Dancing with Protectionist Devils
September 6, 2006
10:05 a.m., MT

A couple of friends have emailed me recently on the subject of intellectual property—an interesting coincidence, that—and while digging around to try to find some answers for them, I realized it'd be worthwhile to revisit the issue publicly.

Copyrights and patents need to be recognized for what they really are—simply a state-enforced monopoly protection on ideas or a particular expression of ideas. The opening paragraph in A History of Copyright in the United States makes this clear [all emphasis mine]:

The history of American copyright law originated with the introduction of the printing press to England in the late fifteenth century. As the number of presses grew, authorities sought to control the publication of books by granting printers a near monopoly on publishing in England. The Licensing Act of 1662 confirmed that monopoly and established a register of licensed books to be administered by the Stationers' Company, a group of printers with the authority to censor publications. The 1662 act lapsed in 1695 leading to a relaxation of government censorship, and in 1710 Parliament enacted the Statute of Anne to address the concerns of English booksellers and printers. The 1710 act established the principles of authors' ownership of copyright and a fixed term of protection of copyrighted works (fourteen years, and renewable for fourteen more if the author was alive upon expiration). The statute prevented a monopoly on the part of the booksellers and created a "public domain" for literature by limiting terms of copyright and by ensuring that once a work was purchased the copyright owner no longer had control over its use. While the statute did provide for an author's copyright, the benefit was minimal because in order to be paid for a work an author had to assign it to a bookseller or publisher.

It's a very curious thing to me, that something explicitly designed by the state to minimize an author's benefit from his creative work(s) has become a system exalted by many creators as the only or best means for them to benefit—or probably more accurately, profit in a monetary sense. Maybe it's a case of dancing with the devil one knows, but from my perspective, it's still a devil in one's embrace, and it'll do what devils inevitably do. Over the years, as copyright protectionism has expanded, we see what it's done: limited buyers' ability to share music with others, or even just enjoy music across different players; impeded nonlicensed publication of song lyrics and guitar tabs; and got people wondering about protecting recipes—although that seems relatively unlikely, at least for now. Society has progressed from a rich oral tradition and the creative blush of sharing and expanding on one another's good ideas to fearful quoting and often overzealous staking of turf.

The world of patent law has become equally absurd, as the headline Microsoft gets 5,000th patent alone demonstrates. One of them is claimed to be a patent on double-clicking, if you can believe it. I can't wade through the kind of dense legalese that patent applications are written in, so I'm not sure if that's true, or if it's just FUD, as others assert. But I think that's part of what's at play here—by keeping innovators guessing and on the defensive, the lawyers win, and society loses, because progress slows.

Other systems of rewarding creators for their work have existed, of course. Simple contracts for work are still undertaken (although these days, often with the maze of copyright/patent ownership becoming part of the negotiations), and might have been an offshoot of the more primitive patronage system. And, speaking of that, what's wrong with it? If someone wants to pay me to create works exclusively for him, I'd give that serious consideration. Isn't that essentially what famous chefs do with the restaurant owners where they work? Yes, there's the possibility of devils here too, but I think many of them could be avoided with careful contract-crafting. And a creator is of course free to refuse any offer deemed unworthy, or to extend a counter-offer.

I suspect that what drives many people who claim to love liberty and yet embrace the state-enforced monopolies of copyright and patents is a fear of change. Which is somewhat understandable—the prospect of needing to learn a new way of supporting oneself isn't pleasant for most individuals, and seems to become less so the older one is. But there are no guarantees of success or continuity in life. Surely a creative person can find a niche, or a person to help him find or create one. Such a task might be daunting, but isn't that preferable to holding one of the state's guns to your fellow freedom-lovers' heads?

One of my correspondents pointed me to an older Gary North article: Don't Invest in Copyright-Protected Companies. It's an excellent essay that, despite the ratcheting of protectionism in the intervening years, remains spot on. To amplify it a bit, and to touch back on the second idea I emphasized in my first quote here, let's consider what Thomas Jefferson wrote regarding idea protectionism [all emphasis mine]:

It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body. Accordingly, it is a fact, as far as I am informed, that England was, until wecopied [sic] her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.

I am currently supporting myself mostly via a few creative efforts. I'm working on expanding them, primarily in the realm of food. Rather than being afraid that someone will steal my ideas, I plan to offer many of them up, precisely in Jefferson's spirit of lighting other tapers. I'm confident that sharing my recipes and tips will be well received by most people. And even though some individuals may choose to take those recipes and use them in their own kitchens, I think enough people will prefer to make use of my offer to invest my time and labor into making the items for them that I'll make some profit, as measured in FRNs. I'll probably make more in happiness and goodwill, and that's fine by me. Now that Claire Wolfe has helpfully clarified what sustainable freedom is, perhaps the first steps toward it will start in this area, where it is arguably needed worst of all.

Sunni

Comments: 6 people have contributed to the conversation

On Wednesday, September 6th, at approximately 2:59 p.m. Mountain time, Warren Bluhm said:

"As the number of presses grew, authorities sought to control the publication of books by granting printers a near monopoly on publishing in England."

And as the number of radio transmitters grew in the 20th century, authorities sought to control the electronic airwaves by granting a near monopoly on radio signals - and the FCC became a foot in the door for the de facto repeal of the First Amendment. I read today that because of Janet Jackson's boob and the resulting fines, network affiliates are afraid to broadcast an upcoming 9/11 special because it has firefighters saying bad words in it. *sigh*

On Wednesday, September 6th, at approximately 8:34 p.m. Mountain time, Duckbites said:

I don't see how you would get professional authors if there isn't some form of protection.

Same with inventions. The profit motive is a strong incentive for both writers and inventors.

I'm finishing a rather lengthy novel myself right now (who isn't?). Do I want protection from theft of my manuscript? Yes, actually. I consider it theft to take my work and distribute it without my permission. How is this different than stealing my horse?
The book would not exist without my effort. It is a piece of property, paid for with my labor. Just as I labor at my "day job" for money. Take my money, it's theft. Take my book - it's not??
I agree that there are problems with both copyrights and patents. And though copyrights may have initially started out as described, they certainly didn't intend that in the US.
Patents - especially today - are completely ridiculous, and I do not have a solution for that. Your example of the Microsoft patent needs no further elaboration.

Cheers.

On Thursday, September 7th, at approximately 12:26 a.m. Mountain time, Endervidual said:

Patents have become far worse than even copyrights. However, did Shakespeare starve because he had no copyrights from the State?

With the internet the need for traditional publishers has disappeared, or at least lessened. Of course, those traditional publishers don't wish to disappear along with the need for them. Nor does the State (or a wider word, the Establishment) wish to lose a fine set of gatekeepers, or -- if you prefer -- a mechanism for censorship and control.

Property in items works to protect one's efforts to obtain and keep scarce things. Ideas don't qualify as scarce. If I share an idea with you I do not lose it. All usually benefit from sharing good ideas. On the other hand, Copyrights and Patents both attempt to create scarcity (I nod toward Skeptical Man).

If someone wishes to profit from exclusive use of an idea, which they believe they have "invented" or "discovered," they should keep it "scarce," e.g. secret or hidden. If they can "hide" a "discovery" and sell "service" on it (e.g. software service contracts) they have not employed force or violence, or invoked those who use such means (e.g. the State, other organized crime syndicates). Also, if they use voluntary contract they remain within the parameters of a free society. If not, well . . .

What should we call people who rely on extortion?

On Thursday, September 7th, at approximately 5:11 a.m. Mountain time, Sunni said:

Warren, why am I not surprised at all? (And thanks for the word on Gojira! Sounds like one to share with the snolfs!)

Duckbites, good luck with your novel! (And I'd be the person not working on one.) I hope you consider sending me a review copy for Sunni's Salon once it's ready. Your arguments don't wash, though—creative individuals flourished long before the state took control of the means of dissemination of their ideas. The horse and the ideas you've put together into a book are very different; one is a physical thing, the other a collection of ideas. And I think, absent a clear, readable-before-purchase contract that states that if I buy a physical instantiation of your ideas (i.e., a dead-tree book or some electronic version) I'm simply renting the ideas and do not control what I'm about to buy, I ought to be able to share it if I want. The book becomes my property after I buy it, does it not?

Or does an artist also retain partial ownership in all her canvases, such that she could come into a buyer's home and mandate the painting be hung only on a blue wall, or in the pantry where only the buyer's family is likely to see it?

Times and technology are doing away with the need for traditional publishers, as Tom said. I think that creative individuals who want tangible payment in exchange for their works will always be able to get it—but it doesn't need to flow through the middlemen who hold the state's guns on creators as well as potential customers. Transitions can be easy or hard, and can be helped or hindered by human embrace or interference. It's lookin' more and more like it's time to choose a side ...

On Thursday, September 7th, at approximately 7:05 a.m. Mountain time, B.W. Richardson said:

I'm new to this debate but learning fast, and I have to admit that my novel The Imaginary Bomb has more "readers" as a result of podcasting it than it was managing when I tried to get the attention of overworked editors at publishing companies. Those editors serve a valuable function - I heard at least four continuity issues that need to be cleared up when the I-Bomb is printed - but technology is making the gatekeeper role increasingly irrelevant. When we figure out a way to make money this way, the sky's the limit and the walls will crumble.

And come to think of it, published novelists don't necessarily make a living under the gatekeeper system.

On Saturday, September 9th, at approximately 4:44 p.m. Mountain time, MamaLiberty said:

As an editor and e-publisher, I run up against the copyright thing quite a bit.

As a non-profit, low profile outfit, I'm probably not in much danger even if I do use such material, but I usually avoid it, just because. I can always link to it, and once in a while some writer will actually answer my email and give me permission.

Last, but not least, are a few writers who send me their material, but refuse to allow any editing or listen to suggestions...

Funny thing about that. The latter type are very seldom saying anything very valuable. Less work for me.

MamaLiberty

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