Posted by Kevin Carson on Jun 3, 2011 in Commentary •
A prominent libertarian author recently issued a challenge — in rather emotional terms — to a prominent libertarian opponent of “intellectual property.” Never mind who — actually there’s been more than one such recent exchange between prominent libertarian figures, with almost identical arguments.
The author asked whether it should be considered theft to reprint their book — with their name on it — without permission. Doing so, this author argued, would deprive them of a certain amount of potential profit on the sale of their own book. And in the process, it would turn that portion of their labor in writing the book into slave labor.
First of all, I’m skeptical of just how negative an impact the abolition of copyright would actually have on authors’ income. In most cases, where the author serves a smaller niche market and charges only a modest markup over printing costs, it’s doubtful whether it would be worth it to undercut them.
Actually setting up a book for print involves considerable inconvenience. If you take a facsimile PDF document of someone else’s book and set it up as an on-demand print job, you’ve not only got to charge a price that covers the basic cost of the on-demand publisher’s services plus the value of your time and trouble, but also overcome the visibility of a preexisting distribution outlet already associated with the author’s name — one that probably comes up on the first page of Google or Amazon results. So why would most people go to the trouble of searching a POD equivalent of The Pirate Bay for your book, and trying to figure out from the listings whether it was complete, whether it had the same pagination as the standard edition (important if you want to quote it in scholarly work), and so forth — all just to save a buck or two?
There are considerable rents attaching to the time and trouble of setting up a book for publication, as well as for authentication and convenience. So long as the author doesn’t get greedy and charge a premium significantly over the amount of this rent, they should be relatively safe.
The main effect of abolishing copyright in music and written work, I think, would be to wash out the excessive name-value premiums added to the work of the big blockbuster creators, and the middleman profits of the publishing and record industry.
Second, the idea that someone has a right to a certain rate of profit — and that market competition which deprives them of this rate of return is “theft” — is ludicrous. It’s as idiotic as the claim by Property Values Nazis that their alleged right not to have the value of their house lowered trumps my right to have a clothesline or compost pile on my own property, or to park my car on the grass.
Nina Paley caricatured this kind of argument beautifully in one of her “Eunice and Mimi” cartoons. EUNICE: “Copying a song instead of buying a copy is stealing!” MIMI: “Doing for yourself what you could pay someone else to do is stealing!” BOTH: “Competition is theft!”
If anything, the “slave labor” accusation should be on the other side.
“Intellectual property,” like tariffs and all other monopolies, is a barrier to the free movement of labor and capital into certain legally defined areas of production, which has the effect of maintaining artificially high prices that would not exist under free market competition. “Intellectual property,” in our corporate global economy, performs exactly the same function the tariff did in the old national industrial economies: It regulates the conditions under which one is allowed to produce a particular good for a particular market, so that the beneficiaries are able to charge a monopoly premium. Rather than erecting territorial barriers around particular nations like the tariff, “intellectual property” builds walls around global corporations.
What’s more, erecting barriers to the conditions under which labor can produce a certain good gives the licensed producers of that good an artificial degree of control over the terms on which labor is employed in that particular form of production — thus shifting the balance of bargaining power away from labor and toward the employer.
So it would be far more plausible to argue that the extra hours we work to pay the copyright or patent premium on a good, or the extra hours we must work for the same income in producing that good because one producer has a state-conferred monopoly on hiring labor to produce it, are slavery.
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This is horrible. I had hoped the Court would lower the standard. What a travesty. Microsoft is exactly right that it is unfair to have a “heightened standard of proof” that “unduly insulating “bad” patents from invalidity challenges.” They are right that “some grounds for invalidation (like the on-sale bar at issue here) cannot be raised in” the inter parte proceedings (the arguments between the patentee and the PTO, with no adversaries involved). And they are right to “question the deference that the PTO’s expert determinations warrant, in light of the agency’s resources and procedures, which they deem inadequate.”
The claims of i4i are absurd: that the opinions of a mere “lay jury” should not lightly “overturn the considered judgment of an expert agency.” Expert agency?! This is one reason patents are not overturned: the jury just assumes the PTO is fair and competent. They do not realize that the patent law is inherently vague and nonobjective, and very complex, and that the PTO is staffed by engineer-bureaucrats who cannot be trusted to “get it right”.
In addition, the argument that “They claim that the heightened standard of proof is an essential component of the patent “bargain,”…and the incentives for inventors to disclose their innovations to the public in exchange for patent protection” is laughable–in fact as I noted here, quite often the patentee would have had to reveal his invention anyway, in order to sell his product (if you sell a new mousetrap people see how it’s made; in fact you will trumpet its innovative features to garner customers!), so giving him a monopoly to protect him from competition doesn’t get the public their part of the bargain anyway! And for really important types of innovations that can be kept secret, the inventor will often keep it as a trade secret and skip the patent process, so the public gets no bargain there either. So it’s all a huge con.
Oh, and using a common law standard of proof for interpretation of an artificial, unjust patent scheme is a travesty. The standards evolved under the much more libertarian and fair common law are being imported into monstrous statutory regulatory monopoly granting schemes to try to impart the legitimacy of the common law onto the dictates of a horde of ignorant, scheming, corrupt politicians.
By the way, the disclosure function is set to be undermined anyway with upcoming patent reform–as I pointed out here, the upcoming patent amendment will likely eliminate the best mode defense–this removes one possible defense that can be used against patentees who game the system or flout the best-mode disclosure requirements. That is, under current law you have to disclose your invention in writing, it has to enable others to make it, AND you have to disclose the “best mode” — you can’t keep that secret. If you fail to do any of these a patent defendant that you sue can invalidate your patent. But with patent “reform” it will be harder for defendant-victims to use the patentee’s intentional hiding of best mode as a defense!
see also Patent Shills want to make patents “incontestable”.