Open Source Patents
Some companies are engaging in very creative maneuvering around the omnipresent threat of patents. The Open Invention Network (OIN), for example (Wiki entry), is a type of patent pooling arrangement which seeks to defend the Linux System from patents. It does this by first purchasing patents, and then offering them to anyone, on a royalty-free basis, so long as the licensee "agrees not to assert its patents against Linux." If the pool grows big enough--and it's funded by "a diverse group of companies including IBM, Novell, Philips, Red Hat, Sony and NEC"--then many companies fearing liability from one of the patents owned by OIN may enter into this arrangement for defensive purposes. OIN does "not anticipate[] that there will be any royalty streams." Its purpose is simply to force companies not to sue "programmers, independent software vendors, distributors and businesses" who use Linux.
Nice, creative idea. But note a few things. First, the OIN patent pooling approach relies on the patent monopoly to work, since the potential threat of a patent infringement lawsuit is what induces third parties to enter into the OIN license (on the other hand, without the patent monopoly, there would be no reason for OIN to exist).
Second, let's assume this works: the size of the OIN pool snowballs and pretty soon there are no companies left who can afford to assert their patents against Linux, because the pool has so many potential patents that can be asserted against this company. What it means is millions of dollars have been spent: to pay salaries of OIN employees; to purchase patents in the pool; to acquire the patents in the first place; and by third parties who acquired their own patents that they now agree not to assert. So we have tens of millions of dollars of investment, and thousands of companies holding patents that they have all agreed not to use against each other.
In other words, it's similar to the situation that would exist in the absence of IP--without all the effort and waste to get a bunch of flaccid scraps of paper.
Comments (36)
What do you mean by this arrangement being similar that would exist in the absence of IP? Are you saying that there would be money spent in protecting things in this manner? But if there's no IP, what are they protecting?
Published: September 11, 2007 2:26 PM
"But if there's no IP, what are they protecting?"
They are protecting unicorns.
Published: September 11, 2007 2:41 PM
ManueL: "What do you mean by this arrangement being similar that would exist in the absence of IP? Are you saying that there would be money spent in protecting things in this manner? But if there's no IP, what are they protecting?"
Well, I mean that if there were no IP, people would be free to use Linux without fear of a patent lawsuit, and other people would not be able to sue them, or be sued by them. That's the end result of the OIN arrangement--it's just that you have to waste tons of money to get there now; you could achieve the same result for free by just getting rid of patent law, for example.
Published: September 11, 2007 3:00 PM
Isn't this the same as nuclear deterrence (or a specific example of Deterrence Theory ). Would a blanket ban on all nuclear arms be a policy that you would endorse as a realistic and enforceable one?
Published: September 11, 2007 4:46 PM
I believe that certain people in the organisation itself have made similar observations - certainly, it's not an uncommon conclusion in FOSS circles. The problem is that short of declaring a new state with a constitution that prevents that kind of thing and shifting all FOSS development to that state, this is the best that can be done to protect the developers' investments.
(Not that the "declare a new state" idea isn't looking more attractive by the day...)
Published: September 11, 2007 6:54 PM
The WHOLE POINT is to make it as if there are no patents. I thought that was pretty obvious from the start, thats what defensive means. Like another commenter said, you have a nuclear deterrent cause you do NOT want a war. The ideal case is to never use it of course. But if you don't have the deterrent, then well (in theory) you are exposed (in theory of course).
Published: September 11, 2007 6:58 PM
Stephan -- this expense and staffing are simply the cost of protecting participants from the legalized aggression by the State and its agents.
Of course, once the criminal is disposed of, there won't be any need to spend money on protection from him.
Published: September 11, 2007 11:17 PM
Patent is immoral because it makes a person own (part of) a universal purpose. The so-called “individual” character of the method is irrelevant since there is a universal aim. Such individual monopoly is always an obstacle to the constitutional grant of free will to other individuals.
Patenting a can opener gives ownership (to a part of) the universal can opening action (a mere purpose).
This makes a big difference as compared to copyrighting art of course (an original art work is only the purpose of one artist, not a universal purpose).
Published: September 12, 2007 2:49 AM
Stephan,
If I may make a suggestion, why don't you aim your anti IP crusade against some of the Mises Instute fellows and make all of their valuable work free on this site, instead of trying to equate patent laws with IP.
Why does Mises intitute have a bookstore anyways.
All the work should be free, not only the classics.
All that printing and sending via mail, it seems rather wastefull.
Ok some people may want to have the thing printed on paper and would pay for the printing service only but at least make all the books the institute sells available free online.
What, would some of the authors refuse their own work to be posted free on the internet, you say?
Then the hell with them, whoever refuses.
If that is the case, these posers only try to use governments coercive power to extract money from people who have a right to read whatever they write for free.
What can we gain from these posers, hypocrites?
Why would they want to get paid anyways they are not losing anything, I could copy the hell out of their work and they still would have the book.
They can earn money by performance like music concerts.
Really, it should be much easier for you to get this task done, much easier than trying to get strangers reading mises.org to accept your anti IP views.
These people are all libertarian, I am sure you know most of them personally and you would have a lot of face to face time with them for convincing.
Here is a quick list of books I want for free.
Mises: The Last Knight of Liberalism
PIG to American History
The Real Lincoln
Economics for the Real People
Published: September 12, 2007 6:36 AM
Something irrelevant about physical property rights and how my argument defeats Kinsella's. Oh, and some sarcastic non-substance.
Published: September 12, 2007 7:17 AM
ktibuk, I hope that you are joking. . .
Last Knight of Liberalism:
http://mises.org/books/lastknight.pdf
Economics for Real People:
http://mises.org/books/econforrealpeople.pdf
The other two works aren't even *published* by Mises.org. . .maybe a quick search would help you next time before making such an accusatory post.
Published: September 12, 2007 7:23 AM
Person, you arguments have finally persuaded me.
Published: September 12, 2007 8:33 AM
Ktibuk. Dude.
IP is the right of 'owners' to control 'infringers'.
Someone arguing against IP is arguing to abolish away the right and status of the 'owners', thereby abolishing the possibility of 'infringers'.
Someone arguing against IP is not agruing that ANYONE is OBLIGATED to provide a free option.
Seriously, can you see the difference? It's a simple, easy to understand difference.
Published: September 12, 2007 8:41 AM
I wish Ktibuk would clarify his position on IP laws as they currently exist. He seems to think various mechanisms will arise in the market to protect intellectual innovation. So do most anti-IP libertarians, and they greet this with approbation.
Published: September 12, 2007 9:02 AM
Seems to me ktibuk is quite enamoured with "exactly how IP works now".
Contra Anthony, I get the impression that the market just isn't good enough for ktibuk. So claims ktibuk (paraphrasing of course): unless you can invade someone's kingdom and attack them for thinking / acting a certain way inside their borders, innovation will cease.
That's the impression I get.
Published: September 12, 2007 9:26 AM
For IP or against IP.
These are ethical positions.
A person that thinks enforcing IP by the hand of government is unethical, and a person that thinks in the absence of government IP protection enforcement is not possible MUST THINK that people earning revenue through IP is an immoral person.
There are a lot of free IP on this site.
But also there are those that are being sold on the Mises bookstore and not given for free.
If Stephan wants to persuade people that IP is nonsense, all IP should be free then he should start with authors who are associated with MIses Institute.
And if he can not persuade a couple of them lets say, he should just come out and say that these people are unethical posers, earning revenue by the enforcement of the state, and not different than thives.
I myself don't and wouldn't do business with no government, because I now it would be doing business with organized crime.
If you believe there wouldn't be copyright contracts in freemarket, and IP is a state creation you shouldn't make money of it. Otherwise you are a hypocrite.
Simple.
PS: It seems two of the works I mentioned are free online, but that doesnt change the reasoning above. There are many valuable books that are being sold but not given away for free online.
Published: September 12, 2007 10:34 AM
Or better yet.
Why do they even ask the authors, or the relatives of the authors?
They should just buy a copy and put it online.
Why wouldn't they?
Are they afraid of legal consequences?
Then this means, every penny earned from a copy of a book is stolen money, by the help of the government.
It seems, all the people hailed on this site, Mises, Rothbard, Hoppe they are all accomplices of the state. They all earned money because the state enforced a made up an unethical law, that wouldn't exist in a free market.
Shame on them.
Published: September 12, 2007 10:45 AM
ktibuk,
You just aren't getting it.
You can't own others' ideas, but you can own the books. You can place your books for sale at $1M apiece with basically whatever restrictions on their use that you want, but you cannot claim ownership of ideas.
Maybe you do get it and you're just trolling, I don't know.
Published: September 12, 2007 1:20 PM
I've said before that the use of any creation can and should be determined by voluntary agreement between its creator and its consumer(s). Enforcing that agreement is the basic purpose of a copyright.
IP can function much the same way, but like many things it's been made more complicated in order to justify some peoples' "legal" use of others' ideas. As far as I'm concerned, it comes down to a simple contract. A writes a book, and B purchases the book. If A decides that she will only sell the book to B as long as he agrees not to make and sell copies of it that is A's right, and B has the freedom to either agree to the conditions or decline from purchasing the book. If B agrees to the conditions and buys the book then turns around and runs off 1000 copies, B is in breach of contract and should be held liable.
The problem with patents and IP as they are now is that if A writes a piece of software to calculate the number of earthworms per square foot of soil, and B writes one to calculate the number of moles per square yard of soil, whomever gets to the patent office first then has monopoly privilege over the other, even though there was no theft, fraud, or breach of contract involved. The OIN is, therefore, as Averros states, money spent to protect against state aggression.
Published: September 12, 2007 2:38 PM
If I create a baseball bat, and as creator I exercise my rightful, exclusive use of the baseball bat, according to its nature, to bash a hole into someone's head without their prior agreement, may I then add insult to the injury and claim they infringed on my rights by 'using' the bat? Are they GUILTY of suffering an externality originated by me? How about, even if they enjoyed it?
If I create a novel, and as creator I exercise my rightful, exclusive use of the novel, according to its nature, to communicate the novel into someone's head, may I then add insult to injury and claim the infringed on my rights by using the novel? Are they GUILTY of my externality? Even if they enjoy it?
IP is insane.
Published: September 12, 2007 3:06 PM
...Note, I am not disagreeing with Ron.
if you have a contract then there's no externality. If you don't, then the originator of the externality - the actor, the causer, the owner - is the only person under any obligation toward any other party.
The party injured by the externality (be it positive, negative, or neutral) is under no obligation. They can enjoy their head wound, or they can enjoy their newly learned novel, and the best the 'owner' can hope for is they don't sue his ass.
Published: September 12, 2007 3:12 PM
What part of this simple logic cant you understand.
According to anti IP stance,
Ip rights are absurd on some grounds,
Enforcing IP rights by the help of the state is coercion against someone elses tangible (real) property.
In a free market anarchy there wouldnt be IP rights, and some agency trying to enforce any IP right would actually be the aggressor.
Isnt this right, am I missing something here?
If this is the case.
In the world that we are living in,
Everyone taking advantage of IP laws are actually aggressing against someone elses property by the help of the state.
These people that are taking advantage of IP laws thus accomplices of the state in this unjust setup are actually
Authors, Movie producer, song producers, etc.
Including inspirations, founders and associates of Mises Institute.
And if any of you insist on keeping a blind eye to this and attack some remote persons and companies on this block, then you are intellectually dishonest posers.
It is as simple as that.
Published: September 13, 2007 4:05 AM
No one helps the state enforcing IP rights you moron.
Published: September 13, 2007 7:22 AM
But wait a tick, once patents and copyrights expire then the works and ideas enter the public domain, don't they? Therefore once a work is in the public domain it's a free-for-all, no? And just because you have a patent or copyright and it's 'State-enforced' why presume it's therefore going to make you a lot of money? The only main gripe I have against patents is that I thought they were supposed to be only given to inventions that were only 'totally new and distinctive' yet apparently they're not. Though I don't know what the great gripe against copyrights is as I tend to think those who dont like copyrights aren't very creative.
Published: September 13, 2007 8:11 AM
TWLP, I think on a free market firms will primarily enter bilateral contracts restricting uses of certain products (e.g. reproducing them) or using technical methods to limit how they may be used, but this is different to extant IP laws, and is not illegitimate in any way.
Published: September 13, 2007 8:25 AM
Speaking as a creator, I am anti-IP. Similarly the OIN is a community of creators, who are anti-IP. Reasons:
Utilitarian: IP stifles creation.
Moral: IP is aggression, and would be wrong even if it PROMOTED creation.
Published: September 13, 2007 10:48 AM
ktibuk: "Everyone taking advantage of IP laws are actually aggressing against someone elses property by the help of the state."
CORRECT.
"These people that are taking advantage of IP laws thus accomplices of the state in this unjust setup are actually Authors, Movie producer, song producers, etc. Including inspirations, founders and associates of Mises Institute."
Accomplices? Not quite. Aggression begets aggression, and what a perverted and tangled web of aggression the state weaves.
To respond to the quoted accusation, let me pose a hypothetical scenatio.
An armed gunman confronts two other unarmed people and declares, "You shall fight each other to the death; if you refuse I will kill you both myself, as punishment for your weakness. The victor shall be my slave."
It would be honorable and just for the two innocents to stand passive and be murdered by the madman, or better, to die cooperating attempting to disarm their assailant. But under such duress, would these victims of coercion do the right thing? If they do battle, brother against brother, as commanded, do they bear full blame for their actions?
The aggression of the gunman leads to all that follows, right or wrong. In this, there is redepmtion for those who struggle to survive under state rule.
Lastly, I will repeat my earlier point: disagreeing with state-granted IP rights does NOT obligate you to distribute materials in any free form. It only obligates you to refrain from legal action agaist copiers / infringers.
Mises.org is absolutely permitted to sell content at nonzero cost, and is under no obligation to provide any content for free. It may at its discretion choose to respect the stated wishes of authors, for any reason at all.
The only performative contradiction Mises.org can make is seeking legal action against an 'IP infringer'. To my knowledge this has not occured. When and if this happens, ktibuk, you will be free to play the hypocrite card. Until then, you're simply wrong to imply it.
Published: September 13, 2007 12:37 PM
Jean Paul,
Are ou kidding me?
How is the example you gave the same?
Is anyone threatening an author anyway to write and reap the benefits of this unjust system?
No.
The system is in place, the laws are there IN CASE you decide to create something and sell it by copyright which the state enforces.
You may decide not be a part of this injustice and live the same way you would in supposedly no IP free market.
I myself refuse to do any business with the state.
I dont get murdered just because I refuse to do business with the state. I may not earn as much, but I dont earn as much because I refrain from theft, too.
Your anti IP stance doesnt make any sense and it is filled with contradictions.
And also you are intellectually dishonest otherwise you would condemn anyone who benefits from this supposed injustice.
Published: September 13, 2007 1:11 PM
Also I am not accusing Mises Institute which is an organisation not a person.
O don't think anti IP is a Mises Institute official stance.
I am accusing persons who are obsessed with this ridiculous anti IP stance.
I wouldn't respect Mises or Rothbard, if they were government contractors regardless of what they preached.
If I believed enforcing copyright laws are agression against property I would also stop respecting people who made money of it.
But I am who I am.
Published: September 13, 2007 1:18 PM
ktibuk: "If I believed enforcing copyright laws are agression against property I would also stop respecting people who made money of it."
The only way to establish that someone is making money off copyright is if they invoke the law to punish an infringer. And I DO condemn those people, so there's no contradiction here.
Anyway, if all a person does is write a book, publish it in physical form, and say "this book is for sale and if you copy it, well, I'll do nothing", then they may or may not make any money, but certainly they aren't making any off copyright. If they make any money, they are making it ABSENT copyright, which is totally possible, totally just, and totally what the anti-IP camp advocates.
We don't advocate not making money. We advocate not using the law to punish copying, cuz copying is perfectly fine. So show me where anyone has invoked copyright protection to punish a copier, and I'll agree with you that person is wrong.
But they aren't wrong just cuz they don't give it away. Which seems to be what you want them to do. They don't have to give anything away. There's no a contradiction there.
Published: September 13, 2007 2:08 PM
Also, to explain the relevance of the example I gave: it is the ultimate example of how the state works. The state says, "It'll be the way we want, on pain of death. And the way we want it is for brother to battle brother, instead of peacefully cooperating. We won't phrase it like that, but that's what it is."
When the state creates the brother-against-brother environment by putting everyone under threat of death, every action is a desperate one made under duress. To some extent, you can blame people for cowardly protecting their skins and obeying the overlord, but never should they be more vilified than the overlord. First and foremost you must hate the overlord that torments people into such pain it overcomes their sense of justice. That's the point of the example - to put the blame where it belongs, not on the evil artists who've been duped into embracing copyright, but the state who duped them into it.
The copyright user is wrong - but lets show some compassion for human fallibility here. Last I checked I was a fallible human, and unless AI has finally hit a breakthrough, so are you. The state is what prevents fallible humans from getting their act together. The state is what lets them get away with it. The state preserves this insanity.
The fallible human deserves compassion and forgiveness for their wrongdoing. The state deserves the vast blame, and NO forgiveness.
Proudly: I Hate The State. Can we agree on that at least?
Published: September 13, 2007 2:20 PM
Jean Paul,
Some very clear thinking from you in rebutting ktibuk. The "if you are anti-IP, then you should give your books away for free" argument really needed to be put to rest, and you've hit upon the solution perfectly. Nicely done.
Published: September 13, 2007 2:53 PM
ktibuk: "I dont get murdered just because I refuse to do business with the state. I may not earn as much, but I dont earn as much because I refrain from theft, too."
When the state murders you, it's not for your refusal to do business with them. It's for your refusal to OBEY them, right or wrong. Since you are alive, you are living in compliance with the state's will... or you are a very successful outlaw.
If the latter, please share your secrets!
But presumably the former is true. By living in compliance - e.g., at the most basic level, by paying your taxes - you fund the thugs who murder those who disobey. Your courageous refusal to pay taxes will save lives - at the expense of your own. But clearly you have succumbed in cowardice, as we all have.
So - you have purchased your life by funding the murder of others. Will you accept your share of the blame? If you accept your share of blame for the murders the state commits, I will accept mine, and then we can both throw stones at the 'copyright infringers' for their crimes.
But of course you will not, nor will I. We are not bad people because of this. We are just oppressed slaves. Like everyone else. And so you should show compassion for the other slaves, who like us, lack the moral courage to do what must be done.
But meanwhile, we do struggle here, to understand and educate others on what justice really means. And that is our redemption.
Published: September 13, 2007 3:18 PM
"Anyway, if all a person does is write a book, publish it in physical form, and say "this book is for sale and if you copy it, well, I'll do nothing", then they may or may not make any money, but certainly they aren't making any off copyright."
The fact that not every book that is being sold here is not also on the site for free, implies what you say above is completely wrong.
A lot of authors, part of this institute, now and back when never declared this and put copyright protection written in these books as their publishers demanded.
Maybe not all of them, these are political books and also have motivations than making money.
The rest of what you wrote I didnt read, I must confess.
And I am done and out.
Published: September 13, 2007 3:42 PM
An observation about 'defensive' patents:
A public demonstration of a new technology, prior to a patent grant, puts that technology in the public domain. This can be done for free, without all the cost and hassle of a paten appplication, or participation in the OIN.
So while I see the point in gobbling up existing patents to create a large DETERRENT portfolio, novel development need not use this high cost method. Release to public domain is the true, purely 'defensive' method.
The OIN smells more like a mutually-assured-destruction tactic - the OIN is actually an arsenal of IP 'nukes' which can be used to decimate an IP first-aggressor in kind.
The nice thing about it is, the OIN itself is invulnerable to attack, since it will never itself infringe. It used purely to punish IP aggressors with their own weapons.
So long as the arsenal is never abused against the peaceful public, it's a beautiful thing.
Published: September 13, 2007 4:01 PM
Kitbuk,
What happens when, in order to protect IP, physical property has to be destroyed ? If I infringe a copyright, I may end up in jail. What about my inalienable rights to life and liberty ?
What kind of libertarian can claim that to protect something of dubious existence people should be jailed ?
Published: September 14, 2007 6:16 PM