| Delete All IP Law |
Delete All IP Law ================= by Jack Dorsey and Elon Musk https://x.com/jack Jack Dorsey and Elon Musk April 11, 2025 Original: https://x.com/jack/status/1910829254214115681 Jack Dorsey: > delete all IP law Elon Musk replied: https://x.com/elonmusk/status/1910840422789763511 Elon Musk replied > I agree. Follow-up ========= Dorsey subsequently argued that the existing intellectual-property system is not the only way to compensate creative work: > there are much greater models to pay creators. the current ones take way too much from them and only rent-seek ⁂ Original: https://x.com/jack/status/1910829254214115681 ⇧ /# ⇧ |
Jack Dorsey and Elon Musk |
2025 |
97 |
0.5 |
| Patents Are for the Weak |
Patents Are for the Weak ======================== by Elon Musk https://x.com/elonmusk Elon Musk September 21, 2022 Original: https://www.cnbc.com/2022/09/21/why-elon-musk-says-patents-are-for-the-weak.html _During a tour of SpaceX’s Starbase facility with Jay Leno, Elon Musk explained why the company avoids patents._ When Leno asked whether SpaceX had patented the material used to build its ships, Musk replied: > No, we don’t really patent things. Patents are for the weak. Musk argued that patents obstruct rather than encourage innovation: > You know, the problem is patents are generally used as a blocking technique. They’re like using landmines in warfare. They don’t actually help advance things. They just stop others from following you. And most patents are BS. Delete All IP Law ================= On April 11, 2025, Jack Dorsey wrote: https://x.com/jack/status/1910829254214115681 Jack Dorsey wrote > delete all IP law Elon Musk replied: https://x.com/elonmusk/status/1910840422789763511 Elon Musk replied > I agree. Read the complete exchange. /deleteAllIpLaw.html Read the complete exchange. ⁂ Original: https://www.cnbc.com/2022/09/21/why-elon-musk-says-patents-are-for-the-weak.html ⇧ /# ⇧ |
Elon Musk |
2022 |
197 |
1 |
| A Natural Right to Copy |
A Natural Right to Copy ======================= by Glynn S. Lunney, Jr. https://works.bepress.com/glynn_lunney/ Glynn S. Lunney, Jr. January 1, 2019 Original: https://www.bu.edu/bulawreview/files/2019/12/LUNNEY.pdf In this symposium, we gather to celebrate the work of Professor Wendy J. Gordon. In this Essay, I revisit her article, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property. In her article, Gordon used the reasoning of John Locke to first justify copyright as natural right and then used his “enough and as good” proviso to limit that right. Her second step turned the natural-rights approach to copyright on its head. Through it, she showed that even if we accept copyright as a natural right, that acceptance does not necessarily lead to a copyright of undue breadth or perpetual duration. Rather, even a natural-rights framework leads to a copyright regime shorter and narrower than we presently have. While I agree that copyright should be shorter and narrower, I worry that Gordon conceded too much in her first step. Neither Locke’s reasoning nor Gordon’s reading of it can justify a right to prohibit copying as a matter of natural law. It is not the right to prohibit copying to which we have a natural entitlement. Rather, it is the right to copy. Introduction ============ A human is born into this world with relatively few intrinsic abilities. While research is still revealing the precise nature of our intrinsic skill set, we are not born into this world with the ability and know-how to raise crops, husband animals, build sewers, or make penicillin. We learn these foundations of modern civilization from others, and we learn them by imitation—by copying.^1 Often today, we celebrate the creativity of the genius who shows us a new and better way of doing something or of the author who writes the next great novel. Yet the simple truth is that it has been copying, not creativity, that has given us the life expectancy, the wealth, and the happiness we enjoy today. Consider for a moment two possible worlds: The first is filled with brilliantly creative people, unable to copy. The second is filled with people able to copy quickly and accurately but unable to think creatively. Over time, the second will advance, but the first never will. In the first world, each individual must work entirely on his or her own. Without copying, there can be no common language, no shared understanding of one another. Whatever works of genius any individual creates she cannot share with others, and those works will be lost when the individual dies. In the second world, new insights, profound discoveries, and original works of authorship will come more slowly, yet still they will come. All that these advances require is variation in the response to a problem and the ability to discern which variations are best. Even if these variations occur by accident, through unintentionally imperfect copying or by a thousand monkeys banging away on keyboards, still they will occur, and once they occur, they will never be lost. Thus, in the second world, the wheel will be invented, and once it is there will never be a need to reinvent it. With the ability to copy will come a shared language and a shared culture, and so in the second world, but not the first, people will be able to see further by “standing on the shoulders of giants.”^2 At a fundamental and basic level, copying is the sine qua non of civilization. Without copying, there can be no shared language, no shared culture. There can only be isolation. It is surprising then that some academics purport to find a natural right to prohibit copying, at least for certain creative products in certain specific circumstances. When used in this way, the phrase “natural rights” is, of course, an oxymoron. If the right at issue were truly and literally natural, then humans would be needed neither to define nor to enforce the right. Such natural rights undoubtedly exist. The law of gravitational attraction, I suppose, is an example. Objects would attract one another according to the law even if humans did not exist, and one certainly need not resort to judicial proceedings to enforce this attraction. Yet in legal circles, the phrase “natural rights” is not intended literally, but rhetorically. It is intended to establish a baseline and to allocate the burden of justifying any departure from that baseline to the other side. It is also intended to disparage the other side’s argument. If I am arguing for a natural right, then the person arguing against my position must be arguing for an “unnatural” right. In a world of perfect information and zero transaction costs, establishing baselines, allocating burdens of proof, and playing rhetorical tricks would have no influence on the ultimate adoption of perfect legal rules.^3 There would be no grey area, no zone of uncertainty about where the line between permissible and impermissible copying should be placed to maximize human satisfaction or human flourishing or whatever other goals one seeks to advance. Yet in the real world, starting points matter. They matter because we have, inter alia, both limited information and limited cognitive resources to resolve any given issue. If we cannot tell, based on the information available and the limited time given to resolve the matter, whether copying in particular circumstances ought to be allowed or prohibited, then the default rule will control. If the default rule is that copying is generally prohibited, then, in the real world, that will be the rule in those cases where the desirability of allowing copying is uncertain. As a result, less copying will occur. If the default rule is that copying is generally permitted, then that will be the rule in the uncertain cases. As a result, more copying will occur. As the zone of uncertainty expands, the default rule becomes increasingly important, as more and more cases fall under its purview. At this symposium, we gather to celebrate the work of Professor Wendy J. Gordon. As a basis to explore further the natural rights justification for copyright, I have chosen to focus on her article, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property.^4 In her article, Gordon used John Locke’s labor-desert theory to justify in authors a natural right to prohibit the copying of their original and expressive works of authorship.^5 Having recognized this natural right, she then proceeded to use other aspects of Locke’s work, including his proviso that “enough and as good” be left for others, to establish limits on that right.^6 In concluding her analysis, she applied the rules she derived from Locke’s work to a handful of contemporaneous copyright cases.^7 Somewhat surprisingly, having proven copyright to be a natural right, Gordon found that the limitations in Locke’s presentation of natural rights required a generally narrower scope to copyright protection and a correspondingly broader reach for the fair use doctrine than copyright law at the time required.^8 Taken as a whole, the article was a tour de force at the time it was written. Gordon showed that copyright could be justified as a natural right. Yet contrary to expectations both then and now, she also showed that accepting copyright as natural right did not lead inexorably to a copyright of perpetually long duration or infinitely broad scope. Even natural rights must have limits. Otherwise, they become a mere excuse for vindicating one person’s interests over the interests of everyone else. Exploring those limits as Locke articulated them, Gordon showed that even a natural-rights framework justified a more limited right to prohibit unauthorized copying than copyright at the time provided. In doing so, she helped turn the natural-rights story on its head. Yet in showing that Locke’s reasoning placed limits on copyright, Gordon conceded too much. Before she established the limits Locke’s reasoning placed on copyright, she first purported to demonstrate that Locke’s reasoning justified copyright as natural law. To do so, she equated copying with theft.^9 That was and is a mistake. To be sure, Gordon is not alone in making that mistake. Two years before Gordon’s article, a district court in Grand Upright Music Ltd. v. Warner Bros. Records, Inc.^10 had to determine whether a defendant who had sampled the plaintiff’s sound recording to create a new song had infringed the plaintiff’s copyright.^11 In finding the defendant liable for copyright infringement, Judge Duffy thundered, “Thou shalt not steal.”^12 In doing so, he too equated copying with theft. Yet as God knows, copying is not theft. If it were, it would fall within the Seventh Commandment’s prohibition, and those of us alive today would never have known the Seventh Commandment. As the Bible tells it, Moses became so frustrated with his people that he smashed the original stone tablets on which God had engraved the Ten Commandments.^13 We know the commandments today only because Moses copied them—and not just Moses.^14 Throughout history, the Ten Commandments have been copied on stone, on animal skin, on parchment, on paper, in metal, and today, in electrical current. Indeed, we have copied the Ten Commandments in every format we have developed for copying and recording information. While I would not presume to know God’s will, this seems to have been God’s purpose. For rules to become law, they must be copied and shared as widely as possible so that they can become a common framework under which people can live. The story of the Ten Commandments reminds us of something we seem often to forget: the foundation of our civilization, indeed of any civilization, is not creativity but copying. We learn to talk, to walk, to smile, and to pout by imitating others. Without copying we could not have a shared language. Without copying we could not have a shared culture. Without copying we certainly would not have the Seventh Commandment. It is not copyright to which we have an entitlement in a state of nature. It is the right to copy. The ability to copy, to imitate, and thereby to learn is perhaps the most important intrinsic ability with which every healthy human child is born. Copying and imitation are rights that humans have exercised since humans have existed. In contrast, there is and can be no natural right to prevent others from copying my work. As a factual matter, copyright is purely positive law and did not exist throughout the vast majority of human history. More generally, from a deontological perspective, it is not copyright that is generally necessary for human flourishing—it is the right to copy. From a consequentialist perspective, it is not copyright that is generally necessary to promote social welfare—it is the right to copy. Copyright exists as a narrow exception to this general right to copy. While the self-interest of copyright owners leads them to continuously lobby our governments to expand, lengthen, and strengthen this narrow exception, we must take care to ensure that copyright remains the exception and the right to copy the rule. In this Essay, I revisit the second of Locke’s Two Treatises of Government^15 and Gordon’s A Property Right in Self-Expression in an attempt to give the ability to imitate the high place it deserves in the hierarchy of human abilities. Without the ability to copy—and to copy freely—society as we know it today would not exist. If we are going to use the rhetoric of natural rights to enshrine a set of presumptively correct or pregovernmental legal rights, then the right to copy freely comes far closer to the optimal legal rule than copyright. In that sense, copyright is not natural law. The right to copy is. Before attempting this showing, however, I begin with a brief discursive on the possible meanings of the phrase “natural rights.” The Many Meanings of “Natural Rights” ===================================== In a true state of nature there are no rights. Strength, whether purely physical strength or cleverness, is all that matters. Hyenas will gladly steal the lion’s prey if they can and vice versa. In this pregovernmental world, the weak band together not out of respect for the moral equality of each other but out of relentless self-interest—to protect themselves from the predations of the strong. It’s high school all over again. Even after they band together, however, individuals within the group will seek to rewrite the rules or exploit the ambiguity and discretion the rules leave to capture more for themselves. Others can prevent this only through countervailing strength. Appeals to morality or fairness can work in this setting, but they can only work to the extent that others allow those appeals to persuade them or, perhaps more accurately, to fool them. Such a true state of nature exists today in a variety of circumstances, but it exists most clearly in the relations between states. True, we have moved beyond a time where taking hostages to secure the performance of agreements between rulers was the norm, and we may be moving beyond a system where strength alone is the only law between nations. But strength alone remains sufficiently important in the international arena today to remind us of what a true state of nature looks like. Locke’s state of nature is not a true state of nature, however. Rather, his state of nature is an idealized state of nature. He takes as a starting point for his analysis that people are born equal “wherein all the Power and Jurisdiction is reciprocal.”^16 Moreover, people are not merely equal but respectfully equal as children of the same God.^17 From this respectful equality, Locke derives the duty not to harm one another.^18 Similarly, in articulating his theory as to how property rights arise, he begins with the proposition: “[E]very Man has a Property in his own Person.”^19 Of course, neither of these starting points holds in a true state of nature. In a true state of nature, nothing prevents the strong from harming or enslaving the weak except more strength. Historically, government and property are systems that the weak, by ganging up and thereby becoming—at least temporarily—the strong, are able to impose on the strong. Historically, we see this in the Magna Carta in England in 1215 and again in the French Revolution of 1789. Yet Locke rejects this historical reality as a sufficient foundation for government and property. If “all Government in the World is the product only of Force and Violence” and if “Men live together by no other Rules but that of Beasts, where the strongest carries it,” that would “lay a Foundation for perpetual Disorder and Mischief, Tumult, Sedition and Rebellion.”^20 Locke therefore posits an alternative. Rather than a true state of nature, he defines a set of natural rights based on the rules by which “good” people would live together. These rights are not based on mere equality. Equality alone might leave everyone equally free to take whatever they can. Rather, Locke bases his set of “natural” rights on the respect we owe each other as coequal creations of God.^21 Having posited an idealized state of nature, Locke proposed a set of rights that would exist in such a state of nature. While this set is contestable, Locke’s articulation of such an idealized set of natural rights turned the traditional, pre-Lockean approach on its head. In the pre-Lockean framing, the state of nature represented a descriptively accurate account of life without government. Compared to this true state of nature, government, even if messy and imperfect, was also necessarily an improvement. As a result, the pre-Lockean framing emphasized the desirability of government: however bad government was at times, it was still much better than the alternative of a true state of nature where the strong and powerful could take what they wanted without even bothering with the pretenses and formalities government and laws might otherwise require. In contrast, in Locke’s framing, the state of nature represents an idealized account of life without government. Compared to this idealized account, real-world governments will invariably fall short. As a result, Locke’s framing emphasizes the shortcomings of government: however perfect the set of rules a government adopts, it will still fall short of a perfect system. This is particularly true because Locke’s framing leaves sufficient room for each of us to import into the set of idealized natural rights our own sense of the rules that would exist in a perfect world. Locke’s framing also changed the rhetorical meaning of the phrase “natural rights.” If “natural rights” refers to the set of rights that exist in a true state of nature, then labeling rights as “natural” is merely descriptive and lacks any normative or persuasive significance. The strong man’s complaint that in the absence of law he could take what he wanted will not persuade many to abolish laws against theft. Yet in Locke’s framing, natural rights become the rights that good people would voluntarily recognize as they live with each other. In this framing, labeling rights “natural” is no longer merely descriptive but carries a normative and persuasive significance instead. Moreover, by labeling any given right as natural, its proponent can sometimes avoid the otherwise messy need to justify the right. If the right is natural, then there is no more need to explain why the right should be than there is to explain why two objects should attract one another in direct proportion to the product of their masses and inverse proportion to the square of the distance between them. It is enough that they do. In addition, in defining this idealized set of rights as “natural,” Locke identified them as pregovernmental.^22 This privileges them vis-à-vis government action. Labeling rights as “natural” either places them beyond the reach of government or imposes a strong presumption against government action that might limit, alter, or reject them. Beyond reframing the debate and offering a convenient rhetorical trick, the question remains whether Locke specifically or natural-rights analysis more generally offers anything more. With respect to copyright in particular, the question is whether Locke can offer a meaningful and independent alternative to more traditional utilitarian justifications for copyright or is merely reformulating the same justification. It seems obvious to me that neither Locke nor natural-rights rhetoric more generally can offer a true alternative. Copyright did not exist in any human culture before the invention of the printing press. I have considerable difficulty describing a right as “natural” when its existence was historically contingent on the existence of certain technology. Nevertheless, natural-rights arguments, as a deontological approach to the definition of legal rights, can prove helpful when they offer a sharp contrast with a consequentialist approach. Kant, for example, offers his categorical imperative that we are morally obligated to always tell each other the truth.^23 Otherwise, we are impermissibly treating the listener as a means to our own ends rather than as an end in him- or herself. While telling the truth is easy to justify in a large number of circumstances, whether from a consequentialist perspective or, as the story of the boy who cries wolf teaches us, even from an egotistically self-interested perspective, Kant insists that we must always tell the truth. This insistence leads to challenging scenarios. For example, if we are hiding Anne Frank in our attic during World War II and the Nazis arrive and ask us if there are any Jews hiding in our home, Kant says that we are morally obligated to reveal the truth. Whether we agree with Kant or not, his categorical imperative challenges us to consider our choice more carefully. It runs counter to our intuitive sense of justice and is plausibly contrary to a consequentialist balancing of costs and benefits. It is precisely that conflict that makes Kant’s approach useful. It forces us to reflect on our moral intuitions and think through the implications of our choice more thoroughly. It is far less clear that Locke offers such a meaningful contrast. In my experience, Lockean arguments like Gordon’s are simply consequentialist reasoning cloaked in the guise of natural-rights language. They usually match our moral intuitions, validate existing legal rules, and reach results similar to those we would reach through express consequentialist reasoning. Moreover, they do so not because two independent, but equally valid, approaches to moral decision-making are likely to reach similar conclusions on, for example, the morality of murder. But because there is no substance to Lockean rhetoric, it offers no meaningful first principles from which to reason. Lockean arguments are nothing more than hidden—and therefore poorly and incompletely done— welfare calculations. Like many fairness arguments, Lockean arguments at bottom are utilitarian calculations done by people unable to do math and, indeed, unwilling to admit that math is what they are doing.^24 Consider a simple example. Present copyright law protects the original design of a statue but not the original design of a car. Using consequentialist reasoning, I can justify or at least explain this distinction. I can also use natural-rights arguments, whether Lockean or otherwise, to justify the protection of the statue. However, showing that natural-rights arguments can reach the same outcome as consequentialist reasoning in the case of the original design of a statue may lend those arguments an undeserved legitimacy and suggest that they are a truly independent and alternative justification. This creates two risks: First, there is a risk that we will use that same natural-rights argument as a heuristic shortcut to justify copyright protection for the original car design, even though a more careful utilitarian analysis would establish the need for the law to treat the designs of the car and the statue differently. Second, there is a risk that pointing out the math errors in the hidden consequentialist calculation will no longer be sufficient to overcome the use of natural-rights rhetoric to justify copyright protection for an original car design. Alternatively, a clever natural-rights proponent may simply use ex post rationalization and manipulate the ambiguity in the natural-rights rhetoric to argue against copyright protection for the original car design. Such a clever proponent might insist that the car design does not entail the right sort of creative labor or does not leave “enough and as good” for follow-on car designers, and so such protection should be denied. This does not, however, solve the problem. It merely kicks the can down the road and may indeed strengthen the apparent utility of natural-rights rhetoric to resolve these issues independently. These worries are particularly acute in the case of copyright. We have had copyright for so long and the utilitarian justification for copyright has been so long asserted that we are likely to take the desirability of copyright for granted. Moreover, Locke defines “natural rights” as those rights that good people, living together, would adopt and respect. That definition leads to an easy three-step approach to defining natural rights: I am a good person; I believe in copyright; therefore, copyright is a natural right.^25 Because of these concerns, we do not approach natural-rights rhetoric that seemingly justifies a result that we already know—or at least believe—is just as skeptically and critically as we should. We fall too easily into the curious trap of accepting natural-rights rhetoric while simultaneously manipulating it to reach the legal outcome we otherwise know, or at least believe, is right. Gordon, Locke, and Copyright ============================ In my view, this is precisely what Gordon has done with Locke in her article. She first argued that Locke’s “no-harm” principle justifies a natural right to prohibit the unauthorized copying of an original work of authorship. As her second step, she then argued that his “enough-and-as-good” proviso limits the scope of that natural right. This two-step approach enables Gordon to map a Lockean framework largely onto the existing structure of copyright. Indeed, she was even able to push for a somewhat narrower version of copyright than presently exists. For many of us, Gordon’s reasoning coincides with our priors, and that makes it palatable. However, before we swallow it whole, a more careful consideration is in order. In her first step, Gordon argued that Locke’s reasoning justified the recognition of a natural right to prohibit the unauthorized copying of an author’s original and expressive work based on Locke’s “no-harm” principle—the principle that “no one ought to harm another in his Life, Health, Liberty, or Possessions.”^26 Although most commentators recognize Locke’s “mixing labor” metaphor as his basis for property,^27 in Gordon’s view this “no-harm” principle was Locke’s central justification for a natural right of possession in tangible goods that a person had labored to produce.^28 As Gordon articulated it: To the extent that [Locke’s] theory purports to state a nonconsequentialist natural right in property, it is most firmly based on the most fundamental law of nature, the “no-harm principle.” The essential logic is simple: Labor is mine and when I appropriate objects from the common I join my labor to them. If you take the objects I have gathered you have also taken my labor, since I have attached my labor to the objects in question. This harms me, and you should not harm me. You therefore have a duty to leave these objects alone. Therefore I have property in the objects.^29 Thus, in Gordon’s view Locke’s “no-harm” principle established as natural law a prohibition on theft. Having recognized a natural right prohibiting theft, Gordon then extended this right to a prohibition on copying by way of a simple syllogism: “Similarly, if I use the public domain to create a new intangible work of authorship or invention, you should not harm me by copying it and interfering with my plans for it. I therefore have property in the intangible as well.”^30 While Gordon recognized that copying and theft are different, she reasoned that the harm done an author by unauthorized copying can be the same as the harm done an individual by unauthorized theft of her possessions: Copying can harm important interests even if the copying does not deprive the creator of physical use of her creation. For example, if someone creates of feeding herself by selling the royalties to it, she can be harmed by a bootleg copyist as severely as if he took the physical sheet music out of her den or stole the food she had bought. The intellectual laborer requires some kind of anti-copying protection if her property in her creations is to be meaningful.^31 The syllogism seems straightforward: If I have labored to collect food that I need to eat to survive, then stealing my food harms me. Similarly, if I have composed a song and intend to use the royalties to buy the food that I need to survive, unauthorized copying harms me in the same way. While copying does not directly and literally take food from my table, it deprives me of the money I need to put food on the table. For all practical purposes then, copying, just like stealing, takes the food from my table. For that reason, copying equals theft. The author should, therefore, have a natural right to prohibit unauthorized copying, just as the farmer has a natural right to prohibit theft of her crops. In reaching this conclusion, Gordon acknowledged that copying is different from theft.^32 Stealing an apple does not, for example, increase the supply of apples. It merely transfers possession of a given apple from one person to another. In contrast, copying a song can increase the supply of the song.^33 Whereas before the copying there was only one copy of the song, now there are two. Yet Gordon found this difference and other potential differences between theft and copying insufficient to undermine the case for copyright as natural law.^34 In particular, Gordon acknowledged that unauthorized copying could drive the price of copies of the work of authorship at issue to marginal cost.^35 Unauthorized copying would thereby reduce the deadweight loss that would result from the supracompetitive pricing that a natural right to prohibit copying would otherwise make possible.^36 Yet in Gordon’s view, this was a distinction without a difference. As she explained: > Nothing in a natural-rights framework gives the public the per se entitlement to cheap access to what the laborer has produced. . . . “Deadweight loss” merely measures the difference between what society gains from an intellectual product distributed subject to anticopying restraints, and what society would gain from a freely-copied intellectual product. Avoiding “deadweight loss” is a natural right only if the public has a right to free copying. As just discussed, it has no such right.^37 Gordon thus rejected any general claim that the public had an entitlement to competitive—or marginal-cost—pricing. As a result, that copying a work of authorship would expand the supply of copies where stealing an apple would not, while certainly a difference, did not justify denying the author a natural right to prohibit the copying of her original and expressive work. Having established a natural-law entitlement to copyright protection, Gordon then proceeded in her second step to use other aspects of Locke—and in particular his “enough and as good” proviso—to show that even a natural-rights framework justified more limited copyright protection, at least in some respects, than we had at the time.^38 As I mentioned at the outset, this twist in some sense represents the key contribution of Gordon’s article at the time. Yet to reach it, Gordon gave too much away. Whatever limits on copyright Gordon may find in Locke or other natural-rights theorists, acknowledging that those theories can justify any sort of copyright as natural law concedes too much. It creates such a strong presumption in favor of copyright—and in favor of a broad and long copyright at that—that whatever limitations such reasoning can justify or rationalize on the back end come too little and too late. If our goal is to end up with a copyright regime close to optimal, it would be better if we could show that Locke’s reasoning cannot justify copyright as natural law at all. To that task I now turn. A Partial Critique: Locke Cannot Justify Copyright Ab Initio ============================================================ Neither Locke’s reasoning nor Gordon’s interpretation of it justifies a natural right to prohibit unauthorized copying. In my opinion, the key flaw in Gordon’s analysis is that her first step requires an overbroad interpretation of Locke’s “no-harm” principle. Taken in isolation and divorced from context, a “no-harm” principle might carry a variety of meanings. Locke might have intended “harm” broadly, to include any type of injury, whether physical, psychological, emotional, or economic. Alternatively, Locke might have intended “harm” narrowly, to encompass only, for example, physical or bodily injury. Gordon interprets Locke’s principle broadly to encompass, for example, the economic loss a song composer could experience when unauthorized copying reduces her royalties. I believe this broad interpretation of Locke’s “no-harm” principle is wrong, both descriptively and normatively. Descriptively, Locke did not intend his “no-harm” principle to foreclose the imposition of mere economic loss alone. If he had, then his mixing-labor justification for a laborer’s natural right in the fruits of her labors would have been entirely unnecessary. As long as I am not a thief, the mere fact that a possession has value to me would be sufficient to give me a natural entitlement to the possession that all others must respect. Even if I expended no labor at all in gathering what I possess, still my possessions have value to me. Under Gordon’s broad interpretation of “harm,” nothing more would be required. Under Gordon’s interpretation, Locke’s attempt to justify a natural right of property based on mixing labor with something in the commons becomes so much wasted ink.^39 Yet that is precisely where Locke began in Chapter Five of his second treatise, entitled “Of Property,” in which he explained how individuals come to own things.^40 In contrast, Locke articulated the “no-harm” principle in Chapter Two, entitled “Of the State of Nature,” in formalizing his idealized state of nature.^41 He did not reference it again in Chapter Five when explaining the origins of property. Moreover, Locke’s phrasing of the “no-harm” principle emphasized the tangible: “[N]o one ought to harm another in his Life, Health, Liberty, or Possessions.”^42 That language readily encompasses theft of a tangible in my possession, but it is not so easily read to encompass the loss of expected future income. Moreover, when Locke was writing—and even today— not all forms of harm were legally actionable. If an individual asks one person on a date rather than another, disappointing the latter, that action inflicts harm, at least in the literal and ordinary sense of the word.^43 Yet no one would contend that such a choice violates natural law. It seems unlikely that Locke intended to describe a state of nature—even an idealized state of nature—in which we would have to avoid inflicting harm of any sort on one another. Rather, Locke likely intended his no-harm principle to encompass only a prohibition on physical or tangible harms. Normatively, Gordon’s broad definition of harm is even more problematic. If copying equals theft because it can reduce an author’s expected stream of income, then competing must equal theft for the same reason. Assume, for example, that I devote my labor to creating a successful private grammar school, and that it is the only one in the area. A competitor shows up, forces me to reduce my prices, and takes half my students. By Gordon’s definition of harm, I have experienced harm. Should a monopolist therefore have the natural right to prevent competitors from entering its market? The answer to that question has to be no. Even in Locke’s day, the principle damnum absque injuria (“harm without legal injury”) was already well established. Under this principle, harm alone does not establish legal injury. Courts have applied the principle in a variety of circumstances over the centuries. For our purposes here, one of the doctrine’s earliest applications established that a competitor’s decision to enter a market is not legally actionable despite the economic losses or harm it can do to an existing business. In the English common law, the Gloucester Grammar School Case^44 established the right to compete despite the economic harm it might do to an established business in 1410,^45 more than two centuries before Locke wrote his treatise. Even if the new competitor drives the old entirely out of business, the resulting economic harm to the preexisting business is not actionable. Yet Gordon’s broad interpretation of Locke’s “no-harm” principle would seem to overturn this result. In Gordon’s analysis, a songwriter who labors to create music “for the purpose of feeding herself by selling the royalties . . . can be harmed by a bootleg copyist” in a way that justifies a natural right to prohibit the unauthorized copying.^46 But that same reasoning would justify a similar natural right for the monopolist. After all, a monopolist who builds a business to feed herself on the profits she earns can be just as severely harmed in terms of the magnitude of the expected profits lost by a would-be competitor’s decision to enter her market as the songwriter facing a bootleg copyist. It is tempting, of course, to find a way to use Locke’s language to rationalize different outcomes between copying and competing. We know—or at least strongly believe—that the right to prohibit unauthorized copying, at least in some circumstances, is welfare-enhancing but that a right to prohibit competitive entry generally would radically reduce social welfare. Yet the question is not whether we can twist Locke’s reasoning to match our moral intuitions or consequentialist sensibilities. Rather, the question is whether Locke’s reasoning, taken as a set of first principles, leads to sensible conclusions on its own—that is, without distorting his reasoning. To be fair, although not citing the damnum absque injuria principle directly, Gordon acknowledged that not all harm would be actionable under Locke’s analysis. In her interpretation, Locke would limit the harms that establish a natural-rights claim to “unjustified or wrongful harm.”^47 To define what harms would be unjustified or wrongful, Gordon turned to Locke’s explanation for why the actions of a stranger who takes the apple that another has labored to gather are wrongful: “The stranger . . . desired the benefit of another’s Pains, which he had no right to.”^48 In Gordon’s view, the stranger’s actions inflict wrongful harm because he was taking the apples, rather than gathering his own, “only to save his labor.”^49 As such, the stranger’s actions cannot be justified. “[H]e [merely] prefers his own welfare over the gatherer’s. . . . [H]e commits a fundamental wrong when he uses another solely as a means toward his own welfare.”^50 As a result, in Gordon’s view, whatever the outer limits of a “no-harm” principle, it is sufficient to “create against such strangers a property right in the gatherer.”^51 She then extended the wrongful-harm concept to the copyright context: “Similarly, someone who creates an intangible has moral rights against noncreative copyists who copy purely from commercial motivation if, like the stranger who takes the apples, their sole aim is to substitute another’s efforts for their own.”^52 Gordon thus attempts to focus on harm resulting from free riding on another’s labor. If you use the labor of another instead of your own without paying, then the resulting harm is wrongful. Unfortunately, while this approach may exclude the harm done the disappointed suitor, it fails to adequately preserve room for many desirable forms of competition. While it would, for example, exclude the harm a new market entrant does to a monopolist where the new entrant competes entirely independently and without benefiting from the labor of the established business in any way, such competition, if it exists at all, is relatively rare. Competition generally involves a considerable degree of copying, imitation, and free riding. In the Gloucester Grammar School Case itself, for example, there are any number of ways in which the new school benefited from the labor of those who had established the preexisting school.^53 The curriculum, the location, the knowledge that there was a demand for schools at all, and even the new competitor’s skills as a teacher all undoubtedly benefited from the labors of those who established the preexisting school. It was not mere coincidence that led the new school to locate just in front of the old. The central difficulty with Gordon’s attempt to confine her overbroad definition of harm by focusing on whether the second-comer benefits from another’s labor is that not all copying, externalities, or free riding are socially harmful. In fact, the vast majority of unauthorized copying is socially beneficial. In the 1920s, Kellogg made its shredded wheat to look and taste like Nabisco’s because Nabisco’s success was precisely what Kellogg was trying to duplicate.^54 In the 1980s, Ford, Honda, and Toyota started making minivans that resembled Chrysler’s precisely because they were trying to copy Chrysler’s success.^55 As discussed, this type of scenario represents the best test of whether a natural-rights framework is a true alternative to utilitarian balancing. Can it justify an outcome contrary to our moral intuitions or a utilitarian balancing? Gordon does not use Locke to argue against these and other procompetitive outcomes. In my view, a Lockean argument for copyright would prove unpersuasive if, to justify copyright, Locke’s reasoning must also justify a monopolist’s right to bar competitive entry. To avoid this difficulty, Gordon might alternatively use some of the wiggle room she included in her account of “wrongful” harm. With respect to an intangible, she defined her natural right against copying to extend only to: (i) the “noncreative copyist[],” (ii) who acts “purely from commercial motivation,” (iii) whose “sole aim,” (iv) is “to substitute another’s efforts for their own.”^56 Perhaps Gordon would excuse the harm that the competing schoolmaster caused on the grounds that he did most of his own labor. She might argue that any benefit he gained from the labor of those who established the preexisting school was merely incidental. Unfortunately, this either is untrue or unduly stretches the meaning of “incidental.” But for the preexisting school, the former teacher would likely not have opened a new school at the time, in the location, and with the curriculum he did. She might alternatively excuse the wrong on the grounds that those who established the first school did not have a natural right to those intangibles from which the second headmaster benefited. Perhaps the curriculum, knowledge of the demand for such schools, or association of the school’s location with education are the sort of intangibles that may not receive protection as a result of the limits on ownership that Locke’s “enough-and-as-good” proviso imposes. Gordon’s interpretation of Locke might therefore leave room for competition that entails some copying to fall outside the scope of the first market entrant’s natural rights. However, this sort of forced tinkering at the back end to limit the harm Gordon has done at the front end misses the key point: neither copying nor competing is stealing. The financial loss may be of similar magnitude but the harm is different in kind even if the same in degree. An expectation of future revenue for a monopolist or of royalties for a songwriter is always contingent in a way that possession of an apple is not. For the songwriter, the same loss in royalties that she may experience as a result of bootlegging may also occur if consumer taste changes or a better song comes along. For this and other reasons, rents that I expect to collect tomorrow are simply not the same thing as rents that I have already collected and put in the bank (or in my mattress) today. That is part of the reason why possession plays such a key role in establishing ownership. As the law has long recognized, capturing the fox establishes ownership.^57 Pursuing the fox does not, even with a strong likelihood of a successful hunt. Unfortunately, Gordon did not address these issues directly. As a result, whether and, if so how, she would reconcile the Gloucester Grammar School Case or other applications of the principle damnum absque injuria with her interpretation of Locke is unclear. The one thing that is clear from Gordon’s analysis, however, is that it would not be enough to assert that the harm to the existing school is justified and hence permissible because of the benefits of competition. As previously discussed, Gordon affirmatively rejected the notion that the public had a natural right to competitive markets.^58 Thus, it would not be enough for Gordon’s Lockean perspective to show that society is better off with competitive markets. At the conference, Professor Gordon offered two possibilities: First, she suggested that sufficiently adverse consequences could override deontological reasoning. However, this merely raises questions as to (i) how adverse is sufficient, and to (ii) whether the supposed deontological reasoning is really a viable alternative to consequential analysis at all. Second, she suggested that where free-riding on labor occurs yet consequentialism overrides labor’s entitlement, that compensation is warranted. But new market entrants do not capture sufficient rents when they enter a formerly monopolistic market to compensate the former monopolist for its losses. And if we force consumers to do it, then we have lost the benefits of competition. In my view, rather than attempt to use sophistry to work around the problems Gordon’s overbroad interpretation of the no-harm principle creates, we should simply reject an overbroad interpretation directly. As Gordon herself recognized, “a strict no-harm rule merely enshrines a status quo, so that Locke’s natural right against harm is unpersuasively overbroad.”^59 Yet Locke’s “no-harm” principle becomes unpersuasive precisely because Gordon reads Locke as prohibiting harm of any sort, whether physical, psychological, emotional, or economic. However, if we read harm narrowly and interpret Locke’s no-harm principle to prohibit only physical or bodily injury to another in a state of nature, this problem largely disappears. As a descriptive and normative account of plausible duties in an idealized state of nature, a duty not to injure another physically is far more compelling. Unfortunately, a duty not to injure another physically cannot justify copyright as natural law. Nor can it justify, on its own, a natural-right entitlement to the fruits of my labor. A no-physical-harm principle can, however, support and reinforce Locke’s starting point for a natural-right entitlement to the fruits of labor: “[E]very Man has a Property in his own Person.”^60 From this starting point, Locke then continued: because he owns his body, “[t]he Labour of his Body, and the Work of his Hands, we may say, are properly his.”^61 He then concludes: “Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property.”^62 This mixing theory, not the no-harm principle itself, is Locke’s basis for recognizing a property in the fruits of one’s labor. Moving beyond Gordon’s analysis, the question is whether this mixing theory can justify copyright. It cannot. As Nozick and others have recognized, taking the theory literally is not without its difficulties.^63 Nevertheless, even if we accept the mixing theory as justifying a prohibition against theft, it is a category error to suggest that it justifies a prohibition against copying. Locke’s theory explains how an individual comes to hold an initial property interest in a thing, whether a novel or an apple. Yet this initial ownership interest is not the key issue in copyright. Even if we assume for the sake of argument that Locke’s mixing theory can justify a laborer’s full and despotic dominion over a novel she has written, equal in every extent to the laborer’s property in an apple she has gathered, that would be insufficient to justify copyright. Copyright is not primarily about this initial ownership at all. Copyright matters only after the novel has been shared with others. In other words, copyright is not about initial ownership but about retained rights after the physical copy of the work is transferred to or shared with another. Locke says nothing about why the retained rights of an author should differ from those of a farmer after their respective fruits are sold to or shared with another. Again, let us assume that Locke is correct: When I pick an apple, my labor gives me an initial property in that apple. Moreover, that property gives me full dominion over the apple. I have a natural right to prevent another from eating the apple, from making a pie from it, or from using its seeds to grow her own tree. I have all the rights. However, once I voluntarily sell or give the apple to another, nothing in Locke’s reasoning suggests that I have a retained a right to prevent the other from (i) eating the apple; (ii) preparing a derivative work, such as apple pie or cider, using the apple; or (iii) attempting to reproduce the apple by using its seeds to grow her own tree. Of course, a farmer may, by contract, extract from the buyer promises on these issues. In the absence of such an express contract, however, we presume that the sale of the apple transfers to the purchaser the full bundle of whatever initial property I may have had in the apple as a result of my labor. Locke articulates no reason why we should not presume the same for the novel. Again accepting Locke’s mixing premise, when I first write my novel my labor gives me an initial property in that first copy. Moreover, so long as I do not share my work with anyone, I have full and absolute dominion over my draft. No one else can read, copy, or prepare a derivative work with it for a very simple reason: no one else has seen it. In that sense, authoring an original and expressive work can, purely as a practical matter, give me property in my novel as a matter of true natural law. Like gravity, so long as no one else sees my novel, my natural rights in my novel do not depend on human interpretation or judicial enforcement. So long as no one else has seen it, no one else is physically able to copy it. This natural right is not copyright, however. If no one else has seen, heard, or otherwise experienced my work, copyright remains entirely unnecessary. Rather, copyright controls what another can do with a copy of my novel even after I voluntarily share my work with her. As in the apple case, I could extract from the buyer express promises not to copy or prepare derivative works based on the novel. In the absence of such an express contract, however, treating these two types of labor similarly suggests that we should presume that, just as with the apple, by voluntarily parting with the novel, I have transferred to the purchaser the full bundle of whatever initial property I may have had in the novel. Copyright law in fact followed this approach, or something very much like it,^64 for centuries under what came to be known as the Pushman presumption.^65 Under that presumption, transferring possession of a copy of the work before publication transferred any common law copyright in the work as well. Congress formally abrogated the presumption in the Copyright Act of 1976.^66 As a result, copyright law today expressly separates ownership of the work from ownership of the copy.^67 It reinforces this separation by specifically providing that the transfer of a physical copy does not necessarily transfer the copyright in the work.^68 We should not, however, read these recent developments retroactively into Locke’s analysis or pretend that Locke’s analysis somehow foresaw and incorporated these later developments. As it was published in 1690, Locke’s mixing-labor justification for property would lead us to treat the farmer’s and the author’s labor similarly. If we accept Locke’s approach, their labor may give both an initial property in the respective fruits of their labor. Yet treating them similarly also means that when either voluntarily transfers that initial property, at least in the absence of an express contract to the contrary, that transfer fully conveys to the purchaser whatever initial property the farmer or the author had. As a result, even if we accept for the sake of argument that Locke’s mixing-labor account justifies an initial property in the fruits of an individual’s labors, whether apple or novel, it provides no basis for justifying retained property in those fruits after the individual voluntarily parts with possession of them. It certainly provides no basis for providing the author with a set of retained rights different from the set provided the farmer. Attempting to use Locke to justify a natural right to control what is done with an original and expressive work of authorship after the author voluntarily parts with possession thus represents a category error. Locke’s mixing-labor rationale attempted to provide a justification for initial ownership, not retained rights after voluntary transfer. If any part of Locke’s analysis could justify copyright, it would be his secondary justification for labor-based property: “For ‘tis Labour indeed that puts the difference of value on every thing . . . .”^69 In policy debates over copyright, this is the point for which Locke is most commonly invoked. As one congressional witness on copyright issues put it: “Our American society is founded on the principle that the one who creates something of value is entitled to enjoy the fruits of his labor.”^70 Because a novel can be copied more readily and perfectly than an apple, the author and the novel may require a different set of retained rights after the author transfers possession in order to ensure that these two forms of labor receive comparable and, in that sense, fair returns on their labor. Yet in articulating this value-based or just-deserts proposition, Locke necessarily moves from the deontological to the consequentialist. Value is not a factual issue but a normative one. In a market economy, value has not one determinable cause but an almost uncountable number. If we say that the value of a novel is the sum of the prices individual consumers are willing to pay for copies in the marketplace,^71 that value is not created by the person(s) copyright law identifies as the author or copyright owner alone. To create the first copy of the novel, the author must use paper and ink others have created, write in a language others have invented, and tell a story invariably influenced by stories that have gone before. Even after the author and these others cause the first copy to come into existence, the novel must then be distributed using printing presses or computers that others have created and that still others operate. Finally, in a competitive market economy, the price a consumer will pay for a copy of a book depends on how much the consumer has left after she pays for food, shelter, clothing, and all of the other things she needs more than the book. In a market economy, then, the value of a thing has not one cause but many.^72 It is easy to overlook these other factual causes, however, and ignore the normative aspect of market value. Perhaps because we are focused on the copyright issues, we may believe that we only need to focus on the questions of adequate compensation for, and the rules necessary to achieve such compensation for, the authors. Or perhaps we too readily assume that the market will take care of ensuring adequate compensation for all of the other causes of the novel and its value. But if we are trying to allocate a novel’s value through an alternative set of first principles, we cannot use a Lockean value-based return for authors and relegate every other laborer who plays a but-for role in the creation of that value to the cost-based return of competitive markets.^73 If we accept a cost-based return for every other form of labor in our society and our goal is to ensure authorship-as-labor a comparable, and in that sense fair, return on the value to which they contribute, then authors too must receive a cost-based return for their efforts. While it may be that some degree of copyright protection is necessary to ensure authors such a fair, comparable, and cost-based return, that is an empirical and consequentialist question. It is not one that Locke can or did answer. As a result, neither Locke’s reasoning nor Gordon’s interpretation of it justifies a natural right to prohibit the unauthorized copying of an original work of authorship. Turning Natural Rights on Its Head: A Natural Right to Copy =========================================================== I believe that we can go further, however. Rather than justify copyright as natural law, Locke’s framework implicitly and necessarily recognizes a natural right to copy. As a dedicated consequentialist, I hesitate to lend any support to the suggestion that Locke’s reasoning contains anything of value. Nevertheless, if we are going to use the rhetoric of natural rights to enshrine a set of presumptively correct, pregovernmental rights, then a natural right to copy comes far closer to optimal than a natural right to prohibit copying absent permission. As discussed at the outset, the abilities to imitate, copy, and learn are probably the most important intrinsic skills with which humans are born. The right to use these abilities is the foundation of our civilization. And, as it turns out, a natural right to copy is implicit in Locke’s framework. As Gordon correctly identified in her analysis, the “enough-and-as-good” proviso is central to Locke’s framework.^74 Although I believe that her interpretation of it as applied to original works of authorship is highly contestable,^75 Locke used the proviso to help his mixing-labor theory provide a satisfactory alternative to unanimous consent for moving an item from common to private ownership. The puzzle Locke set for himself was simple: If all things of this Earth are initially owned in common, how can they come to be privately owned?^76 One possible solution to this puzzle was unanimous consent. If we all agreed to transfer a given item from common to private ownership, that would be sufficient and satisfactory to transfer ownership. Locke, however, found this mechanism unworkable and, therefore, sought to offer another.^77 To that end, he conceived and articulated his mixing-labor account: My body is my own; therefore, my labor is my own. When I mix my labor with something in the commons, I make that something my own as well. The obvious objection to Locke’s mixing-labor approach is that it might allow one person to come to own too much.^78 To address that objection, Locke offered, inter alia, the “enough and as good” proviso.^79 Mixing labor could move a thing from commonly to privately owned, but only if there was “enough and as good” of the thing left for others. Taken together, the mixing-labor justification for acquiring property and the “enough and as good” limitation provided a more defensible justification for transferring a thing from common to private ownership. As Nozick has noted, taken together, the two come very close to and arguably represent a Pareto-optimality standard.^80 When satisfied, these two requirements recognize the private property of the laborer and thus improve the laborer’s position. Yet by ensuring that there is enough and as good left for others, that recognition improves the laborer’s position without harming anyone else. Thus, for land, mixing one’s labor with the land established a basis for ownership: “As much Land as a Man Tills, Plants, Improves, Cultivates, and can use the Product of, so much is his Property.”^81 Yet recognizing that ownership harmed no other so long as there was enough and as good leftover, Locke continued, “Nor was this appropriation of any parcel of Land, by improving it, any prejudice to any other Man, since there was still enough, and as good left; and more than the yet unprovided could use.”^82 Similarly, a person could obtain private ownership of apples and acorns by picking them in the forest.^83 So long as there was enough and as good left for others to pick, recognizing the private ownership of the picker would benefit the picker and leave no one else worse off. Or a person could use a pitcher to gather water from a fountain and thereby obtain private ownership of the water so gathered.^84 Again, so long as there was enough and as good left for others to drink, recognizing such private ownership would make the pitcher-filler better off and leave no one else worse off. The “enough and as good” proviso is thus central to Locke’s justification for private property. It ensures that each acquisition of property satisfies the Pareto-optimality standard. That helps Locke’s framework coincide with our moral intuitions and makes his framework morally defensible. What has gone unrecognized however is that the “enough and as good” proviso implicitly relies on the existence of an underlying natural right to copy. The proviso insists that others are not harmed by the recognition of one farmer’s private ownership of his land because there is enough and as good land left for the others. As a result, the others can farm some of the remaining land for themselves. Similarly, others are not harmed by recognizing private ownership of gathered acorns or apples because there are enough acorns and apples left for the others. As a result, the others can gather some of the remaining acorns and apples for themselves. And others are not harmed by recognizing ownership of the water that one person has collected in their pitcher because there is enough water left for the others. As a result, the others can use their own pitchers to collect water for themselves. Yet how do the others know to farm the land, to gather acorns or apples, or to collect water in a pitcher? These are not intrinsic skills or knowledge with which humans are born. All of this behavior must be learned. And in this context, learning means copying: we observe others doing the behavior at issue and imitate their actions. Thus, Locke’s framework for recognizing a natural right to property implicitly rests on the existence of an underlying natural right to copy. Without an underlying natural right to copy, the promise of Pareto optimality that the “enough and as good” proviso makes is empty. If that promise is empty, then the persuasive force of Locke’s mixing-labor account for initial property ownership is lost. Hard Cases, Easy Cases, and Natural-Rights Rhetoric =================================================== At this point, some die-hard proponents of a natural-rights justification for copyright will remain unconvinced. Of course, they will insist, there should be no legal prohibition on copying basic life skills or laws, such as the Ten Commandments. These are easy cases. Whether we deal with them by denying them copyright protection at the outset, by narrowing the scope of copyright at the back end, or by relying on some notion of implied consent,^85 no one contends that copyright should go so far. Yet that does not mean, they would continue, that there are not also easy cases on the other side. File sharing, for example, where a consumer obtains an unauthorized copy of a song for free instead of purchasing the song in the market, might represent such an easy case. As Gordon argued, copying sometimes has nearly the same consequences as theft and so should be recognized as such.^86 While tempting, the belief that we can readily separate desirable from undesirable copying with a set of simple, natural-rights heuristics is mistaken. First, hidden consequentialist impulses drive our intuitions about easy and hard cases. Everyone should have the right to copy the basic life skills they observe around them or the laws of society. Doing otherwise would prove unworkable and unwise. But it is those consequences that enable us to recognize those cases as easy ones for a right to copy. Second, as history itself demonstrates, the line between permissible and impermissible copying will move as technology and market structures change. What may seem an easy case in favor of copyright today, such as exact copying to avoid a market purchase, would not have been an easy case prior to the printing-press era, when each manuscript had to be laboriously copied by hand. Third, our intuitions as to whether a case belongs on one side or the other of the line between permissible and impermissible copying may prove surprisingly wrong when tested empirically. Consider file sharing and music as an example. Copyright protection for sound recordings in the United States began in 1972 and ended, in some ways, with the rise of file sharing in 1999.^87 We can trace the rise and fall of copyright protection for sound recordings in the rise and fall of revenue from sales of recorded music. In the precopyright 1960s, revenue from such sales in constant 2013 dollars (“$2013”) began at under four billion dollars annually in the early 1960s.^88 With the recognition of the sound-recording copyright, sales rose more or less steadily through the 1970s and 1980s to a peak of over twenty billion dollars ($2013) in 1999.^89 Then, with the introduction of file sharing, sales of recorded music began to fall, amounting to less than seven billion dollars ($2013) in 2014.^90 While there has been much debate over whether file sharing caused, in whole or in part, this decline in revenue, the real question from a consequentialist perspective is whether this rise and fall in revenue drives a parallel rise and fall in the output of music. From a consequentialist perspective, copyright’s fundamental premise is that more protection yields more revenue for copyright owners, and more revenue for copyright owners leads to more and better original works.^91 If copyright’s premise is true, then we should be able to find a steady improvement in the quantity and quality of music output from the 1960s through the 1990s. With the introduction of file sharing in 1999, a steady decline should then begin. Moreover, this should be an easy test for copyright to pass. The change in revenue over this time period was not small and gradual, but large and sharp. In constant dollar terms—that is, after accounting for inflation—revenue from sales of recorded music in 1999 were more than five times the revenue in 1961, and nearly three times the 2014 revenue. In the light of these very sharp changes in annual revenue, we should see corresponding and obvious changes in popular music output in both quantity and quality—or at least we should see these changes if copyright’s fundamental premise is true. Yet copyright’s fundamental premise did not hold for the U.S. recording industry over the last six decades.^92 Using a variety of measures of music output,^93 I searched for a correlation between revenue and music output. In hundreds of regressions, I found no support for copyright’s fundamental premise.^94 No matter the measure of music output I used, there was no positive and statistically significant correlation between increased revenue for the recording industry in one year and better or more music the next.^95 To the contrary, where I found a statistically significant correlation between revenue and music output, the correlation was negative. More revenue in one year led to less and lower quality music the next.^96 The problem with simple intuitions, whether of the natural-rights variety or of naïve consequentialism, is that the economy is a complex and, to some extent, chaotic system.^97 The notion that paying more money to the recording industry in return for popular music will yield more and better music seems simple, intuitive, and straightforward. Too bad it is wrong. Thus, even seemingly easy cases may, on closer inspection, turn out to be more difficult to place on the right side of the permissible-impermissible copying line than first appears. Natural rights rhetoric is simply too blunt a tool to do so effectively and consistently. The Perils of an Unduly Narrow Focus ==================================== When we work primarily or exclusively in copyright, it is easy to mistake the rules in copyright for the rules that apply generally. But copyright is the exception, not the rule. It may be that we can justify a prohibition on unauthorized copying within a very narrow sphere of human activity, i.e., for specific products of human creativity against a very narrow range of imitations. Nothing could be more dangerous to human welfare, however, than a general prohibition on copying or to broadly equate copying with theft. In this regard, the notion that copyright represents some natural law, even in an idealized state of nature, is extremely dangerous. If recognized as natural law, the right to prohibit copying can too readily become a threat to the vast array of imitation, copying, and learning that is desirable and, indeed, essential to a well-functioning society and a thriving culture. In the end, the foundation of our civilization is not creativity but copying. If we are to enshrine any right as natural, it should be the right to copy. Notes ===== ^1: O.W. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 468 (1897) (“Imitation is a necessity of human nature . . . . Most of the things we do, we do for no better reason than that our fathers have done them or that our neighbors do them, and the same is true of a larger part than we suspect of what we think.”). ^2: E.g., Letter from Isaac Newton to Robert Hooke (Feb. 5, 1675) (on file with the Historical Soc’y of Pa.). ^3: As R.H. Coase has suggested, in a world of perfect information and no transaction costs, any set of legal rules will yield similar market outcomes. See R.H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1, 10 (1960) (“With costless market transactions, the decision of the courts concerning liability for damage would be without effect on the allocation of resources.”). In such a world, different legal rules would have only distributional consequences. ^4: 102 YALE L.J. 1533 (1993). ^5: See id. at 1544-48; id. at 1547-48 (“Most important from the perspective of the laborer’s claim, however, is the laborer’s purposiveness. . . . [I]f someone creates music . . . for the purpose of feeding herself by selling the royalties to it, she can be harmed by a bootleg copyist as severely as if he took the physical sheet music out of her den . . . .”); infra notes 20-31 and accompanying text. ^6: See id. at 1560-70. ^7: See id. at 1583-605. ^8: See id. at 1592-604. ^9: See id. at 1548. ^10: 780 F. Supp. 182 (S.D.N.Y. 1991). ^11: Id. at 183. ^12: Id. (quoting Exodus 20:15); see VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 890 (9th Cir. 2016) (Silverman, J., dissenting) (“True, Get a license or do not sample doesn’t carry the same divine force as Thou Shalt Not Steal, but it’s the same basic idea.”); All Nations Music v. Christian Family Network, Inc., 989 F. Supp. 863, 864 (W.D. Mich. 1997) (noting that publicly performing musical works without license also violated Seventh Commandment). ^13: Exodus 32:19. ^14: Id. 34:27-28. ^15: JOHN LOCKE, An Essay Concerning the True Original, Extent, and End of Civil Government, in TWO TREATISES OF GOVERNMENT 265 (Peter Laslett ed., Cambridge Univ. Press student ed. 1988) (1690). ^16: Id. at 269. ^17: Id. at 271. ^18: Id. ^19: Id. at 287. ^20: Id. at 267-68. ^21: See id. at 269-71. ^22: See id. at 269. ^23: IMMANUEL KANT, GROUNDWORK OF THE METAPHYSICS OF MORALS 15 (Mary Gregor ed. & trans., Cambridge Univ. Press 1998) (1785) (using example of false promise to illustrate why lying when it is convenient cannot be universal maxim); see EDWIN W. PATTERSON, JURISPRUDENCE: MEN AND IDEAS OF THE LAW 380 (1953). ^24: In saying this, I recognize the intractable problem associated with making interpersonal utility comparisons in utilitarian analysis. That is not the problem to which I am referring. Rather, the problem I see most often with the fairness or natural-rights arguments is that they encourage a form of myopia where only fairness to some, and in particular only the gains or losses to the natural-rights holder, matter. ^25: Because Locke’s reasoning leaves plenty of wiggle room to import our views into natural rights, the progression might go: “I am a good person; I believe in broad copyright; therefore, broad copyright is a natural right.” Or it can just as easily go: “I am a good person; I believe in narrow copyright; therefore, narrow copyright is a natural right.” ^26: Locke articulated the no-harm principle in Chapter Two of his second treatise: “The State of Nature has a Law of Nature to govern it, which obliges every one: And Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions.” LOCKE, supra note 15, at 271. ^27: As Locke stated: Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property. It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it, that excludes the common right of other Men. Id. at 287-88. ^28: Gordon, supra note 4, at 1544-45. ^29: Id. ^30: Id. at 1545. ^31: Id. at 1548. ^32: Id. at 1548-49. ^33: Id. ^34: Id. at 1549 (“Unlike physical takings, then, copying produces a positive short-term allocative effect which could outweigh its long-term negative incentive effects on future creators. Does this difference in potential economic effect justify the harm caused by the copyist stranger in a way that the harm caused by apple-taking stranger cannot be justified? From a Lockean perspective, it does not.” (footnote omitted)). ^35: Id. at 1548 n.86. ^36: See id. at 1548-49. ^37: Id. at 1549. ^38: See id. at 1560-78. ^39: See supra note 27 (quoting Locke’s famous mixing-labor justification for property). ^40: LOCKE, supra note 15, at 285. ^41: See supra note 26 and accompanying text. ^42: LOCKE, supra note 15, at 271. ^43: I recognize that there are games we can play with baselines to distinguish between inflicting harm and failing to bestow a benefit. I don’t find the games of much interest, but I acknowledge that they can be played and have discussed them in another context. See generally Glynn S. Lunney, Jr., Responsibility, Causation, and the Harm-Benefit Line in Takings Jurisprudence, 6 FORDHAM ENVTL. L.J. 433 (1995). ^44: YB 11 Hen. 4, fol. 47, Hil., pl. 21 (1410). ^45: Id. This was an action by the two masters of the grammar school against the defendant for establishing a rival school whereby their receipts were reduced. The court held that the action would not lie. For another early case involving competition, see YB 22 Hen. 6, fol. 4, Mich., pl. 23 (1443) (Eng.). ^46: Gordon, supra note 4, at 1548. ^47: Id. at 1545. ^48: Id. (quoting LOCKE, supra note 15, at 291). ^49: Id. at 1546. ^50: Id. ^51: Id. ^52: Id. ^53: YB 11 Hen. 4, fol. 47, Hil., pl. 21 (1410) (Eng.). ^54: See Kellogg Co. v. Nat’l Biscuit Co., 305 U.S. 111, 122 (1938) (“Kellogg Company is undoubtedly sharing in the goodwill of the article known as ‘Shredded Wheat’; and thus is sharing in a market which was created by the skill and judgment of plaintiff’s predecessor and has been widely extended by vast expenditures in advertising persistently made. But that is not unfair. Sharing in the goodwill of an article unprotected by patent or trade-mark is the exercise of a right possessed by all—and in the free exercise of which the consuming public is deeply interested.”). ^55: See Richard Stepler, New-Generation Mini-Vans, POPULAR SCI., Feb. 1985, at 74, 75 (describing Chrysler-led introduction of minivans into U.S. market in early 1980s). ^56: Gordon, supra note 4, at 1546. ^57: Pierson v. Post, 3 Cai. 175, 178 (N.Y. Sup. Ct. 1805) (“[M]ere pursuit gave Post no legal right to the fox, but that he became the property of Pierson, who intercepted and killed him.”). ^58: See supra Part II. ^59: Gordon, supra note 4, at 1545. ^60: LOCKE, supra note 15, at 287. ^61: Id. at 287-88. ^62: Id. at 288. ^63: Nozick’s reductio ad absurdum critique is particularly memorable: “If I own a can of tomato juice and spill it in the sea so that its molecules (made radioactive, so I can check this) mingle evenly throughout the sea, do I thereby come to own the sea, or have I foolishly dissipated my tomato juice?” ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 175 (1974); see Jeremy Waldron, Two Worries About Mixing One’s Labour, 33 PHIL. Q. 37, 40, 43 (1983); id. at 37 (“In this paper I will argue that the idea of the mixing of labour is fundamentally incoherent and that therefore it can add nothing at all, apart from an oddly worded metaphor, to whatever other arguments Locke wants to put forward . . . .”). ^64: Under a purely physical right of control, the owner of each copy of a work would have the exclusive right to control the copying of that copy. No one would control the right to control the copying of the work in the abstract. In other words, there would be no common law copyright as such. ^65: See Pushman v. N.Y. Graphic Soc’y, Inc., 39 N.E.2d 249, 251 (N.Y. 1942) (holding that, at common law, transfer of ownership of sole copy of a work presumptively transferred ownership of common law copyright in the work as well); see also Parton v. Prang, 18 F. Cas. 1273, 1277-78 (C.C.D. Mass. 1872) (No. 10,784) (same). ^66: Pub. No. L. 94-553, § 202, 90 Stat. 2541, 2568-69 (codified as amended at 17 U.S.C. (2018)). ^67: 17 U.S.C. § 202 (2018). ^68: Id. ^69: LOCKE, supra note 15, at 296. ^70: Copyright Law Revision: Hearings on H.R. 4347, H.R. 5680, H.R. 6831, H.R. 6835 Before the Subcomm. No. 3 of the H. Comm. on the Judiciary, 89th Cong. 100 (1966) (statement of Elizabeth Janeway, President, Authors Guild). ^71: See, e.g., 1 PAUL GOLDSTEIN, COPYRIGHT § 1.14.2.4 (2d ed. 1996) (stating that copyright’s remedies are designed to “enable copyright owners to capture the value of their works”); Interview with Former Register of Copyrights David Ladd, 29 PAT. TRADEMARK & COPYRIGHT J. (BNA) 334, 337 (1985) (stating that copyright owner is entitled to “compensation . . . based upon what the public is willing to pay” for every use of copyrighted work). ^72: See Edwin C. Hettinger, Justifying Intellectual Property, 18 PHIL. & PUB. AFF. 31, 38 (1989) (“Market value is a socially created phenomenon . . . .”); Glynn S. Lunney, Jr., Reexamining Copyright’s Incentives-Access Paradigm, 49 VAND. L. REV. 483, 574 (1996) (“Whoever is responsible, factually, for creating the physical product itself, the value of the product in our market economy will always be joint because it depends entirely on whether consumers have any ‘surplus’ resources with which to purchase the product.” (footnote omitted)). ^73: See Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281, 286 (1970) (“In fact, why is the author’s moral claim to be paid more than his persuasion cost any stronger than the claim of others also responsible for producing his book: the publisher, the printer, the bookseller, and those responsible for the literature of the past that inspired him?”). ^74: Gordon, supra note 4, at 1562. ^75: Personally, I agree with both Gordon’s description and application of the proviso in the copyright context. Yet I acknowledge that her interpretation of the proviso is contestable at both the general and specific levels. It is straightforward to insist that the proviso means that a later author may not use the copyright on her work to take some preexisting aspect of literature out of the public domain. Yet Gordon used the proviso to go much further. She insisted that once a person has been exposed to certain aspects of an original and culturally influential work, it would be impossible for her to put those aspects entirely from her mind when she sets out to write her own stories. Id. at 1570. In Gordon’s view, the “enough and as good” proviso would bar copyright from extending to those aspects of a work, even if both original and novel. Id. Does that mean an airline should not have a right to exclude coach passengers from business class because, as my wife said after recently flying to Europe in business class, she “can’t go back to coach”? ^76: LOCKE, supra note 15, at 289 (“Though the Water running in the Fountain be every ones, yet who can doubt, but that in the Pitcher is his only who drew it out?”). ^77: See id. at 288-89. ^78: Id. at 290. ^79: As Gordon noted, Locke also included other limitations, such as a prohibition on taking so much that it spoils or is wasted. See Gordon, supra note 4, at 1582. ^80: See NOZICK, supra note 63, at 178-82; Hettinger, supra note 72, at 43-45 (interpreting proviso similarly); Herman T. Tavani, Locke, Intellectual Property Rights, and the Information Commons, 7 ETHICS & INFO. TECH. 87, 95 (2005) (same). ^81: LOCKE, supra note 15, at 290. ^82: Id. at 291. ^83: Id. at 288. ^84: Id. at 289. ^85: As discussed, the problems with explicit or implicit consent are what led Locke to his mixing theory. Rather than relying on some constructed notion of consent to make the commonly owned water a person gathers in her pitcher into private property, Locke relied on the mixing of the person’s labor. In the same way, rather than relying on some fictional consent to permit copying life skills or the Ten Commandments, we should rely on the fact of copying itself. ^86: Gordon, supra note 4, at 1548. ^87: I have presented this story more completely elsewhere. See GLYNN LUNNEY, COPYRIGHT’S EXCESS: MONEY AND MUSIC IN THE US RECORDING INDUSTRY 59-83 (2018). ^88: Id. at 68. ^89: Id. at 68-69. ^90: Id. at 75. ^91: Id. at 57. ^92: See generally id. at 84-156 (examining statistics showing that copyright did not increase amount or quality of music in past fifty years). ^93: These measures included: (i) SoundScan album count; (ii) Rolling Stone’s list of the 500 greatest albums of all time; (iii) unique song count on Billboard Hot 100 list for each year from 1962 to 2015; and (iv) Spotify stream count, song count, and average stream count for the top 1001 songs from 1961 to 2005 streamed worldwide in 2014. Id. at 84-121. ^94: Id. at 120-21, 155-56. ^95: Id. ^96: Id. ^97: The market for sound recordings had a strong, winner-take-all characteristic. Thus, increases in revenue were not shared evenly among all artists but instead flowed disproportionately to a veritable handful of superstars. As it turned out, vastly overpaying the superstars led them to work less. As a result, as industry revenue rose the top new artists each year released fewer Hot 100 hits as principal artists in the first ten years of their careers than the top new artists in low revenue periods. See id. at 157-92. ⁂ Original: https://www.bu.edu/bulawreview/files/2019/12/LUNNEY.pdf ⇧ /# ⇧ |
Glynn S. Lunney, Jr. |
2019 |
14047 |
70.2 |
| Why Sci-Hub Is Illegal, and What You Can Do About It |
Why Sci-Hub Is Illegal, and What You Can Do About It ==================================================== by Alexandra Elbakyan https://engineuring.wordpress.com/ Alexandra Elbakyan July 7, 2018 Original: https://engineuring.wordpress.com/2018/07/07/why-sci-hub-is-illegal-and-what-you-can-do-about-it/ Sci-Hub is oftenly presented as an illegal way to get access to paywalled research papers, and hence, in some way inferior to the other options, like: - send an email to the authors of the manuscript and ask them to send you a copy; - search Google Scholar, perhaps the paper is available somewhere; etc. Indeed, Sci-Hub emerged in 2011 to surpass these “legal” methods. Researchers were doing these for years and decades, even before email was invented: asking authors and other researchers to send them a copy of the paper. But that is a very time-consuming and slow method to read research articles. And it does not always work, especially for old papers, when authors can be retired already. And Google Scholar can search only those papers that are available online, which was, especially in 2011, a very small percentage of the papers published behind paywall. Sci-Hub emerged as a solution for immediate access to any paper behind paywall and simply because it was better than other methods listed here, it became very popular. Why is Sci-Hub considered to be illegal? ======================================== Providing free access to research papers on websites like Sci-Hub breaks so-called copyright law that was made to taboo free distribution of information on the Internet. That includes music, movies, documentaries, books, and research articles. https://en.wikipedia.org/wiki/Copyright_law copyright law Not everyone agrees that copyright law should exist in the first place. Pirate Parties emerged as a response against it: > The first Pirate Party to be established was the Pirate Party of Sweden, whose website was launched on 1 January 2006 by Rick Falkvinge. Falkvinge was inspired to found the party after he found that Swedish politicians were generally unresponsive to Sweden’s debate over changes to copyright law in 2005. When Sci-Hub became known, I thought that it will provide a good case against copyright law. When the law prevents science to develop, that law must be repealed. Nothing of that happened. Instead, Sci-Hub was quickly banished as an “illegal” solution and projects like Unpaywall emerged and started promoting themselves as a “legal” alternatives to Sci-Hub. These projects are not in fact an alternative: Sci-Hub started providing access to paywalled papers that could not be found anywhere on the Internet, because distributing them is illegal, while solutions like Unpaywall provide access to papers that are already available on the Internet, which is a huge difference. Sci-Hub always intended to be legal, and advocated for the copyright law to be repealed or changed, so that it will not prohibit the development of science. To help Sci-Hub get legal, you can support these fight, for example by joining the local Pirate Party. Letter to the Court =================== _On September 15, 2015, Elbakyan filed the following letter as Document 50 in Elsevier Inc. et al. v. Sci-Hub et al., Case No. 1:15-cv-04282-RWS, in the United States District Court for the Southern District of New York._ View the original two-page court filing. https://www.courtlistener.com/docket/4355308/50/elsevier-inc-v-sci-hub/ View the original two-page court filing. Dear Mr. Robert W. Sweet, I am writing to clarify some details on Elsevier v. Sci-Hub, Case # 15-cv-4282. I am the main operator of sci-hub.org website mentioned in the case. That is true that via sci-hub.org website anyone can download, absolutely for free, a copy of research paper published by Elsevier (Elsevier asks for 32 USD for each download). I would like to clarify the reasons behind sci-hub.org website. When I was a student in Kazakhstan university, I did not have access to any research papers. These papers I needed for my research project. Payment of 32 dollars is just insane when you need to skim or read tens or hundreds of these papers to do research. I obtained these papers by pirating them. Later I found there are lots and lots of researchers (not even students, but university researchers) just like me, especially in developing countries. They created online communities (forums) to solve this problem. I was an active participant in one of such communities in Russia. Here anyone who needs research paper, but cannot pay for it, could place a request and other members who can obtain the paper will send it for free by email. I could obtain any paper by pirating it, so I solved many requests and people always were very grateful for my help. After that, I created sci-hub.org website that simply makes this process automatic and the website immediately became popular. That is true that website collects donations, however we do not pressure anyone to send them. Elsevier, in contrast, operates by racket: if you do not send money, you will not read any papers. On my website, any person can read as many papers as they want for free, and sending donations is their free will. Why Elsevier cannot work like this, I wonder? I would also like to mention that Elsevier is not a creator of these papers. All papers on their website are written by researchers, and researchers do not receive money from what Elsevier collects. That is very different from music or movie industry, where creators receive money from each copy sold. But economics of research papers is very different. Authors of these papers do not receive money. Why would they send their work to Elsevier then? They feel pressured to do this, because Elsevier is an owner of so-called “high-impact” journals. If a researcher wants to be recognized, make a career—he or she needs to have publications in such journals. What I written here is not just my opinion—this topic is widely discussed in research community. For example, a researcher John Willinsky wrote a book named “The Access Principle: The Case for Open Access to Research and Scholarship” where he discusses this problem. The general opinion in research community is that research papers should be distributed for free (open access), not sold. And practices of such companies like Elsevier are unacceptable, because they limit distribution of knowledge. In 2012, there was an “Elsevier boycott” organized by a prominent mathematician Timothy Gowers to battle such practices: > The Cost of Knowledge is a protest by academics against the business practices of academic journal publisher Elsevier. Among the reasons for the protests are a call for lower prices for journals and to promote increased open access to information. The main work of the project is to ask researchers to sign a statement committing not to support Elsevier journals by publishing, performing peer review, or providing editorial services for these journals. I would like to also mention that we never received any complaints from authors or researchers, only Elsevier is complaining about free distribution of knowledge on sci-hub.org website. Best regards, Alexandra Elbakyan, the sci-hub.org operator ⁂ Original: https://engineuring.wordpress.com/2018/07/07/why-sci-hub-is-illegal-and-what-you-can-do-about-it/ ⇧ /# ⇧ |
Alexandra Elbakyan |
2018 |
1227 |
6.1 |
| Sharing in Spirit: Kopimism and the Digital Eucharist |
Sharing in Spirit: Kopimism and the Digital Eucharist ===================================================== by Aram Sinnreich https://www.american.edu/profiles/faculty/aram.cfm Aram Sinnreich February 10, 2015 Original: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2437233 Kopimism, a new religion officially recognized by Sweden in 2012, is based on the principles that copying, disseminating and reconfiguring information are not only ethically right, but are in themselves “sacred” acts of devotion. Kopimist philosophy also holds that “the internet is holy” and that “code is law” (a phrase copied from legal scholar Lawrence Lessig). Kopimism has already raised some interesting questions and debates in both legal and religious circles. Some grumble that the Kopimists are a bunch of “pirates” using religious protection to shield them from copyright liability. Others suggest that the religion is little more than a sophomoric rhetorical exercise, the predictable product of a precocious young philosopher. In this article, I suggest that, if we take Kopimist doctrine at its word, we can better understand it as the crystallization of an emerging value system centered around the proliferation of digital, networked information. Like copyright, and monastic Christianity before it, Kopimism stakes out a socioepistemological vantage point, contrasting the regulatory demands of the twentieth-century copyright regime with today’s globalized digital culture. Based on interviews with Kopimist officials and worshippers, as well as a critical reading of the religion’s “constitution” and other doctrinal texts, I delineate the ethical boundaries surrounding this new belief system, and examine it in contrast to previous religious and legal systems, evaluating its points of continuity and rupture to illuminate the unique challenges to ethics and morality in an era of information abundance and continuing material and educational inequity. _The only thing we can do as Christians now, I suppose, is to do what Jesus tried doing—and do it better._ —Isak Gerson Introduction: A Religion for the Networked Age ============================================== In April 2012, a young couple got married in Belgrade, Serbia. The wedding video shows the bride and groom smiling nervously as they stand on a dais in fancy clothes, while the crowd around them titters and cheers and the romantic strains of an aria waft through the air. After the groom lifts the bride’s veil, they exchange heartfelt vows and then kiss. The room erupts with applause. Despite these traditional elements, this was no ordinary wedding. For one thing, the young couple were dressed in a postmodern mélange of styles: the groom offset his brocaded coat, leggings and neck ruff by dying his short hair maraschino cherry red, while the bride wore a floor-length dress that was white on the left and black on the right with black breast cones and a single elbow-length black silk glove on her right arm. Far more striking was the officiant to their right: in addition to his conservative black cassock, augmented by a grey and gold stole, he wore a Guy Fawkes mask and sported a laptop emblazoned with stickers. The laptop was evidently the source of the officiant’s “voice,” which in its computer-generated cadences asked each party to take the other as a “noble peer” and to “share your love, your knowledge, and your feelings … as long as the information exists.”^2 These vows had never been spoken before, because this was the first marriage ever conducted in the Church of Kopimism, a new religion conceived by members of the Swedish copyright activist group Piratbyrån and technically founded in 2010 by a 19-year-old philosophy student named Isak Gerson. The religion is based on the principles that copying, disseminating and reconfiguring information are not only ethically right but also are in themselves “sacred” acts of devotion. According to the Kopimist Constitution, Kopimist philosophy also holds that “the internet is holy” and that “code is law” (a phrase brazenly copied from the legal scholar Lawrence Lessig). Like nearly every social and cultural development in the internet era, Kopimism’s rise has been documented, analyzed, criticized and cheered by a cavalcade of commenters from the mainstream media to political message boards to Internet Relay Chat (IRC) chat rooms. Yet its origins and current status are still shrouded in a certain degree of mystery. In 2003, a group of Swedish political activists and cultural pranksters calling themselves Piratbyrån (“the Piracy Bureau”) set up shop and launched the now-infamous file-sharing website The Pirate Bay. Two years later, Piratbyrån member Ibrahim Botani designed the Kopimi (pronounced “copy me”) logo, a stylized, blocky letter “K” intended to serve as the antithesis of a copyright or trademark symbol. According to Kopimi.com, a site launched the same year, the symbol shows that “you want to be copied,” and is intended for use “on homepages or blogs, in books, in software, as sound logos in music or whatever.” In the following years, The Pirate Bay drew international criticism and acclaim, as well as a high-profile prosecution that ended in 2010 with jail sentences and hefty fines for several founders.^3 At the same time, its ideological sibling The Pirate Party, a fully fledged political organization that shared its roots in Piratbyrån, continued to grow in prominence and influence, winning seats in several national and European elections from 2006 to the present. It was in the midst of The Pirate Bay trial and the Pirate Party’s ascension that Gerson registered Kopimism as an officially recognized religion with the Swedish government. Kopimism does not seem to have existed in either theory or practice prior to its registration with the Swedish government. As European Parliament Minister, Kopimist theologian and Swedish Pirate Party official Christian Engström told me: > The religion of Kopimism was originally a joke. One of the lawyers who was prosecuting the Pirate Bay said on some occasion, “you pirates, you’re like some sort of religious sect.” Someone thought it was funny and said “Oh yeah, we’re Kopimists.” A year or two later, someone got it registered as an official religion.^4 Though it may have originated as a “joke,” Engström told me he soon “became more and more serious in it,” as did Gerson and several others. Sweden officially recognized the religion in January 2012, and after the raft of media attention that followed, its membership grew rapidly, reaching 8,500 in the next six months. Today, there are chapters in over a dozen countries and a growing library of theological texts devoted to the religion. What are we to make of a religion that started as a “joke,” with a founder still in his college years, in the light of its state recognition, its avid membership and its expanding doctrinal literature? Is it mere pranksterism, a piece of absurdist political theater taken to its logical extremes for the sake of deadpan humor? Is it a hoax, designed to tweak the media’s appetite for spectacle or to bypass the strictures of copyright law? Or can we understand it as an authentic belief system, with the ideological integrity and consistency, as well as the ritualistic and institutional hallmarks, that we typically expect from “legitimate” religions? Though the available facts certainly support the first two interpretations, I argue in this article that the third view is equally valid, and that Kopimism offers the rudiments of a belief system uniquely suited to the epistemological qualities of information and social organization in the networked age. I also argue that, despite its superficial novelty, Kopimist thought echoes both Christian and pagan themes in ways that strategically affirm its doctrinal lineage while subverting the dominance of copyright law by recasting it as merely a competing religion with diametrically opposed values. My analysis is based on two sources of data: scriptural texts, both Kopimist and traditional, and direct interviews, conducted via a range of media, with Kopimist officials, theologians and practitioners. Although the former are most often analyzed exegetically, and the latter ethnographically, the current project investigates the relationships between texts, laws and value systems across a range of doctrines and ideologies via discursive analysis. I employ this technique as a means to identify and critique the resonances between these diverse belief systems and modes of expression, and to connect these resonances to broader vectors of identity and power within society at large. This approach is also ideal given that several of my sources, interviewed via IRC, chose to remain anonymous or pseudonymous, which limits the possibility of interpreting their responses through biographic or cultural filters; even basic demographic information about them, such as age and gender, is unavailable. This leaves only the discursive aspects of their statements, and the virtually negligible metadata regarding their engagement with the communication platform, as legible data for analysis. Ultimately, my aim is not to argue that Kopimism serves as a unifying doctrine for a specific community or society, but rather that it serves a broad and somewhat diverse range of stakeholders by providing an alternative—and explicitly critical—ethical framework for information sharing in the face of the hegemonic, globalizing discourse of copyright maximalism. Sophistry, Scam or Sacrament? ============================= There are ample reasons to chalk Kopimism up to mere sophistry, or to dismiss it as an overblown joke with a lame punch line. The fact that the religion was founded by a teen-aged philosophy student, the absurd pageantry of its wedding ritual and its unflinching celebration of the internet—file sharing, specifically—as a sacred instrument have all contributed to its public image as a carnival act more deserving of derision than exegesis. A closer examination of Kopimism’s sacred texts offers even more support for this interpretation. One such text, a document improbably titled “POwr, Broccoli and KOPIMI,” contains many examples of sophomoric humour. The book suggests that its words “should bite firmly into you—and your mom.” It exhorts followers to “Experiment with research chemicals,” “Give yourself cult status” and “Be careful of burning kittens.” There is, in short, little question that the religion’s theologians, officiants and followers have a taste—or, at least a tolerance—for the absurd. Furthermore, Kopimism shares a certain snarky tone with other recent cultural movements, born of online and mass media culture, that lay claim to spiritual legitimacy and legal religious protection—what Carole Cusack calls “invented religions.” These include Pastafarianism and Jediism, both of which may be understood explicitly as rejections of organized religion and, especially in the case of Pastafarianism, of the very premise of religion as an ontological system. Yet none of these facts necessarily presents a challenge to the authenticity of Kopimist doctrine or the fervour of its adherents. The prophets behind some of today’s largest religions were themselves young and/or eccentric, many of whom make Gerson look downright staid by comparison. The rituals associated with these religions are often equally or more bizarre in the eyes of nonbelievers, incorporating features such as flamboyant clothing, speaking in tongues and genital mutilation. And the apparent absurdity of religion, for better or worse, has been acknowledged for eons, from Job’s complaint that his belief in God made him a “laughingstock” to Martin Luther’s celebration of laughter as an indicator of and prerequisite for religious faith. Finally, in contrast to some other “invented religions” such as Pastafarianism, Kopimism functions as more than just a rhetorical gambit, a reductio ad absurdum whose only, or primary, function is to undermine the social gravity and centrality of established religion. To the contrary, as I will argue below, Kopimist thought elucidates a fairly coherent worldview, and its rituals and lexicon stake out a proactive ethical stance, rather than a reactive dismissal of other such belief systems. Another charge routinely levelled at Kopimism is the notion that it is a scam providing a patina of religious and legal legitimacy to fundamentally immoral, antisocial behaviours. A 2011 article about Kopimism on an AOL blog was headlined “Swedish File Sharers Get Religious About Stealing.” Similarly, a 2012 post on the influential Christian blog Patheos complained that Kopimists are “seeking the legal protections given to religion so that they can pirate music, movies and the like with impunity. And when they are prosecuted for internet piracy they can claim religious persecution!” PC World’s John Dvorak penned perhaps the most scathing condemnation, writing that Sweden’s official recognition of Kopimism “has hoax written all over it,” and sarcastically suggesting other “screwball ideas” might include a “Church of Porn” or a “Church of the Holy Burglary.” Even more sympathetic coverage, such as a 2012 New Yorker article, suggests that, while Kopimism may be rooted in “deeply held conviction,” it can still be understood as “just a bit of political theatre” or “an activist prank.” Similarly, Techdirt has argued that the religion does not accomplish “much beyond being a little publicity stunt.” Unlike the accusations of sophistry, the claims that Kopimism amounts to an elaborate hoax have little to support them. As Engström told me, “it’s totally not a scam. No amount of money has ever changed hands, and it wouldn’t work to prevent prosecution.” While it is not clear whether this legal premise has yet been tested, Kopimist spokespeople have repeatedly told the press they do not expect immunity from prosecution for file sharing, and several news articles have argued that such immunity does not exist under current law. As to the claim that Kopimism is “just a bit of political theatre,” I would take issue with the modifier “just.” Based on Engström’s and Gerson’s accounts, there seems little doubt that the religion owes at least some of its origins to a Situationist-style act of détournement, exposing copyright as a legally enforced ideological instrument by refuting it through an act of legally sanctioned ideology. Yet it is also apparent that Kopimism has transcended beyond religion-as-spectacle to something more integral and organic, with a coherent set of moral and ethical principles and an emerging set of sacred texts and rituals. The Meaning and Ethics of Copying ================================= As any social historian can attest, the line separating religion from politics is always permeable and contingent, and there is little question that Kopimism’s ethical foundations are rooted in the same resistance to copyright law and celebration of the free flow of digital information that shape the Pirate Party’s political agenda. As Engström told me, “I do think there’s a pirate ideology, and Kopimism is a way of expressing it in religious terms.” Similarly, Gerson told me that “it’s very hard to draw a line between religion and politics. I see them as being two faces of the same coin.” Yet Kopimism is not merely a restatement of pirate politics, dressed in more sanctimonious clothing. The belief system, though still inchoate, bases its moral precepts on a fundamentally spiritual understanding of information and its role in human affairs, and draws some nuanced ethical guidelines around the acts of producing and disseminating information. As Gerson, who said he identifies “as a Christian and a Kopimist,” explained, “we need to speak of something holy in order to describe it, because it’s that big of a deal.” The most rudimentary aspect of Kopimism is the precept that information is sacred. As the Kopimist Constitution explains, there is an “intrinsic value of information. We ascribe this value to all information irrespective of its content.” In _A Kopimist Gospel_, Engström explores this concept further, elaborating on the premise that, because the universe is comprised of information, and because life is defined by the copying of information, the celebration and reproduction of information by humans is an act of godliness. In his own, more poetic words: > In ways and for reasons that remain to be explored, the ribosomes appeared, who could copy. This was the beginning of Life. We therefore see Copying as the first manifestation of the Divine Spirit. Other Kopimists have reaffirmed this belief. As one Kopimist, participating on the #telecomix IRC channel, told me, “kopimi is the natural state of the universe.” This belief is expressed by Kopimists via a devotional act called “kopyacting.” As Gerson explained to an interviewer from _New Scientist_, “We have a part of our religious practices where we worship the value of information by copying it.” According to the Kopimist Constitution, this act amounts to a duty for all devout: “Participants are encouraged to copy, remix and distribute, as expressed in the Missionary Church of Kopimism values, Missionary Message and Constitution, as much information between each other as possible.” Another, related precept that characterizes Kopimist thought is the notion that, due to its fundamental role in our own existence and consciousness, information is a birthright for all people. This principle is described in its simplest terms on the front page of the Kopimism website, which states that “All people should have access to all information produced.” This fundamental human right is also viewed from the reverse direction, as a right inhering to information itself: > Information—a dual [sic] of matter—is intangible, inexhaustible, and illuminating. As matter wants to fall, information wants to be free. Kopimism takes advantage of these sacred (God given) properties of reality for the benefit of humanity. This precept quotes and builds upon—or as Kopimists would say, “copymixes”^6—the notion that “information wants to be free,” a phrase typically attributed to internet community pioneer Stewart Brand and popular among internet-freedom advocates. Yet while most people who use the phrase probably think of it as a metaphorical scientific conceit, Kopimism appears to treat the term anthropomorphically, ascribing a degree of agency and consciousness to information itself. The flip side of this precept is the notion that restricting the flow of information is equivalent to a crime against humanity. The Kopimist Constitution argues that “To keep source code hidden from others is comparable to slavery,” and that intellectual-property laws are “egregious violations of our intellectual sovereignty and freedom.” Instead of political and economic arguments based on reasoned analysis, these are moral declarations rooted in passionate faith. A third precept is the notion that altering, combining or adding to information is more godly, and therefore more virtuous, than merely reproducing it in its “original” form. As the Kopimist Constitution argues, “Copymixing is a sacred kind of copying, moreso than the perfect, digital copying, because it expands and enhances the existing wealth of information.” This logic would seem to fly in the face of critics who view Kopimist dogma as merely a legitimizing screen for peer-to-peer file sharing. To the devout, remixing a Harry Potter movie is far superior to merely sharing the unaltered video file. Engström explicitly connects this philosophical premise to the genesis of life itself: > Sex is Kopying, and a tribute to the Fundamental Principle that has given Kopimism its name. The ultimate purpose of sex is to pass on the miracle of life by producing new individuals. Sexual reproduction is not about making identical copies, but about remixing, which we see as the highest form of copying. Despite Kopimism’s belief in the “intrinsic value of information” and the sanctity of copying, there are some instances in which Kopimists believe information should remain unshared. The most important example is personal privacy, conceived as a fundamental right. The Kopimism website states unequivocally that “It is a direct sin to monitor and eavesdrop on people.” The Kopimist Constitution extends this protective halo to all of its liturgical spaces and practices, and admonishes followers to obscure their communications via encryption. Kopimists’ emphasis on the “freedom” of information may seem to conflict directly with their belief in privacy and secrecy. Yet adherents seem comfortable navigating these apparently irreconcilable values. A Kopimist from the Czech Republic named Nick Wao explained, “I think personal information are NOT part of koppimism … to be right, if are some data private, they shouldn’t be copied, I also respect privacy of data [sic].” Another participant agreed that the two precepts “do seem to be contradictory,” yet concluded that “all information” means public information about the world, not private information about a person. Kopimist theologians and practitioners are actively engaged in a continuing dialogue regarding the moral delineations of information sharing. I asked participants whether certain kinds of information sharing were sinful or holy—namely, wholesale surveillance by intelligence agencies, “revenge porn,” and nuclear launch codes. They offered thoughtful, nuanced responses. One participant said the difference between good and bad sharing ultimately reduces to a question of the sharer’s motivations, and that public information sharing generally benefits society while sharing private information against an individual’s will harms it. What is perhaps most striking is the degree of responsibility conferred on individuals to make moral and ethical judgements in the absence of clear guidelines. These opinions demonstrate that Kopimism is, for many devotees, the furthest thing from either absurdist spectacle or criminal hoax. It is a value system that allows people living in information-rich environments to make complex ethical decisions with a moral focus not addressed by traditional religions and not prioritized by today’s conflicting and politicized legal codes. According to Christopher Carmean, founder of the First United Church of Kopimism in the United States, “Kopimism does not dictate where these lines should be drawn. We hope to empower people to become their own masters and to decide what is right and wrong for themselves.” This fact brings context to the final precept to emerge from Kopimist dogma: the laws of the state are inferior to, and often irrelevant to, the moral judgements of the religion and its adherents. The Kopimism website proclaims simply that “Information technology is not to be fettered by laws.” The Kopimist credo encourages followers not to copyright their work or patent their inventions, and demands the right to copy, modify, publish and implement information presented to them. Finally, Kopimists appear to take nearly as dim a view of religious dogma as they do of other forms of codified ideology. With their emphasis on self-directed moral judgement and their fundamental mistrust of fixed, written codes, adherents tend to question even the letters of their own laws. Far from feeling threatened by this resistance, Gerson told me that scepticism of moral authority is one of his own core values: “I feel a general distrust against religious organizations where you have a cultural elite that decides what the others should think … the philosophers of a religious group should be everyone.” Kopimism’s Doctrinal Lineage ============================ With its declaration that “the internet is holy,” its celebration of technologies like peer-to-peer file sharing and data encryption, and its active rejection of copyright law, Kopimism is very much a religion rooted in contemporary networked global culture. Yet “POwr, Broccoli and KOPIMI” situates the religion within the longer continuum of human culture, claiming that the religion is “seeded in prehistory [and] rooted in the future.” Many scholars and cultural commentators have wondered why Sweden specifically has become a locus for “pirate” culture in the twenty-first century, producing Piratbyrån and its three offspring: The Pirate Bay, the Pirate Party and Kopimism. Patrick Burkart points to Sweden’s unique combination of high communications-technology penetration and computer literacy, a thriving hacker subculture, political and social tolerance for marginal groups, a liberal jurisdictional system and a commons-oriented approach to the physical environment. This last point seems especially compelling. The Swedish practice of _allemansrätten_, or right of public access known as “every man’s right” to roam and camp in the countryside, combined with our contemporary view of cyberspace as a virtual topography, logically lends itself to a model of the networked information sphere as a space for all comers, a terrain in which it is every user’s right to copy, paste and remix the cultural archive. Gerson, an avid hiker, confirmed this connection explicitly: “the allemansrätten is creating a commons, which is also what we want to do through copying. We want information and knowledge and culture to be a commons.”^8 Yet I believe there is another factor at play as well—a religious precept that predated and possibly informed these other factors. In the _Poetic Edda_, a collection of ancient poems that forms the basis of Scandinavian mythology and the contemporary cultures built upon it, Odin discovers written language while hanging from the World Tree, a bloody sacrifice by himself and to himself. In verse, Odin describes the wonderment he felt on making this discovery: > Well-being I won > And wisdom too. > I grew and took joy in my growth: > From a word to a word > I was led to a word, > From a deed to another deed. Thus, for Scandinavian cultures, the very definition of wisdom and well-being originates in the ability to encode and decode information, in the ability to traverse the informatic landscape “from a word to a word.” Of course, pagan religions were not the only ones to play a role in shaping Scandinavian culture. Even at the time the _Poetic Edda_ was written, around the turn of the thirteenth century, Sweden was in the process of becoming officially Christianized—a designation that remained more or less intact until the Church of Sweden ceased to be the nation’s state religion in 2000. First, the sacred valence of copying and sharing in Kopimism bears more than a passing resemblance to the knowledge regimes that characterized monastic Christian principles and practices. St. Irenaeus, a second-century theologian, would append to his texts a formula dictating the terms on which they should be copied: > You who will transcribe this book, I charge you, in the name of our Lord Jesus Christ and of His glorious Second Coming, in which He will come to judge the living and dead, compare what you have copied against the original and correct it carefully. Furthermore, transcribe this adjuration and place it in the copy. This protocol was in turn copied by St. Jerome 200 years later and continued to be used by monks well into the Middle Ages whenever they transcribed holy scriptures. In the centuries that followed, copying texts was considered a devotional practice for many monastic traditions and was not limited to Judeo-Christian sources. Reformers and innovators such as St. Pachomius, Cassiodorus and St. Boethius all emphasized the sacred duty of copying, and the latter two played important roles in ensuring that Hellenic and Roman texts, as well as contemporary works of secular philosophy, were preserved by Christian scribes. I am not suggesting that the spirit of copying is identical in monastic Christianity and Kopimism; where the former was principally concerned with maintaining copy fidelity, better to transmit the “word of God” or the wisdom of the ancients, the latter is more concerned with copying for its own sake and privileges interpretation over fidelity. Yet these distinctions are not so great as they may seem. Monastic Christianity, copyright and Kopimism can each be understood as value systems that govern socioepistemological processes—the social establishment of “truth”—during the eras of informatic scarcity, mechanical reproduction and digital dematerialization, respectively. Seen through this lens, Kopimism is a serious attempt to reconcile the regulatory demands of the twentieth-century copyright regime with the cultural ramifications of today’s global digital information infrastructure. Put another way, while copyright laws sacrifice technological innovation to preserve industrial capitalism, Kopimist doctrine sacrifices industrial capitalism to preserve technological innovation. Another Christian tradition that may be understood as an antecedent to Kopimism is “logos theology,” rooted in the belief that God created the world through the act of speaking it into existence. The apotheosis of this belief is in John 1:1, typically translated into English as “In the beginning was the Word, and the Word was with God and the Word was God.” Yet the Greek term _logos_ has a number of possible interpretations other than “Word,” and a long history of philosophical debate accompanies its interpretation. Some scholars see the origin of the concept as Platonic, relating to the notion of logos—more often interpreted in English as “logic”—as the instrument by which humans may glimpse the contours of the world of perfect forms that hovers just beyond the limits of our senses and sensibilities. Other scholars emphasize the linguistic dimensions of logos in Christian scripture, interpreting our powers to communicate as derivatives of God’s voice in the act of creation. These scholars, including Karl Barth and other avatars of modern European Protestantism, view it as our shared duty as humans to use our voices to proclaim the Word of God—in essence, to continue the breath of creation throughout the entirety of our lives. To me, the Barthian perspective seems especially relevant to Kopimism. In both cases, information and communication are seen as the constituent processes underpinning creation. In both cases, spreading information is seen as a sacred duty—continuing God’s work on Earth, to put it in doctrinal terms. And, at a deeper level, Barthian thought and Gersonian thought both exhibit a healthy mistrust of modern liberalism, or the elevation of the individual to the primary unit of social action and analysis. To be sure, Kopimism invests its followers with significant moral agency and gives individual decisions primacy over both legal and scriptural dictates. But the aim is to escape liberalism, not to reinforce it. Gerson views Holy Communion as his “theological starting point” and considers it the first step in building a radical Christian identity against individualism. This brings Gerson’s consecration of peer-to-peer file sharing into sharp focus. His understanding of online information sharing is fundamentally Eucharistic in nature; to him, “the breaking of bread is not only a symbol of unity but the sharing of food is also a literal way of loving thy neighbor. That we all share the same bread means that we are all part of the same world, the same system.” In conversation, he expanded on this theme: > Through sharing, we become one mind with several parts. We are individuals, in a kind of collective being. Our minds become connected in this big distribution network: You can’t really say where one mind stops and another mind begins. And it’s not just relations between people, it’s between people and machines, too. Conclusion ========== Kopimism, a religion that began as a “joke” according to its own founders, is widely interpreted as at best an act of political theater and at worst a criminal insult to genuine faith. Yet in the few short years since its creation, its theologians and growing ranks of followers around the world have begun to develop a set of moral and ethical precepts and practices that help them navigate complex questions of personal agency, power and identity in globalized, postindustrial, networked society. Though the contours of Kopimism are still fuzzy and riddled with contradictions and ellipses, it already offers some believers answers and solutions that older belief systems cannot provide. As Engström told me, part of the appeal is simply that Kopimism does not require its adherents to ignore or overlook scientific explanations of reality: “I also feel so unsatisfied by all the old religions … the old religions are not really up to scratch. They’re completely incompatible with science if you read them literally.” Engström is not alone in this regard; Sweden is by some measures the most atheist or agnostic nation in the world, with as many as 85 percent of the population falling into the “nonbeliever” category. When a New York Times reporter asked Gerson whether he believes in God, he answered, “No, I just believe in our values. It’s just a belief in holy values.”^10 Yet there is little question that these “holy values” amount to more than mere political conviction or adolescent antiauthoritarianism. When Kopimist dogma calls on followers to “continuously mock and ridicule all aspects of copyright,” the commandment gives voice to moral outrage and spurs collective action against the ravages of industrial capitalism and Western cultural hegemony. Though he may not believe in “God” as a reified concept or institutionally sanctioned deity, Gerson is avowedly a Christian, seeking a means to transcend the pettiness and corruption of human affairs through communion with his fellow humans and with the cosmos at large. Though this philosophy has the distinct ring of libertarian Marxism, it echoes many of the same themes without retaining either its fundamental antipathy towards religion or its foundations in a class-based, materialist conception of social dynamics. Ultimately, it is not just the class system or industrial capitalism that Kopimism seeks to overthrow, but the entire freight of Western liberal thought. When “POwr, Broccoli and KOPIMI” announces that “the book you’re about to read has no author, no designer, no typesetter, no distribution channel,” it is intentionally jettisoning the individual baby with the industrial bathwater. “No Kopimist is wholly self sufficient,” the Kopimist Constitution argues, echoing Donne, “each being just one component of an interconnected and interdependent world.” Donne penned his “Meditation XVII” in 1623, just as colonization and industrialization were combining to enmesh the globe in a new world order, and as thinkers such as Thomas Hobbes, René Descartes and Francis Bacon were building the philosophical foundations of modern liberalism and empiricism. Donne’s work can be viewed as a form of poetic inoculation, a reminder that the new language of individual rights and responsibilities, like the invisible suffering of factory workers and plantation slaves, obscured a deeper truth: that we are all connected, all part of a single organism, that we are all “involved in mankind.” Kopimism comes at the close of this era and the dawn of a new one, bearing the same message. In its vision of communal property and unconditional “datalove,” it harkens back nostalgically to a time before the mania of the marketplace reconfigured our inner and outer lives in its own image. Yet in its embrace of digital technology and its vision of the globe as a network of “noble peers,” it also looks forward, with clearer eyes than most. One only needs to skim the trajectory of technological development to realize that the pace of change will soon contribute to drastic alterations in our social order, our cultural mores, our bodies and our consciousness itself.^11 As the networks around us and within us grow more complex, more robust and capable of processing geometrically greater volumes of information and power with every passing year, the threat of subjugation and the opportunity for liberation will grow as well. Some will find hope for liberation in reforming laws and renewing the social contract, while others will seek independence through technological prowess. Kopimists have charted another path, as Donne did: “by making my recourse to my God, who is our only security.” Copy and seed. Notes ===== ^1: Quotation is from Gerson (2014). This and all Swedish articles were first translated by Google Translate and then corrected by Linn Ahlbom. ^2: The wedding video is available on YouTube at https://www.youtube.com/watch?v=yYAiZ-L4gXg. ^3: At the time of writing, there are continuing legal and police actions against The Pirate Bay, including a recent raid and seizure of the site’s internet servers. ^4: All direct quotes from Engström, unless otherwise cited, are from a personal communication via telephone, November 22, 2013. ^5: All direct quotes from Gerson, unless otherwise cited, are from a personal communication via telephone, May 16, 2014. ^6: The word “copy,” both discretely and as part of larger compound words, is sometimes spelled with a “k” in Kopimist texts. For the present article, I rely on the most prevalent spellings, except within the context of specific quotations. ^7: “Datalove” is a concept embraced by Kopimists and #telecomix members that refers to the development of intimacy and empathy through the act of sharing information. ^8: The legal “freedom to roam” is not unique to Sweden; similar codes can be found throughout Northern Europe and other parts of the world. Nor is it in any way ancient; rather, as Wiktorsson (1996) observes, it is arguably a thoroughly modern concept. ^9: I am neither a religious scholar nor an expert in Christianity. Consequently, I have relied upon the expertise and generosity of the scholars Harry Bruinius and Max Lindenman for feedback and suggestions during the writing of this article. I am grateful for their contributions. ^10: The overwhelming prevalence of “nonbelief” in Sweden may seem, on the face of it, to contradict some of the basic claims of this article regarding the doctrinal roots of Kopimism. Yet, as a range of scholars have argued, a religiously unaffiliated individual may nonetheless share many ethical and moral values, and derive those values from a prevalent religious tradition in his or her society or community. ^11: Some scholars discuss these potentialities through the lens of “posthumanism.” While I acknowledge the value of this nomenclature, I also feel it should not be deployed without a degree of scrutiny and critique that exceeds the scope of this article; hence, my choice is to avoid the terminology altogether. ⁂ Original: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2437233 ⇧ /# ⇧ |
Aram Sinnreich |
2015 |
6189 |
30.9 |
| The Case Against Patents |
The Case Against Patents ======================== by Michele Boldrin and David K. Levine https://x.com/micheleboldrin Michele Boldrin and David K. Levine January 1, 2013 Original: https://pubs.aeaweb.org/doi/pdfplus/10.1257/jep.27.1.3 The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity, unless productivity is identified with the number of patents awarded—which, as evidence shows, has no correlation with measured productivity. This disconnect is at the root of what is called the “patent puzzle”: in spite of the enormous increase in the number of patents and in the strength of their legal protection, the US economy has seen neither a dramatic acceleration in the rate of technological progress nor a major increase in the levels of research and development expenditure. Both theory and evidence suggest that while patents can have a partial equilibrium effect of improving incentives to invent, the general equilibrium effect on innovation can be negative. The historical and international evidence suggests that while weak patent systems may mildly increase innovation with limited side effects, strong patent systems retard innovation with many negative side effects. More generally, the initial eruption of innovations leading to the creation of a new industry—from chemicals to cars, from radio and television to personal computers and investment banking—is seldom, if ever, born out of patent protection and is instead the fruit of a competitive environment. It is only after the initial stage of rampant growth ends that mature industries turn toward the legal protection of patents, usually because their internal growth potential diminishes and they become more concentrated. These observations, supported by a steadily increasing body of evidence, are consistent with theories of innovation emphasizing competition and first-mover advantage as the main drivers of innovation, and they directly contradict “Schumpeterian” theories postulating that government-granted monopolies are crucial to provide incentives for innovation. A properly designed patent system might serve to increase innovation at a certain time and place—and some patent systems, such as the late-nineteenth century German system allowing only process but not final product patents, have been associated with rapid innovation. Unfortunately, the political economy of government-operated patent systems indicates that such systems are susceptible to pressures that cause the ill effects of patents to grow over time. The political economy pressures tend to benefit those who own patents and are in a good position to lobby for stronger patent protection, but disadvantage current and future innovators as well as ultimate consumers. This explains why the political demand for stronger patent protection comes from old and stagnant industries and firms, not from new and innovative ones. Our preferred policy solution is to abolish patents entirely and to find other legislative instruments, less open to lobbying and rent seeking, to foster innovation when there is clear evidence that laissez-faire undersupplies it. However, if that policy change seems too large to swallow, we discuss in the conclusion a set of partial reforms that could be implemented as part of an incremental strategy of reducing the harm done by the patent system. Do Patents Encourage Productivity Growth? ========================================= If there is to be any rationale for patent systems, with all their ancillary costs, it must be that they increase innovation and productivity. What is the evidence? Simply eyeballing the big trends shows that patenting has exploded over the last decades. In 1983 in the United States, 59,715 patents were issued; by 2003, 189,597 patents were issued; and in 2010, 244,341 new patents were approved. In less than 30 years, the flow of patents more than quadrupled. By contrast, neither innovation nor research and development expenditure nor factor productivity have exhibited any particular upward trend. According to the Bureau of Labor Statistics, annual growth in total factor productivity in the decade 1970–1979 was about 1.2 percent, while in the decades 1990–1999 and 2000–2009 it has been a bit below 1.2 percent. Meanwhile, US research and development expenditure has been oscillating for more than three decades in a narrow band around 2.5 percent of GDP. The recent explosion of patents, in other words, has not brought about any additional surge in useful innovation and aggregate productivity. In new industries such as biotechnology and software—where innovation was already thriving in their absence—patents have been introduced without any positive impact on the rate of innovation. The software industry is an important case in point. In a dramatic example of judge-made law, software patents became possible for the first time in the early 1990s. Bessen and Meurer, in a large body of empirical work culminating in Patent Failure (2008), have studied the consequences of this experiment and have concluded that it damaged social welfare. Academic studies have also typically failed to find much of a connection between patents and innovation. In Boldrin and Levine (2008b), we conducted a metastudy gathering the 24 studies (including three surveys of earlier empirical work) we could find in 2006 that examined whether the strengthening patent protection leads to greater innovation. The executive summary states: “[T]hese studies find weak or no evidence that strengthening patent regimes increases innovation; they find evidence that the patent regime increases patenting! They also find evidence that, in countries with initially weak IP [intellectual property] regimes, strengthening IP increases the flow of foreign investment in sectors where patents are frequently used.” Actually, the issue of promoting foreign direct investment, while a well-established empirical consequence of strengthening patent regimes, is entirely beside the point of this essay. There are a number of ways to encourage a country’s institutions and infrastructure in a way that the foreign direct investment—and, in any case, foreign direct investment is not equivalent to innovation. Our conclusion was in keeping with other studies that have addressed this question. Some studies have failed to find any connection even between changes in the strength of patent law and the amount of patenting, while others fail to find a connection between patents and some measure of innovation or productivity. For example, after failing to find a single study claiming that innovation increased as a consequence of the strengthening of US patent protection in the 1980s, Gallini (2002, p. 139) wrote in this journal: “Although it seems plausible that the strengthening of US patents may have contributed to the rise in patenting over the past decade and a half, the connection has proven difficult to verify.” Similarly, Jaffe (2000) also examines many studies and concludes: “[D]espite the significance of the policy changes and the wide availability of detailed data relating to patenting, robust conclusions regarding the empirical consequences for technological innovations of changes in patent policy are few. There is widespread unease that the costs of stronger patent protection may exceed the benefits. Both theoretical and, to a lesser extent, empirical research suggest this possibility.”^1 The Lerner (2002) study is especially notable because he examined all significant changes in patent law in all countries over the last 150 years. His conclusion: “Consider, for instance, policy changes that strengthen patent protection. Once overall trends in patenting are adjusted for, the changes in patents by residents of the country and the policy change are negative, both in Great Britain and in the country itself. Subject to the caveats noted in the conclusion this evidence suggests that these policy changes did not spur innovation.” This, in summary, is what is currently known as the “patent puzzle”—although as we will explain, it is substantially coherent with a theory of innovation that emphasizes the gains from competition and first-mover incentives, rather than benefits from the monopoly power of patents. Evidence at the sectoral level of the US economy shows the same disconnect between patenting and productivity. In Boldrin, Correa, Levine, and Ornaghi (2011), we carried out a sequence of statistical tests and econometric estimations on two datasets: an original microeconomic dataset obtained by combining firm-level information obtained through Compustat, the National Bureau of Economic Research, and the Bureau of Labor Statistics and an enriched version of the dataset used by Aghion, Bloom, Blundell, Griffith, and Howitt (2005) in their study of industry-level mark-ups. Conclusions must of course be drawn with care from this kind of data because, across industries, the strength of competition, patenting, and productivity are simultaneously determined and intertwined with technological change. With that reservation appropriately noted, at the industry level there is, in general, no statistically significant correlation between measures of productivity (whether measured by labor or total factor productivity) and of patenting activity (whether measured by number of patents or citations of patents). We then investigated the relationships between patents, competition, and productivity further. When we regressed measures of patents (or patent citations) on a measure of competition (as measured by the inverse of profitability) used by Aghion, Bloom, Blundell, Griffith, and Howitt (2005), we found a positive relationship that is remarkably robust to changes in industry classification, time period, and set of sampled industries. That is, patents were more common in competitive industries. We also studied the correlation between the same measure of competitive pressure and objective measures of labor productivity growth. In our preferred specification, we found that average annual growth of productivity in the sectors with the highest level of competition is up to 2 percent bigger than in the sectors with the lowest level of competition. These strikingly large differences when cumulated over various decades, as it is the case in our dataset. This finding of a positive correlation between competition and productivity at the sectoral level replicated a pioneering, and unfortunately forgotten, pattern reported in Stigler (1956). The accumulated findings of no positive correlation between patenting and productivity are not conclusive, and arguments have raged over the specific data used, whether to look for a structural break in the data, how the researcher to correct for endogeneity, and so on.^2 However, it is fair to say that the sector-level, national, and cross-national evidence fail to provide any clear empirical link from patents to innovation or to productivity. This lack of connection is consistent with the view that the use of patents either as a defensive or as a rent-seeking tool more widespread than one might have predicted. In addition, the empirical evidence is consistent with the proposition that greater competition, not patents, is the main factor leading to innovation and greater productivity. Theory and Practice of Patents and Innovation ============================================= There is little doubt that providing a monopoly as a reward for innovation increases the incentive to innovate. There is equally little doubt that granting a monopoly for any reason has the many ill consequences we associate with monopoly power—the most important and overlooked of which is the strong incentive of a government-granted monopolist to engage in further political rent seeking to preserve and expand its monopoly or, for those who do not yet have a monopoly, to try to obtain one. These effects are at least to some extent offsetting: while the positive impact of patents is the straightforward partial equilibrium effect of increasing the profits of the successful innovator to the monopolistic level, the negative one is the subtler general equilibrium effect of reducing everyone else’s ability to compete while increasing for everyone the incentive to engage in socially wasteful lobbying efforts. Downstream Innovation, Defensive Patenting, and Patent Trolls ============================================================= In the long run, even the positive partial equilibrium effect of patents in providing an incentive for innovation may be more apparent than real: the existence of a large number of monopolies created by past patent grants reduces the incentives for current innovation because current innovators are subject to constant legal action and licensing demands from earlier patent holders. The downstream blocking effect of existing monopoly grants on incentives for future innovation has greatly increased in recent decades because modern products are made up of so many different components. The recent—and largely successful—efforts of Microsoft to impose a licensing fee on the large and expanding Android phone market is but one case in point. With the exception of Motorola Mobility, all the handset manufacturers have agreed to the fee, and Motorola lost its first battle against the fee in spring 2012—fought not in court but in the more receptive domain of the US International Trade Commission (Investigation Number 337-TA-744, May 18, 2012). Microsoft is attempting to charge a licensing fee solely over a patent involving the scheduling of meetings—a rarely used feature of modern smartphones. The meeting-schedule feature is but one of many thousands of patented “ideas” used in a modern smartphone, and each owner of each patent potentially can charge a licensing fee. Hence, the main dynamic general equilibrium effect of a patent system is to subject future inventions to a giant hold-up problem: with many licenses to be purchased and uncertainty about the ultimate value of the new innovation, each patent holder, in raising the price of his “component,” imposes an externality on other patent holders and so charges a higher than efficient licensing fee. In Boldrin and Levine (2005) and Llanes and Trento (2009), we and others have explored the theory; and many case studies involving patents (and other fractionated ownership problems) can be found in Heller (2008). To understand more about the actual effect of patents in the real world, consider the recent purchase by Google of Motorola Mobility, primarily for its patent portfolio—not for the ideas and innovations in the portfolio. Few if any changes or improvements to Google’s Android operating system will result from the ownership or study of these software patents. Google’s purpose in obtaining this patent portfolio is purely defensive: it can be used to countersue Apple and Microsoft and blunt their legal attack on Google. These remarks apply to the vast bulk of patents: they do not represent useful innovation at all and are just weapons in an arms race. This is not news: the same message emerged decades ago from the Levin, Klevorick, Nelson, and Winter (1987) and Cohen, Nelson, and Walsh (2000) surveys of research and development managers. One could argue that the costs of building up a patent portfolio to engage in this sort of defensive patenting are not too large: after all, it costs as little as $15,000 to file a successful patent application, and filing applications on a larger scale might be cheaper. However, the acquisition of large patent portfolios by incumbents creates huge barriers to entry. In the smartphone market, for example, Apple is the market leader and Microsoft is unable to produce a product that appeals to consumers. Each are incumbent firms with a large patent portfolio. In this market, Google is the new entrant and innovator and, while wealthy, Google found itself lacking a large defensive patent portfolio. Hence we see both Apple and Microsoft attacking Google with patent litigation, generating hundreds of millions in wasteful legal costs and no social benefit whatsoever. Despite the fact that patents are mostly used for arms races and that these, in turn, are driven by patent trolls, there does not yet exist convincing formal models of the ways in which this interaction can inhibit innovation. In a pure arms race theory, if all firms get counterbalancing portfolios and all innovate, then they would all have innovation in the absence of patents—hence, patents do not encourage innovation. This follows because with counterbalancing patent portfolios, no firm can sue any other firm—exactly as would be the case in the absence of patents. Hence in this setting patents simply add a cost to innovation: if you wish to innovate, you must acquire an expensive patent portfolio to avoid trolls. On the other hand if a patentholder does not produce a marketable product and hence cannot be countersued—like Microsoft in the phone market or other patent trolls in other markets—then patents become a mechanism for sharing the profits without doing the work. In this scenario, not only do patents discourage innovation, but they are also a pure waste from a social standpoint. Patents and Information Disclosure ================================== Another widely cited benefit of patent systems—although not so much in the economics literature—is the notion that patents are a substitute for socially costly trade secrecy and improve communication about ideas. From a theoretical point of view, the notion that patents are a substitute for trade secrecy fails in the simplest model. If a secret can be kept for N years and a patent lasts M years, then an innovator will patent when N < M. In other words, ideas will be patented when it seems likely that the secret would have emerged before the patent expired and not patent if the secret can be kept. In practice, it is uncertain when the secret will leak out, but it can be shown that the basic intuition remains intact in the face of uncertainty (Boldrin and Levine 2004; Ponce 2007).^3 It is also the case that the extent of practical “disclosure” in modern patents is as negligible as the skills of patent attorneys can make it. It is usually impossible to build a functioning device or software program from a modern patent application; this is made especially clear by the fact that some patented ideas do not and cannot work. For example, US Patent 6,025,810 was granted for moving information through the fifth dimension. While detailed studies of the usefulness of disclosure in patent applications are not available, companies typically instruct their engineers developing products to avoid studying existing patents so as to be spared subsequent claims of willful infringement, which raises the possibility of having to pay triple damages. According to sworn testimony by Google’s chief of Android development during the legal battles between Oracle and Google (for example, Niccolai 2012), the engineers that developed Android were unaware of Apple (or other) patents, and so were unlikely to have been helped by them. The opinion of Brec (2008), a Microsoft developer, reflects that of many practitioners: > [Microsoft policy for developers is to] never search, view, or speculate about patents. I was confused by this guidance till I wrote and reviewed one of my own patents. The legal claims section—the only section that counts—was indecipherable by anyone but a patent attorney. Ignorance is bliss and strongly recommended when it comes to patents. The related idea that somehow improved communication about ideas, thereby creating some positive externality—a notion key to the “public-private” partnership between government and private research organizations in which the government funds the research and then gives the private organization a monopoly over what is developed in the course of research—is backed by neither theory nor evidence. It is impossible to study the history of innovation without recognizing that inventors and innovators exchange ideas as a matter of course, often secretly. It occurs, when it occurs, typically in the final stages of an innovation process when some ambitious inventors hope to corner the market for a functioning device by patenting it. A good case in point is that of the Wright brothers, who made a modest improvement in existing flight technology that they kept secret until they could lock it down on patents, then used their patents both to monopolize the US market and to prevent further innovation for nearly 20 years (Shulman, 2003). The role that Marconi and his patent played in the development of the radio is altogether similar (Hong 2001), as are innumerable other stories. At the opposite extreme we have, again among many, the example of the Cornish steam engine discussed in Nuvolari (2004, 2006). Here engineers exchanged nonpatent ideas for decades in a collaborative effort to improve efficiency. The contemporary FLOSS (Free/Libre and Open Source Software) community is another successful example of how collaboration and exchange of ideas can thrive without the monopoly power granted by patents. First-Mover Advantages and Incentives for Innovation ==================================================== In most industries, the first-mover advantage and the competitive rents it induces are substantial without patents. The smartphone industry—laden as it is with patent litigation—is a case in point. Apple derived enormous profits in this market before it faced any substantial competition. The first iPhone was released on June 29, 2007. The first serious competitor, the HTC Dream (using the Android operating system) was released on October 22, 2008. By that time, over 5 million iPhones had been sold, and sales soared to over 25 million units during the subsequent year, while the total sales of all Android-based phones were less than 7 million. In the tablet market, the iPad has had no serious competition since its release on April 10, 2010. While it is hard to prove the delayed imitation also would have occurred in the complete absence of patents, intuition suggests—and our formal model in Boldrin and Levine (2004) predicts—that there is little reason to assert patent rights while the first-mover is still active. Apple did not initially try to use patents to prevent the Android phones from coming into its market and the subsequent “patents” fight” has been taking place largely after 2010; these are consistent with a substantial first-mover advantage. However, for Apple was the delay in the Android phones entry? Largely because Apple kept its first-mover advantage in spite of a large imitative entry in this market, the value of Apple stock—during a severe market downturn—rose by a factor of approximately five. While there may have been some delay in entry from the competition due to Apple’s threat—since executed—of patent litigation, the fact is that the similar but less-successful devices had been available for a number of years before Apple finally cracked the market. Less anecdotal than the story of the iPhone is the survey of research and development managers in Cohen, Nelson, and Walsh (2000). Here, over 50 percent of managers indicate lead time (first-mover advantage) is important to earning a return on innovation; outside the pharmaceutical and medical instrument industry, less than 35 percent of managers indicate that patents are important. To understand patents in practice, it is necessary to examine the lifecycle of industries (for example, Jovanovic and MacDonald 1994; Scherer 1990). Typically a new, hence innovative, industry begins with a competitive burst of entries through which very many innovators try hard to get their product to market. In these early stages, many firms bring different versions of the new product to the market (think of the American auto industry in the early twentieth century or the software industry in the 1980s and 1990s) while demand for the new product grows rapidly and the quality of products is rapidly improved. At this stage of the industry lifecycle, the price elasticity of demand is typically high; what is important is not to dominate the market, but rather to get your own products quickly to market and to reduce costs. From the perspective of competing firms, your cost-reducing innovation is good for me in the same way that my cost-reducing innovation is good for you—hence, let us all imitate each other and compete in the market. As the industry matures, demand stabilizes and becomes much less price elastic; the scope for cost-reducing innovations decreases; the benefits of monopoly power grow; and the potential for additional product innovation shrinks. Typically there is a shakeout in which many firms either leave the industry or are bought out. The automobile industry is a classical historical example, but many readers will have a more vivid memory of the bursting of the dot-com bubble, which makes this point even more forcefully. At this stage of the industry lifecycle, rent seeking becomes important and patents are widely used to inhibit innovation, prevent entry, and encourage exit. If we look at patent litigation in practice—and as predicted by theories of first-mover competition (Boldrin and Levine 2004, among others)—it takes place when innovation is low. When an industry matures, innovation is no longer encouraged; instead, it is blocked by the ever-increasing appeal to patent protection on part of the insiders. While patent litigation has increased, few patents are actively used. Patent litigation often involves dying firms that have accumulated huge stockpile of patents but are no longer able to produce marketable products and that are now suing new and innovative firms. For example, Texas Instruments was one of the first producers of microchips, and many in our generation remember the capabilities of their first TI calculator. But Texas Instruments was unable to make the transition to the personal computer revolution and became, for a while, the symbol of a dying company trying to stay alive by suing the newcomers.^4 In more recent times, Microsoft—once the giant bestriding the software industry—has been unable to make the leap to portable devices such as telephones and tablet personal computers. Thus, Microsoft now uses patent litigation to try to claim a share of the profits Google generates in this market. Back in 1991, Bill Gates said: “If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete standstill today . . . A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose.” Today, Microsoft lobbies across Europe and Asia for the introduction of software patents, a prize it has already obtained in its home country. The cost of litigating patents is not insubstantial either. Bessen and Meurer (2008) used stock market event studies to estimate the cost of patent litigation: they estimate that during the 1990s such costs rose substantially until, at the end of the period, they constituted nearly 14 percent of total research and development costs. A related but more difficult-to-quantify phenomenon is the rise of uncertainty caused by the legal system. A case in point is the NTP Inc. patents that were used to threaten the Blackberry network with a shutdown. In 2006, Research in Motion (RIM), the producer of Blackberry, agreed to pay $612.5 million to license the patent in question from NTP (Svensson 2006). The patent was later invalidated by the court—but RIM did not get its money back (Salmon 2012). Here, the behavior of a single judge cost RIM more than half a billion dollars. In this setting, it is no surprise that patent trolls hope to get rich quickly. It is easier to list the main social welfare implications of the tradeoff between costs of legal monopoly and incentives to patent holders than it is to calculate their magnitudes. Still, the provisional evidence we have suggests that the net welfare effects of the current patent system could easily be negative. It is somewhat conventional to think of welfare losses from distortions as small, with the idea that welfare triangles due to monopoly power are small being the paradigmatic case in point. Unfortunately, monopolies have no incentive to avoid large social losses even when the private gains are small. Witness, for example, the fact that patented pharmaceutical products often sell for hundreds of times the marginal cost of production, as some astonishing pricing differences between the US and the European markets show. Most revealing is the empirical study of the Quinolones family of drugs (Chaudhuri, Goldberg, and Gia 2006). It measures the economic consequences of the introduction of pharmaceutical patents for the family of drugs and concludes the consequence of patent protection to India will be nearly $300 million in welfare losses—while the gain to the pharmaceutical companies will be less than $20 million.^5 Pharmaceuticals =============== This brings us to the controversial issue of drug patents. The standard argument says: No patents, no drugs. The total cost of developing a new drug, including failures, is quickly approaching the $1 billion mark (DiMasi, Hansen, and Grabowski 2003). So how can anyone, faced with such a gigantic fixed cost and a microscopic marginal cost of reproduction, innovate without the protection of patents? But consider the following facts: Under current law, the chemical formula and the efficacy of the cure as established by clinical trials are made available to competitors essentially for free. About 80 percent of the initial fixed cost of drug development comes from Stage III clinical trials, a public good that legislation requires be privately produced. The downstream social cost of monopoly pricing of pharmaceutical product is highest for life-saving drugs, and the cost of monopoly pricing of other pharmaceutical products is also quite high. Given all this, various economists, such as Kremer and Williams (2009), have argued that if government intervention is indeed needed in this market, a system of prizes might be superior to the existing system of monopolies. There are four things that should be born in mind in thinking about the role of patents in the pharmaceutical industry. First, patents are just one piece of a set of complicated regulations that include requirements for clinical testing and disclosure, along with grants of market exclusivity that function alongside patents. Second, it is widely believed that in the absence of legal protection, generics would hit the market side by side with the originals. This assumption is presumably based on the observation that when patents expire, generics enter immediately. However, this overlooks the fact that the generic manufacturers have had more than a decade to reverse-engineer the product, study the market, and set up production lines. Lanjouw’s (1998) study of India prior to the recent introduction of pharmaceutical patents there indicates that it takes closer to 10 years to bring a product to market after the original is introduced—in other words, the first-mover advantage in pharmaceuticals is larger than is ordinarily imagined. Third, much development of pharmaceutical products is done outside the private sector; in Boldrin and Levine (2008b), we provide some details. Finally, the current system is not working well: as Grootendorst, Hollis, Levine, Pogge, and Edwards (2011) point out, the most notable current feature of pharmaceutical innovation is the huge “drought” in the development of new products. With these four factors in mind, it is possible to make proposals for reforming the pharmaceutical industry along with the patent system. For example, we could either treat Stage II and III clinical trials as public goods (where the task would be financed by National Institutes of Health, who would accept bids from firms to carry out the work) or by allowing the commercialization of new drugs—at regulated prices equal to the economic costs of drugs—if they satisfy the Food and Drug Administration requirements for safety even if they do not yet satisfy the current (overly demanding) requirements for proving efficacy. In other words, pharmaceutical companies would be required to sell new drugs at “economic cost” until efficacy is proved, but they could start selling it at market prices after that. It is ensuring the efficiency—not the safety—of drugs that is most expensive, time-consuming, and difficult.) In this way, companies would face strong incentives to conduct or fund appropriate efficiency studies where they deem the potential market for such drugs to be large enough to bear the additional costs. The new policy could begin with drugs aimed at rare diseases, which, because of their small potential market, are not currently worth the costs of efficacy testing; without the new policy, they might never make it to market at all. If this new progressive approval approach works for rare diseases, it could be adopted across the board. Our broader point is that, rather than just ratcheting up patent protection, there are a number of moves we could make to reduce the risks and cost of developing new drugs. The Political Economy of Patents ================================ We do believe, along with many of our colleagues, that a patent system designed by impartial and disinterested economists and administered by wise and incorruptible civil servants could serve to encourage innovation. In such a system, very few patents would ever be awarded: only those for which convincing evidence existed that the fixed costs of innovation were truly very high, the costs of imitation were truly very low, and demand for the product was really highly inelastic. (The curious reader may check Boldrin and Levine, 2008a, for a more detailed explanation as to why these three conditions need to be satisfied to make a patent socially valuable). There is little dispute, among these same colleagues, that the patent system as it exists is very far from satisfying such requirements and it is, in fact, broken. To quote a proponent of patents, Shapiro (2007): “A growing chorus of scholars and practitioners are expressing concerns about the operation of the US patent system. While there is no doubt that the US economy remains highly innovative, and there is no doubt that the patent system taken as a whole plays an important role in spurring innovation, the general consensus is that the US patent system is out of balance and can be substantially improved.” Actually, we believe the evidence is clear that the patent system taken as a whole does not play an important role in spurring innovation. But if a well-designed and well-administered patent system could serve the intended purpose, why not reform it instead of abolishing it? To answer the question we need to investigate the political economy of patents: why has the political system resulted in the patent system we have? Our argument is that it cannot be otherwise: the “optimal” patent system that a benevolent economist-dictator would design and implement is not of this world. It is of course fine to recommend patent reform. But if political economy pressures make it impossible to accomplish that reform, or if they make it inevitable that the patent system will fail to meet its goals, then abolition—preferably by the constitutional means as was the case in Switzerland and the Netherlands prior to the late nineteenth century—is the proper response. This political economy logic brings us to advocate dismantlement of the patent system. The political economy of patent protection is shaped by many players, but “consumers” are not prominent among them. On one side, the side of the potential patentees, there are individual inventors, corporate inventors, and patent trolls. Other players include the patent office, the lawyers who file and litigate patents, and the courts where the litigation takes place. The rules of the game are established by some combination of legislation, judicial action, and custom. But because patenting is a technical subject about which few voters have anything with clarity, interests of voters are not well represented. In many spheres of government regulation, this lack of representation for voters has often led to “regulatory capture”—as Stigler (1971) and other public choice theorists have argued—where there is one “regulator” who is captured, it is the one in charge of regulating patents. To understand why, we need to understand the motivation and incentives of the relevant players. Let us start with the US Patent Office and the infamous “one-click” patent #5960411 issued to Amazon in September 1999. According to 35 U.S.C. 103, the statute under which the Patent Office operates, to obtain a patent “the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been not obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains . . .” Now consider the patent in question, which claims, among other things, a monopoly over: > 11. A method for ordering an item using a client system, the method comprising: displaying information identifying the item and displaying an indication of a single action that is to be performed to order the identified item; and in response to only the indicated single action being performed, sending to a server system a request to order the identified item whereby the item is ordered independently of a shopping cart model and the order is fulfilled to complete a purchase of the item. The idea of taking a single action to accomplish a goal is hardly innovative, and applying the idea of taking a single action to making a purchase is obvious to anybody who has ever used a soft drink machine. Purchases were already being made over the Internet in 1999. It was thus clear that orders would be made by a credit card, and either the credit card information would be provided at the time of the transaction, or stored in advance by the retailer. Either way, the user must identify itself when the purchase is made. Those obvious steps are exactly what Amazon describes in its patent, albeit with a few flow charts thrown into the eleven-page patent application. But through the fog of those flow charts, it is relatively easy to see that the verbal description of the single-click procedure applies equally well to what happens on the Amazon site and to what happens in front of millions of vending machines every day. The Amazon patent was reexamined by the US Patent Office starting in May 2006. After a preliminary finding that, indeed, “obvious” means “obvious” even at the Patent Office, the office then reversed itself and in October 2007, reaffirmed the Amazon patent, albeit limiting its scope slightly. So we cannot dismiss such an absurd patent as an aberration. What lead the US Patent Office to interpret, essentially, the words “not obvious” as meaning “obvious”? The Patent Office is constantly under pressure from applicants and their lawyers to be more generous in issuing patents—that is, to adopt lower standards of obviousness and steeper standards for what is considered “prior art.” The following statement by David Kappos (2010), director of the US Patent Office concerning the allowance rate—what fraction of patents are accepted—is revealing: “Overall in FY 2010, the allowance rate increased to 45.6%, compared to an allowance rate of 41.3% in FY 2009 . . . So, while we still have a lot of work to do, I think we are on the right path.” Apparently, accepting a higher fraction of patents applications is defined as “the right path.” Talk about “regulatory capture”! Patent lawyers play a large role in the political economy of patents. According to Quinn (2011), who is a patent attorney, legal fees for filing a patent run upwards of $7,000 and roughly half are rejected. In 2010, according to the US Patent Office, 244,341 patents were issued, which would imply roughly $3 billion in legal fees per year. Obviously, patent attorneys as a group have a tremendous incentive to see more patents are issued. This insight helps us understand better the role of the courts and their fairly recent reform. In 1982—lobbied by patent lawyers—Congress passed the Federal Courts Improvement Act, which moved federal patent appeals out of the regular court system to a special court system for dealing with patents. Naturally, many of the judges for this new court were chosen from the ranks of patent attorneys. For example, when a court voted, in a 1994 decision, to expand the scope of patents to software (In re Kuriappan P. Alappat, Edward E. Averill and James G. Larsen 33 F.3d 1526 [July 29, 1994]), of the six judges who voted in favor, half had previously been patent attorneys, while of the two that voted against, neither had been. The referee of the patent game is biased both materially and ideologically. As Landes and Posner (2004, p. 26) write in their discussion of the political economy of patents: “That has been the experience with the Federal Circuit; it has defined its mission as promoting technological progress by enlarging patent rights.” Notice, too, that many patent lawsuits have a public goods aspect. Consider a case in which the plaintiff is asserting that its patent has been infringed. If the plaintiff wins the lawsuit, by confirming its monopoly position it appropriates all the benefits of winning the lawsuit. A victory by the defendant, by contrast, benefits partly itself, but also other firms that might be sued by the plaintiff for patent infringing as well as consumers who would have a more competitive market. Thus, the defendant receives only a slice of the overall benefits from winning the lawsuit, and will be willing to spend less on such lawsuits than it would if it were to receive all the benefits. This dynamic is nothing but the patent court version of the (already noted) fundamental asymmetry in the distribution of economic incentives that define the foundations of the political economy of patent law. Finally, political economy can be influenced by how standard terminology frames a problem. Landes and Posner (2004) point out that there is an “ideological” argument in support of stronger patent rights: supporters of free markets tend to favor institutions of private property, and patents and copyright are intellectual “property.” Hence, strengthening them is ideologically and politically consistent with the general principle that “private property is good for growth.” But as we (Boldrin and Levine 2008B) and many others elsewhere have argued, patents are just a monopoly, not property. Given this set of players and their incentives, the patent game moves naturally towards its equilibrium, as we have observed over time. Two centuries or so ago, patents were restricted in their areas of applicability and limited in both depth and duration over time; they were somewhat “reasonable,” to the extent social gains and costs seemed balanced. But we have witnessed a steady process of enlargement and strengthening of patent laws. At each stage, the main driving force was the rent-seeking efforts of large, cash-rich companies unable to keep up with new and creative competitors. Patent lawyers, patent officials, and wannabe patent trolls usually acted as foot soldiers. While this political economy process is pretty straightforward in broad terms, we are still missing an empirical, quantitative analysis of the stakes involved and of the gains and losses accruing to both the active players and to the rest of society, from the general public to the innovators that never emerged due to preexisting patent barriers. Perhaps surprisingly, despite the key importance of political economy in understanding why we have the patent system we have, economists have had relatively little to say on the subject. The few prominent papers that we know of on this subject typically build from analyses very similar to what we have presented here—but then shy away from drawing the logical conclusions. For example, Landes and Posner (2004) recognize that patent laws are mostly designed by the groups keen to increase their monopoly rents, not aggregate welfare, and that this drove the enormous growth in patent legislation and judiciary activity during the last 30 years. The major work by Scherer (2009) on “The Political Economy of Patent Policy Reform in the United States” follows a similar approach. It focuses on the fact that “government emphasis on patent systems increased” while academic research was starting to become more and more aware that patents are playing a minor positive role, if any at all, in creating incentives for high R&D and in fostering productivity growth. After providing a concise and very well-informed historical survey of all major changes in US patent policies over the last century or so, Scherer (p. 195) wonders why the political system would increase patent protection so much in light of the fact “that the record of debates on the enabling bill contains no solid evidence that the change would stimulate R&D, and that there is no evidence of an acceleration in company-financed R&D between the 27 years before the bill was enacted and the 18 years thereafter.” He then extends the same argument to the international arena, paying particular attention to the case of pharmaceutical patents. While Scherer’s language and arguments are strongly critical of current trends in patents, he does not seek to explain why the institution, such as the patent system that was supposedly sound, would degenerate into something so socially damaging over the same 30-year period that academic researchers were realizing the institution’s limitations and potential dangerousness. In our view, even insightful writers such as Landes and Posner (2004) and Scherer (2009) seem unable to shake themselves free of the belief that patents are essential in fostering innovation and that any problems can be fixed with some tweaks to the patent system; they fail to seriously consider the possibility of intrinsic problems with the design of the institution itself. This belief in patents flies in the face of the structural realities: Marginal extensions of patents result in substantially higher per capita rents for the few holders of the right while marginally reducing the individual welfare of the much larger number of nonholders. The rent of the monopolist is a lot higher than an individual consumer’s deadweight loss, so the monopolist has an incentive to perpetuate the system while the individual consumer has no incentive to fight it. Those who possess a patent do hold a “property right” in the conventional sense of that term, but they do hold a socially granted “monopoly” right, and will tend to leverage whatever initial rents their monopoly provides in order to increase their monopoly power until all potential rents are extracted (and, in all likelihood, also large dissipated by the lobbying and transaction costs). This scenario helps explain how patents interact with the industry lifecycle—why patents are either ignored or scarcely used in new and competitive industries, while being highly valued and overused in mature and highly concentrated ones. Conclusion ========== In 1958, the distinguished economist Fritz Machlup in testimony before Congress famously said: “If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it.” A proposal to abolish patents may seem “pie in the sky.” Certainly, many interim measures could be taken to mitigate the damage caused by the current system: for example, properly enforcing the standard that patents should only be granted for nonobvious insights; requiring genuine disclosure of working methods in patents (the opposite of certain recent “protectionist” proposals to institute secret patents); and allowing an “independent invention” defense against claims of patent infringement. But why use band-aids to staunch a major wound? Economists fought for decades—ultimately with considerable success—to reduce restrictions on international trade. A similar approach, albeit less slow, should be adopted to phase out patents. Because policy proposals are often better digested and metabolized in small bites, here is our list of small reforms that could be easily implemented. 1. Patents are time limited, which makes it relatively easy to phase them out by phasing in ever shorter patent durations. This conservative approach also has the advantage that if reducing patent terms indeed has a measurable effect on innovation, the process can be reversed. 2. Stop the rising tide that, since the early 1980s, has extended the set of what can be patented and has shifted the legal and judicial balance substantially in favor of patent holders. 3. Because competition fosters productivity growth, antitrust and competition policies should seek to limit patents when they are hindering innovation. This policy may be of particular relevance for high-tech sectors, from software to bioengineering, to medical products and pharmaceuticals. 4. Current international trade negotiations that affect patents often occur as part of either the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which was signed in 1995 as part of the World Trade Organization, or as part of the World Intellectual Property Organization, an agency of the United Nations. The nature of these agreements and organizations is well indicated by the use of the propaganda term “intellectual property” in their titles. In both cases, these talks are often focused on how to prevent ideas from high-income countries from being used in low-income countries—what we would characterize as essentially a neomercantilist approach toward free trade in goods and ideas. We should be highly cautious about this agenda. Within a couple of decades, the “balance of trade in ideas” between the US and European economies and emerging economies in Asia might easily equalize or reverse. Engaging in “mercantilism of ideas” may seem favorable to certain large US firms now, but such rules may become costly to the US economy if they are applied to protect patents held in the future by producers in the now-developing Asian economies. 5. If the US economy is to have patents, we may want to start tailoring their length and breadth to different sectoral needs. Substantial empirical work needs to be done to implement this properly, although a vast legal literature is already pointing in this direction. 6. Patents should not be granted based only on the technological insights, but should also take economic evidence into account. For example, if an invention is easy to copy or has a high fixed cost, then patent protection to provide an incentive for the inventor may be more suitable. Ultimately, patents should be awarded only when strictly needed on economic grounds, as spelled out earlier. 7. We advocate returning to the rule prior to the Bayh-Dole Act of 1980 according to which the results of federally subsidized research cannot lead to patents, but should be available to all market participants. This reform would be particularly useful for encouraging the dissemination of innovation and heightening competition in the pharmaceutical industry. 8. In several industries, notably pharmaceuticals, it would be useful to rethink all of the government policies that bear on incentives for invention. The broad point is that there are a number of ways to reduce the risks and cost of developing new drugs, rather than just trying to ratchet up patent protection. In general, public policy should aim to decrease patent monopolies gradually but surely, and the ultimate goal should be the abolition of patents. After six decades of further study since Machlup’s testimony in 1958 has failed to find evidence that patents promote the common good, it is surely time to reassess his conclusion that it would be irresponsible to abolish the patent system. The patent system arose as a way to limit the power of royalty to award monopolies to favored individuals; but now its primary effect is to encourage large but stagnant incumbent firms to block innovation and inhibit competition. We are grateful to the editors, the referees, and to Richard Stallman for a careful reading and comments. ⁂ ^1: The study by Kanwar and Evenson (2001) illustrates some of the issues that arise in these kinds of studies. They have two five-year averages on 31 countries for the period 1981–1990. They find support for the idea that higher patent protection leads to higher research and development spending as a fraction of GDP. However, a different story seems equally plausible. Countries with a larger market can more easily pay the fixed costs of innovation. Indeed, one perspective is that their data essentially compares countries with relatively small economies, little intellectual property protection, and low R&D spending with countries with relatively larger economies, greater intellectual property protection, and higher R&D spending. For example, R&D spending as a fraction of GDP in their data ranges from a ten-year average of 0.2 percent in Jordan to 2.8 percent in Sweden. If we combine their data with GDP data from _The 1990 CIA World Fact Book_ to take account of the size of the economy, increasing the strength of intellectual property protection from 0 to 1 to 2 on their five-point scale does increase R&D expenditure. But as the intellectual property protection is increased further, the gains to R&D expenditure levels then falls. Even at the lower levels, we are probably observing primarily the effect of foreign direct investment: that is, among poor countries with near-zero intellectual property protection, increases in foreign direct investment and in doing so directly raise R&D spending. In higher-income countries with larger economies, foreign investment increases in intellectual property have little or no effect on innovation. ^2: For a sense of these controversies, Aghion, Bloom, Blundell, Griffith, and Howitt (2005) find an “inverted-U” relationship between the extent of competition, as measured by the inverse of mark-ups, and a measure of patenting activity, based on a dataset of US patents of UK firms. In other words, they find that the maximum innovative effect (as measured by patents) occurs at some “intermediate” position between a high and low level of competition. However, Hashmi (2011) reexamines the inverted-U relationship using data from publicly traded US manufacturing firms and finds a robust positive relationship between the inverse of markups and citation-weighted patents. Correa (2012) reexamines the same dataset of UK firms and shows that the prediction of an inverted-U is overturned when allowing for the possibility that innovations follow a “memory process,” where the current probability of introducing a new innovation increases when a firm successfully innovated in the previous period. He also finds a structural break in the data in 1981, when the Court of Appeals for the Federal Circuit was established to hear appeals of patent cases. Overall, Correa finds a positive innovation-competition relationship for the memory industries before the 1982 reform, but no relationship between innovation and competition for those industries that he classifies as memory-less. ^3: A more subtle point is that secrecy may bias the type of inventive activity away from innovation that are not easily kept secret to those that can be. In this symposium, Moser offers some of the historical evidence on this point. ^4: Texas Instruments is such an important source of litigation that empirical work on patent litigation usually uses a dummy variable for TI. Empirical studies of the importance of firms no longer doing business in an industry to litigation can be found in Bessen and Meurer (2005) and Hall and Ziedonis (2007). ^5: Although the focus of this paper is on patents rather than copyright, it is worth noting that most of the copyright wars revolve around measures to prevent piracy, empirically a relatively minor factor as far as profits of media corporations are concerned (see for example Sinha, Machado, and Sellman 2010; Danaher, Dhanasobhon, Smith, and Telang 2010; Sanchez 2012). * References ========== Here is the transcribed text from the image: --- **Aghion, Philippe, Nick Bloom, Richard Blundell, Rachel Griffith, and Peter Howitt. 2005.** “Competition and Innovation: An Inverted-U Relationship.” *Quarterly Journal of Economics* 120(2): 701–728. **Boldrin, Michele, Juan Correa Allamand, David K. Levine, and Carmine Ornaghi. 2011.** “Competition and Innovation.” In *Cato Papers on Public Policy,* Vol. 1, edited by J. A. Miron, 109–172. Cato Institute. **Boldrin, Michele, and David K. Levine. 2004.** “Rent Seeking and Innovation.” *Journal of Monetary Economics* 51(1): 127–60. **Boldrin, Michele, and David K. Levine. 2005.** “The Economics of Ideas and Intellectual Property.” *Proceedings of the National Academy of Sciences* 102(1): 1252–56. **Boldrin, Michele, and David K. Levine. 2008a.** “Perfectly Competitive Innovation.” *Journal of Monetary Economics* 55(3): 435–53. **Boldrin, Michele, and David K. Levine. 2008b.** *Against Intellectual Monopoly.* Cambridge University Press. **Bessen, James, and Michael J. Meurer. 2005.** “The Patent Litigation Explosion.” BU School of Law Working Paper 05-18, Boston University. **Bessen, James, and Michael J. Meurer. 2008.** *Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk.* Princeton University Press. **Brec, Eric. 2008.** “NIHilism and Other Innovation Poison.” *MSDN Blogs,* November 1. http:// blogs.msdn.com/b/eric_brec/archive /2008/11/01/nihilism-and-other-innovation-poison.aspx. **Chaudhuri, Shubham, Pinelopi K. Goldberg, and Panie Gia. 2006.** “Estimating the Effects of Global Patent Protection in Pharmaceuticals: A Case Study of Quinolones in India.” *American Economic Review* 96(5): 1477–1514. **Cohen, Wesely M., Richard R. Nelson, and John P. Walsh. 2000.** “Protecting Their Intellectual Assets: Appropriability Conditions and Why U.S. Manufacturing Firms Patent (or Not).” NBER Working Paper 7552. **Correa, Juan A. 2012.** “Innovation and Competition: An Unstable Relationship.” *Journal of Applied Econometrics* 27(1): 160–66. **Danaher, Brett, Samita Dhanasobhon, Michael D. Smith, and Rahul Telang. 2010.** “Converting Pirates without Cannibalizing Purchasers: The Impact of Digital Distribution on Physical Sales and Internet Piracy." March 3. Available at SSRN: http://ssrn.com/abstract=1381827 or http://dx.doi.org/10.2139/ssrn.1381827. **DiMasi, Joseph A., Ronald W. Hansen, and Henry G. Grabowski.** 2003. "The Price of Innovation: New Estimates of Drug Development Costs." *Journal of Health Economics* 22(2): 151–85. **Gallini, Nancy T.** 2002. "The Economics of Patents: Lessons from Recent U.S. Patent Reform." *Journal of Economic Perspectives* 16(2): 131–154. **Gates, Bill.** 1991. "Challenges and Strategy." Memo, Microsoft Corporation, May 16. http://www.std.com/obi/Bill_Gates/Challenges_and_Strategy/. **Grootendorst, Paul, Aidan Hollis, David K. Levine, Thomas Pogge, and Aled M. Edwards.** 2011. "New Approaches to Rewarding Pharmaceutical Innovation." *CMAJ: Canadian Medical Association Journal* 183(6): 681–85. **Hall, Bronwyn H., and Rosemarie Ham Ziedonis.** 2007. "An Empirical Analysis of Patent Litigation in the Semiconductor Industry." http://citeseerx.ist.psu.edu/viewdoc/summary?doi=10.1.1.69.5271. **Hashmi, Aamir Rafique.** 2011. "Competition and Innovation: The Inverted-U Relationship Revisited." Available at SSRN: http://ssrn.com/abstract=1762388 or http://dx.doi.org/10.2139/ssrn.1762388. **Heller, Michael.** 2008. *The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives.* Basic Books. **Hong, Sungook.** 2001. *Wireless: from Marconi’s Black-Box to the Audion.* MIT University Press. **Jaffe, Adam B.** 2000. "The U.S. Patent System in Transition: Policy Innovation and the Innovation Process." *Research Policy* 29(4–5): 531–57. **Jovanovic, Boyan, and Glenn M. MacDonald.** 1994. "The Life Cycle of a Competitive Industry." *Journal of Political Economy* 102(2): 322–47. **Karwar, Sunil, and Robert Evenson.** 2001. "Does Intellectual Property Protection Spur Technological Change?" Levine’s Working Paper Archive, no. 122247000000000455. **Kappos, David.** 2010. "Reflections on the USPTO Dashboard." *Director’s Forum: on David Kappos’s Public Blog,* October 13. http://www.uspto.gov/blog/director/entry/reflections_on_the_uspto_dashboard. **Kremer, Michael, and Heidi Williams.** 2009. "Incentivizing Innovation: Adding to the Toolkit." In *Innovation Policy and the Economy,* vol. 10, edited by Josh Lerner and Scott Stern, 1–17. Chicago University Press. **Landes, William M., and Richard A. Posner.** 2004. *Political Economy of Intellectually Property Law.* Washington, DC: AEI-Brookings Joint Center for Regulatory Studies. **Lanjouw, Jean O.** 1998. "The Introduction of Pharmaceutical Product Patents in India: Heartless Exploitation of the Poor and Suffering?" NBER Working Paper 6366. **Lerner, Josh.** 2002. "Patent Protection and Innovation over 150 Years." http://www.epip.eu/papers/20030424/epip/papers/cd/papers_speakers/Lerner_Paper_EPIP_211403.pdf (quotes are from this version). Abridged version published in 2002 as "150 Years of Patent Protection," *American Economic Review* 92(2): 221–25. **Lerner, Josh.** 2009. "The Empirical Impact of Intellectual Property Rights on Innovation: Puzzles and Clues." *American Economic Review* 99(2): 343–48. **Levin, Richard C., Alvin K. Klevorick, Richard R. Nelson, and Sidney G. Winter.** 1987. "Appropriating the Returns from Industrial Research and Development." *Brookings Papers on Economic Activity,* no. 3, Special Issue on Microeconomics, pp. 783–820. **Llanes, Gastón, and Stefano Trento.** 2009. "Patent Policy, Patent Pools, and the Accumulation of Claims in Sequential Innovation." *Economic Theory* 50(3): 703–25. **Machlup, Fritz.** 1958. "An Economic Review of the Patent System." Study commissioned by the Senate Judiciary Subcommittee on Patents, Trademarks, and Copyrights, 85th Congress, 2nd session. http://mises.org/document/1182/. **Niccolai, James.** 2012. "Android Developers Ignored Sun Patents, Google Exec Testifies." *Computerworld,* May 9. **Nuvolari, Alessandro.** 2004. "Collective Invention during the British Industrial Revolution: The Case of the Cornish Pumping Engine." *Journal of Economic History* 28(3): 347–63. **Nuvolari, Alessandro.** 2006. "The Making of Steam Power Technology: A Study of Technical Change during the British Industrial Revolution." *Journal of Economic History* 66(2): 472–76. Cambridge University Press. **Ponce, Carlos J.** 2007. "More Secrecy . . . More Knowledge Disclosure? On Disclosure Outside of Patents." Levine’s Working Paper Archive, no. 122247000000001600. **Quinn, Gene.** 2011. "The Cost of Obtaining a Patent in the US." *IPWatchdog.com,* January 28. http://www.ipwatchdog.com/2011/01/28/the-cost-of-obtaining-patent/id=14668/. **Salmon, Felix.** 2012. "Why Patent Trolls Don’t Need Valid Patents." March 4. *Reuters.* http://blogs.reuters.com/felix-salmon/2012/03/04/why-patent-trolls-dont-need-valid-patents/. **Sanchez, Julian.** 2012. "How Copyright Industries Con Congress." Posted at *Cato@Liberty,* http://www.cato-at-liberty.org/how-copyright-industries-con-congress/. **Scherer, F. M. 1990.** *Industrial Market Structure and Economic Performance*. Houghton Mifflin. **Scherer, F. M. 2009.** "The Political Economy of Patent Policy Reform in the United States." *Journal on Telecommunications and High Technology Law* 7(2):167–216. **Shapiro, Carl. 2007.** "Patent Reform: Aligning Reward and Contribution." NBER Working Paper 13141. **Shulman, Seth. 2003.** *Unlocking the Sky: Glenn Hammond Curtiss and the Race to Invent the Airplane*. Harper Perennial. **Sinha, Rajiv K., Fernando S. Machado, and Collin Sellman. 2010.** "Don’t Think Twice, It’s All Right: Music Piracy and Pricing in a DRM-Free Environment." *Journal of Marketing* 74(2): 40–54. **Stigler, George J. 1956.** "Industrial Organization and Economic Progress." In *The State of the Social Sciences*, edited by Leonard D. White, 269–82. University of Chicago Press. **Stigler, George J. 1971.** "The Theory of Economic Regulation." *Bell Journal of Economics and Management Science* 2(1): 3–21. **Svensson, Peter. 2006.** "Long-Running Blackberry Patent Battle Ends with $612.5 Million Settlement." *The Daily Reporter (Associated Press)*, March 4. http://news.google.com/newspapers? nid=1907&dat=20060304&id=5bVGAAAAIBAJ& sjid=0MAAAAAIBAJ&pg=4340,273762. **US Central Intelligence Agency, n.a.** *The 1990 CIA World Fact Book*. Available from Project Gutenberg: http://ia700401.us.archive.org/32/items /the1990ciaworldf00014gut/world12.txt. Original: https://pubs.aeaweb.org/doi/pdfplus/10.1257/jep.27.1.3 ⇧ /# ⇧ |
Michele Boldrin and David K. Levine |
2013 |
10396 |
52 |
| There Is Never A Need To Justify Sharing Culture And Knowledge |
There Is Never A Need To Justify Sharing Culture And Knowledge ============================================================== by Rick Falkvinge https://falkvinge.net/author/rick-falkvinge/ Rick Falkvinge December 19, 2012 Original: https://falkvinge.net/2012/12/19/there-is-never-a-need-to-justify-sharing-culture-and-knowledge/ Just as some misguided people react with hostility to the fact that the copyright monopoly is not a birthright, they can react with hostility and demand a response to how sharing is “justified”. This, too, is misguided. One example could be seen in the Reddit thread about The Pirate Bay being the world’s most efficient public library. For a while, the top comment was “whatever helps you justify it” (as in, “invent whatever excuse you like to try justifying the sharing of culture”). This is a misguided expression based on the false premise that sharing knowledge and culture needs to be justified. It is completely the other way around. Humankind and civilization have advanced due to and because of people sharing knowledge and culture, and humankind has never advanced when culture and knowledge have been locked up and contained. Sharing knowledge, information, and culture is also a good deed on an individual-to-individual basis. Whenever the ability to share and partake in knowledge and culture has been prevented, such as the burning of the library at Alexandria, it has always been regarded as a disaster for humanity in the history books. And yet, some people believe that sharing—whether over The Pirate Bay, direct handover, or whatever other mechanism—needs to be justified. https://thepiratebay.org/ The Pirate Bay It is true that the copyright monopoly has come at odds with the natural behavior of sharing and the right to share. But to enforce this monopoly, much more vital ideas in society—such as the postal secret—must be sacrificed, not to mention our cultural heritage. That is neither just nor reasonable, so that is what needs justification. It’s not just the copyright monopoly law itself that needs to be justified, but also individual compliance with the unjust monopoly law, on a case-by-case basis. When somebody angrily asks you how you can share this and that knowledge “without permission”, state it as it is, that they are misguided, and ask how they could possibly justify requiring permission to share knowledge and culture. That goes counter to all of humanity’s history. Also, make sure to make a point that sharing never requires any kind of justification. (The current copyright monopoly laws are not enough of a justification, obviously, as they are unjust and completely out of touch with people’s actual and natural behavior.) Sharing knowledge and culture is the natural state. Therefore, any restrictions on sharing require very careful and strict justification. ⁂ Original: https://falkvinge.net/2012/12/19/there-is-never-a-need-to-justify-sharing-culture-and-knowledge/ ⇧ /# ⇧ |
Rick Falkvinge |
2012 |
479 |
2.4 |
| The Pirate Bay's Peter Sunde: It's Evolution, Stupid |
The Pirate Bay's Peter Sunde: It's Evolution, Stupid ==================================================== by Peter Sunde http://brokep.com/ Peter Sunde February 13, 2012 Original: https://www.wired.com/story/peter-sunde-evolution/ When I was 9 years old I got my first computer, an Amiga 500. It was the best computer ever built, with great graphics, amazing sound and seven times faster than the Commodore 64. One of my friends said that the Amiga was useless since you needed to boot it from floppies. On the C64 you could program without even a cassette. Of course the C64 died while the Amiga flourished. The Amiga later died when even better technology came along. We all know how evolution works, except one industry that refuses to evolve: the entertainment industry. Instead of looking at evolution as something inevitable, the industry has made it their business to refuse and/or sue change, by any necessary means. In the case of The Pirate Bay, it's been particularly obvious. My fellow co-founders—Fredrik Neij and Gottfrid Svartholm—and I were convicted in 2009 of contributory copyright infringement. Last week the Supreme Court of Sweden refused to hear our appeal. We each face between four months and one year in prison. My sentence was eight months. https://thepiratebay.org/ The Pirate Bay Of course I would have preferred to win in the Supreme Court as personal vindication and to vacate my sentence. But beyond that, the Court has squandered a golden opportunity to define how to interpret the European Union directives for digital information. That decision not to decide has prompted many legal experts in Sweden to question the motives of denying the appeal. But the questionable decisions started long before that. The Swedish prosecutor sent out a memo in 2006 saying that TPB wasn't guilty of “main” crimes—at best it aids and abets (he also mentioned that the people running TPB were very clever). But Hollywood was not happy with this and forced the Swedish Minister of Justice to visit the White House and talk about it. The United States told Sweden that if they didn't get rid of the site, they would not be allowed to trade with the U.S.! The minister (illegally) told the prosecutor what had happened which forced him to raid TPB—only a few weeks after sending out that memo about how legal it was. Evidently, Warner Brothers felt that the investigation was taking too long. The studio contacted the police officer in charge of the investigation (one person that worked mostly by himself) and before I had even been questioned by him, he interviewed for a job with Warner Brothers. When we found out he'd been hired (by him changing his employer from “Polisen” to “Warner Bros” on Facebook) the reply we got was that it was proof that Swedish IT police are of such high caliber that even the big U.S. companies would hire them. I got promoted from “witness” to “suspect” a week after the job was promised. During the trial it turned out that the judge was the chairman for the Swedish pro-copyright society, one lay judge ran a record company, another one was formerly the chairman for the songwriter lobby organization. I could go on. The problem here is that we're allowing this dying industry to dictate the terms of our democracy. We allow them to dictate new laws (ACTA, SOPA, PIPA, IPRED, IPRED2, TPP, TRIPS, to name a few recent ones) that forbid evolution. If you don't give up before you're sued, they corrupt the legal system. As I wrote immediately after the Supreme Court's refusal to hear our appeal: > Today I urge everyone to make sure that the entertainment industry does not profit from them anymore. Stop seeing their movies. Stop listening to their music. Make sure that you find alternative ways to culture. > > Spread and participate in culture. Remix, reuse, use, abuse. Make sure no one controls your mind. Create new systems and technology that circumvent the corruption. Start a religion. Start your own nation, or buy one. Buy a bus. Crush it to pieces. The internet is being controlled by a corrupt industry. We need to stop it. _This article was originally published by WIRED UK._ _Update: Due to an editing error, Carl Lundström was identified as a co-founder of The Pirate Bay. Though Lundström was convicted, he and the three co-founders say he wasn't involved in the site._ ⁂ Original: https://www.wired.com/story/peter-sunde-evolution/ ⇧ /# ⇧ |
Peter Sunde |
2012 |
766 |
3.8 |
| The First Church of Pirate Bay |
The First Church of Pirate Bay ============================== by Isak Gerson and Rollo Romig https://www.newyorker.com/contributors/rollo-romig Isak Gerson and Rollo Romig January 12, 2012 Original: https://www.newyorker.com/culture/culture-desk/the-first-church-of-pirate-bay _A profile of Isak Gerson, founder and spiritual leader of the Missionary Church of Kopimism._ https://www.isakgerson.se/ Isak Gerson The city of Uppsala has seen its share of religious congregations. In ancient times, it was the main pagan center of Sweden, famed for its temple to the Old Norse gods. In the Middle Ages, it became a Christian stronghold. Today, Uppsala is home to Isak Gerson, a bright, polite, twenty-year-old philosophy student and the spiritual leader of the Missionary Church of Kopimism, which last week became Sweden’s newest registered religion. Modern Sweden isn’t known as a particularly religious place: in a recent poll, only seventeen per cent of Swedes said that faith is an important part of their lives. But Sweden is known, in recent years, as a hotbed of online piracy and anti-copyright activism. That’s the tradition from which Kopimism arises. The religion’s history goes something like this: In 2001, a lobby group called the Antipiratbyrån—the Anti-Piracy Bureau—was formed in Sweden to combat copyright infringement. In 2003, members of a growing free-information movement copied the lobby group’s name, but removed the “anti,” calling themselves Piratbyrån—the Piracy Bureau. Later that same year, Piratbyrån created a Web site called The Pirate Bay, which quickly became the world’s most notorious source for downloading feature films, TV shows, and software. In 2005, Ibrahim Botani, a Kurdish immigrant to Sweden and a central figure in Piratbyrån, designed a kind of un-copyright logo called “kopimi” (pronounced “copy me”). Adding the kopimi mark to a work of intellectual property indicates that you not only give permission for it to be copied but actively encourage it. After Botani died unexpectedly, in 2010, Piratbyrån decided to disband. But The Pirate Bay still thrives, despite an ongoing criminal case against its operators. And in 2006, Rick Falkvinge founded Sweden’s Pirate Party, a political party that runs on a pro-Internet platform, with special emphasis on copyright and patent reform. Gerson is an active member: “I’ve been managing local campaigns for the election,” he told me. “And I’ve been working a lot with the Young Pirates Association—the youth wing of the Party.” The Missionary Church of Kopimism picks up where Piratbyrån left off: it has taken the values of Swedish Pirate movement and codified them into a religion. They call their central sacrament “kopyacting,” wherein believers copy information in communion with each other, most always online, and especially via file-sharing. Ibi Botani’s kopimi mark—a stylized “k” inside a pyramid—is their religious symbol, as are CTRL+C and CTRL+V. Where Christian clergy might sign a letter “yours in Christ,” Kopimists write, “Copy and seed.” They have no god. “We see the world as built on copies,” Gerson told me. “We often talk about originality; we don’t believe there’s any such thing. It’s certainly that way with life—most parts of the world, from DNA to manufacturing, are built by copying.” The highest form of worship, he said, is the remix: “You use other people’s works to make something better.” Fittingly, it was exactly this kind of collaborative spirit that led to the founding of the Missionary Church of Kopimism. In a blog post last week, Peter Sunde, one of the founders of The Pirate Bay, suggested that Kopimism as a religion had originated from a comment made by one of its opponents. Several years ago, he wrote, a Swedish lawyer for the M.P.A.A. was asked about file-sharing advocates. She replied, “It’s just a few people, very loud. They’re a cult. They call themselves Kopimists.” Sunde thought this cult business sounded like a good idea, and looked into registering Kopimism as a religion, but never followed through. Gerson did. “This is one of the essential things with how the internet and kopimism works,” Sunde wrote. “If you don’t do it, someone else will.” In Sweden, the separation of church and state became law on January 1, 2000, the day that the Lutheran Church of Sweden stopped being the official state church. Since then, a government agency called the Kammarkollegiet has accepted applications for the legal recognition of religions. “They don’t make any kind of assessment of what the beliefs are, and the association is not sanctioned by the state,” Anders Bäckström, a professor of the sociology of religion at Uppsala University, told me. But the recognition of Kopimism, he said, is “a new situation. We haven’t seen anything of its kind before.” The most comparable previous effort was in 2008, when Carlos Bebeacua, a Uruguayan artist living in Sweden, attempted to register the Church of the Madonna of the Orgasm. The Kammarkollegiet refused his application, and in 2010 the Administrative Court of Appeal upheld the rejection, arguing that the “madonna” (but not the “orgasm”) part of the church’s name would “cause offense not only in the broad groups of the population that have Christian roots, but also in society as a whole.” Kopimism apparently raised no such qualms. Or maybe the Kopimists are just better than the Orgasmists at filling out government paperwork. “It’s exactly the same process as registering a business company,” Professor Bäckström said. But he thinks it’s unlikely that Kopimism’s success will inspire a flood of new applications. “In Sweden, we have many small New Age groups, but most of them have made no effort to be recognized,” he said. “Being recognized might mean they are opened to government scrutiny.” For the Missionary Church of Kopimism, which holds up privacy as one of its chief values, such scrutiny could be a big problem, and it’s not clear what they’ll gain from registration. “We don’t really get any formal rights or benefits,” Gerson said. “We can apply for the right to marry people. There is government aid we can apply for, but we have no such plans today. I don’t, at least.” Rick Falkvinge, the Pirate Party founder, speculated that if the Church incorporated the seal of confession into its rites, members could take advantage of the confidentiality that comes with certain privileged conversations. Generally, though, Sweden offers few legal exemptions for religious practice. No one, Gerson included, has any expectation that registration will exempt Church members from copyright law. “What the registration has done mostly is strengthen our identity,” Gerson said. “I think it will be easier to find new members now that we’re recognized.” I asked him if he’d seen a boost in converts since the news broke. “I actually haven’t checked,” he said. “If you want I could do it right now.” There was a pause while he logged on to the registry: to join the Missionary Church of Kopimism simply requires filling out an online form, as easy as signing up for a mailing list. “Right now we have a little more than four thousand,” he said, with no particular enthusiasm. “We got twelve hundred new members in the last week.” Gerson told me that religious persecution is a “big concern” for the church’s adherents. “We all fear going to court for copyright infringement,” he said. This, of course, has been a worry for file-sharers long before it was formalized as a religion. What the Missionary Church of Kopimism has done is almost a reverse of how religious persecution usually works: whereas religions have often turned to protest because they feel persecuted, Gerson and his followers, feeling persecuted, turned to religion, in order to reframe and get attention for their protest. (It may sound silly to speak of file-sharing in terms of persecution, but when you think of the case of Thomas Drake, or of Bradley Manning, it seems a little less silly.) And Kopimism is hardly the only faith to have been inspired or shaped by a particular political cause. The Rastafari movement, for example, is as much an anti-colonial resistance movement as it is a religion. When Gerson talks about Kopimism as a religion, his tone is good-humored, but he also comes off as disarmingly sincere. Even if this religious-registration business is just a bit of political theatre, there’s no doubt that there’s an honestly and deeply held conviction at its core: the free exchange of information as a fundamental right. But is that enough to make it a genuine religion? When I asked Professor Bäckström, he hesitated. “Today you can believe in anything, so I suppose the idea of belief is a minor issue in a Northern European setting,” he said. “Belief can be a very wide concept.” He admitted, though, that he suspects that Kopimism is primarily an activist prank. “I don’t think it’s a joke at all,” Gerson told me. “I think that many religions have been ridiculed over the years. I don’t think we’re the first to experience it.” The pirate movement’s political arm, the Pirate Party, provides one possible future path for Kopimism. People didn’t take the Pirate Party seriously at first, either. Then its membership exceeded that of the Green Party, and then the Liberal Party and the Christian Democrats, and then the Centre Party, and then the Young Pirates Association became the largest youth organization of any Swedish political party, and then several other parties and a number of prominent politicians shifted their stances on piracy in a more pirate-friendly direction, and then the Party spread to forty countries. Now the Pirate Party actually holds two seats in the European Parliament. These are early days for the Missionary Church of Kopimism. Who can say how far its gospel will spread? ⁂ Original: https://www.newyorker.com/culture/culture-desk/the-first-church-of-pirate-bay ⇧ /# ⇧ |
Isak Gerson and Rollo Romig |
2012 |
1696 |
8.5 |
| It’s Time to Stop Talking About Copyright |
It’s Time to Stop Talking About Copyright ========================================= by Cory Doctorow https://x.com/doctorow Cory Doctorow November 2, 2011 Original: https://locusmag.com/2011/11/cory-doctorow-its-time-to-stop-talking-about-copyright/ I inaugurated this column in 2008 with an editorial called ‘‘Why I Copyfight’’, which talked about the tricky balance between creativity, culture, and the relationship between audiences and creators. These have always been hard subjects, and the Internet has made them harder still, because the thing that triggers copyright rules – copying – is an intrinsic part of the functioning of the Internet and computers. There’s really no such thing as ‘‘loading’’ a web-page – you make a copy of it. There’s really no such thing as ‘‘reading’’ a file off a hard-drive – you _copy_ it into memory. The story of modern Internet regulation and copyright goes back (at least) to 1995 and Al Gore’s National Information Infrastructure hearings, where Bruce Lehman, Bill Clinton’s copyright czar, pushed for expansive new copyright rules for the net. These proposals were pretty bonkers, so Gore sent him packing, and he scurried off to Geneva, to the UN’s World Intellectual Property Organization, where he instigated the WIPO Copyright Treaty, which became US law in 1998, as the Digital Millennium Copyright Act. We’ve been arguing about copyright and the Internet for at least 16 years now, and the arguments keep going back and forth over well-defined ground, wearing deep grooves in the discourse. But a funny thing happened on the way to the 21st century: copyright policy ceased to exist. Because every copyright policy that we make has a seismic effect on the Internet, and because you can’t regulate copying without regulating the Internet. For example, take the matter of ‘‘intermediary liability,’’ the kind of abstract subject that was once the exclusive purview of genuine copyright nerds. In law, intermediary liability is the liability borne by service providers and other entities that transmit or host material that infringes copyright. One of the major questions that’s burned up the copyright debate for 16 years is whether ISPs, web-hosting companies and other ‘‘intermediaries’’ can be found liable for their users’ infringements, and if so, under what circumstances. But this isn’t a copyright policy. Intermediaries carry plenty of material that has nothing to do with the copyright wars – political videos during election season, first-hand accounts of war crimes, private videos of kids playing in the bath, emails between doctors and patients (or attorneys and clients), and much more besides. Viacom, in its billion-dollar copyright lawsuit against YouTube, asked the court to declare that intermediaries should be forced to disable privacy features on their services so that every hosted file could be examined by its copyright enforcement bots. If the Internet consisted of nothing but entertainment content, that might make sense, but entertainment’s the Internet’s sideshow, while the main event is _everything else_ we do online. Various record industry legal theories have asked courts to hold that universities and colleges should be held liable for students’ illegal music downloads unless they install network spyware that snoops on all the network’s communications to find the ‘‘bad stuff.’’ If campus networks were nothing but glorified TV and radio delivery systems this might make sense, but for universities, the main thing that the Internet enables is free intellectual inquiry, and the entertainment stuff is just a diversion between scholarly pursuits. The disconnection laws that the entertainment industry has bought for itself in the UK, New Zealand and France provide for removing whole households from the Internet on the strength of their copyright accusations. If the net were just cable TV, this might make sense, but for families all over the world, the net is work, socialization, health, education, access to tools and ideas, freedom of speech, assembly and the press, as well as the conduit to political and civic engagement. There just isn’t such a thing as ‘‘copyright policy’’ anymore. Every modern copyright policy becomes _Internet policy_ – policy that touches on every aspect of how we use the net. And as we make the transition from a world where everything we do includes an online component to a world where everything we do _requires_ an online component, it’s becoming the case that there’s no such thing as ‘‘Internet policy’’ – there’s just _policy_. I’m all for sorting out the rules that govern the entertainment’s supply chain, but let’s keep some perspective here: when we ‘‘solve’’ copyright problems at the expense of the Internet, we solve them at the expense of 21st-century society as a whole. When musician Don Henley writes in _USA Today_ in support of the proposed PROTECT-IP Act, which will establish a national Internet censorship regime in the USA, ostensibly to fight copyright infringement, he says that free speech doesn’t enter into it, because ‘‘piracy’’ isn’t a form of free speech. This is why it’s time to stop talking about copyright and creativity and start talking about the Internet. Because someone can be as smart and talented as Don Henley and still think that you can establish nationwide networked surveillance and censorship and all you’re going to touch on is ‘‘piracy.’’ For so long as we go on focusing this debate on artists, creativity, and audiences – instead of free speech, privacy, and fairness – we’ll keep making the future of society as a whole subservient to the present-day business woes of one industry. ⁂ Original: https://locusmag.com/2011/11/cory-doctorow-its-time-to-stop-talking-about-copyright/ ⇧ /# ⇧ |
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| Why Software Should Be Free |
Why Software Should Be Free =========================== by Richard Stallman https://www.stallman.org/ Richard Stallman July 1, 2011 Original: https://www.gnu.org/philosophy/shouldbefree.en.html The existence of software inevitably raises the question of how decisions about its use should be made. For example, suppose one individual who has a copy of a program meets another who would like a copy. It is possible for them to copy the program; who should decide whether this is done? The individuals involved? Or another party, called the “owner”? Software developers typically consider these questions on the assumption that the criterion for the answer is to maximize developers' profits. The political power of business has led to the government adoption of both this criterion and the answer proposed by the developers: that the program has an owner, typically a corporation associated with its development. I would like to consider the same question using a different criterion: the prosperity and freedom of the public in general. This answer cannot be decided by current law—the law should conform to ethics, not the other way around. Nor does current practice decide this question, although it may suggest possible answers. The only way to judge is to see who is helped and who is hurt by recognizing owners of software, why, and how much. In other words, we should perform a cost-benefit analysis on behalf of society as a whole, taking account of individual freedom as well as production of material goods. In this essay, I will describe the effects of having owners, and show that the results are detrimental. My conclusion is that programmers have the duty to encourage others to share, redistribute, study, and improve the software we write: in other words, to write “free” software.^1 https://www.gnu.org/philosophy/free-sw.html “free” software How Owners Justify Their Power ============================== Those who benefit from the current system where programs are property offer two arguments in support of their claims to own programs: the emotional argument and the economic argument. The emotional argument goes like this: “I put my sweat, my heart, my soul into this program. It comes from _me_, it's _mine_!” This argument does not require serious refutation. The feeling of attachment is one that programmers can cultivate when it suits them; it is not inevitable. Consider, for example, how willingly the same programmers usually sign over all rights to a large corporation for a salary; the emotional attachment mysteriously vanishes. By contrast, consider the great artists and artisans of medieval times, who didn't even sign their names to their work. To them, the name of the artist was not important. What mattered was that the work was done—and the purpose it would serve. This view prevailed for hundreds of years. The economic argument goes like this: “I want to get rich (usually described inaccurately as ‘making a living’), and if you don't allow me to get rich by programming, then I won't program. Everyone else is like me, so nobody will ever program. And then you'll be stuck with no programs at all!” This threat is usually veiled as friendly advice from the wise. I'll explain later why this threat is a bluff. First I want to address an implicit assumption that is more visible in another formulation of the argument. This formulation starts by comparing the social utility of a proprietary program with that of no program, and then concludes that proprietary software development is, on the whole, beneficial, and should be encouraged. The fallacy here is in comparing only two outcomes—proprietary software versus no software—and assuming there are no other possibilities. Given a system of software copyright, software development is usually linked with the existence of an owner who controls the software's use. As long as this linkage exists, we are often faced with the choice of proprietary software or none. However, this linkage is not inherent or inevitable; it is a consequence of the specific social/legal policy decision that we are questioning: the decision to have owners. To formulate the choice as between proprietary software versus no software is begging the question. The Argument against Having Owners ================================== The question at hand is, “Should development of software be linked with having owners to restrict the use of it?” In order to decide this, we have to judge the effect on society of each of those two activities _independently_: the effect of developing the software (regardless of its terms of distribution), and the effect of restricting its use (assuming the software has been developed). If one of these activities is helpful and the other is harmful, we would be better off dropping the linkage and doing only the helpful one. To put it another way, if restricting the distribution of a program already developed is harmful to society overall, then an ethical software developer will reject the option of doing so. To determine the effect of restricting sharing, we need to compare the value to society of a restricted (i.e., proprietary) program with that of the same program, available to everyone. This means comparing two possible worlds. This analysis also addresses the simple counterargument sometimes made that “the benefit to the neighbor of giving him or her a copy of a program is cancelled by the harm done to the owner.” This counterargument assumes that the harm and the benefit are equal in magnitude. The analysis involves comparing these magnitudes, and shows that the benefit is much greater. To elucidate this argument, let's apply it in another area: road construction. It would be possible to fund the construction of all roads with tolls. This would entail having toll booths at all street corners. Such a system would provide a great incentive to improve roads. It would also have the virtue of causing the users of any given road to pay for that road. However, a toll booth is an artificial obstruction to smooth driving—artificial, because it is not a consequence of how roads or cars work. Comparing free roads and toll roads by their usefulness, we find that (all else being equal) roads without toll booths are cheaper to construct, cheaper to run, safer, and more efficient to use.^2 In a poor country, tolls may make the roads unavailable to many citizens. The roads without toll booths thus offer more benefit to society at less cost; they are preferable for society. Therefore, society should choose to fund roads in another way, not by means of toll booths. Use of roads, once built, should be free. When the advocates of toll booths propose them as _merely_ a way of raising funds, they distort the choice that is available. Toll booths do raise funds, but they do something else as well: in effect, they degrade the road. The toll road is not as good as the free road; giving us more or technically superior roads may not be an improvement if this means substituting toll roads for free roads. Of course, the construction of a free road does cost money, which the public must somehow pay. However, this does not imply the inevitability of toll booths. We who must in either case pay will get more value for our money by buying a free road. I am not saying that a toll road is worse than no road at all. That would be true if the toll were so great that hardly anyone used the road—but this is an unlikely policy for a toll collector. However, as long as the toll booths cause significant waste and inconvenience, it is better to raise the funds in a less obstructive fashion. To apply the same argument to software development, I will now show that having “toll booths” for useful software programs costs society dearly: it makes the programs more expensive to construct, more expensive to distribute, and less satisfying and efficient to use. It will follow that program construction should be encouraged in some other way. Then I will go on to explain other methods of encouraging and (to the extent actually necessary) funding software development. The Harm Done by Obstructing Software ===================================== Consider for a moment that a program has been developed, and any necessary payments for its development have been made; now society must choose either to make it proprietary or allow free sharing and use. Assume that the existence of the program and its availability is a desirable thing.^3 Restrictions on the distribution and modification of the program cannot facilitate its use. They can only interfere. So the effect can only be negative. But how much? And what kind? Three different levels of material harm come from such obstruction: - Fewer people use the program. - None of the users can adapt or fix the program. - Other developers cannot learn from the program, or base new work on it. Each level of material harm has a concomitant form of psychosocial harm. This refers to the effect that people's decisions have on their subsequent feelings, attitudes, and predispositions. These changes in people's ways of thinking will then have a further effect on their relationships with their fellow citizens, and can have material consequences. The three levels of material harm waste part of the value that the program could contribute, but they cannot reduce it to zero. If they waste nearly all the value of the program, then writing the program harms society by at most the effort that went into writing the program. Arguably a program that is profitable to sell must provide some net direct material benefit. However, taking account of the concomitant psychosocial harm, there is no limit to the harm that proprietary software development can do. Obstructing Use of Programs =========================== The first level of harm impedes the simple use of a program. A copy of a program has nearly zero marginal cost (and you can pay this cost by doing the work yourself), so in a free market, it would have nearly zero price. A license fee is a significant disincentive to use the program. If a widely useful program is proprietary, far fewer people will use it. It is easy to show that the total contribution of a program to society is reduced by assigning an owner to it. Each potential user of the program, faced with the need to pay to use it, may choose to pay, or may forego use of the program. When a user chooses to pay, this is a zero-sum transfer of wealth between two parties. But each time someone chooses to forego use of the program, this harms that person without benefiting anyone. The sum of negative numbers and zeros must be negative. But this does not reduce the amount of work it takes to _develop_ the program. As a result, the efficiency of the whole process, in delivered user satisfaction per hour of work, is reduced. This reflects a crucial difference between copies of programs and cars, chairs, or sandwiches. There is no copying machine for material objects outside of science fiction. But programs are easy to copy; anyone can produce as many copies as are wanted, with very little effort. This isn't true for material objects because matter is conserved: each new copy has to be built from raw materials in the same way that the first copy was built. With material objects, a disincentive to use them makes sense, because fewer objects bought means less raw material and work needed to make them. It's true that there is usually also a startup cost, a development cost, which is spread over the production run. But as long as the marginal cost of production is significant, adding a share of the development cost does not make a qualitative difference. And it does not require restrictions on the freedom of ordinary users. However, imposing a price on something that would otherwise be free is a qualitative change. A centrally imposed fee for software distribution becomes a powerful disincentive. What's more, central production as now practiced is inefficient even as a means of delivering copies of software. This system involves enclosing physical disks or tapes in superfluous packaging, shipping large numbers of them around the world, and storing them for sale. This cost is presented as an expense of doing business; in truth, it is part of the waste caused by having owners. Damaging Social Cohesion ======================== Suppose that both you and your neighbor would find it useful to run a certain program. In ethical concern for your neighbor, you should feel that proper handling of the situation will enable both of you to use it. A proposal to permit only one of you to use the program, while restraining the other, is divisive; neither you nor your neighbor should find it acceptable. Signing a typical software license agreement means betraying your neighbor: “I promise to deprive my neighbor of this program so that I can have a copy for myself.” People who make such choices feel internal psychological pressure to justify them, by downgrading the importance of helping one's neighbors—thus public spirit suffers. This is psychosocial harm associated with the material harm of discouraging use of the program. Many users unconsciously recognize the wrong of refusing to share, so they decide to ignore the licenses and laws, and share programs anyway. But they often feel guilty about doing so. They know that they must break the laws in order to be good neighbors, but they still consider the laws authoritative, and they conclude that being a good neighbor (which they are) is naughty or shameful. That is also a kind of psychosocial harm, but one can escape it by deciding that these licenses and laws have no moral force. Programmers also suffer psychosocial harm knowing that many users will not be allowed to use their work. This leads to an attitude of cynicism or denial. A programmer may describe enthusiastically the work that he finds technically exciting; then when asked, “Will I be permitted to use it?” his face falls, and he admits the answer is no. To avoid feeling discouraged, he either ignores this fact most of the time or adopts a cynical stance designed to minimize the importance of it. Since the age of Reagan, the greatest scarcity in the United States is not technical innovation, but rather the willingness to work together for the public good. It makes no sense to encourage the former at the expense of the latter. Obstructing Custom Adaptation of Programs ========================================= The second level of material harm is the inability to adapt programs. The ease of modification of software is one of its great advantages over older technology. But most commercially available software isn't available for modification, even after you buy it. It's available for you to take it or leave it, as a black box—that is all. A program that you can run consists of a series of numbers whose meaning is obscure. No one, not even a good programmer, can easily change the numbers to make the program do something different. Programmers normally work with the “source code” for a program, which is written in a programming language such as Fortran or C. It uses names to designate the data being used and the parts of the program, and it represents operations with symbols such as `+` for addition and `-` for subtraction. It is designed to help programmers read and change programs. Here is an example; a program to calculate the distance between two points in a plane: ``` float distance (p0, p1) struct point p0, p1; { float xdist = p1.x - p0.x; float ydist = p1.y - p0.y; return sqrt (xdist * xdist + ydist * ydist); } ``` Precisely what that source code means is not the point; the point is that it looks like algebra, and a person who knows this programming language will find it meaningful and clear. By contrast, here is same program in executable form, on the computer I normally used when I wrote this: ``` 1314258944 -232267772 -231844864 1634862 1411907592 -231844736 2159150 1420296208 -234880989 -234879837 -234879966 -232295424 1644167167 -3214848 1090581031 1962942495 572518958 -803143692 1314803317 ``` Source code is useful (at least potentially) to every user of a program. But most users are not allowed to have copies of the source code. Usually the source code for a proprietary program is kept secret by the owner, lest anybody else learn something from it. Users receive only the files of incomprehensible numbers that the computer will execute. This means that only the program's owner can change the program. A friend once told me of working as a programmer in a bank for about six months, writing a program similar to something that was commercially available. She believed that if she could have gotten source code for that commercially available program, it could easily have been adapted to their needs. The bank was willing to pay for this, but was not permitted to—the source code was a secret. So she had to do six months of make-work, work that counts in the GNP but was actually waste. The MIT Artificial Intelligence Lab (AI Lab) received a graphics printer as a gift from Xerox around 1977. It was run by free software to which we added many convenient features. For example, the software would notify a user immediately on completion of a print job. Whenever the printer had trouble, such as a paper jam or running out of paper, the software would immediately notify all users who had print jobs queued. These features facilitated smooth operation. Later Xerox gave the AI Lab a newer, faster printer, one of the first laser printers. It was driven by proprietary software that ran in a separate dedicated computer, so we couldn't add any of our favorite features. We could arrange to send a notification when a print job was sent to the dedicated computer, but not when the job was actually printed (and the delay was usually considerable). There was no way to find out when the job was actually printed; you could only guess. And no one was informed when there was a paper jam, so the printer often went for an hour without being fixed. The system programmers at the AI Lab were capable of fixing such problems, probably as capable as the original authors of the program. Xerox was uninterested in fixing them, and chose to prevent us, so we were forced to accept the problems. They were never fixed. Most good programmers have experienced this frustration. The bank could afford to solve the problem by writing a new program from scratch, but a typical user, no matter how skilled, can only give up. Giving up causes psychosocial harm—to the spirit of self-reliance. It is demoralizing to live in a house that you cannot rearrange to suit your needs. It leads to resignation and discouragement, which can spread to affect other aspects of one's life. People who feel this way are unhappy and do not do good work. Imagine what it would be like if recipes were hoarded in the same fashion as software. You might say, “How do I change this recipe to take out the salt?” and the great chef would respond, “How dare you insult my recipe, the child of my brain and my palate, by trying to tamper with it? You don't have the judgment to change my recipe and make it work right!” “But my doctor says I'm not supposed to eat salt! What can I do? Will you take out the salt for me?” “I would be glad to do that; my fee is only $50,000.” Since the owner has a monopoly on changes, the fee tends to be large. “However, right now I don't have time. I am busy with a commission to design a new recipe for ship's biscuit for the Navy Department. I might get around to you in about two years.” Obstructing Software Development ================================ The third level of material harm affects software development. Software development used to be an evolutionary process, where a person would take an existing program and rewrite parts of it for one new feature, and then another person would rewrite parts to add another feature; in some cases, this continued over a period of twenty years. Meanwhile, parts of the program would be “cannibalized” to form the beginnings of other programs. The existence of owners prevents this kind of evolution, making it necessary to start from scratch when developing a program. It also prevents new practitioners from studying existing programs to learn useful techniques or even how large programs can be structured. Owners also obstruct education. I have met bright students in computer science who have never seen the source code of a large program. They may be good at writing small programs, but they can't begin to learn the different skills of writing large ones if they can't see how others have done it. In any intellectual field, one can reach greater heights by standing on the shoulders of others. But that is no longer generally allowed in the software field—you can only stand on the shoulders of the other people in your own company. The associated psychosocial harm affects the spirit of scientific cooperation, which used to be so strong that scientists would cooperate even when their countries were at war. In this spirit, Japanese oceanographers abandoning their lab on an island in the Pacific carefully preserved their work for the invading U.S. Marines, and left a note asking them to take good care of it. Conflict for profit has destroyed what international conflict spared. Nowadays scientists in many fields don't publish enough in their papers to enable others to replicate the experiment. They publish only enough to let readers marvel at how much they were able to do. This is certainly true in computer science, where the source code for the programs reported on is usually secret. It Does Not Matter How Sharing Is Restricted ============================================ I have been discussing the effects of preventing people from copying, changing, and building on a program. I have not specified how this obstruction is carried out, because that doesn't affect the conclusion. Whether it is done by copy protection, or copyright, or licenses, or encryption, or ROM cards, or hardware serial numbers, if it succeeds in preventing use, it does harm. Users do consider some of these methods more obnoxious than others. I suggest that the methods most hated are those that accomplish their objective. Software Should be Free ======================= I have shown how ownership of a program—the power to restrict changing or copying it—is obstructive. Its negative effects are widespread and important. It follows that society shouldn't have owners for programs. Another way to understand this is that what society needs is free software, and proprietary software is a poor substitute. Encouraging the substitute is not a rational way to get what we need. Vaclav Havel has advised us to “Work for something because it is good, not just because it stands a chance to succeed.” A business making proprietary software stands a chance of success in its own narrow terms, but it is not what is good for society. Why People Will Develop Software ================================ If we eliminate copyright as a means of encouraging people to develop software, at first less software will be developed, but that software will be more useful. It is not clear whether the overall delivered user satisfaction will be less; but if it is, or if we wish to increase it anyway, there are other ways to encourage development, just as there are ways besides toll booths to raise money for streets. Before I talk about how that can be done, first I want to question how much artificial encouragement is truly necessary. Programming is Fun ================== There are some lines of work that few will enter except for money; road construction, for example. There are other fields of study and art in which there is little chance to become rich, which people enter for their fascination or their perceived value to society. Examples include mathematical logic, classical music, and archaeology; and political organizing among working people. People compete, more sadly than bitterly, for the few funded positions available, none of which is funded very well. They may even pay for the chance to work in the field, if they can afford to. Such a field can transform itself overnight if it begins to offer the possibility of getting rich. When one worker gets rich, others demand the same opportunity. Soon all may demand large sums of money for doing what they used to do for pleasure. When another couple of years go by, everyone connected with the field will deride the idea that work would be done in the field without large financial returns. They will advise social planners to ensure that these returns are possible, prescribing special privileges, powers, and monopolies as necessary to do so. This change happened in the field of computer programming in the 1980s. In the 1970s, there were articles on “computer addiction”: users were “onlining” and had hundred-dollar-a-week habits. It was generally understood that people frequently loved programming enough to break up their marriages. Today, it is generally understood that no one would program except for a high rate of pay. People have forgotten what they knew back then. When it is true at a given time that most people will work in a certain field only for high pay, it need not remain true. The dynamic of change can run in reverse, if society provides an impetus. If we take away the possibility of great wealth, then after a while, when the people have readjusted their attitudes, they will once again be eager to work in the field for the joy of accomplishment. The question “How can we pay programmers?” becomes an easier question when we realize that it's not a matter of paying them a fortune. A mere living is easier to raise. Funding Free Software ===================== Institutions that pay programmers do not have to be software houses. Many other institutions already exist that can do this. Hardware manufacturers find it essential to support software development even if they cannot control the use of the software. In 1970, much of their software was free because they did not consider restricting it. Today, their increasing willingness to join consortiums shows their realization that owning the software is not what is really important for them. Universities conduct many programming projects. Today they often sell the results, but in the 1970s they did not. Is there any doubt that universities would develop free software if they were not allowed to sell software? These projects could be supported by the same government contracts and grants that now support proprietary software development. It is common today for university researchers to get grants to develop a system, develop it nearly to the point of completion and call that “finished,” and then start companies where they really finish the project and make it usable. Sometimes they declare the unfinished version “free”; if they are thoroughly corrupt, they instead get an exclusive license from the university. This is not a secret; it is openly admitted by everyone concerned. Yet if the researchers were not exposed to the temptation to do these things, they would still do their research. Programmers writing free software can make their living by selling services related to the software. I have been hired to port the GNU C compiler to new hardware, and to make user-interface extensions to GNU Emacs. (I offer these improvements to the public once they are done.) I also teach classes for which I am paid. https://www.gnu.org/software/gcc/ GNU C compiler https://www.gnu.org/software/emacs/ GNU Emacs I am not alone in working this way; there is now a successful, growing corporation which does no other kind of work. Several other companies also provide commercial support for the free software of the GNU system. This is the beginning of the independent software support industry—an industry that could become quite large if free software becomes prevalent. It provides users with an option generally unavailable for proprietary software, except to the very wealthy. New institutions such as the Free Software Foundation can also fund programmers. Most of the Foundation's funds come from users buying tapes through the mail. The software on the tapes is free, which means that every user has the freedom to copy it and change it, but many nonetheless pay to get copies. (Recall that “free software” refers to freedom, not to price.) Some users who already have a copy order tapes as a way of making a contribution they feel we deserve. The Foundation also receives sizable donations from computer manufacturers. https://www.gnu.org/fsf/fsf.html Free Software Foundation The Free Software Foundation is a charity, and its income is spent on hiring as many programmers as possible. If it had been set up as a business, distributing the same free software to the public for the same fee, it would now provide a very good living for its founder. Because the Foundation is a charity, programmers often work for the Foundation for half of what they could make elsewhere. They do this because we are free of bureaucracy, and because they feel satisfaction in knowing that their work will not be obstructed from use. Most of all, they do it because programming is fun. In addition, volunteers have written many useful programs for us. (Even technical writers have begun to volunteer.) This confirms that programming is among the most fascinating of all fields, along with music and art. We don't have to fear that no one will want to program. What Do Users Owe to Developers? ================================ There is a good reason for users of software to feel a moral obligation to contribute to its support. Developers of free software are contributing to the users' activities, and it is both fair and in the long-term interest of the users to give them funds to continue. However, this does not apply to proprietary software developers, since obstructionism deserves a punishment rather than a reward. We thus have a paradox: the developer of useful software is entitled to the support of the users, but any attempt to turn this moral obligation into a requirement destroys the basis for the obligation. A developer can either deserve a reward or demand it, but not both. I believe that an ethical developer faced with this paradox must act so as to deserve the reward, but should also entreat the users for voluntary donations. Eventually the users will learn to support developers without coercion, just as they have learned to support public radio and television stations. What Is Software Productivity? ============================== If software were free, there would still be programmers, but perhaps fewer of them. Would this be bad for society? Not necessarily. Today the advanced nations have fewer farmers than in 1900, but we do not think this is bad for society, because the few deliver more food to the consumers than the many used to do. We call this improved productivity. Free software would require far fewer programmers to satisfy the demand, because of increased software productivity at all levels: - Wider use of each program that is developed. - The ability to adapt existing programs for customization instead of starting from scratch. - Better education of programmers. - The elimination of duplicate development effort. Those who object to cooperation claiming it would result in the employment of fewer programmers are actually objecting to increased productivity. Yet these people usually accept the widely held belief that the software industry needs increased productivity. How is this? “Software productivity” can mean two different things: the overall productivity of all software development, or the productivity of individual projects. Overall productivity is what society would like to improve, and the most straightforward way to do this is to eliminate the artificial obstacles to cooperation which reduce it. But researchers who study the field of “software productivity” focus only on the second, limited, sense of the term, where improvement requires difficult technological advances. Is Competition Inevitable? ========================== Is it inevitable that people will try to compete, to surpass their rivals in society? Perhaps it is. But competition itself is not harmful; the harmful thing is combat. There are many ways to compete. Competition can consist of trying to achieve ever more, to outdo what others have done. For example, in the old days, there was competition among programming wizards—competition for who could make the computer do the most amazing thing, or for who could make the shortest or fastest program for a given task. This kind of competition can benefit everyone, _as long as_ the spirit of good sportsmanship is maintained. Constructive competition is enough competition to motivate people to great efforts. A number of people are competing to be the first to have visited all the countries on Earth; some even spend fortunes trying to do this. But they do not bribe ship captains to strand their rivals on desert islands. They are content to let the best person win. Competition becomes combat when the competitors begin trying to impede each other instead of advancing themselves—when “Let the best person win” gives way to “Let me win, best or not.” Proprietary software is harmful, not because it is a form of competition, but because it is a form of combat among the citizens of our society. Competition in business is not necessarily combat. For example, when two grocery stores compete, their entire effort is to improve their own operations, not to sabotage the rival. But this does not demonstrate a special commitment to business ethics; rather, there is little scope for combat in this line of business short of physical violence. Not all areas of business share this characteristic. Withholding information that could help everyone advance is a form of combat. Business ideology does not prepare people to resist the temptation to combat the competition. Some forms of combat have been banned with antitrust laws, truth in advertising laws, and so on, but rather than generalizing this to a principled rejection of combat in general, executives invent other forms of combat which are not specifically prohibited. Society's resources are squandered on the economic equivalent of factional civil war. “Why Don't You Move to Russia?” =============================== In the United States, any advocate of other than the most extreme form of laissez-faire selfishness has often heard this accusation. For example, it is leveled against the supporters of a national health care system, such as is found in all the other industrialized nations of the free world. It is leveled against the advocates of public support for the arts, also universal in advanced nations. The idea that citizens have any obligation to the public good is identified in America with Communism. But how similar are these ideas? Communism as was practiced in the Soviet Union was a system of central control where all activity was regimented, supposedly for the common good, but actually for the sake of the members of the Communist party. And where copying equipment was closely guarded to prevent illegal copying. The American system of software copyright exercises central control over distribution of a program, and guards copying equipment with automatic copying-protection schemes to prevent illegal copying. By contrast, I am working to build a system where people are free to decide their own actions; in particular, free to help their neighbors, and free to alter and improve the tools which they use in their daily lives. A system based on voluntary cooperation and on decentralization. Thus, if we are to judge views by their resemblance to Russian Communism, it is the software owners who are the Communists. The Question of Premises ======================== I make the assumption in this paper that a user of software is no less important than an author, or even an author's employer. In other words, their interests and needs have equal weight, when we decide which course of action is best. This premise is not universally accepted. Many maintain that an author's employer is fundamentally more important than anyone else. They say, for example, that the purpose of having owners of software is to give the author's employer the advantage he deserves—regardless of how this may affect the public. It is no use trying to prove or disprove these premises. Proof requires shared premises. So most of what I have to say is addressed only to those who share the premises I use, or at least are interested in what their consequences are. For those who believe that the owners are more important than everyone else, this paper is simply irrelevant. But why would a large number of Americans accept a premise that elevates certain people in importance above everyone else? Partly because of the belief that this premise is part of the legal traditions of American society. Some people feel that doubting the premise means challenging the basis of society. It is important for these people to know that this premise is not part of our legal tradition. It never has been. Thus, the Constitution says that the purpose of copyright is to “promote the Progress of Science and the useful Arts.” The Supreme Court has elaborated on this, stating in _Fox Film v. Doyal_ that “The sole interest of the United States and the primary object in conferring the [copyright] monopoly lie in the general benefits derived by the public from the labors of authors.” We are not required to agree with the Constitution or the Supreme Court. (At one time, they both condoned slavery.) So their positions do not disprove the owner supremacy premise. But I hope that the awareness that this is a radical right-wing assumption rather than a traditionally recognized one will weaken its appeal. Conclusion ========== We like to think that our society encourages helping your neighbor; but each time we reward someone for obstructionism, or admire them for the wealth they have gained in this way, we are sending the opposite message. Software hoarding is one form of our general willingness to disregard the welfare of society for personal gain. We can trace this disregard from Ronald Reagan to Dick Cheney, from Exxon to Enron, from failing banks to failing schools. We can measure it with the size of the homeless population and the prison population. The antisocial spirit feeds on itself, because the more we see that other people will not help us, the more it seems futile to help them. Thus society decays into a jungle. If we don't want to live in a jungle, we must change our attitudes. We must start sending the message that a good citizen is one who cooperates when appropriate, not one who is successful at taking from others. I hope that the free software movement will contribute to this: at least in one area, we will replace the jungle with a more efficient system which encourages and runs on voluntary cooperation. ⁂ Footnotes ========= ^1: The word “free” in “free software” refers to freedom, not to price; the price paid for a copy of a free program may be zero, or small, or (rarely) quite large. ^2: The issues of pollution and traffic congestion do not alter this conclusion. If we wish to make driving more expensive to discourage driving in general, it is disadvantageous to do this using toll booths, which contribute to both pollution and congestion. A tax on gasoline is much better. Likewise, a desire to enhance safety by limiting maximum speed is not relevant; a free-access road enhances the average speed by avoiding stops and delays, for any given speed limit. ^3: One might regard a particular computer program as a harmful thing that should not be available at all, like the Lotus Marketplace database of personal information, which was withdrawn from sale due to public disapproval. Most of what I say does not apply to this case, but it makes little sense to argue for having an owner on the grounds that the owner will make the program less available. The owner will not make it _completely_ unavailable, as one would wish in the case of a program whose use is considered destructive. Original: https://www.gnu.org/philosophy/shouldbefree.en.html ⇧ /# ⇧ |
Richard Stallman |
2011 |
6765 |
33.8 |
| Guerilla Open Access Manifesto |
Guerilla Open Access Manifesto ============================== by Aaron Swartz https://x.com/aaronsw Aaron Swartz July 1, 2011 Original: https://en.wikipedia.org/wiki/Guerilla_Open_Access_Manifesto Information is power. But like all power, there are those who want to keep it for themselves. The world's entire scientific and cultural heritage, published over centuries in books and journals, is increasingly being digitized and locked up by a handful of private corporations. Want to read the papers featuring the most famous results of the sciences? You'll need to send enormous amounts to publishers like Reed Elsevier. There are those struggling to change this. The Open Access Movement has fought valiantly to ensure that scientists do not sign their copyrights away but instead ensure their work is published on the Internet, under terms that allow anyone to access it. But even under the best scenarios, their work will only apply to things published in the future. Everything up until now will have been lost. That is too high a price to pay. Forcing academics to pay money to read the work of their colleagues? Scanning entire libraries but only allowing the folks at Google to read them? Providing scientific articles to those at elite universities in the First World, but not to children in the Global South? It's outrageous and unacceptable. "I agree," many say, "but what can we do? The companies hold the copyrights, they make enormous amounts of money by charging for access, and it's perfectly legal — there's nothing we can do to stop them." But there is something we can, something that's already being done: we can fight back. Those with access to these resources — students, librarians, scientists — you have been given a privilege. You get to feed at this banquet of knowledge while the rest of the world is locked out. But you need not — indeed, morally, you cannot — keep this privilege for yourselves. You have a duty to share it with the world. And you have: trading passwords with colleagues, filling download requests for friends. Meanwhile, those who have been locked out are not standing idly by. You have been sneaking through holes and climbing over fences, liberating the information locked up by the publishers and sharing them with your friends. But all of this action goes on in the dark, hidden underground. It's called stealing or piracy, as if sharing a wealth of knowledge were the moral equivalent of plundering a ship and murdering its crew. But sharing isn't immoral — it's a moral imperative. Only those blinded by greed would refuse to let a friend make a copy. Large corporations, of course, are blinded by greed. The laws under which they operate require it — their shareholders would revolt at anything less. And the politicians they have bought off back them, passing laws giving them the exclusive power to decide who can make copies. There is no justice in following unjust laws. It's time to come into the light and, in the grand tradition of civil disobedience, declare our opposition to this private theft of public culture. We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that's out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerilla Open Access. With enough of us, around the world, we'll not just send a strong message opposing the privatization of knowledge — we'll make it a thing of the past. Will you join us? ⁂ Original: https://en.wikipedia.org/wiki/Guerilla_Open_Access_Manifesto ⇧ /# ⇧ |
Aaron Swartz |
2011 |
623 |
3.1 |
| Ideas, Free and Unfree: A Book Commentary |
Ideas, Free and Unfree: A Book Commentary ========================================= by Jeffrey A. Tucker https://x.com/jeffreyatucker Jeffrey A. Tucker March 18, 2011 Original: https://mises.org/mises-daily/ideas-free-and-unfree-book-commentary Introduction ============ The topic of intellectual property is hugely important in the world today, especially with the growing digitization of so many of the goods and services we use every day. For something to be digitized mean to take some portion of that good and transfer it from the realm of scarcity to the realm of infinite reproducibility. Under these conditions, the notion of “intellectual property” — that only one government-privileged monopolist may use a certain idea for a certain period of time — becomes rather preposterous. It is unenforceable apart from despotic impositions on consumers and producers, and the attempt alone shuts down the learning process that is inherent in the development of the market-based social order. The topic rather snuck up on Austrians, however. It has always been in the background. Carl Menger wrote of the definition of goods and how their scarcity is a precondition for ownership and rationing. Böhm-Bawerk wrote a long reflection on whether things like justice, love, and other such values could ever be considered goods in the normal sense in which we think of that term, and he concluded that they cannot because there was no inherent need for economizing them. Hayek wrote extensively on the social benefit that comes from the free flow of knowing and information. Mises and Rothbard were more explicit on the matter of patents: both saw them as unneeded government monopolies. Machlup joined them in this view. Rothbard rejected copyright as it exists in law in favor of common-law standards of manuscript ownership. That’s pretty much where matters stood until 1996 when Stephan Kinsella shocked everyone with a journal article calling for the complete repeal of intellectual-property law. The article stunned me, and I instinctively rejected the idea. I figured that the idea could be ranked among the far-flung notions one bumps into within the world of libertarianism: true, perhaps, in some trivial, abstract sense but with no serious application for the here and now. Years went by but I kept thinking of the topic and its meaning, mainly because the headlines were constantly bringing the topic back up. Kids were being fined millions for illegal downloads. Corporations were being looted in patent suits. Drug prices were soaring due to patents. And so on. I had come to the point of actually embracing Kinsella’s position but without fiery conviction. Then I read Against Intellectual Monopoly by Michele Boldrin and David Levine. It was a mind-blowing experience, and I ended up documenting the journey chapter by chapter on the Mises blog. I recall how I could hardly sleep at night as I thought about the thousands of examples they gave that demonstrated that this topic is not just intellectual play. The topic gets to the heart of the meaning of free competition itself. How could I have neglected it so long? The authors are not Austrian adherents, and certainly Kinsella’s own treatment is more theoretically robust. But they know the field so well and their endless stream of real-life examples provide just what the consistent advocate of freedom needs to hear about this topic. It has been suggested that I put these “liveblogs” of the book in a monograph form. I enjoyed reading the proofs because they really do chronicle an exciting intellectual journey. It was a long haul — six years from the time I first started thinking about the topic — but the payoff has been enormous for me. This book helped me see the world more clearly and understand so much that had previously remained cloudy. This is just about the best thing that can ever be said of a book. I hope this chronicle is of some help to you on the same journey. Jeffrey Tucker January 18, 2011 A Book That Changes Everything ============================== At a taped video interview in my office, before the crew would start the camera, a man had to remove my Picasso prints from the wall. The prints are probably under copyright, they said. But the guy who drew them died thirty years ago. Besides, they are mine. Doesn’t matter. They have to go. What about the poor fellow who painted the wall behind the prints? Why doesn’t he have a copyright? If I scrape off the paint, there is the drywall and its creator. Behind the drywall are the boards, which are surely proprietary too. To avoid the “intellectual-property” thicket, maybe we have to sit in an open field; but there is the problem of the guy who last mowed the grass. Then there is the inventor of the grass to consider. Is there something wrong with this picture? The worldly-wise say no. This is just the way things are. It is for us not to question but to obey. So it is with all despotisms in human history. They become so woven into the fabric of daily life that absurdities are no longer questioned. Only a handful of daring people are capable of thinking along completely different lines. But when they do, the earth beneath our feet moves. Such is the case with Against Intellectual Monopoly by Michele Boldrin and David Levine, two daring professors of economics at Washington University in St. Louis. They have written a book that is likely to rock your world, as it has mine. (It is also posted on their site with the permission of the publisher.) http://www.micheleboldrin.com/research/aim.html posted on their site With piracy and struggles over intellectual property in the news daily, it is time to wonder about this issue and its relationship to freedom, property rights, and efficiency. You have to think seriously about where you stand. This is not one of those no-brainer issues for libertarians, like the minimum wage or price controls. The problem is complicated, and solving it requires careful thought. But it is essential that every person do the thinking, and there is no better tool for breaking the intellectual gridlock than this book. The issue is impossible to escape, from the grave warnings you get from the FBI at the beginning of “your” DVD, to the posters warning kids never to download a song, to the outrageous settlements transferring billions from firm to firm. It even affects the outrageous prices you pay for medicine at the drug store. The issue of “intellectual property” is a ubiquitous part of modern life. Some of the police-state tactics used to enforce IP have to make anyone with a conscience squeamish. You have surely wondered about the right and wrong of all this, but, if you are like most people, you figure that copyrights and patents are consistent with the justice that comes from giving the innovator his due. In principle they seem fine, even if the law might be in need of reform. The first I’d ever thought critically about issues of intellectual property was in reading about it in the abstract many years ago. The Austrian position has traditionally favored copyrights on the same grounds it has favored property rights in general, but it has tended to oppose patents on grounds that they are government grants of monopolistic privilege. Machlup, Mises, and Rothbard — as well as Stigler, Plant, and Penrose — have discussed the issue, but not at great length and with varying levels of cautious skepticism. That changed in 2001 with the publication of Stephan Kinsella’s article (and now monograph) “Against Intellectual Property.” He made a strongly theoretical argument that ideas are not scarce, do not require rationing, are not diminished by their dissemination, and so cannot really be called property. All IP is unjust, he wrote. It is inconsistent with libertarian ethics and contrary to a free market. He favors the complete repeal of all intellectual-property laws. The argument initially struck me as crazy on its face. As I considered it further, my own view gradually changed: it’s not crazy, I thought, but it is still pie-in-the-sky theorizing that has nothing to do with reality. Kinsella’s article appeared just before the explosive public interest in this subject. The patent regime has in the meantime gone completely wild, with nearly two hundred thousand patents issued every year in the United States, and half a million more in other countries — with 6.1 million patents in effect worldwide — and large firms collecting stockpiles of them. And the copyright issue has led to a massive struggle between generations: young people live by “pirating” music, movies, software, whereas the old consider this practice to presage the end of the capitalist system as we know it. The music industry has spent billions trying to contain the problem and only ended up engendering consumer embitterment and terrible public relations. Kinsella’s article continued to haunt me personally. It took about six years or so, but I finally worked through all the theoretical problems and came to embrace his view, so you might say that I was predisposed to hear what these authors have to say. What I hadn’t realized until encountering the Boldrin/Levine book was just how far-reaching and radical the implications of a detailed look at IP really is. It is not just a matter of deciding what you believe from a theoretical or political perspective. It is not just a matter of thinking that “pirates” are not really violating moral law. To fully absorb what these authors say changes the way you look at technology, at history, at the ebbs and flows of economic development, and even who the good guys and bad guys are in the history of civilization. Kinsella deals expertly with the theoretical aspects, while Against Intellectual Monopoly doesn’t really go into the theory at great length. What this amazing book deals with is the real-world practice of intellectual-property regulation now and in history. I can make a personal guarantee that not a single objection you think you have to their thesis goes unaddressed in these pages. Their case is like the sun that melts all snow for many miles in all directions. The implications are utterly shattering, and every day I turned the pages in the Boldrin/Levine book I felt that sense of intellectual stimulation that comes along rarely in life — that sense that makes you want to grab anyone off the street and tell that person what this book says. It helps you understand many things that had previously been confusing. The emergent clarity that comes from having absorbed this work is akin to what it must feel like to hear or see for the first time. If they are right, the implications are astonishing. “I can make a personal guarantee that not a single objection you think you have to their thesis goes unaddressed in these pages.” Their main thesis is a seemingly simple one. Copyright and patents are not part of the natural competitive order. They are products of positive law and legislation, imposed at the behest of market winners as a means of excluding competition. They are government grants of monopolies, and, as neoclassical economists with a promarket disposition, the authors are against monopoly because it raises prices, generates economic stagnation, inhibits innovation, robs consumers, and rewards special interests. What they have done is apply this conventional model of monopoly to one of the most long-lasting, old-world forms of mercantilist/monopolistic institutional privilege, a surviving form of mercantilist privilege of the 16th century. IP is like a dam in the river of development, or perhaps very large boulders that impede the flow. They too favor its total repeal but their case goes far beyond the theoretical. They convince you that radical, far-reaching, uncompromising, revolutionary reform is essential to our social well-being now and in the future. The results are dazzling and utterly persuasive. I personally dare anyone who thinks that he believes in patent or copyright to read this book and deal with it. I’m not sure what aspect of their case is the most powerful. Here are just a few examples: They show that people like James Watt, Eli Whitney, and the Wright Brothers are not heroes of innovation, as legend has it, but rent-seeking mercantilists who dramatically set back the cause of technological development. These people spent vast resources prohibiting third parties from improving “their” product and making it available at a cheaper price. Instead of promoting innovation and profitability, they actually stopped it, even at the cost of their own business dreams. The authors show that every great period of innovation in human history has taken place in the absence of intellectual property, and that every thicket of IP has ended up stagnating the industries to which they apply. Think of the early years of the web, in which open-source technology inspired breakneck development, until patents and copyright were imposed with the resulting cartelization of operating systems. Even today, the greatest innovations in digital communications come from the highly profitable open-source movement. It is impossible to develop software without running into IP problems, and the largest players are living off IP and not innovation. Meanwhile, the most profitable and most innovative sector of the web, the porn sector, has no access to courts and IP enforcement because of the stigma associated with it. It is not an accident that absence of IP coincides with growth and innovation. The connection is causal. And look at the industries that do not have IP access, such as clothing design and architecture and perfume. They are huge and fast-moving and fabulous. First movers still make the big bucks, without coercing competition. Boldrin and Levine further speculate that IP is behind one of the great puzzles of the last millennium: stagnation in classical music. The sector is seriously burdened and tethered by IP. Other mysteries are answered. Why no musical composition of note in England after 1750? England had the world’s most strict copyright laws. Why was English literature so popular in the United States in the 19th-century schoolrooms? It could be imported without copyright restriction — and therefore sold cheaply — whereas American authors used IP and limited their market. And consider the irony that Disney, which relies heavily on IP, got its start and makes it largest profits by retelling public-domain stories! Examples like this abound. One wonders whether the modern history of literature and art needs to be completely rewritten. Examples will occur to you that are not discussed in the book, such as fan fiction. It is technically illegal, so far as anyone can tell, to take a copyrighted character and tell a story about him even if the story is original. And yet Harry Potter fan-fiction sites enjoy tens of millions of hits per month. One hosts five thousand pieces of fan fiction, some as long as one thousand pages. Enforcement has been spotty and unpredictable. And yes, the book covers the poster child of the IP world: pharmaceuticals. They muster plenty of evidence that IP here does nothing to promote innovation and widespread availability and is largely responsible for the egregiously high prices of drugs that are driving the system toward socialization. The authors explore the very strange tendency of capitalists to misdiagnose the source of their profits in a world of IP, spending far more on beating up pirates than they would have earned in a free market. They further demonstrate that IP is a form of exploitation and expropriation that is gravely dangerous for civilization itself. In short, they have taken what might seem to be merely a geeky concern and moved it to the center of discussion over economic development itself. What about the far-flung conclusion that IP should be repealed? The authors take away your fears. The development of IP came about in the 16th century as a mechanism for governments to enforce political control and punish dissenters. The cause of this “property right” was then taken over by individuals in the 18th and 19th centuries as part of the liberal revolution for individual rights. In the 20th century it was transferred again, to corporations who become the effective owners through copyright. The creators no longer own anything, and let themselves be beaten and abused by their own publishers and production companies. Boldrin and Levine’s thesis really steps up this issue. It makes you wonder how long authors and creators will put up with the nonsense that some company has a state-enforced exclusive to use the work of others for longer than 100 years. Fortunately, the digital age is forcing the issue, and alternatives like Creative Commons (roughly akin to what would exist in a free market) are becoming increasingly popular. As the tyranny has grown more obvious, the free market is responding. No, the authors are not really Austrian, and I’m not even sure that they can be called libertarians, but they understand the competitive process in ways that would make Hayek and Mises proud. As I’ve thought more about their book, it seems that it might suggest a revision in classical-liberal theory. We have traditionally thought that cooperation and competition were the two pillars of social order; a third could be added: emulation. In addition, there is surely work to do here that integrates Hayek’s theory of knowledge with the problem of IP. If the book lacks for anything, it is precisely what Kinsella provides: a robust theory behind the practical analytics. But since Kinsella has already provided this, the value added of real-world application is enormous. I have a minor nit to pick with them on their passing comment on trademarks, which strikes me as wrong. Otherwise, this book moves mountains. A book like this comes along very rarely. Against Intellectual Monopoly is a relatively small manifesto on economics that absolutely must be understood and absorbed by every thinking person without exception. Authors: Beware of Copyright ============================ When an author signs a publication contract, insofar as it contains strict and traditional copyright notices, he is pretty much signing his life away. It used to be that the publisher would maintain control only so long as the book was in print. Today, with digital printing, this means forever: your lifetime plus 70 years. During this time, you can’t even quote significant portions of your own writing without permission from the publisher, and you could find yourself paying the publisher for the rights. You can’t read your own book aloud and sell the results. You certainly can’t give a journal a chapter. You could try to be sneaky and change the text a bit, right? Wrong. They’ve thought of that. You will own and control new matter but the old matter is still the private possession of The Man. What if the publisher isn’t marketing your book? You can yell and scream but they don’t have to answer. In fact, most publishers have a system for dealings with authors. It’s called voice mail. E-mails go unanswered. You are done for. You sold your soul and you can’t get it back. Not within your lifetime. Your creation, which copyright is designed to protect, is now the possession of someone else. As Michele Boldrin and David Levine explain, this racket began in the 17th century when government instituted the idea of ownership of ideas, precisely so that the government could crush ideas it didn’t like. Only approved authors got the stamp of approval. Same with art. But then the authors and creators rose up and demanded their rights in the 18th century, and the copyright idea was transferred from government to private parties, who were then in a position to crush competitors. In the 20th century, this changed again, when the right was transferred from individuals to corporations. In the digital age, which exists simultaneous to the most tyrannical copyright laws ever, this is creating an intolerable situation that amounts to a form of involuntary servitude. Creators write and paint and watch corporate interlopers doom their work to obscurity. The creator hoped to make a dent in the universe but only sees his material land in the recycle bin of history. Yes, it is done by contract — contract backed by the power of the state. So why do authors put up with it? Mostly because it is a convention, and they haven’t known about alternatives. Also, they are bribed by the ego-exploiting promise of royalties that never arrive. The practical effects can be devastating. There is, for example, a book on Austrian business cycles that was published some years ago, and it is in print from an academic house, but “in print” only in the most technical sense. It is essentially unaffordable for anyone but a state-funded library with an inelastic demand curve. The Mises Institute wants to bring it back in paperback and make it affordable. Nope, can’t happen. The publisher says that it will do it for us, at a very high price with virtually no discount. They are within their legal rights to do this. Of course, it makes the whole project completely unviable. No deal. The authors are cornered. There is nothing they can do. There is nothing we can do. A great Austrian book, written over the course of ten years, is consigned to the dusty shelves of a handful of libraries, for at least another 70 years. This is only one case of a hundred that I’ve seen. It is even worse when the author is dead. The publisher may or may not have handed back the rights to the manuscript. Those rights may or may not have been transferred. They may or may not have been handed on in the will, or perhaps they are part of probate. Yes, a potential new publisher can hunt this down to find out who among six billion potential owners actually controls rights to this manuscript. A lawyer is always glad to spend vast amounts of your money doing research. He may or may not come up with an answer you can trust. Meanwhile, you have spent the equivalent of a first-print run. Most potential publishers will say: to heck with it. Again, you have failed to be immortalized by your work. This goes for artists and musical compositions and even recordings of your band or voice. Thanks to federal law since the 1980s, all this material is bound up in a thicket of law, and this thicket will not evaporate for more than 100 years. This is what the “intellectual property” of copyright has wrought. So I say to all authors: Please look at your contracts. Don’t sign your life away. Publish on the condition of Creative Commons. Claim your rights back as a creator and an author. How does this work? You have to copyright your work if only to prevent others from claiming copyright and thereby binding all other living persons, including you, from publishing it. Once you claim copyright, add that it is published under the Creative Common License 3.0. This rids your manuscript or song or painting of copyright’s provision of doom: the requirement that only one institution can control it. In other words, it makes your creation part of the free market. It can be posted, recorded, shown, photograph, celebrated by one and all forever. Isn’t this why you create in the first place? Isn’t this what drove you to write, paint, photograph, sing, or whatever? You want to make a difference. You want credit for your work. This permits this. Old-fashioned copyright is nothing but a form of modern tyranny in the digital age. It has no future. Bail out of this wicked institution and make sure that your work has a future, too. What is Your Attitude Toward IP? ================================ As I think more about intellectual property in the form of patents and copyrights, it seems that the implications for social theory are profound. The behavior targeted and slaughtered by IP is one that provides a fuel for all social and economic development: imitation or emulation. In the German-speaking world of art in the 18th and 19th centuries, imitation by composers was considered to be the greatest tribute. When Bach would write an elaboration of Buxtehude, it was seen as a wonderful gift to Buxtehude’s legacy and memory. When Mahler would turn a phrase by Brahms, or reorchestrate a Beethoven symphony, it was the tribute of one master to another. So it is in literature and economics. http://en.wikipedia.org/wiki/Dieterich_Buxtehude Buxtehude Imitation in economic affairs is essential for development, since nothing is ever perfect right out of the box, and society is constantly changing. You need that imitative dynamism in order for technology to keep up with changing market conditions. This is what IP shuts down in the name of rewarding creators. How can creators make a buck in a world of fluid imitation? The same way they always have: by having the best product at the right price to the market first. When others imitate them, they have to hustle again and innovate some more. This is how societies and economies grow. Think of the fashion world, where IP isn’t in force. It is fast-moving, innovative, and remarkably profitable. Designers have their ideas imitated nearly as soon as they are seen on the runway. This imitative behavior is widely regarded as a ratification of a good idea. It is something that people are socialized to look for as an indication of marketability. It is the same with generic drugs, fonts, perfume, and other sectors in which there is no IP. Sadly, in sectors in which IP does apply, the opposite attitude applies. Authors, artists, and inventors sit and brood about the need to keep their wares to themselves and hunt down anyone who would dare “steal” their ideas. In the successful cases, they can end up rewarding themselves but at the expense of social development. In the far more prevalent unsuccessful cases, the obsession with being ripped off leads to brooding, resentment, and disgruntlement that the world has failed to provide them a living. A sector consisting of nothing but people like this — with an attitude encouraged in law — is stagnant. By way of illustration, compare the imitation-oriented jazz and rock sectors with the IP-obsessed area of serious classical music! Other sectors like advertising fall somewhere in between. Several years ago, Apple ran a commercial for the iPod that looked incredibly similar to one produced by Lugz shoes. Now, one might laugh and appreciate this — surely it will benefit both companies — or one can regard it as theft. Instead of celebrating a success, Lugz regarded it as a rip-off, which Apple denied. Words flew between the companies, along with threats of litigation and cease-and-desist orders. This is really just pathetic and completely unnecessary. It really all comes down to the attitude one takes toward one’s influence on others. The absence of IP creates a broad-mindedness that seeks to make a difference in the world and looks for imitators as a sign that it is working. The presence of IP subsidizes a kind of inwardness and bitterness that sees the whole world as being populated by potential thieves to keep at bay. You see the two ways of looking at the world in the way kids interact with each other. I’m speaking of preteens and the way they deal with their emergent societies. Let’s say one kid has developed a certain phrase or gesture that is new to the social group. Another kid picks up on it and employs it. Now, there are two ways to respond to this imitation. The innovator child can see others doing and saying what he did and said and realize that he has made a difference in the world, put a dent in this little universe. He has become a force for changing the world as he knows it. He has made his mark, and the evidence is how others are doing the same thing. He feels a sense of pride and joy and works at coming up with other unique ways of dressing, speaking, or behaving that others similarly imitate. “Copyright is a subject replete with mythology. People imagine that copyright is important for protecting rights, even though the practical reality is that it is a killer of ideas and a rights violator on a massive scale.” Or the child can have another response. He can accuse his imitators of stealing his words, ripping off his gestures, pilfering his personality, and plundering his special way. He sees others who imitate as threats, forces that are reducing the value of his unique personality. He treats it as the equivalent of cheating on a test. It is taking what is his. It is the first stages of a very destructive, IP-style mentality. Parents: Be alert to signs of this among kids. Explain to children that it is a good thing when others are influenced by you. It means that you have made a difference in the world. It is not something to complain about at all. It is something to celebrate. It means that you are an entrepreneur on the cutting edge, someone who does things that succeed in society. That also comes with responsibilities to do good things and improve the look and feel of the world around them. Which attitude do you take toward emulation? Before you answer, consider that emulation is unavoidable. There is no such thing as absolute originality. Everything in a growing and health society is an elaboration on something else that already exists. This applies to technology, literature, music, art, language — everything. A world in which the ethics of IP applied would be backward and stagnant, headed nowhere but backward. Children’s movies cut both ways. The movie called Ratatouille strikes me as the ultimate IP-supporting propaganda. A rat with a gift for taste and smell is rescued from the gutter and put in a position to cook food at a fine restaurant. All his food is great. He has imitators all over the place but he alone remains the best. But then he begins to seethe with resentment that he alone is not given credit and accolades. Oddly, some people fear that customers will not like the idea that a rat is cooking all the food! The movie ends with his being discovered — he feels great pride, and we are supposed to be happy about this. The restaurant is destroyed, but the audience is supposed to figure that it is worth it. A much better case is Horton Hears a Who. Throughout the film, we see competitive pressure between the various animals to see which one will have the dominant influence over others. The Kangaroo tries to prevent Horton from influencing people, but he does anyway, and eventually everyone comes around. We see it too in the lovely operation of Whoville, a place where emulation is king, and it is a vibrant and lovely society in which everyone is happy. As web editor of Mises.org, hardly a week goes by when I don’t see imitators of our successful web presence. It can be images, articles, design, feel, structure — everything. Some years back I had the view that this had to be stopped. Fortunately, no one here had time to bother with it. Thank goodness. The whole reason we exist is to influence the world. Evidence of that is glorious, and it keeps the fire under our staff to keep doing a better job and stay on the cutting edge. The Universals of IP Theorizing =============================== Against Intellectual Monopoly might have begun with a story about the failed attempts to stop illegal downloads or the wicked crackdowns on teens for file sharing. Instead, the authors take us back to the Industrial Revolution to explode the myth of the supposedly great innovator James Watt and his steam engine. Why? Because, as the introduction points out, this is a book of economics. If you have something to add to the science, it can’t just apply to now, or last year, in this place, or just that place. Economics is a universal science. Its laws and lessons apply to all times and places. For this reason, a theoretical breakthrough is a massive event. It means work for generations of scholars: revising history, fine-tuning other aspects of theory, and applying it to different fields. This is one reason why this book is so important. And sensing that they are taking on more than just the problem of digital downloads, they put this ancient history up front. They take the first crack at revisionist history with regard to a famous patent. They show that most of Watt’s energies were spent lobbying for and defending a government patent on a technology that was quickly surpassed and could not come to market thanks to his rent-seeking behavior. Nor was this patent somehow necessary for his economically useful behavior. It wasn’t until after the patent expired that steam-engine technology really took off, but by that time the Industrial Revolution had given up ten to 15 years of what might have otherwise been economic progress. There we have it: we are put on notice that this book is not merely about the digital age or life after the Internet, written by a couple of geeks. No, this is a revisionist treatment of the whole subject that applies not only now but to the whole modern history of intellectual property, which they insist on calling “intellectual monopoly.” Next they stake out their unique position, which is neither that patent and copyright law has gone too far nor that it hasn’t gone far enough. They take a third position that only a few dare take: the stuff needs to be abolished altogether. Their grounds for saying so aren’t nearly as complicated as one might at first think. First, grant that “everyone wants a monopoly. No one wants to compete against his own customers, or against imitators. Currently patents and copyrights grant producers of certain ideas a monopoly.” Next, concede a point that everyone brings up first: “Certainly few people do something in exchange for nothing. Creators of new goods are not different from producers of old ones: they want to be compensated for their effort.” Now the core of the argument: > it is a long and dangerous jump from the assertion that innovators deserve compensation for their efforts to the conclusion that patents and copyrights, that is monopoly, are the best or the only way of providing that reward…. Creators’ property rights can be well protected in the absence of intellectual property, and that the latter does not increase either innovation or creation. They are an unnecessary evil. They continue to spell out precisely what they mean. They favor the property rights of producers. The property rights of innovators should be protected, and so should the property rights of those who have a copy of the idea of the creator. The first property right encourages innovation. The second property right encourages diffusion, adoption, and improvement of innovation. The question is whether creators should have a right to dictate how purchasers use a creation. To say they should amounts to a claim not of property rights but of intellectual property. It confers a privilege and restricts third parties in what they can do with property. It is a grant of monopoly privilege. Monopolies are not friends of innovation in any area of life. They don’t go into detail here, but we know this by looking at the Postal Service or the public schools or the utility companies. All of the sectors controlled by monopolists are characterized by high prices, low innovation, and stagnation generally. How odd it is that we believe otherwise — this one kind of monopoly is something we can’t live without! — with intellectual property! The authors point out that the supposed incentive to create is a double-edged sword. Someone pays the bill. It’s not as if the creator benefits and nothing else happens. For example, they cite the case of a movie that cost $218 to make but that cost $400,000 in music rights. This is a serious social cost. It is largely an unseen cost, too. Think of the movies that are not made, the profits in publishing that are never seen, the inventions that are delayed or never come to market, the alternative use of the billions and billions that are spent by consumers on patented drugs. The introduction also deals with the US Constitution’s endorsement of copyright and trademark. They say that it is outmoded but no more than that. For my own part, I’m somewhat curious about this. Many parts of the Constitution are fundamentally antimonarchical (only republican governments permitted in the states, e.g.). The history of patent legislation in England prompts me to wonder if the purpose of this clause is to say that government will not own and dispense mercantilist privileges; rather individuals alone will possess such rights. It was supposed to be a point against kingly privilege; still misguided, to be sure, but one can make a bit more sense of it in this case. The first chapter is highly provocative and puts the reader on notice that a wild ride is coming. The authors don’t disappoint. People sometimes ask me about ideas for research projects. What the authors have done with the Watt case could be done for a thousand other cases. There is so much work to do, and so much rethinking to do. Does Monopoly Create Wealth? ============================ How strange this intellectual-property issue is. In normal life, we tend to (or should) credit enterprise and markets for most innovations that surround us. I’m typing on a system that includes products for several dozens of different creative companies, with hardware and software and applications of all sorts stitched together through some miracle we call the coordinating power of the market. No news in that, I suppose. Ho hum. But let the subject of IP come up, and most people will say that we only have this stuff thanks to IP. Think of the shift here. On the one hand, we credit markets. On the other hand, we credit monopoly. Both can’t be true. Or if both are true, we have a serious theoretical tangle to unravel. So which is true? This is the topic addressed in the second chapter of Boldrin and Levine’s book. They begin by observing that “virtually none of the innovations” in the digital industry of computers “took place with the protection of intellectual monopoly.” Before 1981 it was not possible to patent or copyright software. The craze to patent every mouse click began only following a 1994 court ruling (In re Alappat). Meanwhile, the underlying guts of all that you see began long before. As with all genuine, economic revolutions, the foundation of end-user consumption was decades in its preparation. Compilers, assemblers, linked listed, databases, search algorithms, displays, languages, word processing: they all began long before the age of software patents or copyrights. Let’s see how this works. Property rights are protected. Trade is free. People made useful stuff. People bought stuff and used it. They imitated and emulated each other and improved things step by step through investment, profit, and reinvestment. That’s all. All development since this great age of innovation that preceded software IP has built on this foundation of open-source material. Said Bill Gates, “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.” The authors comment on the post hoc ergo propter hoc fallacy: “Intellectual monopoly is not a cause of innovation, but rather an unwelcome consequence of it.” How so? Young industries do amazing things and get a foothold in the market. Then even better folks come along with better ideas. The old guys panic, and turn to government for protection. The industry freezes in place. It is the oldest pattern. Thus did Microsoft make no effort to protect its IP in the early days; it begged for attention and encouraged widespread use and copying. When it saw a threat from newcomers, matters changed. There hasn’t been that much innovation in operating systems since 1994. There has been innovation in web browsing, but where did the web browser come from? It was purchased from a creative company in 1993, before there were software patents. Imagine how a patent in web browsing would have set back the entire industry! The losses would have been incalculable. We can see here that the authors are holding up the computer industry as a model for how things work in a free market. And a superstrong case for their position is the open-source software movement, which is a main fuel behind the development we see today. Firms relinquish monopoly to assure longevity in the industry: others can pick up their designs and develop them. This helps build their market. In any case, we all depend on open-source software every day if we use Google: it runs Linux, an open-source operating system. There are many others. Indeed, open-source dominates the web completely. Some 70 percent of servers online today run Apache. But how can they make money? The authors tell the story of Red Hat. It is open source. It has plenty of competitors who offer the exact same product. But because of brand name, Red Hat is still marketable and has more staying power. As Boldrin and Levine say, “If you had a problem with software you bought, and had to call the seller for advice — who would you prefer to call — the people who wrote the program, or the people who copied it?” Thus does Red Hat profit and their many competitors come and go, come again and go again. The authors effortlessly segue from software to books, and here is the part that especially interests me. They provide an alternative explanation for why British literature was so widely circulated in the United States in the 19th century. American publishers could publish without copyright — there were no international copyright agreements — and there was massive competition. It was so intense that American firms would pay authors directly for sending chapters even before they appeared in Britain. The amounts they would receive even exceed their British royalties over a period of years. As a result, there was huge dissemination of knowledge. And the prices were low: Dickens’s A Christmas Carol sold for six cents in the United States and $2.50 in England. Printing technology improved. Literacy improved. Ideas spread. Children and schools could have books, which in turn increased the demand for books, and spurred on new investment and technological improvements. It was a dynamic and wild world of publishing, comparable to what we see with the web today. But could it work in modern times? Look at government documents, which are always and everywhere in the public domain (unless they are secret). The 9/11 report of 2004 was a huge best seller, comparable to the first Harry Potter in sales volume. Norton even negotiated a deal with the government to release a paperback on the day of release, and it was also available for free download. Why would they do this? The same reason all entrepreneurs do what they do: to be the first to market. Meanwhile, anyone on the planet could publish it a day later. Still, Norton turned a massive profit. Another fascinating section concerns the newspaper industry. It began without patent protection. Benjamin Day started the New York Sun and his technology was open source: he collected advertising to pay the costs and recruited young boys to sell it. Anyone could do it. But the point is that he did it first and made lots of money. He was first and he was innovative. That’s the key to success. It was a massively costly undertaking! Why wasn’t he driven out of business by piracy? The RIAA claims constantly that a free market can’t work because pirates will go straight to the most profitable production ends and steal them. But the authors of Against Intellectual Monopoly ask us to think about this carefully. How do we know what is profitable? We have to let the market work. You can’t know in advance. And once a line of production is profitable, it is too late: the player has market dominance, and all of the advantages that come with that. They ask us to try this yourself: try ruining a pop star by pirating songs only once you are certain they are big hits. Back up and consider the history of IP. It is a modern invention, whereas music and literature appeared at the dawn of civilization. Music and literature and art thrived for many centuries before IP. The authors don’t go into it, but just imagine if the invention of the musical staff had been copyrighted and patented by the monk Guido d’Arezzo who invented it. Progress would have been set back by a century! The first signs of IP appeared after the invention of the printing press. Governments used it to suppress political dissent (I suspect that the Wars of Religion had something to do with this). It was a royal mercantilist privilege conferred on printers — the same as it was conferred on tea, tin, cotton, banking, or any other good. In the day, it seemed reasonable. The ruler wanted to control goods and producers wanted guarantees. Everyone wins, right? Except that there was no competition, no market process, and hence there was stasis. Mercantilism was refuted by economists and the free market emerged and history was changed. What happened to IP in the age when mercantilism was being repealed? It was not abolished but transferred from kings to producers: the exclusive right to produce was granted to private owners who became responsible for enforcement under the cover of law. This was a huge mistake in the liberal revolution of the 18th century, an inconsistency that continues to haunt us. Boldrin and Levine’s section on IP history should be mandatory reading! Next in the second chapter: a short section on the history of sheet music. Did you know that the industry leader in sheet music — Francis, Day & Hunter — got its start through mass piracy? Fascinating. The war on cheap sheet music is comparable to the war on pirates today. It didn’t work, thank goodness. The chapter concludes with a long and interesting section on the dynamic, hugely profitable industry of porn. You wince. Of course. So does the state. Copyright protection is nearly unavailable here for reasons that are obvious. It is a legitimate subject for investigation from an economic perspective. This open-source industry is massive and growing, orderly and profitable and technologically innovative. How tragic that IP has created a situation in which we have to look to the seedier side of life to see how truly free markets work. Does Innovation Require Property in Ideas? ========================================== Against Intellectual Monopoly dares step out front, on a topic very dear to our hearts, to prove that “the great role of patents in giving us modern software is unadulterated fantasy.” And they show this by reviewing the history of software innovation and its present workings. Neither Google nor YouTube nor any other driving force is using patents to retain competitive advantage, and those who do collect patents mostly do it in order to avoid patent trolls, e.g., those who would patent a technology already in use in order to possess and restrict its use. The lesson, however, applies far more broadly. Wealth in the Western world has been rising for a thousand years, and innovation along with it, and patents have played virtually no role whatsoever. The authors, in chapter three, go more fully into the history of the patent to show that they originated out of kingly privilege associated with mercantilism and that the legislation of the 17th and 18th centuries were forms of liberalization, despite first appearances. It wasn’t until the 19th century that the laws tightened again. Comprehensive intellectual-property laws as they exist today didn’t make an appearance until the end of the 19th century and the beginning of the 20th century. Taking the long view, we can see even with a superficial look that economic growth throughout the world has been in process for one thousand years, while patents are new and were mostly very narrow until quite recently. Why did patents enter the picture? The rise of modern IP is due to the lobbying of incumbent firms threatened with competition. It is a complete myth that patents give rise to innovation; the reverse has been true: innovation gives rise to patents. The authors offer this incredible challenge: “Can anyone mention even one single case of a new industry emerging as a result of the protection of exiting patent laws? We cannot…. Strange coincidence, is it not?” Examples. Services in the United States were not covered by patent until the 1990s. In Italy, pharmaceutical products and processes were not covered until 1978. In Switzerland, it was 1954. Agricultural seeds and plans were not effectively patented until 1977 — but the greatest progress here occurred over the previous 100 years. Basic sciences like math and physics cannot be patented. The tendency in the biological and life sciences toward patents is a very grave sign for the future of these sectors. Boldrin and Levine ================== The authors cite George Stigler in pointing out that patents did not assist “automobiles, frozen foods, various electrical appliances and equipment, petroleum refining, incandescent lamps, radio, and uranium mining.” Stigler further cites the mail-order business, which revolutionized retail, as a case of patent-free development. Shall we go on? It helps to have the specifics that the authors provide: Ray Kroc’s fast-food franchise (better known as McDonalds), the 24-hour convenience store, home delivery of precooked food, the suburban shopping mall, franchise-everything (from coffee to hairdressing), the various steps that make up the delivery business of UPS, Federal Express, and DHL, and, obviously, online commerce. That is, pretty much each and every innovation which, during the last half century, has had any lasting impact in the retail and distribution sector was not spurred or protected by patents. How did the inventor of the cotton gin — Eli Whitney — become rich? Not through the cotton gin! He and his business partner took out a patent and spent their energies crushing competition. They were trying to charge farmers two-fifths of their profits, paid in the form of cotton. Farmers hated it, and started to pirate the machine, and many competitive companies sprung up. Litigation followed and lasted from 1794 to 1807. Nothing came of it but an expenditure of time and energy, not to mention lawyer fees. The growth of cotton ginning in the South ended up owing more to the pirates than Whitney. So where did Whitney get his money? How did he die rich? In 1798, he invented a process to manufacture muskets by machine. This time he was smart: he sought no patent. He encouraged “piracy,” that is, imitation. The industry took off, and he remained the leader through innovation. What a blessed life to be rid of the stupid waste of using legal means to crush the competition and instead devote yourself to doing good for others and making money at the same time! Here is the section in which the authors tell the story of agriculture. Before 1930, there was no patent protection — the very period in which the United States became so productive in agriculture that the entire population shifted in its main industrial focus. After 1930, law granted only patents for a narrow range of plants. It wasn’t until 1970 that the Plant Variety Protection Act extended protection to sexually produced plants, and not until the 1980s when protection was extended to biotechnology. So we have a test case, and the authors measure innovation using total-factor productivity. They find no increase after patents, and even some disturbing data oscillations. In corn in particular, the astounding increase in yields occurred before patents and have nearly leveled off since patents. Two splashing examples of amazing innovation are now introduced in the book. The area of Almeria, Spain, was an unusable desert from the beginning of time until 1963, when an unpatented greenhouse was introduced into the area. The greenhouse was copied and copied and spread all over the region. The results can be seen from space with color photos reproduced in the book. The entire region was transformed from desolate to rich in the course of two decades. The same process took place in Treviso, Italy, where the “ready-to-color” sweater was introduced by the Benetton family, and the process was imitated and spread to change an entire region in the absence of patent. Other examples: financial services (no patents), fashion (no patents), and advertising (no patents, and copyrights are ineffective). These are the leading examples of innovation in the modern age. This section is so compelling that so far as I am concerned, the book could end here. But if patents really are that irrelevant, why don’t the captains of industry realize it? It turns out that they do. Two surveys in modern times asked R&D heads what techniques are most effective in realizing gains from innovation. It turns out that they regard the patent as the least effective means. The authors conclude this mind-blowing chapter with a long discussion of patent pools: these are cases in which companies relinquish patents in order to establish sharing agreements. It is a way of stepping sideways toward what the market would give us anyway. Companies live and breathe by innovation. Innovation and monopoly are not compatible. We are back to an old lesson that remains true: it is the market and all that comes with it — not laws granting exclusive privileges to produce — that gives rise to innovation. I end with a statement from Mises himself: > The great monopoly problem mankind has to face today is not an outgrowth of the operation of the market economy. It is a product of purposive action on the part of governments. It is not one of the evils inherent in capitalism as the demagogues trumpet. It is, on the contrary, the fruit of policies hostile to capitalism and intent upon sabotaging and destroying its operation. Sometimes those most hostile to capitalism are the capitalists themselves! Seen and Unseen Cost of Patents =============================== Drug patents took it on the chin a few years ago when major drug companies refused to sell cheap AIDS drugs in Africa. Presuming the drugs work, countless lives might have been saved. But the desire to protect the high price on the patented drug — despite the low marginal cost for producing additional units — trumped the humanitarian impulse to save lives. The large drug companies refused to budge, despite protests from all over the world. Defenders of the drug companies say: Well, sure, it is cheap to produce mass quantities of drugs after they have been developed. But the costs of getting there are sky high. If companies can’t charge high prices, they won’t develop the drugs in the first place. Boldrin and Levine, in chapter four, offer an interesting response to this claim, but it requires a bit of thought. They point out that the drugs can still be sold profitably at vastly lower prices, in the same way that many other products can be sold profitably at low prices. Items of superhigh cost — think of passenger airlines or cruise ships — recoup those costs through volume sales over time. It is the same with drugs, or could be. So why wouldn’t the pharmaceutical companies budge in the African case? It is due to the fear of reimportation, that is, that the drugs would make their way back to the United States and Canada and be sold at cheap prices, thereby undercutting the monopolistic price. Why not just price discriminate? It’s not so easy to price discriminate in a global economy. Rather than take that risk, companies settled for not selling at all. This reflects a general principle articulated by Boldrin and Levine: “Intellectual monopolists often fail to price discriminate because doing so would generate competition from their own consumers.” Think about this principle. It helps explain why large software manufacturers routinely degrade their products available to individual consumers while reserving their better products for the more lucrative corporate market. This is why the versions of operating systems and end-user software are dumbed down on the consumer market. The companies don’t want to permit cross-selling between markets, even though the costs of selling better products across markets are virtually identical. Only IP allows them to get away with this sort of behavior. So, yes, there are some benefits to patents in the same way there are benefits to all monopolists. The Post Office benefits from the prohibition against private delivery on letters. Public schools benefit from regulations on private education and mandatory funding. The electric company benefits from its statutory guarantee against competitive intrusion. But that is not the same as saying that all groups benefit. Boldrin and Levine examine data from total factor productivity in crossnational studies and show that the astounding increase in patents in the 1990s — rising more than three-fold from a stable rate in previous decades — has had no effect on increases in prosperity and innovation. Meanwhile, there are huge costs, even for those who acquire and own the patents. Oracle Corporation, for example, spends vast resources on what can be called “defensive patents.” They must get them before someone else does, or else risk having to pay huge fees to someone else. Cross-licensing is the only way to develop software now, so the patent route has been forced on everyone. The word “thicket” is the one everyone uses. What it really amounts to is a cold war between patent holders — a patent race that is very much like an arms race. This is why Nokia owns 12,000 patents and Microsoft is adding 1,000 patents a month to its arsenal. Intel’s CEO spoke for many when he said he would be glad to cut the number of Intel’s patents to a tenth of its current rate provided that others did the same. Conventional patent theory says they are necessary for generating revenue to fund research and development, and to inspire innovation. This is supposedly the economically valuable contribution of patents. Then there is the real world. A Carnegie Endowment survey of firms shows that businesses themselves report that this function of patents is mentioned as important only six percent of the time. The main reason businesses say that they want patents is enforce monopoly — preventing people from developing similar but better and cheaper products — and to prevent lawsuits. They authors describe the result of patents as not a competitive market for innovation but an oligopolistic market structure around patent-pool mechanisms. This affects every industry, as patent battles hinder economic development. A good example is the ongoing battle over who and what can lay claim to the title “basmati” rice. A Texas company called RiceTec won a patent in 1997, infuriating Indian and Pakistani companies that have been making basmati for hundreds of years. These companies have been fighting back with their own attempts to register patents on the rice. What this has to do with the consumer and the dinner table and the need for cheap and delicious food being made widely available is the unanswered question. A peculiar form of patent abuse comes in the form of the submarine patent. This is a patent taken out early while the production of the product itself is delayed as long as possible. When someone else finally goes to market with a product, the patent emerges from the deep as a method of blackmailing the company that has gone to market. Boldrin and Levine explain that this tactic dates to George Seldon’s patent on the “road engine” in 1895. It commanded 1.25 percent on the sale of every car in the United States. He sold his patent for $10,000 and 20 percent of royalties to a syndicate in 1899. As the car actually started to make it to market, the Association of Licensed Automobile Manufacturers formed a cartel around the patent. The authors comment, “if you were wondering why the U.S. automobile industry developed so quickly into the oligopoly we know and hate, a fair share of the roots lie in bad ‘intellectual property’ legislation and the intellectual monopoly it created.” Personally, I find that revelation remarkable. More than a hundred years later, we are still paying the price for this car-cartel-creating patent. Something similar happened to airplanes, when the Wright Brothers managed to get a patent on anything resembling an airplane, despite their own contribution to the technology being so meager. They were so aggressive in blasting all competitors that all serious innovation in airline technology ended up taking place overseas in France. The authors make a statement that I wish could be made more prominent, since it comports with everything I know about businesspeople and patents. It is the most common thing in the world for a businessperson who uses every market-oriented skill to get a product to market: a good product at a good price that becomes the market leader. At this point, and for some odd reason, the businessperson gets confused. He thinks that it his IP that is the key to his success and ends up fighting for it with all his might, even at his own expense. Here is the statement by Boldrin and Levine: > “Being a monopolist” is, apparently, akin to going on drugs or joining some strange religious sect. It seems to lead to complete loss of any sense of what profitable opportunities are and of how free markets function. Monopolists, apparently, can conceive of only one way of making money, that is bullying consumers and competitors to put up or shut up. Furthermore, it also appears to mean that past mistakes have to be repeated at a larger, and ever more ridiculous, scale. A clear case in point concerns the Recording Industry Association of America, which managed to make itself appear as the devil incarnate in the eyes of an entire generation of music downloaders. Another example concerns Google Print. This work of genius would have brought all the world’s libraries to one central location so that users could search the books and purchase them. Wonderful! But the Authors Guild sued, and the suit has gutted Google Print as a useful tool. The dream of all educated people from the ancient world to the present — a single accessible repository of all the world’s wisdom — was stopped for no good reason. The authors conclude chapter four with a restatement of the theme: the benefits of patents are small and narrow, while the costs are large and broad. The biggest costs are the unseen ones that Bastiat speaks of. These are innovations we don’t see, the products that don’t come to market, the efficiencies that we never experience, the companies that don’t come into existence, and the investment that would have taken place with the resources that are expended on patent acquisition and enforcement. Here are the real costs of patents, and they are incalculable. The Book and Music Killers ========================== One theory of copyright is that it promotes the production and distribution of literary works. Well, that myth is completely shattered in chapter five of Against Intellectual Monopoly. The chapter is pithy, thorough, dead-on in its practical analysis, and deeply radical. It is the perfect illustration of why I think this is one of the most original and compelling books on economics in a generation. Copyright is a subject replete with mythology. People toss around junk legalisms that they pick up on the street while knowing nothing about the facts or the law. They imagine that copyright is important for protecting rights, even though the practical reality is that it is a killer of ideas and a rights violator on a massive scale. Indeed, something must be done to crush this institution before it brings the creative and literary arts to a grinding halt. We must remember that the copyright law is a just another bogus modern institution we can do without, just like the income tax and central banking. International copyright only came to exist in 1891 — it was the result of lobbying not by authors but by publishers! — and has steadily increased over the century to the point of maniacal absurdity today: thanks to the US Congress, an article you write today is under copyright protection until 70 years after your death. As was mentioned earlier, copyright originated as a kingly permission to publish what was politically correct. The privilege passed to individual writers in the 19th century but didn’t stay there long: the publishers inherited the right through contracts, and they now use that right to rob writers, musicians, artists, and consumers of what Jefferson considered to be inalienable. Did the internationalization and institutionalization of copyright actually achieve its stated aim of promoting literary work? There was no increase in copyright registrations as a percentage of the population between 1900 and 1950, despite the double lengthening of the copyright term. So much for the great outpouring of creativity in literature and music. In 1998, the Sonny Bono/Mickey Mouse Copyright Term Extension Act (”the biggest land grab in history”) boosted copyright by 40 percent — but with what effect on incentives to produce? None, so far as anyone knows. But the publishers and moguls who pushed for this nonsense are surely happy that they don’t have to work harder and can continue to live off the royalties of their long-dead predecessors. Boldrin and Levine find that the countries with no copyright legislation (German territories in particular) had more composers per capita than countries like England, where copyright had the effect of bringing the entire composition industry to a grinding halt. Actually, what that 1998 legislation did was provide a massive boost for authors to find ways out of the chains of copyright. The development of Creative Commons, and other tools, followed because it is ever more obvious that copyright is at war with the digital age. And thank goodness for that. But in the meantime, copyright in the 20th century has accomplished horrible evil. Large swaths of the literary output of the last 50 years, for example, now lies buried in the vaults of large publishers who neither print them nor permit them to be printed absent some huge fee. Nor will they return rights to the author. Nor will the publishers allow them to be posted. Getting them back in print is a very expensive and time-consuming operation. In my own work at the Mises Institute, I’ve encountered a dozen such cases myself, and while most individual cases offer some possibility of a fiduciary workaround, economic considerations on the margin effectively drive these works off the market. Meanwhile, the greatest thing that could ever happen to an author is for his or her works to enter the public domain, but that only happens if you wrote your book before 1963 and the copyright was mercifully not renewed. Here is a test case brilliantly conceived of by Boldrin and Levine. The works of Edgar Rice Burroughs are right on the fence of the copyright law. Some are out of copyright. Some are in. They compared the circulation between them. The books out of copyright in the Mars series are A Princess of Mars, The Gods of Mars, The Warlord of Mars, Thuvia, Maid of Mars, and The Chessmen of Mars. All of these are available on Amazon, in illustrated HTML versions, as electronic versions to buy and see for free, and in innumerable editions in stores. Meanwhile, other books in the Mars series are under copyright, including Master of Mars, A Fighting Man of Mars, Swords of Mars, Synthetic Men of Mars, and Llana of Gathol. Every single one of the books under copyright is out of print! This is not an accident. In this way, copyright serves as a tax on production, so of course it results in less, not more. The same is true of innumerable authors, including many classically liberal authors. The world is highly fortunate that they published with marginal firms that failed to renew their copyrights after they expired. Otherwise, their works would be unavailable. It is in fact tragic that Hayek himself had major publishers who renewed many copyrights, because that fact alone has caused them to be tethered to the point of limiting Hayek’s own influence. What the 1998 act did was put tens of thousands of titles under copyright that would otherwise have been open to the world. All this was done to protect the work of one company — Disney — which ironically made its fortune by making movies based on public-domain stories! The authors here further point out that large companies have no incentive to bring back into print the titles for which they own copyright, because they don’t want them to compete with their new hardback titles. It really is a form of legal suppression of literary work going on here, made possible only by the state’s law, and it is an outrage. A vast swath of the literary output of the West of the last 50 years has been kidnapped by private parties with the legal approval by the state. Again, the beneficiaries of the law are not authors and not musicians and artists. Musicians themselves typically earn far more from concerts than royalties. So the conventional theory is wrong: copyright doesn’t inspire creativity. These musicians would work and create without it; in fact, no one has a greater incentive for abolishing the current system than creators. For 2,000 years, the core of musical creativity was the emulation and elaboration on existing musical forms, with composers both competing with each other and cooperating in a communal way toward advancement. They depend most heavily on sharing information. If this is stopped, culturally significant creativity is seriously impeded. Copyright shut the cooperative process down at the turn of the 19th century. Today, serious “classical” composers have to keep returning to public-domain material like folk songs to make variations on themes. The music of the 20th century is largely off limits. Meanwhile, the search for originality has created bizarre forms of music within the conservatory culture, none of which has sticking power in the culture at large because it is illegal to imitate it. This whole scenario represents a radical attack on the very essence of cultural advancement. The repeal of copyright would result in a huge outpouring of great music that uses popular music in a variety of different forms. Composers would be unleashed to write, ensembles could perform and record, and musicians of all sorts would produce with glorious new creativity. As it is, they live in a caged world in which lawyers determine what they can write, play, and record. If you understand this, you can see why musical forms have taken such a huge tumble in the last 100 years, while creativity has taken place only in sectors that eschew copyright, such as jazz and independent rock. As for recording, the whole effort to prevent file sharing has been a disaster for artists. Again, this resulted from special-interest legislation. The tethers are so tight now that many bands are reduced to refusing any recording contracts at all, merely so that they can distribute their own music the way they want to. This has been proven again and again to be compatible with huge sales. The best-selling CDs of last year were also the ones available for free download. Whenever this subject comes up, people unthinkingly toss around crazy bromides. “You mean you want to allow anyone to just steal anyone’s work? Why would anyone bother to write a book or write a song?” These kinds of questions reflect what happens to our thinking in a time of statism; we can’t imagine how freedom would work. We do not, for example, ask similar questions about other sectors. “If you allow the private growing of vegetables, why would anyone bother to start commercial farms or open grocery stores? If you allow people to cook at home, why would anyone open a restaurant? If you allow people to just share recipes, why would anyone become a master chef? You would allow just anyone to steal the idea of a tomato or a sauce or a fancy dish that took years in culinary school to create?” These questions only sound stupid to us because we don’t have existing laws covering these topics. Somehow everything works out. Because we have copyright, we can’t even imagine how we could get along without it. And yet we see many examples around us. Public-domain works are hugely popular and firms profit from selling them, and they are more prevalent than copyrighted works. What I find striking is that copyright operates today by state-authorized theft of creativity by large firms. Writers and composers and bands permit themselves to be looted of their own right to distribute their own work. Composers work years on a piece and then give up the results to some business corporation in exchange for their right to publicly hum the tune they wrote. It is astounding, and wholly nonviable. Fortunately, the free market is finding a workaround to evil copyright laws in the form of Creative Commons and other institutions. In this way, at least there is a path to freedom for us, whereas the same can’t be said of patent laws. One last note: Do not write me with some smarty-pants remark about how, if we are serious, the Mises Institute should allow anyone to publish our books. All our new works, insofar as it is possible, will be published with a Creative Commons license as a matter of signed contract with authors. As for this book, please “steal” it. That goes for anything I write. If you can sell it and make a buck, good for you. If you become a millionaire, shame on me for not thinking of it first. Back to Basics on Property and Competition ========================================== Zeroing in on a topic like intellectual property offers a chance to clarify fundamental notions in economics generally. You think you understand something like property rights or the nature of competition — you have studied the ideas for years! — and then a challenge comes along that blows everything up. It’s an opportunity. Time to think and think again. Is there really property in ideas, and if so, what rules should govern it? Is it really necessary that such property be protected in order that competition be kept fair and just and efficient? The authors of Against Intellectual Monopoly state at the outset of chapter six that property is a great and indispensable thing. It allows people to own, develop, be creative, profit, and build a prosperous society. Societies without private property stagnate and die. Property rights are necessary too when there is a limit on the number of things in question. But owning a thing doesn’t prevent others from owning other things too. For example,- cars. They must be allocated through property rights because there is a potential for conflict if they are collectively owned. But my owning a car doesn’t prevent you from owning a car. There is no coercion involved in the institution of ownership. The authors make a very important point with regard to ideas. If you have an idea, it is yours. You can do with it what you want. If you share it (sing, speak, broadcast, let others see the products of your ideas), others then have copies of it. They are entitled to do with their copies of the idea precisely what you can do with your idea. They can use it how they want provided they don’t prevent others from doing with it what they want. This is a simple application of the nonaggression principle that governs a free society. Whether it is fashion, language, know-how, or whatever, people are free to copy. Ideas, then, are what Mises calls “free goods”: copies are potentially limitless. They “do not need to be economized.” Intellectual property is the completely wrongheaded idea that, in the words of the authors, someone has the right “to monopolize an idea by telling other people how they may, or more often may not, use the copies they own.” This strikes at the heart of progress, because it means not improving what exists but rather prohibiting others from using and improving it. In the same way that property is good, competition is also good. It inspires people to strive for excellence, and to measure their progress against what others are doing. It allows people to try and fail or try and succeed. It permits people to learn from each other, looking at what others do that is successful and emulating them. This is how society leaps forward from stage to stage: how we went from horses to engines, how plumbing came indoors, how industry took over from agriculture, how the digital came to be. Competition is predicated on the ability to learn and copy. If you think about it, this is the essence of daily life. We watch how people do things and learn from them. We get on the subway and hold the stabilizing strap a certain way. We follow fashion sense. We watch the Food Network. We listen to our professors and talk to other students. We read and absorb the ideas of articles on the Internet. The newly taught person becomes a competitor: the student becomes a professor, for example. The protégé is always a threat to the monopoly previously held by the mentor. What can you copy? Anything and everything. This is not “taking” anything from anyone. The owner of the original idea still has his. Other people now have their copies, and are free to improve them. Commerce is part of this stream of life, and, in fact, learning through imitation and improvement is even more crucially important if we want to sustain a rising population with ever better health and well-being at their disposal. Let’s say I write a book and publish 1,000 copies. They are all mine. When I sell one, I now have 999 remaining, and the new owner of the one book, in a free society, is free to do with his copy what he wants: use it as a placemat, throw it away, deface it, photocopy, and even republish it. You can even rerepublish it under your own name, though that would amount to the socially repudiated vice of plagiarism (vice, not crime). The new copies, which always involve some cost, compete with old copies. What are the advantages of living under intellectual freedom as described above? The authors list three main ones: (1) The number of copies is more plentiful and their price is thereby lower, which helps consumers. I like this point because it underscores that IP is really what the old classical liberals denounced as a “producers’ policy,” like protectionism or industrial subsidies. It beefs up the bottom line of specific firms at consumers’ expense. (2) The initial innovator still earns money, as in the perfume or fashion or recipe industry. (3) “The market functions whether there is one innovator or many — and socially beneficial simultaneous innovation is possible.” The authors give the example of Mozart and Beethoven, who published without IP but did very well by being the first to market. This is the source of profits. It’s the same today with products such as the iPhone. It was the first-time market, and Apple made a killing, enough of one to have inspired and ratified the initial innovation. Now they are attempting to prolong their period of monopoly profits by considering patent suits against imitators. Society is certainly not better off under these conditions. As the authors say, “the goal of economic efficiency is not that of making monopolists as rich as possible, in fact: it is almost the opposite. The goal of economic efficiency is that of making us all as well off as possible.” It’s interesting how people immediately object that no one would create things under free-market competition. Look around! A tiny fraction of what we use and experience every day is subjected to intellectual monopoly. And look at your own life. Do you trim the bushes in front of your house only because you then have copyright to your new design? Do you take a casserole to a potluck lunch only on the belief that no one is permitted to copy your dish? Do you wear a navy jacket with a yellow tie only on the condition that no coworker is permitted to do the same? There was no IP at all for many centuries during the greatest period of modern economic growth from the 15th century onward. Others generate all kinds of arguments to show that competition doesn’t work. For example, we are told that very high costs are associated with some investments, and so monopoly is required in order for investors to make a profit and thereby have incentive to invest and innovate. The authors cite the cases of shoes and gasoline. Building a shoe factory or an oil-refinery plant is a very expensive undertaking, and competition is everywhere. But somehow no one suggests that these must thereby be produced under monopoly conditions. I suggest that that reason is that we experience competitive conditions in these industries; it is so difficult for people to even imagine freedom where it doesn’t exist. I recall a story told to me by an economist who was serving as an adviser to a former Soviet satellite state. He advised free labor markets and privatization. Officials objected that this wouldn’t work because people might build plants where there are no workers. He said that people would just move to the places where capital is most profitable for labor. The officials objected that they couldn’t possibly allow the freedom for people to live wherever they wanted; this would amount to an intolerable kind of anarchy. They just couldn’t imagine how such a system could work! There are advantages to being the first mover in markets, and here is the main source of the innovator’s profits. But there is no reason to freeze the market process right there. In many ways IP represents the same fallacy that antitrust does: it takes a snapshot of the economy in one stage and evaluates it and manufacturers a policy response. Antitrust tries to break up what only temporarily appear to be monopolies; IP attempts to create and sustain monopolies over time. Competition, by contrast, lets the market work as an undirected and uncontrolled and rivalrous process of discovery, emulation, and creativity. Will some firms suffer under competition? Of course. “Competition is not a gala dinner,” write Boldrin and Levine, “and getting rid of inefficient firms while allowing efficient ones to blossom is exactly what competition is supposed to accomplish.” The chapter ends with a hymn to imitation as a social force. These few paragraphs are so important, and what they imply is something that I believe has been overlooked by classical liberals. It is a foundation of social order. And that gives us three talked about this chapter: property (which gives rise to exchange), competition (a species of cooperation), and imitation (learning through emulation). Fallacy Run Amok ================ Fed up with the patent craze, The Economist magazine wrote the following in a main editorial: > The granting of patents “inflames cupidity,” excites fraud, stimulates men to run after schemes that may enable them to levy a tax on the public, begets disputes and quarrels betwixt inventors, provokes endless lawsuits. … The principle of the law from which such consequences flow cannot be just. It’s not in a current issue. That was published in 1851, but every word of it remains true today. It was once conventional wisdom among economists that state-granted monopolies were as bad as mercantilism. But in the meantime, sometime after the middle of the 20th century, the conventional wisdom became confused. The source of the problem was a mechanistic view of the market embodied in the idea of general equilibrium theory. It is a theoretical picture of what the macroeconomy looks like when all the dust is settled. Demand and supply perfectly match. The prices of all things have been competitively bid down to their cost, so there are no profits. All prices are a given and all markets are cleared. There is perfect information, perfect rationality, no uncertainty and no transaction costs or any other costs. Indeed, there is no activity at all. All the world is made of perfectly satisfied robots. It’s a mathematical notion only, but once it is embedded in your head as a picture of a perfect economic world, it is not a small step toward using it as a benchmark for the whole of economic theorizing. It turns out that the case for patents and copyright is bound up with this theoretical notion, and Boldrin and Levine’s seventh chapter of Against Intellectual Monopoly has the authors grappling with this idea’s problems. Joseph Schumpeter was an advocate of patents precisely because he couldn’t shake the general equilibrium idea out of his head. He sought to account for how change happens under general equilibrium, and settled on a theory of entrepreneurship that imagines an innovation that shakes up the dust before it settles into a new pattern (Rothbard called this “breaking out of the Walrasian box”). With his benchmark, imitation would be as a costless as any other activity, so it seemed necessary for the innovator to have an exclusive for a period, during which profits could be earned. Otherwise, the creative destruction necessary for social and economic advance can’t take place. Well, the core problem here is that general equilibrium has nothing at all to do with the way an economy works, as the Austrians have pointed out for half a century. There are costs to every action, pervasive uncertainties in all aspects of life, entrepreneurship is inherent in all action, and the clearing of markets takes place over time and through a process of ceaseless trial, error, and change. It is a fascinating idea that the core reason why economists have only recently begun to look critically at the problem of IP is due to the triumph of the general equilibrium construct and the associated mathematization of the profession that excludes the possibility of modeling central features of real-world markets. We can chalk this up as yet another cost associated with the refusal of the profession to fully absorb the ideas of Menger, Mises, and Hayek. This is the core theoretical problem with those who believe that innovation cannot occur in the absence of IP law: they assume a world in which all the hard stuff of life is a snap. In fact, imitation is costly and takes time. It requires effort. Even if a process or product is perfectly imitated, getting the product to market is a far more serious hurdle than simply copying something. It took a hundred years for the process of silk making to be imitated successfully. Even to this day, most of the world cannot figure out how to make a decent cup of espresso. And even the possibility of quick and easy imitation doesn’t strip away the profits associated with being first to market. I’m pretty good at making ice cream, and I could probably replicate the Moosetracks recipe over the course of a weekend of experimenting. But it isn’t the Moosetracks trademarks, copyrights, and patents that prevent me from doing it. It is because I have better things to do, and bringing anything to market has huge opportunity costs. Even if competitive but nearly identical products make it to market, that doesn’t necessarily mean that the first mover cannot maintain a profit stream. The authors cite the case of TravelPro, the suitcase with the handle that has thousands of imitators. Yet even now, TravelPro does a booming business through ceaseless innovation, marketing, brand recognition, and competitive pricing. If you take the arguments of the IP advocates seriously, you would never be able to figure out how there could be a thriving market for pizzas. There are high start-up costs (buildings, employees, ovens, drivers, technique) and yet there is a very low marginal profit associated with selling each one, a product that can be imitated by anyone. Surely there must be a recipe copyright, a patent on the pizza, a monopoly of providers, in order to make sure that someone is willing to undertake this task. And yet look around: there are a dozen places you can call to bring a pizza to your desk in 20 minutes. Another argument concerns the idea of overgrazing. If you put ideas into the commons, they will be overused and degraded the same as regular property. This is true with real property. Public schools, public roads, public lands, and the like are all overutilized and fall into disrepair for lack of any economizing mechanism that allows rational allocation. What about intellectual property? The Walt Disney Company says that its IP in Mickey Mouse is designed to prevent overgrazing, that if he went into the public domain, he would be drawn as cat food or placed in unseemly settings. Its currency would be debased. Of course you can make the same argument about anything, such as pizzas or all food, but there is no question that, while an imaginary pizza and food monopolist would be worse off under competitive conditions, society is most certainly better off because anyone can make a pizza or make food. The authors make a further telling point in passing: when some good or service today is labeled as “Mickey Mouse,” it is certainly not intended as a compliment. So despite the monopoly, the cartoon figure has certainly been degraded. Many pro-IP arguments boil down to beliefs that something is either going to be undersupplied or oversupplied on a competitive market. In other words, this is the same argument used for all forms of claims about “market failures.” I can recall that there was great controversy when the first books about medical information and pharmaceutical drugs came on the market. Shouldn’t doctors and pharmacies hold the monopoly? Somehow, however, everything worked out. We buy books, look up medical information online, and still go to see the doctor. All providers are annoyed by competition. College professors are not entirely thrilled about Idiots and Dummies guides, but sometimes a colleague breaks ranks and writes one. This is just part of the rough and tumble of life in the absence of a general equilibrium. The Hoax of Invention History ============================= All popular business histories are replete with lies. Or, to be more charitable, they are filled with untruths based on a stupid version of cause and effect: inventions happen because people take out a patent on them. This assumption is hardly ever questioned in the mainline literature. Writers look through patent records and assume that they are a record of technological advance. The truth is far messier. The patent records are a snapshot of those who filed a patent, and nothing more. It is because of patent-based historiography that people believe that the Wright Brothers invented the airplane, when in fact they made only a tiny contribution of combining wing warping with a rudder. It was Sir George Cayley in Britain and Otto Lilienthal of Germany who did the bulk of the work of inventing the airplane. But it was the Wright Brothers who applied for the patent and quickly used it against Glenn Curtiss, who improved wing warping with movable control surfaces. So it was with the radio, which is conventionally attributed to Guglielmo Marconi, the Nobel Prize winner in 1909. What about the contribution of Oliver Lodge in the UK or the forgotten genius Nikola Tesla or the Russian Aleksander Popov or the British Naval engineer Henry B. Jackson? All Marconi did was ground the antenna, and also manage to win the patent wars thanks to the deep pockets of fellow aristocrat and partner Andrew Carnegie. Fifty years after the patent was granted, the Supreme Court conceded that it was unjustly given, but by then the other claimants were dead! (Marconi was consistent at least: he was a big supporter of fascism in Italy.) Then there is the famous myth about Alexander Bell that displaced knowledge of the real inventor of the telephone, Antonio Meucci. But Meucci couldn’t afford the fee to file the patent. This oversight was fixed in a 2002 declaration by the US Congress but just a bit too late. There is an unlimited number of such cases that lead to fundamental questioning of the relationship between patents and innovation. It turns out that there are very few great leaps forward in history that are the result of a single, Prometheus-style figure. Most advances are the cooperative work of many factors alive in society, with individuals improving things a bit at a time until all those improvements come together in a marketable form. The patent has essentially nothing to do with it. And Boldrin and Levine are hardly the first to point this out. You might be surprised to know that many academic economists have done empirical studies on the relationship between patents and economic advance. Of all those studies they reviewed, 23 in total, they found none that could establish a strong relationship, and many that found negative relationships between patents and development: that is, that patents actually impede progress. What they found further is that the main contribution of patents is to increase the production of patents. But that is not the same as increasing invention, for the main use of the patent is to put a stop to any similar innovation that builds upon and improves the patented thing. The patent holder rides high for a time, but history is actually frozen in place. The process of imitation and sharing that led to the innovation becomes formalized, centralized, fixed, and stagnant. They examine the case of databases, which are patented in Europe but not in the United States. The United States wins the competition easily. The American dominance of database production runs 2.5:1 compared with Europe. To me, this helps explain what many have noticed, namely that Europe is seriously behind in its digitalization and organization of information, with most Europeans possessing oddly antiquated intellectual capital concerning even the most basic databasing skills. Now we know: it’s not their fault; it’s the fault of their IP regimes. Thus does chapter eight of Against Intellectual Monopoly discuss all the existing literature that makes the case — on purpose or inadvertently — against patents. It is packed with empirical detail, but in particular I’m intrigued at their review of the history of musical composition in England and Europe during the 18th and 19th centuries. They find that the countries with no copyright legislation (German territories in particular) had more composers per capita than countries like England. And in England in particular, the 1750 copyright law, extended to music in 1777, had the effect of bringing the entire composition industry to a grinding halt. And later, when copyright was imposed on Italy and France, it led to a diminution of composer effort. This demonstration is intriguing beyond what most music historians can possibly imagine. It solves a long-running mystery concerning how it came to be that the most musically educated population in the world, one with a massive history of compositional genius, would suddenly fail to participate in the progress that defined the age of Mozart and Beethoven. These historians just haven’t known where to look for clues. This chapter makes me sad for all the great innovators whose names are not in the history books, and even sadder for all of us who have been denied great innovations because some fool managed to make it to the patent office first only to use that privilege to kill his competition the next day. Far from encouraging innovation, patent and copyright have managed to kill off so many wonderful works of art and technologies that it boggles the mind. In order to understand this, you have to look beyond the patent records. You have to train yourself to look at the unseen costs of government regulation. Do Patents Save Our Lives? ========================== How essential are drug patents as a piece of the machinery of the modern pharmaceutical industry? Incredibly so. Repealing them with no other changes would likely lead to a dismantling of a massive and lucrative industry that saves lives every day. To elaborate, without patents, compensation for the hundreds of millions of dollars necessary for jumping through FDA hoops would not be forthcoming. Without patents, the huge manufacturers, who face mandatory disclosure requirements, would have their formulas taken by others, and knockoffs would immediately drive the price to marginal cost. The vast costs of redundant testing and retesting could not be absorbed by future revenue streams. And these streams are themselves uncertain due to the arbitrariness of the FDA’s process. And thanks to wicked antitrust laws, companies face a legal minefield in combining efforts, cooperating on research, maintaining prices, and sharing markets. But notice that all the reasons why patents in pharmaceuticals seem necessary are themselves due to some other form of government intervention: drug regulation, antitrust, government funding, and government mandates of all sorts. Regulation has begotten regulation, with each step seemingly dependent on every other regulation. The result is a massive rat’s nest of laws that is buried deep within a much larger hairball of the medical industry itself, which has been dominated by increasingly tight state controls for nearly a century. Then there is a further problem of liability confusion and court precedent that is woven through the system like a tapeworm in a deeply diseased body. How can anyone begin to discuss only one aspect of the marketplace without thoroughly discussing all the other aspects? How can the authors of Against Intellectual Monopoly possibly sort through this thicket to make a case for repealing patents on pharmaceuticals? Because of the above complications, I dreaded this chapter most. I was wrong to do so. What they have produced is a masterpiece of exposition. They have both the big picture and the small picture, with fascinating details in paragraph after paragraph. They take the reader through the logic and evidence at just the right pace, and manage the seemingly impossible: the reader is wholly convinced that drug patents are not necessary and in fact are doing great evil in the world today. It is the hardest case to make, and they knew this going in. Theirs is a virtuoso performance, worthy of separate publication. Some people love the pharms and other people hate them. The authors take a middle-ground position. They do great good for the world. But they are embedded deep within in a regulatory regime that is stultifying the industry, and drug patents play a big role in this. Can we imagine a world without drug patents? No need to dream. In the sweep of history, patents like we have today are essentially a postwar phenomenon, and prior to that, the industry developed faster in countries without patents than those with them. One way to show that is to examine 19th-century chemical production. They tell the story of the French patent on coloring dyes granted to the La Fuchsine company, a patent that pretty well destroyed all development in France, while the absence of patent in Germany, Switzerland, and Britain led to massive innovation and the beginnings of the modern industry. The United States was very behind here due to its strong patents, and even in the First World War the United States had to import dyes from Germany in violation of the British blockade. This was how DuPont got its start. In recent decades, there have been pockets of pharm-patent freedom. Before 1978, it was Italy where a thriving industry existed for a century in the absence of patents. The patent accounted for the discovery of ten percent of the new compounds between 1961 and 1980. Foreign companies poured into Italy to imitate and develop. But this shut down after 1978, when Italy introduced patents under pressure from foreign multinationals. India then took the position of the free-market country, and its industry became a huge player in the generic-drug production market, until India too was forced into the WTO agreement and shut down its dynamic market. The whole world of pharmaceuticals is now engulfed in an incredible patent thicket, and people praise all the innovation taking place but rarely ask how much prior innovation really owes to the patent or how much innovation we might experience or how low the prices would be in absence of the patent. Boldrin and Levine dare to ask the question about where the innovations of highest social value over the centuries have come from. They looked through medical journals and found several surveys. What were the medical milestones most significant in history? The list: penicillin, X-rays, tissue culture, anesthetic, chlorpromazine, public sanitation, germ theory, evidence-based medicine, vaccines, the Pill, computers, oral rehydration therapy, DNS structure, monoclonal antibody technology, and the discovery of the health risks of smoking. Only two of those were patented or were due to some previous patent or brought about with a patent incentive. A separate list of the top ten public-health achievements of the 20th century was put together by the US Centers for Disease Control and Prevention. It is striking that not a single one involved patents at any level. Several people wrote in to complain that aspirin, Helicobacter pylori, and Medline were not on the list. None owes anything to patents. Even looking at a list of top pharmaceuticals does not produce a patent-favorable result. Boldrin and Levine find that patents had nothing to do with aspirin, AZT, cyclosporine, digoxin, ether, fluoride, insulin, isoniazid, medical marijuana, methadone, morphine, oxytocin, penicillin, phenobarbital, prontosil, quinine, ritalin (methylphenidate), salvarsan, vaccines, or vitamins. Of the remaining products that owe their existence to patents, most were either discovered accidentally, were discovered in university labs, or were simultaneous discoveries that led to expensive battles over who would get the patent. The authors turn to the problems of corruption in pharms and their relationship with doctors, and to the crazy requirements involved in redundant testing for patents and final FDA approval. More than half of newly patented drugs are nothing other than repackaging of existing drugs on the market. It is not uncommon for a drug going out of patent to be repatented as something new but that requires massive new clinical trials and high costs. The companies then have the incentive to market the patented over the out-of-patent product, and doctors have proven responsive to this tactic. It is not surprising that even some studies sponsored by the pharmaceutical industry have concluded that they would be better off without the patent, given the high costs of otherwise adhering to the mandates, marketing, and all the rest, and especially given that the length of patent is comparatively short given the time required for FDA approval. Despite all odds, the authors have made a very compelling case that a free market in pharmaceuticals would lead to the development of innovative drugs, save dramatically in all the associated costs of bringing drugs to market today, and save consumers a bundle. Even if you are completely unconvinced by this cursory summary, I urge you to read their entire case. It causes a mind shifting to take place, consistent with the overall theme of the book: competition, not monopoly, is the source of innovation and development. Life-saving drugs are too important to be left to government grants of monopoly. The Mercantilism of Our Time ============================ Someone handed me a book the other day — a cult classic among music geeks — and urged me to read it, and, when I had finished, sign my name in the front cover. That way I could be added to the already long list of readers in the front cover, each of whom add added his or her scrawl to the book after having read it. How charming! Except for one thing: this is in complete violation of the spirit of intellectual-property law. All these readers were sharing the same book instead of buying a new copy. Think of the revenue lost to the publisher and the royalties lost to the author! Why, if this gets out of hand, no one will ever write or publish again! These readers are all pirates and thieves, and they should probably be subject to prosecution. So goes the rationale behind intellectual-property law. It’s what economists call a “producers’ policy,” designed to create maximum revenue for one side of the economic exchange, consumers be damned. In that sense, it is exactly like trade protection, a short-sighted policy that stymies growth, robs consumers, and subsidizes inefficiency. It’s Bastiat’s “petition of the candlemakers against the sun” all over again. Apply the IP principle consistently and it’s a wonder we tolerate public libraries, where people are encouraged to share the same copy of a book rather than buy a new copy. Isn’t this also an institutionalized form of piracy? The defenders of IP would have to admit that it is. They are often driven to crazy extremes in sticking the claim that copying is a form of theft. I asked one emphatic correspondent about the ethics of the following case. I see a guy in a blue shirt and like it, so I respond by wearing one too. Is this immoral? No, he said, because the color blue occurs in nature. What if a person draws a yellow happy face on the blue shirt? Can I copy that? No, he said, this would be immoral. I must ask his permission and gain his consent. Actually, it’s even worse than this case suggests. If even one person had previously worn a blue shirt with a happy face, no one else on the planet would be able to do that without seeking consent. It should be obvious that if everyone were required to ask seek the permission for the use of every infinitely reproducible thing that “belongs” to someone else — every word, phrase, look, vocal inflection, chord progression, arrangement of letters, hair style, technique, or whatever — or if we were really to suppose that only person may possess the unique instant of any of these things, civilization would come to a grinding halt. Sadly, this is where our laws are tending. Right now, there are laws being considered that would step up IP enforcement to the point of clear absurdity. Just last week, YouTube removed the background music of countless videos for copyright reasons, even though such videos help popularize the music. Even home performances of songs written in the 1930s — young kids playing piano and singing — were taken down at the behest of producers. People are talking about extending patents to sports moves, extending copyright to story lines, imposing a central plan on computer design to comply with patents, forcing everyone on the planet to obey US-style IP laws by means of military force. Kids are going to jail, institutions are hiring internal police forces to watch for IP violations, and an entire generation is growing up with a deeply cynical attitude toward the entire business of law. We are at a Prohibition-style moment with regard to IP, just as with liquor in the 1920s. The war on the banned things isn’t working. Those in power face the choice of stepping it up even further and thereby imposing a militarized state in place of anything resembling freedom, or they can admit that the current configuration of law has no future and bring some rationality to the question. Other societies have indeed crushed innovation with this very impulse. Do you know why we celebrate Columbus Day instead of Cheng Ho Day? Cheng Ho was a great Chinese explorer who, in the early 15th century, took his fleets to Africa and the Middle East, but he was forced to stop when the elites in the home country began to feel threatened by his discoveries. The Chinese government won the war on exploration, and became static and inward. You can win a war on progress but the gains over the long term are few. In addition to relaying the above story, the authors of Against Intellectual Monopoly, in the last chapter of their fantastic book, make a case for the complete dismantling of the law. “Intellectual property is a cancer,” they write. “The goal must be not merely to make the cancer more benign but ultimately to get rid of it entirely.” The authors do not leave at that. They are intellectuals of the real world. They first make a case against any further expansions of bad laws, and lay out some reform proposals: shortening patent and copyright terms, changing burden of proof for originality, eliminating ridiculous redundancy trials for drugs, and the like. The authors even volunteer their time to help craft legislation. But the really hard work here is intellectual, since the pro-IP bias is so entrenched. The authors take the pure abolitionist position as a way of shocking us out of our stupor. Is change possible? Of course. It was thought in the Middle Ages that most all products required monopoly production. The salt producer would enter into an agreement with the ruler. The ruler would promise a monopoly in exchange for a share of the revenue. It was thought that this would guarantee access to a valuable commodity. How can anyone make a buck without a guarantee that his hard work would be compensated? Well, it took time, but eventually people realized that competition and markets actually do provide, as implausible as it may seem. As the centuries moved on, markets became ever freer, and we no longer believe that the king must confer a special status on any producer. They still do it, of course, but mostly for open reasons of political patronage. And yet in this one area of intellectual property, all the old mercantilist myths survive. People still believe that a state grant of monopoly privilege is necessary for the market to work. The myth has now been crushed with this book. So now the laws can be beaten back, and they are being beaten back in the age of digital media. Realize that for young people today, the initials RIAA and MPAA are the most hated on the planet — the equivalent of the IRS for a past generation. The heck of it is that these are private entities. Think what this means. Capitalists of the world, please pay attention: you have a serious problem when an entire generation is being raised to hate private, capitalistic institutions. Now, you and I know that these institutions are doing something illegitimate, namely enforcing “intellectual property,” which is really nothing but state coercion. Still, this besmirches the reputation of free markets. So too is a generation of socialists being raised to hate US foreign policy on the belief that its export of IP is a form of capitalist imperialism. For these reasons, no one has a stronger interest in abolishing intellectual property than supporters of capitalism. I said at the beginning of this book that it took me fully six years to think through these issues. The book by Boldrin and Levine broke through the reservations I had that remained. In the meantime, I’ve received hundreds of messages to the effect that other readers have made the jump too. Whatever is holding you back, I beg to you read this account. I personally consider it to be one of the most mind-blowing books I’ve ever encountered, and so now I join the armies of people who are demanding an end to a system that threatens our way of life in the most fundamental way. For this reason, this book is seminal, not only for our times but for the entire history of liberty. It has clarified a point that has been a source of confusion for many years, and put it front and center in the current debate. It might need correcting in places, and I have my own nits to pick over their neoclassical framework and talk of social costs and the like, but these are petty concerns as compared with the overall framework. What they have done is marvelous and extremely important. ⁂ Original: https://mises.org/mises-daily/ideas-free-and-unfree-book-commentary ⇧ /# ⇧ |
Jeffrey A. Tucker |
2011 |
19032 |
95.2 |
| The Fight against Intellectual Property |
The Fight against Intellectual Property ======================================= by Jacob H. Huebert https://x.com/jacobhuebert Jacob H. Huebert March 2, 2011 Original: https://mises.org/mises-daily/fight-against-intellectual-property When the Recording Industry Association of America (RIAA) wins a $1.92 million verdict against a 32-year-old Minnesota woman for sharing 24 songs online, is that good for liberty? When Disney and other big media companies got Congress to extend copyright protection for Mickey Mouse (and everything else) far into the future, should libertarians have cheered? When a patent-holding company threatened to shut down the Blackberry network unless Blackberry’s creator paid it hundreds of millions in licensing fees, was this a win for property rights, or was it just extortion?^1 For a long time, libertarians were conflicted about “intellectual property” (IP). On the one hand, libertarians support property rights, so IP sounds like something they should favor. On the other hand, IP empowers some people to use government to limit other people’s speech and actions. Libertarian giants of the past such as Ayn Rand and Ludwig von Mises endorsed IP, either as a moral matter (for Rand), or to encourage the production of creative works and inventions (for Mises). But more recent libertarian thinking attacks the idea that so-called intellectual property is either justified or necessary. Older Libertarian Views ======================= To call the ideas protected by patents and copyrights “property” is misleading. Historically, “property rights” referred only to interests in real property (land, buildings) and personal property (tangible objects). This kind of property right existed before there even were governments, as people homesteaded land, produced goods, and traded. Government came into existence later, to protect these property rights; it didn’t invent them. Intellectual property has origins that are far different and far more recent. As law professor Lawrence Lessig has put it, some people’s desire to treat IP rights just like we treat other property rights has “_no_ reasonable connection to our actual legal tradition.”^2 Rather, intellectual property rights are the product of government fiat — of statutes that grant inventors, writers, and artists a monopoly privilege to use certain ideas for certain lengths of time. The people who enacted IP laws in the first place knew this well — that they were not recognizing some preexisting natural property right, but just granting a temporary _privilege_. This is clear in the wording of Article I, section 8, clause 8 of the US Constitution, which gives Congress “the power to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The language shows that Congress would be granting a positive right to serve a specific purpose, not recognizing some preexisting natural right. We can contrast this, for example, with the First and Second Amendments, which state that certain rights “shall not be infringed,” implying that those rights already exist. Congress didn’t need to _grant_ those rights because they derived from individuals’ rights to their lives and property and therefore preceded the formation of the government. If IP rights really were just like other property rights, they wouldn’t present a controversial or difficult issue for libertarians. After all, libertarianism is founded on property rights. So, in that case, libertarians could simply agree with the late Motion Picture Association of America head Jack Valenti, who declared before Congress, “Creative property owners must be accorded the same rights and protection resident in all other property owners in the nation.”^3 And libertarians would also then have to agree with present-day representatives of the recording industry who claim that, when a person illegally downloads an album online, it’s no different than if the person went into to a store, took a copy of the CD off the shelf, and walked out with it. And maybe libertarians would find those huge verdicts against file sharers justified. But even in the days when a greater proportion of libertarians supported IP, it was never quite that simple. Ayn Rand considered the legal protection of a patent or copyright necessary to protect the rights of an idea’s creator because of “man’s right to the product of his mind.” But Rand recognized that ideas couldn’t really be treated just like other property. Rights to ordinary property exist in perpetuity — you can pass the property on to your heirs, and they to their heirs, and so on forever. But Rand believed that IP rights could only be recognized for some limited period of time. She could see that if people retained permanent property rights in ideas, this would “paralyze” society as research and innovation would grind to a halt and people would be forced to pay royalties for virtually everything they use to the layabout heirs of long-dead inventors. So Rand recognized that some time limit would have to be established that balanced the inventor’s rights with the ability of others to pursue further research.^4 Rand maintained that her philosophy and her views on IP were a product of her moral views on man’s rights, so limiting the duration of IP rights to encourage innovation seems uncharacteristically utilitarian. But anyone who believes that IP rights are natural property rights will have to contend with this difficulty. Ludwig von Mises was not concerned with natural rights, so he didn’t run into this problem. He simply considered IP necessary to motivate people to create useful books and technological innovations. He wrote in _Human Action_ that it is “unlikely that people would undertake the laborious task of writing” such things as “textbooks, manuals, handbooks, and other nonfiction works,” if “everyone were free to reproduce them,” and that it is “very probable that technological progress would be seriously retarded” if inventors and those who finance their work could not have a patent’s help to recoup their expenses.^5 Murray Rothbard began to chip away at the IP idea but still clung to parts of it.^6 He attempted to justify copyrights and, in a limited sense, patents by rooting them in the traditional Lockean system of property rights, even though IP did not actually arise out of that tradition. For Rothbard, a believer in natural law and natural rights, copyright could not be justified on utilitarian grounds or legitimately established by government fiat. But Rothbard thought copyright could be justified if it were the product of contract. For example, if, when Smith sells Jones a book, Smith marks it “copyright,” then Jones would only receive from Smith the right to possess and use that physical book, but not the right to copy it. In other words, by giving Jones notice of copyright, Smith does not include the right to make and sell copies of the book in the bundle of rights that he sells to Jones. Because a person cannot transfer any greater rights in something than he or she owns, any third parties who later got the book after Jones would be subject to the same restriction Jones faced. Under this line of thinking, anyone who copied a copyrighted book without permission would be stealing by exercising a right that still belonged to the book’s original owner because he or she had never given it up. Rothbard justified patents of a sort on similar grounds. If Smith sells Jones a new kind of vacuum cleaner and marks it “patented” (or, as Rothbard would have it, “copyright”), that tells Jones that he is only receiving the right to the physical object, not the right to make copies of it. The patent/copyright creates a contractual limitation, just as in the copyright context. This type of “patent” would not, however, prevent another inventor who comes up with the same device _completely on his own_ from producing and distributing his device. As it stands, patent law grants exclusive rights to the first inventor of a good, and later inventors — even if they never saw or heard about the original invention — are bound by the patent. For Rothbard, this was unjust because the later inventor did not violate any property rights of the first inventor when he thought up and created the invention on his own. (This problem doesn’t arise in the copyright context because it’s safe to assume that two people will not independently write the exact same novel, play, or piece of music, Shakespeare-typing monkeys notwithstanding.) Rejecting Intellectual Property =============================== IP remained a questionable issue among libertarians for decades, but in the first years of the 21st century, opinion seems to have shifted strongly against the legitimacy of IP for natural-rights libertarians and consequentialist libertarians alike. (Here, and throughout the chapter, when we refer to IP rights, we refer to patents and copyrights; trademarks, another concept typically grouped with IP rights, are relatively uncontroversial.) IP Violates Property Rights =========================== The current generation’s libertarian scholars in the natural-rights tradition have largely rejected the legitimacy of IP. The most influential figure in this intellectual revolution has been lawyer and legal scholar Stephan Kinsella, whose article, “Against Intellectual Property,” appeared in the _Journal of Libertarian Studies_ in 2001 and was published separately as a monograph in 2008.^7 According to Kinsella, the problem with IP is that it isn’t grounded in property rights — as all libertarian rights must be — and in fact requires government to _violate_ property rights for its enforcement. Under the Lockean-libertarian theory of property rights, people create private property in land (assuming it is unowned when they find it) by occupying it and making it theirs. Then, they are entitled to do what they please with that land — live there, enjoy what they produce on it, sell it to someone else, give it away — as long as they don’t aggress against anyone else or anyone else’s property in the process. Land and tangible items are subject to becoming private property in this way because they are _scarce_. That is, they are limited in quantity, and one person’s use of a piece of property prevents someone else from using it. Two people cannot occupy the same space or eat the same orange. Without property rights, there would be irresolvable conflicts over who can use what land and objects, and how they may use them. With property rights, these conflicts are avoided. On the other hand, if certain things weren’t scarce — if we could reproduce them infinitely at no cost, or if they were somehow abundant — there would be no conflicts over those things and no need for ethical rules, property rights, or laws to govern such conflicts. http://mises.org/daily/4630 scarce As it happens, _ideas_ fall into this latter category. If two people want to have the same idea in their minds, or put that same idea to use, there is no conflict between them — they both can do it. And they can pass on an idea to as many people as they want without diminishing their own possession of the idea. Kinsella uses the example of a book: > [I]f you copy a book I have written, I still have the original (tangible) book, and I also still “have” the pattern of words that constitute the book. Thus, authored works are not scarce in the same sense that a piece of land or a car are scarce. If you take my car, I no longer have it. But if you “take” a book-pattern and use it to make your own physical book, I still have my own copy.^8 Thomas Jefferson had essentially the same insight some two hundred years before: > If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.^9 So IP rights cannot be true “property rights.” And when government grants IP rights, it’s not really granting a property right in an idea, but is instead granting a _monopoly_ on the right to _use_ an idea for certain profitable purposes. If you own a copyright in a book, only you (or someone to whom you give permission) can produce and sell copies of that book. If you own a patent on an invention, only you (or someone to whom you give permission) can produce and sell the invention for a certain period of time. This means that IP rights are not property rights, but are in fact a power to _stop other people_ from exercising _their own_ property rights.^10 If I own a copyright in a book, I can use the force of government to stop someone from using their own paper and ink to produce their own copies of the book. If I own a patent in an invention, I can use the force of government to shut down someone else’s factory that produces copies of my invention, even though the other person is using his or her own equipment, machinery, and components. I can even do this if the other person is _not_ using a “copy” of my invention, but independently invented it all on his or her own. For a libertarian, this is unjust because it’s using aggressive force against peaceful people. As law professor Tom W. Bell has put it, > By invoking state power, a copyright or patent owner can impose prior restraint, fines, imprisonment, and confiscation on those engaged in peaceful expression and the quiet enjoyment of tangible property. Because it thus gags our voices, ties our hands, and demolishes our presses, _the law of copyrights and patents violates the very rights Locke defended_.^11 So according to libertarian theory, IP rights are not “property rights” at all but are a government-issued _license to attack_ property rights — and therefore they should be abolished. Rand’s attempt to justify IP fails under this framework because it presumes that ownership of ideas is possible and legitimate. So does Rothbard’s attempt to ground IP in contract. We can see why by comparing Rothbard’s contract-based copyright to a case in which Jones makes a contract with Smith to tell him a secret. A contract to keep a secret, standing alone, is legitimate — people can always make deals to do or not do things. If Smith tells everyone Jones’s secret, Jones rightly can sue Smith because he broke their deal. Jones cannot, however, sue everyone else in the world who now knows the secret to stop them from repeating it; he didn’t have contracts with those people and therefore can’t claim any rightful ownership over them, the ideas in their heads, or their property. And so it is with copyright: a seller can make his buyers agree not to copy a book, but he may not stop others who happen to see it from doing so.^12 Likewise, an inventor may not stop someone who sees his or her invention (say, a machine) from using this knowledge to make a similar or better machine. All this analysis may sound academic, but it illustrates how libertarians approach issues by going back to their philosophical first principles in a way that most adherents to the more nebulous political philosophies of conservatism and liberalism do not. And it is important for libertarians, as champions of property rights, to explain why IP rights are not property rights because to call IP “property” is not only Orwellian, it also sullies the reputation of true property rights. This is why Bell suggests we instead refer to IP as a “privilege,” not as “property,”^13 and why the two authors we’ll focus on in the next section, Michele Boldrin and David K. Levine, suggest an even more blunt term for IP: “intellectual monopoly.” IP, Creation, and Innovation ============================ Of course, our argument about property rights might not matter to a utilitarian. Libertarian thinkers such as Mises or, today, Richard Epstein, would argue that even if IP rights aren’t property rights in the usual sense, we should make an exception to the usual rule of liberty and property rights for IP because it presents a rare case where the benefits to society of a government intervention far outweigh the costs.^14 If such claims by IP supporters were true, they might present a compelling argument in favor of IP. But the facts show that this is not true, and that IP not only isn’t necessary for creation and innovation to occur, it also actively harms these things. The leaders in debunking the myth of IP’s necessity have been Boldrin and Levine, whose 2008 book, _Against Intellectual Monopoly_, argues that patents and copyrights are not necessary for progress and creativity, and, in fact, have greatly harmed it. (Boldrin and Levine may not be strict libertarians across the board, but they are close, they have influenced libertarians, and they are pure libertarians on the subjects of patent and copyright, so that’s good enough for our purposes.) Copyrights ========== Many IP advocates take it as self-evident, as the framers of the US Constitution did, that copyrights are necessary to motivate people to produce creative works. Supposedly, writers, musicians, and filmmakers wouldn’t bother to produce books, music, and films if other people could come along and copy and take the benefits of their work — or at least, creative people wouldn’t produce “enough” of these types of works, whatever that means. But it is not self-evident that this is the case, and the evidence shows that it’s just wrong. After all, for most of history, there were no copyrights, but people still created great literature, art, and music. Suppose Shakespeare had lived in a world where copyright existed. As one writer put it, “his legal bills would have been staggering.”^15 Shakespeare made a unique contribution to Western civilization by putting words together in a way that no human being had before or since, but he was not a pure original. He took many stories, characters, and ideas from other works by other people — which he wouldn’t have been able to do if the creators of those previous works had possessed and enforced copyrights. And what of copyright protection for Shakespeare’s own plays? He authored 38 plays without any incentive or protection from copyright law, and he managed to prosper besides. It’s difficult to see how copyright would have prompted him to create more. One can imagine, though, that if copyright had existed in Shakespeare’s day, he might have spent his some of his time and effort suing people who sold transcriptions of his plays or performed them without permission, and devoted less of his time to writing, and we would all be immeasurably poorer for it. A rich public domain allowed Shakespeare to become what he was, and it has allowed the world to benefit in turn from Shakespeare. It seems likely that IP rights would only have resulted in less for him to draw upon and less for us to enjoy. Writers today could make money without copyright even if they’re not modern-day Shakespeares. Of course, even with copyright protection, most authors whose names are not Stephen King or J.K. Rowling don’t make much money from book royalties. Instead, publishing a book gives an author prestige and opportunities to do other things. Publishing in academic journals (for no pay) creates opportunities to get teaching jobs. Publishing books for a popular audience (usually for low pay) may raise one’s profile as an expert and create opportunities to give speeches or do other things for money. Still, even without copyrights, many authors would make some money from book sales, and some authors would make a lot of money. One reason we can be confident of this is because books by foreign authors did not receive copyright protection in the United States for most of the 19th century, yet the authors made money here anyway. A publisher would pay an author to be the first to receive a copy of the author’s manuscript, which would allow the publisher to be first publisher to reach the market with the book.^16 Even without copyright protection, there is great value in being the first publisher to sell a book. The first publisher will have the market to itself for a while because it will take competitors time to come out with their own editions. Plus, other publishers are unlikely to find it worthwhile to copy that book unless it proves to be a success for the first publisher. Once the first publisher has success, then it _might_ be worthwhile for others to copy and sell it, if they believe they can profitably sell enough additional copies. But in any event the first publisher is likely to reap the biggest profits, especially since books on average make 80 percent of their profits in their first three months.^17 So that’s the 19th century. What about now? In this century, the government gave W.W. Norton the right to be the first to publish the _9-11 Commission Report_. As a government work, the 568-page report would immediately enter the public domain, and others would be free to copy and sell it. Despite this lack of copyright protection — and even though the report was also available online for free and downloaded millions of times — Norton’s edition of the Report became a bestseller and earned Norton profits approaching $1 million.^18 Two weeks after Norton’s edition came out, St. Martin’s released its own edition, with additional articles and analysis included, and it too became a bestseller. Based on this and similar cases, Boldrin and Levine estimate that J.K. Rowling could have received multimillion-dollar advances for later books in her Harry Potter series — not enough, perhaps, to make her one of England’s richest women, as copyright protection did, but surely enough to keep her writing. What about the music industry? Here we know what happens because artists have already effectively lost copyright protection for their recordings as millions of people trade them for free on the Internet instead of buying them. This has simply pushed artists into other ways of making money, especially performances. Even before the Internet age, most rock musicians, even successful ones, made comparatively little from their album sales. So, like books, recordings have been a way for their creators to attract attention and make money through other projects. In the realm of serious music, many of the great composers’ works were never protected by copyright. England began protecting musical compositions with copyright in 1777, yet relatively few composers lived or worked in England after that time, despite England’s relative prosperity overall. Beethoven, for one, lived in Germany, which offered no copyright protection, yet he made enough money to survive and felt sufficiently motivated to create some of the greatest musical works ever.^19 Like Shakespeare, pre-IP composers were able to draw on previous composers’ works and alter and adapt them freely. Today, that requires permission from copyright holders that may or may not be granted. Like the record labels, movie studios face rampant piracy, yet they remain in business. This is so in part because people are willing to pay for the experience of seeing a film in a theater; for many people, a DVD or downloaded version is no substitute. This wouldn’t change in the absence of copyright. Studios could use contracts, technology, and security to make sure their films are only exhibited in theaters that pay for copies of them. Like book publishers, studios would also profit from being the first to market with a DVD. We could also note, as Boldrin and Levine do, that the pornographic film industry has always thrived and constantly innovated even though it essentially operates outside the protection of IP law because of its lack of social respectability.^20 Another point that applies to all media is that many people create just for the joy of doing it, without concern for further benefits; no government policy is necessary to “incentivize” them. For example, one of the most important American composers, Charles Ives, spent his days making money as an insurance executive and wrote serious music on the side, for which he received minimal recognition (let alone money) during his lifetime. Today, countless individuals produce countless written, audio, and visual works, at all levels of quality, for an Internet audience with no expectation of payment. Many even do so anonymously, with no expectation of personal recognition: Wikipedia provides one example. Increasingly, people are not just passive consumers of content from big media companies but producers of original work themselves, and compensation is not their motive. Copyrights in general are questionable; the kinds of copyright-term extensions we have seen in recent years are entirely indefensible. The Sonny Bono Copyright Term Extension Act of 1998 (CTEA) increased copyright terms by 40 percent. Copyrights were extended (retroactively) to cover the life of an author plus 70 years, or, in the case of a work for hire, the earlier of 95 years after the date of publication or 120 years after the date of creation. Did this extension create additional incentives for writers, musicians, and filmmakers to produce more? Of course not. What difference does it make to an artist if you extend his or her copyright protection for some number of years _long after they’re dead_? In fact, economists have determined that the CTEA increases creators’ revenue by just 0.33 percent.^21 So copyright extension doesn’t benefit artists; instead, it benefits big media companies that own really old properties and don’t want to lose them to the public domain. In fact, the CTEA was pushed by one such entity in particular, Disney, which didn’t want to lose its copyright on Mickey Mouse. While copyright extension offers no benefits to anyone but big media, the costs to the rest of society are tremendous. There is no “cultural commons” for creative people to draw from, as Shakespeare did — and as Disney did when it made movies out of stories in the public domain such as _Snow White and the Seven Dwarfs_, _Pinocchio_, and _Sleeping Beauty_.^22 Countless thousands of books, recordings, and software titles go out of print and remain out of print because the rights holders can’t be found, refuse to take advantage of their rights, or refuse to release their rights. We are all poorer as a result.^23 Patents ======= It is also not obvious that patents are necessary to inspire innovation — and there is much reason to believe that they prevent innovation. If you own a patent on a mechanical rice picker, that means you can stop other people from building a better rice picker that’s based on yours. For a number of years, your potential competitors can’t legally innovate and improve your product — or at least, if they do, they _can’t_ bring their innovation to market without your permission until the patent expires. At the same time, _you_ don’t have much incentive to improve your product because you can just milk your old invention free from competition — enforcing your patents becomes a substitute for research and development.^24 This forces your competitors to waste effort trying to “invent around” your ideas to make competing products, perhaps inferior ones, without infringing on yours. And it also gives you, the patent holder, an incentive to take out a cluster of broadly worded patents for products similar to your own, to discourage others from even trying to enter your field and legally block them if necessary.^25 The potential to infringe on one of these patents and then get sued scares many would-be competitors out of the market. On the other hand, what if there were no patents? The first person to implement an idea would still receive exclusive benefits for some period of time, because even without patents, it would take a while for the competition to figure out how to imitate the invention and catch up. But competitors probably would figure it out before too long, so the original inventor couldn’t rest on his or her laurels. Everyone would have to constantly improve to stay competitive. We see that idea at work in the many innovations businesses make where patent law doesn’t protect them. The people who invented shopping malls, 24-hour convenience stores, supermarkets, fast-food franchising, and the extra-value meal didn’t have any exclusive rights to their ideas. Neither do the people who invent perfumes, recipes, clothing designs, furniture, or car bodies.^26 But people do come up with these things because they want outpace their rivals. Without IP privileges, they have to be focused on what they can do to attract and please customers better — not what they can do with the legal system to crush other businesses. Historically, there have been many cases where patents allowed their holders to _stop_ innovating and to _stop others_ from innovating. Consider the supposedly heroic Wright brothers. They created their first airplane by slightly improving the unpatented ideas of others who came before them, such as British engineer Sir George Cayley and German Otto Lilienthal. Their 1902 patent was for the system of flight control resulting from “wing warping” and the use of a rudder. Glenn Curtiss improved on the Wright brothers’ design by replacing the wing-warping technique with movable control surfaces, the means by which airplanes to this day control their movements. For this, the Wright brothers — who did not sell many airplanes at the time — sued Curtiss to try to stop him from selling airplanes. The Wrights’ litigiousness stunted the growth of the aviation industry in the United States as they focused more on suing Curtiss and other competitors than on making better planes. As a result, airplane development then took off in France, where the Wright brothers “had little legal clout.”^27 http://en.wikipedia.org/wiki/Glen_Curtis Glenn Curtiss Another example Boldrin and Levine point out concerns James Watt’s steam engine. During the period in the late 18th century that Watt and his business partner, Matthew Boulton, held their steam-engine patent, innovation in steam engines practically ceased. When Jonathan Hornblower built a better engine in 1790, Watt and Boulton sued and stopped him from bringing it to market. Other competitors invented their own improvements, but kept them off the market while waiting out Watt’s patent term; they didn’t want to be sued like Hornblower. http://en.wikipedia.org/wiki/James_Watt James Watt's Watt himself was distracted from improving his product both because he didn’t need to do so — he had monopoly protection — and because he was preoccupied with using the legal system against his competitors. As a result, while his patent was in place, the UK added only about 750 horsepower of steam engines per year; in the 30 years after Watt’s patent expired, horsepower was added at a rate of more than 4,000 per year. Similarly, fuel efficiency improved little, if at all, during the years of Watt’s patent (1769-1800), but increased by approximately a factor of five between 1810 and 1835.^28 What about pharmaceuticals? Some people argue that we need pharmaceutical patents because drugs require expensive R&D to develop, but then can be cheaply reverse engineered. So, the thinking goes, if we don’t give drug makers patent protection, they won’t bother to produce drugs in the first place. Numerous facts undermine this argument. Boldrin and Levine have found that the pharmaceutical industry historically grew “faster in those countries where patents were fewer and weaker.”^29 Italy, for one, provided no patent protection for pharmaceuticals before 1978, but had a thriving pharmaceutical industry. Between 1961 and 1980, it accounted for about nine percent of all new active chemical compounds for drugs. After patents arrived, Italy saw no significant increase in the number of new drugs discovered there — contrary, one supposes, to the IP advocates’ predictions.^30 Another fact the conventional view overlooks is that patentable drugs are not the only medical innovations possible. Boldrin and Levine looked to a poll of the _British Medical Journal‘s_ readers on the top medical milestones in history, and found that almost none had anything to do with patents. Penicillin, x-rays, tissue culture, anesthetic, chlorpromazine, public sanitation, germ theory, evidence-based medicine, vaccines, the birth-control pill, computers, oral rehydration theory, DNA structure, monoclonal antibody technology, and the discovery of the health risks of smoking — of these top 15 entries, only two had anything to do with patents.^31 Similarly, _nothing_ on the US Centers for Disease Control’s list of the top ten public-health achievements of the 20th century had any connection to patents. And even a review of the most important pharmaceuticals reveals that many came about without the motive and/or possibility of acquiring a patent, including, for example, aspirin, AZT, cyclosporine, digoxin, ether, fluoride, insulin, isoniazid, medical marijuana, methadone, morphine, oxytocin, penicillin, Phenobarbital, prontosil, quinine, Ritalin, salvarsan, vaccines, and vitamins.^32 Patent law does create one incentive for researchers: to pursue more of the kind of research that will lead to patentable drugs, and less of the kind of research that might lead to other types of breakthroughs that cannot be patented — even though, as we’ve just seen, the latter kind may be some of the most important.^33 If patent law were abolished, we would probably see fewer artificial chemical drugs and more discoveries related to remedies from natural substances such as vitamins, minerals, and plants. Given the harmful side effects of many prescription drugs, it is not at all obvious that this would be a bad thing. Boldrin and Levine also show that patents are not essential to success in the pharmaceutical industry by pointing to the analogous paint and dye industries (which also depended on chemical formulas) in the 19th century. Germany offered no patent protection for paints and dyes at all until 1877, and even then only for the process involved in producing them, not for the products themselves. Nonetheless, German companies’ market share rose from next to nothing in 1862 to 50 percent in 1873 and 80 percent in 1913. Britain and France, on the other hand, had patent protection for both products and processes all along and saw their market shares fall from about 50 percent and 40 percent, respectively, in 1862 to between 13 and 17 percent in 1873.^34 The Germans eventually benefited from patents, but it’s clear that patents were not essential to their rise to the top. Costs and Benefits ================== So we’ve seen that copyrights and patents have costs that most people don’t think about. How to balance this against their benefits? Austrian economists would say this is impossible. Costs and benefits are subjective; they exist inside people’s heads and cannot be measured or compared to each other to find out what is economically optimal. The only way to know what is optimal is to look at what people actually do in the marketplace through their voluntary choices using their own actual tangible property.^35 Because IP rights by their nature interfere with private property and voluntary exchange, they necessarily move us away from what is optimal. Putting aside that problem, any attempt by non-Austrian economists to measure the costs and benefits of IP will necessarily leave out countless important factors. One such factor is human liberty. Even if we could determine that IP makes us _materially_ better off in some respects — in terms of economic growth or the number of different products produced, for example — IP laws require a government empowered to interfere with individuals’ peaceful use of their own property. You don’t have to believe in natural rights to value liberty and view its loss as a high cost. Still, even if you measure IP’s effects just in terms of economic growth — a rough measure of prosperity — economists are mostly undecided as to whether IP has even made this greater than it otherwise would be. Boston University law professors James Bessen and Michael J. Meurer have found that “intellectual property rights appear to have at best only a weak and indirect relationship to economic growth, the relationship appears to apply only to certain groups of countries or certain specifications, and the direction of causality is unclear.”^36 This last point is critical. To the small extent that patents may show a correlation with economic growth, we can’t even say whether patents caused the growth, or if the growth caused people to pursue patent protection. The End of IP ============= Libertarians may not have to appeal to rights theory, economics, or history to win the war on IP. Libertarians are already winning as people around the globe incessantly violate the legal rights of copyright holders by sharing music through bit-torrent programs and by uploading (and remixing and mashing up) videos of copyrighted material to YouTube without the slightest feeling of guilt. People cheered the Swedish proprietors of the Pirate Bay website as they went on trial for helping people freely trade music, movies, and software. (The Pirate Bay’s anti-IP, proprivacy views are so popular that they have even inspired a Pirate Party that has won one of Sweden’s seats in the European Parliament.) As the RIAA and MPAA crack down on file sharers and website operators with ever bigger threats, these organizations only look more like villains to the young people who have always operated under the assumption that they should be allowed to do as they please with their own computers as long as they don’t invade anyone else’s. More thinkers outside of libertarianism are challenging IP, too. Lessig and others in the “free-culture” movement have informed a large audience of how lengthy copyright terms and other especially oppressive aspects of IP impoverish us, and how an ever-growing “cultural commons” (public domain) would enrich us. Through the Creative Commons license invented by Lessig, people are deliberately giving up their exclusive rights under copyright law because they believe IP isn’t in their interests as creators and they want their ideas to spread. http://en.wikipedia.org/wiki/Lawrence_Lessig Lessig Along similar lines, the “Free Software” and “Open Source” movements have created software products that people are permitted to download, alter, and distribute freely. Contrary to IP advocates’ predictions, people make improvements to these software projects even though they don’t stand to profit personally. And many of these products, such as Linux-based operating system and the Firefox web browser, are competing successfully against such IP-dependent dinosaurs as Microsoft.Harvard law professor Yochai Benkler — not a libertarian himself, but a leading thinker in the “free-culture” movement — has observed that because of the Internet, we “are at a moment in history at which the terms of freedom and justice are up for the grabs,” especially in the context of IP.^37 Because libertarians have the intellectual ammunition to show people that what they are feeling and doing online is right, and what the big media and government want to do to them through IP laws is wrong, this moment presents a unique opportunity for libertarians to provide those definitions and advance their cause. Further Reading =============== Michele Boldrin and David K. Levine, _Against Intellectual Monopoly_. New York: Cambridge University Press, 2008. This is the utilitarian case against IP. The authors make the case that intellectual property is not necessary to spur creativity and innovation. Their evidence and arguments go far beyond what is presented in this chapter. This book is available here. http://www.dklevine.com/general/intellectual/againstfinal.htm here N. Stephan Kinsella, _Against Intellectual Property_. Auburn, Ala.: The Ludwig von Mises Institute, 2008. This is the rights-based case against IP. Kinsella shows how intellectual property is antithetical to true private property rights. http://mises.org/resources/3582/Against-Intellectual-Property Against Intellectual Property Lawrence Lessig, _Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity_. New York: Penguin, 2004. Lessig is not a libertarian, and he supports IP in principle, but his book shows how ever-lengthening copyright terms enrich powerful interests at our great cultural expense. Notes ===== ^1: For these stories, see David Kravets, “Feds Support $1.92 Million RIAA File Sharing Verdict,” Threat Level, August 14, 2009 http://www.wired.com/threatlevel/2009/08/feds-support-192-million-file-sharing-verdict Feds Support $1.92 Million RIAA File Sharing Verdict Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity Download PDF http://www.free-culture.cc/freeculture.pdf Download PDF (New York: Penguin, 2004), pp. 213-45; Rob Kelley, “BlackBerry Maker, NTP Ink $612 Million Settlement,” CNNMoney.com, March 3, 2006. http://money.cnn.com/2006/03/03/technology/rimm_ntp/index.htm BlackBerry Maker, NTP Ink $612 Million Settlement ^2: Lessig, p. 118. ^3: Quoted in Ibid., p. 117. ^4: Ayn Rand, “Patents and Copyrights,” in Ayn Rand, Capitalism: The Unknown Ideal (New York: Signet, 1967) pp. 130–34. ^5: Ludwig von Mises, Human Action: A Treatise on Economics, 4th ed. (San Francisco: Fox & Wilkes, 1996), pp. 661-62. http://mises.org/resources/3250 Human Action: A Treatise on Economics ^6: Rothbard’s ideas on IP are presented in Murray N. Rothbard, Man, Economy, and State (Auburn, Ala.: Ludwig von Mises Institute, 1993 [1962]), pp. 652–660; Murray N. Rothbard, Power and Market: Government and the Economy 4th ed. (Auburn, Ala.: Ludwig von Mises Institute, 2006 [1970]) http://mises.org/resources/1082/Man-Economy-and-State-with-Power-and-Market Man, Economy, and State Download PDF http://mises.org/Books/powermarket.pdf Download PDF Murray N. Rothbard, The Ethics of Liberty (New York: New York University Press, 1998 [1982]), pp. 123–24. http://mises.org/resources/1179/The-Ethics-of-Liberty The Ethics of Liberty ^7: Kinsella has not been alone. See also, for example, Roderick T. Long, “The Libertarian Case Against Intellectual Property Rights,” Formulations 3, no. 1 (Autumn 1995); Wendy McElroy, “Contra Copyright,” The Voluntaryist (June 1985) pp. 1-3 http://libertariannation.org/a/f31l1.html The Libertarian Case Against Intellectual Property Rights Download PDF http://www.voluntaryist.com/backissues/016.pdf Download PDF Tom G. Palmer, “Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects,” Harvard Journal of Law and Public Policy 13 (1990) pp. 817-65 Download PDF http://tomgpalmer.com/wp-content/uploads/papers/morallyjustified.pdf Download PDF Timothy Sandefur, “A Critique of Ayn Rand’s Theory of Intellectual Property Rights,” Journal of Ayn Rand Studies 9:1 (Fall 2007), pp. 139-61. http://ssrn.com/abstract=1117269 A Critique of Ayn Rand’s Theory of Intellectual Property Rights ^8: N. Stephan Kinsella, Against Intellectual Property (Auburn, Ala.: Ludwig von Mises Institute, 2008),p. 32. http://mises.org/resources/3582/Against-Intellectual-Property Against Intellectual Property ^9: Thomas Jefferson to Isaac McPherson, Monticello, August 13, 1813 (emphasis added). http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html Thomas Jefferson to Isaac McPherson ^10: For an argument that rejects this analysis, see Adam Mossoff, “Is Copyright Property?“ San Diego Law Review 42 (2005), p. 29. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=491466 Is Copyright Property ^11: Tom W. Bell, “Indelicate Imbalancing in Copyright and Patent Law,” in Adam Thierer and Clyde Wayne Crews, Jr., eds., Copy Fights: The Future of Intellectual Property in the Information Age (Washington, D.C.: Cato Institute, 2002), p. 4 (internal footnotes omitted, emphasis added). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=984085 Indelicate Imbalancing in Copyright and Patent Law ^12: “Trade secrets” — a relatively minor part of IP law — may present a special case. If a third party induces someone to give away a company secret, they may be considered liable in the same way that a co-conspirator to any wrongdoing is jointly liable. See Kinsella, pp. 56-57. Perhaps someone who induced a contractual-copyright breach could be held liable as well — but this still would not be enough to stop the information from getting out, so the attempted copyright protection wouldn’t really be effective. ^13: Tom W. Bell, “Copyright as Intellectual Property Privilege,” Syracuse Law Review 58 (2008) p. 541. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1023735 Copyright as Intellectual Property Privilege ^14: Epstein argues that IP rights can be considered property rights, and has attempted to tie Locke’s system to utilitarianism and IP. See Richard A. Epstein, “Liberty versus Property? Cracks in the Foundations of Copyright Law,” San Diego Law Review 42 (2005), p. 1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=529943 Liberty versus Property? Cracks in the Foundations of Copyright Law ^15: Tom G. Palmer, “Intellectual Property: A Non-Posnerian Law and Economics Approach,” Hamline Law Review 12 (1989), p. 302. Download PDF http://tomgpalmer.com/wp-content/uploads/papers/hamlineip.pdf Download PDF ^16: Michele Boldrin and David K. Levine, Against Intellectual Monopoly (New York: Cambridge University Press, 2008), pp. 22-23. http://www.dklevine.com/general/intellectual/againstfinal.htm Against Intellectual Monopoly ^17: Ibid., p. 141. ^18: Ibid., p. 25. ^19: Ibid., pp. 187-89. ^20: Boldrin and Levine, pp. 36-38. ^21: Ibid., p. 101. ^22: Ibid., p. 31. ^23: On this, see Lessig and see Jeffrey A. Tucker, “The Music and Book Killers.” LewRockwell.com, February 2, 2009. http://www.lewrockwell.com/tucker/tucker128.html The Music and Book Killers. ^24: Rothbard, Man, Economy, and State, p. 657. ^25: Julio H. Cole, “Patents and Copyrights: Do the Benefits Exceed the Costs?” Journal of Libertarian Studies 15:4 (2001), p. 92 Download PDF http://mises.org/journals/jls/15_4/15_4_3.pdf Download PDF Rothbard, Power and Market, p. 90. ^26: Bell, “Indelicate Imbalancing in Copyright and Patent Law,” p. 9. ^27: Boldrin and Levine, pp. 87-88, 206-07. ^28: Ibid., pp. 1-5. ^29: Ibid., p. 246. ^30: Ibid., pp. 222-23. ^31: Ibid., p. 229. ^32: Ibid., p. 230. ^33: Cole, p. 93; Rothbard, Man, Economy, and State, p. 658. ^34: Ibid., pp. 218-19. ^35: See Murray N. Rothbard, “Toward a Reconstruction of Utility and Welfare Economics” in Mary Sennholz, ed., On Freedom and Free Enterprise: The Economics of Free Enterprise, (Princeton, N.J: D. Van Nostrand, 1956) Download PDF http://mises.org/rothbard/toward.pdf Download PDF Rothbard, Power and Market, pp. 89-92. ^36: James Bessen and Michael J. Meurer, “Of Patents and Property,” Regulation (Winter 2008-09), pp. 22. Download PDF http://www.cato.org/pubs/regulation/regv31n4/v31n4-4.pdf Download PDF ^37: Robert S. Boyton, “The Tyranny of Copyright?,” The New York Times, January 25, 2004. http://www.nytimes.com/2004/01/25/magazine/25COPYRIGHT.html The Tyranny of Copyright? ⁂ Original: https://mises.org/mises-daily/fight-against-intellectual-property ⇧ /# ⇧ |
Jacob H. Huebert |
2011 |
7921 |
39.6 |
| Contra Copyright, Again |
Contra Copyright, Again ======================= by Wendy McElroy https://x.com/wendymcelroy1 Wendy McElroy January 1, 2011 Original: https://groups.csail.mit.edu/mac/classes/6.805/articles/int-prop/barlow-economy-of-ideas.html Retrospective ============= ERNEST HEMINGWAY ONCE WROTE, “If you are lucky enough to have lived in Paris as a young man, then wherever you go for the rest of your life, it stays with you, for Paris is a moveable feast.” Los Angeles in the early ’80s was like that for libertarians. It brimmed over with supper clubs, student groups, small magazines, debates and conferences. Given the concentration of high-quality scholars and activists in the area, the explosion of activity was inevitable. Although the new-born Libertarian Party was extremely active, the circles in which I ran were generally anti-political or apathetic about electoral politics. They included the cadre gathered around Robert LeFevre, a sprinkling of Objectivists (mostly admirers of Nathaniel Branden), a few Galambosians, and as many Rothbardians as I could meet. And, then, Carl Watner, George H. Smith and I established our own unique circle by creating _The Voluntaryist_ newsletter and re-introducing the term Voluntaryist back into the libertarian mainstream. A libertarian used book store named Lysander’s Books that I co-owned became the center of Voluntaryism. One intellectual circle in particular exerted a profound influence on the development of my thinking on intellectual property: the anarcho-capitalists who banded around Samuel Konkin III (or, as he preferred, SEK3), many of whom lived in the same apartment complex as SEK3; the complex became known as the anarcho-village. (In truth, it was SEK3 and Victor Koman rather than the entire circle that exerted the influence.) My first exposure to the theories that constitute intellectual property came from reading Ayn Rand,^1 but I gave the matter little thought. It was not until reading Lysander Spooner that I began to analyze the issue critically. Spooner advocated a rather extreme form of ownership in ideas. He once wrote, “So absolute is an author’s right of dominion over his ideas that he may forbid their being communicated even by human voice if he so pleases.”^2 I had adopted many of Spooner’s ideas wholesale but I balked at his view of intellectual property. Although I did not then question the claim that ideas could be property, I was disturbed by how closely so much of Spooner’s advocacy came to the Galambosian view at which so many of my companions laughed derisively. Galambos famously had a nickle jar into which he would deposit a coin every time he used a word that had been “invented” by someone else and to whom (in his opinion) he owned money for its use. I thought then (and now) that such ownership claims went against the free flow of knowledge required by a thriving society ... or a thriving individual, for that matter. In short, Spooner’s approach to intellectual property _felt_ wrong. At that same time, I was also engaged in indexing Benjamin Tucker’s 19th century periodical _Liberty_ (1881–1908) and, eventually, I progressed into Tucker’s discussion of intellectual property in which he fundamentally disagreed with the views of his mentor, Spooner. The pre-Stirnerite Tucker considered the issue to be his only deviation from Spooner. As I read the very active debate within _Liberty_, I began to reduce my commitment to intellectual property, to narrow it. For example, I abandoned altogether the belief that inventions could properly be patented. My belief in copyright, however, was more persistent despite the fact that Murray Rothbard—my idol and my friend—was anti-copyright. Frankly, Murray and I never discussed that subject. But SEK3 and I did. Many people found SEK3 to be a bit annoying in how he argued ideas. There was a persistence and casual assurance about him that irritated some but which I found charming. SEK3 was always available and “up” for gab-sessions that lasted for hours. He had an uncanny ability to find the strand of thought in your argument which could be reduced to absurdity. Some people bitterly resented this ability because they thought he was making them look foolish but it fascinated me and I found it compelling. Indeed, it had been a similar technique of arguing that had made me relinquish my belief in God at the age of sixteen. SEK3 now used the technique on me and, so, chipped away at my acceptance of copyright.^3 The last blow was dealt by the science-fiction writer and SEK3 cadre Victor Koman who asked me a pointed question at an otherwise forgettable party. Vic asked, “Do you really think you own what is in my mind?” As an anarchist who was then reading both Tucker and 19th century abolitionist tracts, one answer alone was possible: “No.” And, yet, if I claimed ownership over an arrangement of words he had read, then I was answering “yes” because that arrangement now resided in Victor’s mind. If I could compel him (as Spooner suggested) not to speak the words aloud, then I was making an ownership claim over another person’s body. At that moment—and, granted, it took several months of consideration to reach that moment—I abandoned all belief in intellectual property. One of SEK3’s cadre who never made the same leap was/is the science-fiction writer J. Neil Schulman. Shortly after my conversion experience, I was asked to debate J. Neil on the topic of copyright at a Westwood supper club that scrapped the dinner part of the evening in order to accommodate a longer program of debate, rebuttal, Q&A. (SEK3 may well have been the more logical choice but, as I said, he irritated some people.) The event was a rousing success in several ways. First, the large room was filled beyond capacity, with people choosing to stand for hours rather than leave. Brad (now my husband of over 20 years) attended as the representative of the Society for Libertarian Life. SLL offered 2 buttons: one pro- and one anti-copyright; as I remember, they sold out. It was a long evening, mostly due to the fact that J. Neil went over his 20-minute time limit by about 30 minutes. Nevertheless, not a single person left and the Q&A was unusually lively. At first, I was disappointed because the questions were overwhelmingly directed toward J. Neil. But, then, I realized no one was arguing with me. Everyone was taking exception to his presentation on what he called “logorights.” At that point, I relaxed until, finally, the moderator had to cut off questions because the gathering was going beyond the time for which the room had been rented. A group of us adjourned to a Great Earth restaurant and continued the discussion. J. Neil immediately began to write up his side of the debate and later published it.^4 I followed suit. Since I always write out my presentations, this merely required some polishing to produce “Contra Copyright” which appeared in an early issue of _The Voluntaryist_ newsletter. A still more polished revision appears below. Contra Copyright ================ Copyright—the legal claim of ownership over a particular arrangement of symbols—is a complicated issue because the property being claimed is intangible. It has no mass, no shape, no color. For the property claimed is not the specific instance of an idea, not a specific book or pamphlet, but the idea itself and all present or possible instances of its expression. The title of a recent book on intellectual property, _Who Owns What Is In Your Mind?_, concretizes a commonsense objection to all intellectual property: most people would loudly proclaim that NO ONE owns what is in their minds, that this realm is sacrosanct. And, yet, if the set of ideas in your mind begins “Howard Roark laughed” do you have the right to transfer it onto paper and publish a book entitled _The Fountainhead_ under your own name? If not, why not? To say you own what is in your mind means you have the right to use and dispose of it as you see fit. If you cannot use and dispose of it, if Ayn Rand (assuming a still-living Rand) is the only one who can use and dispose of this specific arrangement of the alphabet, then she owns that sentence within your mind. And if she owns what is in your mind, you have violated her rights in writing or speaking it because you do not have permission to use her property. I advocate a form of copyright—free market copyright. I view copyright as a useful social convention to be maintained and enforced through contract and other market (voluntary) mechanisms. This is in contradistinction to those who believe copyright can be derived from natural rights; in other words, ideas or patterns are property and their exclusive ownership does not require a contract anymore than preventing a man from stealing your wallet requires a prior contract. Basically, the debate over copyright—or, more generally, intellectual property—comes down to two questions: What is property? What are the essential characteristics which make something ownable?: and, What is an idea? Before going on to a discussion of theory, however. I want to address two implications that often lurk beneath criticism of free market copyright. First: It is said that the marketplace cannot handle intellectual property issues. Those who contend that ten different people would publish Hamlet under their own names and, so, create cut-throated chaos, are using a form of the “market failure” argument which has been applied to everything from medical care to defense. Similarly, it is claimed, the market cannot regulate the publishing industry. The opposite is true. When I co-owned a used book store—a business which is virtually unregulated—I was astonished at how effectively the free market spontaneously set standards. It was not uncommon for stores in L.A. to know the specifics of a stolen book or a forged autograph the day after it had been spotted in New York. Second, it is said that free market copyright would strip authors of valid protection or credit for their own work. When Benjamin Tucker—a 19th century libertarian opponent of copyright—was accused of stripping authors of protection, he replied: “It must not be inferred that I wish to deprive the authors of reasonable rewards for their labor. On the contrary, I wish to help them secure such, and I believe that there are Anarchistic methods of doing so.”^5 Equally, those who oppose state-enforced copyright are not seeking to victim authors but to use free market mechanisms to offer whatever protection is just. Returning to theory ... The issue of copyright hinges on the question: can ideas be property? Which leads to another question: what are the characteristics of property? Tucker addressed this issue in fundamental terms. He asked why the concept of property had originated in the first place. If ideas are viewed as problem-solving devices, as answers to questions, then what about the nature of reality and the nature of man gave rise to the idea of property? In a brilliant analysis, Tucker concluded that property arose as a means of solving conflicts caused by scarcity. Since all goods are scarce, there is competition for their use. Since the same chair cannot be used in the same manner at the same time by two individuals, it was necessary to determine who should use the chair. Property resolved this problem. The owner of the chair determined its use. “If it were possible,” wrote Tucker, > and if it had always been possible, for an unlimited number of individuals to use to an unlimited extent and in an unlimited number of places the same concrete things at the same time, there would never have been any such thing as the institution of property.^6 Yet ideas defy scarcity. Since the same idea or pattern can be used by an unlimited number to an unlimited extent in unlimited locations, Tucker concluded that copyright ran counter to the very purpose of property itself, which was to ascertain the correct allocation of a scarce good. Copyright contradicts not merely the purpose of property but also the essential characteristics of property, one such characteristic being transferability. Property has to be alienable: you must be able to dispossess yourself of it. The individualist anarchist, James L. Walker (writing under the pen name Tak Kak), commented, “The giver or seller parts with it [meaning property] in conveying it. This characteristic distinguishes property from skill and information.”^7 When you buy the skill and information of a doctor who gives you a check up, for example, you don’t acquire a form of title, as you would acquire title to a car from a car dealer, because the doctor is unable to alienate the information from himself. He cannot transfer it to you: he can only share it. It was this point, transferability, that lead Thomas Jefferson to reject ideas as property. Jefferson drew an analogy between ideas and candles. Just as a man could light his taper from a candle without diminishing the original flame, so too could he acquire an idea without diminishing the original one. Jefferson wrote: > If nature has made any one thing less susceptible than all others of exclusive property, it is ... an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.^8 When a poet reads or sells poetry without a contract, when he throws his ideas and patterns into the public realm, the listeners receive information, not property. For the publicized poems to be property they must be transferable, alienable. Yet, as the egoist J.B. Robinson said, “What is an idea? Is it made of wood, or iron, or stone? The idea is nothing objective, that is to say, the idea is not part of the product: it is part of the producer.”^9 In other words, if the poet claims ownership to the pattern of words in his listener’s head, this reduces to a form of slavery since the ownership claim is over an aspect of the listener’s body: namely, his mind, his knowledge. Such a claim is comparable to saying you own the blood in someone else’s arm. Certainly, you could buy the blood—perhaps for a transfusion—but such a purchase would be contractual and not based on natural right. Everyone owns the ideas within their own minds. If there is only one instance of a specific idea or arrangement of ideas—e.g. a writer who locks his novel in a desk drawer—then the idea is protected by natural right, by the author’s to self-ownership. He has right to live in peace and silence and maintain a locked desk; no one can properly break into his desk and steal his property. When an author chooses to publicize his ideas without securing protection based on a listener’s or reader’s consent, however, he loses the protection afforded by his self-ownership. He loses what Tucker called ‘“the right of inviolability of person.” To restate this: I own my ideas because they are in my mind and you can get at them only through my consent or through using force. My ideas are like stacks of money locked inside a vault which you cannot acquire without breaking in and stealing. But, if I throw the vault open and scatter my money on the wind, the people who pick it up off the street are no more thieves than the people who pick up and use the words I throw into the public realm. And, yet, the poet might respond, no one is forced to absorb the poetry floating through the culture. They do so of their own free will. Therefore, says the poet, there is an implied contract or obligation on the part of the listener not to use it without permission. Victor Yarros, Tucker’s main opponent on copyright in the 19th Century movement, argued along these lines. He claimed, “All Mr. Tucker has the right to demand is that these things shall not be brought to his own private house and placed before his eyes.”^10 Tucker responded, > Some man comes along and parades in the streets and we are told that, in consequence of this act on his part, we must either give up our liberty to walk the streets or else our liberty to ideas ... Not so fast my dear sir! ... Were you compelled to parade on the streets? And why do you ask us to protect you from the consequences?^11 Moreover, the introduction of an implied contract between the poet and listener is a two-edged sword. To fall back on some sort of implied agreement implicitly admits that copyright is a matter of contract, not of natural law for one does not need to fall back on contract to protect natural rights. If a man steals your money, there is no need to appeal to an agreement—implied or otherwise—to justify a demand for restitution. Restitution occurs because it was _your_ money. Only when you are dealing with those things to which you have no natural right must you appeal to contract. Historically, copyright has been handled differently than patents. Many people accept copyrights while rejecting patents. The distinction is usually based on two points: (1) literature is considered pure, personal creation as opposed to inventions which rely on the discovery of relationships that already exist within within nature: and (2) independent creation of literature is considered to be impossible. Copyright is said to protect style or the pattern of expression rather than the ideas expressed. By contrast, most people agree that ideas themselves can be independently and even simultaneously created—for example, Walras, Jevons and Menger all separately originated the theory of marginal utility—but they do not agree that style can be independently or honestly duplicated. The issue of duplication of style raises interesting questions. For one thing, it is not unknown for poetry, especially short poems, to closely resemble each other. Do these chance similarities constitute duplication? Do they violate copyright laws? If they don’t, what prevents me from taking _Atlas Shrugged_ and publishing it under my name after changing one word in each sentence? This would produce a similar pattern but not a duplicate one. If copyright would prevent me from doing this, then it is aimed not only at prohibiting exact duplications but at prohibiting similarities as well. And similarities are quite within the realm of honest possibility, especially when the guidelines of what constitute similarity are vague. Many advocates of copyright would argue that honest similarities in nature are impossible or highly improbable. But laws should be based on principle, not upon probability. Tucker wrote: To discuss the degrees of probability is to shoot wide of the mark. Such questions as this are not to be decided by rule of thumb or by the law of chances, but in accordance with some general principle ... among the things not logically impossible. I know of few nearer the limit of possibility than that I should ever desire to publish in the middle of the desert of Sahara: nevertheless, this would scarcely justify any great political power in giving someone a right to stake out a claim comprising that entire region and forbid me to set up a printing press.^12 In short, a question of right must be determined by a general theory of rights, not the likelihood of circumstances. In regard to the ownership of a form of expression—of what is called “style”—Tucker believed that a particular combination of words belonged to no one; the method of expressing an idea was an idea in and itself and, therefore, “not appropriable.” As long as you are not claiming ownership of a specific instance of a book, but of the abstracted style of every instance of this book, you are claiming ownership of an idea. Examples of styles or patterns surround us everywhere. In chairs, shoes, hairstyles, gardens, clothes, wallpaper, the arrangement of furniture ... patterns are everywhere. And if it is out of respect for style that arrangements of words cannot be duplicated, then for that same reason, a shoemaker cannot duplicate shoes. Women cannot duplicate hairstyles or clothes for, after all, these items express style as much as a sonnet does. Yet it is only with the sonnet, with literature that the originators clamor for special, legal protection. If copyright were not the norm, if all of us had not grown up with it, we might consider it as absurd as a house owner claiming special, legal protection of the pattern of colors with which he had painted his home or the arrangement of rocks in his garden. Indeed, to be consistent, the copyright advocate has to reduce his position to similar absurdity. For example, not merely writing but all of speech is a personal form of expression; speech is an arrangement of the alphabet in much the same manner as writing is. Therefore, by the advocate’s own standards, a man should be entitled to legal protection for every sentence he utters so that no one thereafter can utter it without his consent. Lysander Spooner, a defender of copyright much quoted by libertarians, seemed to consider this possibility when he wrote, “So absolute is an author’s right of dominion over his ideas that he may forbid their being communicated even by human voice if he so pleases.”^13 Think about that statement; it is frightening in its implications for the free flow of ideas and knowledge upon which human progress depends. I do not believe state-enforced copyright protects the just profits of an author. I agree with George Bernard Shaw who contended “copyright is the cry of men who are not satisfied with being paid for their work once but insist upon being paid twice, thrice and a dozen times over.”^14 I believe free market copyright would temper the immense profits that can be made from writing, and that they should be tempered because such profits do not reflect just rewards so much as they do a state monopoly. Moreover, I do not believe that the absence of state enforcement would destroy literature Most of the world’s great authors—Shakespeare for example—wrote without copyright. As for the possible destruction of the publishing industry, Tucker—a publisher—explained: > Why did two competing editions of the Kreutzer Sonata [a book he issued —WM] appear on the market before mine had had the field two months? Simply because money was pouring into my pockets with a rapidity that nearly took my breath away. And after my rivals took the field if poured in faster than ever.^15 As a writer I am eager to maximize my profits. I am not so eager, however, that I would claim ownership to what is in your mind. My attitude toward writers and lecturers who throw their products into the streets and, yet, claim legal protection as they do so is the same as that once uttered by Tucker: “You want your invention to yourself? Then keep it to yourself.”^16 The energy being expended in debating intellectual property would be better used in exploring methods by which the free market could protect the just rewards of intellectual products. ⁂ ^1: See Ayn Rand, “Patents and Copyrights,” in Capitalism: The Unknown Ideal (1970). ^2: Lysander Spooner, _The Law of Intellectual Property; Or an Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas_ (1855), p. 125, http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2243&Itemid=27 ^3: SEK3’s views on IP are expressed in Samuel Edward Konkin III, “Copywrongs,” The Voluntaryist (July 1986), http://www.lewrockwell.com/orig11/konkin1.1.1.html. ^4: See J. Neil Schulman, “Informational Property—Logorights,” Journal of Social and Biological Structures, 13 no. 2 (1990), pp. 93–117, http://jneilschulman.rationalreview.com/2009/12/classic-j-neil-informational-propertylogorights/. ^5: For further discussion of Tucker’s views on property and IP, see my article “Copyright and Patent in Benjamin Tucker’s Periodical,” Mises Daily (July 28, 2010), originally published in Wendy McElroy, ed., The Debates of Liberty: An Overview of Individualist Anarchism, 1881–1908 (Lexington, 2003). ^6: “More on Copyright,” Liberty 7 (December 27, 1890): 5. ^7: “Copyright.--IV,” Liberty 8 (May 30, 1891): 3. ^8: Thomas Jefferson to Isaac McPherson (Aug. 13, 1813), http://presspubs.uchicago.edu/founders/documents/a1_8_8s12.html. ^9: “A New Argument Against Copyright,” Liberty 8 (May 16, 1891): 5. ^10: “The Right to Authorship,” Liberty 7 (February 21, 1891): 4. ^11: Commentary on “The Right to Authorship,” Liberty 7 (February 21, 1891): 5. ^12: Commentary on Yarros, “More About Copyright,” Liberty7 (Dec 27, 1890): 4, at 5. ^13: Spooner, The Law of Intellectual Property, p. 125. ^14: Quoted in Clarence Lee Swartz, What is Mutualism? (1927), http://www.panarchy.org/swartz/mutualism.5.html. ^15: Commentary on “The Reward of Authors,” Liberty 7 (January 10, 1891): 6. ^16: “The Knot-Hole in the Fence,” Liberty 7 (April 18, 1891): 6. Original: https://groups.csail.mit.edu/mac/classes/6.805/articles/int-prop/barlow-economy-of-ideas.html ⇧ /# ⇧ |
Wendy McElroy |
2011 |
4254 |
21.3 |
| “Intellectual Property” is Slavery |
“Intellectual Property” is Slavery ================================== by Nina Paley https://x.com/ninapaley Nina Paley November 4, 2009 Original: https://blog.ninapaley.com/2009/11/04/intellectual-property-is-slavery/ > Every man has a property in his own person. This nobody has a right to, but himself. John Locke, Second Treatise on Civil Government http://en.wikipedia.org/wiki/Property John Locke, Second Treatise on Civil Government “Most thinkers…hold that you own your own life, and it follows that you must own the products of that life, and that those products can be traded in free exchange with others,” claims Wikipedia’s latest entry on property. “Every man has a property in his own person,” says John Locke. Ayn Rand (who I generally can’t stand, but who I’m happy to quote as a passionate defender of the sanctity of property) wrote, “Just as man can’t exist without his body, so no rights can exist without the right to translate one’s rights into reality, to think, to work and keep the results, which means: the right of property.” http://en.wikipedia.org/wiki/Property property You also have a property in your own MIND. That which lives in your mind, is your property. And everyone deserves Rand’s “right to translate one’s rights into reality, to think, to work and keep the results” – in other words to freely think, express, and own the contents of their own mind. That is what “intellectual property” should (but doesn’t) mean: everyone’s right to their own mind. Instead, legally defined “Intellectual Property” means exactly the opposite: it transfers ownership of the contents of your mind to others. It alienates the ideas in your mind, from you. Is there a song running through your mind right now? It doesn’t belong to you, it belongs to Warner-Chappell. You are forbidden to express it; “performance” requires permission. “To think, to work” – interpret – “and keep the results” – record and sell copies of – the song in your mind, are illegal. Thus Intellectual Property gives alien, private owners title to our minds. We may think culture (songs, text, images) only in secret; any expressions of cultural thought belong not to the thinker, but to the IP owner. Your thoughts are “derivative works”; someone else has title to them. You may have “Porgy and Bess” in your mind, but interpreting or singing it out loud is forbidden. That part of your mind belongs to Gershwin’s heirs and their lackeys. http://techdirt.com/articles/20091102/0401476761.shtml Gershwin’s heirs Wikipedia’s entry on Chattel Slavery states: “The living human body is, in most modern societies, considered something which cannot be the property of anyone but the person whose body it is.” The living human mind should be the same. Legally defined “Intellectual Property” is, quite simply, someone else’s ownership of your mind. If they own the right to express what lives in your mind, the right “to think, to work and keep the results,” then they own your mind; they own you. What can we call that, except slavery? http://en.wikipedia.org/wiki/Ownership#Chattel_slavery Chattel Slavery ⁂ Original: https://blog.ninapaley.com/2009/11/04/intellectual-property-is-slavery/ ⇧ /# ⇧ |
Nina Paley |
2009 |
538 |
2.7 |
| There are No Good Arguments for Intellectual Property |
There are No Good Arguments for Intellectual Property ===================================================== by Stephan Kinsella https://x.com/NSKinsella Stephan Kinsella February 24, 2009 Original: https://c4sif.org/2009/02/there-are-no-good-arguments-for-intellectual-property/ There are some decent arguments out there that argue in favor of a state, welfare rights, war, democracy, drug laws, and so on. They are all flawed, since libertarianism is right, but there are coherent, honest arguments that we libertarians have to grapple with. But it is striking that there are no decent arguments for IP–as Manuel Lora remarked to me, “You know, I haven’t seen a good pro IP article ever.” This is true. One sees the same incoherent or insincere claims made over and over, such as: 1. It’s in the constitution (argument from authority; legal positivism) 2. Intellectual property is called property! (argument by definition?) 3. No movies would be made and kids would die without medicine (artworks and medicine have been produced for ages without IP law; and where’s the evidence?) 4. If you “create” something you own it (despite all the exceptions, and despite the fact that creation is neither necessary nor sufficient for ownership; despite the fact that you either limit these rights in scope or time arbitrarily, or you extent them to infinity, choking off rights in real things and forcing life and commerce to a screeching halt) 5. It generates net wealth–more value than its cost (no evidence, ever, for this contention–just assumptions; not to mention the problem of utilitarian summing of values) 6. IP infringement is “theft” (even though the owner still has his property and ideas, and even though IP infringement is just learning and emulating) 7. People “could” create variants of IP via private contracts… therefore artifical patent granting bureaucracies legislated by a criminal state are … justified?) There are other arguments, I suppose, but they are so incoherent as to defy description. They often involve crankish initial caps, like Property and Rights, the Internet equivalent of crayons. I have truly never seen a coherent, good argument for IP. The advocates are either utilitarian, with all the problems that accompany that (not to mention they never have any evidence for their claims); or the advocate a more “principled”, rights-based type of IP that, if taken seriously, would completely undermine all real property rights and make life on earth impossible, so they retreat from this and impose arbitrary, senseless limits on it. What a kluge. In a recent discussion, What’s Wrong With Theft?, one of the IP advocates, when pushed into a corner, ended up arguing that rights to own property include the right to control all “access to” and “interactions with” one’s property–and that “interactions” include observing or knowing about or learning facts about the things owned by someone, and that when you use this knowledge you are “interacting with” the property, and thus “stealing” it (even though the owner still has it). So here we have it: IP means “interaction rights.” Wow. This is how kooky all IP arguments ultimately are. https://web.archive.org/web/20090331204838/http://blog.mises.org/archives/009486.asp What’s Wrong With Theft? ⁂ Original: https://c4sif.org/2009/02/there-are-no-good-arguments-for-intellectual-property/ ⇧ /# ⇧ |
Stephan Kinsella |
2009 |
548 |
2.7 |
| Owning Ideas Means Owning People |
Owning Ideas Means Owning People ================================ by Roderick T. Long https://x.com/RoderickTLong Roderick T. Long November 19, 2008 Original: https://perma.cc/7LGU-XJLE Timothy Lee writes: “I can’t agree with Baker that all copyright and patent monopolies are illegitimate.” I’m actually not sure that’s Baker’s view (in his original response Baker remarks in passing, “there may be areas in which patents are an effective policy for promoting innovation”), but it is my view, so let me say briefly why I don’t regard intellectual property as a legitimate form of property. The objects of ownership in the case of intellectual property are supposed to be abstract objects; but what does ownership over an abstract object amount to? Ownership is supposed to solve conflicts over use, but there cannot literally be conflicts over the use of abstract objects; I don’t have to wait until you’re done thinking the Pythagorean theorem before I can start thinking it. Putative conflicts over the use of abstract objects are always really conflicts over the concrete items in which those abstract objects are embodied. An abstract object, such as a design for a new kind of mousetrap, gets its foothold in concrete reality only by being embodied in, say, a mind that is thinking of it, or a sheet of paper that describes it, or an actual mousetrap built in accordance with it. But if those concrete objects are already owned – the mind by the person whose mind it is, the paper and the mousetrap by whoever made or bought them – then the question of who has rights over those things is already settled, and there can be no further question of who owns the design itself. If the originator of the design were to claim exclusive rights over it, he or she would thereby be claiming, in practice, the right to control someone else’s property – someone else’s individual mind or individual sheet of paper or individual mousetrap. Intellectual property is thus essentially a claim of ownership over other people and the products of other people’s labor, and so is necessarily illegitimate; in forbidding the free circulation of ideas it constitutes a form of censorship as well. In defense of intellectual property, Lee notes that “Copyright and patent protections have existed since the beginning of the republic, and if properly calibrated they can (as the founders put it) promote the progress of science and the useful arts.” That they have existed since the beginning of the republic is true, but not a compelling argument for their legitimacy. (Slavery existed for the first century of the republic also.) As for their being needed to promote “science and the useful arts,” even if this were true it wouldn’t justify the violation of liberty involved – but it is doubtful that it is true, given that most scientific and artistic progress throughout history was accomplished without intellectual property protections, and in many cases was in fact possible only because there were no such protections (as inventions built on previous inventions, and artworks on previous artworks). The protectionist argument that intellectual innovators won’t have sufficient incentive to create unless they’re protected from competition doesn’t seem to hold up historically. I can’t work up much enthusiasm for Baker’s alternative proposal, however. Baker writes: > My ideal system would be a system in which the government allocates a pot of money (@$30 billion a year – approximately equal to private R&D in the pharmaceutical sector) that would be awarded in long-term contracts to a relatively small number of master contractors. For example, there can be 10 master contractors getting grants of roughly $30 billion each spread over 10 years. The model here should be government contracts for major projects, like building an airport. In light of the massive rent-seeking, favoritism, and costly boondoggles that plague government contracts, Baker’s proposal seems worrisomely similar to the kind of destructive corporate welfare and monopoly privilege that I discussed in my first essay. Contrary to what both Lee and Baker imply, there are ways of promoting the “progress of science and the useful arts” without invoking state aggression against liberty or property — ways that would secure many of the benefits of copyright and patent protection without violating libertarian scruples. These ways include contractual stipulations, charitable patronage, and organized boycotts. Let me say a bit about the latter case, the organized boycott. During the late medieval period a system of commercial law arose in Europe called the Law Merchant, its creation prompted in part by the lack of uniform legal standards owing to the unwillingness of governmental courts in one country to enforce contracts made under the laws of another country. Bypassing the inefficient (because monopolistic) government courts, merchants from different countries joined together in developing their own rules and courts; being denied the enforcement powers of the state, mercantile courts could rely only on boycotts to secure compliance with their decisions. A similar situation arose in 17th-century Amsterdam: when government courts refused to enforce certain forms of financial contract, merchants continued to make such contracts anyway, relying on the power of boycott for enforcement. In both cases, the threat of boycott was sufficient to ensure that parties abided by their contracts.^1 There is little reason to suppose that payment for the labor of intellectual innovators could not be guaranteed in the same way, via an organized system of voluntary boycotts rather than by governmental force. Being voluntary, such a system would avoid the rights-based objections to copyrights and patents; moreover, the kinds of protections that would be sustainable under a voluntary regime would be unlikely to include the extreme, disproportionate excesses of current IP law. Notes ===== ^1: On the Law Merchant see Tom W. Bell, “Polycentric Law,” Humane Studies Review 7, no. 1 (Winter 1991/92; http://osf1.gmu.edu/~ihs/w91issues.html; on the Amsterdam case see Edward Stringham, “The Extralegal Development of Securities Trading in Seventeenth-Century Amsterdam,” Quarterly Review of Economics and Finance 43 (2003), pp. 321–344; http://www.sjsu.edu/stringham/docs/Stringham.2003.QREF.Amsterdam.pdf. ⁂ Original: https://perma.cc/7LGU-XJLE ⇧ /# ⇧ |
Roderick T. Long |
2008 |
1033 |
5.2 |
| The Surprising History of Copyright and The Promise of a Post-Copyright World |
The Surprising History of Copyright and The Promise of a Post-Copyright World ============================================================================= by Karl Fogel https://x.com/kfogel Karl Fogel May 27, 2006 Original: https://www.questioncopyright.org/promise/ There is one group of people not shocked by the record industry’s policy of suing randomly chosen file sharers: historians of copyright. They already know what everyone else is slowly finding out: that copyright was never primarily about paying artists for their work, and that far from being designed to support creators, copyright was designed by and for distributors — that is, publishers, which today includes record companies. But now that the Internet has given us a world without distribution costs, it no longer makes any sense to restrict sharing in order to pay for centralized distribution. Abandoning copyright is now not only possible, but desirable. Both artists and audiences would benefit, financially and aesthetically. In place of corporate gatekeepers determining what can and can’t be distributed, a much finer-grained filtering process would allow works to spread based on their merit alone. We would see a return to an older and richer cosmology of creativity, one in which copying and borrowing openly from others’ works is simply a normal part of the creative process, a way of acknowledging one’s sources and of improving on what has come before. And the old canard that artists need copyright to earn a living would be revealed as the pretense it has always been. None of this will happen, however, if the industry has its way. For three centuries, the publishing industry has been working very hard to obscure copyright’s true origins, and to promote the myth that it was invented by writers and artists. Even today, they continue to campaign for ever stronger laws against sharing, for international treaties that compel all nations to conform to the copyright policies of the strictest, and most of all to make sure the public never asks exactly who this system is meant to help. The reward for these efforts can be seen in the public’s reaction to the file-sharing lawsuits. While most people agree that this time the industry went too far, the error is mainly treated as one of degree — as if the record companies had a valid point, but had merely resorted to excessive force in making it. To read the true history of copyright is to understand just how completely this reaction plays into the industry’s hands. The record companies don’t really care whether they win or lose these lawsuits. In the long run, they don’t even expect to eliminate file sharing. What they’re fighting for is much bigger. They’re fighting to maintain a state of mind, an attitude toward creative work that says someone ought to own products of the mind, and control who can copy them. And by positioning the issue as a contest between the Beleaguered Artist, who supposedly needs copyright to pay the rent, and The Unthinking Masses, who would rather copy a song or a story off the Internet than pay a fair price, the industry has been astonishingly successful. They have managed to substitute the loaded terms “piracy” and “theft” for the more accurate “copying” — as if there were no difference between stealing your bicycle (now you have no bicycle) and copying your song (now we both have it). Most importantly, industry propaganda has made it a commonplace belief that copyright is how most creators earn a living — that without copyright, the engines of intellectual production would grind to a halt, and artists would have neither means nor motivation to produce new works. Yet a close look at history shows that copyright has never been a major factor in allowing creativity to flourish. Copyright is an outgrowth of the privatization of government censorship in sixteenth-century England. There was no uprising of authors suddenly demanding the right to prevent other people from copying their works; far from viewing copying as theft, authors generally regarded it as flattery. The bulk of creative work has always depended, then and now, on a diversity of funding sources: commissions, teaching jobs, grants or stipends, patronage, etc. The introduction of copyright did not change this situation. What it did was allow a particular business model — mass pressings with centralized distribution — to make a few lucky works available to a wider audience, at considerable profit to the distributors. The arrival of the Internet, with its instantaneous, costless sharing, has made that business model obsolete — not just obsolete, but an obstacle to the very benefits copyright was alleged to bring society in the first place. Prohibiting people from freely sharing information serves no one’s interests but the publishers’. Although the industry would like us to believe that prohibiting sharing is somehow related to enabling artists to make a living, their claim does not stand up to even mild scrutiny. For the vast majority of artists, copyright brings no economic benefits. True, there are a few stars — some quite talented — whose works are backed by the industry; these receive the lion’s share of distribution investment, and generate a correspondingly greater profit, which is shared with the artist on better than usual terms because the artist’s negotiating position is stronger. Not coincidentally, these stars are who the industry always holds up as examples of the benefits of copyright. But to treat this small group as representative would be to confuse marketing with reality. Most artists’ lives look nothing like theirs, and never will, under the current spoils system. That is why the stereotype of the impoverished artist remains alive and well after three hundred years. The publishing industry’s campaign to preserve copyright is waged out of pure self-interest, but it forces on us a clear choice. We can watch as most of our cultural heritage is stuffed into a vending machine and sold back to us dollar by dollar — or we can reexamine the copyright myth and find an alternative. * The first copyright law was a censorship law. It was not about protecting the rights of authors, or encouraging them to produce new works. Authors’ rights were in little danger in sixteenth-century England, and the recent arrival of the printing press (the world’s first copying machine) was if anything energizing to writers. So energizing, in fact, that the English government grew concerned about too many works being produced, not too few. The new technology was making seditious reading material widely available for the first time, and the government urgently needed to control the flood of printed matter, censorship being as legitimate an administrative function then as building roads. The method the government chose was to establish a guild of private-sector censors, the London Company of Stationers, whose profits would depend on how well they performed their function. The Stationers were granted a royal monopoly over all printing in England, old works as well as new, in return for keeping a strict eye on what was printed. Their charter gave them not only exclusive right to print, but also the right to search out and confiscate unauthorized presses and books, and even to burn illegally printed books. No book could be printed until it was entered in the company’s Register, and no work could be added to the Register until it had passed the crown’s censor, or had been self-censored by the Stationers. The Company of Stationers became, in effect, the government’s private, for-profit information police force ^1. The system was quite openly designed to serve booksellers and the government, not authors. New books were entered in the Company’s Register under a Company member’s name, not the author’s name. By convention, the member who registered the entry held the “copyright”, the exclusive right to publish that book, over other members of the Company, and the Company’s Court of Assistants resolved infringement disputes ^2. This was not simply the latest manifestation of some pre-existing form of copyright. It’s not as though authors had formerly had copyrights, which were now to be taken away and given to the Stationers. The Stationers’ right was a new right, though one based on a long tradition of granting monopolies to guilds as a means of control. Before this moment, copyright — that is, a privately held, generic right to prevent others from copying — did not exist. People routinely printed works they admired when they had the chance, an activity which is responsible for the survival of many of those works to the present day. One could, of course, be enjoined from distributing a specific document because of its potentially libelous effect, or because it was a private communication, or because the government considered it dangerous and seditious. But these reasons are about public safety or damage to reputation, not about property ownership. There had also been, in some cases, special privileges (then called “patents”) allowing exclusive printing of certain types of books. But until the Company of Stationers, there had not been a blanket injunction against printing in general, nor a conception of copyright as a legal property that could be owned by a private party. For about a century and a third, this partnership worked well for the government and for the Stationers. The Stationers profited from their monopoly, and through the Stationers, the government exercised control over the spread of information. Around the end of the seventeenth century, however, owing to larger political changes, the government relaxed its censorship policies, and allowed the Stationers’ monopoly to expire. This meant that printing would return to its former anarchical state, and was of course a direct economic threat to the members of the Company of Stationers, accustomed as they were to having exclusive license to manufacture books. Dissolution of the monopoly might have been good news for long-suppressed authors and independent printers, but it spelled disaster for the Stationers, and they quickly crafted a strategy to retain their position in the newly liberal political climate. The Stationers based their strategy on a crucial realization, one that has stayed with publishing conglomerates ever since: authors do not have the means to distribute their own works. Writing a book requires only pen, paper, and time. But distributing a book requires printing presses, transportation networks, and an up-front investment in materials and typesetting. Thus, the Stationers reasoned, people who write would always need a publisher’s cooperation to make their work generally available. Their strategy used this fact to maximum advantage. They went before Parliament and offered the then-novel argument that authors had a natural and inherent right of ownership in what they wrote, and that furthermore, such ownership could be transferred to other parties by contract, like any other form of property. Their argument succeeded in persuading Parliament. The Stationers had managed to avoid the odium of censorship, as the new copyrights would originate with the author, but they knew that authors would have little choice but to sign those rights back over to a publisher for distribution. There was some judicial and political wrangling over the details, but in the end both halves of the Stationers’ argument survived essentially intact, and became part of English statutory law. The first recognizably modern copyright, the Statute of Anne, was passed in 1709 and took effect in 1710. The Statute of Anne is often held up by champions of copyright as the moment when authors were finally given the protection they had long deserved. Even today, it continues to be referenced both in legal arguments and in press releases from the publishing industry. But to interpret it as an authors’ victory flies in the face of both common sense and historical fact ^3. Authors, having never had copyright, saw no reason now to suddenly demand the rather paradoxical power to prevent the spread of their own works, and did not do so. The only people threatened by the dissolution of the Stationers’ monopoly were the Stationers themselves, and the Statute of Anne was the direct result of their lobbying and campaigning. In the memorable words of the contemporary Lord Camden, the Stationers “…came up to Parliament in the form of petitioners, with tears in their eyes, hopeless and forlorn; they brought with them their wives and children to excite compassion, and induce Parliament to grant them a statutory security.” ^4 To make their argument more palatable, they had proposed that copyright would originate with the author, as a form of property that could be sold to anyone — anticipating, correctly, that it would most often be sold to a printer. This proposal was a shrewd tactical move, because one of Parliament’s concerns was to prevent the re-establishment of a centralized monopoly in the book trade, with its attendant potential for a renewal of censorship by the crown. Benjamin Kaplan, professor of law emeritus at Harvard University and a respected copyright scholar, describes the Stationers position succinctly: > The stationers made the case that they could not produce the fragile commodities called books, and thus encourage learned men to write them, without protection against piracy… There is an apparent tracing of rights to an ultimate source in the fact of authorship, but before attaching large importance to this we have to note that if printing as a trade was not to be put back into the hands of a few as subject of monopoly — if the statute was indeed to be a kind of “universal patent” — a [legal] draftsman would naturally be led to express himself in terms of rights in books and hence to initial rights in authors. A draftsman would anyway be aware that rights would usually pass immediately to publishers by assignment, that is, by purchase of the manuscripts as in the past. … I think it nearer the truth to say that publishers saw the tactical advantage of putting forward authors’ interests together with their own, and this tactic produced some effect on the tone of the statute.^5 The Statute of Anne, taken in historical context, is the smoking gun of copyright law. In it we can see the entire apparatus of modern copyright, but in still-undisguised form. There is the notion of copyright as property, yet the property is really intended for publishers, not authors. There is the notion of benefitting society, by encouraging people to write books, but no evidence was offered to show that they would not write books without copyright. Rather, the Stationers’ argument was that publishers could not afford to print books without protection from competition, and furthermore that printers could not be depended to reproduce works faithfully if given unfettered freedom to print. The corollary, they implied, was that without the prospect of reliable distribution, authors would produce fewer new works. Their argument was not unreasonable, given the technology of the time. Making a perfect copy of a printed work required access to the original press and compositor, anyway; if reliable reproduction were to be encouraged, then a single-holder copyright system had a certain logic to it. And the publishers would now be effectively forced to pay authors in return for exclusive printing rights (although in fact the Stationers had sometimes payed authors even before, simply to guarantee the completion and delivery of a work). The authors who succeeded in selling this new right to printers had no particular motivation to complain — and naturally, we don’t hear very much about the authors not so favored. The consolidation of author’s copyright probably contributed to the decline of patronage as a source of income for writers ^6, and even allowed some authors, though always a small minority, to support themselves solely from the royalties their publishers shared with them. The fact that a given copyright could only be held by one party at a time also helped prevent the proliferation of divergent variations, a problem that had vexed authors perhaps even more than plagiarism, as there was no easy method by which they could endorse or disclaim particular variations. But the overall historical record is clear: copyright was designed by distributors, to subsidize distributors not creators. This is the secret that today’s copyright lobby never dares say aloud, for once it is admitted, the true purpose of subsequent copyright legislation becomes embarrassingly clear. The Statute of Anne was just the beginning. Having granted the premise that copyrights should exist at all, the English government found themselves under pressure to extend copyright terms further and further. In the long legal saga that ensued, what’s important is not the particular sequence of laws and verdicts, but the identity of the plaintiffs: they were just the sort of stable, settled business interests capable of sustaining litigation and lobbying over a period of decades — that is, they were publishers, not authors. They had proposed the author’s copyright out of economic interest, and only after the crutch of a censorship-based monopoly had been taken away from them. When it became clear that the tactic worked, they lobbied to strengthen copyright. And this is still the pattern today. Whenever the U.S. Congress extends copyright terms or powers, it is the result of pressure from the publishing industry. The lobbyists will sometimes trot out a superstar author or musician as an exhibit, a human face for what is essentially an industry effort, but it’s always quite clear what’s really going on. All you have to do is look at who’s paying the lawyer’s and lobbyists’ bills, and whose names appear in the court dockets — publishers’. The industry’s centuries-long campaign for strong copyright law is not merely a reflexive land grab, however. It’s a natural economic response to technological circumstances. The effect of the printing press, and later of analog sound recording technology, was to make creative works inseparable from their means of distribution. Authors needed publishers the way electricity needs wires. The only economically viable method of reaching readers (or listeners) was the bulk print run: to manufacture thousands of identical copies at once, then physically ship them to various points of distribution. Before agreeing to such an investment, any publisher would naturally prefer to buy or lease the copyright from the author, and just as naturally would lobby the government for the strongest possible copyright powers, the better to protect their investment. There is nothing inherently exploitative about this; it’s just straightforward economics. From a business point of view, a print run is a daunting and risky project. It involves the high up-front costs of a physical medium (be it dead tree pulp, magnetic tape, vinyl platters, or pitted optical discs), plus complicated, expensive machinery to imprint the content onto the medium. There’s also the unseen investment of vetting the master copy: because a flawed master can reduce the value of the entire run, publishers and authors go to considerable trouble to generate a polished, error-free version of the work before printing. There is little room for an incremental or evolutionary process here; the work must be brought to near-perfection before the public ever sees it. If any mistakes are overlooked, they will have to be tolerated in the finished product, at least until the process is started again for the next print run. The publisher must also negotiate prices and line up distribution paths, which is not only a matter of bookkeeping, but of physical expenses, of trucks and trains and shipping containers. Finally, as if all this weren’t enough, the publisher is compelled to spend even more money on marketing and publicity, to have a better chance of at least recovering all these outlays. When one realizes that all this must happen before the work has generated a penny of revenue, it is little wonder that publishers argue hard for copyright. The publisher’s initial investment — that is, their risk — in any individual work is greater, in economic terms, than the author’s. Authors by themselves might have no inherent desire to control copying, but publishers do. And in a world filled with publishers’ royalty-supported marketing departments, authors, of course, need publishers all the more. The concentration of distribution revenues results, inevitably, in the familiar logic of an arms race. * The arrival of the Internet fundamentally changed this equation. It has become cliché to say that the Internet is as revolutionary a development as the printing press, and it is. But it is revolutionary in a different way. The printing press may have made it possible to turn one book into a thousand books, but those books still had to travel from the press into the hands of readers. Physical books were not only the medium in which the content was consumed, they were also the medium in which it was transported to the consumer. Thus, a publisher’s total expense was proportional to the number of copies distributed. In such a situation, it is reasonable to ask that each user bear a portion of the costs of distribution. Each user is, after all, more or less responsible for her particular quantum of expense. If the book (or record) is in her hands, it must have gotten there somehow, which in turn means someone spent money to get it there. Divide those expenses by the number of copies, add in some amount for profit, and you arrive, roughly speaking, at the book’s price. But today, the medium over which content is distributed can be unrelated to the medium in which it is ultimately consumed. The data can be sent over a wire, at essentially no cost, and the user can print up a copy at her own expense, and at whatever quality she can afford, on the other end ^7. Furthermore, it is no longer important to possess the master; in fact, the concept of the master copy itself is obsolete. To make a perfect copy of a printed work is actually quite hard, although making a corrupt or abridged copy is very easy. Meanwhile, to make a perfect copy of a digital work is trivially easy — it’s making an imperfect copy that requires extra effort. Thus the practice of charging the same fee for each copy, regardless of how many copies there are or who made them, is now unjustifiable. The cost of producing and distributing the work is now essentially fixed, no longer proportional to the number of copies. From society’s point of view, every dollar spent beyond the amount needed (if any) to bring the work into existence in the first place is a waste, an impediment to the work’s ability to spread on its own merits. The Internet did something the Company of Stationers never anticipated: it made their argument a testable hypothesis. Would creators still create, without centralized publishers to distribute their works? Even minimal exposure to the Internet is enough to provide the answer: of course they will. They already are. Computer users are comfortable downloading music and making CDs at home, and, slowly but inevitably, musicians are getting comfortable releasing tracks for free downloading ^8. Many short works of both fiction and non-fiction are already available online. Printing and binding entire books on demand is rarer, but only because the equipment to do it is still somewhat expensive. That equipment is getting steadily cheaper, however, and it’s only a matter of time before the copy shop down the street has it. There is no fundamental difference between music and text, from a distribution point of view. As printing and binding technology gets cheaper, authors will see more and more clearly that they have the same alternative musicians do, and the result will be the same: more and more material available without restriction, by the choice of the author. Some might argue that authors are different, that they are more dependent on copyright than musicians. After all, a musician expects to perform, and can therefore gain indirectly by releasing recordings for free — greater exposure leads to more performances. But authors don’t perform; they reach their audience only through their works, not in person. If they now had to come up with ways to fund themselves without imposing an artificial scarcity on their works, could they do it? Imagine the simplest scenario: you walk into the neighborhood print shop and tell the clerk the Web address of the book you want. A couple of minutes later, the clerk comes back with a freshly printed, hardbound book, straight off the Internet. He rings up the sale. > “That’ll be eight dollars. Would you like to add the one dollar author’s suggested donation?” Do you say yes? Perhaps you do, perhaps not — but note that when museums charge a voluntary admission fee, people often pay it. The same sort of dynamic is at work in the copy shop. Most people are happy to pay a tiny extra bit on top of some larger amount, if they have their wallet out already and think it’s for a good reason. When people fail to make small, voluntary donations to a cause they like, it’s more often due to the inconvenience (writing a check, putting it in the mail, etc) than the money. But even if only half, or fewer, of all readers were to make such donations, authors would still earn more than they do under traditional royalty schemes, and furthermore would have the pleasure of finally being the readers’ ally in distribution, instead of their enemy. This is not the only possible system, and it can easily coexist with others. Those not convinced by voluntary donations should consider another method: the Fund and Release system (also called the Threshold Pledge system ^9). This system is designed to solve the classic problem of distributed funding, which is that each contributor wants reassurance that others are also contributing, before putting in her own money. Under fund-and-release, the hopeful creator of a new work states up front how much money will be required to produce it — this is the “threshold”. An intermediary organization then collects pledges, in any amounts, from the general public. When the total amount pledged reaches the threshhold (or exceeds it by some standard percentage, to account for bookkeeping and assumption of risk), the intermediary signs a contract with the creator, and the pledges are called in. Only at this stage, when there is enough money to achieve the desired result, is anyone asked to actually pay up. The intermediary holds the money in escrow, paying the creator according to whatever schedule they negotiated. The last of the money is paid when the work is completed and made publically available, not just to the contributors, but to the entire world. If the creator doesn’t produce, the intermediary returns the money to the donors. http://en.wikipedia.org/wiki/Fund_and_release Fund and Release http://en.wikipedia.org/wiki/Threshold_Pledge Threshold Pledge The fund-and-release system has some interesting properties not found in the monopolistic, copyright-based marketplace. The resultant work is available to everyone in the world, free of charge. Yet the author was also paid enough to produce the work; if she needed more, she would have asked for more and seen if the market would bear it. Those who did choose to pay paid only as much as they were comfortable with, no more. And finally, there was no risk for the contributors — if the threshold is never reached, then no one pays anything. Not all methods will be so pleasantly high-minded, of course. A couple of years ago, the established author Fay Weldon famously accepted money from Bulgari jewelry to write a novel that featured Bulgari products prominently. She did so, titling the book “The Bulgari Connection”. The book was originally intended as a limited edition to be given away at a corporate function, but having written it, Weldon took it to a publisher for general release. Does this mean that in the future we’ll have to scrutinize all creative works for signs of hidden corporate sponsorship? Perhaps, but this is nothing new — product placement was invented in the context of traditional copyright, and has flourished there, as it probably would anywhere. Copyright is neither the cause of corporate sponsorship nor its antidote. To look to the publishing industry as a force for decommercialization would be weirdly out of touch indeed. These are just a few examples of ways to support creative work without copyright. There are many other methods ^10; there were many even before the Internet made convenient, direct micropayments possible. Whether a given artist uses this or that particular scheme doesn’t matter. The important thing is that with little or no friction to impede the payment of tiny amounts, authors will find ways to make such payments happen on the scale they need. Those economists who are enamoured of markets as a solution to everything should be in love with the possibilities here (but, predictably, many are not, because they hate to see anything become depropertized). * To see a glimpse of the future, it may be most helpful to look not at net-savvy musicians, but at software. The flourishing Free Software movement is probably the best example we have today of a post-copyright world. Free software (some also call it “Open Source”) is the brainchild of Richard Stallman, a programmer who had the idea of releasing software under a deliberately reversed copyright. Instead of prohibiting sharing, the software’s license explicitly permits and encourages it. A number of others soon caught on to his idea, and because they were able to share and modify each other’s programs without limit, they quickly produced a large body of working code. Some predicted that this initial success would quickly level off as the software increased in size and complexity and required centralized, hierarchical organizations to maintain. But instead of foundering, the Free Software movement has grown so quickly that even its own participants are surprised, and it shows no signs of stopping. It now produces software whose functionality rivals that available in the proprietary market. Free software is widely used by banks, corporations, and governments, as well as individual computer users. More web sites run the free Apache web server than run all other web servers combined. Free operating systems are now the fastest-growing segment of the operating system market. Although some free software authors are paid for their work (after all, their services provide a benefit to those who use the software, and some of those users are willing to pay for it), others volunteer their time. Each software project has its own reasons for existing, and each programmer their own reasons for contributing. But the cumulative effect is a direct flaunting of copyright’s entire justification: a thriving community of intellectual production now exists without enforcing copyrights, yet achieves substantially the same results as its mainstream counterpart. According to the traditional justification of copyright, this shouldn’t be happening. The software is essentially in the public domain; its copyright serves mainly to identify the original authors, and in some cases to prevent anyone else from imposing a stricter license. The authors have given up every exclusive right except the right to be identified as the authors. They have voluntarily returned to a world before copyright law: they enforce no royalties, and have no control over the distribution and modification of their works. The software’s license gives everyone automatic permission both to use and to redistribute it. You can simply start handing out copies, there’s no need to notify anyone or ask permission. If you want to modify it, you’re free to do that too. You can even sell it, though naturally it’s difficult to charge much, since you’d be competing with others handing out the same goods at no cost. A more common model is to encourage people to download the software for free, and instead sell services such as technical support, training, and customization. These models are not fantasies, they are the basis for profitable businesses that exist right now, paying real programmers competitive salaries to work on free software. But the point is not that people are paid to do it — some are, but many more are not, and yet write it anyway. The real point is that a tremendous amount of free software is produced and maintained every year, at a rate that grows quickly even by the standards of the software industry. If this phenomenon were isolated to software, it would be explainable as an aberration — software is different, programmers are overpaid, and so on. But it’s not just software; if you look carefully, there are signs of it happening everywhere. Musicians are starting to release their tracks online for free downloading, and the quantity of freely available writing on the Internet — starting with reference and non-fiction works, but now including fiction and poetry — long ago passed the point of measurability. Software is not fundamentally different from these other forms of information. Like poems, songs, books, and movies, it can be transmitted digitally. It can be copied in whole or in part; it can be excerpted for use in other works; it can be modified and edited; it can even be satirized. The abandonment of copyright is farthest along in software mainly because programmers were among the first groups to have Internet access, not because of anything special about the nature of software. Gradually, creators in other areas are realizing that they too can disseminate their works without publishers or centralized distribution chains, by simply allowing the freedom to copy. And increasingly, they are choosing to do so, because they have little to lose, and because it’s the easiest way for their work to find its way to an appreciative audience. Far from being especially dependent on copyright law, creators gain the most by abandoning the copyright monopoly. Even in their early stages, these trends raise an obvious question. If copyright is not really needed to stimulate original creation, then what purpose does it serve today? For it is quite clear that if copyright did not exist already, we wouldn’t invent it now. We just finished building ourselves a gigantic copying machine (the Internet) that doubles as a communications device, and incidentally makes it convenient to transfer small amounts of money between people. Sharing is now the most natural thing in the world. The idea that artists are somehow harmed by it is demonstrated false every day, by the thousands of new works that appear online, credited and fully acknowledged by their authors, yet free for the taking. If someone were to argue that creativity would soon dry up unless we immediately institute a system of strict controls over who can copy what, we could reasonably look on them as insane. Yet, in slightly more diplomatic language, this is essentially the argument used by the copyright lobby to press for ever stronger laws. Creativity is not what’s at stake here, and in its more honest moments the publishing industry even tacitly admits this. Although for public relations purposes industry leaders make token declarations about the need for poor artists to earn a living, their most detailed and compelling statements are usually about the business effects of copyright. Larry Kenswil of Universal Music Group, the world’s largest record company, was quoted in the New York Times of Jan. 5th, 2003, in an article about digital copy protection schemes, saying “You’re not buying music, you’re buying a key. That’s what digital rights management does: it enables business models.” It’s hard to imagine a more succinct statement of the industry credo. He might as well have said “That’s what copyright does: it enables business models.” Unfortunately, not all of the propaganda put out by the industry is as straightforward and honest as Kenswil’s. The Recording Industry Association of America, for example, explains copyright this way on their web site at http://www.riaa.org/: > You don’t need to be a lawyer to be a musician, but you do need to know one legal term — copyright. To all creative artists — poets, painters, novelists, dancers, directors, actors, musicians, singers, and songwriters — the term matters dearly. To all artists, “copyright” is more than a term of intellectual property law that prohibits the unauthorized duplication, performance or distribution of a creative work. To them, “copyright” means the chance to hone their craft, experiment, create, and thrive. It is a vital right, and over the centuries artists have fought to preserve that right; artists such as John Milton, William Hogarth, Mark Twain, and Charles Dickens. Twain traveled to England to protect his rights, and Dickens came to America to do the same. Recognize that? It’s a page straight out of the Stationers’ playbook — an undisguised retelling of the copyright myth, complete with references to individual authors, designed to arouse our support for struggling artists valiantly fighting for their artistic integrity. Apparently, all those artists throughout history who did just fine without copyright aren’t included in “all creative artists” as far as the RIAA is concerned. Professor Patterson’s comments, about the Stationers’ similar use of authors as a foil in front of the eighteenth century English parliament, are equally applicable today: “They [the Stationers] did so by arguments intended to elicit sympathy for the author (conveniently ignoring their role in creating the poor plight of the author that they bemoaned) and avoided sound logic and reason.” ^11. The next paragraph in the RIAA’s introduction to copyright is even worse. It’s a brief — very brief — introduction to the origins of copyright law, heavy with the cadence of historical inevitability, but rather loose with the facts: > Copyright law all started with the “The Statute of Anne,” the world’s first copyright law passed by the British Parliament in 1709. Yet the principle of protecting the rights of artists predates this. It may sound like dry history at first blush, but since there was precedent to establish and rights to protect, much time, effort, and money has been spent in legal battles over the centuries. This breathless summary is the copyright equivalent of “Christopher Columbus sailed to America to prove the Earth was round and make friends with the Indians”. Yes, much money has indeed been spent in legal battles, but the RIAA is careful not to say who spent it, nor are any further details given about the “principle of protecting the rights of artists” that is alleged to predate these developments. The rest of their page continues in a similar vein, with so many omissions, mischaracterizations, and outright lies that it’s hard to imagine how anyone doing even a modicum of research could have written it. It is, basically, low-grade supporting propaganda in their ongoing campaign to convince the public that copyright is as fundamental to civilization as the laws of thermodynamics. The RIAA also indulges in one of the favorite tactics of the modern copyright lobby: equating illegal copying with the unrelated, and much more serious, offense of plagiarism. For example, Hilary Rosen, the (now former) head of the RIAA, used to speak at schools and colleges, urging the students to adopt the industry’s views about information ownership. Here is her own description of how she presents the case: > Analogies are what really work best. I ask them, “What have you done last week?” They may say they wrote a paper on this or that. So I tell them, “Oh, you wrote a paper, and you got an A? Would it bother you if somebody could just take that paper and get an A too? Would that bug you?” So this sense of personal investment does ring true with people. Since people who duplicate CDs do not usually replace the artist’s name with their own, let’s ask the question Hilary Rosen should have asked: “Would it bother you if somebody could just show a copy of your paper around, so other people could benefit from what you wrote, and see that you got an A?” Of course, the students would have answered “No, we aren’t bothered by that at all,” which isn’t what Rosen wanted to hear. The RIAA is extreme only in the clumsiness of their propaganda. Their message is, in essence, the same one offered by the rest of the copyright industry, which maintains a constant drumbeat of warnings that online content swapping will deprive creators of their reputations and their ability to work, despite overwhelming evidence that copyright never provided them with much of a livelihood anyway, and that they would happily continue to create without it as long as they have a way to distribute their works. The campaign might sound harmless or silly when described as I have described it here, but because they are fighting for survival, with large budgets and skilled publicity departments, the publishers have succeeded in shaping public opinion to a surprising degree. Consider this poor woman, from the International Herald Tribune of Sep. 11th, 2003, in an article about the RIAA file-sharing lawsuits: > One woman who has received a subpoena from the recording industry association said she had struggled to explain to her 13-year-old son why file-sharing was wrong. “I said, ‘Suppose you wrote a song and a famous rock group sang it and you didn’t get paid,'” said the mother, who declined to give her name because of her legal situation. “He said: ‘I wouldn’t care. That would be awesome.’ They’re still just in that young age where money doesn’t matter.” The mother said she had better results when she compared taking someone’s song to plagiarizing a school paper. (One can only hope the sensible 13-year-old manages to keep his head, when so many around him are apparently losing theirs.) The combination of a still-sympathetic public and deep pockets has unfortunately allowed the copyright industry to exercise dangerous influence at the legislative level. The result is a disturbing trend: mutually reinforcing physical and legal barriers that, while ostensibly designed to combat illegal copying, have the inevitable effect of interfering with all copying. Digital copy-protection schemes are increasingly enforced by your computer’s hardware itself, rather than by malleable and replaceable programs. And the same companies that own content often also manufacture the hardware that makes distribution possible. Have you bought a computer from Sony? What about a CD from Sony’s music division? That’s the same company, and its left hand knows what its right hand is doing. With government cooperation, this combination becomes even more powerful. In the United States we now have a law — the Digital Millennium Copyright Act — that makes it illegal to circumvent a digital protection scheme, or even to produce software that helps others circumvent a digital protection scheme. Unfortunately, since much hardware and software automatically imprints such schemes on any media it produces, the Act effectively stifles authorized copying and many other activities that would otherwise fall into the category of “fair use” under current copyright law. It is vital to understand that these side effects are not accidents, not unexpected consequences of an otherwise well-intentioned effort to protect artists. Rather, they are an integral part of a strategy that, at bottom, has nothing to do with encouraging creativity. The purpose of this three-pronged industry effort — the publicity campaign, the legal campaign, and the hardware “protections” — is simply this: to prevent the Internet experiment from being carried out to completion. Any organization that is deeply invested in the concept of copy control cannot be pleased to see a system arise that makes copying as easy as clicking a mouse. To the extent possible, such organizations would like to see the same pay-per-copy model that we’ve been using for centuries continue, even though the fundamental physics of information have changed to make pay-per-copy obsolete. Although the copyright lobby succeeds in getting new laws passed, and even in winning some court cases, these victories rest on a disintegrating foundation. How much longer will the public continue to believe in the copyright myth, the notion that copyright was invented to make creative work possible? The myth has been maintainable so far because it always had a tiny a grain of truth: although copyright was not inspired by authors, and was not enacted to protect them, it did enable the widespread distribution of many original works. Furthermore, there are still many publishers (generally the smaller or individually-owned ones) who behave with an admirable sense of cultural stewardship, subsidizing unprofitable but important works with money earned by stronger sellers, sometimes even losing money outright in order to print things they think worthwhile. But because they are all bound by the economics of large-scale printing, they are all ultimately dependent on copyright. * There won’t be a dramatic battle between the publishing industry and the copying public, with a climax, a denouement, and a clear winner striding out of the dust. Instead, what we will see — are already seeing — is the emergence of two parallel streams of creative work: the proprietary stream, and the free stream. Every day, more people join the free stream, of their own volition, for all sorts of reasons. Some enjoy the fact that there are no gatekeepers, no artificial barriers. A work can succeed by its merits and word of mouth alone: although there’s nothing to stop traditional marketing techniques from being used in the free stream, there’s less to subsidize them, so word of mouth and peer-review networks are taking on a greater importance there. Others enter the free stream as crossovers from the proprietary, releasing a portion of their work into the free domain as an advertisement or an experiment. Some simply realize that they have no chance of success in the proprietary world anyway, and figure they might as well release what they have to the public. As the stream of freely available material gets bigger, its stigma will slowly vanish. It used to be that the difference between a published author and an unpublished one was that you could obtain the former’s books, but not the latter’s. Being published meant something. It had an aura of respectability; it implied that someone had judged your work and given it an institutional stamp of approval. But now the difference between published and unpublished is narrowing. Soon, being published will mean nothing more than that an editor somewhere found your work worthy of a large-scale print run, and possibly a marketing campaign. This may affect the popularity of the work, but it won’t fundamentally affect its availability; and there will be so many “unpublished” but worthwhile works, that the lack of a publishing pedigree will no longer be considered an automatic strike against an author. Although the free stream does not use traditional copyright, it does observe, and unofficially enforce, a “credit right”. Works are frequently copied and excerpted with attribution — but attempts to steal credit are usually detected speedily, and decried publicly. The same mechanisms that make copying easy make plagiarism very difficult. It’s hard to secretly use someone else’s work when a Google search can quickly locate the original. For example, teachers now routinely do Google searches on representative phrases when they suspect plagiarism in student papers. The proprietary stream cannot survive forever, in the face of such competition. The abolition of copyright law is optional; the real force here is creators freely choosing to release their works for unrestricted copying, because it’s in their interests to do so. At some point, it will be obvious that all the interesting stuff is going on in the free stream, and people will simply cease dipping into the proprietary one. Copyright law may remain on the books formally, but it will fade away in practice, atrophied from disuse. Or, we can sit back and allow this process to be halted, by permitting manufacturers to build in hardware “protections” that interfere with our ability to copy legitimately; by allowing the copyright lobby to capture our legislatures, to the point where we are constantly looking over our shoulders for the copyright police; and by hesitating to use the free stream to its full potential, because we’ve been taught a false story of what copyright is all about. We can, if we choose, have a world where concepts like “out of print” or “rare book” are not only obsolete, but actually meaningless. We can live in a fertile and vibrant garden of constantly evolving works, created by people who wanted deeply to make them available, not mandated by a publisher’s market research. Schools would never be forced to stay with out-of-date textbooks because of the per-copy prices set by publishers, and your computer would always let you share songs with your friends. One way to get there is to question the copyright myth. Copying isn’t theft, and it isn’t piracy. It’s what we did for millennia until the invention of copyright, and we can do it again, if we don’t hobble ourselves with the antiquated remnants of a censorship system from the sixteenth century. This article is released under free copyright, and may be redistributed, excerpted, and modified without restriction. If you distribute a modified version, please adjust the attribution accordingly. ⁂ REFERENCES ========== ^1: These events can be read in any history of copyright. A good online resource regarding their legal implications is “Copyright And `The Exclusive Right’ Of Authors” http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1342&context=fac_artchop Journal of Intellectual Property, Vol. 1, No.1, Fall 1993, by Professor Lyman Ray Patterson, Pope Brock Professor of Law at the University of Georgia and a noted copyright scholar. His description of this earliest copyright is concise and revealing: The event in the history of Anglo-American copyright that led to the shaping events of the seventeenth and eighteenth centuries was the Charter of the Stationers’ Company granted in 1556 by Philip and Mary …. The Charter gave the stationers the power to make “ordinances, provisions, and statutes” for the governance of “the art or mistery of [s]tationery,” as well as the power to search out illegal presses and books and things with the power of “seizing, taking, or burning the foresaid books or things, or any of them printed or to be printed contrary to the form of any statute, act, or proclamation ….” The power to burn offending books was a benefit to the sovereign (a weapon against unlawful publications), and a boon to the stationers (a weapon against competition). The book-burning power thus shows the real motivation for the Charter, to secure the allegiance of the stationers as policemen of the press for the sovereign in an uncertain world. (Note that the Company actually received its royal charter on May 4, 1557; thus one sometimes sees 1556 and other times 1557 as the date for the incorporation of the Company of Stationers.) ^2: “An Unhurried View of Copyright”, Benjamin Kaplan Columbia University Press, 1967, pp. 4-5. ^3: Patterson, in ^1, goes so far as to say “The characterization of the statutory copyright as an author’s copyright, however, is one of the great canards of history.” ^4: Kaplan, p. 6. ^5: Kaplan, pp. 7-9. ^6: “Five Hundred Years of Printing” pp. 218-230, S. H. Steinberg, Penguin Books, 1955, revised 1961 ^7: When I started this article, I assumed such developments were a few years away from commercial viability, but I was wrong: the print-on-demand service newspaperkiosk.com launched (note: it later apparently folded, but then came lulu.com, which is still going strong). ^8: See www.mp3.com, for one example. (Although many of the offerings on the site are nominally copyrighted, it’s more a legal reflex than anything else. The tracks are meant to be freely downloaded, listened to, and shared — and that’s exactly what people do with them.) ^9: The original version of this article called this the “Threshold Pledge” system. However, Brandt Cannici of strayform.com, who independently invented the same system, came up with the much better name “Fund and Release”, and I now try to use that term instead. ^10: For a description of one funding technique, and a survey of others, see “The Street Performer Protocol and Digital Copyrights” by John Kelsey and Bruce Schneier, at http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/673/583. ^11: Patterson; see ^1. Original: https://www.questioncopyright.org/promise/ ⇧ /# ⇧ |
Karl Fogel |
2006 |
8809 |
44 |
| Copyrights and Copying: Why The Laws Should Be Changed |
Copyrights and Copying: Why The Laws Should Be Changed ====================================================== by Vern Sheridan Poythress https://frame-poythress.org/about/vern-poythress-full-bio/ Vern Sheridan Poythress September 29, 2005 Original: https://frame-poythress.org/copyrights-and-copying-why-the-laws-should-be-changed/ When may one legitimately copy a page from a book or a photograph of a person or a recording of a song? What ethical principles come to bear on these questions? These questions have grown in importance, and will continue to grow in importance, because the amount of available information is growing, and the ease of copying is growing. The answers may be surprising. I would ask you to bear with me as I try to think carefully about principles of right and wrong. Whose standards do we use? ========================== Many arguments from many different points of view can be presented. I want to explore only one type of argument. I am a Christian. I believe that God is the ultimate source of moral standards. Because God created human beings, they have a sense of moral right and wrong engraved on their hearts (Romans 1:18-32; 2:14-15). Whether or not you are a Christian, you have a sense of moral right and wrong. You can make moral judgments. In our day moral relativists argue that all moral standards are nothing more than personal preferences or the preferences of human societies. But if a thief were to come and carry away all the valuables in your home, your heart would tell you that what he did was wrong. It is not merely “wrong for you,” when measured by your preferences. It is wrong, period. Even though the thief may try to excuse himself, his personal preferences do not make it “right for him.” The relativists are trying to deny the sense of absolute right and wrong that God has created within us. But people’s sense of morality can be twisted because of our rebellion against God and the tendency toward self-justification and self-deceit that arises in all of us from that rebellion. Moreover, whole societies can go astray in a variety of ways, and push their citizens in distorted moral directions. (The Roman Empire practiced infanticide until Christians changed the thinking of the Empire.) Hence, I look to the Bible for pure instruction. The Bible was written at a time before the use of copy machines, computers, and digital recording. But its principles still have relevance, as I hope to show. Obeying the government ====================== We need to consider two different principles, which point in different directions. First, the Bible teaches that we should submit to the governing authorities: > Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore whoever resists the authorities resists what God has appointed, and those who resist will incur judgment. (Romans 13:1-2) This principle is qualified by the fact that God is superior to all human authorities: > Whether it is right in the sight of God to listen to you rather than to God, you must judge, for we cannot but speak of what we have seen and heard. (Acts 4:19-20) According to the Book of Acts, the apostles refused to obey the authority of the Jewish council, because God had commanded them to speak about Jesus. If the government tells us to do something that God himself forbids, we ought not to do it. What does this principle imply concerning copying? The United States government and other governments around the world have made laws governing the copying of documents and artistic objects like pictures, images, and songs. As long as these laws are in place, we should obey them. An exception arises, parallel to the exception with the apostles, if the government tries to forbid the spread of the word of God. Evaluating the laws =================== But now consider a second kind of question. Should the laws be changed? What _should_ they be like? The principles in the Bible include the idea that governing authorities are responsible to God for their actions. Not all governmental actions are morally right. The government officials must work for justice, not for their own private gain or in order to favor some individuals or groups. God instructed ancient Israel as follows: > You shall appoint judges and officers in all your towns that the LORD your God is giving you, according to your tribes, and they shall judge the people with righteous judgment. You shall not pervert justice. You shall not show partiality, and you shall not accept a bribe, for a bribe blinds the eyes of the wise and subverts the cause of the righteous. Justice, and only justice, you shall follow, that you may live and inherit the land that the LORD your God is giving you. (Deuteronomy 16:18-20) Thus we must ask whether the current laws are _just_. The principle of seeking justice is now also relevant to citizens who vote for public officials, as well as for the officials who actually make the laws. In particular, what laws promote justice in the area of copying? What about copyrights and patents in particular? We hear of “intellectual property” and “intellectual property rights.” It is said that file sharers who duplicate and share copyrighted songs and movies are “violating intellectual property rights,” and this is a form of “theft” and “piracy.” As I have already indicated above, I think it _is_ wrong to engage in copying when it violates the existing laws. But we need to ask about whether the laws themselves are just. And when we do that, words like “property” and “theft” and “piracy” simply beg the question. (See Richard M. Stallman’s essay on the confusing character of these expressions.) Is information “property” in the required sense of the word, a sense that would makes its duplication a case of “theft” in a biblical sense? https://www.fsf.org/licensing/essays/words-to-avoid.html essay Property in the Bible ===================== The Bible does talk about theft. It is not theft to breathe air or drink water out of a stream, because no human being owns these things. But it is theft to take an ax or a sword or a sheep that belongs to someone else. When Joe secretly carries away an ax that Abe owns, Joe gains an advantage, while Abe suffers loss. But suppose that Joe sees Abe’s ax, and makes another like it. Joe may make an ax that looks and feels and functions exactly like Abe’s. Or he may try to improve on Abe’s. In either case, Joe has not stolen anything. Abe has suffered no material loss. He may suffer a loss in prestige, if he is no longer the sole ax owner in his village! But that is irrelevant. Copying is not theft. Why not? Because it does no damage to the original owner’s possession of his ax. Copying multiplies goods rather than depriving people of goods. The ability to copy is a wonderful blessing from God that benefits humanity. In fact, copying imitates God. The Bible says that when God first created human beings, he made them as a “copy” of himself: “So God created man in his own _image_, in the _image_ of God he created him; male and female he created them” (Genesis 1:27). Man was made in the image of God, or as a “copy” of God. Of course, man was not on the same level as God. God was Creator; man was a creature. But man was made like God, and he was made so that it is instinctive to him to imitate God. When a man and a woman have children, the children are likewise an “image” or “copy” of their parents: “When Adam had lived 130 years, he fathered a son in his own likeness, after his _image_, and named him Seth” (Genesis 5:3). Adam engaged in a copying process, and this process imitated on a human level the original creative activity of God. Adam was “copying” God.^1 God as the Creator owns everything. When he copies, he has the right to do so, because he is the owner of what he copies. By contrast, man is not really the ultimate owner of anything. But God entrusts some of his property to human beings, so that they are like managers of someone else’s property. In order to fulfill their managerial responsibilities they are made in God’s image, and so they are authorized to be copiers. Thus their management includes a God-given right to copy what God has made, and even to copy God himself by imitating him. By copying, they display the presence of God and spread blessings to other human beings who enjoy the fruit of copying. The same principles hold when copying information. Suppose Joe buys a manuscript from Abe. He may make one or ten copies of the manuscript, without paying anyone. He may give these away or sell them. And anyone who buys one may make further copies, or pay scribes for the labor of making copies. The human authors of biblical books quote freely from older books, and this alone should show that people had the freedom to copy either ideas or words.^2 But that implies that ideas and words and sentences are not “property.” They are free as the air is free. The only way to keep words or ideas nonfree is to keep them secret. And indeed, ancient people did sometimes do this. Craftsmen had secrets about how they made swords or copper pots. Those who hid treasure might make a secret map or write secret instructions about how to find the treasure. Likewise, in our time, Kentucky Fried Chicken has a secret recipe for making its chicken. But if the recipe were to get out into the open, Ma Flanagan could use it in her kitchen. If a competing craftsman can figure out how to make copper pots like his neighbor’s, he is free to do so. Confirmation from modern practice ================================= One aspect of modern practice actually confirms this principle that information is not permanently, exclusively owned property. Modern practice allows copyrights and patents to extend for a certain number of years. And then they expire. A patent typically lasts for only twenty years. After that period the patented procedure can be followed by anyone without paying any fee. Similarly, copyrights expire after a number of years. Currently, in the United States any book published before 1923 can be freely copied. But ownership of tangible property such as axes does not expire. If my great-grandfather has willed an ax to me, I am the owner of that ax, no matter how old it may be. If my great-grandfather has willed to me the ownership in a patent or a copyright that he inherited from his grandfather, I own nothing. But we feel that they deserve it ================================ Some of us may nevertheless feel strongly that authors and artists and producers of information deserve something for their work. It does appear to many people that artists “own” in an exclusive sense the things that they produce; that is, they do not merely own the physical copy, but the right of copying. So does the author or artist have a “right” to control copying of his work? We in our modern society tend to assume that he has such a right. We easily pick up that kind of thinking from those around us, because nearly everyone assumes that it is so. And the assumption is reinforced by the fact that current laws appear to recognize such “rights.” But all this is just assumption. Here we must be careful not to become confused, and not to let ourselves be governed merely by the customs of the last two centuries in the Western World. What we think is “right” may be merely what we have become accustomed to, and what others in the same society assure us is right. That does not amount to an absolute standard. When we look at other societies in other times, we quickly see that such a “right” is not at all a universal principle among human beings. And, more important, such an alleged “right” is nowhere recognized in the Bible. In fact, by not forbidding copying, the Bible tacitly recognizes a right of another kind: the right of human beings freely to copy and use words and ideas. The argument is even stronger. Man is made so that he can imitate God and God’s copying. The right to copy is built into human nature, and it is a great blessing and privilege from God.^3 Copying is also an implication of the commandment to love your neighbor as yourself (Matthew 22:39). I can help my neighbor and express love to him by giving him a copy of what I own, or allowing him to make a copy. Artists may indeed deserve the gratitude and admiration of others. But there is more than one way in which this may take place. In some societies, people obtain prestige and admiration not by accumulating property but by giving it away for others’ benefit. The dispute must focus not on the broad issue of honoring artists, but the narrow issue of whether copying a document or using an idea is restricted. Will the government force people to pay a premium for doing this? Arguing pragmatically ===================== If then we admit that information is not “property” in a normal sense, there still remains one powerful argument in favor of treating it as if it were property and restricting copying and use. It is the argument from practicality or utility. It is said that copyrights and patents encourage authors, artists, and inventors. The restriction on copying gives them a greater reward for their work. And this in turn encourages more people to work as authors, artists, and inventors. A society that wants to have lots of authors, artists, and inventors would do well to encourage their production by rewarding it. I think this argument deserves very serious consideration. But we must be clear about what sort of argument it is. It is an argument from practicality, not from principle. Gone now is the appeal to the principle of what the author “deserves.” Gone now is the idea that information is intrinsically a piece of property, a possession that is literally “owned” in the same way that an ax or a sheep is owned. Rather, we are concerned with what works best in practice. There are at least five main problems with a proposal to restrict copying for pragmatic reasons. Violation of human rights ========================= First, it is a violation of human rights. We were created by God with the right to imitate him, and this includes the right to copy him and to copy things he has made, including things that other human beings have made under his sovereignty. I will say no more about this, since I have already defended this idea above. Suppression of love =================== Second, restricting copying interferes with loving one’s neighbor. People who love others instinctively _want_ to share what they own by copying. A law against copying fights against love, one of the most valuable motivations in human nature. Do we actually believe that a law prohibiting one kind of love is good for society? Coercion ======== Third, it involves coercion. Through the threat of penalties the government forces people to refrain from some kinds of copying, even though there is nothing intrinsically wrong with copying. People are coerced into refraining from doing a morally innocent activity that they want to do. There are indeed times when government coercion is appropriate, as in a case where a thief is forced to give back an ax that he has stolen. But we should hesitate to use such a powerful weapon as coercion except in cases where it is authorized by God. Sometimes people talk in a general way about what “we” as a society agree upon. If we as a society think that people should be encouraged to become authors, artists, and inventors, we may agree to tax ourselves by restricting our rights of copying, in order to produce encouragement. That might be all right if everyone in the society agreed. Or if half the people agreed, they could each voluntarily refrain from copying. But if even _one_ person disagrees, and would like an alternative, legal restrictions on copying amount to coercion against this person. And coercion deprives that person of his freedom. That is not to be done lightly. Subsidies ========= Fourth, the restrictions on copying produce an economic incentive quite like a subsidy. But are subsidies wise? Subsidies in other areas of society are nothing new. For example, the government may subsidize farming. Or it may choose to subsidize one particular kind of farming, let us say sugar-beet farming. By offering to buy farm produce at a higher price, or by directly paying farmers for acreage in a particular crop, the government encourages more farming, or protects farmers who might otherwise leave that occupation. The government may encourage steel manufacturing, either by a subsidy on steel production or by a tariff on imported steel. These moves make it more advantageous for more people to engage in farming or steel manufacturing. Similarly, restrictions on copying, by producing a bigger total payoff for authors, artists, publishers, and distributors of information, may make it advantageous for more people to commit their time and energy to these areas of work. All this may sound plausible and attractive until one asks whether there are offsetting disadvantages. Yes, there are. More people in farming means less people in steel manufacturing. More people busy as authors means fewer people busy as nurses. A subsidy in one area indirectly amounts to a favoritism toward that area _in comparison with_ other unsubsidized areas. And now who is to say which areas _deserve_ subsidy? The word “deserve” suggests a moral judgment. But, as we have seen, there is no absolute moral right that gives authors control of copying, any more than there is an absolute moral right giving farmers a certain price for their sugar beets. The government enters into a swamp of unknowns and merely subjective preferences when it tries to control this area. There may indeed be certain exceptional cases, such as when it is argued that a certain minimal capacity in steel manufacturing is important for national protection if the nation should ever get into a war. But such things will be exceptional. In addition, a subsidy or a tariff or other preferential treatment of farming inevitably has effects on those who buy the product. A subsidy from the government may make the product cheaper, making it a gain for the consumer. But then the taxpayer foots the bill by paying for the subsidy. Again the concern with coercion arises. Do we really think that it is right and wise for the government to coerce its citizens into parting with their money in order to support a particular occupation for which they may have no concern? If the effect is gained by a tariff, the tariff increases the price of the goods, and the consumer loses. Or if the effect is gained by giving monopoly privileges to one person or one corporation, it raises the price of the goods, which again hurts the consumer. Is this right? The government by artificially pushing people into certain kinds of occupation and manufacturing, and artificially distorting the prices for certain products, enters into areas that are usually best left to private action. Moreover, a subsidy for one particular kind of work favors this kind of work in comparison with others. It is favoritism toward some. The Bible forbids favoritism or partiality in the government because it is unjust: “You shall not pervert justice. You shall not show _partiality_, … Justice, and only justice, you shall follow, …” (Deuteronomy 16:19-20). The only way to avoid favoritism and partiality would be to give a subsidy to everyone. Let us say that the government undertakes to give $100 per year to each farmer, to each steel worker, to each nurse, to each mother raising children, to each clerk–in fact, to each person in any occupation whatsoever. That would not favor anyone in particular. But where would the money come from? The government could tax everyone $100 to raise the money. Take $100 from each person and then give it back. But that is the same as doing nothing at all. In fact, it is worse than nothing at all, because there is always overhead involved in the collection and dispersion of funds. The government might have to have a tax of $120 per head in order to cover the expenses. So a universal subsidy solves nothing. And the other kinds of subsidies involve partiality. In sum, restrictions on copying amount to a subsidy for certain kinds of intellectual work. That involves partiality, and is unjust. We ourselves might wish to encourage this kind of work. But others might not, and it is unwise–and I think unjust as well–to force them to support what they do not want. In addition, it is exceedingly unwise and unjust to suppress people’s desire to love their neighbors through copying. What will happen without subsidies? =================================== Fifth, it is often assumed that we need subsidies for intellectual work, or else the society would not receive its benefits. Maybe that is so, but maybe not. Modern societies have usually not really tried any alternatives. We do not actually know whether some alternatives might work. And even if no alternatives work well, we still need to ask seriously whether we need to get by with less subsidies, and less benefits in the area of information, in order to be just and impartial, in order to encourage people to love each other, and in order to be faithful to the principle of not coercing fellow citizens unless it is clearly justified. I do not know what might happen if the restrictions on copying were loosened. I can only speculate. But I think it is worth while speculating, if only to show that we will not completely lose the whole area of information production. One possible aid to intellectual work could come from foundations, charities, and private benefactors. In fact, in previous centuries composers and musicians were often encouraged and financed by patrons. Both patrons and musicians gained prestige from cooperation between the two. If private people and organizations see that intellectual work is no longer subsidized by the government, they may be more willing to pick up the slack than they are now. They have little inducement to offer incentives if the government is already doing the job for them. If not enough organizations of this type exist, more can be created. For example, if the lovers of country music or lovers of heavy metal music do not think that enough of their type of music is being created, they can band together and support an organization that gives money and other incentives to people doing this kind of work. Now let us consider some particular kinds of intellectual work, and their rewards. Authors today, outside of those who write blockbuster best-sellers, usually do their writing on a part-time basis, and get only relatively small amounts of supplemental income from their work. Their motivation is usually not primarily monetary. They write to share their ideas, and some write in the hope of becoming famous. Wide and quick distribution of their work might actually be to their benefit–though it would not benefit publishers who are the traditional (subsidized) channel for distribution. As for the blockbuster best-sellers, do we really have a principle of justice that tells us how much people owe to the authors, and how valuable it is to society to subsidize blockbusters? Artists who paint pictures or shape sculptures or blow glass can earn money by selling the paintings or sculptures or other products. A copy, even a very good copy, of a painting does not command the same price from collectors, because collectors value an original. Musicians, again outside of a few who produce blockbuster bestsellers, get much of their sustenance from live concerts. The spread of their songs and music through unfettered distribution might actually help them to become well known and sell out their live concerts. Movie makers may continue to distribute movies through theaters. The theaters might, through contracts with the movie studios, be required not to make further copies.^4 The theaters, in turn, could require their customers not to make video recordings of the movies that they watch in the theater.^5 Thus, a revenue stream is guaranteed to movie makers, without coercing the public into refraining from copying. Of course, when the recording companies or movie companies offer a CD or DVD to the public, they would then lose control of the content. It could be copied. But I would suppose that many in the public would be ready to pay an extra dollar or two to obtain a CD or DVD that had the movie company’s endorsement. The purchaser would know that he obtained an authentic, high-quality copy, as opposed to a fly-by-night non-guaranteed copy. Of course the profits from selling a single CD or DVD would go down from their present extremely high margins. But they would not go down to nothing, because the distributors could still offer an efficient, high-quality channel for distribution. Similar observations go for book publishers. I know for a fact that some copyrighted books are available on the web (including one for which I was a joint author). Their availability actually increases the publisher’s sales of hard copies. People may read a little on the internet. But then, if they like what they read, they want to have a bound copy rather than something that costs $5 in ink to print out on their home computer. Thus, even when access to information is free, there remains a demand–even sometimes an increased demand–for traditionally bound books. https://www.cbmw.org/resources/books/gnbc/ one What about patents? Patents are granted as an exclusive right to use an new idea for a limited period (typically twenty years). But a similar effect could be achieved without patents, if the inventor keeps his formula secret. (Or the inventor could share the secret with others who pay him for it, by means of a contract that bound them to secrecy in turn.) If a potential competitor is able to guess how the inventor did it, then the invention may not have been so novel that it deserved a patent. This guessability of an invention takes the burden off government rules and court rulings as to whether an invention is sufficiently novel or whether it is an obvious next step. Perhaps this system is not perfect. But neither is the present system, as becomes clear from continued discussions about the threat of patent suits that would stifle obvious innovations.^6 The burden of arbitrary laws ============================ One other advantage arises if the government were to loosen restrictions on copying. At present, no one except specialists knows well what is and is not legal in copying. The average person is enslaved to specialists and copyright lawyers and patent lawyers, because the law is too complicated to understand, and too counterintuitive. In the USA, may you make a VCR recording of a TV program being broadcast? Yes. But it was not clear until lawyers fought it out in court years ago. May you keep the VCR recording indefinitely and accumulate a library? I am told by a specialist that the answer is no. The recording is only supposed to be made for the convenience of watching a program at another time than when it originally aired. May you make a digital recording of a live broadcast onto a DVD-R? Yes. May you convert an old VCR recording to digital form? No. May you convert to digital form an audio tape that you bought? No. If you are a teacher, may you copy a chapter from a book to use one time in the classroom? Yes. May you use it every year? No. May you copy a syndicated cartoon to use in the classroom once? No. But you can use the cartoon if you use what is called an opaque projector, which, without making a physical copy of the printed cartoon, projects an image of it on a screen. And there is more, on and on. Did you know all these rules? I didn’t either, until I started asking specialists lots of questions. It is frustrating to anyone who works with information. The rules are not only complex, but counterintuitive. One cannot obey the law just by having good will and trying to respect other people’s property. One must wade through masses and masses of regulations. Why? I believe this is a symptom of a deeper problem. The laws are counterintuitive and complex because they have nothing to do with justice. Every human being has within him a sense of justice. Though he may try to make excuses, and though sometimes the society around him may make excuses for him, he knows that stealing is wrong. But he does not know instinctively that copying is wrong. And he _could_ not know it, because it is not after all _morally_ wrong. It has been made _into_ a “wrong” by arbitrary laws. Arbitrary laws tend to enslave people to the specialists, who alone know the laws. And people are tempted to disobey, because they feel the arbitrariness of the law. For the sake of honoring genuine morality, it is therefore better to keep to a minimum arbitrary laws. I believe that we can see these effects in the area of copying music and movies. Many, many people are doing illegal copying, not because they have no regard for law in general, nor because they have no morality, but, at least partly, because they sense the arbitrariness of the law. And some believe that the recording companies and the movie industry are getting an artificial (and thus unfair) subsidy when they can sell for $20 a DVD that costs less than $2 to produce. The possibility of further restrictions in the future ===================================================== Some people who read what I have written may be sympathetic, but cautious. They think, “Well, these arguments make some sense. But why worry? We have been doing O.K. with the present system, even it is not ideal, and even if it is unfair in some ways. Why rock the boat? Why take the risk of venturing into the unknown?” I think there are several sides to the answer. One is the side of principle. It is worthwhile working for true justice, even if the present system, with its built-in injustices, is still more or less workable. Second, not everyone sees the present situation as tolerable. Among computer programmers and teachers and musicians and others who work with information, some people are exceeding frustrated with the present laws, because of the burdens and restrictions that are repeatedly imposed at them. Third, those who are cautious can advocate _gradual_ change. People can urge lawmakers to proceed cautiously. I personally am in favor of totally eliminating copyright and patent laws,^7 as the reader might have guessed. But those who are more cautious can take the route of gradually decreasing the number of years before copyrights and patents expire. This also allows those with heavy investments in information production to make a gradual adjustment. Second, the world of information is not standing still. There are people in the information industry who realize that literally billions of dollars are at stake. Lobbyists paid by the Motion Picture Association of America and the Recording Industry Association of America, to name two, will put heavy pressure on legislatures not only to protect their existing subsidies, but to increase their ability monopolistically to control forever whatever information they produce. Laws will be changed. New laws will be passed. But what kind of laws? We have the potential to change laws in directions that increase the freedom and flexibility with which ordinary people access, enjoy, and pass on information. Or we have the potential to change laws in directions that heavily restrict the legality of accessing and passing on information. And in that case we may become enslaved to specialist lawyers who alone know the increasingly complex and arbitrary laws. Worse, we may become enslaved to machines that refuse to copy or give access to information unless we pay a fee for every use. “Ten cents, please, for each time you listen to a pop song.” Or maybe 25 cents, or 50 cents–whatever the market will bear. In the case that I envision, the fee for your use of information goes by electronic transfer from your credit card account or your bank account into the coffers of a monopolistic corporation.^8 The corporation has been clever enough and unscrupulous enough to get lawmakers to make laws forcing manufacturers to make their machines in ways that restrict access and copying. Propaganda will say that all this is a good thing, because we are thereby respecting intellectual property “rights.” In my opinion, both the so-called “property” and the so-called “rights”^9 have been created out of thin air to conceal the actual situation, namely that the government is using bad laws to subsidize monopolists. Copyrighting this article ========================= Alert readers will find that I have copyrighted this article. This might seem hypocritical. How can I use copyright after arguing against it? But I have tried to think it through. I believe that in an unfallen world, with morally perfect human beings, copying would not be restricted. We would be free to share. Ideas and words could all be classified as what we now call “public domain.” But we live in a fallen world. Some people are tempted to seize exclusive control, and to forbid what should be free. They use the present copyright laws to their advantage. Given this temptation, as long as copyright law exists it is wise to use it in order to enhance freedom rather than to surrender freedom to the would-be controllers.^10 I use the GNU Free Documentation License, which has two sides. It gives people freedom to copy and at the same time addresses the danger of losing that freedom. Its gift of freedom aspires to restore the freedom of an unfallen world, and to work toward how things should be. Its restrictions correspond more to the fallen world, in which it is important to restrict those who would take away the freedoms of others.^11 https://frame-poythress.org/poythress_articles/2005Copyrights.htm#copyrightnotice copyrighted this article https://www.fsf.org/licensing/licenses/fdl.html GNU Free Documentation License Further resources ================= Prof. John Frame has an earlier paper about copyright, which started my thinking in the direction of the reasoning above. https://frame-poythress.org/frame_articles/1991OtherShoe.htm paper about copyright The Free Software Foundation and the Electronic Frontier Foundation are organizations very concerned to promote the free distribution of information. I am not endorsing everything on these sites, but only indicating that there are useful resources there. https://www.fsf.org/ Free Software Foundation https://www.eff.org/ Electronic Frontier Foundation For more on the theology of copying, see footnote 1. Notes ===== ^1: For further discussion of imaging, see Vern S. Poythress, _God-Centered Biblical Interpretation_ (Phillipsburg, NJ: Presbyterian and Reformed, 1999) 27-50; Meredith G. Kline, _Images of the Spirit_ (Grand Rapids: Baker, 1980). ^2: This point I owe to John Frame’s reflections on copyright. https://reformedperspectives.org/newfiles/joh_frame/PT.Frame.Copyright.Technology.html reflections ^3: The Declaration of Independence reads, > We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. It is not too much to say that it could have added, “and that Liberty includes the liberty of copying.” ^4: A contract is different from a government law, because the person who enters into a contract freely consents to its terms. The person who is forced by the government not to make a copy does not consent. He is deprived of his freedom. ^5: Though the theaters and movie producers might actually make _more_ money by allowing home-video recordings. Distribution of a poor-quality copy can increase interest in the high-quality original. My point is that it is certainly within the right of a theater or a movie studio to conduct its business in either way. What is unfortunate is the use of law, and the coercive power of law, to restrict copying by private citizens on their own property. Consider another case. The studios and movie distributors are within their rights to use any form of encryption to try to restrict the use of DVDs or other digital information. (Encryption is analogous to Kentucky Fried Chicken having a secret recipe.) But passing a law to forbid (_coercively_ prevent) the cracking of encryption or the duplication of DVDs or the capturing of a information stream from a computer is, in my opinion, an unwarranted usurpation of control, and an interference with the rights of citizens to use and copy what they own. Producers of information may want to achieve monopolistic control over the information that they produce. But using the government to enforce their monopoly is unjust. ^6: What about drug companies? Drug companies spend millions of dollars developing a new drug, for which they take out a patent. Apart from patents, how could they receive recompense for their work? And without sufficient recompense, how would they be motivated to do the research for new drugs? I do not have a perfect solution to this problem. But a patent is surely not the only solution. A patent takes away the private citizen’s right to put together a chemical laboratory in his basement in order to produce a particular chemical substance. A less draconian solution would be to use the regulatory agency for drugs. In the United States the Food and Drug Administration has procedures for approving or disapproving new drugs for sale. It might then authorize a pharmaceutical company to sell a new drug, while not authorizing other competing companies for selling a drug, unless they have gone through the same expensive preparations. The private citizen could make any chemical he wishes in his basement, but could not sell it as an approved drug. In the end, I believe more major changes would be appropriate in the way in which we handle drug research. But this is not the place to explore more long-range questions. ^7: I should say that a gradual phasing out of the present laws, rather than a sudden change, would be more considerate toward those who have heavily invested time or energy or money in the affected areas. What about trademarks? Trademarks represent a different kind of challenge, requiring a different answer. Suppose Doug organizes a new software company, produces some software programs on a CD, and then attaches to the CD the name “Microsoft” (a trademark name) or the Microsoft logo (a trademarked graphic design). That is illegal according to present-day trademark laws. But is it also morally wrong? I believe that it is, and that it would be wrong even if there were no trademark laws. Doug has deceived his customers into thinking that what they are buying is a product of Microsoft Corporation. They could rightly demand a refund plus damages because of fraud. Microsoft Corporation could rightly demand payment for damage to its reputation. Doug has broken the Eighth Commandment, “You shall not steal” (Exodus 20:15), by taking money from customers under false pretenses. And in deceiving people he has also broken the Ninth Commandment, “You shall not bear false witness against your neighbor” (Exodus 20:16). The trademark laws make it easier to establish in court that Doug has broken the law. But Doug would be doing wrong even if those laws did not exist. But now consider another case. Cindy likes the artistic design in the Microsoft logo. She makes multiple copies of the logo, and puts them up all over the walls of her room. Has Cindy done wrong? No. She has deceived no one, defrauded no one, and stolen no tangible goods from anyone. Thus the importance of trademarks has nothing to do with copying. Cindy ought to be free to copy a trademark to her heart’s content. But Doug is not free to use a trademark or any other symbolic vehicle to deceive buyers. The issue is deceit, not copying. Technically, we do not need trademark laws, because the actions that we detest are already violations of the moral law, and laws about fraud already cover the territory. It may nevertheless be useful to make it clearer that Doug’s kind of deceit is prohibited. Trademark laws, rightly formulated, would be a useful clarification, but would not invent a new kind of wrongdoing. ^8: In typical cases, authors and artists do not get much remuneration from their work. The lion’s share goes to corporations that buy their works. In a notorious case, in November 1999 the Recording Industry Association of America worked with a secret meeting of congressional staff, in order to add a “technical correction” amendment to a bill on satellites. The bill was then passed on the floor of Congress without any discussion of the amendment. The amendment made the work of recording artists “work for hire” and largely deprived them of previous rights. The RIAA was clearly filling its own pockets and cared nothing for recording artists. An association of composers, authors, and publishers is begging for the U.S. Congress to reverse the change. Nevertheless one may count on agencies like the RIAA to appeal to the public’s sympathy for artists when they try to justify laws in their favor. https://www.dpeaflcio.org/policy/factsheets/fs_workforhire.htm deprived them of previous rights https://www.ascap.com/legislation/workforhire.html is begging ^9: On the “mirage” of so-called “intellectual property,” see Richard Stallman’s essay. https://www.fsf.org/licensing/essays/not-ipr.xhtml essay ^10: Similar principles hold with respect to publishers. A publisher may work for freer dissemination of information by carefully using existing copyright laws, rather than completely opening his books for copying and running the risk of being driven out of business by competing publishers who use copyright laws in exploitive ways. ^11: Of course the people who framed the GNU Free Documentation License may have worked out of a variety of assumptions, worldviews, and religious commitments. I do not know. But as human beings working in God’s world, they wrestled with the realities of ethical issues. Whether they knew it or not, they came up with a formula that, however imperfectly, takes into account both hope for freedom and realism about sin. https://www.fsf.org/licensing/essays/pragmatic.html hope for freedom and realism about sin ⁂ Original: https://frame-poythress.org/copyrights-and-copying-why-the-laws-should-be-changed/ ⇧ /# ⇧ |
Vern Sheridan Poythress |
2005 |
7259 |
36.3 |
| Copyright And Patent Policy In a Post-Scarcity Society |
Copyright And Patent Policy In a Post-Scarcity Society ====================================================== by Paul Fernhout https://x.com/pdfernhout Paul Fernhout January 1, 2001 Original: https://pdfernhout.net/open-letter-to-grantmakers-and-donors-on-copyright-policy.html _An Open Letter to All Grantmakers and Donors On Copyright And Patent Policy In a Post-Scarcity Society_ executive summary ================= Foundations, other grantmaking agencies handling public tax-exempt dollars, and charitable donors need to consider the implications for their grantmaking or donation policies if they use a now obsolete charitable model of subsidizing proprietary publishing and proprietary research. In order to improve the effectiveness and collaborativeness of the non-profit sector overall, it is suggested these grantmaking organizations and donors move to requiring grantees to make any resulting copyrighted digital materials freely available on the internet, including free licenses granting the right for others to make and redistribute new derivative works without further permission. It is also suggested patents resulting from charitably subsidized research research also be made freely available for general use. The alternative of allowing charitable dollars to result in proprietary copyrights and proprietary patents is corrupting the non-profit sector as it results in a conflict of interest between a non-profit's primary mission of helping humanity through freely sharing knowledge (made possible at little cost by the internet) and a desire to maximize short term revenues through charging licensing fees for access to patents and copyrights. In essence, with the change of publishing and communication economics made possible by the wide spread use of the internet, tax-exempt non-profits have become, perhaps unwittingly, caught up in a new form of "self-dealing", and it is up to donors and grantmakers (and eventually lawmakers) to prevent this by requiring free licensing of results as a condition of their grants and donations. introduction to the problem =========================== Consider this license fragment from a foundation supported (PRI) project from 1993: "You will not modify, publish, distribute, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content, in whole or in part, found on the Service." The non-profit collaborative communications ecosystem is polluted with endless anti-collaborative restrictive terms of use for charitably funded materials (both content and software) produced by a wide range of public organizations. These restrictions are in effect acting like "no trespassing -- toxic waste -- keep out -- this means you" signs by prohibiting making new derived works directly from pre-existing digital public works. The justification is usually that tight control of copyright and restricting communications of those materials will produce income for the non-profit, and while this is sometimes true, the cost to society in the internet age in terms of limiting cooperation is high, and in fact, I would argue, too high. Unfortunately, the situation is even worse than that, because even without a copyright notice or license, the default under the law is now that all works are copyrighted upon creation. So basically everything on the internet put up by non-profits without an explicit license granting permission to use, communicate, and/or make derivative works also has an invisible implicit "no trespassing" sign on it as well. http://www.loc.gov/copyright/circs/circ03.html the law Perhaps allowing content producing 501(c)3 non-profits to tightly control their copyrights made sense in the past. Driven by cuts in much non-profit funding in the 1980s and early 1990s, many non-profits moved to funding models requiring more entrepreneurship. For many non-profits, that has meant selling copyrighted materials, and they effectively became no different than commercial publishers -- except for receiving a charitable subsidy that perhaps allows break-even cost production for smaller audiences otherwise underserved by the the mainstream for-profit press. Acting as subsidized presses has been an important mission for non-profits, and both my wife and I have helped with it. We assisted NOFA-NJ in producing two versions of the New Jersey Organic Market Directory -- which was subsidized by among others the Geraldine R. Dodge Foundation. But, I would argue, it no longer makes sense to enable non-profits to function mainly as subsidized publishers operating in an otherwise conventional for-profit way through selling copyrighted material. Assuming subsidized publishing made sense at some point, what has changed recently? Widespread internet use is one obvious thing. In general, the bigger picture is that a more cooperative "post-scarcity" economy is emerging. http://www.google.com/search?q=post-scarcity post-scarcity This post-scarcity economy is made possible by such things as: - the exponential growth of technological capacity (including the internet), - increasingly widespread knowledge, and - new ways of collaborating pioneered by free software and open source developers. post-scarcity information economics and non-profits =================================================== Even in a "post-scarcity" or "gift" economy, some things remain scarce, like human attention or trust. This new economy is driven in part by peer status, which does have indirect physical, economic, and other benefits. http://www.well.com/user/mgoldh/natecnet.html does have indirect physical, economic, and other benefits James P. Hogan wrote a novel "Voyage from Yesteryear" around 1982 on a similar premise describing a gift economy governed by status. http://www.jamesphogan.com/books/voyage/baen99/titlepage.shtml Voyage from Yesteryear Nowhere is a post-scarcity economy more visible today than with content on the internet. However, does the funding plan for most digital public works made by non-profits incorporate a post-scarcity perspective? There are a lot of non-profit projects being funded out there (especially educational and digital library ones) which have a component of attempting to charge for access to the results of charitably funded work as part of their business plan. Some completely restrict access (and redistribution) to a local paying community. In fact, most government funding agencies and foundations encourage such restrictions, on the (often flawed) assumption that such restrictions will make the project self-sustaining financially. Rather than single out another example, let me point as a contrast to a foundation and an organization it funds that are both doing a great job at enlarging the public domain as opposed to shrinking it. http://www.centerforthepublicdomain.org/ foundation http://www.ibiblio.org/ organization it funds An outdated scarcity perspective in the non-profit community is still manifesting itself, however. There remains a continued emphasis on charitable projects which include plans for restricting access to the resulting publicly funded digital works now, in the hopes of creating revenue streams later. The funded organization usually proposes continuing to improve the work itself under its solitary control using money derived from selling licenses to the work. Contrast this with, for example, the post-scarcity development of the GNU/Linux operating system, made by thousands of volunteers contributing improvements to an initial base contributed by Linus Torvalds and the Free Software Foundation (FSF) GNU project. The old scarcity criterion towards selecting what makes a viable project (based on a recurring royalty stream for static content) is completely at odds with the new post-scarcity model (based more on streams of attention, status, service, and customization). The new collaborative development process made possible by the internet (resulting in a work made by sharing licenses to copyrights made by a distributed network of authors funded indirectly by other means) is fundamentally different than the old process (resulting in a work made by centralized copyright ownership with a development process funded by selling licenses to the result). how copyright ownership corrupts the non-profit mission ======================================================= One problem with the current approach is that non-profits who are paid to create proprietary content and then sell access to it are unfairly competing with for-profit companies who do the same thing. While there may always be an issue with how contributions to the public domain affect other peoples proprietary profit-making plans, conflicts between for-profit and non-profit work might be greatly lessened if all non-profit content development work was put in the public domain or under some sort of free license (copylefted or not), so everyone, for-profit and non-profit alike, could build on it in some way. This would mean there would be no situation where a non-profit, having developed some copyrighted or patented system, could use it to gain unfair advantage over a for-profit entity, because the for-profit company could always build on and extend the non-profit's work. Such policies might help foster a related worldwide culture of benevolence, cooperation, and sharing in non-profits might also improve things among an increasingly competitive non-profit culture shift, because free access to each others copyrights and patents might in turn do more to promote an attitude of friendly competition in non-profit staff instead of combat over what might seem at first to be finite resources. http://www.fsf.org/copyleft/copyleft.html copylefted This is more than anything a plea to think about how the tightly controlled ownership of copyrights can be corrupting people and organizations in the non-profit world -- because we have seen that first hand to our dismay. Please think deeply about the difference between "free" content and "subsidized" content. There is a world of difference in terms of making derived works, since free content can be given away with permission to make derived works, whereas subsidized content can't. Similarly, the common notion of "matching funds" breaks down when applied to whether a product is free (as in the French "libre" sense [think free speech], not necessarily "gratuit" sense [think free beer]). http://www.gnu.org/philosophy/categories.html think free speech Since half the match needs to come from selling licenses to the work, this means derived works can't be easily allowed. Problems also arise when a developer matches free funds with a free license to a proprietary underlying platform, because the combination can then never be free in the sense of allowing derived works. In both cases, the "free" funds from charity are contaminated by the "proprietary" contribution and the result is essentially proprietary (even when the price of the result is $0). It might be much better to have half as many truly free projects as opposed to twice as many proprietary ones, because everyone could potentially benefit from building on the free projects, so their value each might be (arbitrarily) ten to one hundred times that of proprietary ones. is it "self-dealing" to exchange public property for salary? ============================================================ Consider this way of looking at the situation. A 501(c)3 non-profit creates a digital work which is potentially of great value to the public and of great value to others who would build on that product. They could put it on the internet at basically zero cost and let everyone have it effectively for free. Or instead, they could restrict access to that work to create an artificial scarcity by requiring people to pay for licenses before accessing the content or making derived works. If they do the latter and require money for access, the non-profit can perhaps create revenue to pay the employees of the non-profit. But since the staff probably participate in the decision making about such licensing (granted, under a board who may be all volunteer), isn't that latter choice still in a way really a form of "self-dealing" -- taking public property (the content) and using it for private gain? From that point of view, perhaps restricting access is not even legal? Self-dealing might be clearer if the non-profit just got a grant, made the product, and then directly sold the work for a million dollars to Microsoft and put the money directly in the staff's pockets (who are also sometimes board members). Certainly if it was a piece of land being sold such a transaction might put people in jail. But because the content or software sales are small and generally to their mission's audience they are somehow deemed OK. To be clear, I am not concerned that the developers get paid well for their work and based on technical accomplishments. What I am concerned about is the way that the proprietary process happens such that the public (including me) never gets full access to the results of the publicly funded work (other than perhaps a few publications without substantial source). I've restricted this to talking about copyrights, but patents only make this situation worse. Right now, a patent on MP3 technology held by a non-profit (the Fraunhofer-Gesellschaft, commissioned and funded by the Federal and L�nder governments): - http://www.iis.fhg.de/amm/legal/index.html - http://www.fhg.de/english/company/index.html is causing distress to free software developers, and their response is to invent a new audio encoding system. http://www.vorbis.com/ (My response to similar distress could be seen as this effort to reinvent the non-profit sector entirely. :-) This example is from Germany, but one could find similar examples in the United States. Likewise, Germany has many outstanding developers of free and open software, "Germany Leads In Open-Source Development" so this situation reflects internal conflicts in German society as well. http://content.techweb.com/wire/story/TWB20001101S0016 Germany Leads In Open-Source Development I admit this self-dealing analogy may sound at first far fetched, but perhaps that is another sign of how bad the situation has become as old economic models of paper-based content distribution break down in the internet age. Note: this is not to argue non-profits should not be able to assert "moral rights" or "privacy rights" over various types of content they produce as the situation applies. For example an artist collective might not want their digital paintings modified (even if they can be freely redistributed), or clients at a clinic might not want their digital records made publicly available. Both are digital works, but in one case "moral rights" may apply, and in the other "privacy rights" may apply. There will undoubtedly be gray areas as works fall between categories (e.g. a work of art telling how to do something). how new alternatives can work ============================= Assuming people need to make a living, how can people who deal in public domain works get paid? One may object that such a "new" scheme of sharing non-proprietary knowledge created by charitable means can never work economically. However, there are perfectly capitalistic examples where it has worked already. The "new" model of making money with public domain content is actually an old one related to guilds. Doctors and lawyers both make excellent livings working with a large body of public domain knowledge, interpreting it, customizing it, and applying it to client's specific situations. Both doctors and lawyers create new knowledge that is effectively put into the public domain in the form of medical journal articles or court proceedings. While the average person can be their own doctor or lawyer to an extent, there is so much to know including certain ways of reasoning that in practice one is usually better off getting some assistance from a professional (as well as getting some self-education to work well with that professional) than trying to go it alone. Many times grants help researchers create more information for the medical or legal public domain. But those grants don't corrupt the process, because the results are essentially available to all practitioners on an equal basis. There are some medical grants that produce drug or plant patents that probably are corrupting, but that is another issue. Patents are an example when science (which thrives on reference chains of journal articles) crosses over into technology (which thrives on incrementally improved artifacts -- and artifacts can be copyrighted or patented to prevent others from using them for a time). To help a lawyer to understand free or open source software for example, just ask her or him to think about it in terms of the law itself -- from court proceedings to legislative records. While lawyers may pay for a service like Westlaw for convenience or practical necessity, they are not paying to use the law itself, say when they make an argument in court. http://www.westlaw.com/about/ Westlaw Surely nobody would suggest the world was better off in the days of 18th-century England when a medical student had to crawl on top of a roof and look in from a skylight to find out the proprietary technique used by one group of secretive obstetricians to have a lower rate of infant and maternal mortality than their competitors: - http://web.archive.org/web/20030405130500/http://www.ogilvy.com/memorial/html/onads.htm Yet, in some ways, are drug patents or other medical technology patents really that much different than simply hiding the information to those with no choice about needing the drug and can't afford it (such as in developing nations with AIDS epidemics)? And if the answer is that they are different things, still, should charitable or tax dollars be subsidizing proprietary techniques, even for limited times? And as a deeper issue, as copyrights are effectively extended indefinitely, and as technology moves increasingly faster and faster, rendering even twenty years and eternity of many generations of technical development, any sense of a public bargain that copyrights and patents someday become public domain in a *useful* way, is starting to break down. Granted, that is an issue that goes beyond the one of purely charitably funded works, but it still is an issue charitable donors should consider. This guild-like process has already started with public software such as GNU/Linux. Competent GNU/Linux system configuration experts are now in high demand and can get good wages for dealing in purely free software. One of the things that helps prove competence in this "guild" is having contributed to the GNU/Linux kernel. [Note that historically guilds often kept their methods secret from outsiders; I'm not advocating that here.] why "new" alternatives need to work =================================== How different is the basic issue in the secretive obstetricians example above from when publicly funded non-profits put "no trespassing" signs around their copyrighted works, preventing anyone else from improving on them, or benefiting from them without paying a toll to the non-profit itself? Toll collecting imposes other external costs. Once I heard a collision happen between a few cars two lanes over while driving at the Whitestone bridge's toll plaza -- another hidden cost of tolls. People could have died, say if an airbag killed a child improperly secured in a front seat. Likewise, I had my license plate scanned and checked as I paid a toll leaving an airport parking field (according to the automated display), resulting in an extra "privacy" toll not recorded on the receipt. The tolls imposed by non-profits for licensing their copyrights can have similar negative external costs. Such tolls can contribute to causing people in developing nations to die because of lack of access to how-to information on agriculture. Such tolls can also contribute to creating a closed bureaucratic Orwellian society without privacy where every viewing of information is monitored so it can be billed (consider Acrobat Reader 5 which includes technology to scan your computer and communicate the results across the internet -- pick "Edit | DocBox | Preferences" to see the InterTrust warning and license). As mentioned earlier, such restrictions can also (through temptation) create criminals where none might have existed. Frankly, if the non-profit world of copyright creation cannot provide a model by slowly moving to a post-scarcity economic structure, when such creation is already funded in large part by charity, how can the for-profit world survive the transition without complete and painful chaos? Naturally, many non-profits like soup kitchens or Habitat for Humanity are already working on a service basis, and if they collect fees for services rendered, I'm not against that. I'm talking specifically about copyright and patent work here. examples of fine-grained cooperation in action ============================================== How could post-scarcity economics be reflected in new ways of doing things by the non-profit sector? The current growth level of the internet makes possible fine-grained voluntary collaboration on an unprecedented scale to cooperatively develop enormous creative works, exemplified by these three collaboratively developed sites: - http://www.everything2.org/ - http://dmoz.org/ - http://www.slashdot.org/ In a sense, these sites are promoting a concept which in biology is called "stigmergy". An example is how African termites build large mounds -- by getting excited at the partial structures other termites have made and adding to them, which gets even more termites excited in new ways. Essentially, these web sites are "artifact coordinated cooperation". Without some form of a free license, this form of advanced cooperation can not take place among peer, because there is neither free access to the artifact or legal permission to change it in any way to make a new derived work. Post-scarcity collaboration has also long been shown by many of the internet newsgroups, which include discussions and information on most topics of human interest, somewhat archived and indexed here: deja http://groups.google.com/googlegroups/deja_announcement.html deja At this point, I rely on these newsgroups to do a good job as a software developer when starting a new project with new technology. My technical questions are almost always asked and answered already. In short, non-profits could work together to create in total a continually improving distributed library of free digital public works covering all human needs. This would be a very different side of the internet than the one full of tolls and restrictions that many for-profit interests are working towards. For a hint of what this might someday become, read Theodore Sturgeon's short story written in the 1950s entitled "The Skills of Xanadu". That story helped inspire our (hibernating) OSCOMAK project and a related "moral license" concept. http://www.kurtz-fernhout.com/oscomak/index.htm OSCOMAK project http://www.kurtz-fernhout.com/oscomak/license.htm moral license how things go wrong with current practice ========================================= However, most non-profit organizations dealing with "know-what", "know-how", or "know-why" content (i.e. science, technology, and art/philosophy) still follow the common practice of supporting their continued existence as they transition to the internet age by attempting to make money directly selling digital public works funded by grants, the same way they used to sell text books, blueprints, or art prints. This model of fund raising has some serious negative consequences. The main one revolves around preventing collaboration by preventing easily making derived works. There are more subtle moral and ethical implications as well, which Richard Stallman points out, as the age old civic duty of sharing with a neighbor is made immoral and illegal (and repositioned linguistically as "piracy"). http://www.fsf.org/philosophy/philosophy.html Naturally, promoting sharing still needs to balance both "moral rights" of authors getting credit for their works or controlling some aspects of the presentation or alteration of aesthetic or opinion works (as opposed to functional ones), and "privacy rights" related to personal information. For more on these distinctions, see for example stallman or: http://www.fsf.org/events/rms-nyu-2001-transcript.txt http://www.ipmatters.net/webcaught/interview_stallman.html stallman Given the ease of free content distribution on the internet, to make money from content, organizations must create an artificial scarcity of their content (including text and software). This entails using copyright to impose restrictions preventing anyone from making copies of their content, so people will pay for licenses to use their content. Since derived works are also copies in a way, organizations must also prevent others from making derived works. This derived-works restriction in turns prevents cooperation through others easily building on the works. In theory, money changing hands will let things continue to happen, and sublicensing of content for derived works does happen to an extent in the commercial world. However, even if a non-profit organization is willing to license their works to others for a fee for making derived works, this entails royalty payments, carefully evaluating complex binding legal contracts, and other arrangements whose initial cost to set up and operate generally exceed any expected revenue of most subsequent charitable projects, and, further, force all derived works to be handled as commercial, not gift, transactions. Essentially, instead of having permanent lasting benefits, the initial charitable investment made by some foundation or government agency into supporting a non-profit organization's content creation process just devalues over time as the content becomes obsolete or is forgotten by the very organization that created it -- since no one else with an interest in the work can maintain it. The ironic thing is that most non-profits will probably fail to make enough money from selling their content to even justify the expenses of doing so, so the loss to humanity is for nothing more than a funding fantasy. the tragedy of the New Alchemy Institute ======================================== Yet, there are millions of individuals on the internet who might continue to improve content developed initially by non-profits, if these individuals only had the right to do so (rights that can only be granted by the copyright holder). For example, I have a large selection of publications created by the New Alchemy Institute on things like compost pile management, indoor fish farming, and geodesic dome greenhouse construction. I paid for those copies both for the information and to help support the institute. The New Alchemy Institute is now defunct. I have no right under copyright law to put these materials on a web site or to improve them , as much as I would like to do so (until about 100 years from now). Quite possibly obtaining such rights might cost more in time and money than creating such materials from scratch or completely rewriting them. Even if I got permission from someone previously affiliated with the New Alchemy Institute or its successors to do something with the materials, how could I be sure their information was accurate and their permission meaningful and legally binding? Sadly, decades of innovative and alternative non-profit R&D work done by dedicated and hardworking people at NAI is effectively lost as far as the internet audience is concerned. And that means, that R&D work is effectively lost to everyone in the world as the internet continues to supplant other forms of content distribution and use (like using inter-library loan). In the past, when most information was sold on paper and was difficult to modify, perhaps it made sense for non-profits to raise funds by selling documents (as when I purchased the New Alchemy Institute materials). But now, this old habit based on an out-dated paradigm is preventing cooperation and collaboration to create the informational underpinnings of a post-scarcity society demonstrating knowledge democratization. For me, the deepest tragedy of the New Alchemy Institute is somewhat personal. I visited NAI around 1989 and later gave an invited talk there to some interns, while a graduate student at Princeton. I wanted to make a library on sustainable technology and related simulations, and NAI had an extensive library on such topics and an interested member base and even some Macintosh computers. But we never connected -- in part because I was too shy and couldn't think of something coherent and fair to propose as a way out of my boxes of being a PhD graduate student and thinking in terms of a for-profit company selling proprietary software requiring a substantial investment, and out of their boxes of being mainly an agricultural technology R&D facility, selling products and papers via their catalogue, and giving interns room and board for doing manual labor. I was very saddened by the newsletter announcing their demise around 1991, because I felt that working together on a digital library of alternative technology we might have prevented that. [And ironically Richard Stallman with his Free Software vision in Cambridge was only about seventy-five miles away from NAI.] For reference, all the NAI publications themselves are supposedly available through inter-library loan at the American Archives of Agriculture (AAA), located at Iowa State University. The library itself became part of a "Green Center" at the same location, but I am not sure if that is still in operation, and in any case NAI would have no way to grant permissions for putting any works but its own on-line. Such works would ultimately have to be rewritten from multiple sources to be put on-line, a project probably worth doing, but something that would take far more effort than putting on-line what exists. proprietary vs. free content producer example ============================================= How can we prevent such tragedies from happening again and again, even for internet-connected non-profits? One possibility is simply for non-profits from the start to put their creative works under licenses allowing redistribution and the making of derived works. As a corollary, they must then obtain their funding from ways other than selling licenses to use copyrighted works. They can still sell permission to access an archive, as long as the works including the entire archive are freely redistributable once accessed. Contrast, for example, this proprietary work of hundreds of appropriate technology publications sold as micro-fiche or CD-ROM which is still pretty much as it was ten years ago: "The Appropriate Technology Library" with this blossoming free library to aid developing nations which is available directly over the web: "The Humanity Libraries Project" http://www.villageearth.org/ATLibrary/cdrom.htm "The Appropriate Technology Library" http://www.humaninfo.org/ The Humanity Libraries Project Which one has more of a future given the internet? Which one could continue be improved if the supporting organization were to suddenly become defunct? Which organization and development process is then really the lower risk "investment" for a foundation grant? The Humanity Libraries Project is the exception to the rule. The difficulties they face and the solutions they see to them (for example, starting a petition just to get the UN to freely license its content so people who need it can get it) just show how bad the situation has gotten and how ingrained the old habits are. Their petition idea helped inspire this essay on enlarging the issue to being about the copyrights of all non-profits, no just the UN and directly related NGOs. Copyright for most government funded work goes to the for-profit contractor, who usually just sits on the work because it is more expensive and risky to market a copyright than to get another government contract. Copyright for most foundation supported work goes to the non-profit, who also usually just sits on the work or makes only token efforts at marketing because it is more expensive and risky to market a copyright than to get another foundation grant. Perhaps an occasional exception is museums who show in-house created digital works until they become obsolete in a restricted setting (generally entered only after the patron pays a general admission fee). In some ways, the state of non-profit copyright ownership and licensing is so bad we don't even notice the issue anymore. digital public works are not physical public works ================================================== The fundamentally flawed concept is that digital public works are like physical public works. When one creates a physical public work like a bridge, it may make sense to charge a toll to pay for its construction or upkeep -- although even that is questionable, see for example: http://www.gnu.org/philosophy/shouldbefree.html This physical public works paradigm is unfortunately then applied to thinking about most digital public works, and there is a major flaw in the analogy. A bridge does not require much marketing. It's highly visible by the nature of what it is and how it is built. Things are different in the content and software realm. Marketing costs for any commercially successful software product are typically ten times that of creation costs. Many well funded marketing efforts fail. So, almost all projects funded by foundations with an intent to be marketed later using other funds will fail because the funds won't materialize. Likewise, because the costs of production are small relative to marketing, there is usually little value in other's licensing the works (at typically inflated fees) as opposed to just making new ones since the marketing costs are the dominating factor. Word-of-mouth marketing strategies can lower marketing costs, but it may increase support costs, and it also often takes years. This is far beyond the funding horizon of most non-profits with paid staff. Freely distributed collaborative efforts like GNU/Linux may survive long enough for word-of-mouth to help them -- but that requires a different approach to licensing. patents, blueprints, and journal articles are "leftovers" today=== ================================================================== Plenty of public money is being spent -- it just is not connecting to the community as digital public works. This failure to connect is also in part because of another notion -- that patents and scientific journal articles as funding "leftovers" are sufficient detail to support a free technological civilization. For an example of why this doesn't work, researchers at NASA just discovered NASA doesn't have the rights to the 3D CAD models of the International Space Station or the Space Shuttle. They had wanted to make a virtual reality model of those for further research and development of ergonomic design. Such plans are now on hold until new arrangements can be worked out with the contractors. Funding organizations need to break out of the mindset that the organization doing the work to create something (in this case a NASA contractor) should necessarily be the one to shepherd that work in the future, and that in order to shepherd the work, their exclusive ownership of most of the aspects of the work is justified. Both these premises are flawed in the internet age. One group can create something under a free license and another group can extend it if they have the interest. A group who initially creates something under a free license can shepherd a process involving members of the public contributing under similar free licenses. There is a real question here of how our society will proceed -- mainly closed or mainly open. It is reflected in everything the non-profit world does -- including the myths it lives by. The choice of myth can be made in part by the funding policies set by foundations and government agencies. The myth that funders may be living by is the scarcity economics myth. How does that myth effect the digital public works funding cycle? the cycle of failure ==================== Essentially, most digital public works funded by the government or foundations follow this process: - public money is paid to some organization to develop some seemingly useful digital work either as a "prototype" or as a "product", - the contractor argues it is important to create an artificial scarcity for the work through copyright to ensure future support of new versions of the work by the contractor without the need for future grants, - without marketing, which is almost always more expensive than expected (everyone hopes word-of-mouth will be enough for an overnight success), the work fails to attract enough interest to justify continued distribution and minimal support costs, - the work is quickly outdated given limited original investment in it and rapidly changing platforms and needs, plus the PI wants to move onto other things, and so, - the cycle repeats, since an organization that has learned how to get one grant probably knows better than anything else how to get another. Very rarely, the project is a "success" in the sense of being able to become self sustaining economically after generally a large number of funding cycles. At that point, the idea is "commercialized" often by the private sector and often someone makes a lot of money. Essentially, a lottery ticket has paid off -- for one group out of hundreds or thousands. To an extent, the logic behind all this is similar to when the US Forest service puts in $100 of logging roads for $1 in logging fees, because supposedly cheap access to timber will promote the US economy and welfare of US citizens (even if the timber gets sold to Japan). In the forest example, it is the public wilderness and those who would enjoy it spiritually or physically who suffer. In the non-profit example, it is the public domain of copyright that suffers, and likely also public privacy and public safety. However, the same logic could be applied to the results of creating a directory of organic food suppliers or a book about how to achieve world peace. Restricting access to all of them is a result of the same scarcity mythology, and the exponential growth of technology requires a new funding mythos. encouraging successful collaboration ==================================== To break that cycle, what needs to be done? The mythology of funding needs to shift to fostering the creation of free works of public value. There needs to be a faith that such works if they are of value will eventually attract further support (from public or private sources). How can that new mythology be implemented on a practical basis? Here are some ideas: 1. Support free content creation processes more than specific products. 2. Support people and organizations participating in those processes, either those making free content or those shepherding free processes. 3. Don't encourage organizations to become self supporting by selling licenses for copyrights or patents. Suggest instead they sell services, customization, or memberships if they want to become self-supporting -- but such things are hard to do so don't insist on them. 4. Reward with more grants people and organizations who actually make important free content (however that is judged). It is very hard to make effective grants, no matter how knowledgeable, hardworking, and dedicated the foundation staff and board is. Michael Phillips talks about this in the book "The Seven Laws of Money" based on his experience on the board of the Point Foundation. So obviously, this is all easier said than done. Actually, Michael Phillips argues in practice it is impossible to give successful external grants, but perhaps this new funding mythology of supporting free content may change the granting landscape enough that some external grants will produce good things, since at some point grant applicants could be judged on a portfolio of previously developed free content in addition to perceived public value for proposed new efforts. what about special case like drug research? =========================================== One can make a point on the issue of exclusive rights as far as attracting additional investment to get something so it is generally acceptable for widespread use. In the case of new drugs, it may take hundreds of millions of dollars in investment in clinical studies beyond a drugs initial invention. Still, would it really ever be the case that if all drug research was done in the public domain our society could never under any circumstance find a way to put into production new drugs, even if it meant making some changes to how drugs are tested or produced? The private sector should IMHO provide value added to the public domain, and if it can't, the situation needs to be rethought. Clearly with trillions of dollars a year spent on health care, there is a huge incentive for insurance companies and the government (Medicare/Medicaid) to fund the creation of effective drugs to reduce other long term care costs, even at half a billion a drug. >From what little I understand of the drug industry, most drug research by drug companies is actually to make "me too" clones of existing drugs (with the original novel drugs typically derived from government funded research and studies and signed over cheaply to drug companies), so drug companies are one of the worst examples of dysfunctional public/private sector investment patterns. Additionally, drug companies generally don't invest in research on drugs of great value to large numbers of people (e.g. river blindness or malaria) if they don't see as much profit in it as the next version of something already popular (and not really needed as much if at all). One approach is to disconnect drug manufacturing and sales from drug research and drug testing. Why should the two go together? Certainly after a drug patent expires, I can still buy Aspirin or other generic drugs, and drug vendors can compete on price, availability, packaging, and quality. So if research and studies were done purely using public funds then there wouldn't be this issue. Granted, if FDA approval is excessively costly for novel drugs, ways should be considered to streamline it without compromising safety excessively. In general, the future prospect is for "designer drugs" targeted to individuals' biochemistries in the future (perhaps based on genetic and other individual based testing), so this whole expensive drug approval process is going to have to be rethought anyway. please keep charitable content free; ask peers to do likewise ============================================================= In conclusion, please, please look seriously at the copyright policies of individuals and organizations you do fund. Please insist all the creative work you fund is communicated to the public under free or open licenses or returned to the public domain. - http://www.fsf.org/philosophy/license-list.html - http://www.opensource.org/ And please encourage other peers in foundations and government agencies to do likewise. That way, at least others can build on top of the efforts of people you do fund. That would at least be a big improvement over the current situation. ⁂ Original: https://pdfernhout.net/open-letter-to-grantmakers-and-donors-on-copyright-policy.html ⇧ /# ⇧ |
Paul Fernhout |
2001 |
6987 |
34.9 |
| The Economy of Ideas |
The Economy of Ideas ==================== by John Perry Barlow https://x.com/jpbarlow John Perry Barlow March 1, 1994 Original: https://groups.csail.mit.edu/mac/classes/6.805/articles/int-prop/barlow-economy-of-ideas.html A framework for rethinking patents and copyrights in the Digital Age ==================================================================== (Everything you know about intellectual property is wrong) ========================================================== > "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property." - Thomas Jefferson Throughout the time I've been groping around cyberspace, an immense, unsolved conundrum has remained at the root of nearly every legal, ethical, governmental, and social vexation to be found in the Virtual World. I refer to the problem of digitized property. The enigma is this: If our property can be infinitely reproduced and instantaneously distributed all over the planet without cost, without our knowledge, without its even leaving our possession, how can we protect it? How are we going to get paid for the work we do with our minds? And, if we can't get paid, what will assure the continued creation and distribution of such work? Since we don't have a solution to what is a profoundly new kind of challenge, and are apparently unable to delay the galloping digitization of everything not obstinately physical, we are sailing into the future on a sinking ship. This vessel, the accumulated canon of copyright and patent law, was developed to convey forms and methods of expression entirely different from the vaporous cargo it is now being asked to carry. It is leaking as much from within as from without. Legal efforts to keep the old boat floating are taking three forms: a frenzy of deck chair rearrangement, stern warnings to the passengers that if she goes down, they will face harsh criminal penalties, and serene, glassy-eyed denial. Intellectual property law cannot be patched, retrofitted, or expanded to contain digitized expression any more than real estate law might be revised to cover the allocation of broadcasting spectrum (which, in fact, rather resembles what is being attempted here). We will need to develop an entirely new set of methods as befits this entirely new set of circumstances. Most of the people who actually create soft property - the programmers, hackers, and Net surfers - already know this. Unfortunately, neither the companies they work for nor the lawyers these companies hire have enough direct experience with nonmaterial goods to understand why they are so problematic. They are proceeding as though the old laws can somehow be made to work, either by grotesque expansion or by force. They are wrong. The source of this conundrum is as simple as its solution is complex. Digital technology is detaching information from the physical plane, where property law of all sorts has always found definition. Throughout the history of copyrights and patents, the proprietary assertions of thinkers have been focused not on their ideas but on the expression of those ideas. The ideas themselves, as well as facts about the phenomena of the world, were considered to be the collective property of humanity. One could claim franchise, in the case of copyright, on the precise turn of phrase used to convey a particular idea or the order in which facts were presented. The point at which this franchise was imposed was that moment when the "word became flesh" by departing the mind of its originator and entering some physical object, whether book or widget. The subsequent arrival of other commercial media besides books didn't alter the legal importance of this moment. Law protected expression and, with few (and recent) exceptions, to express was to make physical. Protecting physical expression had the force of convenience on its side. Copyright worked well because, Gutenberg notwithstanding, it was hard to make a book. Furthermore, books froze their contents into a condition which was as challenging to alter as it was to reproduce. Counterfeiting and distributing counterfeit volumes were obvious and visible activities - it was easy enough to catch somebody in the act of doing. Finally, unlike unbounded words or images, books had material surfaces to which one could attach copyright notices, publisher's marques, and price tags. Mental-to-physical conversion was even more central to patent. A patent, until recently, was either a description of the form into which materials were to be rendered in the service of some purpose, or a description of the process by which rendition occurred. In either case, the conceptual heart of patent was the material result. If no purposeful object could be rendered because of some material limitation, the patent was rejected. Neither a Klein bottle nor a shovel made of silk could be patented. It had to be a thing, and the thing had to work. Thus, the rights of invention and authorship adhered to activities in the physical world. One didn't get paid for ideas, but for the ability to deliver them into reality. For all practical purposes, the value was in the conveyance and not in the thought conveyed. In other words, the bottle was protected, not the wine. Now, as information enters cyberspace, the native home of Mind, these bottles are vanishing. With the advent of digitization, it is now possible to replace all previous information storage forms with one metabottle: complex and highly liquid patterns of ones and zeros. Even the physical/digital bottles to which we've become accustomed - floppy disks, CD-ROMs, and other discrete, shrink-wrappable bit-packages - will disappear as all computers jack-in to the global Net. While the Internet may never include every CPU on the planet, it is more than doubling every year and can be expected to become the principal medium of information conveyance, and perhaps eventually, the only one. Once that has happened, all the goods of the Information Age - all of the expressions once contained in books or film strips or newsletters - will exist either as pure thought or something very much like thought: voltage conditions darting around the Net at the speed of light, in conditions that one might behold in effect, as glowing pixels or transmitted sounds, but never touch or claim to "own" in the old sense of the word. Some might argue that information will still require some physical manifestation, such as its magnetic existence on the titanic hard disks of distant servers, but these are bottles which have no macroscopically discrete or personally meaningful form. Some will also argue that we have been dealing with unbottled expression since the advent of radio, and they would be right. But for most of the history of broadcast, there was no convenient way to capture soft goods from the electromagnetic ether and reproduce them with quality available in commercial packages. Only recently has this changed, and little has been done legally or technically to address the change. Generally, the issue of consumer payment for broadcast products was irrelevant. The consumers themselves were the product. Broadcast media were supported either by the sale of the attention of their audience to advertisers, by government assessing payment through taxes, or by the whining mendicancy of annual donor drives. All of the broadcast-support models are flawed. Support either by advertisers or government has almost invariably tainted the purity of the goods delivered. Besides, direct marketing is gradually killing the advertiser-support model anyway. Broadcast media gave us another payment method for a virtual product: the royalties that broadcasters pay songwriters through such organizations as ASCAP and BMI. But, as a member of ASCAP, I can assure you this is not a model that we should emulate. The monitoring methods are wildly approximate. There is no parallel system of accounting in the revenue stream. It doesn't really work. Honest. In any case, without our old methods, based on physically defining the expression of ideas, and in the absence of successful new models for nonphysical transaction, we simply don't know how to assure reliable payment for mental works. To make matters worse, this comes at a time when the human mind is replacing sunlight and mineral deposits as the principal source of new wealth. Furthermore, the increasing difficulty of enforcing existing copyright and patent laws is already placing in peril the ultimate source of intellectual property - the free exchange of ideas. That is, when the primary articles of commerce in a society look so much like speech as to be indistinguishable from it, and when the traditional methods of protecting their ownership have become ineffectual, attempting to fix the problem with broader and more vigorous enforcement will inevitably threaten freedom of speech. The greatest constraint on your future liberties may come not from government but from corporate legal departments laboring to protect by force what can no longer be protected by practical efficiency or general social consent. Furthermore, when Jefferson and his fellow creatures of the Enlightenment designed the system that became American copyright law, their primary objective was assuring the widespread distribution of thought, not profit. Profit was the fuel that would carry ideas into the libraries and minds of their new republic. Libraries would purchase books, thus rewarding the authors for their work in assembling ideas; these ideas, otherwise "incapable of confinement," would then become freely available to the public. But what is the role of libraries in the absence of books? How does society now pay for the distribution of ideas if not by charging for the ideas themselves? Additionally complicating the matter is the fact that along with the disappearance of the physical bottles in which intellectual property protection has resided, digital technology is also erasing the legal jurisdictions of the physical world and replacing them with the unbounded and perhaps permanently lawless waves of cyberspace. In cyberspace, no national or local boundaries contain the scene of a crime and determine the method of its prosecution; worse, no clear cultural agreements define what a crime might be. Unresolved and basic differences between Western and Asian cultural assumptions about intellectual property can only be exacerbated when many transactions are taking place in both hemispheres and yet, somehow, in neither. Even in the most local of digital conditions, jurisdiction and responsibility are hard to assess. A group of music publishers filed suit against CompuServe this fall because it allowed its users to upload musical compositions into areas where other users might access them. But since CompuServe cannot practically exercise much control over the flood of bits that passes between its subscribers, it probably shouldn't be held responsible for unlawfully "publishing" these works. Notions of property, value, ownership, and the nature of wealth itself are changing more fundamentally than at any time since the Sumerians first poked cuneiform into wet clay and called it stored grain. Only a very few people are aware of the enormity of this shift, and fewer of them are lawyers or public officials. Those who do see these changes must prepare responses for the legal and social confusion that will erupt as efforts to protect new forms of property with old methods become more obviously futile, and, as a consequence, more adamant. From Swords to Writs to Bits ============================ Humanity now seems bent on creating a world economy primarily based on goods that take no material form. In doing so, we may be eliminating any predictable connection between creators and a fair reward for the utility or pleasure others may find in their works. Without that connection, and without a fundamental change in consciousness to accommodate its loss, we are building our future on furor, litigation, and institutionalized evasion of payment except in response to raw force. We may return to the Bad Old Days of property. Throughout the darker parts of human history, the possession and distribution of property was a largely military matter. "Ownership" was assured those with the nastiest tools, whether fists or armies, and the most resolute will to use them. Property was the divine right of thugs. By the turn of the First Millennium AD, the emergence of merchant classes and landed gentry forced the development of ethical understandings for the resolution of property disputes. In the Middle Ages, enlightened rulers like England's Henry II began to codify this unwritten "common law" into recorded canons. These laws were local, which didn't matter much as they were primarily directed at real estate, a form of property that is local by definition. And, as the name implied, was very real. This continued to be the case as long as the origin of wealth was agricultural, but with that dawning of the Industrial Revolution, humanity began to focus as much on means as ends. Tools acquired a new social value and, thanks to their development, it became possible to duplicate and distribute them in quantity. To encourage their invention, copyright and patent law were developed in most Western countries. These laws were devoted to the delicate task of getting mental creations into the world where they could be used - and could enter the minds of others - while assuring their inventors compensation for the value of their use. And, as previously stated, the systems of both law and practice which grew up around that task were based on physical expression. Since it is now possible to convey ideas from one mind to another without ever making them physical, we are now claiming to own ideas themselves and not merely their expression. And since it is likewise now possible to create useful tools that never take physical form, we have taken to patenting abstractions, sequences of virtual events, and mathematical formulae - the most unreal estate imaginable. In certain areas, this leaves rights of ownership in such an ambiguous condition that property again adheres to those who can muster the largest armies. The only difference is that this time the armies consist of lawyers. Threatening their opponents with the endless purgatory of litigation, over which some might prefer death itself, they assert claim to any thought which might have entered another cranium within the collective body of the corporations they serve. They act as though these ideas appeared in splendid detachment from all previous human thought. And they pretend that thinking about a product is somehow as good as manufacturing, distributing, and selling it. What was previously considered a common human resource, distributed among the minds and libraries of the world, as well as the phenomena of nature herself, is now being fenced and deeded. It is as though a new class of enterprise had arisen that claimed to own the air. What is to be done? While there is a certain grim fun to be had in it, dancing on the grave of copyright and patent will solve little, especially when so few are willing to admit that the occupant of this grave is even deceased, and so many are trying to uphold by force what can no longer be upheld by popular consent. The legalists, desperate over their slipping grip, are vigorously trying to extend their reach. Indeed, the United States and other proponents of GATT are making adherence to our moribund systems of intellectual property protection a condition of membership in the marketplace of nations. For example, China will be denied Most Favored Nation trading status unless they agree to uphold a set of culturally alien principles that are no longer even sensibly applicable in their country of origin. In a more perfect world, we'd be wise to declare a moratorium on litigation, legislation, and international treaties in this area until we had a clearer sense of the terms and conditions of enterprise in cyberspace. Ideally, laws ratify already developed social consensus. They are less the Social Contract itself than a series of memoranda expressing a collective intent that has emerged out of many millions of human interactions. Humans have not inhabited cyberspace long enough or in sufficient diversity to have developed a Social Contract which conforms to the strange new conditions of that world. Laws developed prior to consensus usually favor the already established few who can get them passed and not society as a whole. To the extent that law and established social practice exists in this area, they are already in dangerous disagreement. The laws regarding unlicensed reproduction of commercial software are clear and stern...and rarely observed. Software piracy laws are so practically unenforceable and breaking them has become so socially acceptable that only a thin minority appears compelled, either by fear or conscience, to obey them. When I give speeches on this subject, I always ask how many people in the audience can honestly claim to have no unauthorized software on their hard disks. I've never seen more than 10 percent of the hands go up. Whenever there is such profound divergence between law and social practice, it is not society that adapts. Against the swift tide of custom, the software publishers' current practice of hanging a few visible scapegoats is so obviously capricious as to only further diminish respect for the law. Part of the widespread disregard for commercial software copyrights stems from a legislative failure to understand the conditions into which it was inserted. To assume that systems of law based in the physical world will serve in an environment as fundamentally different as cyberspace is a folly for which everyone doing business in the future will pay. As I will soon discuss in detail, unbounded intellectual property is very different from physical property and can no longer be protected as though these differences did not exist. For example, if we continue to assume that value is based on scarcity, as it is with regard to physical objects, we will create laws that are precisely contrary to the nature of information, which may, in many cases, increase in value with distribution. The large, legally risk-averse institutions most likely to play by the old rules will suffer for their compliance. As more lawyers, guns, and money are invested in either protecting their rights or subverting those of their opponents, their ability to produce new technology will simply grind to a halt as every move they make drives them deeper into a tar pit of courtroom warfare. Faith in law will not be an effective strategy for high-tech companies. Law adapts by continuous increments and at a pace second only to geology. Technology advances in lunging jerks, like the punctuation of biological evolution grotesquely accelerated. Real-world conditions will continue to change at a blinding pace, and the law will lag further behind, more profoundly confused. This mismatch may prove impossible to overcome. Promising economies based on purely digital products will either be born in a state of paralysis, as appears to be the case with multimedia, or continue in a brave and willful refusal by their owners to play the ownership game at all. In the United States one can already see a parallel economy developing, mostly among small, fast moving enterprises who protect their ideas by getting into the marketplace quicker then their larger competitors who base their protection on fear and litigation. Perhaps those who are part of the problem will simply quarantine themselves in court, while those who are part of the solution will create a new society based, at first, on piracy and freebooting. It may well be that when the current system of intellectual property law has collapsed, as seems inevitable, that no new legal structure will arise in its place. But something will happen. After all, people do business. When a currency becomes meaningless, business is done in barter. When societies develop outside the law, they develop their own unwritten codes, practices, and ethical systems. While technology may undo law, technology offers methods for restoring creative rights. A Taxonomy of Information ========================= It seems to me that the most productive thing to do now is to look into the true nature of what we're trying to protect. How much do we really know about information and its natural behaviors? What are the essential characteristics of unbounded creation? How does it differ from previous forms of property? How many of our assumptions about it have actually been about its containers rather than their mysterious contents? What are its different species and how does each of them lend itself to control? What technologies will be useful in creating new virtual bottles to replace the old physical ones? Of course, information is, by nature, intangible and hard to define. Like other such deep phenomena as light or matter, it is a natural host to paradox. It is most helpful to understand light as being both a particle and a wave, an understanding of information may emerge in the abstract congruence of its several different properties which might be described by the following three statements: Information is an activity. Information is a life form. Information is a relationship. In the following section, I will examine each of these. I. INFORMATION IS AN ACTIVITY ============================= Information Is a Verb, Not a Noun. ================================== Freed of its containers, information is obviously not a thing. In fact, it is something that happens in the field of interaction between minds or objects or other pieces of information. Gregory Bateson, expanding on the information theory of Claude Shannon, said, "Information is a difference which makes a difference." Thus, information only really exists in the Delta. The making of that difference is an activity within a relationship. Information is an action which occupies time rather than a state of being which occupies physical space, as is the case with hard goods. It is the pitch, not the baseball, the dance, not the dancer. Information Is Experienced, Not Possessed. ========================================== Even when it has been encapsulated in some static form like a book or a hard disk, information is still something that happens to you as you mentally decompress it from its storage code. But, whether it's running at gigabits per second or words per minute, the actual decoding is a process that must be performed by and upon a mind, a process that must take place in time. There was a cartoon in the Bulletin of Atomic Scientists a few years ago that illustrated this point beautifully. In the drawing, a holdup man trains his gun on the sort of bespectacled fellow you'd figure might have a lot of information stored in his head. "Quick," orders the bandit, "give me all your ideas." Information Has to Move. ======================== Sharks are said to die of suffocation if they stop swimming, and the same is nearly true of information. Information that isn't moving ceases to exist as anything but potential...at least until it is allowed to move again. For this reason, the practice of information hoarding, common in bureaucracies, is an especially wrong-headed artifact of physically based value systems. Information Is Conveyed by Propagation, Not Distribution. ========================================================= The way in which information spreads is also very different from the distribution of physical goods. It moves more like something from nature than from a factory. It can concatenate like falling dominos or grow in the usual fractal lattice, like frost spreading on a window, but it cannot be shipped around like widgets, except to the extent that it can be contained in them. It doesn't simply move on; it leaves a trail everywhere it's been. The central economic distinction between information and physical property is that information can be transferred without leaving the possession of the original owner. If I sell you my horse, I can't ride him after that. If I sell you what I know, we both know it. II. INFORMATION IS A LIFE FORM ============================== Information Wants to Be Free. ============================= Stewart Brand is generally credited with this elegant statement of the obvious, which recognizes both the natural desire of secrets to be told and the fact that they might be capable of possessing something like a "desire" in the first place. English biologist and philosopher Richard Dawkins proposed the idea of "memes," self-replicating patterns of information that propagate themselves across the ecologies of mind, a pattern of reproduction much like that of life forms. I believe they are life forms in every respect but their freedom from the carbon atom. They self-reproduce, they interact with their surroundings and adapt to them, they mutate, they persist. They evolve to fill the empty niches of their local environments, which are, in this case the surrounding belief systems and cultures of their hosts, namely, us. Indeed, sociobiologists like Dawkins make a plausible case that carbon-based life forms are information as well, that, as the chicken is an egg's way of making another egg, the entire biological spectacle is just the DNA molecule's means of copying out more information strings exactly like itself. Information Replicates into the Cracks of Possibility. ====================================================== Like DNA helices, ideas are relentless expansionists, always seeking new opportunities for Lebensraum. And, as in carbon-based nature, the more robust organisms are extremely adept at finding new places to live. Thus, just as the common housefly has insinuated itself into practically every ecosystem on the planet, so has the meme of "life after death" found a niche in most minds, or psycho-ecologies. The more universally resonant an idea or image or song , the more minds it will enter and remain within. Trying to stop the spread of a really robust piece of information is about as easy as keeping killer bees south of the border. Information Wants to Change. ============================ If ideas and other interactive patterns of information are indeed life forms, they can be expected to evolve constantly into forms which will be more perfectly adapted to their surroundings. And, as we see, they are doing this all the time. But for a long time, our static media, whether carvings in stone, ink on paper, or dye on celluloid, have strongly resisted the evolutionary impulse, exalting as a consequence the author's ability to determine the finished product. But, as in an oral tradition, digitized information has no "final cut." Digital information, unconstrained by packaging, is a continuing process more like the metamorphosing tales of prehistory than anything that will fit in shrink-wrap. From the Neolithic to Gutenberg (monks aside), information was passed on, mouth to ear, changing with every retelling (or resinging). The stories which once shaped our sense of the world didn't have authoritative versions. They adapted to each culture in which they found themselves being told. Because there was never a moment when the story was frozen in print, the so-called "moral" right of storytellers to own the tale was neither protected nor recognized. The story simply passed through each of them on its way to the next, where it would assume a different form. As we return to continuous information, we can expect the importance of authorship to diminish. Creative people may have to renew their acquaintance with humility. But our system of copyright makes no accommodation whatever for expressions which don't become fixed at some point nor for cultural expressions which lack a specific author or inventor. Jazz improvisations, stand-up comedy routines, mime performances, developing monologues, and unrecorded broadcast transmissions all lack the Constitutional requirement of fixation as a "writing." Without being fixed by a point of publication the liquid works of the future will all look more like these continuously adapting and changing forms and will therefore exist beyond the reach of copyright. Copyright expert Pamela Samuelson tells of having attended a conference last year convened around the fact that Western countries may legally appropriate the music, designs, and biomedical lore of aboriginal people without compensation to their tribes of origin since those tribes are not an "author" or "inventors." But soon most information will be generated collaboratively by the cyber-tribal hunter-gatherers of cyberspace. Our arrogant legal dismissal of the rights of "primitives" will be soon return to haunt us. Information Is Perishable. ========================== With the exception of the rare classic, most information is like farm produce. Its quality degrades rapidly both over time and in distance from the source of production. But even here, value is highly subjective and conditional. Yesterday's papers are quite valuable to the historian. In fact, the older they are, the more valuable they become. On the other hand, a commodities broker might consider news of an event that occurred more than an hour ago to have lost any relevance. III. INFORMATION IS A RELATIONSHIP ================================== Meaning Has Value and Is Unique to Each Case. ============================================= In most cases, we assign value to information based on its meaningfulness. The place where information dwells, the holy moment where transmission becomes reception, is a region which has many shifting characteristics and flavors depending on the relationship of sender and receiver, the depth of their interactivity. Each such relationship is unique. Even in cases where the sender is a broadcast medium, and no response is returned, the receiver is hardly passive. Receiving information is often as creative an act as generating it. The value of what is sent depends entirely on the extent to which each individual receiver has the receptors - shared terminology, attention, interest, language, paradigm - necessary to render what is received meaningful. Understanding is a critical element increasingly overlooked in the effort to turn information into a commodity. Data may be any set of facts, useful or not, intelligible or inscrutable, germane or irrelevant. Computers can crank out new data all night long without human help, and the results may be offered for sale as information. They may or may not actually be so. Only a human being can recognize the meaning that separates information from data. In fact, information, in the economic sense of the word, consists of data which have been passed through a particular human mind and found meaningful within that mental context. One fella's information is all just data to someone else. If you're an anthropologist, my detailed charts of Tasaday kinship patterns might be critical information to you. If you're a banker from Hong Kong, they might barely seem to be data. Familiarity Has More Value than Scarcity. ========================================= With physical goods, there is a direct correlation between scarcity and value. Gold is more valuable than wheat, even though you can't eat it. While this is not always the case, the situation with information is often precisely the reverse. Most soft goods increase in value as they become more common. Familiarity is an important asset in the world of information. It may often be true that the best way to raise demand for your product is to give it away. While this has not always worked with shareware, it could be argued that there is a connection between the extent to which commercial software is pirated and the amount which gets sold. Broadly pirated software, such as Lotus 1-2-3 or WordPerfect, becomes a standard and benefits from Law of Increasing Returns based on familiarity. In regard to my own soft product, rock 'n' roll songs, there is no question that the band I write them for, the Grateful Dead, has increased its popularity enormously by giving them away. We have been letting people tape our concerts since the early seventies, but instead of reducing the demand for our product, we are now the largest concert draw in America, a fact that is at least in part attributable to the popularity generated by those tapes. True, I don't get any royalties on the millions of copies of my songs which have been extracted from concerts, but I see no reason to complain. The fact is, no one but the Grateful Dead can perform a Grateful Dead song, so if you want the experience and not its thin projection, you have to buy a ticket from us. In other words, our intellectual property protection derives from our being the only real-time source of it. Exclusivity Has Value. ====================== The problem with a model that turns the physical scarcity/value ratio on its head is that sometimes the value of information is very much based on its scarcity. Exclusive possession of certain facts makes them more useful. If everyone knows about conditions which might drive a stock price up, the information is valueless. But again, the critical factor is usually time. It doesn't matter if this kind of information eventually becomes ubiquitous. What matters is being among the first who possess it and act on it. While potent secrets usually don't stay secret, they may remain so long enough to advance the cause of their original holders. Point of View and Authority Have Value. ======================================= In a world of floating realities and contradictory maps, rewards will accrue to those commentators whose maps seem to fit their territory snugly, based on their ability to yield predictable results for those who use them. In aesthetic information, whether poetry or rock 'n' roll, people are willing to buy the new product of an artist, sight-unseen, based on their having been delivered a pleasurable experience by previous work. Reality is an edit. People are willing to pay for the authority of those editors whose point of view seems to fit best. And again, point of view is an asset which cannot be stolen or duplicated. No one sees the world as Esther Dyson does, and the handsome fee she charges for her newsletter is actually payment for the privilege of looking at the world through her unique eyes. Time Replaces Space. ==================== In the physical world, value depends heavily on possession or proximity in space. One owns the material that falls inside certain dimensional boundaries. The ability to act directly, exclusively, and as one wishes upon what falls inside those boundaries is the principal right of ownership. The relationship between value and scarcity is a limitation in space. In the virtual world, proximity in time is a value determinant. An informational product is generally more valuable the closer purchaser can place themselves to the moment of its expression, a limitation in time. Many kinds of information degrade rapidly with either time or reproduction. Relevance fades as the territory they map changes. Noise is introduced and bandwidth lost with passage away from the point where the information is first produced. Thus, listening to a Grateful Dead tape is hardly the same experience as attending a Grateful Dead concert. The closer one can get to the headwaters of an informational stream, the better one's chances of finding an accurate picture of reality in it. In an era of easy reproduction, the informational abstractions of popular experiences will propagate out from their source moments to reach anyone who's interested. But it's easy enough to restrict the real experience of the desirable event, whether knock-out punch or guitar lick, to those willing to pay for being there. The Protection of Execution =========================== In the hick town I come from, they don't give you much credit for just having ideas. You are judged by what you can make of them. As things continue to speed up, I think we see that execution is the best protection for those designs which become physical products. Or, as Steve Jobs once put it, "Real artists ship." The big winner is usually the one who gets to the market first (and with enough organizational force to keep the lead). But, as we become fixated upon information commerce, many of us seem to think that originality alone is sufficient to convey value, deserving, with the right legal assurances, of a steady wage. In fact, the best way to protect intellectual property is to act on it. It's not enough to invent and patent; one has to innovate as well. Someone claims to have patented the microprocessor before Intel. Maybe so. If he'd actually started shipping microprocessors before Intel, his claim would seem far less spurious. Information as Its Own Reward ============================= It is now a commonplace to say that money is information. With the exception of Krugerrands, crumpled cab fare, and the contents of those suitcases that drug lords are reputed to carry, most of the money in the informatized world is in ones and zeros. The global money supply sloshes around the Net, as fluid as weather. It is also obvious, that information has become as fundamental to the creation of modern wealth as land and sunlight once were. What is less obvious is the extent to which information is acquiring intrinsic value, not as a means to acquisition but as the object to be acquired. I suppose this has always been less explicitly the case. In politics and academia, potency and information have always been closely related. However, as we increasingly buy information with money, we begin to see that buying information with other information is simple economic exchange without the necessity of converting the product into and out of currency. This is somewhat challenging for those who like clean accounting, since, information theory aside, informational exchange rates are too squishy to quantify to the decimal point. Nevertheless, most of what a middle-class American purchases has little to do with survival. We buy beauty, prestige, experience, education, and all the obscure pleasures of owning. Many of these things can not only be expressed in nonmaterial terms, they can be acquired by nonmaterial means. And then there are the inexplicable pleasures of information itself, the joys of learning, knowing, and teaching; the strange good feeling of information coming into and out of oneself. Playing with ideas is a recreation which people are willing to pay a lot for, given the market for books and elective seminars. We'd likely spend even more money for such pleasures if we didn't have so many opportunities to pay for ideas with other ideas. This explains much of the collective "volunteer" work which fills the archives, newsgroups, and databases of the Internet. Its denizens are not working for "nothing," as is widely believed. Rather they are getting paid in something besides money. It is an economy which consists almost entirely of information. This may become the dominant form of human trade, and if we persist in modeling economics on a strictly monetary basis, we may be gravely misled. Getting Paid in Cyberspace ========================== How all the foregoing relates to solutions to the crisis in intellectual property is something I've barely started to wrap my mind around. It's fairly paradigm warping to look at information through fresh eyes - to see how very little it is like pig iron or pork bellies, and to imagine the tottering travesties of case law we will stack up if we go on legally treating it as though it were. As I've said, I believe these towers of outmoded boilerplate will be a smoking heap sometime in the next decade, and we mind miners will have no choice but to cast our lot with new systems that work. I'm not really so gloomy about our prospects as readers of this jeremiad so far might conclude. Solutions will emerge. Nature abhors a vacuum and so does commerce. Indeed, one of the aspects of the electronic frontier which I have always found most appealing - and the reason Mitch Kapor and I used that phrase in naming our foundation - is the degree to which it resembles the 19th-century American West in its natural preference for social devices that emerge from its conditions rather than those that are imposed from the outside. Until the West was fully settled and "civilized" in this century, order was established according to an unwritten Code of the West, which had the fluidity of common law rather than the rigidity of statutes. Ethics were more important than rules. Understandings were preferred over laws, which were, in any event, largely unenforceable. I believe that law, as we understand it, was developed to protect the interests which arose in the two economic "waves" which Alvin Toffler accurately identified in The Third Wave. The First Wave was agriculturally based and required law to order ownership of the principal source of production, land. In the Second Wave, manufacturing became the economic mainspring, and the structure of modern law grew around the centralized institutions that needed protection for their reserves of capital, labor, and hardware. Both of these economic systems required stability. Their laws were designed to resist change and to assure some equability of distribution within a fairly static social framework. The empty niches had to be constrained to preserve the predictability necessary to either land stewardship or capital formation. In the Third Wave we have now entered, information to a large extent replaces land, capital, and hardware, and information is most at home in a much more fluid and adaptable environment. The Third Wave is likely to bring a fundamental shift in the purposes and methods of law which will affect far more than simply those statutes which govern intellectual property. The "terrain" itself - the architecture of the Net - may come to serve many of the purposes which could only be maintained in the past by legal imposition. For example, it may be unnecessary to constitutionally assure freedom of expression in an environment which, in the words of my fellow EFF co-founder John Gilmore, "treats censorship as a malfunction" and reroutes proscribed ideas around it. Similar natural balancing mechanisms may arise to smooth over the social discontinuities which previously required legal intercession to set right. On the Net, these differences are more likely to be spanned by a continuous spectrum that connects as much as it separates. And, despite their fierce grip on the old legal structure, companies that trade in information are likely to find that their increasing inability to deal sensibly with technological issues will not be remedied in the courts, which won't be capable of producing verdicts predictable enough to be supportive of long-term enterprise. Every litigation will become like a game of Russian roulette, depending on the depth of the presiding judge's clue-impairment. Uncodified or adaptive "law," while as "fast, loose, and out of control" as other emergent forms, is probably more likely to yield something like justice at this point. In fact, one can already see in development new practices to suit the conditions of virtual commerce. The life forms of information are evolving methods to protect their continued reproduction. For example, while all the tiny print on a commercial diskette envelope punctiliously requires a great deal of those who would open it, few who read those provisos follow them to the letter. And yet, the software business remains a very healthy sector of the American economy. Why is this? Because people seem to eventually buy the software they really use. Once a program becomes central to your work, you want the latest version of it, the best support, the actual manuals, all privileges attached to ownership. Such practical considerations will, in the absence of working law, become more and more important in getting paid for what might easily be obtained for nothing. I do think that some software is being purchased in the service of ethics or the abstract awareness that the failure to buy it will result in its not being produced any longer, but I'm going to leave those motivators aside. While I believe that the failure of law will almost certainly result in a compensating re-emergence of ethics as the ordering template of society, this is a belief I don't have room to support here. Instead, I think that, as in the case cited above, compensation for soft products will be driven primarily by practical considerations, all of them consistent with the true properties of digital information, where the value lies in it, and how it can be both manipulated and protected by technology. While the conundrum remains a conundrum, I can begin to see the directions from which solutions may emerge, based in part on broadening those practical solutions which are already in practice. Relationship and Its Tools ========================== I believe one idea is central to understanding liquid commerce: Information economics, in the absence of objects, will be based more on relationship than possession. One existing model for the future conveyance of intellectual property is real-time performance, a medium currently used only in theater, music, lectures, stand-up comedy, and pedagogy. I believe the concept of performance will expand to include most of the information economy, from multicasted soap operas to stock analysis. In these instances, commercial exchange will be more like ticket sales to a continuous show than the purchase of discrete bundles of that which is being shown. The other existing, model, of course, is service. The entire professional class - doctors, lawyers, consultants, architects, and so on - are already being paid directly for their intellectual property. Who needs copyright when you're on a retainer? In fact, until the late 18th century this model was applied to much of what is now copyrighted. Before the industrialization of creation, writers, composers, artists, and the like produced their products in the private service of patrons. Without objects to distribute in a mass market, creative people will return to a condition somewhat like this, except that they will serve many patrons, rather than one. We can already see the emergence of companies which base their existence on supporting and enhancing the soft property they create rather than selling it by the shrink-wrapped piece or embedding it in widgets. Trip Hawkins's new company for creating and licensing multimedia tools, 3DO, is an example of what I'm talking about. 3DO doesn't intend to produce any commercial software or consumer devices. Instead, it will act as a kind of private standards setting body, mediating among software and device creators who will be their licensees. It will provide a point of commonality for relationships between a broad spectrum of entities. In any case, whether you think of yourself as a service provider or a performer, the future protection of your intellectual property will depend on your ability to control your relationship to the market - a relationship which will most likely live and grow over a period of time. The value of that relationship will reside in the quality of performance, the uniqueness of your point of view, the validity of your expertise, its relevance to your market, and, underlying everything, the ability of that market to access your creative services swiftly, conveniently, and interactively. Interaction and Protection ========================== Direct interaction will provide a lot of intellectual property protection in the future, and, indeed, already has. No one knows how many software pirates have bought legitimate copies of a program after calling its publisher for technical support and offering some proof of purchase, but I would guess the number is very high. The same kind of controls will be applicable to "question and answer" relationships between authorities (or artists) and those who seek their expertise. Newsletters, magazines, and books will be supplemented by the ability of their subscribers to ask direct questions of authors. Interactivity will be a billable commodity even in the absence of authorship. As people move into the Net and increasingly get their information directly from its point of production, unfiltered by centralized media, they will attempt to develop the same interactive ability to probe reality that only experience has provided them in the past. Live access to these distant "eyes and ears" will be much easier to cordon than access to static bundles of stored but easily reproducible information. In most cases, control will be based on restricting access to the freshest, highest bandwidth information. It will be a matter of defining the ticket, the venue, the performer, and the identity of the ticket holder, definitions which I believe will take their forms from technology, not law. In most cases, the defining technology will be cryptography. Crypto Bottling =============== Cryptography, as I've said perhaps too many times, is the "material" from which the walls, boundaries - and bottles - of cyberspace will be fashioned. Of course there are problems with cryptography or any other purely technical method of property protection. It has always appeared to me that the more security you hide your goods behind, the more likely you are to turn your sanctuary into a target. Having come from a place where people leave their keys in their cars and don't even have keys to their houses, I remain convinced that the best obstacle to crime is a society with its ethics intact. While I admit that this is not the kind of society most of us live in, I also believe that a social over reliance on protection by barricades rather than conscience will eventually wither the latter by turning intrusion and theft into a sport, rather than a crime. This is already occurring in the digital domain as is evident in the activities of computer crackers. Furthermore, I would argue that initial efforts to protect digital copyright by copy protection contributed to the current condition in which most otherwise ethical computer users seem morally untroubled by their possession of pirated software. Instead of cultivating among the newly computerized a sense of respect for the work of their fellows, early reliance on copy protection led to the subliminal notion that cracking into a software package somehow "earned" one the right to use it. Limited not by conscience but by technical skill, many soon felt free to do whatever they could get away with. This will continue to be a potential liability of the encryption of digitized commerce. Furthermore, it's cautionary to remember that copy protection was rejected by the market in most areas. Many of the upcoming efforts to use cryptography-based protection schemes will probably suffer the same fate. People are not going to tolerate much that makes computers harder to use than they already are without any benefit to the user. Nevertheless, encryption has already demonstrated a certain blunt utility. New subscriptions to various commercial satellite TV services skyrocketed recently after their deployment of more robust encryption of their feeds. This, despite a booming backwoods trade in black decoder chips, conducted by folks who'd look more at home running moonshine than cracking code. Another obvious problem with encryption as a global solution is that once something has been unscrambled by a legitimate licensee, it may be available to massive reproduction. In some instances, reproduction following decryption may not be a problem. Many soft products degrade sharply in value with time. It may be that the only real interest in such products will be among those who have purchased the keys to immediacy. Furthermore, as software becomes more modular and distribution moves online, it will begin to metamorphose in direct interaction with its user base. Discontinuous upgrades will smooth into a constant process of incremental improvement and adaptation, some of it manmade and some of it arising through genetic algorithms. Pirated copies of software may become too static to have much value to anyone. Even in cases such as images, where the information is expected to remain fixed, the unencrypted file could still be interwoven with code which could continue to protect it by a wide variety of means. In most of the schemes I can project, the file would be "alive" with permanently embedded software that could "sense" the surrounding conditions and interact with them. For example, it might contain code that could detect the process of duplication and cause it to self-destruct. Other methods might give the file the ability to "phone home" through the Net to its original owner. The continued integrity of some files might require periodic "feeding" with digital cash from their host, which they would then relay back to their authors. Of course files that possess the independent ability to communicate upstream sound uncomfortably like the Morris Internet Worm. "Live" files do have a certain viral quality. And serious privacy issues would arise if everyone's computer were packed with digital spies. The point is that cryptography will enable protection technologies that will develop rapidly in the obsessive competition that has always existed between lock-makers and lock-breakers. But cryptography will not be used simply for making locks. It is also at the heart of both digital signatures and the aforementioned digital cash, both of which I believe will be central to the future protection of intellectual property. I believe that the generally acknowledged failure of the shareware model in software had less to do with dishonesty than with the simple inconvenience of paying for shareware. If the payment process can be automated, as digital cash and signature will make possible, I believe that soft product creators will reap a much higher return from the bread they cast upon the waters of cyberspace. Moreover, they will be spared much of the overhead presently attached to the marketing, manufacture, sales, and distribution of information products, whether those products are computer programs, books, CDs, or motion pictures. This will reduce prices and further increase the likelihood of noncompulsory payment. But of course there is a fundamental problem with a system that requires, through technology, payment for every access to a particular expression. It defeats the original Jeffersonian purpose of seeing that ideas were available to everyone regardless of their economic station. I am not comfortable with a model that will restrict inquiry to the wealthy. An Economy of Verbs =================== The future forms and protections of intellectual property are densely obscured at this entrance to the Virtual Age. Nevertheless, I can make (or reiterate) a few flat statements that I earnestly believe won't look too silly in 50 years. - In the absence of the old containers, almost everything we think we know about intellectual property is wrong. We're going to have to unlearn it. We're going to have to look at information as though we'd never seen the stuff before. - The protections that we will develop will rely far more on ethics and technology than on law. - Encryption will be the technical basis for most intellectual property protection. (And should, for many reasons, be made more widely available.) - The economy of the future will be based on relationship rather than possession. It will be continuous rather than sequential. And finally, in the years to come, most human exchange will be virtual rather than physical, consisting not of stuff but the stuff of which dreams are made. Our future business will be conducted in a world made more of verbs than nouns. ⁂ Original: https://groups.csail.mit.edu/mac/classes/6.805/articles/int-prop/barlow-economy-of-ideas.html ⇧ /# ⇧ |
John Perry Barlow |
1994 |
9263 |
46.3 |
| Copywrongs |
Copywrongs ========== by Samuel Edward Konkin III https://en.wikipedia.org/wiki/Samuel_Edward_Konkin_III Samuel Edward Konkin III July 1, 1986 Original: https://archive.lewrockwell.com/orig11/konkin1.1.1.html Having done every step of production in the publishing industry, both for myself and others, I have one irrefutable empirical conclusion about the economic effect of copyrights on prices and wages: nada. Zero. Nihil. So negligible you'd need a Geiger counter to measure it. Before I move on to exactly what copyrights do have an impact on, one may be interested as to why the praxeological negligibility of this tariff. The answer is found in the peculiar nature of publishing. There are big publishers and small publishers and very, very few in between. For the Big Boys, royalties are a fraction of one percent of multi-million press runs. They lose more money from bureaucratic interstices and round-off error. The small publishers are largely counter-economic and usually survive on donated material or break-in writing; let the new writers worry about copyrighting and reselling. Furthermore, there are a very few cases of legal action in the magazine world because of this disparity. The little 'zines have no hope beating a rip-off and shrug it off after a perfunctory threat; the Biggies rattle their corporate-lawyer sabres and nearly anyone above ground quietly bows. Book publishing is a small part of total publishing and there are some middle-range publishers who do worry about the total cost picture in marginal publishing cases. But now there are two kinds of writers: Big Names and everyone else. Everyone else is seldom reprinted; copyrights have nothing to do with first printings (economically). Big Names rake it in – but they also make a lot from ever-higher bids for their next contract. And the lowered risk of not selling out a reprint of a Big Name who has already sold out a print run more than compensates paying the writer the extra fee. So Big Name writers would lose something substantial if the copyright privilege ceased enforcement. But Big Name writers are an even smaller percentage of writers than Big Name Actors are of actors. If they all vanished tomorrow, no one would notice (except their friends, one hopes). Still, one may reasonably wonder if the star system's incentive can be done away without the whole pyramid collapsing. If any economic argument remains for copyrights, it's incentive. Crap. As Don Marquis put in the words of Archy the Cockroach, "Creative expression is the need of my soul." And Archy banged his head on typewriter key after typewriter key all night long to turn out his columns – which Marquis cashed in. Writing as a medium of expression will continue as long as someone has a burning need to express. And if all they have to express is a need for second payments and associated residuals, we're all better off for not reading it. But, alas, the instant elimination of copyrights would have negligible effect on the star system. While it would cut into the lifelong gravy train of stellar scribes, it would have no effect on their biggest source of income: the contract for their next book (or script, play or even magazine article or short story). That is where the money is. "You're only as good as your last piece" – but you collect for that on your next sale. Market decisions are made on anticipated sales. Sounds like straight von Mises, right? (Another great writer who profited little from copyrighting – but others are currently raking it in from Ludwig's privileged corpse – er, corpus.) The point of all this vulgar praxeology is not just to clear the way for the moral question. The market (praise be) is telling us something. After all, both market human action and morality arise from the same Natural Law. In fact, let us clear out some more deadwood and red herrings before we face the Great Moral Issue. First, if you abolish copyrights, would great authors starve? Nope. In fact, the market might open a trifle for new blood. Would writers write if they did not get paid? Who says they wouldn't? There is no link between payment for writing and copyrights. Royalties roll in (or, much more often, trickle in) long after the next work is sold and the one after is in progress. Is not a producer entitled to the fruit of his labor? Sure, that's why writers are paid. But if I make a copy of a shoe or a table or a fireplace log (with my little copied axe) does the cobbler or wood worker or woodchopper collect a royalty? A. J. Galambos, bless his anarchoheart, attempted to take copyrights and patents to their logical conclusion. Every time we break a stick, Ug The First should collect a royalty. Ideas are property, he says; madness and chaos result. Property is a concept extracted from nature by conceptual man to designate the distribution of scarce goods – the entire material world – among avaricious, competing egos. If I have an idea, you may have the same idea and it takes nothing from me. Use yours as you will and I do the same. Ideas, to use the 'au courant' language of computer programmers, are the programs; property is the data. Or, to use another current cliché, ideas are the maps and cartography, and property is the territory. The difference compares well to the differences between sex and talking about sex. Would not ideas be repressed without the incentive (provided by copyrights)? 'Au contraire' the biggest problem with ideas is the delivery system. How do we get them to those marketeers who can distribute them? (Ed. note: most readers probably know the answer to this in 1996, this was written in 1986) My ideas are pieces of what passes for my soul (or, if you prefer, ego). Therefore, every time someone adopts one of them, a little piece of me has infected them. And for this I get paid, too! On top of all that, I should be paid and paid and paid as they get staler and staler? If copyrights are such a drag, why and how did they evolve? Not by the market process. Like all privileges (emphasis added), they were grants of the king. The idea did not – could not – arise until Gutenberg's printing press and it coincided with the rise of royal divinity, and soon after, the onslaught of mercantilism. So who benefits from this privilege? There is an economic impact I failed to mention earlier. It is, in Bastiat's phrasing, the unseen. Copyright is a Big publisher's method, under cover of protecting artists, of restraint of trade. Yes, we're talking monopoly. For when the Corporation tosses its bone to the struggling writer, and an occasional steak to the pampered tenth of a percent, it receives an enforceable legal monopoly on the editing, typesetting, printing, packaging, marketing (including advertising) and sometimes even local distribution of that book or magazine. (In magazines, it also has an exclusivity in layout vs other articles and illustrations and published advertisements.) How's that for vertical integration and restraint of trade? And so the system perpetuates, give or take a few counter-economic outlaws and some enterprising Taiwanese with good smuggling connections. Because copyrights permeate all mass media, Copyright is the Rip-off That Dare Not Mention Its Name. The rot corrupting our entire communications market is so entrenched it will survive nothing short of abolition of the State and its enforcement of Copyright. Because the losers, small-name writers and all readers, lose so little each, we are content – it seems – to be nickel-and-dime plundered. Why worry about mosquito bites when we have the vampire gouges of income taxes and automobile tariffs? Now for the central moral question: what first woke me up to the problem that was the innocent viewer scenario. Consider the following careful contractual construction. Author Big and Publisher Bigger have contracts not to reveal a word of what's in some publication. Everyone on the staff, every person in the step of production is contracted not to reveal a word. All the distributors are covered and the advertising quotes only a minimal amount of words. Every reader is like Death Records in Phantom of the Paradise, under contract, too; that is every reader who purchases the book or 'zine and thus interacts with someone who is under contract – interacts in a voluntary trade and voluntary agreement. No, I am not worried about the simultaneous creator; although an obvious victim, he or she is rare, given sufficient complexity in the work under questions. (However, some recent copyright decisions and the fact that the Dolly Parton case even got as far as a serious trial – means the corruption is spreading.) One day you and I walk into a room – invited but without even mention of a contract – and the publication lies open on a table. Photons leap from the pages to our eyes and our hapless brain processes the information. Utterly innocent, having committed no volitional act, we are copyright violators. We have unintentionally embarked on a life of piracy. And God or the Market help us if we now try to act on the ideas now in our mind or to reveal this unintended guilty secret in any way. The State shall strike us – save only if Author Big and Publisher Bigger decide in their tyrannous mercy that we are too small and not worth the trouble. For if we use the ideas or repeat or reprint them, even as part of our own larger creation – bang! There goes the monopoly. And so each and every innocent viewer must be suppressed. By the Market? Hardly. The entire contractual agreement falls like a house of cards when the innocent gets his or her forbidden view. No, copyright has nothing to do with creativity, incentive, just desserts, fruits of labor or any other element of the moral, free market. It is a creature of the State, the Vampire's little bat. And, as far as I'm concerned, the word should be copywrong. ⁂ Original: https://archive.lewrockwell.com/orig11/konkin1.1.1.html ⇧ /# ⇧ |
Samuel Edward Konkin III |
1986 |
1709 |
8.5 |
| A New Argument Against Copyright |
A New Argument Against Copyright ================================ by John Beverley Robinson https://en.wikipedia.org/wiki/John_Beverley_Robinson John Beverley Robinson April 23, 1891 Original: https://www.libertarian-labyrinth.org/wp-content/uploads/2020/04/08-02.pdf _To the Editor of Liberty:_ What is an “idea”? Is it made of wood, or iron, or stone? Possibly of paper? Is it animate or inanimate? Animal, vegetable, or mineral? Do you see what I am trying to get at? An idea is nothing objective. It is neither produced nor discovered; neither a product of industry, nor unclaimed land, nor a _fera naturae_. Ambiguously as the word has been used, both by metaphysicians and in common talk, every shade of meaning given to it has been but a variation upon one fundamental sense; that an idea is, after some fashion, an intellectual process. That is to say, the idea is not any part of the product; it is a part of the producer, or, if you will, a part of the labor of producing. Ideas are not — cannot be — produced. They “grow.” Given heredity, education, circumstances, and the rest of the environment, and that the man’s ideas will be so and so, whether he builds, or talks, or writes, is determined. Moreover, there is no reason why we should confine the word “idea” to a mental process so striking in size or quality as to seem to us out of the common. Every act springs from some corresponding idea. The copyist expresses ideas as truly as does the author. Ideas of arrangement, ideas of appropriate text, script, or engrossing hand; all the ideas which mark the grades of excellence in copyists. Each one, having used as much thought as the work in hand requires, be it steam-engine-construction or philosophy-writing, has also used a complementary amount of physical exertion; and as a result of his labor he possesses his engine or his manuscript. Either one he may now destroy, or conceal, or sell. If he sells, the value is determined for the purchaser largely by the amount of advantageous novelty contained, or, as we metaphorically call it, by the “idea” embodied in it. But the “idea” is not any more the thing sold in the case of a book than it is in the case of a horse-shoe. In either case the man who has the best “ideas” produces the best work, and every labor product, in that sense, embodies the ideas of the producer, just as it embodies his physical exertion. The idea is the intellectual exertion made in producing; and, as such, is a part of the body of the producer. The working of the mind cannot be sold; only the material of nature, transformed by labor, whether mental or physical, can be dealt in commercially. Consequently the “ideas,” the mental processes, like the physical processes, of each one are his own to use as he pleases. If he uses them to labor, the product of his labor is still his. It is vain to talk of protecting property in ideas as far as he in whom the ideas originate is concerned. He holds his ideas by the same title that he holds his body, wherever chattel slavery is not admitted. The only legitimate use of ideas is to produce something desirable and therefore exchangeable, be it song, speech, plough, or book. After the product has been exchanged, the producer has nothing more to do with it. What is really sought by patent and copyright laws is indicated in the very word “copyright.” Not to protect ideas, but to confer the privilege of copying a material product. It is not in the interest of the poor devils, the author and inventor, but in that of the capitalist and publisher, that they are enacted. They seek to erect another species of legal property, necessarily and avowedly involving monopoly, ostensibly in the interest of the producer, really in that of the investor and exploiter. As for the compensation of authors, why should they not be able to get as good compensation for the out-and-out sale of their labor as anybody else can? When liberty to labor exists, there is no doubt that they will be able. Nor need the publishers fear liberty. It is only the excessive pressure of the present slavery that makes it worth anybody’s while to shove worthless, copyrighted books, as a venture, upon an overstocked market. When we can all of us freely satisfy our desires for books, it will be quite as much as publishers can do to keep up with the demand for new authors, without troubling themselves to run competitors out of the trade. ⁂ Original: https://www.libertarian-labyrinth.org/wp-content/uploads/2020/04/08-02.pdf ⇧ /# ⇧ |
John Beverley Robinson |
1891 |
798 |
4 |