Saturday, September 14, 2013

Do We Have a Right to Intellectual Property?

In a recent short discussion about Libertarianism, a friend touched on the fact that Frédéric Bastiat was against copyrights and patents, which my friend regards as essential. Since he believed that Libertarians are "absolutist",  he offered intellectual propery law as an effective rebuttal to Libertarianism. What about pharmaceutical companies? What about the Beatles? Where would they be if their intellectual property rights weren't protected by the government?

When we refer to "intellectual property" we mean it as a blanket term for all products of the mind, but the law's not really like that. Patents, copyrights, trademarks and trade secrets are all different things, so let's deal with them separately.

First up... Copyright. We're told that the 'artists' (a term I will extend to any creative occupation) would be negatively impacted if just anyone could copy and sell their work. So we would appear to need Big Government to step in.

Well, first of all... no. Plain experience tells us otherwise:

  • Which is more valuable, a genuine Rembrandt or a copy? Keep in mind that there are some exquisite forgeries out there. But they're denounced as "worthless" next to the originals, despite being detectable only by highly trained experts. Art and antiquities are valued for their provenance more than their quality. That's determined by the buyers, not the government.
  • Would you pay to see a band in concert even though you can hear them on the radio for free? Millions would, me included. I hope you buy their merchandise as well, because they're not making money off of the music. Most artists don't get rich by asserting copyrights, but through performance. Here's an interesting article that breaks down how musicians get screwed by their "defenders". It's by Steve Albini, the producer of Nirvana. It's called "The Problem With Music". It's a little dated, but he breaks it down well. He's not the only one... Courtney Love has famously done the math in Salon magazine, and any artist in the industry will confirm the message. The point here is that big government isn't terribly effective at defending the artists' supposed "rights" today
  • Creative Commons musicians (the good ones, not hacks like me) actually make money at what they do. They cut out the handlers and keep the a bigger slice of a smaller pie. Jonathan Coulton is the "go-to" example. The ones who don't are the ones who wouldn't have been signed to a record label anyway. They choose to do this despite the government "protections" available to them.
  • Book authors have a leg up on musicians already, as authors tend to retain their copyright rather than sign them away to publishers. But authors such as Cory Doctorow are demonstrating that they can make money despite distributing their work DRM-free, even on a pay-what-you-want model. This is not paradoxical. People read certain authors because they enjoy the work; they pay because they appreciate the work; and even when they can get the work for free at the Public Library or digitally, enough people prefer to buy "real" books that the Public Libraries have never been a drain on profits. Even now, ebook sales are fewer than hardcover sales, despite lower prices. And though, as with any system, there is abuse, those who don't pay are overwhelmingly those who couldn't afford to in the first place. Their contribution would be the same whether they had the book or not. However, their enjoyment and recommendations may yield further legitimate sales.
  • There is no indication that the current copyright term of life + 70 years has prompted artists to become more prolific.
Note that this isn't advocacy of "piracy". What I'm saying is that there are legitimate arguments that strongly indicate that the negative effects of copying are overstated; and that some artists freely choose to allow it, to their benefit.

Keep in mind that the starvation of artists due to unrestricted copying has been predicted numerous times, and has thus far been proven by history to be bunk. It was bunk when free radio was predicted to kill off the music industry. It was bunk when Philips' cassette tape was predicted to kill off the music industry. It was bunk when Sony's home videotape equipment was predicted to kill off cinema attendance. And it was bunk when peer-to-peer MP3 sharing was predicted to kill off the music industry. Shakespeare said, "A coward dies a thousand times before his death," and the music and film industries quake uncontrollably in the face of innovation. They have "died" oh so very many times. As we can see, their fears are unfounded.

So where would the Beatles be? Still rich and famous, and we know this because their songs WERE copied and taped and pirated and distributed for free all over the world, and people still payed for legitimate product, and merchandise, and concerts and appearances.

The bottom line is, from street buskers to Carnegie hall, people want to reward artists for their talents. They don't need to be forced into it. And further contemplation reveals an interesting truth:
"Intellectual Property" is a fantasy.

In the US, the purpose of patents and copyright is explained in the Constitution. "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries", and I'm all for that. But look at the difference between that and a natural right. Copyrights are granted for a limited time, because this exclusivity does not naturally exist whatsoever. If you tell me something, I now know it. At this point, the discussion becomes what I think of it and what can build on it. MY thoughts. Attempts to restrict that are, to put it most kindly, thought control. We put up with a little bit of that for the public good, but today's copyright law usurps the public's rights for no public return.

All of the knowledge on Wikipedia
 isprovided under a Creative Commons
attribution share-alike license.
Quite frankly, derivative works are often far more valuable than the original idea. Allowing the originator exclusivity certainly gives impetus to creation, but allowing the mere fact of its creation to allow all derivative works to be stifled for seventy years after the death of its creator promotes progress to exactly no degree. I counted. It came up zero. There's a prime example of regulation gone amuck. Some creators have responded with "creative commons" licenses with which they voluntarily restore some or all of the rights of the public. (For instance, this blog has a CC license (check the bottom))

The term of a copyright is so long primarily due to the Copyright Act of 1976 and the Copyright Term Extension Act of 1998. While the former was due to participation in international copyright agreements, the latter merely extends copyright because it can. It was largely "sold" by the fear that "Mickey Mouse" would fall into the Public Domain and would be greatly abused. Thus it's often referred to as "The Mickey Mouse Protection Act". The ironic bit here is that Mickey Mouse is a trademark. As we'll discuss, trademarks never expire. Given Disney's diligent use and protection of their trademarks, Mickey isn't ever likely to fall into the Public Domain. But the copyright of Disney's first Mickey Mouse cartoon, Steamboat Willie, has been close to expiration several times now, and has been "rescued" each time by repeated government intervention. Frankly, it's long past time to stop.
From Wikipedia Commons

Besides the emotional argument we might see Mickey appearing in porn, the core argument that we see in these extensions boils down to "because it's mine". Simple as that. Well again... no, it isn't.  Once you've proclaimed an idea to the world, you have no natural right to control the thoughts of others. You have only the "rights" granted to you by law, and no claim to anything further.

But that's copyright. Let's look at patents. And let's note in passing how ironic it is that the technical innovation that so terrifies the MPAA and the RIAA is the very thing that the Constitution is trying to promote.

Is it exclusive ownership of "intellectual property" that spurs a pharmaceutical company to innovation? No. It's the limitation of that grant. The term of a patent is 20 years from the filing date, which I think is pretty reasonable. In fact, this limited term is why you see the pharmaceutical companies putting all that money into R&D! If their patents did not expire, they could just sit on their butts handing out the same old pills at exorbitant prices forever. A limited term means that they have to constantly innovate to stay ahead of those patents that expire. And it means that the public... and I mean the whole public, regardless of socioeconomic status... gets to benefit from those advances by purchasing formerly expensive drugs for $4 or even a dollar at their local Walmart. It means that even Pfizer's new potions must be priced somewhat more reasonably than they would otherwise be, because they are now competing on the market with the generic drugs they created decades ago.
(The patent system falls into another error, though... rather than expanding in duration, it has expanded in scope. Although processes, mathematics, and laws of Nature were never intended to be patentable material (because it's ridiculous to patent such things), nevertheless patents have been routinely... and wrongly... issued for years now on methods (processes), software (mathematics) and genomes (laws of Nature). There is a strong push for reform, as the effect of wrongly-applied patents in quickly evolving fields is chilling.)
Reasonable time limits on copyright would spur the arts to innovation, just as reasonable patent terms have spurred innovation in chemistry. There is a good amount of leeway afforded by "Fair Use", but this is largely limited to education, parody, and satire, and it must be defended from lawyers with no frakking sense of humor. Even if you win, you could be financially ruined. This leaves a whole corpus of serious work literally "unsung" as its would-be creators are born, live, and die before the original work falls into the public domain.

"Intellectual property" is a prime example of mainstream politicians asserting unnatural "rights" that erode your natural rights. It's also a prime example of one of the myriad ways that the Republicans and Democrats are mirror images, alike but for orientation. The Copyright Term Extension Act of 1998 passed by unanimous consent in the Senate, and a simple voice vote in the House of Representatives.

Again, "intellectual property" isn't a natural right at all. It's artificially granted exclusivity in which the public temporarily cedes their rights to certain expressions of thought, in order to encourage new and unique contributions to the discourse. It has never been intended to replace that discourse. To the extent that copyright and patents are misused - and that's a pretty broad extent - I'm for reigning them back down to reasonable limits so they can operate as originally intended. Sadly, the current government has no concept of moderation.

The Exception

There are a couple of other types of "intellectual property" that my friend and I never touched on in our discussion, which are a lot easier to come down in the "in favor" category:

Remember when I said that Art is valued for its provenance? Well, it's not just art... it can be true of just about any goods, really. For instance, people pay top dollar for flimsy clothing from top-name designers. And that's fine... it's what they want. But they also want to know it's genuine. That's done with trademarks. Trademarks are designs, signs, brands, marks, or logos, or other expressions that uniquely identify the origin of a product. They exist so that you can establish the provenance of a thing. This prevents fraud. Trademarks theoretically last forever. Practically, though, they last as long as you defend them, and it's up to you to call out counterfeiters. But remember that the only use for a trademark is to identify you as the originator of goods. Complex expressions (like books or music exceeding a jingle) have to be copyrighted instead. So they're limited. It's their utility to the public that makes them valuable. That's why they're your "property" only so long as you continue to use and defend them.

But if you really and truly want perpetual uncontested exclusive ownership of significant intellectual property, in such a way that no one... and I mean no one... will dispute that it's your actual property, then simply keep your mouth shut. Don't tell it to anyone. Lock it in your skull and don't say one word about it to anybody.

That sounds like a flippant answer, but I think it's the correct one. It's called a Trade Secret, and it can be far more valuable than a patent. Patents are guaranteed exclusivity, but they expire. Trade secrets are guaranteed only by your own efforts, but they never expire. "Colonel Sanders' secret recipe" for fried chicken and the formula for Coca-Cola are two famous examples. Even when discovered through reverse engineering, a company can simply deny it with "close, but no cigar." And this works because the marketing value of the secret's existence can be more valuable than the secret itself. And even the Libertarians will defend your rights to privacy and to property that you have not shared, as well as the exercise of your First Amendment right to choose when to speak, or not.

This doesn't mean you can't share the idea between select individuals. Even without copyright, this is securely done with a private contract called a Non-Disclosure Agreement (NDA). Quite a few things are enforceable by contract that are not enforceable by law.

So if you want real intellectual property that never expires, just STFU.

Wrapping up

My conclusions are that no, we do not have a natural right to ideas (what we call "ip". Once shared, information resides in the mind and thoughts of the recipient, and no person has the right to control the thoughts of another.

We can secure intellectual property rights for ourselves through the use of our own silence and private contracts. These are trade secrets. But some ideas are only useful when shared, so as a society we have agreed to certain social contracts. For inventions, this contract is called a patent. For many other works of the imagination, we call it copyright. For small works that usefully identify the origin of goods an secrets, we call it a trademark, service mark, etc.  ALL of these are limited in both scope and time (trademarks are limited to the time you actually use and defend it). ALL of these are granted to you by society for the purpose of encouraging you to share. ALL of them are instituted for the ultimate purpose of benefiting society.

However, patents and copyrights have come to be abused. As argued above, patents spur invention because of their limited term, which releases the work into the public domain for general use and modification. Under patent law, some subjects are clearly  nonpatentable, yet we have allowed them. This doesn't benefit society. Though copyrights have been extended to exorbitant lengths, there is no rational reason for doing so. Excessive terms remove the rights of the People to exercise their own creativity through modification and extensions of the work. This also is to the detriment and not the benefit of society.

Personally, I think that both the patent system and copyright law need to be reviewed and revised. This would not be to eliminate them, but to ensure that they are delivering on the purpose for which they were conceived.

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