Tuesday, November 18, 2008

This Entry is Illegal Because I'm Sure Someone Else Thought of it First

I've been trying to come up with a valid, sound reason why someone would be against copyrights and patents, but I just can't see it. Property rights are the foundation of a capitalist economy. They are the foundation of a liberal society. It is the protection of such rights that is the raison d'etre of government. Property rights are, in a nutshell, paramount.

Copyrights and patents are laws designed to protect property rights. Where is the disconnect? Why are certain libertarians against this protection of our rights? I've heard the absurd idea that copyrights and patents seek to protect thoughts and words. That is ridiculous. They protect our inventions and our particular modus operandi for solving problems. They very clearly protect our property.

The arguments against copyrights and patents are baseless. They do not seek to stop people from thinking, or of using someone's existing idea to come up with another idea. For instance, Thomas Edison had a patent on a particular design of a lightbulb. Nikola Tesla won a bid to light the world's fair in 1893, but he couldn't use Edison's design for his lightbulbs. So what did he do? He came up with a another design for lightbulbs. Patent haters would have you think that a patent protects the idea of a lightbulb, but this is clearly not the case. What the patent did do, however, was encourage Tesla to become more creative and create competition for Edison. And patents are evil so we shouldn't have them?

The only reason I can think of why some libertarians would be against patents and copyrights is because laws like these prevent them from cheating. Obviously any person who swallows the libertarian dogma lock, stock and barrel cannot think for himself, but must be lead around by other people's ideas. So if libertarians can't rely on others ideas, they would be absolutely lost. Hence, they are against copyrights and patents.

Or is it because for these laws to exist, there must be some form of government to enforce them? And as these extreme, narrow-minded libertarians know, all government is evil and hell-bent on their destruction.

Now I'm sure I angered a lot of people (at least in my imagination, because for me to have angered a lot of people, a lot of people will have had to have read this entry. I'm guessing at most two will). So let me qualify this piece by saying that most libertarians are rational, sound-minded individuals with some great ideas. I am only talking about those extreme, weak-minded, blind, irrational, and yes, silly libertarians that actually believe their narrow, ignorant view of the world is truth.

© Austin Frindt, 2008.


Jaeson Madison said...

This is a difficult issue for me to take up because I fancy myself something of a writer, and if copyright law were to disappear it would have a rather noticeable impact on my future earning potential. And yet, intellectually, I find your position indefensible. So while I may privately remain a pitiable and loathsome rent seeker, I suppose I can at least do my part within this rather small forum to fight the good fight.

To begin with you attempt to redefine the issue by claiming patents aren’t a protection of ideas, but rather inventions. However, an invention itself is merely an idea. It’s not until production that it becomes something else. And I would never claim that what you’ve built is not right and properly yours. I do, however, take issue with the claim that I am not entitled to build the same thing if I so desire.

Because of this I think the main issue that you’re ignoring is the immaterial nature of thoughts and ideas. This more then anything else, causes the great difficulty in codifying them into property though patents or copyrights.

Consider a simple wooden pencil. At any given moment there may be millions, or even billions, exactly like this first one in every way. And yet we recognize a difference in these items in terms of property. Despite their latent sameness, by owning one you do not own them all. Likewise, by selling the ownership rights to one of these pencils you do not lose the rights to all the stock you’ve kept in reserve. Neither of these points holds true, however, in relation to how we view intellectual property. He who owns the patent to an invention is the only one who may produce that same invention, and should he sell that patent he loses his right to future production from it. The idea, in essence, becomes uniquely his, no matter how many other people it may occur to.

Let’s return to those pencils, only now imagine you’ve only just invented the first one and rushed out to get a patent. Three days later someone across the country, who has never met you, nor has any knowledge of your work, comes up with the same design and starts a thriving little business. Has this person stolen from you? Legally speaking the answer is yes. However, the issue of justifying such an answer becomes difficult. What exactly was stolen, and how was it taken?

This is the essence of the problem. Ideas can not be kept from others the way tangible property is. You cannot hide an idea, nor can you guard it. Even if you choose never to speak that idea, it may still pop up elsewhere totally independent of you. Such things cannot be said of a pencil.

Likewise an idea cannot be stolen. Even if it occurs to, or is blatantly copied by, everyone else on the planet you have no less of that idea. In every respect you have just as much of it as you did when you where the only one who knew of it. Again, this cannot be said of a pencil. If someone else has your pencil, you no longer have it. That is theft. To deprive someone of their property against their will. How do you deprive someone of their own ideas?

Moving on, you bring up the idea of patents encouraging competition, but the entire argument, if you’ll excuse the pun, is patently absurd. To begin with you say it encourages people to attempt the same idea in different manners as with Edison, Tesla, and their light bulbs. The implication here, of course, is not just different manners, but better manners, because why would we want to encourage worse versions of the same idea. But the encouragement to create better ideas always exists, patents or not, because people are willing to buy what is better. No encouragement on this front is needed.

What you forget though, is that competition has more facets then simply better products. There is also cheaper and faster. Using your same example, could someone else have produced Edison’s light bulbs either cheaper or faster after they’d been designed, and passed this advantage onto the consumer? Possibly. But even if they could, they were not allowed to because the patent created a monopoly on that particular design. Thus you’ve encouraged one part of competition that needs no encouragement and outlawed two others. I fail to see the improvement.

If all of this still fails to convince you I have one final set of questions. A patent expires after a certain amount of time. Can you think of any other property of which something like this is true? You shoes, your car, your home? As a rule property is yours until you pass it on to someone else, or you simply pass on yourself. What makes this particular property so different? Clearly some trick is being played, but is it on the patent holder, or all of us?

Austin Frindt said...

Thank you for your response, and I absolutely respect your ideas and thoughts. I believe you can be very insightful. So please don't take it personally, that in this instance, I believe you are wrong. I can almost disregard most of your rebuttal because it is entirely based on the mistaken assumption that inventions are simply ideas and not property. This is clearly not the case. Since most of your argument is based on a false premise, it seems silly to engage it. But I will indulge you nonetheless.

Inventions are not ideas, but manifestations of ideas. When it's swirling around in your head, it's an idea. When you mix your labor with your idea, it becomes an invention. As we all know, when you mix your labor with nature, it becomes your property. There is no thought-police division of the Patent Office that is ready to throw you in jail because you had an idea about something which already exists.

Patents, just as any other property, can be bought and sold or disregarded by the owner. Looks like property to me.

Now, more to the point about the weak argument that patents create monopolies. I will continue with my light-bulb example. Had there been no patent, Tesla would have used Edison's bulbs to light the world's fair. Instead, not only did he create another light-bulb, he also created a better one. Tesla created a light-bulb that was a century ahead of its time. You know it today as the compact-fluorescent, the greenest, most energy-efficient bulb ever created. Had Telsa been able to, he would have been content to use Edison's bulbs. We think of monopolies as discouraging competition, but patents provide a very real incentive to be innovative. So yes, they do encourage products that the market would not otherwise provide (at least not yet).

Anyways, in a lot of countries (granted, not the U.S.) patent law does not cover production, only the finished product. If you can come up with a faster, cheaper way of producing it, it's perfectly okay.

As for your last point, I know intellectual property is something libertarians scoff at, but that's only because libertarians have never been very comfortable with intellect, ha ha. No, seriously as for your last point, I concede. Well done.

But really, you’ve already said everything you need to say about patents and copyrights. You, as a rational actor, said yourself they are in your own best interest.

Jaeson Madison said...

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?

(One final note: I also made this reply my blog post for the month, and you may want to check there for other people’s comments on this discussion as well.)

Brandon Weber said...

A Quote from Austin...

"The only reason I can think of why some libertarians would be against patents and copyrights is because laws like these prevent them from cheating. Obviously any person who swallows the libertarian dogma lock, stock and barrel cannot think for himself, but must be lead around by other people's ideas. So if libertarians can't rely on others ideas, they would be absolutely lost. Hence, they are against copyrights and patents.Or is it because for these laws to exist, there must be some form of government to enforce them? And as these extreme, narrow-minded libertarians know, all government is evil and hell-bent on their destruction."

Here we go I usually don't comment on others blogs as it is their blog, but here Austin I believe that you are talking about two differnt things. As one of your narrow-minded libertarians, I have to question whether or not you are talking about copywriting something that has been earned or something that could be earned.

Austin I have to question whether or not you are taking about property rights being exclusive in all contexts. As I believe it, libertarians argue that if one holds contractual rights in ideas, there seems to be no good reason one could not have an equally coherent property right. Also libertarians argue that one one holds the amount of power and the ability to judge those rights (copyrights) on being fair and contractual. I believe that this is where copyrights have failed....look at where they have led us today; and that is to no actual protection for the individual.

I might be completely off, or mis-understood you but here are my two cents.

P.s. government is out to get me...and you....

Larry Eubanks said...

Very interesting discussion. Thanks.

Over the course of the semester we have spent time with the libertarian approach to libery as well as the classical liberal approach to liberty. I tend to see the libertarian approach is more conceptual (utopian?) and less practical, while I tend to view the classical liberal approach more practical. I'm not quite sure, but I think your discussion mostly explores what the libertarian view of this issue should be. I'm curious how von Mises or Hayek might view this issue. Any thoughts?

I'm also interested in our constitution, which I take to be a reasonable practical view of government for individual liberty. Here is the relevant enumerated power in the Constitution: "The Congress shall have Power . . . 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." I'm not sure if your discussion directly considers the premise in this enumerated power that the power to grant patents and copywrites is for the purpose of promoting progress. Is progress promoted in this way? Could it be that Congress has acted unconstitutionally because it has abused notion of "for limited times?"

I tend to see the idea of enumerated powers as a reasonable practical expression of liberty. That is, it is consistent with liberty to accept that a super-majority can grant to government powers over individual "unalienable" rights. How might this view be included in your discussion?