Part Two
Patent Absurdity and Tyranny of the Mind (Part Two)
The response to my commentary (from the Autonomist’s Notebook) on Intellectual Property which I posted on the SOLO forum was very interesting. I have selected the best responses and my replies to share, because this very long discussion covers every aspect of the questions of patents and copyrights.
Because this discussion is long, I have divided this article into three sections. This is the second section; these are links to the Part One and Part Three.
Here is my response to both GF and CR:
First, … after quoting my description of property, you asked a question:
“Property consists of physical existents which can be counted or measured. Property consist of physical goods made from physical substances or components.” Why is this the correct definition of “property”? It’s not my definition, it’s not the dictionary’s definition, and it’s not Rand’s definition. Where does this definition come from?
(CR) has correctly answered this (since he beat me with his post). Since I already started this response, however, I will add, it is not a definition, it is a description.
I do not think Ayn Rand actually defined property, but she had a great deal to say about, “property rights,” Including this:
“Bear in mind that the right to property is a right to action, like all the others; it is not the right to an object, but to the action and the consequences of producing or earning that object. It is not a guarantee that a man will earn any property, but only a guarantee that he will own it if he earns it. It is the right to gain, to keep, to use and to dispose of material values.” [“Man Rights,” The Virtue of Selfishness, Page 94.]
Note, it is not ideas, but material values. (Sometimes, Ayn Rand was inconsistent; the “intellectual” property concept is an example.)
Then, about my book illustration you said:
You have completely ignored the non-production costs of the book. The new publisher can offer a lower price because he doesn’t have to recoup the costs of: the writer, the referees, the editing, the advertising, etc. All he has to do is print the book and sell it.
I suspect you are not very familiar with the publishing business. No one can just, “print the book and sell it.” It is nearly as expensive, possibly more expensive, to copy a book, prepare it for what method of printing and binding is to be used, finding vendors who will stock it, delivering the product, as well as, promoting and advertising one’s own version of the book. But even if one really could just, “print the book and sell it,” there is no assurance he will sell any. If the originally publisher is satisfying the demand of the market, how is the new publisher going to sell any books? If the original publisher is not satisfying the demand of the market, why shouldn’t the product be available to those who prefer the new publisher’s version?
You provided another example:
Big Drugs, Inc. spends ten years and $50 million designing a new drug, doing animal studies, etc. They market their new drug, with the price determined by, among other things, the cost of developing the drug. Along comes Fly By Night Drugs, Inc. … they duplicate the drug in mass quantities and market it. And those silly consumers buy the cheaper product, which is identical to the “brand name” product but costs much less.
The drug companies may determine their price in any way they please. They may attempt to recoup the cost of development of a drug. If that is their intention, it is not this just the current drug, but many other drugs, also researched and developed that never reached the market, because they did not perform as expected, or more likely, did not receive FDA approval. However, research costs is not how most drug companies (if any) set drug prices. They are set based on production costs, and their estimate of what the market will bear. They set the price as high as they possibly can, and they ought to.
Research and development always entails risk. There are no guarantees. In addition to the fact no one may be interested in the product, the intended product just may never perform as intended, the intended product may be outlawed (as non-approved drugs are), or another company may produce a different product that satisfies whatever market demand there is for the kind of product being developed. Reality does not guarantee a return on research and development investments. Government enforced patent monopolies are an attempt to provide such guarantees, but it must be done by using force to prevent others from entering the market, which is a coercive monopoly.
Without patent laws, this would be a perfectly legal and practical way to do business. All the parasites would have to do is sit back and wait for someone to expend the effort required to come up with, and develop, a new idea, and then they could duplicate it. The problem is, who’s going to do the hard work when the market allows the looters to flourish?
Yes, that is true, without patent laws, it would be perfectly legal for anyone to attempt to produce and sell any product they could, without regard to how they learned to do it; it was already perfectly moral to do that. Eliminating the patent laws would just make what is already moral also legal.
That is what is wrong with your argument. It is purely utilitarian, not moral. Without patent laws, your argument assumes, no one will invest in developing the products that are good for everyone, therefore, creating coercive monopolies is justified. But, there is no moral justification for coercive monopolies, even if it means there would be less development of good products. Objectivism rejects the utilitarian source of values based on the “greatest good for the greatest number,” principle. Since (CR) has already addressed the “reverse-engineering” aspects of your argument, and I agree with his explanation, I will not add to it.
As for CR’s question about the difference between discovery and creation, I will address it in a separate post to CR.
This is my promised response to CR:
… Now, it seems to me you have made two points, but only asked one specific question about the difference between discovery and creation.
You said:
Copyright, however, is a different story. While I object to its current abuse by extending copyright laws to protect interests far beyond that of the originator, art is distinct from discovery. A work of art is created, not discovered. While any idea is subject to discovery by anyone, a work of art is produced only by its creator. I cannot quite put my finger upon the underlying principle, but even if patents are foolishness, there is an injustice in denying an artist the benefit of his work. After all, when I buy a book, I am not buying the paper it is printed on, but the author’s composition.
(I)… agree that discovery and creation are distinct. Technically one cannot patent a discovery but as you pointed out, the patenting of certain gene patterns is getting very close to discovery verses creation. I do not agree that most physical patents are discovery, however. They are primarily applications of scientific principles, which application is called technology.
I do not think this difference between creation and discovery applies to your real question, however. You said: I cannot quite put my finger upon the underlying principle, but even if patents are foolishness, there is an injustice in denying an artist the benefit of his work. After all, when I buy a book, I am not buying the paper it is printed on, but the author’s composition.
I think part of your concern, and the reason you cannot quite put your finger on it, is a very normal reaction to the facts, especially if you happen to be an author–“I know the hours of effort and creative energy that went into creating this book, dammit; why should some copy-cat punk cashing in on my effort be able to deprive me of the profit I could otherwise make?” (I assume this is what you mean by benefit of his [the artist’s] work, since copyrights would not protect any other kind of benefit.)
The answer is, in the real world, there is no such thing as a “profit I could otherwise make,” there is only the profit you can and do make. You might write a book that is Objectively and artistically superior to Hugo, Dostoevsky, and Rand put together; but if no one is interested in it (because public education, for example, has been completely successful in achieving its goals and no child has been left behind), you will have no profit. No matter how many hours of effort and creative energy you put into a book, if nobody wants it, all the copyrights in the world will not earn you one penny.
Copyrights only matter if a book is successful and sells well. Books that don’t sell do not need to be protected, because no one is going to be interested in copying and printing them. But if a book sells well enough to tempt others to copy and print it, it has already made a profit for the author. Copyrights are only an attempt to make more profit, by coercively preventing others from entering the market.
But, if it is profitable to the copy-cats to print additional copies of the book, it would be profitable to the original publisher as well. If the copy-cat’s version is cheaper, the original publisher has an advantage over the copy-cats, he already has the original, already has a developed market, and already has the “tooling” to produce the book, which probably only needs modifications to produce a less expensive version.
You said, After all, when I buy a book, I am not buying the paper it is printed on, but the author’s composition.
But, in fact, you are only buying the paper, the binding, and the ink-spots–the “author’s composition,” is entirely conceptual, and exists, originally in the mind of the author, and subsequently in the minds of anyone who reads (interprets the ink-spot correctly) the book. There are no “ideas” in the printed book, The book is only a means of transmitting the ideas that comprise the “author’s composition,” by means of symbols which another mind can interpret and understand. The ideas are not in the book, only the symbols. That is why it can be translated, all of the symbols being entirely different, and still be the “same” book.
The book, the binding, and the ink-spots comprise a physical entity which can be property. The ideas the ink-spots symbolize, are not physical, and cannot be property.
MS then answered my earlier post, and again before I had an opportunity to respone, CR posted to responses to me and others. They are interesting and I include the interesting parts before my own response. These are CR’s responses:
(MS) complained to Regi: “What you propose is that if I spend ten years and all my money inventing the airplane (as the Wright Brothers did), then all I really own is that particular airplane and any others I may care to produce.
What you propose is that from that moment forward every other human being on the planet has an equal right to my design and an equal right to sell as many as they wish.”
Regi proposed no such thing. You have no obligation to reveal your design to the public. (A competitor seeing your finished product is hardly the same as having possession of your design data.) In fact, I would suggest that you don’t. The patent process requires you to publicly reveal your design from the outset, which gives your competitors a leg up regardless of patent protection. Trade secret law lets you keep your design confidential forever.
All Regi is saying is that you should not have the right to use the force of government to stop another person from producing a product like yours if he can figure out how to do it. A prospect that is easier said than done.
And this is CR’s second post
J… (a response I did not mention), you wrote: “Property, at least in the eyes of the law, is not restricted to material objects. Actually, quite the opposite is the case. In law, property is viewed as a bundle of rights, and rights are just claims of specific action (or inaction) in relation to certain objects. So technically, the law would say that we don’t own, say, land, only rights in relation to the land. And similarly, we can have rights to services. Ex. if I pay someone to mow my lawn, then I have a right to their mowing it. It’s a right to exclusive use of certain action (not an object)…very similar to intellectual property rights.”
Well, it’s true our solons, when in a positivist bent, can enact anything into law. Ideally what they should restrict lawmaking to is the protection and enforcement of our rights. In turn our rights define the prerogatives that are naturally ours as human beings to enjoy life as each of us sees fit. Thus, good law is rooted in what is true to our human nature.
For example, we can naturally possess physical things, because once we have it we can exclude others from it. It’s that simple: Two people cannot have possession of the same object at the same time. Similarly, in regard to land, only one person can exercise dominion over the same parcel at the same time. (Yes, things can be possessed by more than one person in agreement with others, but the fact that we need to reduce such group possession to a singular entity like a joint tenancy, a partnership, or a corporation supports the point I am making.) So, by nature we are capable of exclusive possession of physical things.
Therefore, we have a natural right to possess land and objects that we have earned a claim to – i.e., we have the right of property. You’re correct that common law recognizes this right as ownership, therefore ownership legally means a person’s collection of rights to use, transfer, or destroy an article of property to the exclusion of all other people. Thus, the law makes possible the translation of the tangible possession of a physical thing into an intangible right to mortgage, bequeath, option, or otherwise exploit one’s ownership of property without surrendering its possession.
However, the fact that what is physical can manifest through the law intangible rights, does not mean what is inherently intangible in the first place, like an idea, can also be property – except by the positivist declarations of our legislators that it is. In the real world A is always A, but under the capitol domes of this fine land of ours, A can be almost anything – for instance, an idea can be property.
…
Regi had some comments about the distinction I was making between creation and discovery and therefore my belief in the validity of copyright and the invalidity of patents.
I said: “I do not think this difference between creation and discovery applies to your real question, however. You said: I cannot quite put my finger upon the underlying principle, but even if patents are foolishness, there is an injustice in denying an artist the benefit of his work. After all, when I buy a book, I am not buying the paper it is printed on, but the author’s composition.” You responded: “I think part of your concern, and the reason you cannot quite put your finger on it, is a very normal reaction to the facts, especially if you happen to be an author–“I know the hours of effort and creative energy that went into creating this book, dammit; why should some copy-cat punk cashing in on my effort be able to deprive me of the profit I could otherwise make?” (I assume this is what you mean by benefit of his [the artist’s] work, since copyrights would not protect any other kind of benefit.)” While I understand the sentiment (and no doubt would feel it if I had something more at stake than a few modest technical works), the gut reaction I was referring to is my squeamishness at profiting from a work of art I did not produce without paying the artist.
I don’t have the same problem when it comes to reverse-engineering. That takes a hell of a lot of work to do a precise knock-off, and as a practical matter, what happens is usually an improvement upon the product or its manufacture so that you can compete by making it either better or faster or cheaper. Besides, as a practical matter, it is next to impossible to say who originated most ideas. All new ideas rest upon old ones, and who’s to say what is truly new and what is not. (Oh yes, I forgot. The geniuses at the U.S. Patent & Trademark Office!)
I look at a lot of things in my industry and I think, “Oh yeah, I would’ve thought of that if I had put my attention to it”, or even, “Hey, I did think of that already!” So I’m not impressed by the fact that someone got to the patent office’s door first. (And that people have this option, sometimes forces us who don’t want the protection to still pursue a patent to prevent someone else from claiming a monopoly upon the idea.) I cannot believe that there exists any invention that could not have been independently discovered by another. (Indeed, that’s why the vast majority of patent applications are rejected, and vast majority of new ideas that do become products never even bother with the patent process.)
But that’s not true of a work of art. While it’s true in a way that there’s nothing new under the sun when it comes to a story (that is, the idea of a book or movie), the particular composition an author produces is unique to his effort to tell that story. No one can honestly say he would’ve composed a story he has read the same way. Similarly? On occasion, I suppose. But not the same. The creation of a work of art is unique unlike the discovery of new idea can never be. Hence, my support of copyright.
Now, I do agree with you, Regi, that as a practical matter I think the market would re-organize itself in a non-copyright world in a manner that would still reward the artist. Without copyrights, painters and sculptors will always enjoy the reward of having produced the original work. Publishers need content and are not going to eliminate the incentives authors need to write. Software companies will withhold support for knock-off versions of their products. I’m not so sure about singers, musicians, and filmmakers – but then when everyone can do Hollywood out of his garage within a couple of decades, maybe the big buck market for these types of works is about to disappear anyway under a tidal wave of do-it-yourselvers. (There is a lot of talent between New York and L.A.)
But I haven’t thought out the possibilities of all this to persuade myself that copyright is nothing more than utilitarian. Your thoughts, as always, on what a non-copyright market would look like are of interest.
(Another) posed the idea: “What would you all think to the idea of “copyright” being defended purely by contractual mechanisms?”
You know, that may be the right path. Get the government out of the business of policing knock-offs of an artist’s work. In principle I don’t have a problem with making an agreement not to copy a condition of sale of an artist’s work. I suppose it could contain a covenant like those attached to real estate that bind future owners of the work. However, I do think that because such restrictions lack the explicit consent of the buyer, such agreements would not be valid if they are not as a practical matter enforceable. (This would be akin to a blockade, the declaration of which is invalid under the rules of war if it is not enforceable.)
Whatever way the law would work this out, perhaps private contract can replace government-mandated copyright. After all, look how badly the copyright law is now abused, with rights being retained by successors decades after the death of the originator and its application to things are not created in any meaningful sense, such as an actor’s image or voice.
Finally, my belated response.
… You frequently refer to those who choose to enter a market by producing something someone else first produced as parasites. A parasite takes something away from the host, which, having been taken away, the host cannot no longer use or has access to.
In my original post, I pointed out that the whole argument for so-called “patent-rights,” is based on the false notion that someone could claim a right to a mere potential, something that does not exist, and may or may not ever exist.
I quote: …The concept of theft is based on something being stolen, but if nothing is missing, just what is it the presumed violator of intellectual property rights stole? Ready for the answer. It is potential. In an entirely different context, Ayn Rand said, “Rights do not pertain to a potential.” [“Of Living Death,” The Objectivist, Oct. 1968] But, in any context, the principle is the same. In this world there are no guarantees and one of the greatest mistakes of all governments is the attempt to provide them. Patent and copyright laws are perfect examples of this folly. A potential cannot be property. What does not yet exist cannot be owned. What cannot be owned, cannot be stolen. …
If those you call parasites actually take something away from the inventor or creator of a patented or copyrighted, “idea,” you ought to be able to tell me exactly what the inventor or creator had before the supposed, “parasitic theft,“they longer have afterward the “theft.”
I make a prediction that you cannot do this without reference to a potential, (as opposed to an actuality) such as the potential profit the inventor or creator might make.
I can certainly understand the sense of unfairness, even injustice, one feels when thinking someone who has expended their time, money, and effort to create something of value, might be deprived of making what seems a reasonable profit on their efforts. Who defines what that reasonable profit is, of course, is problematic, and a question those who defend patents and copyrights do not answer.
The fact is, there is no automatic right amount of profit, or any guarantee there will be, or even ought to be, a profit at all. Suppose, for example, in Edison’s case, some very clever individual, like Tesla, because his scientific background was far superior to Edison’s, immediately saw that tungsten would be a far superior filament to carbon imbedded in silk and patented the idea. Edison would certainly have been credited with inventing the light bulb, but it would have been a market failure, because of Tesla’s superior product.
Tesla actually did beat Edison in another field, and Edison lost his shirt, because he failed to see the superiority of AC for the transmission of electric power. If the potential profit of an invention is reason enough to prevent someone else from entering the same market, why shouldn’t Tesla have been prevented from using AC power transmission until Edison had made his mythical rightful profit?
In a truly free market, it is the best product at the best price that appeals to the most people that wins. It does not matter how much effort, money, or time you put into your product, either in creating or producing it; it does not matter if you were the first or the last to attempt to produce and sell the product. To compete in a free market one must be prepared to produce the best product, not relying on anything else.
Patents and copyrights are great devices for rewarding a certain class of individuals favored by the government, but they are inimical to a free market, because they attempt to guarantee market success based on coercive force, rather than market forces, the free interaction of all members of the market, producers, sellers, and buyers.
In the midst of all this, there was a short post and interesting question from MH:
The copyright debate is a subject which I find interesting, and one on which I have mixed feelings - as I said over on Andrew’s CD copyright thread, I agree with the principle of copyright (i.e. a creator’s rights over his work) but not with some of what is done to enforce it.
What would you all think to the idea of “copyright” being defended purely by contractual mechanisms? So when someone purchases a book/CD/DVD or whatever they agree not to copy or make use of the “art work” contained therein. This would have loopholes in that there would be no obvious recourse against someone who had received copies from someone violating the agreement.
By the way just as a point of interest, there’s a fascinating story of how JRR Tolkien enforced his rights over Lord Of The Rings in the USA despite problems with the US government copyright laws of that time giving him no legal recourse. He wrote to his American fans and other interested parties explaining that there was an unauthorised edition on the market, for which he was receiving no royalties. This in effect instigated a boycott of the edition in question an resulted in its withdrawal from sale.
My response to MH: Your suggestion: What would you all think to the idea of “copyright” being defended purely by contractual mechanisms? Of course I think it would be great, and certainly one way a creator could attempt to protect the potential value of his efforts without resorting to the “guys with the guns.” Your interesting illustration about Tolkien is practical evidence that if your work really has market value, the market itself will frequently protect you.
This is my response to CR’s earlier post:
Thank you for the comments.
You also said, But I haven’t thought out the possibilities of all this to persuade myself that copyright is nothing more than utilitarian. Your thoughts, as always, on what a non-copyright market would look like are of interest.
I do not mean this to be flip, but a market free of copyright and patent restrictions (barring other government interference) would be a free market; patents and copyrights are inimical to a free market.
The following is from two shorter posts by CR to various other posters, the first being to MS, to whom I also responded:
You concede the utility of trade secret to protect “process” but not “design”. Your rebuttal: “But property rights to a design cannot be protected this way; it is easy to measure and copy the parameters of an airplane’s wings.”
Design is readily protected by trade secret. Ask Coca-Cola. No one yet has divined the design of Coke despite the fact that it has been on the market for a century.
‘That is because the information gap between a finished product and its design can be huge. Sure you can measure a finished airplane’s wings (though it’s not as easy as you imagine). So what do you know as result? You have a series of measurements. Big deal.
You still don’t know the design of the wing. You do not know how to specify for production another wing. What’s the curve running through those measurements? Just one fly in the ointment in figuring that out is what you have are actual measurements, which may or may not be within specification. You do not know the ideal spec or its tolerance. Can the finished product vary widely or must it be held to a tight tolerance? No small matter when it comes to the cost of building another one. You can waste a lot of time and money holding a tolerance tight that can be loose, or vice versa you can end up making lemons.
Then there are the issues of fit between components. What is the allowance between them? How about the finish of those components? Which finish is critical for function and which is aesthetic? What is the material specification? Aluminum ain’t an answer. Which particular alloy and which temper? Is it treated or untreated? Do you have to be concerned about not using aged materials, or must it be aged?
Get these answers from the finished product and you’ve only started to fill the information gap. You got to develop a helluva lot of information from these “easy” measurements of yours to create a design from a finished product that will let you: [1] Build multiple copies of the product; and [2] copies that will not fail after a few uses. And once you have created your design for a copy, you still have figure out how to produce it – i.e., that “process” you refer to, which is much more tightly bound with design than you indicate – e.g., work-hardening, corner radiuses, surface finish.
Now if it is easy, like you say, to fill this information gap between finished product and design & process, then that’s because most of the design & process behind the finished product is already common knowledge. So, the real question is why someone who incrementally adds to an existing base of knowledge should have the right to don the jackboot of the government to stomp out his competition – especially when self-help trade secret measures can provide effective protection of his new idea?
From CR’s second post.
…, you asked: “The reason that intellectual property exists (that I mentioned in my post) is: We want to retain the incentive for original creation, while not overly hindering competitive markets. Is there any way Objectivism can agree with this proposition? Rand clear thought it possible. You do not?”
… I don’t think the government creation of intellectual property is necessary to provide inventors and artists the incentive to create, because if the free market desires the fruit of their efforts, it will figure out which incentives will work to obtain them.
Regi is right when it comes to patents. There is no need for them as a matter of justice. No one is entitled to an award for his bright ideas. He’s got to make something of them, and then there’s gotta be someone who then wants what he’s produced from his ideas. That’s the beauty of the free exchange of goods and services. Both parties think they’re better off as a consequence. Government enforced patents only stifle (or worse) the process of the free market in bringing about such exchanges.
Having thought about it, I think Regi is also correct about copyright. (Though I think the creation of art is distinct from the discovery of ideas, and may merit different treatment in certain circumstances.) I already see how the free market would reward artists such as painters and authors. And I see how Matthew’s idea about private contract would protect musicians and filmmakers. So where government is not necessary to bring about justice, we should dispense with it – hence, chuck out copyright laws.
So that, in a nutshell, is why I don’t think “intellectual property” is something to be protected by government fiat. The market will, if free to do so, justly award the innovators and creators among us.
This series of discussions, I think, pretty well exhausts the principles of “intellectual property,” but for those who would like to explore the subject further, I would suggest the following links:
Anti-Copyright Essays and links on anti-intallectual property.
Infoshop.com A page critical of copyrights, trademarks, and intellectual property.
Intellectual Property Issues Large resource of links and information about inti-intellectual property.
Anti-Copyright Resources Inventions then cannot, in nature, be a subject of property. – Thomas Jefferson. [From the Molinari Institute]
—Reginald Firehammer (5/19/04)