There have been numerous examples in the software industry of a person creating a piece of software for free that’s gained so much notoriety that companies then compete for his services because of it (I know people personally where this has been the case). There have even been examples of the small fish being bought out by the big fish, not necessarily so that they can take over the IP protections, but rather so that they can claim the brand recognition for themselves.
4. I’m not sure how this is distinct from #3. Elaborate, please.
5. “Money.” Earlier, I offered the example of Bayer’s aspirin sales to demonstrate that even without IP protections the original company can still make a lot of money on their “invention”. IP laws don’t destroy a company’s profitability if they’re still able to get the product to the consumer successfully. “Successfully” doesn’t necessarily mean cheaply (as the Bayer example shows — generics often cost a fraction of the price). It just means successfully. Will the big companies be able to do it best? Sometimes. In the case of drugs, they’ll probably have the most success. But how is that any different from how things are under the current set of IP protections?
There are of course other reasons for producing aside from the 5 that you offer. But I think the 5 you provide are a good starting point.
Regarding: “Re: 3 and 4, with the exception of the most popular authors, the marketer has no reason to include the name of the author.”
This sounds like fraud or misrepresentation. This is an issue quite apart from IP.
“Here’s the relevant facts:
1. The greatest increase in wealth creation comes from technology.
2. The current system rewards handsomely those that invent.
3. Your system doesn’t reward those that invent at all.
4. No incentive to invent = reduced invention = reduced wealth.”
2 and 3 are not facts. The only fact is that numerous counterexamples can be offered. #4 relies on the notion that your 5 points are rendered ineffectual in the absence of IP protections. I’ve refuted this above with relevant examples.
Comment by MarkZ on 18 June 2011:
Edit:
)
So that the above is clear, I’m not suggesting that Sheldon doesn’t make a good living as a writer. He’s obviously well-accomplished in that regard and in high demand. I was referring to him as a musician (he may make lots of money at this too for all I know; if so, there are lots of other examples of musicians who don’t that can replace him.
Edit 2:
Just for clarity, when I say “open source”, I’m really using that as shorthand for software that’s offered for free. Of course, not all open source software is free and not all free software is open source. I just find open source to be a generally good concept (for reasons other than IP…), but I think it also serves as a pretty good example too.
Edit 3:
Please, nobody turn my use of the word “altruism” into an egoist debate. I think most of you probably know what I meant.
Comment by Robert K on 21 June 2011:
First, let me correct my facts:
1. The greatest increase in wealth creation comes from technology.
2. The current system rewards some that invent handsomely, sufficiently enough to create incentivize others.
3. Your system doesn’t financially reward those that invent as much.
4. Less incentive to invent = reduced invention = reduced wealth.
Invention suffers in your paradigm, if even ONE person would have invented for financial gain, but won’t for other reasons, the world has lost that invention and therefore lost the wealth it would have created. You say we have to prove that there aren’t alternative reasons for creating. I say you have to prove that destroying remuneration (the most effective incentive for creation known to man) would be negated by some other benefit. I also say that the other reasons you’ve given for inventing are diminished and/or destroyed as well.
A line by line breakdown of your inadequate address of my points:
“Please describe how each of those 5 things are destroyed in the absence of IP protections.”
I just did, but I will try again:
1. Love of the work will decrease in cases where it’s not the only reason for the creation, those that become jaded by being denied other fruits will have less love due to association. Also, those that don’t make money making IP have to get money elsewhere, which can cause burn out.
2. Those that create “so that everyone can benefit” most often do so with the specific intent that their gift be to the world, and for free. The marketing conglomerates would readily sell that product and profit, causing the idealists angst and making them less likely to make free products. Without your view, they can use the Creative Commons license and force their altruistic vision to come to pass.
3&4. Creators seeking notoriety, power and influence have their products distributed by the marketing conglomerates without attribution, or with alternate attribution. The claims of fraud for plagiarism are bunk in your world, I simply claim, “Sure, I listened to the song and I came up with a song that sounded exactly like it, can’t I express my ideas?” Since creating doesn’t result in any notoriety, power, or influence, why bother. This reason becomes moot.
5. Those seeking money have to compete with the marketing conglomerates, those companies that have established a large viewer/buyer base. In order to market effectively, they have to be more cost effective than these conglomerates. That means remuneration for the creator must be zero because that’s what it costs the marketing conglomerates. Also all that R&D stuff and assembly costs and pre-production costs must be equal to zero as well, because the manufacturing costs for both will be relatively the same.
“I’ve offered numerous examples of how, even absent IP protections, those things persist.”
No, you haven’t, here are ALL of the “examples” in your previous posts, sorted by category and in order of appearance as written:
1. Musicians/Artists:
a. “Thousands of musical groups in the US exist and happily make music without mainstream popularity”
I would go so far as to say tens of thousands, and nearly all of them suck. True artistry requires practice, dedication, focus. Amateur artists bring little to the table compared to professionals (yes, even the ones you like). If they haven’t the ability to hit it big financially, the talented amateurs can’t take the risk to invest their time and efforts to become professionals because they have to eat and will eventually have to pay back all the debt they raise while spending the time required to make their dream happen.
b. “[Musicians that] make very little selling their recorded works… often do very well performing live.”
Often? How about a real example. Looking at http://www.musicianwages.com/musician-profile/average-income-of-a-musician/ will give you a starting point.
Let’s look at a huge difference between the recording sales and live performances. In both, the artists write music, practice and hone their performances, but in the former, they pay to mix and record their work and then it goes on sale while they are free to do anything they want including more music and live performances. In the latter, they are busy non-stop and have less time to write more music or do whatever else.
c. “Historically, art has always existed absent financial gain”
This is false. The majority of history indicates that most artists and inventors that did anything of consequence were paid to do it, from food and shelter, to sex, to gold, to titles and so on.
d. “Some of my favorite groups have members who work ‘real’ jobs to supplement their incomes. In my opinion, quality does not suffer.”
Quality may not suffer, but obviously quantity does. While working at their other job, these high quality producers have less time to produce. On second thought, quality DOES suffer, and you’re a liar when you claim (as you have multiple times) that it doesn’t. You know you’re pulling your data from a tainted sample, you’ve sequestered yourself to those few bars that you like and they’ve got management that recruits the type of talent you appreciate. You know that if you actually went to all the live shows in your town that you’d be getting crap the majority of the time.
You value quality over quantity in every case, disregarding the benefit of quantity and variety. The variety of music would drop as less artists participate because SOME (I would argue most) are in it (at least in part) for the money.
2. Programming
a. “Many thousands of computer programmers have contributed software to the general public without any expectation of being paid for it.”
And many hundreds of thousands more have done it for money. None, absolutely none of the programmers you described have made a competitive video game, video editor, image editor, 3d graphics editor, accounting software, or pretty much anything other than a OS and spreadsheet/document editors. Also, every single one of the free programs require high skill levels to achieve equal capabilities in comparison to their paid for counterparts. Mac OS is _not_ free.
3. Pharmaceuticals
a. “Bayer still makes pretty good money selling aspirin.”
Really? Did you really use Bayer as an example here? Bayer is an example of exactly what is wrong with the system when IP isn’t protected. Here’s how aspirin’s history worked: publicly funded scientists did research and discovered it, the usable version being made by Charles Frederic Gerhardt working at the École Polytechnique, a gov’t institution. Later on, Bayer marketed it, making huge amounts of profits while the scientists got mediocre salaries. Imagine how many more chemists would have jumped into prenatal world of drugs, had the invention of aspirin been done by free men, seeking to profit from their creation, having their creative rights protected and making large profits as a result of their labors?
4 Aggregate:
a. “I’ve offered half a dozen examples, ranging from music, art, software, drugs, and scientific discovery, where productivity is high even in the absence of (direct) financial gain.”
No you didn’t. You wrote this quote after 1a, 1b, 1c, 2a and 3b; all of which I have refuted.
b. “Sometimes [humans] create for reasons other than [financial] profit… history bears this out.”
This is paramount to saying, “sometimes a lottery ticket wins the grand prize.” In almost every case, they lose. How often is that “sometime,” and how often is it done without any consideration of financial gain, and how often by anyone with any skill or talent? I would proffer a ratio of about 1 in a million or so. Oh yeah, how many of them also invest hundreds of thousands of dollars and up in order to get their creation made? None? That’s what you’d see in pharmacology, nobody bothering because there’s no return on the investment.
“You understate ‘Love of work’. [It's] why there are literally millions of artists who produce art even with no reasonable expectation of financial gain.”
Perhaps you can say this for music and artwork, but again most all of them suck. The true question is this: How many music writers with talent of any significance expect no financial gain even down the road? How many amateur biochemists? How many research pharmacists? How many superconductor microchip physicist researchers? And how many of the ones that don’t care about the money suck?
“Sheldon… [plays] a guitar… I’d be surprised if he actually made much money… but he apparently does it anyway.”
And he sucks by comparison to the professionals. Sorry Sheldon.
“People [create something that everyone can benefit from for free] even when there isn’t an expectation of financial gain… I’ve done this myself, and pride and altruism were probably my main motivators.”
Please look at what I wrote. Defining the concept that I already defined is not an answer to the issue I brought up, which was this: Those that create “to make the world a better place, for free!” are, as a result of your system, instead contributing making the big bad guys more money and without compensation. Many will stop bothering out of resentment or principle.
“It should be obvious that [notoriety] would be a driving force even in the absence of IP protections. Your creation would be, to some extent, attributed to you.”
This is false. In your world, I can sell your final product without attribution. Remember, it’s an idea, and you don’t have a claim to the idea, anyone could have had it. I just had an idea, my own idea to make a song, it just so happens to be exactly like your song. I just had an idea to put together this specific order of bits in an mp3 file, it just happens to be identical to the one I was just looking at.
“[People that have created popular] software for free [causing] companies [to] compete for [their] services…”
This is exactly what would disappear. Not being able to use a creative commons license or any other IP protections makes it so everyone has your product and can distribute it, sans name, only those with the wherewithal to dig deep and seek out the original author would find it. Oh yeah, and why would they bother competing for their services? Anything the developer might make, they can copy anyway and even worse, anything they pay the developer to do will be copied by their competition and without that expense and the competitor will undersell them.
“…small fish [are] bought out [to] claim the brand recognition…”
This also disappears in your system. Why bother buying something for brand name recognition, just use the name! It’s an idea, an abstract, it isn’t property, nobody owns it.
“I’m not sure how [Power/Influence] is distinct from [Notoriety]. Elaborate, please.”
They’re correlated, but the goal of gaining power/influence would be like Al Gore and Michael Moore compared to notoriety which would be like Lindsey Lohan and Paris Hilton. You typically get notoriety when you gain power/influence, but not always and vice-versa.
“Bayer… made a lot of money on their invention.”
No, they didn’t. Bayer didn’t invent aspirin. They did exactly what we are warning against. They found a product that had no IP protections, marketed the hell out of it. In the end, they and other marketers took 100% of the money for themselves and Gerhardt got 0.
“There are of course other reasons for producing aside from the 5 that you offer. But I think the 5 you provide are a good starting point.”
I suppose I could’ve added 6. Avoiding pain/death? Maybe artists in ancient Rome or something.
“[Not including the name of the author] sounds like fraud or misrepresentation. This is an issue quite apart from IP.”
A distributor can release the book as: “Author’s name withheld,” and it’s not fraud or misrepresentation; it’s a standard tactic to make the re-release of works not advertise for your competitor.
Hell, they’d just put a disclaimer at the bottom of their site saying, “Unless otherwise noted, all books/music/etc are copied works and are displayed here without attribution or with alternate attribution and in no way indicate original authorship.”
Comment by Robert K on 21 June 2011:
Correction:
c. “Historically, art has always existed absent financial gain”
>>> This implies a false conclusion. Compare it to this:
“Historically, allergy deaths have always existed absent gov’t regs”
The majority of history indicates that most artists and inventors that did anything of consequence were paid to do it, from food and shelter, to sex, to gold, to titles and so on.
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