Abolish Copyrights and Patents? A Soho Forum Debate
Patent lawyer Stephan Kinsella debates law professor Richard Epstein
HD DownloadThe United States Constitution explicitly calls for copyright and patent laws to "promote the progress of science and useful arts" by "authors and inventors." But would getting rid of all intellectual property laws actually encourage more creativity and innovation by inventors, writers, and artists?
That was the topic of a November 15 Soho Forum debate held in New York City.
Stephan Kinsella, who's spent 28 years as a practicing patent law attorney, argued in favor of the proposition that "all patent and copyright law should be abolished."
He believes that government-created intellectual property laws empower patent and copyright trolls and powerful corporate interests while limiting the free flow of information, thus reducing the rate of innovation and creativity.
Richard Epstein, the Laurence A. Tisch professor of law at New York University School of Law, says that our current system isn't perfect but sees copyright and patents as a natural extension of private property rights and believes that it should be defended by libertarians accordingly.
The debate took place in front of a live audience and was moderated by Soho Forum director Gene Epstein.
Narrated by Nick Gillespie, edited by John Osterhoudt, produced by Caveat, photos by Brett Raney.
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I do a lot of early stage investing in the bio-health field. I can say with total confidence that abolishing patents would crater innovation in that field. Research would be left to governments, and we know how good they are at picking at winners and losers. Forget about universities. They won’t risk the huge dollars needed to get these products to market.
I can say with total confidence that abolishing patents would crater innovation in that field.
This is a bit like the false flag with respect to immigration. Where calls to reduce immigration or welfare spending are retorted with "You racist! You can't keep people out of the country!"
I've never seen anyone (haven't watched the debate) claim that we should abolish patent protection and leave medical regulatory burden untouched. Quite the opposite, much of the protection offered is the direct result of the height of the imposed burden.
I remain unconvinced of the totality of the cratering as well. With a near-term hard stop on patent protections, sure, but I don't think anyone's proposing the USPTO be dissolved by Jan. 1, 2022 (again, haven't watched the video). Tying back to the regulatory burden, you'd see much more trade secrets going on and an inherent softening of the regulatory burden as more trade secrets, as opposed to open patents, made their way through. I think the shift from patents to trade secrets would be less deleterious than you imagine.
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Sorry. Doesn’t work. One big problem with trade secrets is that once you lose secrecy, your protection is gone forever. Seen too many cases where the TS owner, through no fault of his own, loses all protection. For example, UC Berkeley stole the trade secrets of one guy I know, after signing an NDA, then hiding the theft until they ran out the statute of limitations. Most states, that wouldn’t have worked, because hiding the disclosure would have tolled the statute of limitations (called the discovery rule). But with this case, the CA Supreme Court abrogated that rule (for another branch of the government), and thought that what UC did, hiding 5he theft, was just fine.
If you are in the patent business, it is essentially standard practice to file a provisional patent application before disclosing an invention, regardless of having signed an NDA.
And, yes, utility patent applications, and esp issued patents, are absolutely key to getting funding. A friend (patent attorney) likely made his client millions a couple weeks ago by having filed, and gotten issued (or just published) patent applications. No one really wants to invest significant money in a company, absent security that a big company can’t come in and throw billions at the new product, forcing out the ones who invented it.
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Or we could switch to the Spooner plan, and allow the rights to remain with the inventors forever, and be inheritable by their families, instead of being seized by the public after an arbitrary number of years (17 or 99 or whatever).
I thought that was the Disney plan.
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It drives me absolutely bonkers that the author refuses to post the results of these debates.
Being an Oxford-style debate, audience voting on the resolution is taken both before and after the debate and the winner is whoever converted the most votes. In this debate, the votes were:
PrePostChange
Yes20.4%29.6%+9.3%
No44.4%55.6%+11.1%
Undecided35.2%14.8%-20.4%
So "No" won but by so little that it's basically a tie.
Huh... Apparently Reason's html widget doesn't recognize table commands. Apologies for the loss of formatting.
Or, the analysis could be, "Yes" gained over 45%, "No" gained 25%...so the "Yes" proposal gained more ground. (?)
But would getting rid of all intellectual property laws actually encourage more creativity and innovation by inventors, writers, and artists?
No, and Hollyweird is a firm testament to that.
So no discussion if they should be modified? Personally I think copyright should only extend through the life of the holder. Is 17 years for patents right I can't say.
Actually, patent term is 20 years from the priority application day. On average, that kinda worked out to 17 years from issue except that this change effectively eliminated submarine patents (where one applicant kept issuing patents for 40 years off of a pair of priority applications).
Cannot figure out why something patented, which usually costs a lot of money to research and develop, gets so much less protection time than a "creative" endeavor which costs dramatically less to come up with.
20 years is enough for everything before it enters the commons.
More song and dance about how YOUR creation is OURS..... Because STEALING your creation makes [WE] mobs powerful...
Oh; I mean criminals --- empowers criminals.
If you created it; it is yours - that is the very substance of property.
That said; The difference between monopolizing a creation and stealing it should be fine-tuned in the courts. Patient and Copyright infringement should require PROOF of theft. And creation rights in intellectual property should have 'LIMITS' as well stated in the US Constitution.
Kinsella's only real gripe is how the courts operate. That is a WHOLE other matter of itself. Crappy rulings isn't an excuse to throw away property rights.
"If you created it; it is yours - that is the very substance of property."
It's not yours if someone can convince a judge that what you created infringes on their patent. Even if your creation is better than the original, thereby serving to stifle competition and innovation while encouraging all manner of rent seeking patent trolls.
it should be fine-tuned in the courts -- as already stated.
Still; crappy court rulings is still no excuse to throw away property rights.
That's like trying to sell the idea that criminals are going to steal everything you own so why own anything at all. Awe; the communism sales pitch...
Patents stifle innovation and competition. They do this by giving monopolistic control over an idea to the patent holder at the expense of everyone else.
Yet; the Constitution doesn't establish 'monopolistic control' it states an 'exclusive right to their respective writings and discoveries'... NOT anyone else's but their OWN.....
That is where the courts and even perhaps some laws have manipulated the meaning monopolistically. Again; proof of THEFT needs to be established to sue on patent or copyright infringement bases.
You don't need a constitution to give you right to your own ideas. You need it to restrain others from availing themselves of these ideas, even if arrived at independently.
Nothing in that clause even infers someone else's exclusive right to ideas "arrived at independently"...... The politicization is what went wrong; NOT the Constitution... As I've said many times now; THEFT is the requirement for infringement.
And it expresses that rightfully so; How is it 'fair' to spend years writing education only to have Mr. Flake Scam Artist photocopy it, stamp his name on it and call it his work???? That is clear as day 'theft' even if it's not a physical element based product.
" Mr. Flake Scam Artist photocopy it, stamp his name on it and call it his work???? "
Copyright is what you need. Patents are unnecessary.
So the photocopier switches a word of that educational content and now it's not stealing? The educational content (design) is more of the sum of the creation than just word order on paper.
Though you bring up another most important part of a viable solution and that is no all-encompassing vague subject coverage under patient as well as established proof of theft.
"So the photocopier switches a word of that educational content and now it's not stealing? "
I don't think that's how it works, though it may if you can manage to persuade a judge.
You might enjoy reading A Frolic of His Own, a comic novel by William Gaddis about various law suits and cases before the courts. One suit involves a man who ends up suing himself when the car (a Japanese Sosumi) he is charging with jumper cables rolls forward and injures him. He is also involved in a copyright violation when Hollywood makes a movie very similar to a play he wrote about an ancestor who hired two substitutes in the civil war, one from the south and the other from the north who end up killing each other.
http://library.lol/fiction/0282B84FDA223FC84B19D16C261AA815
A Frolic of His Own
Exactly; We definitely agree that the justice system has failed in this arena... Clear down to suing McDonalds for serving hot coffee (lol.. Heaven forbid).
Normal property rights apply to physical objects, not ideas. If you own a block of marble and carve it into a statue, you own the statue because you already owned the marble it consists of. Any rights to it beyond that come from the Government. I used to think "intellectual property" should be abolished for that reason. I no longer think that would be a good idea, but it definitely should be pared back. The first U.S. copyright law granted protection for, I think, a maximum of 14 years. That got doubled, then doubled again, and then extended to the creator's lifetime plus 70 years.
Way too much, in my opinion, but it's what other countries enforce, and what we have to enforce if we want our copyrights enforced in their countries. And why is it that, while proof of actual copying is needed to prove copyright infringement, it isn't needed to prove patent infringement, if both are based on the same Constitutional provision?
No they don’t. You’re wrong, as usual.
It should be yours.
Shouldn't take MY money, though, to protect your idea.
There's a substantial difference between acquiring something and creating something.
If you created it; it is yours - that is the very substance of property.
The constitution specifically states that copyright is supposed to be for a limited term, the purposes of which is to foster the "useful arts and sciences". Thomas Jefferson's own view was as follows:
“Monopolies may be allowed to person for their own productions in literature, and their own inventions in the arts, for a term not exceeding (a set period of years) but for no longer term and for no other purpose.”
If you make some crappy song and I copy it 30 years later, you are not being wronged. If you chose to publicize the song, you gave it away.
Even though I favor short-duration copyrights and patents, listening to intellectual property maximalists such as yourself makes me want to see intellectual property completely abolished.
Creating something doesn't make it yours. Social convention makes it yours because that's how we stop humans from killing each other for the control and use of scarce goods. We agree that we cannot take certain possessions (both virtual and physical) like money in the bank, houses, food and clothing, from those who we recognize as owning them. All of these things are scarce goods and cannot be replicated infinitely. The shitty song you want royalties on 30 years after publication can be replicated infinitely. It is not a scarce good does and if I hear it playing in my head too often, I think it's you who should be paying me for the duress.
If you don't want to pay for my crappy song; write your own....
There is no excuse to STEAL it from me; besides a criminal mentality.
However; you're correct it should be appropriately LIMITED.
I hope that we do agree that intellectual property ownership should not be long lasting. I maintain that 30 years is more than enough time for someone to make money on a book or a song or anything. In reality 30 years is a compromise position that I take, just because I think that 10 years should be enough.
Do you acknowledge that the original justifications for intellectual property are *completely different* from the usual justifications given for conventional property? We acknowledge conventional property because the alternative is misery and violence. There is no better way to regulate control and use of scarce goods then to assign them to owners, who can then freely trade them.
When someone copies an intellectual good, it's not being taken from the original owner. We just end up with two owners, each with his own copy. If we are to believe that someone is deprived of something, we must first believe in intellectual property, and if we are going to accept the idea of intellectual property it must be justified.
The two justifications given for intellectual property are usually 1) "promotion of social good through fostering more invention" and 2) A person has some kind of inherent right to monetize any idea he comes up with. I'm OK with justification 1 but for justification 1 to work, there must be strict time-limits and right now copyright law is being extended forever by congress. Justification 2 is just a case of greedy people hoping to monopolize something and collect rent. That's a nice fantasy to have but society shouldn't care about their wishes.
Note that the "I thought of it so it's inherently mine" idea is now being weaponized be leftists. They call it "cultural appropriation". Apparently I'm "stealing" if I try to replicate foreign cuisine or wear certain Halloween costumes. You keep implying that your the most exalted and pure libertarian (or whatever it is you call yourself) on the planet. Perhaps it's time for you to take stock of your beliefs.
Yes; I like your approach on the subject and yes I agree the process has enabled patient trolling (monopoly instead of ownership). Seen it first hand; it's disgusting.
There could be a lot of *cutting* out of current patient and copyright law and made more foundational-ly set on the basis of theft and not monopoly power.
Instead the Nazi-Regime has legislatively used Gov-Guns to enforce a no-other-option than being monopolized by patient and copyright trolling. Just as they have mandated TPMS be part of every vehicle manufacturing...
Part of the gripe about patient and copyright monopolies is the monopolizing force of the Nazi-Regime.
You give government the right to eventually move your "property" into the Public Domain for a couple of reasons, first is the improvement of the country in which you live.
Secondly, and less abstract, is the fact that it is the GOVERNMENT, its laws and enforcement arms, that prevent theft in the first place.
YOU may have the "right" to your creations, but YOU are ill-equipped to defend your art and/or your studio if Disney decides to hire a bunch of goons to liberate your work from you.
Absent the governments' meddling hand, your "right" is unenforceable.
Abolishing them is patently absurd.
Why invent something you couldn't own, isn't this one reason why Socialism/Marxism always fails?
^EXACTLY; Communisms biggest point of failure is a lack of incentive to produce goods. Too many desire to TAKE and too few have a desire to WORK for nothing.
Indeed. Marxism is about envy and taking what belongs to others. Using the excuse of ‘common good’, which is just window dressing to push state plunder and oppression.
^THIS EXACLTY^^^^^^^^^^^^^^^^ Well Said...
I remember reading a book which detailed all the remarkable inventions, the Jack Russel Terrier being one of the innovations both endearing and enduring, attributable to an English clergyman and fox hunting enthusiast, not necessarily in that order. A lot of intelligent men went into the clergy in the 19th century and before. Darwin was destined for the clergy before a Beagle caught his eye. The job wasn't demanding, the pay was adequate and all the needs were provided, leaving the vicars to pursue other interests like inventing. These men took pleasure in meeting the challenges of creating something new, and denying other men the same pleasures with patents and other restraints was surely the last thing on their minds.
Article I Section 8-Clause 8 (emphasis added):
"The Congress shall have power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
The qualifier I bolded means that the Copyright Acts have been (largely) unconstitutional. Patent law is constitutional, because it covers useful intellectual property.
Copyright in our legal tradition was a cartel - a monopoly established by the Crown to provide an incentive for the printing press to serve the Crown's interests. That is, to print what it wanted and not what it didn't. That historical, monarchical establishment of a cartel has no business being carried forward into the Republic, let alone one that forswore the quo of the English quid pro quo: freedom of speech and press. Now the State gets nothing out of the deal, and the copyright holder gets a monopoly, through the restriction of everyone else's freedom.
The current copyright statute is the product of Disney (and the rest of the media companies) bribing Congress - extending out the copyright term to a ridiculous length to prevent their own IP from drifting into the public domain, as happens at the end of a copyright term.
Ugh, sorry for the excess bold. The emphasized portion is "of science and useful arts"
The problem with stealing is that it deprives its owner of the thing. If I steal your car then this is bad because you no longer have a car. I've done you a harm in taking your car away. If I build a car exactly like your car, that's not stealing, it's copying. You still have your car, you never lost it. Your car hasn't been stolen.
Intellectual property is a joke because copying is not theft and trying to rhetorically equate it with theft just makes you look like a clown.
What a shit argument.
Why is it a shit argument? We give scarce goods the status of property so people don't kill each other over them. It's the same reason why we have money. Money allows us to interact with one another peacefully. Intellectual property isn't scarce so it's disingenuous to treat it as though it has equal status with conventional property.
Intellectual property often requires something like an honor system, and a moral framework that many people simply refuse to buy into. For instance I refuse to accept that it's wrong to copy a 30 year old song. Whine about how I'm a "thief" all day long. I don't care. To convince me that I'm a thief you have to convince me that I took something that actually belongs to you, within *my* moral universe.
I'm willing to accept short duration copyrights and patents but things have certainly got out of hand and the hyperbolic language of the intellectual property maximalists tends to push me further and further towards outright intellectual property abolitionism. I think that copyrights in the US originally had 10 year terms. By always extending the durations when Disney's copyrights are about to expire (a situation similar to raising the debt limit whenever congress wants to spend some more), congress ensures that copyright will *never* expire. This is nothing but an end run around the constitution.
It’s a shit argument. Copying is absolutely theft. Unless you want to say goodbye to most books, movies, music, etc.. just because something can’t be held in your hand doesn’t mean it isn’t real or has no value. And who the fuck are you to put a n expiration date on the ownership of MY creations.
This just sounds like something a thriving Marxist would advocate for. They aren’t good at building or creating their own things, so they covet. Which leads to envy, and the envy leads to theft.
This just sounds like something a thriving Marxist would advocate for. They aren’t good at building or creating their own things, so they covet. Which leads to envy, and the envy leads to theft.
So you're saying that the founding fathers were communists because the original copyright terms had a durations of only 17 years?
just because something can’t be held in your hand doesn’t mean it isn’t real or has no value.
Money isn't tangible and I consider it to be conventional property, but I already said that. Intangibility isn't the issue; Scarcity is. Infinitely replicable goods don't qualify as conventional property.
And who the fuck are you to put a n expiration date on the ownership of MY creations.
What makes you think your creations are even worth copying in the first place? But ok, when you say "who the fuck am I?" you are implying that I should acknowledge you as having some kind of pre-eminent superiority. Who the fuck are you to think I would agree with that? So when you ask me to pay you to play your shitty 30 year old song I'll probably just tell you to go fuck yourself.
The founding fathers were born in the 1700’s. The types of IP and life expectancy were very different back then. And you don’t have to okay anyone’s music if you don’t want to play.
I don’t care if you agree, I don’t Dre if you tell me to go fuck myself. I’m right. Case closed.
Have a happy Thanksgiving.
The founding fathers actually had to deal with more or less the exact same kinds of IP we have today and life expectancy, while less, was not orders of magnitude less. Originally, copyright only covered books, maps, and charts and was good for only 14 years, with an optional 14 year extension. Notably, they still had music in the 18th century, but it was not given any legal protection at the time. The major driving force in copyright extension since then has been (particularly starting in 1976), perhaps unsurprisingly, Disney, the MPAA, and the RIAA and under their powerful lobbying copyright has been pushed so far that your great-granchildren are statistically unlikely to live to see anything you produce enter the public domain. For almost a hundred years now the US (and consequently, the world, which is under something of a US-imposed thumb as far as copyrights are concerned) has suffered nothing short of a cultural apocalypse as almost nothing has entered public domain since then.
Whether the founding fathers were correct in the design of their copyright terms isn't important. They weren't more knowledgeable about the value of intellectual property or a robust public domain than we are now, they were just people trying to write down some rules for running a country. One of the interesting aspects of the history of copyright is that in its original form it is required so that authors can be paid for writing books which they then must give to publishers to print. This was to keep the publishers themselves from running off with the text and failing to compensate the author. That was the 18th century though; but even then they recognized that after a certain period of time the author had "had his chance" to make a buck, and from thence on the text would become a common cultural history. How different the world is now though! Instead of making their buck within a few years, authors now make almost all of their money within a few months, musicians have often worn out the monetary value of their song within weeks, yet as little as five years ago you could be sued for singing Happy Birthday without a license.
This is the damage that intellectual property has inflicted upon not just a generation, but so many generations now that it is difficult to imagine a world without this legal cancer. Our media is filled works inspired by HP Lovecraft and Bram Stoker... because they are public domain. Our go-to music if we don't want to get sued is literally baroque. Cultural cornerstones remain locked away behind armies of lawyers not to be sold, but to be censored at the whim of the owner. You don't own that video of your baby dancing to the radio. You don't own the song you wrote with three notes in it too similar to a song written forty years ago by a band you've never heard of. So much culture is locked up that you can literally sue over the sound of television static. The copyright system as it exists now is completely and utterly broken. It exists only at the whim of armies of lobbyists to empower armies of lawyers to slap down any and all human expression they don't own. It doesn't protect creators. It doesn't protect their works. The only thing which it protects is the Disney corporation at the expense of all other creators. That's not a free market. That's the opposite of a free market. It's wrong. It's destructive.
The only solution is to purge it all with fire. Burn the whole thing down and make a constitutional amendment that it should never be brought up again.
That's not the premise here. Your creation will always have been created by you - that's the right of authorship. But the only way you can control all the copies currently made and which may ever be made of your idea, is with the state's gun to everyone's head.
It's very different than protecting your personal property rights in that first manuscript.
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Abolish technical innovation and artistic creativity. Great idea. (sarc)
We can always rely on China and Russia for those things!
Instead, why don't we just tax patents and copyrights at a portion of their fair market value? If the holder refuses to pay the tax, then it is assumed to not be worth much to them and it moves to the public domain.
Alternatively, the government could auction patents at the end of their life instead letting them expire. The original owner would get half and the government the other half. In this scheme, the original owner gets to keep renew the patent for half of its value.
I wonder how much money this would raise in exchange for the public granting this monopoly.
Who does this benefit? Hollywood? Seriously? The amount of nepotism and "tribalism" there destroys people. How many times has a young person from Kansas or Nebraska go there with a script and it is stolen by the hollywood mafia.
"How many times has a young person from Kansas or Nebraska go there with a script and it is stolen by the hollywood mafia?"
79% of the tiem, per the Department of Made-Up Statistics. Over 90% for those from Iowa and the Dakotas.