Freedom and Piracy
After the non-aggression axiom, the right to own property has always been high on the list of fixations of those of a libertarian instinct. How property is defined, however, has been a matter of much debate, particularly with regard to “intellectual property”.
On the one hand, Ayn Rand wrote that “patents and copyrights are the legal implementation of the base of all property rights: a man’s right to the product of his mind” whilst, on the other, Roderick Long considers that “prohibiting people from using, reproducing, and trading copyrighted material is an infringement of freedom”.
So who is right?
Well, there are two strands to the debate and the first is to question whether intellectual property rights help or hinder progress. And I would argue they usually hinder.
Supposing, for example, someone discovers that cold fusion occurs when Dettol is mixed with HP sauce (original recipe).
Would the world be better served if he patented the formula and spent the next twenty years trying to develop it himself or would progress be quicker if he made the information available to all manufacturers to compete in developing the best DHPS generator?
And would it then help or hinder progress if the company who devised a working generator patented the design and prevented their competitors from building similar machines?
There is a real historical example of this happening when James Watt took out patents on the basic design of the steam engine and found they didn’t help much.
“Ironically, not only did Watt use the patent system as a legal cudgel with which to smash competition, but his own efforts at developing a superior steam engine were hindered by the very same patent system he used to keep competitors at bay.
An important limitation of the original Newcomen engine was its inability to deliver a steady rotary motion. The most convenient solution, involving the combined use of the crank and a flywheel, relied on a method patented in 1780 by James Pickard, which prevented Watt from using it. Ironically, Watt also made various attempts at efficiently transforming reciprocating into rotary motion, reaching, apparently, the same solution as Pickard.
But the existence of a patent forced him to contrive an alternative less efficient mechanical device, the “sun and planet” gear. It was only in 1794, after the expiration of Pickard’s patent that Boulton and Watt adopted the economically and technically superior crank.“
And thus the 18th century technological revolution was significantly delayed.
But the second strand of the debate is to ask whether a lack of IP protection is equitable – to companies who have invested in research and to individuals who have had their work copied.
Let’s take music as an example because, in music, there has been no effective protection of copyright since recording it became possible and, in the internet age, it is ludicrous to try to pretend that IP rights can be enforced.
Yet, even without any real protection, good musicians can still earn an excellent living and it is the big corporations that have lost out. Indeed, we have arguably never had a more interesting and vibrant music scene since the advent of file sharing- low barriers to entry for new artists and established bands producing live music, rather than relying on revenue from recordings.
Do we really want to go back to the days when record company executives devised and manufactured the “next big thing”?
But what about the lack of incentive for companies to develop new products if the profits cannot be protected? Would the new wonder drug that cures cancer be discovered at all if the results of research could not be patented and the company concerned reap the rewards?
On the other hand, is it ever reasonable that the patent holder of a new drug allows millions to die whilst they price it for the treatment of the very few that can afford it?
Not easy questions and it may be that, in a world without IP protection, there would be less total money spent on medical research (though I also think that the drugs market is skewed because of state involvement in healthcare provision and the regulation of medicines).
Anyway, perhaps inspired by the relative anarchy of the internet and the perceived need to defend it, it seems that anti protectionist views are gaining currency and, in Germany, the Pirate Party recently won 9% of the vote and 15 seats in the Berlin state parliament.
Absolutely astonishing for a party only founded in 2006.
Their platform is the preservation of rights in telephony and on the internet. In particular they oppose the European retention policies and Germany’s new internet censorship law. They also oppose artificial monopolies and various measures of surveillance of citizens.
I think I could vote for that.
Picture by SpaneNinja
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October 1, 2011 at 08:24 -
Since I’m not a libertarian I guess I don’t count but there appears to be some confusion here been IP qua IP and the manner in which the law frames that IP.
If – and I guess libertarians must believe this – property rights are inalienable and the things I create (note create, not think of – when I reveal to you over a pint of Old spot that it isn’t HP but Daddies sauce you need for cold fusion, I have no protection for that idea) are my property, then I must be permitted the support of the law from preventing use of those things without my permission.
There is a case for a debate about what is, or isn’t, ‘property’ but no libertarian case at all for saying property should not be afforded protection. Or that your use of my property without permission infringes my rights.
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October 1, 2011 at 08:45 -
The patent system has evolved into a method to stifle innovation and prevent the competition from producing something better. This is especially true in the US, where the USPTO will grant patents for trivial things, and it’s too easy to patent the bleedin’ obvious.
As an individual, if I patent something, it’s too easy for a large corporation with lots of $$$ to ignore my patent, knowing that I can’t afford to take them to court to fight my case. As such, the original motive for patents, that of protecting an individual’s invention for a limited period so he could make some money from it in return for making the details public, has long gone.
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October 3, 2011 at 13:31 -
Not sure about the evolved part. It’s pretty much always been a tool for stifling innovation and restricting legitimate competition, and a very powerful one. Boulton and Watt are just one example of effective historic use of it in this way.
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October 1, 2011 at 09:15 -
I notice that at the bottom of each A-R posting on Google Reader there is the ubiquitous (c) symbol!
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October 1, 2011 at 09:48 -
One or two points are off the mark, for example once you patent you MUST publish. Though, that can be worked-around by publishing in a little-known journal in an obscure language. Also, music copying is not an Internet-era phenomenon. People seem to forget that tape existed in various consumer forms from the 1960′s on, and that copying was rife even in those days.
Whether patents on mechanical engineering are good or bad is a moot point, but most people agree that patents on software should never have been permitted. Leaving aside the legal arguments as to whether software constitutes an invention, software patents have been extremely damaging to the end-user’s experience, by way of forcing developers to use unergonomic interfaces so as to avoid possible patent suits.
As for the effects of piracy, one factor I like to point out is that the canned music industry is itself guilty of putting countless small bands and singers out of business. Next time you hear a jukebox play in a pub, just think for a moment that the robot on the wall, playing licensed copyright recordings, has stolen someone’s job. Is that piracy? The music barons would say no. I’m not so sure.
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October 1, 2011 at 20:11 -
And next time you see a factory production line, just think for a moment that those robots on the shopfloor, doing manual work, have stolen people’s jobs. Is that progress? The captains of industry would say no. I’m not so sure.
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October 1, 2011 at 20:12 -
Damn, that’ll teach for me for trying to be clever.
It’s supposed to be “The captains of industry would say yes.”
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October 1, 2011 at 09:49 -
If someone invents or develops a process or artwork then of course they should be allowed to benefit from it. However, they must also recognise that their development was not made in isolation, it was made on the shoulders of previous generations, using existing techniques, equipment and processes and also the education, security and society’s nurturing of their talents.
I would have thought about 10 years protection would be a good compromise, the existing system is ludicrous. -
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October 1, 2011 at 11:46 -
@ Simon
There is a case for a debate about what is, or isn’t, ‘property’ but no libertarian case at all for saying property should not be afforded protection. Or that your use of my property without permission infringes my rights.
If you write a song, is that song your property?
If I sing it, am I therefore using your property?
What about if I record myself singing it?
Or share or sell the recording?
I think, in the end, it is much more straightforward if we define property in terms of it being items of a physical nature only. The more difficult questions arise when we look at a physical item that is capable of being copied.
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October 1, 2011 at 11:46 -
Japan have no such protection and their technical innovation seems unaffected.
A patent may offer limited protection to a new development (due to the prohibitive cost of defending it), but thisprotection is outweighed by revealing the idea to the world. It’s no good protecting an idea in just one country and world-wide protection is incredibly expensive and only affordable by big companies.
So, how does Japan’s open system work so well? -
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October 1, 2011 at 13:10 -
The differences between copyright and patent have always seemed unfair to me. Take the compact disc as an example.
To make the compact disc work requires sophisticated mechanical, electronic and optical technology with a hefty dose of advanced mathematics. All this required considerable intellectual effort. To patent this invention great care had to be taken in describing it; that activity in itself probably cost a lot. At the end of this process a lot of money has been spent for limited protection for a limited time and there was no guarantee that any money would be made from the idea.
Meanwhile some idiot who can barely manage to string two words together has a good day and manages to do just that. Those words make a song. That song is copyright at no cost and protected for 75 years after the death of the creator.
The song gets recorded on a CD. A bit of luck really, as the format nearly didn’t take off as the american record companies baulked at paying a one cent royalty on each CD produced. That royalty being a one-off payment and all the patentee will ever get from the invention. Yet everytime the CD is reproduced. everytime the CD is played publicly, the copyright owner takes a cut.
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October 2, 2011 at 22:38 -
This is the first time I’ve seen the argument framed this way…. and you’re entirely correct, it doesn’t seem fair does it?
Similarly Rick Falkvinge, founder of the Swedish Pirate Party, floated this essay: Nobody Asked For A Refrigerator Fee
(well worth a read)
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October 1, 2011 at 23:07 -
“There are two strands to the debate and the first is to question whether intellectual property rights help or hinder progress”. James Watt took out patents on the basic design of the steam engine and found they didn’t help much (it didn’t stop competitors producing similar machines)”.
I propose a more recent example of how a company deliberately, as a company policy, refused to patent an invention they had made, which transformed tanker safety. The invention evolved from efforts to reduce cargo tank corrosion by eliminating oxygen from tank atmospheres, but it soon came to be realised in BP that as well as reducing corrosion Inert Gas (or IG as it quickly became known within the company) eliminated explosions. The development of IG as means of improving safety was spurred on by the British Crown explosion in 1966. The company developing the IG was BP Tankers, owned by the BP Oil Company. BP decided that details of IG should not be patented but be readily and freely made available to anyone who wanted it, as an effort to increase oil tanker safety. I was working in BP Tankers at the time, almost fully employed in IG, and I recall that there was a huge amount of opposition from major tanker owners, mainly on the grounds of cost. On of my functions was to conduct Superintendents from other tanker companies around our IG’d ships, explaining it all to them. So BP’s ships cost more to convert, to and build, compared with competing tankers, but BP’s steel repair costs reduced and this became noticed in the trade. However in December 1969 the VLCC Marpessa exploded and sank, a few days later the sister VLCC Mactra also exploded but did not sink, although 2 crewmen died, and a few days after that the VLCC Kong Haakon exploded. None of these ships was IG, and after this the swing of opinion was quickly, and irresistibly towards IG.
Has anyone noticed that nowadays tankers don’t explode? Is there anyone left alive who still remembers that explosions in tankers were just one of the risks tanker crews lived with? Thousands of seamen now living who would have surely died. Hundreds of ships undamaged by explosions, tens of them not sunk.
All as a result of a board room decision by BP, (recently the object of a world-wide vilification campaign because of it’s deep-well failure in the Gulf of Mexico).
Perhaps the world should remember IG as well as Mexico. -
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October 2, 2011 at 12:30 -
You mention the patent on the crankshaft impeding Watt’s work. This in itself was ludicrous, in that the crankshaft principle was known in Ancient times. An even more ludicrous example precedes it, in that Newcomen, the first to build a workable steam engine, had to take Thomas Savery into partnership because Savery held a specially-extended patent on the ‘fire engine’ as steam power was then called.
Savery’s primitive design had several key flaws that made it largely unworkable, yet the patent system enabled him to use this fact to hijack the profits of a competitor whose more-mature design did work. Thus the patent system favours the guy who rushes-out an incomplete or unusable device, over the guy who builds one that works.
It could also be assumed that some of the guys developing a particular area of technology will stop once a competitor takes-out a patent which might stymie their work. Thus, we don’t actually know how many technology advances have been lost due to patents granted on immature designs. But, it’s probably quite a few.
More recently, Dyson was able to patent the cyclone vaccuum cleaner when applied to domestic use, whilst similar dust-filtering apparatus has been used in industry for at least a century. As I see it this was not an innovation but merely a marketing exercise, to sell an existing device into a new sector. Yet, the patent was granted.
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October 2, 2011 at 19:33 -
Quite a few commentors take the “stealing peoples jobs” line which is an emotive expression and could be in need of serious revisiting.
Examples of Watt & co. should remind us of the labour conditions which existed before steam. To cut a long story short, they were bloody awful. So people gravitated (interesting word, “gravitated”=”to move downwards”) from cottage industries to factories, and found it better! Better. Working in a factory, in a dark satanic mill, was better than working in a cottage, on a farm, a barge, a mill, better than anything else they knew!
Yet your commentors might say that those poor souls lost their jobs to machines!
To a patented machines!
Notice what happened, they lost their jobs, and found work which actually offered them a better life than they had before.
And so it has gone on ever since.
So, what’s the beef? -
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October 2, 2011 at 21:28 -
@Andrew, The fact that robots replace manual work is a market force determined by the relative efficiency of the two approaches to manufacturing. It is not a restrictive practice. Anyone is free to make a shopfloor robot if they so wish, patents aside, and the robot can be programmed to make any desired goods, and so long as the goods don’t carry fake identification they can be broadly similar to brand-leader goods.
Where music licensing is concerned, that is not the case. Apart from the restrictive practices in the supply chain, even producing a song which is minimally similar to a to hit, perhaps even just two bars of identical notes, is a copyright violation. This even makes songwriting without bigtime legal protection behind you a risky business. A simple mistake of unknowingly pressing a few keys in a previously-used order could land you with a massively-expensive court case.
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October 3, 2011 at 06:34 -
For a balanced and very entertaining overview
http://www.ted.com/talks/lang/eng/larry_lessig_says_the_law_is_strangling_creativity.html
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