Where Innovation Comes From

Jesse Walker | April 22, 2009

Ezra Klein of The American Prospect notices how progress works:

The great success stories of capitalism are the inventors and the innovators -- the men who dreamed up the telephone and hammered out the contours of evolutionary theory. Indeed, their names come easily to our lips even today: Alexander Graham Bell. Charles Darwin.

Less well known are the names that could have been on our lips. On Feb. 14, 1876, Elisha Gray entered the U.S. Patent Office. Like Bell, he meant to patent a device for "transmitting vocal sounds telegraphically." Unlike Bell, the device in his patent actually worked. But Gray was a few hours too late. Bell's representative had come earlier in the morning to assert Bell's claim. In the log books, Bell is the fifth applicant that day and Gray is the 39th. And so it is Bell's name we remember. Meanwhile, Antonio Meucci, an Italian stage technician, had applied for a "caveat" -- a placeholder patent -- five years before either Gray or Bell. But lacking the $10 necessary to pay the patent office, his claim lapsed....

That is often the dull reality of progress: It follows a comma rather than a paragraph break. A field of research achieves a critical mass of ideas and underlying concepts and the next step becomes clear to a number of ex[p]erts.

For libertarians, this is old hat. Yes, of course: Innovation is usually a matter of incremental, unplanned evolution with dispersed researchers building on one another's work, not a centrally directed project driven by a handful of heroic geniuses. That's a fine Hayekian argument for scientific and economic liberty, along with the other sorts of intangible wealth that foster such improvements. It also raises questions about the efficacy of our monopolistic patent system. But Klein doesn't take his discussion in those directions. Instead he offers a non sequitur:

The story of history...is often told through the achievements of individuals. And to some degree, there is value in that. Society is a collection of individuals. If there were no rewards for innovation, we might find spontaneous invention giving way to its opposite. But we are far from that world. Instead, we have set up a system that lavishly rewards individuals and impoverishes society. Where the richest percentile see their incomes grow by $863,000 and the poorest 20 percent see gains of $1,600.

Now, I'm not interested in defending any particular income distribution, including the one America has now. And it's not obvious to me that levels of income and levels of innovation should always go hand in hand in the first place. (There are perfectly legitimate ways to accrue wealth without being innovative at all.) But by definition, innovation enriches society, unless you're talking about innovation in crime, repression, and the like. "The poorest" benefit the same way the rest of society does: through the presence of the goddamn innovation. Progress means your standard of living increases in ways that aren't measured by income statistics: a medicine that's more effective, a car that's more efficient, software that's less buggy.

It's an odd essay. When Klein contrasts the growth of income in the highest percentile and in the lowest 20 percent, he declares that "given what we know about innovation, it's not clear that that's a wise -- or fair -- distribution." I keep looking for the place where the argument about innovation connects with the conclusion about income. I can't find it.

Comments

|4.22.09 @ 2:36AM|#

The central problem with his arguement, as I see it, is that he regards the situation as one of aggregate benefits and collective rewards.

That is, "we as a society" reward people like Bill Gates for the benefits that he "gave the world".

Instead of seeing Gates' wealth as a consequence of many voluntary individual decisions, he's seeing it as some sort of collective decision by society as a whole to give Gates billions of dollars in exchange for Windows.

tnomeralc web design toys|4.22.09 @ 2:48AM|#

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Kevin Carson|4.22.09 @ 2:54AM|#

I don't know about "society," but the STATE conferred an awful lot of wealth on Gates with its "intellectual property" [sic] monopolies.

And a lot of the success of his products is a combination of path dependency and the interlocking relationships between large organizations with the same pathological cultures.

For example, I complained to a local library about their recent upgrade to the latest version of desktop software from the Whore of Redmond, and how horribly they worked (especially Word 2007 vs. Word 2003--a quintessential example of a gold-plated turd).

Their IT person's emailed response was that the upgrade to the latest desktop software was the "standard practice" of "libraries and companies across the country" in setting their "productivity-enhancement" policies.

Well, NO WONDER it doesn't work worth shit! I told her, in my latest response, that the fact that something adopted as a "standard practice" by "libraries and companies across the country" DOESN'T WORK reflects poorly on the organizational culture of those libraries and companies, and might indicate that local libraries ought to be paying less attention to industry culture and more to feedback from their own user communities.

Of course if company software policies were based on feedback from user communities rather than industry culture, Bill Gates would be pushing a mop in Linus Torvald's office.

The Bearded Hobbit|4.22.09 @ 2:54AM|#

I still don't get it.

I am in the final stages of getting my patent thru the system. I can begin manufacturing anytime with "Patent Pending" applied to each finished product. I will have paid about $5k in lawyer fees and will have to shell out a similar amount in machine tools, perhaps a bit more in material and labor to begin manufacturing. I am one of the smallest of small businesses.

Those who understand R&D => production know that the first unit off of the line costs a proportionately larger amount to produce than the last one.

So I gear up, expanding to another room off of my garage for a workshop, buying several thousands of dollars worth of tools, perhaps even hiring an assistant or two to help run things.

After I get a few dozen products to market, one of the "big boys" sees my design and realizes the brilliance in the design of the improvements. With his vastly larger manufacturing capability he swamps the market selling 100 for each of mine. With no way to protect my intellectual personal property I close my little factory, laying off the people that I had hired and eating all of the costs for gearing up for production.

Would someone please explain to me, a dedicated libertarian (Propertarian, if you will), why intellectual property is not personal property?

... Hobbit

Suki|4.22.09 @ 3:51AM|#

LOL! My writer friend theorizes that Ezra Klein will "get a clue" sometime in the future. I suspect a vivid imagination.

As Left as I have been, I never thought that it was "bad" for people to have some ownership of their ideas. Length of ownership seems to be a never-ending issue that I admit not having an answer to.

Kevin,

Not really following your rant but you sound passionate about hating Bill Gates for some reason. Trust me, every guy does not send flowers the next day. You will find someone else.

I don't like the new MS Word either.

Hazel,

I agree. I don't see how people can attack someone for making popular products with an "unfairness" argument when the method they used to get "rich" was by making something lots of people voluntarily purchased.

|4.22.09 @ 4:11AM|#

The gist of the argument is that even if $5 billion (or whatever Gates' net worth is) is a reasonable exchange for the whole of the planet to purchase Windows and the rest of Microsoft's products, Gates isn't solely responsible for it's existance. Gates is just a guy who commercialized ideas that he picked up on from somewhere else.

It's a deceptive argument because it relies on this whole collectivization of rewards and choices. If you break it down into the individual transactions, there's nothing unfair about any of them. When you aggregate them you just see these huge numbers. Well, there are a lot of people on the planet. $5 billion is like a dollar per person.

A more salient question would be not "Does Bill Gates deserve $5 billion?" but "Is Windows and all it's software worth $1 to you?"

|4.22.09 @ 4:12AM|#

Instead, we have set up a system that lavishly rewards individuals and impoverishes society.

(Soylent Green Moment) The Society! It's made of individuals!!!

Suki|4.22.09 @ 4:14AM|#

That article is a lot worse than the sugar coated version Jesse presented.

That's how much the incomes of the bottom 20 percent would have increased since 1979 if they had been given the same $863,000 pay increase as the average member of the top 1 percent.

That is from paragraph 2. Wording like "had been given the same pay . . . increase" sounds like the ravings of a little boy who has never had a real job.

|4.22.09 @ 4:16AM|#

Would someone please explain to me, a dedicated libertarian (Propertarian, if you will), why intellectual property is not personal property?

Hell, man, I'm an artist and I'm with you. Intellectual property has to be regarded in a similar way as personal property. Otherwise, I suppose it would be OK for any publisher to reproduce my work and pay me nada.

Suki|4.22.09 @ 4:28AM|#

Art-P.O.G.,

You mean that art does not want to be free, like information? ;)

|4.22.09 @ 4:36AM|#

You mean that art does not want to be free, like information? ;)

:D I seldom* pirate music 'cause I don't want to be a hypocrite.


*usually if I get some "free" music and it's not complete shite I end up eventually purchasing something from that artist.

Suki|4.22.09 @ 4:40AM|#

I suspect that the "information wants to be free" have a different attitude toward their own labor.

KipEsquire|4.22.09 @ 6:48AM|#

"An odd essay"? What's so odd about a partisan hack with an agenda distorting facts in order to dupe his uncritical audience? Happens every minute.

MJ|4.22.09 @ 7:16AM|#

"Would someone please explain to me, a dedicated libertarian (Propertarian, if you will), why intellectual property is not personal property?"

Because anti-IP libertarians see value in only muscle labor not mental labor.

Well, actually, they see IP as being extremely easy to steal, and if its easy to steal then it must not be wrong to steal, or something. At any rate, it inconveniences them.

|4.22.09 @ 7:45AM|#

Because anti-IP libertarians see value in only muscle labor not mental labor.

definitely, and it's an odd position for the party of schumpetarian creative destruction. Mental labor is at least 000's, maybe millions of times more productive than physical. It's why we aren't like other primates.

High Every Body|4.22.09 @ 8:02AM|#

definitely, and it's an odd position for the party of schumpetarian creative destruction. Mental labor is at least 000's, maybe millions of times more productive than physical. It's why we aren't like other primates.

There are always thieves in every bunch of people. Libertarians just happen to have more who can argue black is white than some of the others.

High Every Body|4.22.09 @ 8:05AM|#

In other news, Chavez has praised Obama for bringing Socialism to the USA.

|4.22.09 @ 8:12AM|#

You misspelled "taxes"

Xeones|4.22.09 @ 8:37AM|#

Yo, fuck Ezra Klein and Word 2007.

High Every Body|4.22.09 @ 8:44AM|#

I took a peek at Ezra's 'blog today and am sort of confused on his stance on Card Check. He uses so many weasle words that you would think he is running for office.

stuartl|4.22.09 @ 8:57AM|#

After I get a few dozen products to market, one of the "big boys" sees my design and realizes the brilliance in the design of the improvements. With his vastly larger manufacturing capability he swamps the market selling 100 for each of mine.

Patent or not, the big boys are usually more successful if they buy out your company and pay you a lot to stay on. The guy coming up with innovations normally know the field really well. The big boys can take advantage of that knowledge plus their manufacturing muscle to make lots of money.

Unlike Bell, the device in his patent actually worked. But Gray was a few hours too late. Bell's representative had come earlier in the morning to assert Bell's claim. In the log books, Bell is the fifth applicant that day and Gray is the 39th. And so it is Bell's name we remember.

I do not know the history, but I bet both Gray and Meucci lacked something that was needed to be successful.

Love or hate Bill Gates, one thing about him is he loves to win. He was and is a very good game player. To him business is just another game. Torvalds is a brilliant software guy, but not a motivated businessman.

Klein misses that it is more than just innovation, it is the business motivation to provide people with something they want.

Geoff|4.22.09 @ 9:02AM|#

Oh, the glory. Liberals would give up if they were denied their beloved "glory". A wholesome, intangible feeling, far superior to anything a capitalistic system could ever provide. Mr. Gray must have moved to the streets, abused alcohol, and applied to welfare. That's what happens in an unfair system.

Unfortunately, Mr. Klein neglected to state that Gray had successfully filed over 70 patents, including the patent for the "Telautograph", the analog precursor to the fax machine. This patent was purchased eventually by Xerox in 1999. Gray also beat Bell to the patent office this time around, causing Bell to gripe about it.

It's unfortunate that liberal arts school only focus on the beauty and greatness in art and literature, but ignore that of innovation. I suggest that if anyone has the opportunity to, visit the Leonardo da Vinci Museum of Science and Technology in Milan. Even Ezra Klein would appreciate it.

|4.22.09 @ 9:18AM|#

Klein had problems cutting & pasting from Journolist, so that is why the connecting text is missing.

Rimfax|4.22.09 @ 9:24AM|#

Levellers don't seem to need their arguments to make sense. They just need an opportunity to repeat that levelling income and wealth is "obviously" the greatest good. Ugh.

Forty-Two|4.22.09 @ 9:27AM|#

Darwin a success story of capitalism? Really?

Darwin, who lived comfortably off the rents payed by farmers working his land? Who took a government sponsored cruise to the Galapagos? Whose brilliant taxonomic work on barnacles was made possible by the contributions of enthusiasts and collectors worldwide?

That Darwin?

Klein is an idiot.

|4.22.09 @ 9:27AM|#

Speaking of collectivism, I watched a Nova last night on the "Car of the Future." Everything was more or less fine until the end, when people started talking about how the government had to get involved and how the screaming need for "greener" cars required a collective response. Not collective in the sense of all of us working towards a goal voluntarily, but collective in the sense that we'll do as we're told.

But there's no political agenda in the environmental movement.

High Every Body|4.22.09 @ 9:36AM|#

Geoff,

Unfortunately, Mr. Klein neglected to state that Gray had successfully filed over 70 patents, including the patent for the "Telautograph", the analog precursor to the fax machine. This patent was purchased eventually by Xerox in 1999. Gray also beat Bell to the patent office this time around, causing Bell to gripe about it.

Xerox has made some blunders in the past, but I do not think that purchasing a long expired patent is one of them.

Jesse Walker|4.22.09 @ 9:41AM|#

The gist of the argument is that even if $5 billion (or whatever Gates' net worth is) is a reasonable exchange for the whole of the planet to purchase Windows and the rest of Microsoft's products, Gates isn't solely responsible for it's existance. Gates is just a guy who commercialized ideas that he picked up on from somewhere else.

If that's the argument Klein is trying to make, he's assuming the commercialization after the innovation doesn't add any value that's worth compensating. Which, whatever you may think of the particular case of Microsoft, just obviously isn't true. Innovations do not magically leap from the inventors' minds to our kitchens and engines. (And of course, scientific discovery isn't the only sort of innovation out there: there's innovation in shipping, production processes, customer service...)

High Every Body|4.22.09 @ 9:43AM|#

Jesse,

Innovations do not magically leap from the inventors' minds to our kitchens and engines.

They sure as hell do in the minds of reporters! Haven't you been around a few of them? ;)

T|4.22.09 @ 9:45AM|#

collective in the sense that we'll do as we're told.

Of course you will, PL! It's good for the planet! Or the children, either one.

|4.22.09 @ 10:01AM|#

Unlike Bell, the device in his patent actually worked.

So if I read Klein correctly, Elisha Gray's device worked, but Alexander Graham Bell did not. I guess Bell was instead spending all day in his lab surfing the internet and chatting with Watson about sports and the upcoming weeking.

Oh, Klein was talking about Bell's *device*? They why didn't he say so?

|4.22.09 @ 10:04AM|#

They why didn't he say so?

Because the editor's union doesn't have card check yet.

Zeb|4.22.09 @ 10:15AM|#

What the hell is the opposite of spontaneous innovation.

|4.22.09 @ 10:18AM|#

Would someone please explain to me, a dedicated libertarian (Propertarian, if you will), why intellectual property is not personal property?

IP is a non-rivalrous, non-excludable good.

You can neither prevent people from thinking your ideas nor diminish their enjoyment of your ideas by thinking them yourself.

The free-rider who easily undercuts the innovator by "stealing" an idea and avoiding the costs of innovation doesn't prevent or impede the innovator from selling the product--unless you think inventors have a right to consumers' free will. He is perfectly free to sell it under the same conditions as always: at the price the market will bear.

When we all have brain implants that allow thoughts to be expunged, then IP will be effectively excludable. Maybe then someone can make a neat argument that it's actually rivalrous, too, and IP will have a solid place in law.

Dave W.|4.22.09 @ 10:24AM|#

One problem this blog has is that when you write a long post that takes a lot of time, then "submit" doesn't work and your comment gets eaten. That just happened to me.

To try to make the points in shorter form:

1. The fact that Bell and Gray applied on the same day is strong evidence that the idea of making a telephone was obvious. To the extent that their designs looked alike, then that is strong evidence that the similarities were obvious, and not validly patentable.

2. Bell's patent was limited to telephones "substantially as set forth [in the patent document]." If Bell's design truly did not work, then it did not cover what Gray or anybody else in the marketplace for working telephones might have wanted to do.

3. Bell's patent was limited to telephones "substantially as set forth [in the patent document]." This means that his patent was not "monopolistic." To compete, one merely had to come up with a design that was substantially different.

4. Assuming Gray's design was different than Bell's in that it worked then Gray could have and should have focussed his patent application on the critical differences and gotten patent coverage on those. Elisha Gray may have had no stomach for the patent system, but I highly doubt we would be discussing Elisha Gray this morning but-for the patent system. Like a Grylliader, Elisha Gray doesn't know who his friends really are.

5. Mr. Walker's post elegantly evokes what I call the monkeys-typing-Hamlet paradigm of innovation. Under this view, it doesn't matter who the designers are. At least in decent sized aggregates, they are interchangeable, and the innovation will happen regardless of who is doing the design work. Craetivity is not a scalar or a differentiator. It is a constant. I can't disprove this view of the engineering world, but I do both disagree with it and find it highly distasteful. Frankly, I think it is the rich people who are essentially interchangeable and not the engineers.

the innominate one|4.22.09 @ 10:26AM|#

"But by definition, innovation enriches society..."

Seems like an oddly collectivist position. Not saying I disagree, mind you.

the innominate one|4.22.09 @ 10:27AM|#

Forty-Two | April 22, 2009, 9:27am | #

Darwin a success story of capitalism? Really?

Darwin, who lived comfortably off the rents payed [sic] by farmers working his land?

I'm pretty sure that counts as capitalism.

Jesse Walker|4.22.09 @ 10:31AM|#

Mr. Walker's post elegantly evokes what I call the monkeys-typing-Hamlet paradigm of innovation. Under this view, it doesn't matter who the designers are. At least in decent sized aggregates, they are interchangeable, and the innovation will happen regardless of who is doing the design work.

What do you mean by "the" innovation, Dave? It's not like there's just one possible path of progress. Different combinations of individuals working in different contexts will innovate in different ways. It isn't a mechanical process with only one possible outcome.

Dave W.|4.22.09 @ 10:32AM|#

The free-rider who easily undercuts the innovator by "stealing" an idea and avoiding the costs of innovation doesn't prevent or impede the innovator from selling the product--unless you think inventors have a right to consumers' free will. He is perfectly free to sell it under the same conditions as always: at the price the market will bear.

the innovator is also free to not waste his time innovating in the first place. That is the outcome the patent system seeks to avoid.

The free rider is also free to produce and sell whatever he can find in the millions of expired patents out there. Free rider should do that instead of calling the wah-bulance.

Jesse Walker|4.22.09 @ 10:32AM|#

Seems like an oddly collectivist position.

How?

|4.22.09 @ 10:34AM|#

What the hell is the opposite of spontaneous innovation.

No innovation.

The fact that Bell and Gray applied on the same day is strong evidence that the idea of making a telephone was obvious.

The idea of a telephone is obvious. The patentable details of a working telephone, not so much.

To the extent that their designs looked alike, then that is strong evidence that the similarities were obvious,

Hard to say. If I pick up a submitted patent application, copy its essential details, and submit my copy the next day, have I invalidated the first application?

Mr. Walker's post elegantly evokes what I call the monkeys-typing-Hamlet paradigm of innovation. Under this view, it doesn't matter who the designers are.

From a certain Olympian perspective, it doesn't. From the more prosaic perspective of encouraging innovation by rewarding the innovators, it makes a hell of a lot of difference.

High Every Body|4.22.09 @ 10:41AM|#

What the hell is the opposite of spontaneous innovation.

Deliberative innovation.

Something similar to planned spontinaity I suspect.

Please excuse any misspellings.

Dave W.|4.22.09 @ 10:45AM|#

What do you mean by "the" innovation, Dave? It's not like there's just one possible path of progress. Different combinations of individuals working in different contexts will innovate in different ways. It isn't a mechanical process with only one possible outcome.

This is part of the reason that I don't personally subscribe to the monkeys-typing-Hamlet view of innovation. Innovation is not inevitable, not in fact and not in form. A purely market driven economy doesn't want it (except when it comes to drugs or surgeries), or at least doesn't want it enough to pay for it. The patent system says that if you want to engage in innovation, notwithstanding society's reluctance to pay for what they can just copy in the "natural" state of things, then the patent is the mechanism for forcing them to make this payment.

Moreover, the patent system forces people to be conscious of innovating, to budget for it, to hype it, to recognize it, to hire good writers to describe it, and, most importantly, to try to aggressively separate the true innovation from pretender innovation. If it really is just monkeys-typing-Hamlet then this is a waste -- the answer is just more monkeys and more typewriters. However, good innovation is more like figure skating -- some are better than others, and the more we recognize the "good ones," the better the quality of the figure skating gets.

robc|4.22.09 @ 10:50AM|#

Hobbit,

why intellectual property is not personal property

Unlike "real" property, it is possible for multiple people to "consume" an idea.

If I have a doughnut, it is not possible for ME to eat it and for YOU to eat it (its an indivisible doughnut). Thus, eventually, property rights comes down to the ability to consume the product.

Same applies to land - only one of us can farm it or build a house on it, without subdividing it first.

Ideas, on the other hand, are clonable. We can both listen to a pattern of bits and hear the same music. We can both conceptualize the design of a widget. Ideas arent consumed, they are acted upon.

Once I look at your widget and understand how it works and goes together and how to make it, it is MY idea. I thought it up. Sure, your actual production helped, but it is still my brain that figured out how to do it.

That to me, is the difference between natural law property and intellectual "property". It seemed the Founding Fathers agreed, in that they made a specific exception for IP - that clause wouldnt be necessary if intellectual "property" were really property. Whether that exception is a good or bad thing, I leave to others to decide.

Im okay with limited patents and copyrights (really limited, not bogu-limited like copyright is now). Patents are probably about right, you have a short time to act. Drug patents have a "look we discovered a new use, extend our patent" loophole that should probably be closed. Copyrights that lasted ~30 years and then became public domain with no extensions or exceptions would be reasonable.

robc|4.22.09 @ 11:03AM|#

Information wants to be $5.99

|4.22.09 @ 11:11AM|#

Free rider should do that instead of calling the wah-bulance.

The free-rider isn't the one suing for patent-infringement.

Patent is legal monopoly. There are all sorts of monopolies to incentivize this or that. USPS has a legal monopoly on first-class mail delivery, with a small, well-regulated loophole maintained at its discretion. The sugar industry has a legal monopoly on the sale of raw sugar in the United States, with a small, well-regulated loophole maintained at its discretion.

All of these monopolies, like patents, exist to incentivize something or other. They happen to do so at the expense of potential competitors who otherwise would not be violently interfering with the conduct of these entities' affairs, because we generally consider consumers to be free to choose what to consume.

However, if all we care about are future outcomes, people shouldn't necessarily be allowed to freely trade with one another when they don't directly harm others. After all, nothing happens in the universe (the illegal sale of an IP good) without affecting something else (the supply of that IP good), and there's the common welfare (innovation, as driven by perceived future incentives) to consider.

Dave W.|4.22.09 @ 11:16AM|#

Oh, and to maybe try to explain Klein:

There is old money and there is new money. Old money does things like finds overseas colonies with natural resources and pulls them out of the ground. Old money profits from real estate. Old money profits from banks. Old money hates California. Old money prefers a highly skewed income distribution.

New money is the opposite of a lot of these things. New money likes the patent system because it gives new players a chance to get into high stakes games. New money doesn't mind relative income equality because new money can still remember when it was no money.

George W. Bush was very much an old money president. The patterns he followed were very predictable and not an accident. Right down to hostility toward patents. It is no accident that all of society's money went into oil and land when he was in charge. It is no accident that the rich got richer and the poor went into the army. We are now suffering the fall out from years of that 'tude.

Here's to hoping that patents make a comeback. You should have seen the way I was reviled on this board circa 2006 -- and just for being a patent lawyer! I want to see some change I can believe in. Actually, I already am, both in my workload and at the gas pumps.

Dave W.|4.22.09 @ 11:19AM|#

Patent is legal monopoly.

Which should not be, but seems to be here, confused with having a de facto monopoly in a meaningful commercial market.

High Every Body|4.22.09 @ 11:23AM|#

Which should not be, but seems to be here, confused with having a de facto monopoly in a meaningful commercial market.

And limited to 17 years, in most cases. I did not know about the drug exception named above. Not sure if there are any others.

|4.22.09 @ 11:31AM|#

Patent protection is for twenty years. It was extended from seventeen a while back.

I'm not wading into this again, but IP protection is a good idea in a free market. It's just set too high right now. By some of the arguments thrown around here, no intangible right should receive protection. I think that's a really bad idea and would weaken the incentive for all sorts of innovation.

|4.22.09 @ 11:33AM|#

Same applies to land - only one of us can farm it or build a house on it, without subdividing it first.

Uh, no. You can have an undivided interest in land with other people. You can hold (or transfer) certain rights to real property.

Ideas, on the other hand, are clonable.

So are many forms of intangible property, like stock. Even cash is clonable. Should counterfeiting be illegal? How about "forging" 1000 shares of Apple stock? How is that not OK, but cloning intellectual property is?

High Every Body|4.22.09 @ 11:36AM|#

Patent protection is for twenty years. It was extended from seventeen a while back.

Missed that one! Thank you!

Not an uncomfortable amount of time for my mind. Copyright, however, is getting a little crazy if I am remembering that one correctly. Something approaching the collapse of the universe or something?

robc|4.22.09 @ 11:41AM|#

RC Dean,

Land can be shared, but basically it is like shares in a corporation. The ownership isnt being divided. I cant "consume" the land entirely without your permission. The ownership acts as one.

Ditto stock. Only one entity owns any individual share.

A forged share/cash isnt actually a share/cash. It is a fake reproduction. As such, its value is still whatever anyone is willing to pay for it (assuming they know what it really is - otherwise that would be fraud). That is why Trademarks are the one piece of IP I have no trouble with. Reproducing trademarks is fraud. Selling a fake Rolex is fraud. Selling a Pfolex would be okay.

An original Van Gogh has value even after his copyright has slipped into public domain (which it has). I own a "copy" of Irises - done by some artist who wasnt trying to make a fake of the original but a similar painting inspired by the original. It has value, but far less than the original. No IP necessary.

robc|4.22.09 @ 11:48AM|#

Something approaching the collapse of the universe or something?

+5 years. Dont want they post next big bang beings immediately stealing your stuff.

|4.22.09 @ 11:48AM|#

Life of the universe plus seventy aeons.

Geoff|4.22.09 @ 11:55AM|#

Patenting is a double edge sword. Say I want to patent an idea. If it is so complex and new, I may have to divulge my secret methodology in the patent. Now anyone can read my patent and learn my methodology. I actually may be better off not patenting the idea, because it will take longer for someone else to figure out my concept, than simply handing it to them and waiting for impending doom. I may be able to grab a nice niche in the market, while unfettered, and hopefully that will provide success down the road even when someone else down the road figures out my idea.

On the other-hand, that someone could read my patent and put my methodology to good use. They may even figure out something that I thought wasn't possible, and lead to further innovate. The constant competition/innovation would be beneficial to both parties.

|4.22.09 @ 11:59AM|#

You can have an undivided interest in land with other people.

That is true, but in that case those others with whom the interest is shared are "rivals" to your full enjoyment of the property.

Ideas, on the other hand, are clonable.

So are many forms of intangible property...

A better criterion is non-rivalry, not clonability. Copying stocks or money reduces the defined legal claims of these things. Stock is an ownership claim in a company, valued at some precise fraction of its total assets. If more stock is created through perfect counterfeiting, that claim is diminished by the counterfeiter.

Should counterfeiting be illegal?

It's not illegal when you have a government-granted monopoly to do so, like the Federal Reserve. There's a handful of mints and printing presses churning out the stuff everyday. Of course, money production does happen to diminish the value of all other money in circulation, all other things being equal.

Ideas, on the other hand, are not claims to anything. Nor does your conception of a Platonic Form entitle you to all its manifestations in Reality. If others know how to do addition or to construct a telephone, that does not prevent you from doing addition or constructing a telephone. Thus it is non-rivalrous, as opposed to stocks and money, whose "cloning" diminishes their value, because they are claims to finite--better, rivalrous--goods.

robc|4.22.09 @ 12:00PM|#

Zildjian has kept their trade secret for how they make their cymbals since 1618.

Assuming 17th century Turkey even had patents, it would have expired a long time ago.

|4.22.09 @ 12:01PM|#

IP is a non-rivalrous, non-excludable good.

Challange.
IP is rivalous in the sense that there is a narrow window in which it can be exploited for profit prior to it's being supplanted by the next innovation. the comparisons to donuts are misleading - it's more like a hammer: only one person can use it at a time. IP can be used by many, but the value that can be extracted accrues only to someone who can market it with pricing power. If IP did not exist, the instant a new productive idea was invented, everyone would have equal access to it, and it's value to the individual who invented it would be quickly reduced to zero through a race to the bottom. Hardly non-rivalrous.

I'm more sympathetic to the idea that it's non-excludable, but I would say it's more accurate to say it's hard-to-exclude. IP is easy to reproduce, given it's digital nature - but that's not the same thing as a beutiful building that anyone walking by can see. You have to overtly circumvent efforts to exclude it as a good in many cases.

robc|4.22.09 @ 12:01PM|#

BTW, isnt the stock cloning idea silly anyway? Isnt the "real" stock ownership the ledger kept in the company HQ?

|4.22.09 @ 12:02PM|#

Really, the US dollar isn't a legal claim on anything at this point. So, but for the Fed's IP rights on the dollar and laws against counterfeiting, there would be no property law preventing you from counterfeiting, would there?

robc|4.22.09 @ 12:03PM|#

domo,

Not all IP is digital. See my Van Gogh example.

|4.22.09 @ 12:04PM|#

robc, To the extent that a given example is less clonable, it's more excludable, not less, no?

robc|4.22.09 @ 12:05PM|#

some fed,

You could have counterfeiting laws without IP. Even without, people would just switch off of paper money and start weighing the gold coins again. You cant counterfeit metal (as long as I know how to use a scale).

The advantage to having anti-counterfeiting laws is that it allows us to use paper money instead of carrying around hunks of gold. Convenience, in other words. Fiat money destroys that whole concept.

robc|4.22.09 @ 12:07PM|#

To the extent that a given example is less clonable, it's more excludable, not less, no?

Yeah, seems reasonable.

|4.22.09 @ 12:08PM|#

and more rivalrous. The points made above by some fed seem to be predicated on the idea that IP is freely available, and my use doesn't hurt your use. My point is that if I invent something that I could market for $, but can't because you just copy me once you see how it's done, you are taking something from me - the fruits of my mental labor. Just because it's easy for you to do so, doesn't make it ok.

robc|4.22.09 @ 12:09PM|#

So, if you want an excludable good, dont create clonable ones.

A music performance is excludable. A CD isnt.

Make your money off touring (which, IIRC, mosts musicians do anyway, its the record companies that make their money off the CD sales).

|4.22.09 @ 12:10PM|#

Exactly. So Greenbacks used to be like government checks for gold. Counterfeiting was like forging government checks.

domoarrigato,

I say the more clonable, the less rivalrous. Excludability is more like the ability to keep a thing in your sole possession, rather than the ability for multiple people to enjoy it simultaneously via reproducing it.

Like stock can be secured in a safe, and is thus excludable. If that stock is vaporous, then it is less excludable.

|4.22.09 @ 12:12PM|#

It's not the right to the fruits of your labor, it's the right to sell something that looks like the fruit of your labor.

robc|4.22.09 @ 12:12PM|#

My point is that if I invent something that I could market for $, but can't because you just copy me once you see how it's done, you are taking something from me - the fruits of my mental labor. Just because it's easy for you to do so, doesn't make it ok.

And you are wrong. The fruit of your mental labor is the idea. I am not taking anything from you, you can still make it and sell it.

Seeing how it is done is a unique idea by ME.

|4.22.09 @ 12:14PM|#

In the process of copying a CD, the musician himself is not being strapped to device that captures his output and places it upon the CD.

What the musician is losing is market share, not the idea. Do we have a natural right to market share?

High Every Body|4.22.09 @ 12:14PM|#

robc,

If someone writes a 500 page e-book, for sale or not, making a copy and selling it without the author's/copyright holder's permission is stealing. Period.

robc|4.22.09 @ 12:17PM|#

HEB,

No it isnt. One, under the current laws, it is copyright infringement, which isnt even remotely stealing.

Two, it is no way stealing under natural law. As I said above, their might be a legit natural law exception, but dont try to pretend that IP is property. It is something different.

|4.22.09 @ 12:20PM|#

...making a copy and selling it without the author's/copyright holder's permission is stealing. Period.

That's true, but only because we have a law that says so. It's also illegal for foreign-flagged ships to carry goods between US ports and for Americans under the age of 21 to drink.

In Libertopia, if a copy is sold in a forest, and the author isn't around, is the author harmed?

robc|4.22.09 @ 12:20PM|#

there might be.

Sigh. I hate that. Sorry

robc|4.22.09 @ 12:21PM|#

That's true, but only because we have a law that says so

No we dont. We have a law that says it is copyright infringement.

|4.22.09 @ 12:23PM|#

Well, at least it's illegal, then.

|4.22.09 @ 12:24PM|#

I say the more clonable, the less rivalrous.

maybe - except for the person who created. for everyone else, yeah...

So, if you want an excludable good, dont create clonable ones.

in the case of music mp3's the technology that enables this arose after the fact of the goods creation, and by a third party, for the express purpose of making the good more clonable. Without the creators permission.

It's not the right to the fruits of your labor, it's the right to sell something that looks like the fruit of your labor.

if the fruits of my labor are clonable, there is no difference.

And you are wrong. The fruit of your mental labor is the idea. I am not taking anything from you, you can still make it and sell it.

I cannot, if you are doing the same thing for zero mental effort. You have certainly taken the fruits of my labor - which is the right to profit from my creation, not the idea itself. If we were talking about another type of labor you would not argue thus.

|4.22.09 @ 12:25PM|#

Since this thread has taken a turn to discussion of IP, I should clarify that I'm not anti-IP in all it's forms.

The problem is that IP is intrinsically unenforceable today for information products - music, movies, books, anything that can be infinitely copied at essentially zero cost.

Stuff like the telephone, DVD players, cell phones, it's actually possible to enforce IP law in those cases, cause you can't make an infinite number of copies of a DVD player and transmit them instantaneously to people's houses.

But movies and music have become like thoughts. They no longer exist in a form that is tradable and ownable, any more than you can own a 'meme' that gets out into public consciousness.

robc|4.22.09 @ 12:30PM|#

which is the right to profit from my creation

What, do you want a bailout? You sound like GM. No one has the right to profit. You have the right to attempt to profit, which you still do, with or without competition.

you are doing the same thing for zero mental effort

Figuring out how you do something and duplicating requires mental effort. In some cases a lot, in some cases very little. Greater than zero, however. Less than you put into it, sure, but that is the standard way things work. The stuff I learned as an undergrad would have been a lot harder for me to learn without the work of Enrico Fermi. But I didnt take anything from him.

Dave W.|4.22.09 @ 12:32PM|#

Why is excludability or rivalarousness considered by so many here the sine qua non of property?

I mean, I understand that excludability makes property easy to enforce, and why it is an important factor in considering whether to treat a thing as property. But why do people here seem to see it as the ONLY factor -- is there some philosophical reason for that? Or is it just intellectual laziness?

JB|4.22.09 @ 12:32PM|#

Ezra Klein is a moron.

The only way to make a leftist smarter is to hit them on the head with a hammer and open up their intestines with a sickle.

|4.22.09 @ 12:33PM|#

if the fruits of my labor are clonable, there is no difference.

There must be a difference.

Is the ability to recall pictures and music in one's mind's eye (certainly a form of cloning, as one's consciousness is the final point of consumption anyway--much more direct than mp3) constitute constitute copyright infringement? Is there toughtcrime copyright enforcement?

|4.22.09 @ 12:36PM|#

The European view of copyright includes a strong natural rights component, so discarding IP has somehow outside of "natural rights" is not exactly accurate.

I don't get this dislike of IP coming from some libertarians. Opposing strong IP is one thing, and I agree with that view, but opposition to IP altogether doesn't make any sense at all. Just like people won't be too interested in developing or protecting land that they don't own (unless otherwise compensated), people are going to produce fewer works of value without a financial incentive to do so. This anti-IP approach would result in reducing the wealth of authors and inventors in general as well. Why is that good?

High Every Body|4.22.09 @ 12:38PM|#

No it isnt. One, under the current laws, it is copyright infringement, which isnt even remotely stealing.

Yes it is stealing no matter what additional fancy name you give it.

Normally you are tolerable. When you excuse thievery you are intolerable and I don't care if you are an actual thief or not.

|4.22.09 @ 12:40PM|#

You have the right to attempt to profit, which you still do, with or without competition.

If I have to come up with idea, which is as you admit, harder than merely copying them it gives the copycat an advantage over the inventor. They simply have to sit around waiting for inventions to rip off more effectively than the original creator. This disincentivizes people from creating new things as we all know was the original point of granting patents. People put copy protection on pretty much all consumer software thesedays - that in and of itself should show you how inventors feel about their incentive to produce without being compensated. The fact that some IP lacks these measures shouldn't be a blank check to copy at will.

Your comparisons to GM are absurd. I'm hypothesizing a useful good that people want, and posit that giving the inventor a headstart as reward for his work is just - not that the government should pay for it or lend it money etc...

|4.22.09 @ 12:42PM|#

Dave W.,

It's excludability and rivalrousness, not either/or.

These two criteria are thoroughly established in economics as the means by which to differentiate private property and public goods (and other things) from an economic perspective The idea is conceptualize what actors face when they cope with these concepts.

Insofar as the law is reality, IP is private property. But in economics one can consider the possibility that the law is fungible.

|4.22.09 @ 12:43PM|#

But why do people here seem to see it as the ONLY factor -- is there some philosophical reason for that? Or is it just intellectual laziness?

the latter

Is the ability to recall pictures and music in one's mind's eye (certainly a form of cloning, as one's consciousness is the final point of consumption anyway--much more direct than mp3)

This is a pretty speculative claim. I think it's obvious that ripping a cd, and handing out actual 100% identical copies on the internet is a damn sight different than humming to yourself.

robc|4.22.09 @ 12:46PM|#

posit that giving the inventor a headstart as reward for his work is just

Where did I disagree, read the fucking thread? I am arguing it isnt a part of natural law but might be a reasonable exception and that Im generally okay with it for short terms.

I can also see it reasonable to go without it.

I do want the terms "intellectual property", "piracy", "theft" as applies to this stuff destroyed. Lets call it what it is. What is so hard about using the term "infringement"? Yeah, it doesnt sound as bad as piracy. Thats because it isnt. Assuming it is bad at all.

Mike Laursen|4.22.09 @ 12:47PM|#

Would someone please explain to me, a dedicated libertarian (Propertarian, if you will), why intellectual property is not personal property?

I'm a libertarian whose undecided about whether and to what degree ideas should be considered property. I have two problems with the scenario you outlined: (1) All my real-life experience with big business tells me that you need not worry about them stealing your ideas; you and your ideas are invisible to them, and they are, in fact, vulnerable because of that; (2) If you're outlaying a bunch of money right at the start to expand your garage and hire assistants, you're business is probably already on a very shaky financial basis.

Mike Laursen|4.22.09 @ 12:49PM|#

For more about why it's really all about you and how you're running your business, and why you need to worry more about your financial management than competitors, check out the book, "The Incredible Secret Money Machine":
http://www.amazon.com/exec/obidos/ASIN/1882193652/reasonmagazineA/

|4.22.09 @ 12:49PM|#

These two criteria are thoroughly established in economics as the means by which to differentiate private property and public goods (and other things) from an economic perspective

ok, but that's still an economic argument.

I make the economic case for IP from an incentives point of view. I make the moral case from the claim that there is a harm to the inventor if he expends labor on a useful thing, and cannot profit from it.

You've made the economic argument that IP is a "public good". and therefore economically, that there is no societal harm from not protecting it. I invite you to defend it from a moral point of view.

|4.22.09 @ 12:50PM|#

I oppose IP because of the implications of enforcing a property right that intrudes on the individual's right to self without restraining a harm. The ideas exploited (being non-rivalrous and non-excludable) aren't being forcefully extracted from an innovator's head in the same way a thief expropriates real property.

I don't care if we have less innovation as a result, because, without a right to self, innovation doesn't matter.

robc|4.22.09 @ 12:51PM|#

domo,

From a moral point of view, everyone has the right to use their ideas to produce. Patents prevent this.

Even if MY ideas came from looking at your stuff, it is still MY FUCKING IDEA!!!

Even more so in the case of independent invention.

|4.22.09 @ 12:52PM|#

Where did I disagree, read the fucking thread? I am arguing it isnt a part of natural law but might be a reasonable exception and that Im generally okay with it for short terms.

Easy there, I'm restating and hopefully clarifying my position - which may or may not directly address a claim you made. I don't think your shot about GM was apropos.

JB|4.22.09 @ 12:52PM|#

Pro Liberate, off-topic, but who owns land in the US? If you pay tax on the land, you are merely renting it from the government.

|4.22.09 @ 12:52PM|#

This is a pretty speculative claim. I think it's obvious that ripping a cd, and handing out actual 100% identical copies on the internet is a damn sight different than humming to yourself.

If you are good enough at humming after hearing one performance that it's as good as a legit copy, that's less sales to the copyright holder. How are they different for you?

robc|4.22.09 @ 12:54PM|#

I don't think your shot about GM was apropos.

You are the one that said you should be guaranteed a profit because of an idea. :)

Sounds like GM to me.

Yeah, yeah, I know what you meant.

robc|4.22.09 @ 12:56PM|#

JB,

The mafia extracting protection money from me doesnt mean they own my property. Well, in a de facto way, maybe it does, but not in a natural law kind of way.

|4.22.09 @ 12:58PM|#

JB,

Agreed. The whole basis for tax on unproductive property is beyond me. You sit there in your house, doing nothing but living, and the government can tax you to the point that you can't afford to live there anymore. Ask senior citizens about that.

|4.22.09 @ 12:59PM|#

From a moral point of view, everyone has the right to use their ideas to produce. Patents prevent this.

Even if MY ideas came from looking at your stuff, it is still MY FUCKING IDEA!!!

This is where we fundamentally disagree. Reading Shakespeare doesn't not make Romeo and Juliet my idea. The fact that it exists in your head results from the fact that I thought it first. In the case where two people independantly invent the same thing/idea - the problem is thornier. As a question of law credit goes to the first filer. This incentivizes people to get on their horse and invent stuff. I don't have a problem with the effect, but I can see where the independant 2nd inventor kind of gets screwed. As a practical matter, however, I don't see how you can get around it, as you would never know if the 2nd guy didn't really rip it off.

Even more so in the case of independent invention.

|4.22.09 @ 1:02PM|#

Even more so in the case of independent invention.

above

robc|4.22.09 @ 1:05PM|#

domo,

I would point out the R&J is public domain so you can do with it as you like. People may laugh it you for claiming it as your own, but if your version is better than others (nicer font or something), people will buy yours instead of any other versions.

Which movie adaptation was it that had Screenplay by Some Guy and William Shakespeare?

People mock it but it was technically true (I think I might have given WS top billing though).

BTW, Im pretty sure Shakespeare wrote in a time without copyright and he somehow turned out a load of quality work (and a bunch of crap). Huh? What was his incentive. Anyone want to go out on a limb and claim the works published under the copyright regime are better than his? What he have written more with copyright or retired and collected royalties from his early works?

Jesse Walker|4.22.09 @ 1:12PM|#

I would point out the R&J is public domain so you can do with it as you like.

...which is exactly what Shakespeare did when he lifted the plot from Arthur Brooke, William Painter, and the earlier storytellers that they in turn were borrowing from.

Which movie adaptation was it that had Screenplay by Some Guy and William Shakespeare?

You're probably thinking of the 1929 Taming of the Shrew, which allegedly contained this credit: "Screenplay by William Shakespeare, with additional dialogue by Sam Taylor."

High Every Body|4.22.09 @ 1:13PM|#

Which movie adaptation was it that had Screenplay by Some Guy and William Shakespeare?

I think that was in a Gilligan's Island episode. But I may misremember.

|4.22.09 @ 1:14PM|#

robc - I mention the ubsurd shakespeare argument only to counter the specific point that an idea is yours simply because it's in your head. Not to bolster any of my other points. I concede that IP is not "like other property" - and advocate a limited period of legal monopoly, which on it's face should indicate that I don't think using other peoples ideas is like taking gold from their mattress - which would be no better after 17 years than it was before.

and FWIW, the idea of public domain only exists because some things are not in public domain. I'm not for 175 year compywrite terms, and would generally be in favor of more limitations - but I do think there should be protections to incentivize innovation.

Art-P.O.G.|4.22.09 @ 1:23PM|#

Even if MY ideas came from looking at your stuff, it is still MY FUCKING IDEA!!!

Awful solipsistic, don't you think?

If you are good enough at humming after hearing one performance that it's as good as a legit copy, that's less sales to the copyright holder. How are they different for you?

Sophistry. Pure sophistry.

robc|4.22.09 @ 1:26PM|#

domo,

As Jesse pointed out, by your definition R&J wasnt a William Shakespeare idea, it was a Brooke/Painter/et al idea. Thieving bastard. He didnt even footnote them.

I question the incentivize idea though. Lack of copyright didnt hurt WS any. He churned out tons of work, probably because he didnt have copyright. Copyright may make you rich, but it might also deincentivize new works.

robc|4.22.09 @ 1:26PM|#

You're probably thinking of the 1929 Taming of the Shrew, which allegedly contained this credit: "Screenplay by William Shakespeare, with additional dialogue by Sam Taylor."

Yep, that was it. At least he did give WS top billing, so I got that wrong.

robc|4.22.09 @ 1:28PM|#

Awful solipsistic, don't you think?

Heh. Can you prove otherwise?

Not really though, Im not denying the existence of the original idea, just claiming the thought in my head is my own. Even if the thought in my head was inspired by the other idea.

|4.22.09 @ 1:29PM|#

robc,

You are argueing by anecdote. If you believe in the price system of incentives, you have to believe that protecting the inventors ability to capitalize incentivizes them.

Copyright may make you rich, but it might also deincentivize new works.

I believe you have to point out the declining marginal utility of wealth to make that point properly, but I'll concede you 1/4 of a point anyway... ;)

robc|4.22.09 @ 1:29PM|#

domo is trying to claim my intellect as HIS property because my intellect thought of an idea very similar to his. Or identical, since I was taking apart his widget when I had the idea.

robc|4.22.09 @ 1:30PM|#

you have to point out the declining marginal utility of wealth to make that point properly

1. I did well above
2. I think it can safely be assumed

robc|4.22.09 @ 1:31PM|#

you have to believe that protecting the inventors ability to capitalize incentivizes them.

I do. It also deincentivizes derivative works.

Which is the greater factor?

|4.22.09 @ 1:37PM|#

domo is trying to claim my intellect as HIS property because my intellect thought of an idea very similar to his. Or identical, since I was taking apart his widget when I had the idea.

I'm claiming my intellect as my property, and I'm claiming you wouldn't have said intellect, if you didn't see me doing it first. Many ideas seem obvious in retorspect - that's a well known logical fallacy that shouldn't be used to diminish the difficulty in imagining unique useful goods.

I'm claiming it makes sense to legally require you to pay me to use those ideas for a period of time. Or come up with something even better if you object! How is that for an incentive to create? Don't like monopoly pricing? can't wait 17 years? Invent something better.

|4.22.09 @ 1:38PM|#

1. I did well above
2. I think it can safely be assumed

fine, I'll give you the whole point...

robc|4.22.09 @ 1:42PM|#

I'm claiming it makes sense to legally require you to pay me to use those ideas for a period of time

Its a good thing that science doesnt work that way. Not sure that engineering shouldnt work like science does.

Or come up with something even better if you object!

But I cant. If I expand on your work, for example, you will still sue me. Even though I have improved your product (by, you know, painting it yellow, which is clearly a superior color for a widget, you green widget selling moran).

robc|4.22.09 @ 1:45PM|#

BTW, I find it interesting that recipes are (generally) not patentable. A published recipe is copyrighted, but any restaurant can make it and sell it.

I dont know about you, but I havent seen this causing a lack of restaurants to open it.

I find it good that I dont have to pay Brown Hotel prices to enjoy a Hot Brown.

|4.22.09 @ 1:52PM|#

But I cant. If I expand on your work, for example, you will still sue me. Even though I have improved your product (by, you know, painting it yellow, which is clearly a superior color for a widget, you green widget selling moran).

Damn right! come up with something not derived from my idea! Be creative!

I support fair use. And copywrite. not contradictory at all, especially since I recognize the limits of treating IP like property.

I think Science does work that way to the extent that it is useful. I also think the definition of engineering is "useful science".

robc|4.22.09 @ 1:59PM|#

domo,

Wild ass example.

You invent a widget, which is awesome but has an instability problem. I take your widget apart, figure out how to manufacture it, but with a new stability control system.

I have improved your product. I have been creative. Yet you still sue me for patent violation (and rightly so under the law).

Well, fuck you. That is the way technology works. The whole standing on the shoulders of giants and all that. Yes, you might be a giant, but I made the product people want.

Feel free to replace stability control with color or price. :)

robc|4.22.09 @ 2:00PM|#

Like I said above, patents create incentives, but they decrease the incentive for derivative works.

Which factor is larger?

|4.22.09 @ 2:04PM|#

You invent a widget, which is awesome but has an instability problem. I take your widget apart, figure out how to manufacture it, but with a new stability control system.

Patent your stability control system, which the law allows for you to do, then send over your representative to negotiate a joint venture. If we end up sueing each other to our mutual detriment, rather than cooperating - it's our own stupid faults. It doesn't mean I am harming you - just that we need each other.

robc|4.22.09 @ 2:25PM|#

domo,

I dont need you. I know how your widget works. :)

|4.22.09 @ 2:33PM|#

I think you had him at widget.

|4.22.09 @ 2:36PM|#

Morality rests on the rule that the individual has self-ownership. An idea, contained in the mind of an individual, is a part of that individual and is self-owned.

IP begins by accepting this as a fundamental moral principle: one owns one's ideas. IP then procedes to violate the principle by saying one also owns others' ideas, if those ideas are derived from the first person's ideas as specified in legal documents. Alternatively, one does not own one's ideas if a legal document somewhere awards the IP right of the idea to someone else. While this follows, at the first step it violates the principle that one owns oneself, ideas and all.

Thus IP proposes a moral world where the individual has self-ownership, with exceptions besides that of harm. A person isn't harmed by copyright or patent infringment. The infringers are at base exchanging in property to which they have full title incorporating ideas which, due to the principle of self-ownership, are their own.

|4.22.09 @ 2:44PM|#

I dont need you. I know how your widget works. :)

I presume that you would then be fine with me ripping off your improvement, marketing my own invention with your improvement, and conducting a smear marketing campaign decrying your version as a cheap imposter widget (and ugly yellow, to boot!)

The result of this is you and I would enter into a price war, which quickly ends at the widget being priced at marginal cost, and neither of us recovering anything for the fixed costs put into the development/improvement of the widget. Great incentive to try again with Widget 2.0.

robc|4.22.09 @ 2:47PM|#

domo,

Im fine with it. Marginal cost benefits the consumer the most.

Everyone wins!!!! (Except us)

Obviously we could AGREE to work together (as long as you agree that the REAL work was in the stability control system, so the majority of the profit would come my way :) ), but wouldnt have any way, in that circumstance, from preventing guy 3 from doing the same thing to both of us. And someone would.

robc|4.22.09 @ 2:48PM|#

Great incentive to try again with Widget 2.0.

Shakespeare kept writing.

|4.22.09 @ 2:50PM|#

some fed,

In summary, that is your belief. I disagree that there is no harm. I also disagree that idea's are purely one's own as a result of being in their brains. If you invite me to your house, and I swallow a piece of jewelry on the table, it's not mine because it's in my stomache. I have deprived you of value, just as certainly as the copywrite violator deprives the writer of value.

|4.22.09 @ 2:52PM|#

robc at 2:47 and 2:48,

These don't seem consistent on the face of things. Please explain how if you think "Everyone wins!!!! (Except us)" we will be incentivized to try again, as you suggest immediately thereafter. asking honestly...

|4.22.09 @ 3:00PM|#

Oh, I was just responding to the invitation for a moral point of view. Naturally, it is my belief, because morality isn't a fact enforced by impersonal forces (something to which economics at least has a semblance of a claim). I already gave the economic point of view, based on an actualizable definition of public goods and private property, which I gather you accepted.

I didn't intially give a moral point of view, because I didn't expect you--or anyone else--to agree with my moral point of view. I wonder sometimes if anyone agrees on moral points of view. Were you expecting different when you made the invitation?

----------------
I make the economic case for IP from an incentives point of view. I make the moral case from the claim that there is a harm to the inventor if he expends labor on a useful thing, and cannot profit from it.

You've made the economic argument that IP is a "public good". and therefore economically, that there is no societal harm from not protecting it. I invite you to defend it from a moral point of view.

robc|4.22.09 @ 3:06PM|#

domo,

You make a little bit of money (but not bank) off widget 1.0. Thus, the incentive to make many products to collect many, many little bits of money.

Ditto for WS. He had to push out a ton of plays. There was no hit that allowed him to retire to the Caribbean and put out a sequel every 10 years.

|4.22.09 @ 3:08PM|#

some fed. I don't agree with the economic point of view - but I wanted to hear the moral claim to round out the discussion. It doesn't really matter if I agree, right? I just like the debate.

|4.22.09 @ 3:11PM|#

robc,

I could make a similar argument for high marginal tax rates on the very rich - it incentivizes them to make so much more money to get their little piece of the pie - and it benefits everyone but him!

|4.22.09 @ 3:29PM|#

Certainly, it doesn't matter if any of us agrees. I just like the thrill--even when I change my own mind on something.

Regarding incentives for innovation, I don't see innovation by itself as mattering in terms of material progress. Innovation only matters when it is realized in capital. Of course, not all capital accrual is innovation--if the current technology available could simply be made available to more people, that would be progress without an ounce of innovation.

By creating a legal system that incentivizes innovation through new property rights (even temporary ones), you are picking winners in a transaction. You're putting your thumb on a scale between the inventor and the balance of interests (all of whom are essential to the final product, which is what matters) that make an invention a reality.

IP doesn't provide more innovation in society, it just transfers rewards from one part of the process to another.

Mike Laursen|4.22.09 @ 3:47PM|#

A published recipe is copyrighted, but any restaurant can make it and sell it.

Exactly! The same for clothing fashions.

There're so many factors affecting the success of a company selling widget X (price, quality and customer relationships, management, availability of skilled labor, blah, blah, blah), that I'm not sure patents have ever really been a major factor in any inventor starting a successful company.

I may be prejudiced by working in the software industry, where patents are often questionable and trivial, and have become pieces used in bizarre games played by corporate lawyers that work in the unintended consequences territory far from the original conception of patents.

Mike Laursen|4.22.09 @ 3:49PM|#

Going back to the "Incredible Secret Money Machine", the author's excellent recommendation for the little guy businessman is to skip the arduous, corporate-dominated patent process and, instead, try to get articles about your new idea published in trade journals so (a) you become associated with the idea; (b) you can prove that you came up with the idea.

robc|4.22.09 @ 3:50PM|#

I could make a similar argument for high marginal tax rates on the very rich - it incentivizes them to make so much more money to get their little piece of the pie - and it benefits everyone but him!

But unlike non-IP, there is no moral basis. Taxation IS theft.

robc|4.22.09 @ 3:51PM|#

My point being, Im not making a utilitarian argument, I am just bringing up the utilitarianism to back up the moral argument.

|4.22.09 @ 4:02PM|#

You're putting your thumb on a scale between the inventor and the balance of interests

I assume by "balance of interests" you mean the general improvement of living standards that accrue as a result. The natural state of affairs is that the "good" accrues primarily to those people, not the inventors. IP seeks to offer limited protection for what I consider to be a property like interest in the fruits of someones labor which are otherwise all to easy to deprive him of.

|4.22.09 @ 4:05PM|#

No, by "balance of interests" I mean all of the other economic actors (factory operators, advertisers, tax accountants, etc.) that bring an idea to the marketplace where it actually can be bought--all of the other actors in the production process who are just as necessary to the outcome as the inventor.

|4.22.09 @ 4:13PM|#

robc,

as such, I think it's fair conclude the utilitarian claim reveals a significant problem with the moral claim. Utilitarian Libertarianism says, "the greater good is served by the invisible hand, so be it" Moral Libertarianism says "there are natural rights here (or not) that must be respected by a legitimate goverment - outcome be damned"

For me, the attraction of Libertarianism is that there is usually very little daylight between the policies that people from either point of view would conclude are best. When the two seem to be in conflict, I usually probe for bad assumptions or poor logic. For IP, I see a legitimate conflict, which is why I support splitting the baby.

|4.22.09 @ 4:15PM|#

I mean all of the other economic actors (factory operators, advertisers, tax accountants, etc.)

I'm not sure those people are harmed by patent protection. I haven't thought about it deeply, but I don't see on the face why one factory extracting monopoly profits is worse for them than several factories in a race to the bottom. From a utilitarian POV...

robc|4.22.09 @ 4:59PM|#

utilitarian claim reveals a significant problem with the moral claim

Utilitarian claims can NEVER reveal a problem with moral claims. Moral trumps all. If it doesnt "work", so be it.

robc|4.22.09 @ 5:00PM|#

outcome be damned

Nevermind, I read further, I see you agree with me. :)

robc|4.22.09 @ 5:02PM|#

domo,

I agree that most of the time utilitarian and moral libtnism reach the same point. If they disagree, I dont split the baby, moral always wins out.

I put it this way (in many arguments with joe):

The ends never justify the means. Choose moral means and accept what ends result. However, if there are multiple moral means, there is nothing wrong with choosing the one with the ends you prefer.

robc|4.22.09 @ 5:04PM|#

As an aside, is there any evidence in the historical record that lack of patents/copyrights leads to less innovation/publishing?

The renaissance had neither and a lot of stuff went on.

The founding fathers, in the age of reason, thought it necessary though. Why? What evidence did they have? Or was it just kick ass early lobbying?

|4.22.09 @ 5:06PM|#

Copyright came into being long before the Constitution was drafted. Also, let's not forget that art and other works got most of their funding from the government or, at best, the ruling aristocracy. Is that the model we want to return to?

robc|4.22.09 @ 5:14PM|#

Pro Lib,

I have no problem with the richers* funding art. Let Gates and Buffett fund it. Government no, titans of capitalism, yes.

I figure they are the modern equivalent of the ruling aristocracy.

*worst term ever

Robert|4.22.09 @ 5:17PM|#

Bell's patent was limited to telephones "substantially as set forth [in the patent document]." This means that his patent was not "monopolistic." To compete, one merely had to come up with a design that was substantially different.

Indeed, Gray did get some telephone patents to issue, and so did Edison (who was widely known to be working on a telephone at the same time), and Bell had some more issue too. Gray and Edison went into the phone business together alongside Bell, and eventually they all merged.

But as long as Meucci gets mention, why are we snubbing Johann P. Reis?

Drug patents have a "look we discovered a new use, extend our patent" loophole

The new use doesn't extend their old patent. Rather, what they get is a new patent that covers just the new method of use.

|4.22.09 @ 5:20PM|#

robc,

But with copyright, the authors don't need patrons. They can just sell to the masses and get rich on their own.

engineer|4.22.09 @ 5:22PM|#

So, wait, since when are libertarians utterly opposed to IP? It's one thing to state that IP laws need to be reformed, it's another thing to claim that they should be abolished entirely.

engineer|4.22.09 @ 5:23PM|#

Robert,
"The new use doesn't extend their old patent. Rather, what they get is a new patent that covers just the new method of use."\

You're interrupting the two-minute hate.

|4.22.09 @ 5:24PM|#

engineer,

Hell if I know. I've never subscribed to that theory. I think IP--albeit a substantially weaker version than we have today--is a good thing.

engineer|4.22.09 @ 5:25PM|#

"The renaissance had neither and a lot of stuff went on."

They also had wealthy nobles and churchmen with overlarge egos who would pay a lot for art simply to say "look what I paid for and got dedicated to me!"

engineer|4.22.09 @ 5:29PM|#

The way I see it, some form of IP is a necessary compromise between the rights of individuals to that which they produce (their own ideas) on one hand and the recognition that these ideas are often influenced by common information, as well as the practical concerns of the positive externalities involved in R&D versus the problem of determining who came up with an idea, and whether others would have come up with something similar in the absence of that individual's action.

|4.22.09 @ 5:38PM|#

Morality rests on the rule that the individual has self-ownership. An idea, contained in the mind of an individual, is a part of that individual and is self-owned.

I think this whole line is fallacious. IP doesn't prevent you from thinking about anything, really. It may, at most, prevent you from having access to someone else's ideas. Buy that doesn't violate your self-ownership.

IP, generally, specifically protects your original ideas, and does not impede whatsoever your knowing or thinking about other people's ideas that you have accessed consistent with IP law.

So, I need some more explanation of how my refusal to give you free access to my ideas violates your self-ownership? To my mind, some fed has laid the groundwork for a good argument that IP is necessary for self-ownership, as it is necessary for me to actually convert my ownership of my ideas into a defensible property right.

|4.22.09 @ 5:40PM|#

The renaissance had neither and a lot of stuff went on

The renaissance was not notable for its advances in widely available technological improvements, either. Arts and letters, sure. Locomotives and Ipods? Not so much.

Mike Laursen|4.22.09 @ 6:09PM|#

I'm not sure those people are harmed by patent protection. I haven't thought about it deeply, but I don't see on the face why one factory extracting monopoly profits is worse for them than several factories in a race to the bottom.

In theory, they could be harmed because an inventor who isn't very good at business or is inexperienced at actually manufacturing a widget wastes their time and ties up their valuable resources.

In real life, though, they experienced manufacturers would find a way to take over the idea, buying out the inventor or unleashing lawyers on him or ignoring his patent or changing the widget they make enough that it isn't covered by the patent. I get the moral argument for patents -- I'm just not sure of the empirical evidence that they've really been useful.

Mike Laursen|4.22.09 @ 6:14PM|#

Locomotives and Ipods? Not so much.

The Renaissance occurred before the Industrial Age, so I don't think it's valid to conclude that it was lack of intellectual property rights that kept them from creating jet airliners and hoola hoops.

|4.22.09 @ 7:07PM|#

I don't mean to say that IP restricts access to knowledge of innovation. I understand that its purpose is in part to do the exact opposite by forcing innovations to be explained in a transparent manner in order to obtain the patent, thus--at some point in the future--making the idea fully available for public use. The monopolistic alternative to government-granted patent is privately enforced trade secret.

To my mind, some fed has laid the groundwork for a good argument that IP is necessary for self-ownership, as it is necessary for me to actually convert my ownership of my ideas into a defensible property right.

I admit that self-ownership plays an important role in one moral justification for IP. To me, it's the most compelling argument for it. That's why I tried to center my counter-argument on the concept, as opposed to the need for rewarding merit or progress or the common good (arguments I find not compelling).

But I can't tolerate the principle behind patent/copyright that, when an original idea is transmitted into the mind of a non-rights-holder, the non-rights-holder is restricted in acting upon that idea, because the idea in that person's mind belongs to the rights-holder. The notion either posits a strange segmentation of a person's consciousness into self-owned and not-self-owned ideas or proposes that a person's acting causes harm merely by the incorporation of ideas inseparable from the self.

|4.22.09 @ 7:59PM|#

robc wrote: And you are wrong. The fruit of your mental labor is the idea. I am not taking anything from you, you can still make it and sell it.

domoarrigato replied: I cannot, if you are doing the same thing for zero mental effort. You have certainly taken the fruits of my labor - which is the right to profit from my creation, not the idea itself.

Later, domo wrote: If you invite me to your house, and I swallow a piece of jewelry on the table, it's not mine because it's in my stomache. I have deprived you of value, just as certainly as the copywrite violator deprives the writer of value.

There's a fine distinction that you're apparently missing here, domo. In your jewelry example, you are excluding the owner of the jewelry from access to it. In the case of, say, an MP3 of a given song, someone possessing that MP3 does not exclude anyone else from accessing it. You attempt to finesse the argument by recasting both as a "deprivation of value", but those deprivations are not at all the same.

In the case of IP, you appear to be arguing from the perspective of the profit that could theoretically be made in selling a good to someone. But "some fed" made a valuable observation that you seem to have glossed over:

some fed wrote: What the musician is losing is market share, not the idea. Do we have a natural right to market share?

I contend that your argument does come down to rivalry and excludability, but perhaps not in the way you might think. You seem to want to use the club of IP law as a way to exclude anyone else from profiting from any derivation of an idea "of yours*", rather than seeking to keep yourself from being excluded from using (or profiting from) an idea you have.

This becomes a question of taking something that is (by nature) non-excludable, like an idea, and shoehorn it into a framework whereby you might assert that any reduction from the maximum possible profit that you might realize from the marketing of an idea and all possible derivatives is somehow "depriving you of value".

But that simply begs the question: Was all of the possible value that might be realized along that chain "yours" to begin with? With non-excludable goods, there are massive externalities which are simply not present with physical, excludable goods. Where in your calculus is the incremental value that is experienced by those who have wider access to the work, and the ability to freely derive new work from it?

What you're asking for is not just the ability to compete, but the ability to exclude others from competing if you can show a link of derivation from your* work. It's not that you want a chance to profit, it's that you want to guarantee that only you can profit, and the rest of the interests in the transaction stream be damned.

If you want excludability, work in the realm of excludability. Perform your work live. Go on tour. Make it an individual, unique experience. THAT is excludable, and obviously worthy of protection as a kind of property.

"some fed"'s 3:29 post is highly apropos.

It's useful to encourage innovation and creation... but that utility of that encouragement is not infinite, nor should it come at all imaginable costs. There are points beyond which it is no longer about "the ability to create", and where it becomes about extracting every possible ounce of profit.

I'll ask some fed's question again: Do you think you have a natural right to market share?

* = I contend that there are exceedingly few works which are exclusively "yours", which are not in turn derived from and leveraged off of the work of others.

|4.22.09 @ 11:03PM|#

some decent points made above - will address tomorrow when I'm less drunk...

Suki|4.23.09 @ 6:09AM|#

good morning domo!

IP violations seem more like trespassing to me

|4.23.09 @ 8:33AM|#

To my mind, some fed has laid the groundwork for a good argument that IP is necessary for self-ownership, as it is necessary for me to actually convert my ownership of my ideas into a defensible property right.

Firstly, thanks to RC Dean, who has already stated one of my points better than I could have.

But I can't tolerate the principle behind patent/copyright that, when an original idea is transmitted into the mind of a non-rights-holder, the non-rights-holder is restricted in acting upon that idea, because the idea in that person's mind belongs to the rights-holder.

The idea doesn't belong to the rights-holder. The right to commercialize or distribute it for free does. Merely thinking about a new technology doesn't impose any cost on the inventor - competeing with them in the marketplace does. Which brings me to:

What the musician is losing is market share, not the idea. Do we have a natural right to market share?

For some fed and Barry Kearns:
Sure, why not? "Market share" in this case is no more than legally enforceable excludeability to monetize an idea which is not "naturally excludable".

A new useful idea, creates value where none existed in a very real economic sense. It may be derived from previous works, but its unique qualities create a net excess of wealth for society as a whole. We are argueing about who has a right to that wealth. For example an industrial process that uses 30% less petroleum to make car tires. Those unused barrels of oil can now be sold for other purposes. And so:

This becomes a question of taking something that is (by nature) non-excludable, like an idea, and shoehorn it into a framework whereby you might assert that any reduction from the maximum possible profit that you might realize from the marketing of an idea and all possible derivatives is somehow "depriving you of value".

Absent my effort, society would have no value from this idea. If I till a field and produce more grain than I can eat, there is also a benefit to society. Both are thre fruits of my labor. If others are allowed to freely commercialize my idea (they are allowed to think about it! hopefully a lot!) I will realize almost or exactly none of this benefit. Not so much as wages for my time.

Was all of the possible value that might be realized along that chain "yours" to begin with? With non-excludable goods, there are massive externalities which are simply not present with physical, excludable goods.

It is mine in the sense that it would not exist absent my efforts. This is ultimately a utilitarian collectivist argument - that total societal good is increased if I am not allowed to monopolize my idea, and my "selfishness and greed" has caused negetive externalities for the rest of society. There is a pretty strong sense of entitlement behind this assertion, frankly. Why does "society" feel entitled to the benefit of my creativity? At any rate, I am not claiming:

It's not that you want a chance to profit, it's that you want to guarantee that only you can profit

Societal benefits will accrue anyway - and other firms and suppliers will also profit. I will have to entice manufacturing through licensure, or risk missing my limited window. The excess profits which accrue will go to many people who manufacture, sell, and of course, use my product, as well as society as a whole which will benefit from incrementally lower aggregate pricing through the natural disinflation that results from innovation (all else being held equal) I am seeking to guarantee that I, as the creator, cannot be simply cut out of the process.

If you want excludability, work in the realm of excludability. Perform your work live. Go on tour. Make it an individual, unique experience. THAT is excludable, and obviously worthy of protection as a kind of property.

But the value obtained from non-excludable goods are much greater by virtue of being trivial to reproduce. The value of my labor is an embarassment of riches - there is so much good that you assert I have no right to have it all - maybe not even a significant piece of it. It flows like a new river in the desert - It's so big and great that I can't easily control it - and therefore somehow it is different from a smaller effort that I could more easily exclude others from. You seem to be useing the natural bounty of my idea against me - because I can't exclude others from it - they must have a right to take it freely.

|4.23.09 @ 8:33AM|#

Oh and:

Good morning, Suki! you are up early...

|4.23.09 @ 1:40PM|#

domoarrigato wrote: A new useful idea, creates value where none existed in a very real economic sense. It may be derived from previous works, but its unique qualities create a net excess of wealth for society as a whole. We are argueing about who has a right to that wealth.

I would, in a great many respects, agree with this notion. The point that I think you're failing to take into account is that when you try to restrict others from creating derivative works from your own works, you stifle their ability to create new value from which society can also benefit. As has been pointed out earlier, you don't seem to account for the possibility that the benefits from other derivative works to society might exceed the excluded value of your profits, and the incentivization that the ability to generate such profit provides.

If you kill 50 even more beneficial derivative applications in the process of guaranteeing your profits, does society benefit more or less? Is there more innovation under such a regime, or less?

What has been largely sacrificed on the altar of modern IP law is precisely the ability for many to tinker and innovate, and leverage the new value that has been created to make even better values. I'm not at all trying to say that you have no right to attempt to profit off of something new that you've created... far from it. If I've been creating that impression, I've been unclear.

What I'm trying to say is that, once you begin the profit-making exercise, and put those ideas out into the real world, others should be able to freely innovate off of those ideas, to create new values that would never be created if they are throttled by strict adherence to current implementations of modern IP law.

Consider the case of "mashups", particularly the art of DJ Earworm. Many of the new works created by DJ Earworm are realistically only possible by largely ignoring the current IP regime... some of the works contain samples from 25 or more other songs, and trying to manage IP law across that many rights-holders is simply impractical. If that is the threshold that is set, and rigorously enforced, art such as this will simply not be created, and society as a whole loses out.

There is a pernicious idea that seems prevalent today, which offers up the notion that someone can sell something, and then still control it. Artists want the benefits of marginal zero-cost multiplication and distribution of their works via non-excludable implementations, then want to exclude these inherently non-excludable things via force of law. To make matters worse, many want to control how these non-excludable things are used after they are sold!

This is why we end up with abominations like e-book publishers trying to put restrictions on their works stating that they cannot be read aloud(!), on the argument that they should have the ability to control the uses of "their work".

I would call attention to the "doctrine of first sale". If I sell a tangible, excludable real-world item to someone else, I generally forfeit my right to say what's done with that item, including the ability to resell it.
If someone buys my widget, they can use it however they see fit... for its "proper" purpose, as a doorstop, set it on fire, cover it in offal, doesn't matter. It's THEIRS, not mine, even though my idea lead to it. I extracted value from it, so I should forfeit my rights to say what is done with it.

Once we get into the world of ephemeral objects, things like bit patterns become a bit thornier. People are trying to gain the advantages of the non-excludability (zero reproduction cost, near-zero distribution costs, etc) to make a profit, while complaining that these same features carry the obvious downsides of diluting the ability to make additional sales. The current "solution" is to try to use the law to twist the natural benefits of these types of things away from society, and to the benefit of the "creator".

This goes beyond digital works, of course. This kind of idea that someone should be able to exclude others from deriving benefit from something you use to make your livelihood (absent compensation to you) can lead to all sorts of absurdities. A supermodel who makes a living off of letting photographers take pictures and sell them might make the argument that you are impeding her ability to profit if you snap a picture of her while she walks down a public street. Heck, taken to its illogical conclusion, she might even argue that even you looking at her reduces her potential income if you don't agree to pay her for the privilege.

Just as she sacrifices that ability to profit from her appearance by failing to keep it non-excludable (i.e. not going outdoors where anyone can see her free of charge), musical artists who want the benefit of widespread distribution of their works via things like radio, and the benefits of selling zero-incremental-cost digital copies of their work should recognize that this business model should logically sacrifice their ability to ensure that no one else can realize benefits from their work without paying for it.

Will someone offer that it's only for a "limited time" that artists get to gain such exclusivity? If that were true in a meaningful and practical sense, I might agree. But the abuses of IP law make it obvious that this is not the case. When someone cannot legally sing "Happy Birthday" to their child without paying a fee (or have it sung in a restaurant to them), the law is broken.

As technology has advanced, these time windows should have been getting radically SHORTER, not longer. Some of DJ Earworm's work, for instance, gains much of its impact precisely because it leverages what's making up the current popular-music set that people have running through their heads. Waiting for copyright expiration to make mashups would be as pointless as offering "news-and-commentary" analysis of "current events" only after 70 years had expired.

Stop that ability, and there is some art of this kind that is lost. Derivative works have definite value to society, especially when they are ephemeral and thus non-excludable. I contend that we need to ask ourselves if our current laws strike the proper balance between encouraging people to innovate by giving them the legal means to stifle others' abilities to create derivative works, and encouraging people to innovate by making it EASY to do so. I think that the doctrine of first sale and the ethical lessons it embodies needs a more prominent place in the IP law regime we choose to have.

It's not like there aren't other business models or other means of encouraging and rewarding innovation than the current IP regime, after all.

The current regime makes much of the art of DJ Earworm illegal for all practical purposes. Via monstrosities like the DMCA, we also have the notion that simple computer code that fits on a T-shirt is also illegal, and likewise much of the progress that arises from reverse engineering. We have people paying for bits, and then they are criminalized if they use those bits in an unapproved fashion. This is dangerously close to thoughtcrimes, and in the end, it's for only one thing, really: the protection of a particular set of business models.

I contend that we can do better. We can find ways to reward innovation and artists, and make the total amount of innovation rise, without having to make certain code and art illegal. We can make it possible for more people to make a good living innovating, and to greatly enhance the speed of "progress", without having to buy into the notion that the only way to encourage innovation is to give people the ability to maximize profit by excluding others from innovating in derivative ways. We can richly reward the creative and innovative individuals in our society without having to restrict others in the process.

We can do better, and we should.

|4.23.09 @ 4:25PM|#

The point that I think you're failing to take into account is that when you try to restrict others from creating derivative works from your own works, you stifle their ability to create new value from which society can also benefit.

Not at all, I support fair use, and think it ought to be looser. That doesn't invalidate the concept of IP. Derivative works that present unique value should be patentable or copyrightable in their own respect - to the extent that they are unique.

If someone buys my widget, they can use it however they see fit... for its "proper" purpose, as a doorstop, set it on fire, cover it in offal, doesn't matter. It's THEIRS, not mine, even though my idea lead to it. I extracted value from it, so I should forfeit my rights to say what is done with it.

I'm fine with this, and largely agree that this should be the default position. If, however, a creator wishes to impose more stingent requirements, and the end user agrees to them - public policy should not stand in the way of consenting parties. Contracts that are accepted as a result of choosing to purchase should be valid, as long as they are displayed prior to purchase.

Will someone offer that it's only for a "limited time" that artists get to gain such exclusivity? If that were true in a meaningful and practical sense, I might agree. But the abuses of IP law make it obvious that this is not the case.

Well, ok, the law IS broken. Giving indefinite copyright to Disney is a disgrace. That doesn't mean it's the concept of copyright that is broken.

I agree that the current regime is bad, just not that the concepts are invalid. I agree we should do better.

Suki|4.23.09 @ 8:20PM|#

Yes, domo, I am usually up early.

Sorry for not examining the FREAKING WORD WALLS that you boys posted, but all I am saying is that copyright infringement seems more like trespassing to me, without easement and that crap. Well, maybe a bit.

Easement would be sort of like fair use, quoting, not like the real world easement that lets strangers all over your property just because you did not patrol it and blast the trespassers like they deserve.

But, using somebody's land without their permission is similar to 'sharing' their works without permission.

So what if I did not feel like erecting a hotel on my land? Just because you did without my knowledge and some silly legal clock ran out still gives you no real right to do that. I wanted to leave it fallow and you messed it up and some judge citing old English law says it is okay. NO IT IS NOT OKAY IN 2009! Maybe in 1509 but not now.

Same deal with a book or song (IF I had song talent). It is NOT yours, it is mine. Just because you are not denying my use of my book does not mean you can pass it around without my permission.

This is ancient fucking shit. Yea, easements were some sort of encouragement to make ferro land get into use, but today that is not an issue.

That is all other than robc, go away you thieving little apologist prick.

Suki|4.23.09 @ 8:21PM|#

Sorry for making a word wall.

|4.27.09 @ 1:20PM|#

Suki said: Same deal with a book or song (IF I had song talent). It is NOT yours, it is mine. Just because you are not denying my use of my book does not mean you can pass it around without my permission.

Suki, that's precisely what the Doctrine of First Sale says I can do, and your permission is not needed or desired. If you sell me a copy of a book you wrote, the act of selling it ends your control over that copy of that work. It is no longer yours, it is now MINE. I can do whatever I want with it, including reselling it, loaning it over and over to friends or giving it away.

So I CAN pass it around without your permission. That's been the law of the land for over 100 years. As I mentioned before, we've been drifting towards this concept that artists should get to retain control over copies of their works after they have sold them, because it is somehow still "theirs". That's a pernicious idea, and it needs to be opposed.

If you dislike the concept, I'd recommend not selling books.