IP Vices and Crimes
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.
Comments (61)
Matthew
Hear hear! Well put Jeffrey. I hope your civil, persistent appeal to reason will continue to improve the quality of debate that exists on these topics here on the LvMI blog.
Published: March 18, 2009 9:25 AM
david a. janello
These concepts have been put into practice by Richard Stallman and the Free Software Foundation.
www.gnu.org
As a result of this work, software protected by the GNU Public License ('copyleft') now powers the majority of the backbone servers on the Internet.
I would be most interested in seeing the response of the Mises Institute to Mr. Stallman's essays. What is interesting is, that protection of software freedoms requires MORE and not less copyright restriction.
Software developers have three choices when writing code:
a) closed commercial license covered by copyright law (microsoft model)
b) public domain restrictions free use (BSD model, microsoft or other commercial entities may use public domain code without citation in works for profit)
c) GNU Public License code - all code is open for free distribution, examination and modification. The code may NOT be used in applications that do not provide the same freedoms to future users.
In other words, 'if I release this code for free, no-one else can release it under non-free terms'.
Programmers have consistently chosen GPL software licenses by a large majority over the totally free and totally restricted models.
Published: March 18, 2009 9:27 AM
Jeffrey G
It would make it difficult to enforce any kind of contract though, wouldn't it? What kind of contract regarding who wrote what when would have any kind of teeth if nobody owns any particular arrangement of letters in the English alphabet? Is it? It seems you are trying to have it both ways. You are acknowledging a work has some sort of aura of ownership where it would just be plain indecent of someone to claim to have written something someone else wrote.Why? They are just a particular sequence of English letters. If I work from a recipe to bake a cake I am simply arranging the ingredients the way someone else before me did, but you would not dispute that I baked the cake. So I arranged the letters the way someone else before me did and bound them in a book. I made the book. Why is it different than the cake?
To claim that the concept of "plagiarism" exists is to say that there is something worthwhile to be protected, if not in law than in the social pressure of negative reputation
Published: March 18, 2009 9:34 AM
Gary Hall
"Programmers have consistently chosen GPL software licenses by a large majority over the totally free and totally restricted models."
Have they? I'm not entirely sure that's true. I would argue that the vast majority of programmers - unappreciated and undervalued lot that we are - are salaried, and, as such, have no say in how their product is used.
Employment contracts in software development generally stipulate that the code produced, both uncompiled source code and compiled object code, are the property of the company. If you don't like this arrangement, then you don't get a job.
Or, like myself, you start up your own business because you're severely hacked off with the status quo.
Published: March 18, 2009 9:59 AM
I Hate Beating Dead Horses
Oh no, not another completely boring, redundant and useless article on IP rights !
Put a sock in it already, get it over with, FUCK YOU !
Published: March 18, 2009 10:03 AM
Andras
Mr. Tucker,
I see a contradiction in your argumentation. If IP was not property and had no value why do you consider stealing or plagiarizing it even a vice? Are you looking for a compromise? These are the IP laws. But why do you want to abolish them all together and force IP to be part of external economies? Should not shifting the pivot to keep some balance suffice? Social engineering is not an easy job so when you try to approach it do it well!
Published: March 18, 2009 10:13 AM
Gary Hall
Andras: That Mr. Tucker classifies breaching IP as a vice does not imply that he feels it should be a crime. You are begging the question that all vices are actually criminal, the exact thing that was explicitly stated as not the case.
There are three classifications here: a crime, a vice and neither. An act cannot overlap and is encapsulated fully by one classification. A crime should be outlawed with legislation (murder, etc.), whereas vices should not and the populace are free to perform vices as they see fit, the consequences being "reputational damage". Vices are subjective, hence the lack of criminality.
You want breaching IP to be a crime, Mr. Tucker suggests that some breaching of IP is, at worst, a vice.
Futhermore, a lot of potential IP breaches that would occur in a pro-IP world - one that is more ideologically consistent that our current one - would likely be unclassified, not even vices. These are things like usage of a mathematical equation. Imagine if Einstein patented his "mass is energy" IP (after paying for the prior developments of his peers). Although, granted, that's a utilitarian argument.
Published: March 18, 2009 10:43 AM
Briggs
I have made it through the first 5 chapters of Against Intellectual Monopoly. I am reading it because I do not completely agree with Mr. Tuckers views but feel that I should give them a chance. So far, I have been a little disappointed with the authors, but not for the reason you might think. They have, in my opinion, an unfortunate habit of beginning with a quite convincing argument and then abruptly ending it. It seems that every time they have me on the verge of being convinced by a particular argument, they clumsily conclude the argument and proceed to the next one. If the subsequent chapters do a slightly better job of thoroughly concluding their arguments/ scenarios, it is quite possible that I could "convert." It has been an interesting read none the less.
P.S.
Hate...Horses,
If you feel that Mr. Tucker's articles and blogs are so objectionable, WHY THE HELL DO YOU KEEP READING THEM? Whats more, why do you keep plaguing the rest of us with your crude and primitive thoughts on the subject?
Published: March 18, 2009 10:49 AM
JJ
Is anyone going to be surprised when someone copies THIS article and attaches their name to it as a way to get their point across?
I still haven't read Against Intellectual Monopoly but I greatly enjoyed Tucker's commentary on it's various chapters.
Published: March 18, 2009 10:50 AM
JJ
Is anyone going to be surprised when someone copies THIS article and attaches their name to it?
I've greatly enjoyed Tucker's articles on IP and his commentary on Against Intellectual Monopoly has convinced me of his position (as if Kinsella's Against IP wasn't enough).
Published: March 18, 2009 10:55 AM
geniusiknowit
Hear hear! Well put Jeffrey. I hope your civil, persistent appeal to reason will continue to improve the quality of debate that exists on these topics here on the LvMI blog.
;-)
Published: March 18, 2009 10:56 AM
Michael A. Clem
I love the point about student plagiarism--even if it's not criminal, teachers want to encourage their students to write in their own words, develop their own language skills, and not merely copy-and-paste what someone else wrote.
As for copying someone else's work, putting your name on it, and selling it for money, while I can see your points about social etiquette and behavior, I would still think such actions would simply be fraud, and thus open for criminal proceedings. Naturally, if you were "stealing" Shakespeare, I'm sure he wouldn't worry about it, being dead and all, but a living author, like Stephen King, might well want to press charges for fraud.
I also like the implication that a less political society would be a more civil society. I think people tend to underestimate the power of peer pressure and ostracism in a society where one cannot simply turn to the police or the courts and "force" people to comply with social mores or morality, that the ability and willingness to employ the power of government is what has, to a large extent, degraded our civil society (Conservatives, take note).
Published: March 18, 2009 10:57 AM
Jeffrey Tucker
Yes, what Michael Clem says. I could have explained that more.
Published: March 18, 2009 12:47 PM
Henry Miller
While there is a lot of code unde GPL, that isn't a sing that programmers have choosen that model. Most programmers have not cosidered licensess at all. They just know there are legal issues with putting your code out there (it isn't clear to lawyers if public domain is even possible anymore. If so can you be sued for public domain software you write?). The FSF has considered this issue, and says use GPL and you are fine. Not wanting to consider boring legal issues they go along.
I can't help but think that is copyright was for reasonable terms (20 years) nobody would care about this. Thos who benifit from copyright have gone too far and now people care enough to think about it. Thus we now have good arguements against it at all. If they would have been content they wouldn't face the risk that we abolish copyright completely.
Published: March 18, 2009 12:56 PM
John Higgins
Michael A. Clem,
I think fraud and a lack of IP are perfectly reconcilable. Even in an anarchy, it would be perfectly possible for two parties to seek binding arbitration by a third. If I feel you've been fraudulently misrepresenting my work as your own, I can seek reparations for it, and social convention would probably reward me. However, in a society which had no "intellectual property," per se, I may or may not be able to seek recompense for the redistribution, copying or imitation of my work (with the proper attribution) nor would I personally see it as necessary.
Those who fear the abolition of so-called intellectual property disturb me. Their arguments are identical to the arguments favoring a state in all other respects - "It's the way we've always done things, and you're crazy, and things would suck if we did it your way." They don't even bother to research the tremendous advantages of free distribution and exchange of ideas - the open-source software movement, for example, or the trend followed by some musicians recently.
I know for a fact that people are paying their bills now, giving their ideas away, better than they could working for someone else. They, like all entrepreneurs, simply modify their business model to accomodate the free exchange of thought. It works.
Published: March 18, 2009 12:58 PM
Andras
@Gary Hall,
I understand Mr. Tucker's distinctions. That is why I asked.
You write "There are three classifications here: a crime, a vice and neither." If IP is not a property i.e., has no value why doesn't Mr. Tucker places the brerach in the neither category?
What is that attribute that after being breached keeps it in "the vice" category? In other worlds, what is IP if it is not property? (Please don't just close the loop and say "idea". Every concept is an idea, we need more distinction than that as we discuss IP in the context of IP laws here.)
Also you are fighting a strawman when you say "Imagine if Einstein patented his "mass is energy" IP". Patent Laws have never allowed such a thing! Please understand them before you criticize.
Published: March 18, 2009 1:49 PM
Inquisitor
Universities deal with plagiarism internally, based on their own rules and regulations. I'm not sure why the state would need to protect IP for that to continue.
Published: March 18, 2009 2:04 PM
Gary Hall
@Andras: I understand that my Einstein argument is a strawman given the current status quo re IP laws. However, I placed the statement in the context of IP laws taken to their logical conclusion. Would I be correct in assuming that you are for a middle ground - arbitrarily time-limited protection, etc?
As for why Mr. Tucker classifies IP breaches as vices: your argument against his reasoning is that breaching IP is a vice yet when no property is violated, the action is neither vice nor crime. If IP is not property, why can breaching it be a vice? The faulty premise is that property must be violated for a vice to occur. Prostitution, smoking and drugs are vices where property need not necessarily be violated.
Published: March 18, 2009 2:20 PM
Gary Hall
Andras:
Subjective public opinion. I think that visiting prostitutes is wrong, but I don't think it should be a crime. I think that drinking alcohol is perfectly acceptable - even smoking cannabis - but there is a level where excess becomes abuse. From there it is possible to see that different people have different ideas over what constitutes a vice.
Published: March 18, 2009 2:28 PM
lukas
Absent IP, would King have any standing on this one? He isn't being defrauded, the buyers of the misappropriated work are.
Published: March 18, 2009 3:16 PM
Silas Barta
All: Please be careful to make apples-to-apples comparisons between your views on various topics. If you believe that e.g. murder can and should be contained by, at most, some type of shunning and disassociation, *and* you believe the same of copying others' work, then you're really putting them in the same category. At most, you support different severity of punishment.
But if this is your belief, as I'm sure it is for some of you, then you really agree with IP supporters much more than you might think. Because you're saying that the same kind of mechanism that prevents "crimes", also prevents IP, and therefore the legal system has a mechanism to prevent the copying of new ideas that people have created.
So why go through the motions of voicing opposition to IP? What you're really opposing is a state-run legal system, whether or not the relevant "bad thing" it's preventing is murder or copying. Ultimately, you agree with the idea that creators of ideas have the right to prevent others from instantiating them, but you oppose certain ways of going about that.
(And of course the standard caveats apply about the difference between plagiarism and copyright infringement and how the major concern is copying even when the copier freely admits who really created it, blah blah blah...)
Published: March 18, 2009 3:59 PM
Nate
I don't post much but I can pretty much never understand Silas Barta's posts.
Published: March 18, 2009 4:27 PM
Andras
@Gary Hall,
You are correct, I am "for a middle ground - arbitrarily time-limited protection". I gave reasons in my first comment and before. I think with IP Laws, IP can be internalized i.e., planned and calculated. This is a compromise and consequently setting the arbitrary frames of IP (or lack of it) is social engineering. It rather responds to socially accepted morality than ethics. Although you can put scientistic argumentations behind you motives it stays social engineering.
My understanding is that you (and Mr. Tucker) are though accepting the subjective morality of IP still want to abolish all IP laws on the basis of false arguments.
That was where I saw contradiction. I can live with your contradictions, the question is can you?
Published: March 18, 2009 4:30 PM
Gary Hall
@Andras:
I agree that there are utilitarian arguments for IP - that there is a problem with externalizing IP such that it disincentivizes entrepreneurialism. Maybe. You also argue that there is value in the prior effort expended in creating the idea, which may be true, but even Silas explained to you one possible market solution to these problems - with 'arbitrage'.
But, like I said, this is utilitarian and there are arguments along the same lines against IP. Such as its crippling ubiquity when followed to its conclusion.
The problem I have with your stance is that it is logically inconsistent - and you seem to agree:
I don't believe I hold any contradictions at present; I'm pretty much leaning toward non-IP but I'm honest enough to change my viewpoint given a persuasive logical argument to the contrary. The question is, are you? ;)
Published: March 18, 2009 5:20 PM
Andras
@Gary Hall,
I have admitted that I consider it as a compromise as I agree with Mises:
"It is beyond the scope of catallactics to enter into an examination of the arguments brought forward for and against the institution of copyrights and patents. It has merely to stress the point that this is a problem of delimitation of property rights and that with the abolition of patents and copyrights authors and inventors would for the most part be producers of external economies."
I think from this viewpoint, compromise is not a logical inconsistency. It is simply admitting that we have no way to know better (as would be to admit that we can not plan the market or know the future.)
To follow upon this, I can accept a middle ground but I can not an extreme No-IP position similarly as I can not the other extreme, a permanent time restriction. (In this sense copyright and patent laws are very different.)
I can accept a socially set compromise but I strongly disagree with any and all scientistic or pseudo-scientific philosphical argument.
About Silas' arbitrage idea: while it is a great idea, it can not replace IP Laws. Without the latter, IP stays externalized. Moreover, Influencing the market to the inventor's advantage would be easily lost in the background noise of rumors and false ideas and even if it works it is only but one dimension of the limitless factors of inventions.
Published: March 18, 2009 6:02 PM
Ron
I want to pick a minor nit with Michael Clem's assertion about fraud. If someone copies a book, claims it as their own work, then sells it to a consumer, this would constitute fraud. However, it's important to note that it is not the author being defrauded, but rather the consumer. This is because the purchase was made under false pretenses, and the consumer did not receive the product that was promised.
Published: March 18, 2009 6:27 PM
Gary Hall
@Andras:
We appear to differ on two counts. Firstly, I believe that the non-scarcity of IP is enough to differentiate it from physical products and this differentiating factor is enough to disclaim that IP is subject to ownership. Would property rights apply in a world of infinite plenty?
Secondly, if property is to be protected and IP is property, then IP should be protected. But IP necessarily violates property rights. This suggests to me that there is a faulty premise: that IP is property.
Published: March 18, 2009 7:25 PM
Deefburger
I think the vice issue as it involves plagiarism is being confused with the law issue as it stands concerning plagiarism. Plagiarism, per se, does no harm to the original author. What it does do is makes the plagiarist a liar. Lying is a vice not a crime, unless you are under oath in a court of law.
The lie is to the purchaser or reader of said work. Again, the original author is not harmed. However his reputation as an author is dependent on his being first to market with his own work.
The other problem for the would be plagiarist is his own reputation as a writer. He doesn't have one, and he isn't creating one by plagiarism! It's a loosing proposition in the long run. Plagiarism can only be of benefit to someone in the short term, and so is not likely to be a problem in the market for any truly original, repudiated authors.
Furthermore, most arguments about copying and the market place are from the current "copyright law" perspective. The fear of being "ripped off" and "tied up in court" is real in that scenario. An original author could and quite often has, lost the right to his own work because a plagiarist or dishonest publisher beat him in court.
Now, if the plagerized work was changed and then sold as the original author's work, then that is fraud and damaging to the reputation of the original author. It is no longer a vice, but a defamation.
If the work is copied faithfully, credited properly to the original author, and printed, bound and distributed, it's a product called a book.
Published: March 18, 2009 7:53 PM
Peter Surda
@andras:
> I see a contradiction in your argumentation. If IP
> was not property and had no value why do you
> consider stealing or plagiarizing it even a vice?
After two months you still don't get it? IP is a right to exclude third parties from using something. Such a right does not define property, it is an optional byproduct caused by rivalrousness of the object in question. The term "Intellectual Monopoly" suggested by Drs Boldrin and Levine is a much better fitting description of this right.
People that argue for IP seem to confuse this right with property, therefore do not to want it to be optional and use positive rights to make it mandatory. In other words, use state laws to "fix" economic laws, with the usual consequences.
Published: March 18, 2009 8:33 PM
Andras
@Gary Hall (and Peter Surda),
I understand perfectly your position and still say it is wrong. Acknowledgement of Property Rights, even if you declare it unalienable or axiomatic, is still arbitrary as the rules of homesteading is arbitrary. Once the framework is settled the system can be built. However, the entry points of this system still remain arbitrary. And since IP always enters the system from outside, the rules of its entry is always arbitrary. (And these rules decide whether IP becomes internalized or externalized). It is valid for every property rights not just for IP. And yea, it involves monopoly like every true property does (when acknowledged).
An invention and the idea behind it, by disclosure, undergoes a transition from being absolutely scarce, unique to the potentially "infinite plenty". The fact that anybody (or those who trained in the art) can understand and copy it just proves that it is not black magic. You consider only the final stage. This is one view, an extreme one, and I try to live under it if it comes to that but I cannot accept it as ethical either.
Just consider this and try to explain: the more desperately a new idea is needed i.e., the more people will copy it the faster its scarcity diminishes and, according to anti-IP proponents, the stronger the claim will be that it is worthless. The more it is needed the stronger your claim that it is worthless. Isn't it a contradiction?
Who will generate these ideas if their generators are brutally cannibalized immediately upon disclosure? What kind of ideas do you expect under these conditions. Short term ideas with instant returns. However, solutions to big problems hardly fit this profile. It follows that, under non-IP, humanity will loose its ability to adapt.
Call it utilitarian, I agree, like every compromise.
Published: March 18, 2009 9:30 PM
Les
Please help me out here. I am not an economist, but reading a lot of Austrian books. What I gather is that most if not all of this body eschews all government intervention and regulation on the economy. How is IP any different?
Published: March 18, 2009 9:46 PM
newson
andras says:
"the more desperately a new idea is needed i.e., the more people will copy it the faster its scarcity diminishes and, according to anti-IP proponents, the stronger the claim will be that it is worthless."
estimating the cost of excluding imitators, via technical or commercial means, forms part of the innovators' entrepreneurial decision-making in FREE-THOUGHT-WORLD.
besides, not all business decisions are stand-alone profitable. (think of loss-leaders in retail). motives many not even be monetary. i might release my cure for cancer in return for being immortalized. screw the profits, i want glory.
Published: March 19, 2009 12:19 AM
Brian Macker
"How is IP any different? "
That depends on how you define IP. If you define IP in a way that is incompatible with property rights then the enforcement of IP will be an intervention or regulation of the economy. Currently IP as embodied in Patent law is incompatible with property rights.
If you define IP in a way that is compatible with property rights then enforcement of IP would be supportive of free markets, in the same way that enforcement of property rights is.
See Patents and Copyrights by Rothbard, who is as Austrian as they get, for a property rights compatible version of IP.
Published: March 19, 2009 1:30 AM
Andras
@newson: "I might release my cure for cancer in return for being immortalized. screw the profits, i want glory."
Are you joking, right? What about the thousands who are needed to co-operate to solve such a complex problem? Screw them, too?
Besides, under no-IP world, there is no room for co-operation. Yours is one reason why you won't have to face this problem. You will not find any solutions.
A FREE-THOUGHT-WORLD: From all according to one's ability to all according to one's need.
Isn't it familiar from somewhere?
Should I consider this as your best offer?
Published: March 19, 2009 1:35 AM
newson
andras,
relax, it's called hyperbole.
but if you don't know the cure for cancer, how can you possibly presume that i need to collaborate with anyone? and even if people were to have collaborated with me, they will have done it for wages or some other motive, and don't need any additional pay-off. (i'll take it as a given that you don't accept altruism as a concept).
Published: March 19, 2009 2:28 AM
newson
THOUGHT-CRIME...isn't it familiar from somewhere?
Published: March 19, 2009 2:31 AM
Peter Surda
@andras:
I'm trying to understand your post, but I'm having some trouble comprehending it.
> I understand perfectly your position and still say it is
> wrong.
I am not entirely sure you understand our/my position, but let's assume you do.
> Acknowledgement of Property Rights, even if you
> declare it unalienable or axiomatic, is still arbitrary as
> the rules of homesteading is arbitrary.
Depending on how you approach the question of property, it is indeed true that you might arrive at different results. However, in order for me to at least potentially accept such a definition, I expect it to be consistent, and have a lower degree of arbitrariness than the competing definitions. I believe this is called parsimony. The introduction of IP breaks consistency and increases arbitrariness, therefore my reluctance to classify this right as a property right. At least Ktibuk tries to "fix" the arbitrariness by declaring that IP should not have a time limit.
Furthermore, once you introduce economics into the discussion, the problem becomes even more apparent. Property rights are the inevitable result of scarcity, which is an empirically observable phenomenon independent on people's will. There are no such qualities in IP however.
> An invention and the idea behind it, by disclosure,
> undergoes a transition from being absolutely scarce,
> unique to the potentially "infinite plenty".
As Drs. Levine and Boldrin point out in "Against Intellectual Monopoly", an invention or an idea are abstract concepts. Assessing them from the point of view of scarcity is nonsensical. In order for them to be usable in the economic life, it is necessary to provide products and/or services based on them. And these are scarce, because they happen in the material world.
> The fact that anybody (or those who trained in the art)
> can understand and copy it just proves that it is not
> black magic.
The counterexample used in the aforementioned book is the famous "E=mc^2". Almost everyone knows it, but very few can actually utilise it. Knowing, understanding and utilising are different things. Only the last one is relevant from economic point of view.
> You consider only the final stage. This is one view, an
> extreme one, and I try to live under it if it comes to that
> but I cannot accept it as ethical either.
I am sorry but I don't understand this.
> Just consider this and try to explain: the more
> desperately a new idea is needed i.e., the more people
> will copy it the faster its scarcity diminishes and,
> according to anti-IP proponents, the stronger the claim
> will be that it is worthless. The more it is needed the
> stronger your claim that it is worthless. Isn't it a
> contradiction?
I think again you are mixing together several separate things. If the average cost of inputs decreases, it is reasonable to expect for the market price to drop. This has nothing to do with IP, it's just economics.
The second problem I see in your claim is a basic math issue. Even if the marginal profit decreases, your total profit can still increase, in fact can still be very high. This is a question of specific case rather than a general issue, and is influenced by whether the series is convergent or divergent.
> Who will generate these ideas if their generators are
> brutally cannibalized immediately upon disclosure?
First of all, as I said the idea and/or invention on their own have no value. It is their application (as products, services or labour) that has value.
Being an originator of an idea or invention gives you an edge. Whether it means extra time, prestige, or simply creating new options for your future activities. If you are able to utilise it, you win. You seem to be under the impression that this is somehow insufficient.
> What kind of ideas do you expect under these
> conditions.
Tons of empirical data summarised by the aforementioned book indicate that new industries shell out a rapid succession of innovations without any sort of IP. After the industry grows and established players emerge, they introduce IP to restrict competition and the rate of innovation decreases.
> It follows that, under non-IP, humanity will loose its
> ability to adapt.
What rather follows is that under IP, competition decreases and that negatively impedes the ability to adapt.
> Call it utilitarian, I agree, like every compromise.
If you use utilitarian arguments, you better be prepared to back them up by empirical evidence. Which seems to be against your claims.
Cheers,
Peter
Published: March 19, 2009 11:49 AM
Ken
I think student plagiarism could be handled as a species of fraud absent legal status for intellectual property. Consider: Spence (1974) argues that educational attainment may be considered a signal of future productivity. In addition, a grade in a given course (as well as a degree in a given course of study) is a representation that the student has mastered, to some or other extent, the subject material.
To, as Michael Clem put it, "copy and paste" and represent the work of another as one's own introduces a fraudulent representation of mastery of the subject material, the more so if there is a contractural agreement between the student and the instructor/institution.
In at least some private universities, this is the case: I have taught part-time at a state university. In my orientation, when we covered the student disciplinary handbook, someone noted that we were required to follow due process in cases of plagiarism, but private universities were governed by contract with the student. If the student signs a contract, among the terms of which is "I will not commit plagiarism," and then plagiarizes, she is clearly in breach of contract, and any permissible remedy is in play.
Me, I would do the full Wrath of God. ;-)
Published: March 19, 2009 2:58 PM
Jesse Walker
If IP is not property, why can breaching it be a vice?
The argument that plagiarism is a vice doesn't have anything to do with the fact that it also (sometimes) violates IP statutes. It has to do with the value of honesty.
If someone copies a book, claims it as their own work, then sells it to a consumer, this would constitute fraud. However, it's important to note that it is not the author being defrauded, but rather the consumer.
I agree. But it's certainly plausible to imagine an author or publisher organizing class action suits on behalf of defrauded readers.
Published: March 19, 2009 11:26 PM
Andras
@Peter Surda,
Thank you for replying. You are right, I was sloppy with my use of the concept "idea". My only excuse is that here all discussions imply that ideas are the ultimate subjects of IP. Why it is true in an abstract sense, ideas can not be patented or copyrighted even under the current system.
Since I am closer to accept the patent laws than the copyright laws I would suggest to discuss these and specifically pharmaceutical patents. I guess you want to abolish all IP so you would not mind. If so please reply and we could start a longer discussion. We should also find a place for our discussion as this thread is about tow die soon.
Best, Andras
Published: March 20, 2009 12:30 AM
Peter Surda
@andras:
Thank you for your reply. I would recommend you read the aforementioned book before continuing the discussion. It mentions the pharma industry too, let me quote just one example:
In Italy, pharmaceutical patents were prohibited until 1978, when the Supreme Court ruled in favor of eighteen pharmaceutical companies, all foreign, requesting the enforcement of foreign patents on medical products in Italy. Despite this complete lack of any patent protection, Italy had developed a strong pharmaceutical industry: by the end of the 1970s it was the fifth world producer of pharmaceuticals and the seventh exporter.
Published: March 20, 2009 7:35 AM
Artisan
The Boldrin book is interesting.
Despite its many argumentative flaws and the fact it comes nowhere near the compassion towards artistic creation that shows in some of von Mises writings full of insight (as quoted by a most surprising reference : thank you Dr Kinsella)… the book makes you feel, more than it demonstrates clearly, how legislation (dare I say especially in the US) has gone mad in many IP areas with no acceptable logic.
Still Mr Tucker says “Intellectual Monopoly” breach should not be considered a crime!
Sure, but what else?
I thought the philosophical question was just if an author has been at all (economically) harmed in any ways through plagiarism of his work or usurpation of his name.
No free market philosophy should shift the concern over such trivial matter as to wonder if a private court or a government judges should upon the matter …
Still, something must be clear: a “vicious” person can harm you even if not physically invading your property:
If a drunk shouts for hours in front of a hospital, he will disturb people needing a rest… and might even get “coerced” in jail till sober under today’s laws…though he doesn’t commit a crime…
A prostitute falsely claiming in public that a virtuous person is the father of her son, this might ruin a man’s career too…
So again: does plagiarism or name usurpation sometimes harm the author of an art work?
I still believe it can.
Where the analogy fails though: both the prostitute and the drunken have little incentive to do the above mentioned harm. In the case of name usurpation and plagiarism, money must be a more important incentive however.
Published: March 20, 2009 9:42 AM
Andras
@Peter Surda,
I have muddled through Tucker's abstract Levine&Boldrin. That was painful enough. The pharmaceutical part was full of lies and deception. E.g., the case of Italy, though it was big in drugs, it was all generics, as no original researcher invested in a thief. The same goes for India or Spain or Eastern Europe. Yes, without IP laws generics have a field day. Maybe not a day but a few years, than they run out of the loot and the entire industry collapses.
L&B also mention how all significant discovery were made without patents. It is a big misrepresentation of data, a lie.
Take, e.g., penicillin. It is true that Fleming did not patent his original discovery in the 1920-es. He could not as it was so vague. It took a huge international effort (a competition for patents) for more than a decade just to synthesize after years of struggle to determine the structure. Since than we are at the fifth generation of beta lactams and hundreds of thousands of compounds ahead. They are all patented and owned (and expired or on the way to expiration). The potency and characteristics are at least four magnitude better than that of the original penicillin-G. They saved millions of lives, all thanks to research made possible by IP. You can go through L&B's list and do the same. The facts are out there in Chemical Abstracts, even if this one little book of lies tries to erase them. I mention it as you were asking for facts. Again, it is important only if you are interested in them. Nowadays, ideology, social engineering is much more prevalent. World improvers are popping up from under every rock.
Published: March 20, 2009 10:11 AM
Michael A. Clem
To Lukas and Ron,
Yes, you're correct, it's not the author who has been defrauded, but the consumer.
Published: March 20, 2009 3:28 PM
Michael A. Clem
Oh, and possibly the publisher, if they failed to recognize the original author of the work, although the publisher could possibly be a co-conspirator with the false author. In any case, my point is that fraud is actionable without the necessity of IP laws.
Published: March 20, 2009 3:36 PM
newson
andras says:
"Yes, without IP laws generics have a field day. Maybe not a day but a few years, than they run out of the loot and the entire industry collapses."
this doesn't make sense. even if no new drugs are developed, generics are likely to earn sustainable manufacturing profits from existing compounds. besides, you miss the b&l's point. a country without ip protection hosts different industries; there's a natural selection process at work. b&l show how switzerland (before ip) attracted industries where trade secrets were effective in frustrating imitation (dyes, food processing, precision instruments and watchmaking).
the question to be asked is, did the ready availability of generics hurt or benefit the italians? if it benefited them, would you argue that this positive is outweighed by forgone opportunity profits to the ip-strong jurisdictions?
your argument presupposes that pharmaceuticals deserve special treatment vis-à-vis alternatives. removing the ip subsidy towards drugs may make surgery or other rival treatments more attractive. how can you say that this is necessarily a negative outcome?
i think we can agree that abolition of ip would change dramatically the way medicines are developed
Published: March 20, 2009 8:45 PM
Andras
@Newson,
We can agree that "abolition of ip would change dramatically the way medicines are developed".
Under current conditions, generics use 10-100 times less capital than original research. Yes generics will survive but original research will slow down to standstill at least for the first decade or two. Then they figure out how to adapt, e.g., build a fortresses like the Russian nuclear cities, and sell their products through personal contracts and inprison the patients to prevent theft.
By the way, try to escape a pandemic without drug. Just pray that a pandemic doesn't start during the interim period.
Published: March 20, 2009 9:26 PM
newson
to andras:
a decade or two to adapt? this is improbable. the health business is far too big, and there are far too many smart people for this sort of lag.
a pandemic occurs when there is no existing cure. having ip is no benefit whatsoever. the disaster is over by the time the experimentation is conducted. anyway, survival is a better incentive than money, and cooperation is far likelier when all the world is affected. if the earth were attacked by martians, the americans would be fighting alongside the syrians.
in your continued pleas for special treatment for pharma, your ignore that the pandemic would probably be treated by physical means. water, food treatment, face masks. like when i was in south america and cholera returned to peru. suddenly all the lettuces in the supermarkets in chile were chemically treated to stop infection. look at hk during the sars scare for another example.
Published: March 20, 2009 11:56 PM
Gil
". . . by the end of the 1970s it was the fifth world producer of pharmaceuticals and the seventh exporter."
But the question is: did Italy have the greatest innovators in field of pharmaceuticals? People could argue that parts of Asia sell DVDs en masse and at rock bottom prices, however other people would call these people 'copyright pirates'.
". . . b&l show how switzerland (before ip) attracted industries where trade secrets were effective in frustrating imitation (dyes, food processing, precision instruments and watchmaking). "
But those industries had barriers to entry - trade secrets. This isn't the same argument as saying the method/recipe is open and free to be copied by any producer.
Published: March 21, 2009 12:13 AM
newson
to gil:
i don't think b&l made any claim that italy was a hotbed of pharmaceutical innovation, merely that the industry flourished. but are you arguing that the italians are now better off with a less florid generic business?
trade secrecy costs are internalized, ip-costs are borne by all, users and non. some industries are more amenable to secrecy than others, but so what?
Published: March 21, 2009 12:23 AM
Andras
@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.
Published: March 21, 2009 12:26 AM
Gil
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?
Published: March 21, 2009 1:24 AM
Andras
@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.
Published: March 21, 2009 2:02 AM
newson
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.
Published: March 21, 2009 3:35 AM
newson
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.
Published: March 21, 2009 3:50 AM
Andras
@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.
Published: March 21, 2009 11:46 AM
lukas
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.
Published: March 21, 2009 3:27 PM
Andras
@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).
Published: March 21, 2009 11:17 PM
lukas
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.
Published: March 22, 2009 5:56 AM
Andras
... which is coincided with Capitalism and its respect for private property including IP.
Published: March 22, 2009 11:10 AM
coolio
We all know what the IP reveals:
http://www.ip-adress.com
Use an anonymizer or leave fingerprints. Thats it.
Published: March 22, 2009 5:00 PM