Regarding Intellectual “Property”
I highly recommend Kevin Carson’s “‘Intellectual Property’: A Libertarian Critique” (pdf), published by the Center for a Stateless Society. It is first-rate. So-called intellectual property is not just about rock bands “protecting” recordings. It’s about big dinosaur corporations attempting to subordinate people through the control of ideas. This big issue will only get bigger in the near future, and much is at stake. Whether one realizes it or not, defense of patents and copyrights puts one on the side of the opponents of liberty.
Cross-posted at Free Association.
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It really irks me when “anarcho-capitalists” decry IP and patent laws. I have news for you – when they go, it’s bye-bye capitalism as we know it.
Example: Steve Jobs pays talented people top dollar to design a superlative mp3 player. He charges a price for it that will allow him to accumulate enough money to keep such people – who don’t work cheap, and shouldn’t have to – in his employ so that they can continue designing superlative new products.
If we have no patent or IP laws, here’s what happens: some guy in China buys an iPod, pays a few bright grad students from a local university a comparative pittance to tell him how it works, and then starts cranking out cheap, but “good enough” copies – right down to the Apple logo and the iPod name – that people can buy for a third of the price of a genuine Apple iPod. He can do this because he doesn’t have worries like keeping high-priced but talented design teams adequately compensated.
The knockoff iPods flood the market, and Apple, since there are no IP or patent laws, can do nothing about it. Because the knockoffs are both “good enough” and considerably cheaper, they flood the market, such that Apple can’t compete against knockoffs of its own product. It then either goes out of business or fires its expensive design team so that it can reach a price point that will allow it to compete with the knockoffs.
Great for consumers, eh? You can get the same item cheaper! Woohoo! Except for one thing – I hope you like that mp3 player a lot, because you’ll still be using exactly the same design thirty years from now. Innovation requires talent, and talent doesn’t come cheap. Take away the mechanism that allows business owners to make enough money to properly compensate its talent, and innovation effectively ends.
I experienced this firsthand when I visited the Gorbachev-era Soviet Union. Everywhere there was gear – cars, record players, televisions, and so on – that looked like stuff the west had been using thirty years before. Many were, in fact, cheap crappy knockoffs of thirty year old western stuff.
That may work for you, but it doesn’t for me. Thank God for patents and IP. Sorry kid, but I don’t wish to IP Freely, thanks very much.
I think that it’s an appropriate opportunity to quote Steve Sailer, who wrote on his website in 2004, apropos Larry Lessig:
“As a pixel-stained wretch who would like to someday make at least a lower-middle class living writing books for pay, I say, ‘Forget you, Larry. I want every penny that’s coming to me, my kids, grandkids, great-grandkids and on, unto the 7th generation.’ It makes no sense that web libertarians are for cutting down intellectual property rights. Libertarians are supposed to be for property rights. The reason Lessig’s obsession is so popular with web libertarians is because they are greedy people who want something for nothing.”
I think Carson ought to spend some time considering the difference between libertarianism and anarchy as the whole of his piece is just shot through with arguments amounting to the latter.
By virtue of their own God-given gifts or efforts a man or woman comes up with a product—an idea. And because of the nature of that product it is supremely susceptible to being stolen, with patents or copyrights of course being the mechanisms by which we stymie that for a certain period of time at least. And yet here is Carson, essentially arguing in favor of that theft.
Example: Quoting Benjamin Tucker’s condemnation of patents, they are called “a reward enormously in excess of the labor measure of their services,—in other words, in giving certain people a right of
property for a term of years in laws and facts of Nature, and the power to exact tribute from others for the use of this natural wealth, which should be open to all.”
Except that … why is “the labor measure of their services” the true measure? Especially given how hilariously wrong Marx’s labor theory of value turned out to be? And why should the *admitted* “right of property … be open to all”? And why stop at stealing *this* form of “natural wealth” and not just go on and advocate the stealing of *all* wealth of whatever form?
I could go on and on. Whether quoting others or in his own words I don’t think I saw one thing Carson wrote that didn’t have such gaping holes in either their logic or morality or both. Trying to make some ridiculous distinction between “tangible” property and “intangible” property for instance. Or, in the end and even worse, trying to justify the thievery he’s advocating by talking about how socially beneficial it would be to allow it.
Accordingly, and despite having just finished with this most socialistic of arguments, the only thing that was left to him to try to put at least some gloss of respectability on his nutty obsession is to claim that it is “libertarian” because it limits the freedom of thieves to be thieves.
No wonder libertarianism has such a hard time of it with such cranks using its name.
Well said. Look, it’s been a long time since the value of an item could be derived from the cost of parts + labor required to build it. That comes from an era when people made their living with their backs. Now we live in an economy in which people make their living with their minds – a situation I rather like better. In other words, ideas like Carson’s had already become unworkable by 1780 or so when the Industrial Revolution began, never mind what it represents in the internet age.
“Open Source” software is often cited as a counter-argument, but notice how hard it is for people to come up with any *other* example. When was the last time you drove an “Open Source” car? “Open Source” isn’t a counter-argument, it’s an exception that proves the rule. I’m sorry – leaving the development of innovation in a technologically-advanced economy to unpaid hobbyists just ain’t gonna cut it. If you think it will, you’re living in libertarian la-la land.
Geez, true conservatism rears it’s head, from the TAC bloggers, no less. Good job all.
But let’s not let sarcasm and derision cause us to leave an intellectual stone unturned, here. There are two sides to every story.
If conservatism wishes for a government strong enough to protect us from foreign attack (militarily and economically), yet unintrusive domestically, what could possibly go wrong? What if the 4th estate goes corrupt, and the government follows? Then we would see large corporations get laws passed specifically to protect them, sometimes with unfair advantage. This legitimizes a liberal swing in public sentiment, to correct the problem.
Just as one tiny example, look at Microsoft, run by wildly liberal folks, allied with wildly liberal politicians. They manipulate copyright laws, and now there’s a federal law against repairing the motherboard in your computer. (A couple years back, when you called India to have a repaired computer “re-authenticated” to continue running it’s copy of Windows”, you often heard the person exclaim, in triumphal broken english, “hardware dies, software dies”.)
A paradox: the problem created by liberal individuals and liberal politicians, yet “big business-loving conservatives” get the rap.
Anyone who worked at Nike in the mid 80′s, knew that these wildly liberal (runners, outdoors, granola-eating) folks were developing the model that would pave the way for exporting American jobs overseas. All these shoes were made cheaply in Asia, and a pair of cloth and rubber shoes would be sold for $130. Everyone at Nike knew that the same Asian factory would sell it’s overrun to K-Mart, and the same shoe, sans “swoosh label”, would sell for $25.
Nike, run by liberals. Microsoft run by liberals. All shoes in the 80′s made overseas. Microsoft pioneered sending technical support overseas.
Protection of intellectual rights, run amok, causes carcerous growth of government. A tool used by the left for years.
Why is medical care so expensive? Very simply, the union-like mentality that prevents the existence of midwives, cheap local-community triage, and generic drugs and therapy. Compounded by an Insurance Industry geared to keep the consumer from examining the price of an individual service or supply item. (Not, repeat not, because of malpractice suits. That is, rake off the 10% of the most outlandish settlements, the $1 million for a cup of coffee a customer spills into her own lap, and then medical malpractice serves a legitimate function.)
Bottom line: if something is *very* expensive, look for government favoritism and protectionism… Also, look for liberals at the base of the problem, and look at conservatives getting the blame.
Apply the principles I have outlined, and you have a clear understanding of why the major automobile manufacturers are in trouble, yet that same company *outside the US*, can easily make a profit.
This has nothing to do with “cheap knockoffs”, or failure to protect intellectual rights. Rather, it is *theft*, under the cover of copyright, where individuals profit from government favoritism.
My argument does *not* negate any of the arguments above, but simply points out that the Libertarians are trying to make a legitimate point. But as the bloggers above point out, all things must be kept in balance, as we run into trouble moving too much to the right or the left.
Nergol said:
“Look, it’s been a long time since the value of an item could be derived from the cost of parts + labor required to build it.”
Except that the value of an item could *never* truly be derived from same. As my 101 Econ professor said, even in the time of cave-men the value of a spear that took 1/2 day to make and which enabled one to catch 10 fish a day is simply nowhere near the value of a net that took 1/2 day to make and which enabled one to catch 100 fish a day. Or consider the idea of the wheel over the alternatives.
What’s always been really valuable is intangible ideas, and yet it’s those same precise intangibles that Carson is arguing ought be left open to plunder.
Like Nergol says otherwise though, good luck with that, so long as I’m not living under it. Especially now that I’m getting older; somehow the glorious innovations of the Soviet pharmaceutical industry escape me.
Intellectual property law, so far as the Constitution of the US is concerned, is to promote the arts and sciences. To the extent that the return to the artist or inventor exceeds what is required to make that person produce art or inventions, it is rent. IP has nothing to do with capitalism except insofar as it produces another kind of property that may be sold, leased or licensed.
Eliminating IP would not end capitalism, but it might limit invention to tenure-seekers or PhD candidates in the sciences or engineering. It would probably also reduce the number of works of art that are produced by persons not assured a living by aristocrats or other rich types.
Recall IP is a monopoly given to an artist or inventor. Monopolies that last a long time are anti-competitive an hence anti-capitalistic. One need not be an anarchist to dislike monopolies. So the purpose of IP is not to give an artist or inventor an that person’s family a good life. Its proper function in a competitive economic system is to give just so much monopoly power as a reward to the artist or inventor to encourage invention.
So, even the artist and inventor, as citizens of a free and capitalistic society, should see something wrong with extending the monopoly beyond that function
Lots of us would drive open-source cars if the government would allow them on the roads.
I don’t care about IP rights. I do care that the attempts to rehome the proverbial genie is destroying our privacy rights.
Patents on inventions were originally introduced as a way to allow the inventor time enough to train two apprentices, I believe. This was to allow a head start to recoup costs – it was not about locking in rental rights on an idea for-ever-and-a-day.
I have an iPod. Nice bit of kit, but, when the battery died I had a choice: 1) send the unit back to Apple, and they send me a brand new blank unit with new battery for a fraction of the price – i.e. any new unit’s price already has a whopping margin; 2) buy an off-label battery kit online for a smaller price again, change it myself. The only reason this hasn’t been made illegal in the current IP climate is that they haven’t figured out a way to cheaply enforce it yet.
I like Apple, but there are dozens (hundreds?) of different MP3 players of different quality levels. There is also a difference between brand protection and patenting ideas; brand protection is arguably more moral and of higher utility to society precisely to highlight that higher quality in goods and services – this is similar to preventing fraud, or to notarising contracts.
People will not stop innovating just because IP laws are loosened up, whatever about abolishing them. Not only that, but IP law is being used to stifle innovation – e.g. Apple’s attempt to shut down alternative applications for it’s iPhone.
In bio-patenting, as elsewhere, a lot of what is happening has more to do with companies making small changes to repatent essentially the same stuff: it becomes like a form of corporate rather than national protectionism. This kind of innovation investment is arguably a malinvestment, since there is nothing hugely new of value other than the rent the company still gets from its ideas.
IP law has been hugely overextended in this area: not only can I be sued for theft if a patented crop’s pollen even accidentally winds up pollinating my own, but it is now illegal to save seed – even traditional, non-patentable heritage varieties.
I understand the attraction of the idea of an inventor getting rewarded for his work, rather than the idea being immediately being snatched up and used by others. But much current invention is done under contract anyway – the inventor gets a salary, the company owns the patent. Any company worth its salt would attract talent even absent rigorous IP law – for the first-mover advantage. Look at the fashion industry, for example, or perfumes.
As much as I like Apple, I am growing rather tired of their paternalistic smugness. The next computer system I get may well be a cheap knock-off or build of my own, with Linux and OpenOffice. I have no problem paying for this, especially if I can be assured of higher quality components and software – or in the case of American Conservative writers, the assurance of high quality writing concentrated and aggregated in handy “fingertip” file format. What I have a problem with is the Orwellian use of technology and law to police ideas themselves, in the name of commerce.
Look at this another way: if current digital IP law had been enforceable at the time of the invention of the printing press, we would have no public libraries; allowing other people to read your newspapers and books – or buying and selling second-hand books – would be piracy and subject to criminal prosecution, fines, and imprisonment.
One last thing: Carson does a very good job of providing an Austrian synthesis of the Labour theory of value in “Studies in Mutualist Political Economy”. In a nutshell: the value of labour lies in its disutility – what saves labour is valuable. He doesn’t discount the marginalist idea of value, only puts it in the context of a second order, temporary scarcity variation. (I think I have that close enough as a bumper-sticker bastardisation, but you can check my accuracy at http://www.mutualist.org)
An interesting thought experiment, at least to me:
Assume
A.) A society in which granted patents last forever
B.) A society in which there are no patent rights whatsoever
Which would you rather live in?
I suspect I’d chose A. Think of the intensity of competition there’d be for people to trump someone else’s eternal patent that does X with their own new, different and eternally patentable way of doing X.
Not that there wouldn’t be bad downsides, but in thinking about which society would have the worst of same it might indicate the position one at least wants to start from.
Cheers,
How fortunate I am, to be on the TAC blog, when seriously valuable ideas such as this article come along, for our consideration.
Carson says, “…’intellectual property’ protection since the late 1960s has been an integral part of the neoliberal revolution.”
He further states, “…It’s hardly coincidental that the dominant industrial sectors in the global corporate economy are all
heavily dependent on “intellectual property”: software, entertainment, biotech, pharmaceuticals, and
electronics. And the central focus of the neoliberal regime, which has been falsely identified with “free
trade” and “free markets,” is on strengthening corporate control over “intellectual property”…”
While the idea of “Center for a Stateless Society” seems anachist, and some of us suspect libertarians of being closet kneejerk anarchists, and the last line of his excellent paper is more joke than substance, still…
I am much the richer for having read this article, and despite having been a professional in explaining Intellectual Property Rights for over 30 years (occasionally, as a legal witness in software copyright cases, and as a trainer of Microsoft Technicians), I learned much about *both* sides of the issues from this scholarly work.
I think the reaction to this reasonable blogpost reveals a certain weakness of imagination. It’s as though people think that the free market can’t possibly work in any way different than the way it has worked in the recent past.
There are people doing open-source manufacturing, and rumor has it that they’re making money.
Why? Because consumers are rational, and they’re usually willing to pay extra either a) to consult with the inventor of the thing they’re building or buying, or b) to purchase it from him or her (even if it’s more expensive) in hopes that they keep up the good work.
People who do the latter thing are usually rewarded with high quality service. Who wouldn’t pay extra for that?
http://www.wired.com/techbiz/startups/magazine/16-11/ff_openmanufacturing
In any case, there are big equality problems with IP law (several people can have an idea simultaneously, an inventor with a good IP lawyer can pluck an idea out from underneath someone else, etc.). Ideas simply aren’t property in the same way that tangible assets are.
I am amazed that readers jump to connect anti-IP with anarchism. There is no reason why a strict limited-government person can’t oppose IP for the same reasons I do. (And an anarchist can be pro-IP; see Lysander Spooner.)
Anyone smell a rotten red herring?
awesome article thx!