The 18 or so articles I’ve written about “intellectual property”–elaborating on a book I consider to be a seminal work of our epoch, Against Intellectual Monopoly–generated floods of email like I’ve never seen on any topic. The thing that gets people going is the conclusion: in a free market, there should be no legal grants of patent or copyright.
What many people do–and this is rather depressing from the point of view of a writer–is seize on the conclusion, ignore the reasoning and arguments, and then attempt an instantaneous, arm-chair refutation.
It always goes something like this: “Oh, you are telling me that I could just steal this article that you wrote, even put my name on it, sell it and take the money, and there would be nothing wrong with doing that?”
Some go even further to actually do this: put their names on it, post it somewhere, and send me the link.
I think precisely what you are thinking: “What a jerk!”
I’m not sure what other kind of response they expect from me. They must really think I will say: “Oh, this is so shocking! I had not considered that someone might actually do this to me if we got rid of the U.S. Copyright Office! My goodness, this kind of thing cannot be tolerated. I was completely wrong in everything I said. I too am grateful to the state for all it does to protect my intellectual creations and my good name.”
Sorry to say, this is not my response. My detailed response actually goes as follows: “If you do that in a free society, you will not be arrested by the police or experience physical coercion blessed by official mandate. However, everyone is free to regard you as a poseur, a wretch, a menace to society, and wholly lacking in credibility. If having a good reputation counts to you, it’s probably not a good idea to pretend to have written something that you have not in fact written.”
The difference here comes down to a wonderful distinction that was made by Lysander Spooner in the 19th century. He was careful to explain the difference between a vice and a crime. A crime involves aggressive force or threat of aggressive force against another person or privately owned property. A vice, however, is a much larger category of behaviors that don’t involve invasion of person or property.
Vices can involve lying, being nasty to others, eating like a pig in public, abusing oneself with drugs or liquor, failing to shower and thereby stinking to high heaven, swearing in public, betraying benefactors, rumor mongering, displaying ingratitude, not keeping commitments, being a shopaholic, being a greedy miser, failing to do what you say you are going to do, making up stories about other people, taking credit for things you didn’t do, failing to give credit where it is due, and other things along these lines.
In a free society, vice is control through decentralized social enforcement of social, ethical, and religious norms. The great problem of statism is that it turns vices into crimes, and then when the law is repealed, people forget that there are, after all, certain social norms that nonetheless need to be upheld and will be upheld once society is managing itself rather than being managed by the state. Consider the case of classroom plagiarism, for example. A teacher wrote to me with a concern that the repeal of intellectual property law would make it more difficult to punish students for turning in work that claimed to be original but was actually copied from elsewhere. I pointed out that the police and courts are not involved in the enforcement of classroom rules now, so why would a change in federal legislation be any different? Plagiarism is still plagiarism.
IP law has really had the effect of distorting our society’s sense of all of these matters. It has made everyone too unwilling to admit our dependence on imitation and emulation as institutions that permit and encourage progress. It has made people too shy to copy the success of others and admit to doing so. Writers, artists, entrepreneurs all live with this weird burden of expectation that everything they do must be completely original and they must never draw from others sources. It’s preposterous!
On the other hand, we are too quick to credit the state for preventing the mass outbreak of old-fashioned vice. Even without copyright and patent, some kinds of behaviors and practices will remain shoddy, unseemly, ungracious, conniving, and socially unacceptable. What, for example, would you say about a local author who claimed to write a new play that turned out to be written by Shakespeare? Doing this is perfectly legal right now. But the person would be regarded as a lout and a fool for the rest of his life.
Hence, the repeal of “intellectual property” law does not mean some sort of crazed free-for-all chaos in which no one can be entirely sure of anyone’s identity, creations, who wrote what, what company did what, where credit is due, what one’s commitments are, and the like. What we will gain is a great sense of our moral obligations to each other.
And in the absence of the state’s grant of monopoly privilege, we will become ever more vigilant in giving credit where it is due. You still have to be a nice person who acts with a sense of fairness, equanimity, and justice, as conventionally understood. If you don’t, the state will not crack your skull, but you will lose something profoundly important.
In other words, in absence of IP, we gain a greater sense of the distinction between what is vice and what is crime, and a better means for dealing with both.
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@Newson,
Without capital there is no research. And without IP there is no capital. The industry goes to a screeching halt. As noone pays the researchers they leave, too. If pandemic hit during this time you are at worst shape than in the middle ages. That time the population was about hundred fold less and people were more resistant and still population was decimated. Without the science industry there is not even a chance for diagnosis let alone a cure. With a functioning health care system we may have a chance. IP is responsible for ownership, order, calculations, planning, assigment of resources and people and then fast execution of actions. This is that simple. Science is internalized. As Mises stated, without IP all this can only be part of external economies.
I know it does not fit your ideology and you’d rather preferred health food and other witchcraft. Just don’t force others.
I was in Toronto when SARS hit. You don’t know how lucky we (I mean humanity) were. And SARS is not the worst that can happen.
1. Yep. That’s the question: did the Italians have innovative pharmaceutical products or did they just copy the recipes off those who did the actual research and took all the profits away from them?
2. Imagine if the pharmaceutical companies could find private ways to hide the recipes of their drugs and stop other companies stealing their recipes while the poor people of the world still can’t afford medicine. Would this be an improvement or business as usual?
@Gil,
To 1) Neither the Italians (or Spanish, Indian, Chinese, Eastern European) had innovative drug industry under their previous process based patent system. It changed only after they adopted the composition of matter based system which claims the drug itself and not the process by it is made. These countries used to be very strong on chemistry as it was needed to find alternative routes to the same drug. However, they could never invent anything new as that was too expensive. Chemistry is less than 20% of the costs of a new drug at the front end of the research. Additionally, under a certain threshold of investment, drug research certainly doomed to fail independently from the actual potential of the chemistry.
To 2) Current patents expire after ~20 years, which is in reality closer to 5 years due to early filings. Anybody can enjoy the benefits then due to generics under free market conditions.
The zealous greed of instant gratification of the no-IP proponents risks that as well.
to andras:
sars was dealt with primarily through physical means, so all appeals to ip are irrelevant in that case. a pandemic similarly would be met by physical measures, not drugs (otherwise it wouldn’t be a pandemic, would it?).
to suggest that all medical research would stop is nonsensical, it certainly would be re-directed in ways that defy prediction.
to gil:
as andras says, italy wasn’t a force in producing new drugs, but that figures. ip-protective regimes will favour large, upfront drug investments.
nobody has a right to cheap medicines. whilst andras argues that ip promotes development of new drugs, he hasn’t said that ip makes existing drugs cheaper, and nor would i.
more competition, lower prices.
@Newson,
At the height of the 2003 SARS panic, almost nothing was known about the virus. Its classification as a corona virus just been determined around that time. In a few days, news started to appear on the cause of virulence. Immediately huge resources poured into research and found leads. It may not have prevented this threat but surely contributed to the prevention of the next one. By the way, new drugs and diagnostic tools did contribute to beating that threat though not directly. Mortality would have been much much worse.
In the middle ages, plague zig-zaged Eurasia for centuries. Under IP regimes it will never happen. I am not sure about non-IP regimes though.
I guess there were no IP laws in 1918, either.
Sorry, blaming medieval epidemics on the absence of patent laws just makes no sense at all.
@lukas,
I guess if you want to misunderstand you will.
I have never blamed medieval pandemics on the absence of patent laws. What I meant to say that pandemics went around for ages without any medical adaptations. Interestingly, the end of these big epidemics coincided with the introduction of IP. The link you sent, I think, verifies me. We know a lot about that 1918 epidemic. Even corpses were dug up to determine the strain. Influenza killer epidemics happen like clockwork with a reoccurrence in every ~25 years and we know the cause. We have drugs for influenza now as a preparation for the next one. (that is another question how good they are, but they are only the first steps).
It also coincided with an enormous rise in living standards that brings clean water, abundant food and personal hygiene to the masses for the first time in history.
… which is coincided with Capitalism and its respect for private property including IP.
We all know what the IP reveals:
http://www.ip-adress.com
Use an anonymizer or leave fingerprints. Thats it.
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