Patents and Utilitarian Thinking

That’s the trouble you get when you reach that threshold level of taxation beyond which the fleeced consider government to be “where all the money is.”

Utilitarian thinking is flawed, but in the case of intellectual property, the supposed costs of not having intellectual property recognized in law are such that a lot of libertarians who normally agree with critiques of untilitarianism support IP rights. I’m working on an essay right now to show alternate paths of innovation in the absence of IP rights to “convert” such people. (Email me if you’re interested in seeing what I have so far.)

Regarding the reward system, it doesn’t have to be through the government. I was just in a discussion on another board discussing the public goods problem when someone suggested a private reward system as an alternate means of developing drugs. People would offer a prize for developing a drug that would do X, which would go into a pool. When the reward exceeds the cost of development, someone would produce the drug.

“Just goes to show you, utilitarian thinking leads to statism.”

Whereas innovation leads to freedom. For as computer scientist and entrepreneur Ray Kurzweil writes in The Law of Accelerating Returns (http://www.kurzweilai.net/meme/frame.html?main=memelist.html?m=1%23610): “The evolutionary process of technology seeks to improve capabilities in an exponential fashion.  Innovators seek to improve things by multiples. Innovation is multiplicative, not additive.” The result is that “paradigm shift times are [now] halving every decade (and the rate of acceleration is itself growing exponentially).  So, the technological progress in the twenty-first century will be equivalent to what would require (in the linear view) on the order of 200 centuries.”

If so, then technological progress over the course of this twenty-thousand-year century will be so rapid as to render copyright and patent law moot, the time span between the emergence and obsolescence of any given technology shrinking in inverse proportion to “Kurzweil’s Law,” the returns from which will eventually overcome scarcity. Thus will what Keynes called “the economic problem” (never mind that his statist policies only exacerbated it) be solved once and for all, which in turn will render the state null and void, there being no reason to confiscate goods when they are as abundant as the air we breathe.

Don’t believe me? As Kurzweil writes elsewhere, “stick around.” And leave linear thinking to the state.

Once I had refined my invention from my 25-year-old seeds of inspiration, by 1994 I was telling people on internet newsgroups about a “new way” to think about art, commerce, self-sufficiency and innovation–complete with contests & prizes for the most inspired pieces of original digi-art (“You are an artist” was always my first sentence of those early newsgroup posts). Metals-backed currencies, private enterprise, cyber-worlds with real economies and little-to-no regulation–all working together with the genius of participants to bring about an end to the encroaching global welfare/warfare state.

In 1995, when I started showing my unique ideas to the financing world with naive hopes of seed money, the response I got was along the lines of: “Go away now and die, please, or else our centuries-old scam will no longer work.”

I now have no choice but to bankrupt them. Ha.

FWIW, http://www.researchoninnovation.org/tiip/index.htm has (a pointer to) an NBER article on “Patents and Innovation”:

One difficult empirical puzzle is the relationship between patents and
innovation. Petra Moser looks at this issue with a unique dataset of
innovations exhibited at World’s Fairs during the 19th century. She
finds that countries with patent systems do not have a higher rate of
innovation per capita, but patents affect the industries in which
different countries make their innovations.

so would protection one’s creations all be done by contract then? seems inconvenient.

What is the relevance to questions of policy, justice, law, and rights, of guessing what would be “inconvenient”?

if you don’t have a viable replacement for what we currently have, your attack on IP is hardly going to be convincing.

Do you need a viable replacement for something before you can deem it incorrect?

Patents are incorrect in deeming one’s private property the property of another.

Simple.

You will have to seek out non-libertarian sites for utopian schemes.

I don’t know or care what works. I only care about what is right.

“I don’t know or care what works. I only care about what is right.”

If what is right doesn’t work, then what is right doesn’t matter.

^^ what he said.

“What works” is entirely subjective, since a situation that works for one person might not work for another, and vice versa. Robbery may work just fine for a mugger, but that hardly means that what is right doesn’t matter.

Right and wrong are not subjective, and ultimately, everyone is better off in a system that is right and just.

“everyone is better off in a system that is right and just.”

In other words, it works and is therefore not subjective.

I see no reason not to scrap copyright and patent completely, and fall back on prosecution for fraud.

Saying something is yours, and it’s not, is fraud. Saying you created something, and you didn’t, is fraud. Making money off of someone else’s work isn’t fraud, if you give credit where credit is due.

Thus we have “The Real McCoy” bearing oiler, or the Compaq computer. The Compaq and the McCoy demand premium prices because of their reputations for quality and features. They prosecute for patent and copyright now, it would be no different to the company if they were to be prosecuting copies or fakes for fraud instead.

Even the famous McDonald’s incidents, where the MacDonald’s restaurant corporation sent cease and desist letters (at least, I personally don’t know of prosecutions although I don’t doubt they’ve happened) to people who have named their restaurants “McDonald’s” would be unaffected. They may base their efforts on copyright or trademark, but the fact is that anyone trying to gain benefit by using the name in order to leverage the McDonald’s corporation reputation is again guilty of fraud.

It would, however, protect the guy who’s name is McDonald and who wants to open a restaurant and name it after himself. No fraud, but dangerous to do under the absurd copyright laws in place today.

Paul, David, it’s all subjective anyway. All of this is. That’s why we have juries.

Linux is open, but not in the public domain and relies on copyright (the GPL) to remain “free”.

The difficulty is akin to wanting to make part of my property a public park (forget for this message such things as liability for those who do dangerous things and will sue me for not posting “don’t do things that will result in closed head injuries” signs).

I create easements. Unless I station porters with papers and pens having every entrant sign before coming in, I can’t preserve my rights. There is no equivalent of a GPL for real property where I can admit people freely yet not have problems.

But my point with this is also the artificiality of real “property” as much as IP. Is it who can or will do violence to defend it? Must they improve it (and how trivially)? Yet we allow and recognize ownership of real property (and associated rights such as minerals) because we deem it more efficient.

If the noospehere is to be homesteaded (see Eric Raymond’s work of this name), we might also need enforcable rights, though not necessarily what we have now. A broken system does not prove all systems are inherently dysfunctional.

If we have greater wealth with such things as deeds for well defined real property, we might also get greater wealth with rights to IP. The argument I would accept is to show the term of such rights is zero – that we would have the greatest number of artistic works and inventions without IP rights.

Also note a trademark is an IP right. Note that MacDonald’s restaraunt also sent a C&D; to the head of the scottish McDonald’s clan who ought to have more right to the name than some abstract corporate entity. The value in a trademark is also an intangible.

“What works” is entirely subjective, since a situation that works for one person might not work for another, and vice versa.

same for morality, sorry.

If morality is subjective, then so is the law, in which case the law is whatever the mightiest say it is. This of course of nothing other than the law of the jungle, wherein everyone is “free” but no one has liberty, this being the very essence of statism.

Curt Howland: Saying something is yours, and it’s not, is fraud. … [Compaq and the McCoy] prosecute for patent and copyright now, it would be no different to the company if they were to be prosecuting copies or fakes for fraud instead. … MacDonald’s restaurant corporation sent cease and desist letters … to people who have named their restaurants “McDonald’s” would be unaffected. They may base their efforts on copyright or trademark, but the fact is that anyone trying to gain benefit by using the name in order to leverage the McDonald’s corporation reputation is again guilty of fraud.

No, there is one crucial difference: Who is the victim of this fraud? The buyer! So it’s the buyer who should sue the fake McDonald’s, not the real McDonald’s.

Please see this excellent article by Stephan Kinsella:

Click to access 18_2_3.pdf

starting at the section “Trademark and Contract” on the middle of page 59. This article completely changed my thinking (which had been like yours) about trademark.

Larry, thank you for the referral, I’ll check it out.

I do take exception with one thing you say, that the only victims are the buyers. The (for want of a better term) trademark holder is also harmed, losing a sale that they would otherwise have had if the buyer had known they weren’t actually buying the real McCoy.

TZ, the Gnu Public License is just a tool. It uses existing law, which came first, to ensure that no one can expropriate and close the works so licensed.

For example, code released under the far more allowing BSD license has been absorbed and utilized by proprietary software sellers without even recognition given.

I agree that it is more difficult with physical property to allow general use while retaining ownership, but neither tradition nor law is static. Building owners do it all the time with malls, parking lots, and private roads. I see no reason why you cannot do it with a park. You may just have to close it for one day a year, like they do with private streets even in downtown NYC.

Curt Howland: “I do take exception with one thing you say, that the only victims are the buyers. The (for want of a better term) trademark holder is also harmed, losing a sale that they would otherwise have had if the buyer had known they weren’t actually buying the real McCoy.”

Harm is not enough. I am “harmed” in this broad sense if my neighbor removes the rose garden in his yard that I enjoyed seeing. But I have no right to it. The TM holder has no right to the sale; he has no right to expect the customer to patronize him. The customer has a right to make whatever decisions he wants based on whatever information he chooses to rely upon.

Harm is not enough.

I think you misunderstand me. Deliberate harm, caused by deliberate use of someone else’s good name and reputation. A neighbor moving their rose garden is disposing of their own property as they see fit. Your “broad sense” is far too overreaching.

If Compaq wants to deliberately produce a piece of crap PC and sell it as a top of the line model, they are only abusing their own name and reputation. If I put a Compaq label on something I produce, that’s fraud. I don’t care who prosecutes it, customer I defrauded or company whose good name I utilized in my fraud. It’s still fraud.

Neither did I say that anyone has a “right” to the sale. The customer specifically wanted to buy a Compaq (still following that example) and in fact did buy the fraudulently labeled box specifically because it was fraudulently labeled. The fraud is the specific reason that the sale of a real Compaq was lost.

How about I publish papers under the name Stephan Kinsella, claim a copy of your CV is mine, sell your prior works as my own, and then deny your right to prosecute me for my misuse of your good name? I don’t mind making the example very personal, rather than metaphorical. It even works better.

It’s still fraud.

Right, I think that’s Stephan’s whole point; thus there is no need for trademark (or copyright or patent) law.

I don’t care who prosecutes it

I think you should care. Understanding who is the victim of aggression is crucial in formulating proper law.

Mr. Ruane, I couldn’t agree more. There is no benefit to the copyright/patent morass except to the lawyers who get to make money on it.

But then you say I should care who prosecutes for the formulation of proper law. Well, you and I have already agreed that the law is pointless. There is no need to formulate more law.

Demonstrate harm to a jury. No law required. The only thing a law could do is obfuscate the issue and provide something for a perpetrator to hide behind.

I realize mine is an extreme position. I am perfectly willing to admit that precedent and societal norms will mold the verdicts, expectations and evidence. Even the idea that I may not sue to protect my own good name against deliberate fraud may end up being the prevailing verdict.

I object to being told that I may not bring suit on that basis, even if I am pre-determined to lose. We do live with the tradition of innocent until proven guilty, by which measure every suit must prove both injury and guilt against the assumption that no harm was done by the defendant.

Howland: “I think you misunderstand me. Deliberate harm, caused by deliberate use of someone else’s good name and reputation. A neighbor moving their rose garden is disposing of their own property as they see fit. Your “broad sense” is far too overreaching.

But you are assuming you “own” your name and reputation. This begs the question. Are you unaware of Rothbard, Block, et al. and other libertarian objections to rights in reputations? See www.WalterBlock.com and Rothbard’s For a New Lilberty and/or Ethics of Liberty.

“Neither did I say that anyone has a “right” to the sale. The customer specifically wanted to buy a Compaq (still following that example) and in fact did buy the fraudulently labeled box specifically because it was fraudulently labeled. The fraud is the specific reason that the sale of a real Compaq was lost.”

But the fraud was not perpetrated on Compaq.

“How about I publish papers under the name Stephan Kinsella, claim a copy of your CV is mine, sell your prior works as my own, and then deny your right to prosecute me for my misuse of your good name? I don’t mind making the example very personal, rather than metaphorical. It even works better.”

I still don’t agree. Only marginal losers would do this. You can today publish Aristotle’s Nichomachean Ethics under your name. Anyone can. Why does no one do this? There is a reason.

Mr. Kinsella,

[P]ublish Aristotle’s Nichomachean Ethics under your name. Anyone can. Why does no one do this? There is a reason.

I can think of two.

First, it’s fraud. People get punished for such things. I recall a politician (Dick Gephardt?) from a few cycles ago running for president, who in his speeches quoted extensively from JFK without attribution. The press took him to task for it even though he was a democrat.

Term papers tend to be marked down for such acts as well.

Second, which leads back to the subject of this blog entry, it’s pointless. There is nothing to be lost by giving credit to public domain works where credit is due.

My favorite example is “Variations On A Theme By Paganini”, as compared to the trouble that George Harrison got into with “My Sweet Lord”. Without the absurdities of copyright, he could have simply given attribution to “He’s So Fine” and everyone would have moved on with their lives.

Are you unaware of Rothbard, Block, et al. and other libertarian objections to rights in reputations?

Completely. No need to beg. :^)

I’m glad to find out that the Titans of Libertarian Thought and I can disagree. There comes a point in endless agreement that it seems hardly worth the effort to read anything more.

Indeed one of your works on the subject has been directed to me because of this discussion, with the hope that I would not require you to restate everything here.

Against such Titanic Authority, I have no defense. I gladly admit that everyone else is right and I’m wrong.

…with one last observation: Libertarian writings, even those of the Titans, make much use of attributed quotations and bibliographies. Why go through all the effort? It would be much less expensive to the writer to simply leave it out. By doing so, they are recognizing value (dare I say property?) in the names and reputations of the actual authors even those long dead.

I thank you for taking such pains to educate one such as I. Let us move on.

I gladly admit that everyone else is right and I’m wrong.

But if you are wrong in that statement, then that means you are actually right… which means you are wrong… which means you are right… AHHHHHH!

Please don’t make statements like that!

Howland–“NSK: [P]ublish Aristotle’s Nichomachean Ethics under your name. Anyone can. Why does no one do this? There is a reason.’

“I can think of two.

“First, it’s fraud. People get punished for such things. I recall a politician (Dick Gephardt?) from a few cycles ago running for president, who in his speeches quoted extensively from JFK without attribution. The press took him to task for it even though he was a democrat.”

Yes, this is exactly my point. There was no law or right violated, he just looked stupid. People who do this are seen as marginal or ridiciulous. No need to make it illegal.

But you are using “fraud” way too loosely. Most laymen seem to think “fraud” means something like “lie”. Which means they basically think lying should be illegal.

“Second, which leads back to the subject of this blog entry, it’s pointless. There is nothing to be lost by giving credit to public domain works where credit is due.”

Why restrict this to public domain works?

“…with one last observation: Libertarian writings, even those of the Titans, make much use of attributed quotations and bibliographies. Why go through all the effort? It would be much less expensive to the writer to simply leave it out. By doing so, they are recognizing value (dare I say property?) in the names and reputations of the actual authors even those long dead.”

There is value in a reputation, no one denies that. The question is, is there a *right* to a reputation merely because it can have value. Hoppe explains very well why property rights are rights to the physical integrity of scarce resources, NOT to the “value” of things. See Hoppe’s paper The Economics and Ethics of Private Property, quoted below (a more detailed discussion can be found in his treatise A Theory of Socialism and Capitalism, at pp. 139-141):

According to this understanding of private property, property ownership means the exclusive control of a particular person over specific physical objects and spaces. Conversely, property rights invasion means the uninvited physical damage or diminution of things and territories owned by other persons. In contrast, a widely held view holds that the damage or diminution of the value (or price) of someone’s property also constitutes a punishable offense.As far as the (in)compatibility of both positions is concerned, it is easy to recognize that nearly every action of an individual can alter the value (price) of someone else’s property. For example, when person A enters the labor or the marriage market, this may change the value of B in these markets. And when A changes his relative valuations of beer and bread, or if A himself decides to become a brewer or baker, this changes the value of the property of other brewers and bakers. According to the view that value damage constitutes a rights violation, A would be committing a punishable offense vis-à-vis brewers or bakers. If A is guilty, then B and the brewers and bakers must have the right to defend themselves against A’s actions, and their defensive actions can only consist of physical invasions of A and his property. B must be permitted to physically prohibit A from entering the labor or marriage market; the brewers and bakers must be permitted to physically prevent A from spending his money as he sees fit. However, in this case the physical damage or diminution of the property of others cannot be viewed as a punishable offense. Since physical invasion and diminution are defensive actions, they are legitimate. Conversely, if physical damage and diminution constitute a rights violation, then B or the brewers and bakers do not have the right to defend themselves against A’s actions, for his actions – his entering of the labor and marriage market, his altered evaluation of beer and bread, or his opening of a brewery or bakery – do not affect B’s bodily integrity or the physical integrity of the property of brewers or bakers. If they physically defend themselves nonetheless, then the right to defense would lie with A. In that case, however, it can not be regarded as a punishable offense if one alters the value of other people’s property. A third possibility does not exist.

Both ideas of property rights are not only incompatible, however. The alternative view – that one could be the owner of the value or price of scarce goods – is indefensible. While a person has control over whether or not his actions will change the physical properties of another’s property, he has no control over whether or not his actions affect the value (or price) of another’s property. This is determined by other individuals and their evaluations. Consequently, it would be impossible to know in advance whether or not one’s planned actions were legitimate. The entire population would have to be interrogated to assure that one’s actions would not damage the value of someone else’s property, and one could not begin to act until a universal consensus had been reached. Mankind would die out long before this assumption could ever be fulfilled.

Moreover, the assertion that one has a property right in the value of things involves a contradiction, for in order to claim this proposition to be valid – universally agreeable – it would have to be assumed that it is permissible to act before agreement is reached. Otherwise, it would be impossible to ever propose anything However, if one is permitted to assert a proposition – and no one could deny this without running into contradictions – then this is only possible because physical property borders exist, i.e., borders which everyone can recognize and ascertain independently and in complete ignorance of others’ subjective valuations.

Mr. Ruane, glad I could provide a chuckle. It lightens this very heavy subject.

Mr. Kinsella, in the three re-writes of my reply, I lost one of the things I meant to say which you correct me for here. There is no loss in providing attribution where copyright does not punish such use (there, is that better than “public domain”?) because the stuff is not scarce. Copyright creates artificial scarcity, which creates incentives such as NOT saying where I got an idea based upon the possibility of being punished for it.

I never asked for a law against lying, I said that someone who commits deliberate fraud should be answerable for it.

I can see I’m in the middle of a minefield, where I cannot even point out that people find value in name and reputation without running into “value is all relative”, “cannot be measured” and the like. I was just pointing out its existence.

If you believe the attributed quote you present has relevance to what I had intended, then it is clear that I have not been successful in my communications. I have done my best, my language stills are clearly not up to the task, so I will resign myself from further obfuscating the issue. Again I apologize for wasting everyones time.

Howland,

“I never asked for a law against lying, I said that someone who commits deliberate fraud should be answerable for it.”

As far as I can tell you have used “fraud” very loosely, as layment typically do. It is used to loosely and not carefully defined, so that it seems practically equivalent with basically “lying”, the way you use it. And since you imply “fraud” is actionable, this implies that lying is some kind of rights violation. This is clearly absurd, thereby demonstrating some kind of flaw in your implicit definition that is inherent in your uncareful and loose use of the term “fraud”. Since you are basing your normative claims on the concept of fraud it is imperative to define it precisely.

In my own view fraud in the legal context simply means one way that someone can steal something from you. If I agree to sell you a cask full of wine for a pig, but I have secretly filled it with vinegar, then I have obtained your pig fraudulently–i.e., by lying to you about what I am giving you in exchange, I am taking your pig against your consent (since you are giving me the pig in exchange for wine, not vinegar).

Now, if I erect a Subway store tomorrow, without Subway’s permission, then I am defrauding my customers–since they give me dollars in exchange for “sandwiches made by the (real) Subway chain”, but I am not giving them those kind of sandwiches, rather I am giving them “sandwiches made by an imposter”. (BTW I discuss this in more detail in my reply to Van Dun, here.)

But I have not “defrauded” Subway. Even if I harm their reputation, this still does not take anything from them that they *own* nor does it “defraud” them. Or, if you want to say it does, you need to show precisely how with a careful use of “fraud” and related concepts.

As Rothbard showed, a reputation is what OTHER people think about you. To own your reputation you would have to have some ownerhsip of others’ brains or the content thereof. So if I give false information to you about C, it’s your choice to believe it or not. C has no proprietary interest in the operations of YOUR brain. And even you are not “defrauded,” unless I sold you the information or something like that. I have merely lied to you–but as you seem to agree, lying is not fraud or a crime.

“I can see I’m in the middle of a minefield, where I cannot even point out that people find value in name and reputation without running into “value is all relative”, “cannot be measured” and the like. I was just pointing out its existence.”

The problem is not that reputations don’t have value. Sure a reputation has value. And the fact that it cannot be measured is irrelevant. I have no idea what it means to say the value is “relative”; of course it is strictly speaking subjective, as all value is–since an object or state of affairs “having” value means some subject values it.

What I have tried to point out is simply that, contrary to what you are apparently assuming, merely “having value” is not enough to mean one has some kind of enforceable property right in the thing valued–certainly one cannot have a property right *to* a thing’s value, since its value consists in how others regard it, and you don’t hvae a right to how others regard you or your reputation.

Mr. Kinsella, you make very good arguments. Prior to reading this thread, I would have been in agreement with the position held by Howland and many other libertarians, that misrepresenting yourself as another perpetrates fraud against the one misrepresented. I think you’ve got the right idea though; if you pretend to be Subway, it’s your sandwich customers who are defrauded, not the real Subway.

However, I can imagine a situation where by pretending to be Subway, you create fraudulent legal liabilities against Subway. For example, someone who discovers that his ham sandwich is actually a spam sandwich might try recovering damages against the real Subway. What is your analysis of that situation?

Regardless, it’s good that you emphasize the impossibility of “owning” another person’s thoughts or brain. That is the key to seeing the absurdity of “intellectual property”.

All I know is that I’m glad that you IP people didn’t invent the alphabet. I might be asking you for permission each time I said something.

Paul:

Thanks for your comments. As I assured Mr. Howland privately, “I felt clarifying these issues worthwhile, even if you are uninterested, because a lot of people make the same mistakes.”

You also write: “However, I can imagine a situation where by pretending to be Subway, you create fraudulent legal liabilities against Subway. For example, someone who discovers that his ham sandwich is actually a spam sandwich might try recovering damages against the real Subway. What is your analysis of that situation?”

Well, I touch on these issues in my views on causation and related matters, which you can find here: Causation and Aggression; and Reply to Van Dun. In short, if you can somehow show that the imposter “caused” Subway’s rights to be violated, then… the shoe fits. For example, if you lie under oath and help to get an innocent man convicted of a crime he did not commit, then I believe you are helping to cause the physical violence done to him by the guards, etc.

Alex:

“All I know is that I’m glad that you IP people didn’t invent the alphabet. I might be asking you for permission each time I said something.”

Well, I do not strongly disagree, except to note that this complaint is similar to that of the lower middle class or blue collar layman who always gripes about “the lawyers”. Of course, laywers represent their clients, who are laymen. Lawsuits are not brought by lawyers, but by clients. People need to be responsible for their own actions.

Likewise, IP attorneys are a symptom not cause of the problem. The problem is caused by the average person endorsing the rationale behind IP and/or the system that produces IP law.

Mr. Kinsella, I think Alex meant he’s glad that the alphabet wasn’t invented by those IP people, or he’d have to ask their permission to use it.

Alex, you’re not far off either. The extremity of copyright/patent enforcement is only getting worse. Richard M. Stallman’s short story _The Right To Read_ is looking more and more like the true purpose behind “those IP people”.

http://www.gnu.org/philosophy/right-to-read.html

Mr. Howland you got my view correct.

Yes, I know how ridiculous IP laws are getting… just recently, in the gaming world, EA bought all the rights for NFL football games. That means that, because of IP laws, you can be sued for having the word (letters) “NFL” in your videogame.

This is about as ridiculous as me being sued for mentioning the NBA in a home video and selling it. So long as a game maker does not say that his game is officially backed by the NFL (which would be fraud), why would it be someone’s right to restrict the letters “NFL” in a videogame?

Another one coming around is the fact that someone is claiming that the PlayStation 2’s controllers rumble in a way that’s ‘similar’ to another controller rumble. No I’m not making this up. If only I was..

Mr. Kinsella, it’s nice to see you posting on here.

Or, in another field of interest of mine, the fact that Harley Davidson thinks their bikes have a “distinctive sound” that they own.

Mr. Kinsella,

I don’t agree that utilitarian arguments in favor of IP lead to statism, but I think it’s cool that you quoted my article.

Dr. Richard Epstein, a friend and resource of mine, believes only in utilitarian arguments in favor of IP, and he would never agree that it logically leads to statism.

I have always personally believed in a natural right to IP. It’s always been my personal opinion that there should be an unlimited natural right to IP, but I recognize that this goes beyond the text of the Constitution, so I don’t have much legal ground to stand on.