Intellectual Property

An interesting post at Slashdot:

StealthyRoid writes

“I’m an anarcho-capitalist, and a huge supporter of property rights, both physical and intellectual.  At the same time, I find the current trend of increasing penalties for minor violations, criminalizing civil IP matters, anti-consumer technologies like DRM, and abuse of the legal system by the *AA’s of the world really disturbing.  You’d think that by now, there’d be a reasonable solution to the problem of protecting intellectual property while at the same time maintaining the rights of consumers and protecting individuals from absurd litigation, but I have yet to find one. So, I pose these questions to the Slashdot community:  1 — Do you acknowledge the legitimacy of intellectual property to begin with? That is, do you believe that intellectual property is a valid construct equivalent to physical property, or do you think it’s illusory? If not, why?  2 — If so, how would you go about protecting the rights of intellectual property holders in a way that doesn’t require unfair usage limitations or resort to predatory abuse of the tort system?”

Naturally, being Slashdot, it has responses such as this:

“As an anarcho-communist, I have to say, I don’t acknowledge property rights…”

But, lefty comments aside, the thread is worth a look – and I’m curious as to how fellow-libertarians reconcile this issue, as I am unsure myself.

77 thoughts on “Intellectual Property

  1. I agree that IP protection laws have over-reached, particularly with copyright (which covers software). It is bizarre when a book that merely speculates about a cure for cancer attracts automatic protection until 70 years after the death of the author, while the cure itself attracts protection for 20 years from the date of lodging the patent.

    However, it would be throwing the baby out with the bathwater to abandon IP protection entirely. The case of AIDS drugs and developing countries proves the point.

    As is now well known, a number of countries are refusing to respect patents on such drugs, arguing they are too expensive. Third party manufacturers are being authorised by governments to breach the patents and supply the drugs.

    As a consequence, research on new AIDS drugs has declined substantially and there will be very few new products to emerge in coming decades. Millions will die slow and miserable deaths from AIDS.

    The solution to the price of such drugs lies in the market. If the companies charge too much, they won’t sell enough. Charities and philanthropists will help to buy them for the poor.

    Suppose a brilliant book had been written for AIDS sufferers describing how to manage the disease, but the publisher wanted to charge a very high price for it. Nobody would overrule copyright and authorise a generic publisher, and the system of copyright would not be questioned. A market based solution would be found.

    An IP system is like the military and criminal courts – they are legitimate functions of government. But like all such functions, they should be no greater than genuinely necessary.

  2. FWIW, I think IP protection is necessary – I’m just not sure to what extent. Should such rights last forever? If not, what period of protection is appropriate? Is it always going to be arbitrary, or is there some methodology that can be used?

  3. Too right! I have a few inventions that I’m working on, and I think patents are great! I wouldn’t have as much incentive to work on them if a system of rewards wasn’t in place! (Plus, I’m working on a libertarian novel, about the trouble an inventor goes through when he invents a walkie-talkie that uses neutrinos, and so can’t be intercepted. You can bet that no police force would want such a thing to be marketed!)
    My brand of Libertarianism distinguishes between private and public property. I hope for the day when you can do what you like as an adult on your own land, including making copies of whatever you have bought, but if someone has PUBLIC copyright, then you can’t advertise your copies on public lands, or use media (like radio) that crosses public spaces, and any public entities, like schools and libraries, would only stock the copyright version.
    That’s how I would resolve any dilemmas, by strict definition of property rights.


    Maskin suggested that software patents inhibit innovation rather than stimulate progress. Software, semiconductor, and computer industries have been innovative despite historically weak patent protection, he argued. Innovation in those industries has been sequential and complementary, so competition can increase firms’ future profits. In such a dynamic industry, “patent protection may reduce overall innovation and social welfare.” A natural experiment occurred in the 1980s when patent protection was extended to software,” wrote Maskin. “Standard arguments would predict that R&D intensity and productivity should have increased among patenting firms. Consistent with our model, however, these increases did not occur.” Other evidence supporting this model includes a distinctive pattern of cross-licensing and a positive relationship between rates of innovation and firm entry. [4]

    This guy won the nobel prize, although not for this research.

    We should keep common law IP but boot legislative IP as a general rule.

  5. If you were going to spend some time on this you’d have to separate the different forms of IP and analyse each in turn. Patents, copyrights, trademarks (anything else?) are completely different beasts.

    As a software engineer I’m in the weird situation where a piece of software I’ve created can be covered by patents and copyrights. To me, that’s an absurd situation and shows that the move to digitisation has completely changed the way we should think about IP (particularly copyright.)
    Here’s a really good article on that by Eben Moglen whom I pretty much agree with –

    Without overthinking it now my libertarian instincts tell me to reject IP protection completely as it requires an unreasonable amount of government intervention to maintain, often at the expense of personal liberty and property rights. Also, I think the fact that it’s referred to as ‘Intellectual Property’ in the first place skews thinking and often makes libertarians and other free marketers support its ongoing protection without considering what it really is.

    Nicholas Gray’s comment above is interesting too and I’ll have to ponder it a bit. I think I probably agree with it. Of course I’d want to be constantly limiting the size of ‘public’ property though.

  6. I think that IP laws are definitely a good thing because I think someone’s hard work and achievments should belong to them and should be protected from unwanted thieves. I don’t think property itself is the basis of rights derivations. The basis is man’s nature – his ability and need to be able to think, act and create (property) freely. When you see there are underlying concepts to physical property rights, you can see how IP rights are also valid.

    IP laws are far from perfect. eg/ How do they work out 20 years for patents? Why does copyright age keep increasing? There needs to be a more systematic and principled approach to these determinations IMO.

    My experience mainly lies in pharmaceutical patents:
    From my observations, the IP system is very messy and expensive because of our inefficient legal process. Also patents themselves are very expensive.
    In addition patents do not offer guarenteed protection, simply the right to sue, something which can be very time consuming and expensive in the short term even if you eventually win. It must be extremely difficult for small companies and individuals where finances are scarce. So it’s definitely not a perfect system.

    I also have some interest in music industry copyrights, and we’ve all seen stupid situations in regards to music copyrights (eg/ litigation against teenagers filesharing some mp3s). I think these situations are partly the fault of the music industry failing to keep up with new technology and not innovating because they’re lazy.

    Of course, you should be allowed to do what you want with your inventions and this is the whole point of IP laws – therefore if you don’t want copyright protection, you shouldn’t have to have it, and you simply don’t sue anyone for breach. This solves Greego’s concern about any programs he makes (as long as he owns them too). If you want to share your own software or music you should be allowed to. eg/ Radiohead is a band that released their entire album on the net for free. I’m sure there is a legal procedure in place to ensure Radiohead don’t suddenly go back on their word and ask people to pay.

  7. “I think that IP laws are definitely a good thing because I think someone’s hard work and achievments should belong to them and should be protected from unwanted thieves.”

    They are justly protected whilst they sit in your home or in your head. By publishing them you release your thoughts to the world. By copying your work no-one’s stealing anything from you. Plagiarists can be exposed in other ways.

    “The basis is man’s nature – his ability and need to be able to think, act and create (property) freely.”

    How do copyright laws encourage that though? They take away the rights of everyone else to copy and derive new work from old in order to support an artificial monopoly for one person. I don’t see the trade-off being fair (especially if it’s essentially a perpetual monopoly like it is with current copyright law.)

    I think the anarchy of the internet will essentially destroy copyright anyway. The market will find a different way to support original authors without an artificial monopoly system. Mozart, Shakespeare, Michelangelo etc certainly didn’t need no stinkin’ copyright protection.

  8. Greego- perhaps YOU should work on a new Intellectual Property Classification, which might be called ‘Softwareright’. Maybe “Greego’s Law” will become THE standard for the world. Someone will, so why not you?

  9. I’m not sure if you’re being facetious Nicholas but I guess what I’m advocating is either very limited or non-existant copyright which isn’t really a system but an anti-system. However I should probably elaborate my thoughts on a blog or something. Trouble is if I do that someone may steal my ideas! 😉

    Anyway, Moglen’s essay (linked to above) is already published and very much in line with my thinking.

  10. Greego, to help in clarification, I call my version Co-Monarchism. Each of us should be Monarchs of our own lands and bodies, and have the right to an equal share in public matters. The public would own physical properties like roads and Council buildings, and local borders, etc. The public entities could also offer services (electricity? sewerage? water?), but would have to allow competitors to also offer services on public properties.
    This way, we have both private and public spaces. I think we will always want some social life, and having direct votes on public land matters will keep us involved with the community. Even Ayn Rand admitted that man is a social being. (And the equal share could mean something like Community Services- I should imagine that being part of a Volunteer Firefighters Brigade would cure any feelings of alienation, for instance!)

  11. “They are justly protected whilst they sit in your head”. That approach denies the inventor freedom to act on their inventions. An implication of one’s inventions are the ability to act them out and benefit from them. People don’t slave away for years inventing something just to have it copied by every parasite who has access to it. So there is a case for protection because this kind copying would amount to interference denying you the rightful fruits of your labour.

    “They take away the rights of eveyone else to copy your work”. Literally copying work is the same as taking the work for your own use without permission – theft. People don’t have the right to your work ie: People don’t have the right to carbon copy your work. If you choose to release your work, you should be able to set the conditions of release, just like how the seller sets contractural conditions of sale such as the price of a product, not the customer. That’s why you have legal protections.
    If I built an oil rig on international waters where I cannot own the land, the UN shouldn’t have the right to tax the living hell out of my rig and its profits – because before it was built there was just ocean and I have the right to what I created and any profits resulting.

    I don’t agree that copyright denies people the opportunity to invent new work based on old work:
    If they want to copy your work, they can negotiate with you.

    If they want to use your work as it is, in a new application they can negotiate with you and get protection themselves covering the new application. eg/ A few years ago the company I worked for got legal protection for a particular pharmaceutical product (that used an active ingredient we didn’t have patent protection on) by developing a formulation patent.

    If they want to improve on your work then they obviously have to invent something novel themselves, a key requirement to a patent.
    An example of novel development often occurs in art. I may invent a new form of art by creating a new art work(s). However I cannot copyright the whole category of new art, only my art work. eg/ The first ever rock n’roll song should be copyrighted itself, and people shouldn’t make money out of your song if you don’t want them to, but you can’t copyright the whole genre of rock n’roll.
    So I don’t see how copyright in its proper application could stop new innovations. If it does, this doesn’t mean copyright itself is invalidated. It means you probably need to re-work the laws – something that is almost certainly necessary in today’s confused legal world.
    The finer details of actual IP laws, I’m not qualified to dicuss. I agree it could well be the case that the laws are too strict in some instances – and perhaps too lenient in others, such as industries with large R&D times.

  12. “That approach denies the inventor freedom to act on their inventions.”

    Wrong – it denies the inventor the power to remove the freedom from others to copy his inventions. Nothing is stopping him from capitalising on his work another way or being funded charitably or via some other means. He just can’t monopolise on it by force.

    I mean look at that Radiohead album: people were offered it for free and still paid money for it. People love great art and will find a way to ensure it still appears via the market. Some people won’t make money and some will but I bet the most talented artists will still be rich – Radiohead made a metric fuckload off In Rainbows. The great classical composers were usually commissioned to create their pieces.

    “Literally copying work is the same as taking the work for your own use without permission – theft.”

    Wrong – they are not being deprived of their original work as it’s still in their possession. It’s just in other people’s hands as well. It’s copying, not theft. There’s a difference.

    From a practical perspective I can’t see how you can reconcile the way that copyright law needs to be enforced with protection of personal and property rights.

  13. I’m against IP (patents) as a violation of real property rights. If there is an idea in my head, either (1) I own the idea because I own my head; or (2) somebody else owns the idea, implying that I don’t fully own my head. I prefer number 1. That means I support real physical property rights… and not manufactured government-fiat “rights”. IPR are just as manufactured as “taxi licence rights”.

    However, there is a reasonable economic case for IPR. I don’t think it is nearly as strong as many economists believe, and in most cases I don’t think it is necessary. The glaring exception is the pharmacuticals industry. I haven’t yet squared that circle in my own head.

    Having said that — I do think copyright is a legitimate concept. If you sell something under the stipulation that it cannot be copied and re-sold, then that is the terms of the contract. Breach of contract is equivalent to theft.

    And of course, companies are free to keep trade-secrets (and indeed — many do, because this is sometimes more effective than patents).

  14. Tim R — the only “rightful” fruits from your labour are the fruits that you get voluntarily. If you get less than you want… or less than you “deserve”… then I’ll send you a card from hallmark. But you should not have control over me and my property.

    You do not have a god-given “right” to a government-provided monopoly and the consequent benefits.

  15. In thinking about innovation, it is vital to think of how changes in incentives will change industrial organisation.

    Weaker IP rights would lead to more efficient production but higher up front comissions and wages for technicians and knowledge workers. (This being the tradeoff apparently for less innovation and less rents for innovators). This new higher wage rate might be an efficiency wage, as opposed to a one off payoff that rarely occurs for innovators. Such an efficiency wage in the context of firm network-entrepreneurship might see further IP innovation, not the same level as now.

    It is also important to remember that the limits of your imagination do not define market failure, and for example, trade shows with secrecy agreements and auctions and licensing opportunities may be a way of innovators to keep producing new products with appropriate compensation.

    More or less, weaker IP would see processes and services as more vital than goods and final products.

  16. Greego, I realise people like to draw a distinction between copying and theft, but I disagree that the two concepts are always different.
    Temujin, I addressed your point on property rights in comment 7.
    I’m not saying rights are “god-given” but I do think you have the right to avoid theft of your creations, just like in the world of real property.
    Like I said, the seller sets the conditions of use, not the customer.

    Ever wondered why big corporations keep their top level research out of China even though operating costs would be lower? One of the reasons is no IP protection. Where is the best R&D done on the planet in most industries? The USA, which also has the most vigorous patent testing system in the world.

  17. Interestingly, the US is losing it’s comparative advantages in innnovation. It is no big deal, it just means top level R&D will be headquarted there. Until they have lower worker producitivity in general, other 1st world firms get scale and process advantages and the Americans get dumber than the rest of the world.

    But going back to what Maskin found about US software in the 1980s – the benefits are merely improved monopoly profits, not more innovation.

  18. ‘Real physical property rights’ are protected now by monopolistic governments, so where is the contradiction in extending it to Intellectual property?
    In any case, my sort of society would have physical property rights over PUBLIC property- what you did on your land would be up to you.
    To clarify an earlier point- public entities could offer their own utilities, such as electric power from power lines under public roads, but should have to allow people to advertise and trade their home power machines on public properties.

  19. Tim R — me having an idea is not theft, even if you had the idea first. Your language is bizare.

    You are claiming rights over my thoughts. You are calling for a government-created monopoly on a business. I totally reject that sort of socialist thinking. There is absolutely no “property right” in an idea… that is just a semantic trick that socialists play to fool people like you.

    You go on to make a consequentialist argument… which is quite different. As I already said, I think that argument is much over-played… as confirmed by research that I did for the australian government. But even if IPR did help, that doesn’t make it “property”, nor does it stop being a government-mandated monopoly.

    Either I own my head or I don’t. Which is it?

    nicholas — The government (sometimes) protects property rights, but they didn’t create them. Property rights always exist whereever property is scarce. This is true under every and all political and economic systems. Socialism has property rights… they just rest with the government. Chaos has property rights… they are just violently transfered regularly. Anarchy has property rights… they are just protected in a different way.

    In contrast, “intellectual monopoly rights” can only exist when the government decides to give a monopoly to certain businessmen.

    There is a world of difference. Indeed — it is pretty much the fundamental difference between a capitalist and non-capitalist system.

  20. Eliminating IP rights would have an enormous positive impact once the transition period is complete and individuals and corporations have developed new methods of deriving revenue from providing services. It would create an explosion of creativity as innovators are let loose to build on the works of others.

    The innovation explosion might not happen immediately in some capital intensive areas such as pharmaceuticals, but this would be partially offset by existing products getting cheaper. This should be attractive to the equality crowd, not to mention make healthcare cheaper for all.

    One of the drivers of healthcare costs is our vociferous appetite for all things new, even when there are tried and tested solutions. Demand for the latest and greatest drug treatments is currently limited to developed countries which have solved problems like TB, malaria and other common killer/debilitating deseases. If IP were eliminated and this helped drag billions more people into the first world, think of the demand for high tech drug treatments then?

  21. RE: copyright

    End user agreements such as copyright and DRM are legitimate contractual arrangements. The main problem is enforcement, and this is where utilitarian arguments come in. What is the cost of enforcement and is this justified?

  22. Yeah, what John, Mark & Brendan said. Also, just because someone thought of something first, doesn’t mean someone else wasn’t going to think of it the next day. By what right should the first person gain a 20 year monopoly? Others would and will come up with it and improvements on it. Ending IP will lead to a burst of creativity, rather then the other way round. Not good news for Microsoft perhas, but good news for computer users.

  23. So why didn’t the USSR become an intellectual powerhouse?
    They deliberately had no patent laws, and took ideas freely from other countries. The system did not succeed. If abolishing IP will allow all to be creative, what went wrong? Shouldn’t Russia have leapt ahead? Abolishing IP is all part and parcel of Communism, where everything belongs to the public, after all.
    If we get rid of IPR, will people not bother to invent, if they have no protection?

  24. What a furphy Nick.

    Refer to Maskin. The US software market had more innovation when US patents were weak – and Reagan was punting commies.

  25. But in one sense it is not a furphy, Mark! Where did the USSR go wrong? Non-IPR is not the be-all and end-all of the argument. We need to study the negatives of the country, and be sure we’ve identified the bad features.
    For instance, Maskin’s data can be read a number of ways. When any new field is opened up, innovation is fantastic, but it seems to be a natural law that consolidation and slowness follow. When oil was first in demand, oil companies sprang up like mushrooms, but how many oil companies do we have today? Not as many!
    When Australia and North America were invaded and settled by British colonists, they carried the full set of English laws with them, but that didn’t stop new developments, or stop people from wanting to exploit them!
    Any new field starts with great expansion, and then slows. I think it is a natural law, not a product of patent law.

  26. I’ll start with offering an example that concerns me, in a hypothetical world without copyright:

    If I tried to release a song I wrote myself through a smallish company, label X. What would stop label Y taking my now publicly released song and releasing it themselves – they will benefit from my hard labour, without my consent and I will get nothing for my song.
    This situation would favour label Y’s system of parasitic behaviour and discourage labels seeking real creators.

    This doesn’t seem like “equality” as Brendan says because the small players are at more of a disadvantage without protection.
    How would individuals attempt to release music themselves as they do these days. Because as soon as a song gained any popularity, a big company could just come along and sell it for themselves, undercutting you and paying you nothing.

    I used to think IP laws could be replaced by contracts and perhaps they could. But contracts would still be performing the same functions as IP, they’d just be IP by another name. They’d still require legal protection and therefore government resources.
    So I think, ideal IP laws should be an attempt at simplifying and increasing efficiency of contractural agreements of sale, development, use etc.

    Now, in response to comments:
    Temujin, I don’t understand, but I don’t think I was making those assertions. I was refering to property rights as being built on other primary principles, like in the freedom of speech discussion.

    But I do think I understand where some people are coming from. You guys think, the more people that are allowed to work on a new development (without consent of original developer) the better (incidentally, this seems quite socialist to me Temujin). But I disagree.
    I think the more the creator’s wishes are protected the better, because his creation would be most precious to him. He’s already proven he’s got what it takes to invent. And because there’d be more incentive for him (the real brains behind the project) to continue work.
    Most people in our society never have original thoughts, let alone highly valuable original ideas. You can’t assume, a high percentage of people would even be capable of developing great software, music or pharmaceuticals just because they could do so without any royalties costs. Afterall, we know they already have access to new creations in today’s world.

    I’ve already explained how the patent system allows for working on other’s inventions. – through licensing agreements, by allowing companies to develop new patents incoporating old inventions etc.
    Having no patent system would result in companies being more secretive. This could hinder release of products.
    With the patent system, I can go to the patent office and read every little detail about other people’s inventions.

    I think maybe some people are worried that someone will simply have an idea, patent it and do nothing about it but in the meantime, no one else can use it. Firstly, you can’t just patent ideas willy nilly, it has to meet certain requirements such as being novel. Even then patents can be challenged in court.
    But let’s say we patent an idea with no physical substance, no prototypes, no written song or book, no actual software – then this idea is still available for licensing agreements, or developments etc under a patent system. The price of these agreements will be set by the market and for something that is just an idea, the seller wouldn’t be likely to get a dime until it the final product was actually making money – so patenting things of absoultely no physical substance is unlikely to stop innovation.
    It’s unlikely someone wants to just patent an idea. Usually when people say “intellectual property”, they mean something like the design of a new drug, or a software program. They would always have a final goal in mind other than just knowledge for knowledge’s sake.
    And patenting of frivolous ideas is more an indication of a faulty patent system, not an invalidation of IP rights.

    I’ll finish with Teflon. Invented by DuPont, DuPont receives royalties for all Teflon products. Go down to cheap as chips and how much is a non-stick fry pan compared to a non-coated normal aluminium fry pay? Bugger all.

  27. The soviet union failed because of lack of freedom, not because they allowed too much. But I think you’ll find that when they weren’t being directed to perform soviet science, they didn’t have a creativity problem. And interestingly, the writers were still producucing their samizdata and passing it from hand to hand without reward when it was banned by the state, so lack of copyright laws will not stop the good writers. Might put a sock in the Bryce Courtneys and Dan Browns of the world, but that will hardly be a great loss.

  28. The sovient union failed because they didn’t have private property rights. Instead, the government controlled property.

    Ironically, the IPR crowd also wants the government to over-ride private property. Specifically, my head. And you want the government to create artifical blocks against competition so that special interests can have the benefits of monopoly rights.

    Now — perhaps IPR are a good idea. But let’s be clear. It is a socialist concept. It is the government over-ruling clear private property rights and introducing monopoly rights.

    It is simply untrue (as nicholas suggests) that private property rights is a communist idea.

    I’ll repeat the point again because it’s important — under a fully capitalist system, each person owns themselves, including their own brain. I do not own your brain and you do not own my brian. Even if you have an idea first and I have an idea second… that does not give you ownership of my brain.

    Under a fully capitalist system, if I use only my own property (including my own brain) and make something… then what I make is mine. If I then voluntarily exchange it with somebody else, then fine. The government should not get involved.

    Of course, some people don’t agree with private property rights, or don’t agree with voluntary exchange. That’s fine. And some people suggest that government (which is by it’s nature not voluntary) can make the world a better place. Perhaps.

    But for a libertarian (and all sensible people), the burden of proof rests with the person promoting a government program.

    In this instance, the IPR crowd wants the government to create an artificial monopoly and effectively block my use of my own brain. The burden of proof must be on them.

    There is some evidence that this government scheme can encourage innovation. But the evidence isn’t strong. And there is also evidence that the IPR system sometimes prevents innovation by restricting access to ideas. And evidence that the IPR system is corrupted (which is inevitable with government). And there is overwhelming evidence that shows that government artificial monopolies encourage inefficiencies and slow down market evolution & growth. On balance, I don’t think the evidence for IPR is sufficiently strong.

    So I fall back on my presumption of freedom.

    It’s reasonable to disagree on this. The evidence is ambiguous. But it is absurd for the IPR crowd to say that they are on the free-market side of the debate. You are specifically arguing for the over-riding of private property with a government program of artificial monopolies.

  29. Temujin, I think that Intellectual property IS private property, and that patents and copyrights are boundaries, so I disagree with some of your statements.

  30. Nick, lets keep it simple and consider only one single, unique idea. It is private when you keep the idea in your head. Once you tell someone else, the idea is in their head too. So, John is suggesting that you can’t own the idea any more, unless you own the persons head.

    And if you have a unique idea today, and I have the same idea tomorrow, and I had no knowledge of your idea previously, do you still own my head?

    That IP laws are government constructs is undeniable. You can’t own what I think, even if you thought of it first, unless the Government takes control of my head and forces me to submit.

  31. nicholas — you’re simply wrong as a point of fact.

    I’ve asked this question several times and nobody answers it. Perhaps you think it’s rhetorical. It should be… but for the sake of explaination I want you to answer anyway — who owns my brain?

    The government creates “fiat property” all the time… but that is not the same a normal physical property rights. The government has created taxi licences, which are now traded. The government is creating carbon usage rights, which will be traded. The government has created idea property rights.

    All these things are fundamentally different from normaly physical property rights. Indeed — all of the above actually destroy normal property rights.

    The concept of “owning an idea” is abstract. And idea doesn’t exist (in any meaningful sense) unless it is being held by somebody, or embodied in some physical property. The question is (1) who owns that physical property (including your brain); and (2) when should the government over-ride your right to physical property?

    Just because the government put the word “property rights” in IPR doesn’t make it a free-market concept. The IPR scheme is simply the government allocating monopoly rights, which is a direct violation of the real physical property rights of people who want to compete.

  32. With regards to the entertainment industry, they can include copyright in the conditions of contract between them and the end user. It should then be their responsibility to enforce the contract. Criminals are unlikely to adhere to such contracts, and technology has made it easy for them to copy and distribute copyrighted content. The cost of pursuing each individual who breeches their contract is high. At the moment copyrigh holders have shifted the burden of responsibility to the state by making breach of copyright (a contractual relationship) a criminal offence.

    To think that artists choosing to forego copyright protection would result in less creativity is wrong. Copyright has a crowding out effect. Record companies, publishers, even film studies, concentrate their efforts on relatively few artists, picking winners even before their art has reached the viewing public. Fame, celebrity, talent, is decided by a select few, preventing new artists access to markets.

    The internet has changed this, perhaps both made the enforcement of copyright impossible and the abandonment of it as protection for artists. Freely distributed, uncopyrighted material will increase artistic creativity, not decrease it. The passion of artists to produce and the desire for individuals to donate time to their hobbies will ensure humans will continue to be creative. Those that achieve fame will be able to derive income from their work through live performances and all the other methods that celebrities garner income outside of using the state to bully individuals over copyright.

    It really be down to artists to be creative about how they derive income from their work. Copyright as a criminal statute is rent seeking. As a civil agreement it is fine, but the enforcement costs high. Worrying about how rent seekers earn a crust is a statist position.

  33. Very good points Brendan… though I don’t think the enforcement costs of tackling copyright inringements through the civil courts is prohibitive.

    You only need a few big settlements to change the incentives, and you only need some dissincentive against copyright infringement to allow copyright holders to sell their product through “legit” outlets.

    I think we are reaching a happy medium now, and copyright holders are still making money through their copyright.

  34. Anyone who wants to release their creations to the world for free can already do so, and should be allowed this right over their work.

  35. Temujin, I own my brain, you own your brain, presumably everyone else here has a brain, and uses it, and I would agree that we all own our individual brains.
    It does not follow that IP intrudes into your brain.
    If I have an idea, I can express the idea through physical means (so long as I own the physical substance, and didn’t steal it from a neighbour.).
    If I own land, I should be able to do what I want with it, including building things to show my ideas.
    I should not have an automatic right to impose my inventions on other people’s property. I regard roads and ‘public’ places as the equivalent of a neighbour, whose property I respect.
    If my neighbour makes conditions on my use of my neighbour’s lands, I would abide by those conditions.
    In our current age of darkness, ‘the public’ is taken to include all lands, and all people, but we can rehabilitate the word by expelling it from private lands, and keeping it in control of useful things like roads, etc.
    The concept of a public patent SHOULD mean that public entities would use only the patented product, and only such things could be advertised on public spaces, or through electromagnetic media which cross public properties, a ‘public space’ monopoly, because public land is not my land, nor yours.
    I think that answers your question.

  36. I don’t want to get too involved in the debate but in talking about digital copies/ photocopies/ other duplication of games/ books/ music/ movies compare to the follow hypothetical.

    Someone invents a matter-creating cloning device. I point it at a hamburger and it creates a brand new, identical hamburger- out of nothing. If I buy one hamburger from McDonalds should it be illegal for me to clone their burger for the rest of my family to eat?

    What grounds does McDonalds have for stopping me duplicating their burgers? I’m not stealing property from them. All I am doing is taking “potential sales” from them. But should law protect “potential sales”? And if so should McDonalds be able to sue me for convincing my friend (who eats there a lot) to never eat there again? He would have provided a lot of potential sales to them if it wasn’t for me.

  37. Shem- just duplicate your own money! Trouble over!
    Then duplicate any gold or silver you have! No worries about the future!
    Physicists believe you can’t get something from nothing, so your machine is probably using the air to get materials, putting the protons and neutrons and electrons into patterns you prefer. This means you are stealing our air, you thief! Give it back!

  38. Okay, so MkII of my device is invented and it uses horse manure instead of nothing.

    I buy horse manure for $2 a bag and then “clone” 50 McDonalds burgers from that. The hypothetical still stands.

  39. If it was your own property, and you didn’t trade under your own name with their product, no worries. But wouldn’t the machine destroy trade as we know it, and thus end Western Civilisation? People would buy one thing, once, ever! And what happens if you use living things as the original? How many Shems can the world stand? And how could ‘You’ ever prove ‘you’ were the original? If someone did invent such a machine, shoot that person and destroy the machine, for all our sakes!!!!

  40. Well, Nicholas, I don’t see the problem with cloning people.

    After all- we already have identical twins. A clone is nothing more than an identical twin born years later.

    With my machine it might be an already aged identical twin with shared memory and experience. But the second we took a separate breath of air would be the second we stopped being clones and started being twins.

  41. There’s a lot of dystopian fiction surrounding human cloning but I don’t think much of it is rational. How does an identical twin prove they are the original/ first born/ the one they say they are?

  42. Yes, the Star Trek replicator is bad for business. I imagine we would really have an obesity problem with such a device – but world hunger would be a thing of the past. If it required horse manure though, then manure would become the new currency, since it couldn’t be replicated… We’d have to carry manure-backed currency 🙂

    On another note, I would say there’s a difference between copying someone’s “idea” and copying their “work”. When someone writes a novel, you shouldn’t be allowed to make copies of it for distribution… though I’m not as worried about “stealing” some plot ideas for your own story, which you then sell.

  43. My mother was a twin, and she was given a different name at birth. Your clones would think they were the original, and insist on using your identity- and the system only has a record of ONE Shem!!! How would you explain multiple Shems? I don’t want to seem anti-Shemitic, but one Shem seems to be enough!

  44. Fleeced- our currency is already backed by bovine by-product! Do we want to make it official? Every other country would take the piss out of us! (Though it wouldn’t do them any good!)

  45. There’s a lot of dystopian fiction surrounding human cloning but I don’t think much of it is rational. How does an identical twin prove they are the original/ first born/ the one they say they are?

    You watch too much Star Trek… it’s like their “transporter technology” – they’re not transporting anyone – they’re creating a copy and destroying the original. And we all know what happens when you create a copy of a copy! Incidentally, that might be the case with your hamburger-cloning machine – you’d have to keep purchasing a new one to use as the template… and then they’d probably just put some quantum technology on the thing to change it’s taste when you clone it.

    Hmmm… OK – maybe it’s me who has been watching too much Trek.

  46. Owning our own brians is fundamentally inconsistent with the abstract concept of owning an “idea” wherever the idea lies. If an idea is in my brain… and I own my brain… then I own the idea. If you own the idea in my brain, then I don’t own my brain.

    IP “rights” (or, more correctly, government privledge) restrict my use of my own assets. I am not allowed to use my own assets (brain) in a certain way, so as to maintain a government-protected monopoly to somebody else.

    I didn’t say that there should be a right to impose inventions on other people’s property. In contrast, the IPR argument wants to impose restrictions on other people’s property.

    If you enter into a contract that has conditions, then you should abide by those conditions. That is entirely irrelevant to the question of patents.

    Your discussion of “public” space is equally irrelevant. My brain is neither in the public rhelm (like a shop), nor is it owned by government, nor does it fit the definition of a public good according to economics.

    The economics of ideas should be entirely based in the world of private property. But not fake government fiat property like taxi licences and IP priveldges… but normal physical private property rights.

    Just protect physical property rights and get the government out of the way. While they might have the best of intentions with IPR (where have I heard that before)… government created monopolies are not a good idea.

  47. i notice that we’ve just had a visitor from Kathmandu. We don’t normally get many libertarians from that part of the world. is that you, Temujin?

  48. Maybe something to read for someone here:

    Levine & Boldrin argue against the conventional viewpoint that intellectual property monopolies benefit societies more than their nonexistance.

    My opinion: Even if these monopolies benefit the society as a whole that does in no way legitimate them or the laws on which they are based. Just think about the following fictionary scenario: “Scientists found out that slavery of a minority benefits the society!” Would that in any way be the legitimation for slavery? Absolutely not!

  49. “Scientists found out that slavery of a minority benefits the society!” Would that in any way be the legitimation for slavery? Absolutely not!

    Why not?!

  50. There is a lot of evidence coming up that patents are counterproductive in most cases.

    One example is to do with flying. The Wright Brothers patented the airplane. So America went into world-war I without a proper aviation industry. Caught in a bit of a spot the Americans abolished patents in aviation from 1917 to 1975. Without patents they were able to dominate aviation technology.

    So in general we ought to either shorten drastically or abolish patents. They actually get in the way of innovation.

  51. Of course you’d get to enjoy it. Thats part of the reason it was such a hateful thing and so hard to get rid of. Imagine the sexual addiction of the average rich Southern white boy who need only go down the back to push himself on stables of hot black chicks.

    Now we have a situation where so many of the exploiting class all have these well-paid and pretty cushy public sector jobs. Of course you could get to like that sort of thing. If you are a well-paid leftist economist in the ACCC thats probably a very comfortable place to be. Screwing everything up for the rest of us recommending Fuelwatch but having put together a great live for oneself.

    Flipping houses is probably a great lifestyle. Flipping houses and recommending crap paper money and fractional reserve might be just the bees knees as a lifestyle. Or being a leftist journalist getting the payoff by making the parasites feel good about themselves. You see its always going to be better from an existential point of view being a parasite on the highest end of the food chain or sucking up to all these thieves.

    Thats why it was hard to end the more pure type of slavery and thats why its going to be hard to end all the dirty sneaky forms of slavery as well.

  52. Why not Sutcliffe? Because it would be an arbitrary exclusion of the slaves from “society”.

    What’s “society” and how do we decide who’s in and who’s out?

  53. Mick — you ask the question rhetorically, but every political philosophy must have an answer to that question (who gets into our social/political considerations). While many people don’t think about it, the standard answer (when pushed) is that “humans” are the beings we’re concerned about.

    For me, it is “beings with a sense of self-awareness and a perception of free-will”. But that just amount to humans anyway. Until aliens visit or we have some more evolution. 🙂

    I am against slavery because I believe fundamentally in protecting human self-ownership. I have my reasons (to do with respect of the concept of self-awareness & free will), but whatever the reason people need to take one of three positions: voluntary is better than violence; violence is better than voluntary; they are morally equal.

    If you believe the former (which I do) then you should have a starting assumption for liberty and against slavery.

    Of course, most people care about more than just liberty. The other major consideration that humans have is “human welfare” or “utility”. Thankfully, the two are often correlated, so we don’t often have to make compromises. Personally, I value liberty highly and have little trust in government… so I believe the proponent of government action needs to meet a very high benchmark of evidence before we trust their fandangled intervention.

    If you could prove that slavery solved world poverty and brought eternal peace — then OK. Otherwise, it’s going to be a difficult sell.

  54. Oh… and yes… Kathmandu was me. Though I’m in Varanasi (India) now. Heading to Mumbai tomorrow. Bloody hot.

    And for those unware, “temujin” = “john humphreys”.

  55. I just thought you were an ignorant bugger. But now you go an reveal that you are a terminally ignorant bugger. Temujin might have been expected to learn new stuff. But Humphreys only knows what he wants to believe.

  56. We’re basically aligned. I just like having a bit of fun and seeing if someone will bite. Thought I had the Bird there for a moment.

    ‘If you could prove that slavery solved world poverty and brought eternal peace – then OK’.

    I believe that if this was the case humans would probably be doing it. The inherent value of a rational being applying free will offers greater benefit to humanity.

  57. Temujin, we seem to be talking at cross-purposes here. Many of our points agree- we both think that individuals own their own brains, and can have ideas and experiment with those ideas.
    We even agree that, on our own land, we should be able to build and make what we want, without any outside interference.
    Our main point of disagreement seems to be whether we will have a role for ‘Public’ affairs. You seem to feel that we can abolish all statist entities, including local government, and leave roads to deteriorate, or people to buy or grab ex-public roads, and run their own roads. (This idea is one you expressed a while back, and you might have changed your mind since then.)
    I think that we don’t need to go that far. We can tame the public beast, confine it to roads and other clearly-marked public areas, like seas and borders, and keep it out of our own properties. On our own properties, and with our own properties, we should be free to do what like. (I even feel we can tame the beast further, by all citizens having an equal share in the running of local public governments, time-share government- one week in the militia, the next week in the Council.)
    I am a Minarchist, and this is my version of minarchy, with a reduced role for public law- but I still feel that the public would then have the right to licence what goes over PUBLIC lands, such as goods and advertising.
    What do you think now should happen to the roads?

  58. ???

    We’re not talking about roads. I think they can be built and maintained privately… but that is an entirely different topic.

    Even if we had public roads (and public hospitals, police, schools etc) that would not justify the government “nationalising my head” by having IPR laws.

  59. But I think that the reach of the public should end where private property begins. That IPR would only be valid on roads, for instance. The entity that owns the roads can limit what goes on them. If a private company owned a road, they could say what was allowed. If a company of shareholders owned a road, they could say what was allowed on the road. If most adults in a community were voters about what went on in their roads; i.e. the local government had been turned into a road-owning company, they could control what went on in their roads. That is the link.
    Or would your private road companies not be allowed to control the traffic over their properties? Does your right to your brain override their right ot rule their lands?
    I am just curious as to why you think we can’t reform what we’ve got, instead of starting afresh. If we limit IPR, and all laws, to PUBLIC lands, then we would be left alone to own our brains and our inventions.

  60. OK, Nick, we understand that you’re not arguing for the current system of IP, but you’re not adressing the undelying issue of whether the government should create this property category in the first place.

  61. Here is an example from the real world. Pharmaceutical companies often need (or say they need) lots of time to recoup the costs of new products that they bring out, because these new products took a long time to develop and test. Therefore, IPR gives them some chance to recover from the initial costs of starting up a new drug.
    Would we have Viagra, to mention a potent example, if we didn’t have IPR?

  62. Tonight, on ‘Insight’, SBS 7.30, the program has artists who have been copied without payment, and they meet their copiers! Unfortunately, no weapons, but it should still be fun. Let’s see what IPR does tonight!

  63. Also, if you go to ‘Libertarian International’ website, and look through the articles for May, you’ll see an item on how Patents are actually good for poor people! It goes into greater detail than I did, but makes similar points.
    So I still think the facts support the retention of some form of IPR.

  64. Saying “IPR should only be valid on roads” does not make sense. Of course owners can set the rules on their own property… but that is entirely separate to whether the government should or shouldn’t create artificial monopolies (ie IPR).

    We know that you support IPR. And I know the arguments for and against IPR. I know them better than most and have done several studies on the issue.

    I raised the issue of pharmaceutical companies in my first post. And now you raise it as a new point? Strange. How would pharmaceutical copies be affected by your “roads IPR”? Would you have a ban on copying pharmaceuticals while driving? 🙂

    And then you raise the issue of copyright. As have been discussed at length on this comments thread, copyright is quite different to patents. I’m not sure that you’re reading these comments properly.

    Anyway… I already said that reasonable people disagree about whether IPR is a good thing.

    But reasonable people CANNOT disagree about whether it is a free-market solution or a piece of government intervention. It (being patents) is clearly a piece of government intervention.

  65. ” Comment by Mick Sutcliffe | June 1, 2008

    What is a set and how do we decide who or what is in or out?”

    Beat it Sutcliffe if you are going to act like a stupid four year old.

  66. Temu, I believe in a modified form of Intellectual Property Rights, by which I mean it should be limited to Public property, and not operate on Private property.
    I believe that even if we were to start afresh, and carve a new nation out of the Kimberleys, and sell lands to individuals, we would still end up with something like public properties (such as roads, which is why I keep mentioning them, because that is where most of us meet other people), because they are useful.
    Someone would own the roads, and that someone would have the perfect right to set the terms of the use of such property, just as I have the right to set the terms of the use of my land.
    I therefore feel obliged to accept Public Intellectual Property Rights, if a government imposes it, because the government is the owner of Public properties, just as I am the owner, and therefore the government, of my property. I might think the government would be better off without it, but it would be the owner. That is why I concede the right of the government to even have such laws.
    I am still waiting for the government to concede my right to be absolute monarch of my property, but I am sure it will come some day!

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