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The Real IP Pirates
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The Real IP Pirates

PiracyIt’s bad enough that IP advocates dishonestly use the word “theft” to describe use of your own property in contravention of a monopoly issued by the state. (After all, as Nina Paley reminds us, copying is not theft; when you use information to guide your action or configure your own property, the originator of the idea still has it.) But use of the word “piracy” to describe pattern-copying is going too far. Real pirates storm boats, rape, loot, murder; they break things; they leave the victims dead, injured, enslaved or at the least missing many former possessions. Modern IP “pirates,” of course, do none of these things.

So it is indeed ironic that in there is a connection between IP and real piracy: namely, they go hand in hand.

Patent and copyright originated in the machinations of sovereigns (monarchs, etc.) to win the loyalty and services of entrepreneurs and artists. “Letters Patent” and later copyrights were exclusive monopolies protecting various goods and services and their authors or purveyors for a period of time. As Historian Patricia Seed notes:

The word “patent” comes from the Latin patente, signifying “open.” Letters patent are open letters, as distinguished from letters close, private letters closed up or sealed. Letters patent came from a sovereign … and were used to … confer a right, title, or property, or authorize or command something to be done.

In fact, Letters Patent were used by the British Crown to entice pirates to become “privateers” (a fancy name for legitimized piracy), by giving them a monopoly over some of the spoils of their piracy for a given time. A notorious example is Francis Drake (I won’t call this slaver and pirate “sir”) who was given a Letter Patent March 15, 1587 to authorize his piracy, such as attacking Spanish ships sailing back from South America laden with silver, handing it over to the Queen after taking his share. (See David Koepsell, Let’s Get Small: An Introduction to Transitional Issues in Nanotech and Intellectual Property.) According to Wikipedia, Maritime History of England, Drake

made the first English slaving voyages, taking Africans to the New World. Drake attacked Spanish ships sailing back from South America laden with silver. He took their treasure for himself and his queen. He also raided Spanish and Portuguese ports. He undertook a circumnavigation of the world in 1572 and 1573. He discovered that Tierra del Fuego was not part of the Southern Continent and explored the west coast of South America. He plundered ports in Chile and Peru and captured treasure ships. He sailed up to California and then across the Pacific Ocean to the East Indies. He returned to England with his ship full of spices and treasure, so gaining great acclaim.

In other words, patents were originally used to authorize actual piracy. So it is ironic that modern defenders of IP claim to be opposed to IP “pirates”—even though real pirates (like Francis Drake) kill people, break things, and take things from people (and delivered slaves into bondage), while “information pirates” do none of these things.

Of course, Letters Patent evolved into modern patents. At first employed sporadically  by monarchs, later they became “democratized” as part of entrenched and more predictable state institutions. (One of the first patent statutes was England’s Statute of Monopolies of 1624.)

Related: see my post Don’t Call Them “Pirates”; and my article Intellectual Freedom and Learning Versus Patent and Copyright.

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{ 15 comments… add one }

  • David Koepsell October 17, 2010, 1:18 am

    I (obviously) love this little fact. But the irony is less stark when we consider that the fortunes of many modern IP-based companies were themselves borne of un-remunerated appropriation. Only after their fortunes and IP portfolios became entrenched have modern pharmaceutical, or even more recently, software giants become new believers in the power of IP. It’s my opinion that many staunchly “anti-pirate” activists are themselves modern privateers whose wealth has been built first on “theft” (which of course was often perfectly legitimate appropriation) which later becomes legitimated by the state which then protects their turf from others through artificial scarcity.

  • Crosbie Fitch October 17, 2010, 8:47 am

    You might also observe that the US Constitution empowers Congress to GRANT Letters of Marque (cf privateering) whereas it empowers Congress to SECURE (viz a pre-existing natural right vs a granted privilege) the author’s exclusive right to their writings.

    Letters patents and monopolies in literary works are granted. Natural rights are secured.

  • JdL October 18, 2010, 1:12 pm

    You seem to be genetically incapable of talking about copyrights or patents without lumping them together. Why is that, when they are nothing like each other? Patents protect general ideas that are extremely likely to be independently derived by others; therefore I agree that they are not valid. Copyrights protect completed works the accidental duplication of which is astronomically unlikely. Thus the creation would not exist, anywhere in the world, without the efforts of its author. It strikes me as completely silly to accuse those of us who support copyright as “dishonestly us[ing] the word ‘theft'”. There is nothing dishonest about it! I go into this further at http://www.strike-the-root.com/node/26134 .

    I’d be grateful specifically for a response to the following: someone creates a unique work (music, art, computer program, whatever). Suppose there were a way for that person to allow for access to his work only by paying him his asking price. I assume you wouldn’t complain that it was “cheating” for the author to make use of such a mechanism, right? I assert that it is reasonable to calculate the value that the work has brought to the world as the sum of what all people would willingly pay for access to it. Of course, without omniscience, nobody could guess what each person would be willing to pay, so the author would have to fix a price. Some people would get access for less then they’d be willing to pay; others would choose to do without. Still not cheating, right? Yet magically, if there is NOT such a mechanism, you sneer at the idea that people should not take as many free copies as they like. I think that such copying easily fits the definition of “theft”. Even if you disagree with this characterization, I completely fail to understand how you rationalize as “dishonest” the categorization of such actions as theft. Could you please explain?

    • Stephan Kinsella October 18, 2010, 1:39 pm

      “You seem to be genetically incapable of talking about copyrights or patents without lumping them together.”

      It is the IP advocates who lump them together under the umbrella of the propaganda term “intellectual property.” Of course they have some things in common, namely that they both are illegitimate, unlibertarian grants of monopoly power.

      “Copyrights protect completed works the accidental duplication of which is astronomically unlikely. Thus the creation would not exist, anywhere in the world, without the efforts of its author.”

      Copyright is not merely the right to prevent duplication, it is a bundle of rights including the right to stop derivative works and non-literal copies too. If you set an idea into the public then don’t be surprised if people learn from it and want to use it to guide their actions. Which is why copyright taken seriously literally can amount to censorship. It is horribly unlibertarian.

      So what if it’s unlikely that someone else would write MacBeth? If you don’t want other people to learn your secrets, keep it to yourself. If you don’t want them to learn things from you and acquire information they could use to guide their own actions, keep it to yourself.

      “It strikes me as completely silly to accuse those of us who support copyright as “dishonestly us[ing] the word ‘theft’”. There is nothing dishonest about it! I go into this further at http://www.strike-the-root.com/node/26134 .”

      Even if a copyrighted work is not likely to be independently originated by someone else, that still does not mean that copying it is theft. Theft implies the original owner no longer has the item. But when I copy a work the originator still has it. That’s why it’s not theft. This is so elementary that it boggles the mind that it needs to be explained–especially to libertarians.

      “I’d be grateful specifically for a response to the following: someone creates a unique work (music, art, computer program, whatever). Suppose there were a way for that person to allow for access to his work only by paying him his asking price. I assume you wouldn’t complain that it was “cheating” for the author to make use of such a mechanism, right?”

      Of course not. DRM and other means of exclusion are perfectly fine. This does not mean that information is ownable.

      “I assert that it is reasonable to calculate the value that the work has brought to the world as the sum of what all people would willingly pay for access to it. Of course, without omniscience, nobody could guess what each person would be willing to pay, so the author would have to fix a price. Some people would get access for less then they’d be willing to pay; others would choose to do without. Still not cheating, right? Yet magically, if there is NOT such a mechanism, you sneer at the idea that people should not take as many free copies as they like.”

      It’s up to the entrepreneur to find ways of exclusion. Drive-in movie theaters installed costly per-car speakers to prevent free riders. Before they did this they had no grounds for complaint if people watched for free from outside the property. If you build a glass house you have no complaint if people can see you taking a shower. If you don’t want people to see you, put up opaque walls. If you walk naked outside, people will see you. If you don’t want that, put on clothes. And so on.

      “I think that such copying easily fits the definition of “theft”. Even if you disagree with this characterization, I completely fail to understand how you rationalize as “dishonest” the categorization of such actions as theft. Could you please explain?”

      Because theft means taking something–so that the victim no longer has it. That is standard theft and we all agree it is wrong. You IP guys borrow this term and apply it to something that is not alike, in a disingenuous attempt to win your argument by making people think it’s similar to something they already agree is bad. It’s not similar since the “victim” still has the information; it is not taken from him.

      The only thing that is “taken” from him are the dollars he “could have” made by selling to the person that the copier gives a free copy to. But that means the dispute is over the ownership of those dollars. And libertarians already know the answer to this: the dollars are owned by the possessor (the would-be customer); and the artist has no right to his custom. You don’t have a right to customers or even to value in property; all these things depend on the actions of third parties, which the artist/creator does not own. Their complaints here are exactly like that of the local mom and pop drugstore that wants a law to stop wal-mart from competing with it and “stealing” “their” customers. This is exactly the same.

    • Crosbie Fitch October 18, 2010, 1:50 pm

      JdL, theft involves violating an individual’s privacy. Copyright infringement doesn’t. It’s simply an individual enjoying their natural liberty to make something similar to, or better than, what they have already rightfully received, but in contradiction to a crown granted monopoly.

      The natural mechanism that prevents someone stealing your intellectual work is known as the lock on your front door. You can invite one or more people to pay you to release your work to them, and they would be burglars or thieves if they contrived to force it from you. However, once you have given what was yours into another’s possession you cannot very well describe what they subsequently do with it as theft. If they read it aloud in public this does not steal your work from you. If they produce an abridgement and sell copies of it they do not steal from you. Even if they produce fair and true copies and compete with your printer they steal nothing. The idea that these competing copies ‘steal your customers’ is a figure of speech, nothing more. You may well feel that the monopoly entitles you and you alone to all potential customers, but it is just a privilege, an abomination, an instrument of injustice, a derogation of all individuals’ liberty. If anything it is copyright that steals from people a fraction of their own property, impairing its use through edict.

  • Terry Hulsey October 18, 2010, 1:42 pm

    Let’s do some real historical reading for a second and consider cases that I think are the sufficient counterexamples to disprove any theory that wants to annihilate all intellectual property rights.
    I happen to know George Gerpheide, inventor of the touchpad technology that you probably use every day if you own a laptop (http://www.entre-ed.org/_teach/cs-cirqu.htm). Before a critical meeting with Apple, he had taken out his last IRA to finance a prototype of his invention. In fact he was so broke that he was scrounging for airfare just to get to this meeting. Fortunately, as usually happens, someone with more courage than most steps up: One of the Apple executives took money out of his own pocket to get him to this meeting. The company was impressed and, as they say, the rest is history.
    Now, let’s revisit this history under the Kinsella regime. Gerpheide goes into the meeting, shows his prototype, and the company executive smiles a wolfish grin and says, “You know we’ve tested your invention and we _really_ like it. In fact we’ve make a copy, which, as Kinsella tells us, won’t hurt you a bit. Thanks for the gift, and don’t let the door hit you in the butt on the way out.”
    Your regime WILL financially hurt such inventors, WILL discourage those adventurers who are otherwise willing to risk everything to turn an idea into useful technology. Until you can convincingly answer such counterexamples, talk of annihilating intellectual property rights is completely otiose.

    • Stephan Kinsella October 18, 2010, 1:50 pm

      There is simply no argument here. What is the argument for state grants of monopoly privilege? That without this some innovation will be lost? Is that really an argument? Just your gedankenexperiment where you can imagine some innovation would not be made without IP law? Well how much? What about innovation that would be lost in an IP world–and there is some. How do you know there is net innovation gain? That more innovation is spurred than is lost? How do you know the value of this alleged net innovation gain is greater than the cost of the IP system? What are the numbers? Do tell us, please! I predict you will not even try. None of you ever do.

  • Terry Hulsey October 18, 2010, 1:58 pm

    Seems like you can’t tell the difference between a Gedankenexperiment and an Aktuellesexperiment, the concrete details of which seem not to interest you. –And you must make this dodge, because to address the example would be to say, “You, Mr. Gerpheide, DON’T deserve the reward of your risk and perseverance.” But you do implicitly concede that innovations would be lost after your annihilation of all IP rights, so to that concession I say: Quod erat demonstrandum.

    • Stephan Kinsella October 18, 2010, 2:03 pm

      Terry, what does Mr. Gerpheide’s practical difficulties in figuring out how to profit from ideas have to do with libertarianism? why not be upfront about this? Just say: “I Terry Hulsey think that the purpose of libertarianism is not liberty, is not property rights, but to find some set of state laws and agencies that make sure Mr. Gerpheide can profit from his ideas without having to come up with his own means of exclusion.” I didn’t know that’s what libertarianism was about. Hunh.

    • Stephan Kinsella October 18, 2010, 2:14 pm

      Terry, you call yourself an anarcho-capitalist on C4SS and LRC. How in the world can you square that with your support for state IP legislation? You do realize IP requires legislation, and legislation requires a legislator, right?

  • Terry Hulsey October 18, 2010, 2:26 pm

    Stephan,
    I think that everyone in the forum admits that current IP is unworkable, mainly for two reasons: Because the state is the guarantor, and because the term of protection is often too long. Mr. deLaubenfels (JdL above, at 1:12pm) admits this, and is like myself (I would like to think, anyway) very reasonable. But because you have made a doctrinaire exclusion of considering ANY form of IP, you cannot go down the path of how to get the state out of the picture. And yes, I do think that any idée fixe about liberty that does real harm to real people like Mr. Gerpheide is unjust and should not be adopted.

    • Stephan Kinsella October 18, 2010, 2:42 pm

      Terry,

      “current IP is unworkable, mainly for two reasons: Because the state is the guarantor, and because the term of protection is often too long.”

      Without a state there can be no IP. Do you think there can be taxation, the bureau of export controls, drug laws without the state? As for the term: if it’s too long, and if 0 is too short, please tell me what “the” “right” term is–and how you know this.

      “Mr. deLaubenfels (JdL above, at 1:12pm) admits this, and is like myself (I would like to think, anyway) very reasonable.”

      It’s not reasonable at all. It’s based on confusion about the nature of property and rights.

      “But because you have made a doctrinaire exclusion of considering ANY form of IP, you cannot go down the path of how to get the state out of the picture.”

      The question to me is whether IP is justiifed, not whether pretending that it is justified would be a useful ruse. I suppose it’s possible that if I dishonestly pretended to like *some* IP I might ingratiate myself to the state and have a better chance at making some incremental reforms. But I’ll leave the lying to others. I happen to prefer to be honest and call a spade a spade.

      “And yes, I do think that any idée fixe about liberty that does real harm to real people like Mr. Gerpheide is unjust and should not be adopted.”

      So, you apparently believe liberty is about not opposing any rules the absence of which would “harm” “real people.” Sort of like the absence of a social safety net would “harm” some “real people” because they would not have income in their golden years. I can see this “do no harm” idea has lots of potential! Just don’t let the politicians know of before you know it we’ll have all manner of bad laws justified on these grounds. Oh, wait–

    • Crosbie Fitch October 18, 2010, 3:06 pm

      Terry, what ‘does harm’ to the inventor is the current con of patent that pretends an inventor can reveal a secret and still keep it (eat cake and still have it), to give someone a peek, but have the state oblige the peeker to pretend they hadn’t seen it until the privileged party permits.

      All that happens today is that the naive inventor wastes a ton of money on filing and courting before they eventually find out that instead of a means of preventing anyone else producing their design, they simply have a petty ‘license to litigate’. And then they realise they have to go through another process of finding just the right customer who might actually pay something to add the patent to their portfolio – nothing to do with actually manufacturing the device.

      If patents are abolished it does the likes of Mr. Gerpheide a favour. It let’s them rely upon their natural instincts, that they must rely upon trust (that they cannot easily trust unscrupulous mercenaries), that competition is about execution, not just ideas, that to be paid for one’s ideas one must build up a reputation for coming up with good ideas, that ideas are best shared and improved upon.

      If there is any idea today that is best kept secret, it still is. Patents do not incentivise the disclosure of good ideas, they protect a nation’s manufacturing base from competition by foreign and cheap imports. Follow the money, not the morons.

  • Terry Hulsey October 18, 2010, 3:13 pm

    “Without a state there can be no IP.”
    >>Why not say “Without a state there can be no P [as in property].” Clearly there is property without the state.

    “a social safety net would ‘harm’ some ‘real people’ ”
    >>I don’t see that as comparable. Remember, we are agreed that Mr. Gerpheide would be harmed. The question is to what extent, or, as you would imply, whether the anti-IP omelette can tolerate cracking a few creators. Or, to paraphrase the familiar joke, “We know what you are, madame; we’re just haggling about the price.”

    • Stephan Kinsella October 18, 2010, 4:18 pm

      Terry, there was property before the state. The state came in and took over. But there was no IP before the state. This is a state invention. Like taxation.

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