James Surowiecki had an excellent article in the June 9 issue of the New Yorker about countries committing intellectual piracy. It includes a nice summary of how “stealing” patented ideas played a major role in the early economic development of the United States. In the process, it surveys some of the considerable historical evidence debunking the widespread myth that intellectual property is necessary for, or even makes a contribution to, economic growth.
In preparation for something special that I will finally complete this week (Rothbard willing) lets talk about this editorial from the New York Times.
The article starts accurately enough explaining the US government’s monopoly power of ideas saying:
The Constitution gives Congress the power to grant inventors a temporary monopoly over their creations to “promote the progress of science and useful arts.”
I am actually shocked at the strong language used here, the four letter word “monopoly” is rarely used in reference to any government service. At least in polite company. I would also like to point out the subjective language quoted from the constitution. “Useful arts”. Useful to whom? To the inventor? To consumers? To the government? To humanity? Like most state activities the ability to decide what is “useful” is left to bureaucrats in service to the government rather than in the free market where useful services will generate profits and those that generate disuse (or disutility) are met with losses. Back to the article though:
“But in recent years, the government has too often given patent protection to inventions that do not represent real scientific advances.”
No argument there. The “copyright troll” phenomenon is more than enough to make this libertarian squeamish. Where is this editorial going I wonder?
“The issue in this case, Alice Corporation Pty. v. CLS Bank International, is whether using a computer to implement a well-established economic concept can be patented. The court should rule that such ideas are not eligible for patent protection.
Alice Corporation obtained four American patents that cover a method of settling trades between investors in currency and other financial markets. The approach depends on a neutral middleman to make sure traders complete the transactions they have agreed to. The corporation, which is based in Australia, has accused CLS Bank, a London-based company that settles foreign exchange trades for investors around the world, of infringing its patents.”
To make a long story short the US patent office granted the Alice Corporation a copyright on a form of interaction between a buyer, a middleman and a seller. An absurd concept to be sure. Now the question is what does the editorial suggest?
“The Supreme Court should make clear that nobody should be allowed to claim a monopoly over an abstract idea simply by tying it to a computer.”
I agree; but why stop there? Why the artificial endpoint of “abstract ideas tied to a computer”? If we shouldn’t allow patents on abstract ideas what would the author suggest if we proved that all ideas are necessarily abstract and therefore not able to be owned, sold, or monopolized? Would he follow his logic to the conclusion that perhaps all patents are invalid?
Adam recently posted that the British government is contemplating pretty outrageous penalties for Internet pirates. Naturally I wanted to chime in with an outrageously long comment about the nature of property and the (im)possibility of intellectual property (IP) rights. That’s just the libertarian thing to do! There’s a lot to say and it will take more than a few beers to sort this whole thing out, so I’m going to limit myself which means I’ll just raise more questions than I answer…
So let’s start with why IP doesn’t make a lot of sense. IP is information and information wants to be free. My use of a song doesn’t prevent you from using it. IP isn’t scarce in the way a car is. Besides, there’s some evidence that government enforcement of IP does more harm than good. And pirates end up spending more to buy IP than other people anyways (I usually listen to music for free on Grooveshark, but the other day I thought, “I’d really like to tell Willie Nelson that I think his music is great,” so I bought an album even though I could have listened to it for free!). And besides, musicians can make money by performing live.
But just because it isn’t a tangible thing, doesn’t mean we are forbidden from attaching rights to it, even in anarchy. Property rights are a “bundle of sticks.” I own my land, but you might have a right to the sunshine I would block if I built a skyscraper. Likewise, a society can come to some sort of quasi-unanimous agreement that the creator of a song has the right to control its use, even in the form of digital files.
Now, government enforcement of IP laws is fraught with difficulties even before we get to public choice issues. Should a patent be 20 years or 19.5? If the optimal patent length is 16 years, then the current system is a net subsidy and so creates economic inefficiency. But determining the optimal length in a world of benevolent political actors is an incredibly complex problem. How stringently should patents be enforced? How do we account for the differences in conditions that affect different patents (or copyrights, etc.)? This argument doesn’t say “don’t do IP,” it just says, “hey, this whole venture has its own set of costs we need to account for. It’s conceivable that we conclude that the optimal patent is probably between 5 and 20 years, but if we’re off by more than 4 years the costs of the error will outweigh the net benefits of the patent.
Then there’s the public choice problems. We don’t want IP law to be some Mickey Mouse operation set up to hurt consumers.
But (and that’s a big but!) we have to return to this issue of property rights. When I buy an apple, I’m concerned with the physical thing, but really I’m buying a bundle of rights. The rights are what’s being exchanged, and then later exercised. These rights are socially determined and often-but-not-always-or-even-mostly enforced by government. Yes, if I steal your car the government will probably get involved. Yes, the government provides a back-stop to rights enforcement in a lot of areas. But rights are ultimately a social-political construct that can exist in anarchy. What does this mean? First, it means that we could conceivably have intellectual property rights . Second, it means that we could have such rights in a state of anarchy.
Obviously the nature of the good will affect the viability of such a system. Enforcing IP laws is difficult enough when some third-party can come in and say “you’re a pirate and you’re going to jail.” In a common law situation where you have to make the plaintiff whole, it’s difficult to say what that means. Reputation plus property rights might keep comics from stealing others’ material, but it might just separate the comedy industry into auteurs with sophisticated audiences and Carlos Mencia with less sophisticated audiences.
We can safely label a law or institution as legitimate if it is unanimously accepted. In the case of IP, such unanimity seems unlikely. In any case, I still suspect that government involvement in IP does net harm although I’ll grant that it’s a (probably impossible to answer) empirical question.
There is a debate afoot now about whether one ever owns the likes of a novel, poem, computer game, song, arrangement or similar “intellectual” items. Some argue, to quote the skeptic, Professor Tom Bell of Chapman University’s School of Law, “Copyrights and patents function as a federal welfare program of sorts of creators,” while others, such as James V. DeLong of the Competitive Enterprise Institute, hold that “It is difficult to see why intellectual property should be regarded as fundamentally different from physical property.” I want to suggest a way to come to terms with this dispute in this brief essay and offer a possible resolution.
A major issue that faces one who wishes to reach a sensible understanding of intellectual property is just what “intellectual” serves to distinguish among what surrounds us in the world and how that contrasts with other kinds and types of possible property. What quality does “intellectual” point to about something? In my list, above, I am assuming that whatever is an invention or creation of the human mind amounts to potential IP, while others would argue that nothing intellectual in fact can constitute property, let alone private property. But this is merely to start things off, in need of clarification and analysis.
Some have proposed that the major element distinguishing intellectual from other property is that it is supposed to be intangible. So, for example, home or car or land parcels are tangible, capable of being brought into contact with our senses. However, a musical score or arrangement or a romance novel is supposed to be intangible – such a thing cannot be touched, felt or otherwise brought into contact with our sensory organs. Yet an immediate problem this attempt to distinguish intellectual property is that there are tangible aspects to inventions, and there are intangible aspects to these other items that are supposedly all tangible. A home is not just some raw stuff but a building that is the result of a combination of ideas, some of them inventions. Even land isn’t own exactly as it occurs in the wild but is configured by the more or less elaborate design work of landscapers. The same with whatever so called tangible items that function is property. A watch is not just some metal, mineral, glass and such assembled randomly but some assembly of such materials designed to show time and otherwise be appealing as well. In turn, a novel, song or computer game is also a combination of tangible and intangible stuff – the paper, typewriter or pen and the lead or ink with which the novel is written – only the author, and only for a little while, encounters the novel in intangible form after which the novel becomes an often very tangible manuscript.
The tangible/intangible distinction is not a good one for what can and cannot be owned and, thus, treated as distinctive enough to be related to owners. Indeed, the distinction seems to derive from a more fundamental one, in the realm of philosophy and its basic branch, metaphysics. In a dualist world reality would come in either a material or a spiritual rendition. Our bodies, for example, are material objects, whereas our minds or souls are spiritual or at least immaterial ones.
This goes back to Plato’s division of reality into the two realms, actual and ideal, although in Plato particular instances of poems or novels belong to the actual realm. A less sophisticated version of dualism, however, suggests the kind of division that’s hinted at through the tangible-intangible distinction. In nature we may have physical things as well as stuff that lacks any physical component, say our minds or ideas. Yet much that isn’t strictly and simply physical is intimately connected with what is, such as our minds (to our brains) and ideas (to the medium in which they are expressed).
So, the tangible versus intangible distinction does not seem to enable us to capture the distinguishing aspect of intellectual property. What other candidates might there be?
One candidate is that unless government or some other force bearing agency bans the supply of some item of intellectual property, there is never any scarcity in that supply.
There is certainly something at least initially plausible about this view. What is tangible is more subject to delimitation and capable of being controlled by an owner than something that is intangible. A car or dresser is such a tangible item of property, whereas a novel or musical composition tends to be fuzzy or less than distinct. One cannot grab a hold of a portion of a novel, such as one of its characters, as one can of a portion of a house, say a dresser.
Yet intellectual property isn’t entirely intangible, either. Consider that a musical composition, on its face, fits the bill of being intangible, yet as it appears, mainly in a performance or on a recording, it takes on tangible form. Consider, also, a design, say of a Fossil watch. It is manifest as the watch’s shape, color, and so on. Or, again, how about a poem or musical arrangement? Both usually make their appearance in tangible form, such as the marks in a book or the distinctive style of the sounds made by a band. These may be different from a rock, dresser, top soil or building but they aren’t exactly ghosts or spirits, either.
It might also appear that the theological division between the natural and supernatural mirrors the tangible-intangible division but that, too, is misleading since no one who embraces that division would classify a poem or novel as supernatural. Thus it seems that there isn’t much hope in the distinction some critics of intellectual property invoke. The tangible-intangible distinction seems to be independent of the usual types of ontological dualism and so the case against intellectual property, then, seems unfounded. If there is such a distinction, between ordinary and intellectual property, it would need to be made in terms of distinctions that occur in nature, without recourse to anything like the supernatural realm. Supposedly, then, in nature itself there are two fundamentally different types of beings, tangible and intangible ones. Is this right?
Again, it may seem at first inspection that it is. We have, say, a brick, on the one hand, and a poem, on the other. But we also have something very unlike a brick, for example, smoke or vapor or clouds. In either case it’s not a problem to identify and control the former, while the latter tend to be diffused and allusive. We also have liquids, which are not so easy to identify and control as bricks but more so than gases. Indeed, it seems that there is a continuum of kinds of beings, from the very dense ones to the more and more diffused ones, leading all the way to what appear to be pure ideas, such as poems or theater set designs.
So, when we consider the matter apart from some alleged basic distinction between tangible and intangible stuff, one that seems to rest on certain problematic philosophical theories, there does not appear to be any good reason to divide the world into tangible versus intangible things. Differentiation seems to be possible in numerous ways, on a continuum, not into two exclusive categories. Nor, again, does it seem to be the case that there is anything particularly intellectual about, say, cigarette smoke or pollutants, albeit they are very difficult to identify and control. They are, in other words, not intellectual beings, whatever those may be, yet neither are they straightforwardly tangible.
I would like to explore the possibility of a very different distinction, namely, one between what is untouched by human meaning and whatever is subject to it. For example, there would be no poems without intentions, decisions, deliberations and so forth. There would, however, be trees, rocks, fish or lakes. Is it the point of those who deny that intellectual property is possible that when people produce their intentional or deliberate objects, such as poems, novels, names, screenplays, designs, compositions, or arrangements, these things cannot be owned? But this is quite paradoxical.
The very idea of the right to private property is tied, in at least the classical liberal tradition – starting with William of Ockham, to John Locke and Ayn Rand – to human intention. It is the decision to mix one’s labor with nature that serves for Locke as the basis for just acquisition. In the case of such current champions of this basic individual right, such as James Sadowsky and Israel Kirzner, it is the first judgment made by someone to invest something with value that serves to make something an item of private property.
However all of this comes out in the end, one thing is certain: the status of something as property appears to hinge on it’s being in significant measure an intentional object. But then it would seem that so called intellectual stuff is a far better candidate for qualifying as private property than is, say, a tree or mountain. Both of the latter are only remotely related to human intentions, whereas a poem or novel cannot have their essential identity without having been intended (mentally created) by human beings.
Of course, in becoming owned, a tree and mountain does become subject to intentionality, as when someone decides to make use of such a thing for his or her purposes. And, conversely, even in the case of a poem, there are words that are as it were pre-existing and only their particular concatenation is a matter of intention.
I am not certain what the outcome should be from these and related reflections. They do suggest something that is part of both the ordinary and the so called “intellectual” property traditions, namely, that when human beings are agents of creation, when they make something on their own initiative – when they invest the world with their distinctive effort, they gain just possession of what they have produced. And if there is anything that they produce more completely than such items as poems or computer games, I do not know what it might be.
For me, then, the issue is this: When one designs and produces something novel that one has thought up, some gadget or machine or such, does one then own this design/product? And if someone else copies it, did they take something from the former against his or her will? If the answer is yes to the former, then I think the answer must be yes to the latter.
Whether the protection of one’s property occurs via this or that legal device — patent, contract, trademark, what have you — seems a secondary issue and detail. The first is ownership. Also, what one’s owning something one conceives and makes may mean for others who may be thinking up the same thing later is irrelevant, no less so than if one finds a piece of land and appropriates it and then later others, too, find it and would like to appropriate it but now may not.
Those, by the way, who complain that governments enforce patents and copyright laws, should realize that governments also enforce property rights in societies with governments. Governments in such societies are akin to body or security guards. Certainly, taxing others for this enforcement is unjust but that isn’t the essential idea behind the enforcement, not if one understands that copyright and patents could be protected without government, as well, just as other private property can be protected without government. But until it is government that protects — not establishes but protects — rights, it will also protect the right to intellectual property, if there be such a distinct thing in the first place. Taxation for such protection is irrelevant since taxation for the protection of other types of property is also beside the point.
Finally, that patents run out may be compared to the fact that ownership can cease with death, too. Of course, patents or trademarks or copyrights could all be reassigned from one to another owner, just as property in anything can be reassigned upon voluntary exchange or transfer. There is nothing necessarily odd about this, simply because the matter hasn’t developed very smoothly and consistently.