That’s what Michael Kanellos asserts in Why I love patents and copyrights, at c|net. A snippet:
Although it's not a really popular sentiment these days, I think patents, trademarks and copyrights are simply fantastic and a primary, necessary driver of the world economy. Without them, the rapid pace of technological innovation around the world would slow to a crawl. And frankly, without them, most open-source projects would rapidly wither away: without an intellectual property behemoth like Microsoft to fight, what would be the point?
Why all the frothy sentiment? Intellectual property provides one of the most dependable means toward wealth and independence in the world today. In the Dark Ages, one could obtain wealth by raising an army and burning someone else's kingdom to the ground. In the Gilded Age, those on the fast track had a secret weapon of success: they bribed state legislators to obtain canal and railroad contracts.
Unfortunately, those career options just aren't as viable as they once were. Instead, we have to invent stuff, and thus people should get compensated for the effort.
And it does take effort. Think of Larry Page toiling away on the early PageRank patents. Think of Mark and Colleen Hayward. Imagine all those evenings they had to spend listening to Donovan spout Celtic gibberish or helping get John Bonham out of hotel security custody during those years they amassed their photo and video collection. Surely some reward is in order.
His examples crack me up ... and of course, he tosses out the usual, lame observation regarding those who have “strong, emotional reactions against patents and copyrights” in his conclusion. This piece is rather akin to an attention-whore type post, and I’m sure he’ll be getting plenty of comments from c|net readers on it.
All the same, his piece does raise some good starting points for a more serious conversation. Does intellectual property protectionism – which is what patent, trademark, and copyright law is – drive the economy overall, or is it a net drag on it? Is it the driving force behind most technological innovation? Would there be no open source coding if Microsoft weren’t around?
Remember the guidelines for conversation here: be civil; attack ideas, rather than the person; and if you want to include hotlinks to source material (encouraged), I think you can include three in a comment without triggering the comment-spam daemon.
There is a lot I would like to say,
I feel I owe you a well-prepared response, seeing as you've been kind enough to prepare a venue proper to the discussion of the matter, but I must gather some extra material before I begin. I should have it up in the next couple of days. However, I would like to again repeat something I first read in Power & Market: The patent was created by King Charles II as a means to sidestep the parliamentary ban on granting monopoly priveliges. If I offer a defense of IP, I will necessarily restrain myself to copyrights.
No hurries
And no constraints from me on what you will or won’t discuss in the wide swath of possibilities offered. Thanks, Brian.
He's got it backwards...
Kanellos has got it exactly backwards. Microsoft and its ilk owe their existence to the openness of computer programming in the first place. People like Grace Hopper, John Kemeny, and Thomas Kurtz did not hide their work in IP, they published it for all to see.
Microsoft's first product was the BASIC programming language. BASIC was invented by Kemeny and Kurtz, and published in the public domain. MS's first operating system, PC-DOS, was not created by them,it was purchased. QDOS was purchased from Seattle Computer Products in 1981. QDOS was a clone of CP/M, an operating system created by Gary Kildall. Kildall wanted to sue, but IP case law was not as strong then as it is today.
Contrary to popular belief, the Graphical User Interface was not invented by wither Microsoft of Apple. It was invented by XEROX at its Palo Alto Research center. Charles Simonyi, recently a space tourist, worked at PARC. He didn't invent MS Word, he came up with a management style based loosely on Soviet central planning. The WYSIWYG word processor was created by Stanford Computer Science students hired by him. He took the concepts from PARC and used them at Microsoft. Too bad they didn't make him sign an NDA and a non-compete agreement. He'd never been able to leave.
All computer programs in the early days had readable source code, but some were copyrighted. Gates & co. were able to create their company due to the fact that most of the science was publicly published, and the rest was protected by the weak IP law that existed then. If today's IP laws were in place today, Microsoft would not exist.
It's funny that Kanellos pines for the Gilded Age. Microsoft, and its counterparts in other industries (RIAA, drug companies, etc.) are the new Robber Barons using the government to protect "their intellectual property" which was taken mostly from others. To close, let me quote Mr. Gates himself in a 1991 memo:
Sources: "Accidental Empires," by Robert Cringely, with some follow-up at Wikipedia.
Three Points...
An economist would say that a thing generally available to everyone is a condition of human welfare, not an economic good. Now, that doesn't mean it cannot be *owned* by someone. To derive just-property from economic analysis, including my favored Austrian analysis, is damned foolhardy at best.
Second, I heard a year or three ago that Sun Micro Systems sued Microsoft for stealing Java. Sun was later sued by Xerox.
Third, in a no-IP society, the hiring of programmers/writers/inventors/researchers to create products would be justified. So long as they received proper remuneration for the work they did, per the terms of the contract, there could be no post-incidence case for some kind of injunction against the purchaser of the programmers' labor. This conception (along with the selling of ownership of anything) remains valid in an IP-friendly society. The only difference is where begins the strict delimitation of ownership of the efforts. If I hire Man X to press code for me, or press buttons on an assembly line, the basic ethical and natural law principles involved remain the same. I shall expand on these points later.
Thoughts.
The spam bot caught me, so I will try again.
Let me start with your second point. I think that you are conflating two cases, the first of which is the MS vs. Apple suit over GUI. Xerox sued Apple during the suit. Apple lost, and Xerox's suit was thrown out due to the expiration of the statute of limitations [en.wikipedia.org/wiki/Apple_v._Microsoft]. Sun Microsystems sued Microsoft for breach of contract. Sun accused MS of violating it's agreement to use Java in Internet Explorer by "extending" Java which make it incompatible with Sun's own Java. The suit was settled out of court. Java, BTW, was just in the last week or two released by Sun as open source.
As to IP, I think that creators should be rewarded for their work, but not through IP laws. I think that two things could work. Sunni's patronage system for artists comes to mind as one possibility. Second, the approach used in the Linux community appeals to me. Yochai Benkler refers to the Open-Source/Free Software phenomenon as "commons-based peer production." See Benkler, Coase's Penguin, from the Yale Law Journal available here, which I need to reread before commenting further. I will say that Linux-based businesses usually make their money through the sale of services such as support and customization rather than the sale of IP based products.
I know none of this addresses your contention about the right to own intellectual property directly. I'm not a theoretician (never studied economics in school), so I am left to think about practicality rather than theory much of the time. I will leave much of the theoretical discussion to others here that are better educated than I. Y'all can jump in here folks.
I am an anarchist for many reasons other than IP that are unrelated to this discussion. To my admittedly untrained eye, I don't see how copyrights can be enforced in an anarchist society. You may not be an anarchist, so I could see how you could argue either way in a minarchist or a libertarian society that still has a state. It all hinges on whether or not you consider ideas property. I do not, but it seems that you feel differently. I look forward to hearing your reasoning as to why.
In any case, in the currently existing society I prefer to treat knowledge as a commons, and choose to support those creators who think along the same lines with the majority of my money spent in this area. I have given money to support Linux projects, as well as musicians that participate in Creative Commons. I also have volunteered to edit books in Project Gutenberg and provided support on Linux software message boards. It is truly a market-based solution as I choose to the largest extent possible not to deal with IP merchants. If that position comes to dominate the market, the intellectual property law issue becomes moot, and I don't force my ideas on anyone. It can be done with or without IP in place.
Roderick Long is far more eloquent than I, and has written about this subject in the essay The Libertarian Case Against Intellectual Property Rights at libertariannation.org/a/f31l1.html. Another good essay is Eben Moglen's Anarchism Triumphant: Free Software and the Death of Copyright at firstmonday.org/issues/issue4_8/moglen/index.html
I can respond only to one point just now...
The rest will come later, as I'm still compiling information at this point.
I heard of the case filed by Xerox against Sun Microsystems over Java in the Democrat & Chronicle, a New York newspaper. I wasn't even aware of the Xerox/Apple case. It wasn't followed upon (though I cannot be certain if they ever printed a story saying the case had been dropped as I do not read the paper regularly) in those pages, as far as I know, and I heard not a word on the subject in any other national-level media. Considering that, the chances are it never went very far. Xerox's case may have been frivolous for all I know. It wasn't even a page 1 story as I recall, but my mind is hazy on the subject, it was anywhere from early 2006 to early 2004 when I read the story, perhaps even earlier than that now that I think about the matter. I cannot provide a citation for it.
Part I - Patents; A Criticism of Coase; Some Links
Patents - I shall for purposes of discussion reiterate a previously noted consideration: The historical origins of the patent were specifically an evasion of a legal ban on the creation of monopolies by the king. That is, from the first in the English common-law and royal decree, the patent was a form of monopoly privilege.
Like most forms of violent intervention in the marketplace (I use the term very hesitantly in describing the economy of 17th century England) it was poorly planned and had wide-ranging consequences unforeseeable. Reduced to its absurd extreme, a patent could in theory grant monopoly control over whole areas of physical law, not just particular technological applications of that law. Instead of owning a particular design for a blast furnace, a patent on a blast furnace design would necessarily exclude others from using most of the technological principles necessary for the construction of all blast furnaces. More or less, a true patent on blast furnace designs would actually be control on blast furnace designing itself. It was then a resuscitation of the semi-post-feudal Guild system.
Patents in practice today resolve themselves to protecting inventions, or so it seems. The problem is that they are hopelessly bound up in continuum problems. There are no categorical distinctions between patentable and non-patentable inventions/ideas that meet certain criteria. Even if these criterion (originality is the only valid one) were not in effect, what it resolves to protect is as broad as reputation protection - a truly dangerous concept. Ultimately, the patent in practice today is a protection of discovery of laws of nature external to man. That is, it grants control over the use and understanding of certain laws of reality. Imagine if someone patented praxeology, and refused to do anything with it. Patents more or less last forever, and then resolve themselves back to the state that grants the privilege of utilization. Therein is the real rub; perhaps not so for copyrights (I'll get into that later) but patents themselves are and always will be in the present context a fundamentally statist institution. To put it bluntly, no libertarian (yes I am an anarchist) could ever defend the present patent system in a method commensurate with a theory of private property, the Zero Aggression Principle or the general goal of maximizing liberty. It is from start to finish a destructive, dangerous form of state privilege. It is violent intervention in the marketplace without exception.
A few notes on the practical problems of patents: What if two individuals working in isolation from each other make the same discovery? That is, they utilize the same principles of physical law to produce an invention that, under present legal systems and almost every theoretical construction of an idealized patent-law society, are similar enough that one must be rewarded ownership while the other, having committed the exact same efforts to produce the exact same results must be denied the same thing? The Lockean homestead theorist is naturally appalled. Such a concept of intellectual property is indefensible from that view. Seeing as it is one of the axiomatic cores of most pro-liberty thinking, it is clear that a large number of such folk as may not even include Lockean thinkers will necessarily oppose. The logical counterpoint is naturally a variation on Henry George-ism. It says no one can own the products of their own mental labors, that these are naturally the property of "society" and so must be considered the "property commons" thereof. A Randian, a Rothbardian or hell, pretty much any real libertarian has so many objections to the philosophy of Henry George in general that this argument will be, and should be, ignored. The specific applicative elements of George's philosophy on land rents would be the thing directly opposed. Another problem is the very vague standards at present. As noted above, most such problems are continual, not categorical. This creates apparently infinite justification for tort against the grant or denial of a patent. The first problem posited, what if two guys do the same thing at the same time, whose hand gets cut off, cannot be resolved to my mind except by one thing, which is coercive (and improper) to both inventors: To force them to hold the patent jointly, or deny it to both of them.
Last but not least, there is no concept of property implicit or explicit in patent. There is no consideration of implicit or explicit theft of some kind of ownership in injunctions against patent violations. The same abounds in licensing. From the early decisions in the Supreme Court we see precisely how this works. To make fun of everyone at once;
"Mummy, you said Jimmy couldn't play in the yard! Send him out of the yard into the road to die!" -- Put the guy out of business to protect my shipping monopoly, State of New York!
"Daddy, Mummy made me leave the yard! Tell her that she can't give Bobby the yard!" -- You gave me the monopoly privilege Congress, now enforce it!
"Uncle decided for us, Jimmy wins, Daddy is in charge." -- When in doubt, give power to the largest, most powerful bunch in sight, certainly don't strike down the power in the first place where one has the opportunity to do such a dastardly thing...**
To be blunt patent cases are special pleaders begging the pit lords to whip all the other special pleaders and non-special pleaders into compliance with promises previously made by the pit lords.
A Criticism of Coase - My criticism of Coase is precisely the same as Walter Block's criticism of Coase...He doesn't have a theory of property rights. It's not that he fails to adopt one or another, or that his is highly flawed, but any theory of private property rights doesn't even enter into discussion with his work. That's why he's able to utter such foolish nonsense as the idea that rights have costs associated with them. It is plainly obvious that rights have no costs. Violations of rights, on the other hand, have theoretically limitless costs. This, along with the common hermetic seal of "production costs" and "selling costs" shows just how ludicrously unrealistic the economics profession has become in the last 100 years. Presto, I never have studied economics formally. Though I do read a bit of theory. If Human Action is difficult, for example, start with Rothbard's "Man, Economy & State." It is no lesser a work but far more transparent.
As an additional aside, considering Coase's own amoral (or perhaps immoral) nature, it becomes undeniable just why someone like Virginia Postrel should admire him so much. I mention this in response to a link by Presto that quoted Coase as being some great master of the field.
Some Links - The following might prove useful for further discussion:
1. strike-the-root.com/3/delaubenfels/delaubenfels8.html
strike-the-root.com/3/delaubenfels/delaubenfels9.html
strike-the-root.com/4/delaubenfels/delaubenfels1.html
These three by John DeLaubenfels
2. mises.org/journals/jls/15_2/15_2_1.pdf [pdf]
lewrockwell.com/orig/kinsella2.html
These two by N. Stephan Kinsella, the first perhaps more well known than the second.
** -- http://en.wikipedia.org/wiki/Gibbons_v._Ogden -- A discussion on one of the first 'interstate commerce' cases before the Supreme Court, and how the rats handled it.
I will deal with the more complex problem of the possibility of copyright in a free society later. Suffice it to say my defense will be highly qualified, and not assumptive of an a priori right.
PS - Sorry about the margin problems, but I wanted to avoid the post getting cannibalized.