What follows is my second reply to Austin’s most recent blog post, “This Entry is Illegal Because I’m Sure Someone Else Thought of it First.” I’ve also posted it as a direct reply, but I’m making this entry it’s own, separate post as well, because I need one for the month. In order to fully understand this particular entry I encourage you to read the already existing ones.
I’d like to start with your last point because I think it’s your most grievous error. You hit me with the fact that copyrights are in my “own best interest” and leave it as if landing a knockout punch. The problem with this is it’s also in my own best interest to can you on the top of the head and steal all your money every time I see you. So why don’t I do that too?
I realize you’re not much of a fan of philosophy so I’ll skip the discussion of Kant’s Categorical Imperative and try and phrase this purely in economic terms. My main point here is copyrights look to me like a special privilege, and thus enabling laws for them seems to be rent seeking. You’re right that on an individual level this looks fine for me, as copyrights account for most of a writer’s income. The fact that it’s essentially plundered from the rest of the economy largely goes unnoticed because the loss is spread out over the entire economy, a tiny bit from each person. Again from a single individual’s perspective this looks fine. The problem is if you allow one person to do it, you then begin allowing more and more. And eventually rent seeking is everywhere, and the damage done is massive.
Secondly, you’re flat wrong in your interpretation of patents or copyright covering only the finished product and not production. If you can find a cheaper or faster way to make a product, you are not free to proceed with it if what you‘re producing is recognizably a product that has already been patented or copywritten. Otherwise bootleg DVDs, which surely you’ll admit go through a different production process then official ones, would not be a worldwide issue. I suppose you could always sell your process to the patent holder, but their incentive to buy it would be virtually nonexistent, and they would be the only person capable of bidding on it, so even if they bothered, the price paid would almost assuredly be less then market value.
Moving on to the core of our disagreement, you still haven’t convinced me that patent protection is different from idea protection. Admittedly you are free to have the idea floating about in your head, namely because there’s no way to prevent that sort of thing. But you make an error in your analogy by equating the design in your head with Locke’s idea of nature, simply waiting for labor to be mixed with it. This is, again, due to the immaterial nature of ideas. How you mix your labor with something that has no appreciable real world value is an interesting question. In Locke’s view you mix your labor by the simple act of taking possession. If an apple is on the tree you pick it. If a mineral is in the earth you mine it, and so on. How does one do this with things that exist only in their head?
Your answer for designs is to move it from the realm of ideas into reality by actually inventing it. The problem with this is it bestows the value of possession onto every action you take. If you thought about it before you picked that apple, the action of picking now belongs to you. I suppose you could say materials need to be involved for it to actually apply as an invention, but that still makes odd things into property. Knots for example. Someone actually had to invent every knot we use. Were they entitled to profits from every knot tied? Were people secretly stealing by tying knots and neglecting to send proceeds to the knot inventor? How about recipes? Who do I owe money for the scrambled eggs I cooked today? The problem is you’re telling me I owe someone money for the things I do with my property just because they happened to do it with their property first.
But patent law is even more absurd then that. Many, many patented items have never been made by anyone, anywhere. Some of them don’t even work. The upshot is you’ve literally protected an idea in all it’s ethereal glory.
As to your supposed argument that patents don’t create monopolies, I’m not actually sure you addressed the point at all in the paragraph following its introduction. Perhaps I simply need more clarification. However, as to the point you did bring up, yes Tesla invented a different light bulb (I‘m not willing to concede “better,” because personally I‘ve always hated fluorescent lights. But to each his own), and possibly because he couldn’t use Edison’s due to patent law. But I say again, if the fluorescent bulb was truly better someone surely would have had the incentive to invent it already, simply because it is better. Consider Edison himself, nobody owned a patent on candles, and yet he still applied himself to the creation of the original light bulb. Why? Because it was better, which means there is a market for it. You don’t need patents to make people seek out better alternatives.
Your contention then, seems to be that the patent made the process of seeking alternatives faster, and I’ll concede this point. However, I don’t think it is necessarily a good thing. What you’ve done in this case is create false incentives. Because an entrepreneur’s access to the original invention is restricted they see more reason to create an alternative, but the market hasn‘t dictated a need for that yet, and may well be resistant to it as a result. Interestingly your fluorescent bulb example is a perfect analogy for this. Yes the patent probably brought us the fluorescent bulb sooner then we otherwise would have had it. But to what purpose? Edison’s light bulb began to appear everywhere. What of Tesla’s? It took years and years before widely being adopted. So we got it earlier, yes, but we did not use it until we would have begun to look for it anyway. Remember tampering with one person’s incentives to invent does nothing to change anyone else’s incentives to buy. And an invention need not exist until someone actually wants it.
Finally, I do you think you’ve missed the most important part of the argument. In theory laws exist in order to protect us from harm, either to ourselves or our property. But what harm is patent law protecting against? I say again, it is impossible to steal a design in the conventional sense because by copying it I have not deprived you of it in any way. You may continue to use it exactly as you have in the past, or now see new incentives and choose to act in a different manner, but the fact remains you have just as much of your design, and just as much right to it, as before I copied it. What harm has been done?