Against Intellectual Property (1995)

http://www.uow.edu.au/~bmartin/pubs/95psa.html

92 56 12 years ago

uow.edu.au

I just posted a link to the above paper in a comment here:

https://news.ycombinator.com/item?id=7496154

But it's such a good article, that I think it warrants reconsideration given the "Abstract Ideas Don’t Deserve Patents" article in the New York Times (linked in that above comment thread).

This paper really changed my mind on the notion of IP. And if you've got a view on the subject, it's worth reading.

Jach• 12 years ago

Please consider to upvote this as well: https://news.ycombinator.com/item?id=7498995 It contains a more thorough overview of the history and effects; Chapter 9 is particularly excellent for breaking down why the pharmaceutical industry should hardly be considered a "crown jewel" for IP advocates.

aspensmonster• 12 years ago

Seconding the suggestion to read through chapter 9.

Zigurd5• 12 years ago

Intellectual property is an Americanism that metastasized. It's a global idea not because of it's own merits, but because it was propelled by American treaties and diplomacy during an era when America was dominant.

One irony in that is the fact that the Framers were skeptical of intellectual property. In fact, they didn't call it intellectual property. Even less did they call it "intellectual property rights." It was a temporarily granted monopoly. It was not considered to be a right.

How is that? All your actual rights are assumed to exist. The Bill of Rights explicitly says it isn't the List of Rights. That's because your rights predate any laws and constitutions. You simply have them, and governments are more or less just in observing that you have rights and in not trampling them.

This is key to making the US constitution future-proof. It carves out a set of legitimate powers. It doesn't enumerate your rights: to travel by car or jet-pack, or space-warp, to use unbreakable codes, to marry the person you love, etc.

Patents and copyright monopolies, on the other hand, are explicitly granted, and, unlike your rights, they expire. The congress could at a whim change patent and copyright terms to a week, a day, a nanosecond, and there would be no constitutional case against that law. Because these grants of monopoly are NOT rights.

m1sta_2• 12 years ago

The United States did not invent the idea of intellectual property.

Zigurd5• 12 years ago

"Intellectual property" is a neologism. It isn't property at all. It isn't a right. And what does "intellectual" mean in this context? That phrase was not in use in jurisdictions from which the Framers got the idea to allow patent and copyright monopolies.

m1sta_2• 12 years ago

Can you see an argument for how both physical property rights and intellectual property rights are both government granted rights?

Zigurd5• 12 years ago

No. At least that's not how rights were seen by the authors of the US constitution.

Retric• 12 years ago

No. There government mandated monopolies just like your local electric company. At it's core IP is a set of short term privileges gained in exchange for making your ideas public. Most obviously you don't gain IP for ideas that stay in your head.

Medieval guilds are in many ways the precursor to IP except the ability to manufacture something was what's being protected not the knowledge of how to manufacture it. The interesting part of this is that privilege could easily be revoked. However, this promoted a lot of secrecy and good ideas where often lost, so patents protect only those shared secrets.

harshreality• 12 years ago

Yes, but... there's a difference in what happens when you try to do away with them. Society without physical property rights requires everyone to abide by fair evaluation of what they need and what others need; otherwise, anti-communal individuals take things in order to enrich themselves. The people they take from are either non-violent and end up not being able to feed or clothe themselves—limited only by the conscience of the person taking unfairly—or else there's extra-legal armed conflict. Even if everyone agrees to the principle of equitable sharing, a communal ideal, there are still mismatches in different people's evaluation functions of need and ability.

I think the drug market can be viewed as a microcosm of that. There are no state-enforced property rights in drugs, at least none that anyone outside the drug trade takes seriously. It doesn't turn out very well for anyone involved in the market. Even those who get rich from it are at greatly increased risk of turning up dead.

Abolishing IP would affect income streams, but so does outsourcing, automation , and change in particular job markets or industries... the onward march of progress. I don't see that as a reason why it shouldn't be done.

SeanLuke2• 12 years ago

Intellectual property is an Americanism that metastasized.

Patents were invented in Venice and Copyrights in England before the Colonies even existed. Trademarks date from the 13th century.

One irony in that is the fact that the Framers were skeptical of intellectual property. In fact, they didn't call it intellectual property.

One should hope so, given that the term was invented in Europe the 19th century, and was (and still is largely) a European concept.

How is that? All your actual rights are assumed to exist.

These aren't inalienable rights in the sense you're using (and abusing). They're rights in the sense of "copyRIGHT". It's an old alternative use of the term.

001sky2• 12 years ago

Patents and trademarks are not "intellectual property". They are temporary monopoly privledges. Before the americans came along, these ideas were blatant and well understood. Somewhere around the time of thr french revolution, rewarding special interests with monopoly privledges became scary, because it seemed an awful lot like the fake rights given to the aristocracy. So the monopolists and the special interest lobby re-packaged the same crap in the lingo of the french revolution and the enlightenment. The "enlightened" marketing PR spin for government granted monopoly became "rights" as a result. The "intellectual" was adopted under the umpbrella of meritocracy and rule by the learned (ie, as opposed to "birth" rights). Every time someone repeats this phrase its just old-skool marketing and brainwashing at work.

Zigurd5• 12 years ago

Not to nitpick, but the phrase "intellectual property" was nowhere in use before the 1940s. Modern use of the term is highly tendentious.

rayiner3• 12 years ago

Its silly to call it American on the copyright side, most of the increases in term lengths have come from Europe. Indeed, while its viewed as a temporary monopoly in the US, in Europe it's based on the idea of moral rights of the author.

ddebernardy2• 12 years ago

during an era when America was dominant

Was?

Maybe I'm living in some kind of alternate reality...

Mind expanding on which country or group thereof comes even close to having the same levels of economic activity, military might and diplomatic influence as the US?

precisioncoder• 12 years ago

The EU and China are the other big players right now. Both approach America in both economic, military and diplomatic influence.

shittyanalogy6• 12 years ago

I find it interesting that we commonly regard "Intellectual Property" as non oxymoronic. I find the concept of Intellectual Property an impossible situation as:

    It's not possible to *own* a concept.
    You own a *monopoly* on the sale of the *application* of a concept.

A better name might be Intellectual Monopoly Rights.

I realize that I'm arguing semantics, but I think a further look at the semantics help reveal the true nature of the system and enlighten the discussion. Intellectual Monopoly Rights are only granted by societies for the benefit of their citizens. Does our current set of Intellectual Monopoly Rights benefit us? Can we make them better?

dnautics2• 12 years ago

But property property is also a monopoly right, enforced by the state, so your semantic redefinition really gets us nowhere. It's worth considering what things should be propertized... One solution is that things subject to the tragedy of the commons should be properties, especially when to deny one person the use of a good entails violence against their person. These goods are rivalrous - if I take your bike by pushing you off of it, I deny you the use of said bike. Note that this doesn't apply to intellectual property without appealing to entitlement language ("An artist is entitled to compensation " - who decided what is art and how much to give for it)

shittyanalogy6• 12 years ago

That property can be taken from me. You can't physically take my ideas or concepts from me. They cannot be property.

baddox6• 12 years ago

The key difference is, as you say, the fact that physical property is rivalrous. The "government-granted" point is bogus. Protection of both physical property and intellectual property are currently provided by governments, but both could conceivably be provided by societies without government.

Tloewald• 12 years ago

The author quotes someone named Hettinger who lists five justifications for allowing intellectual property and, fairly neatly, dismisses four of them, allowing only that it might be that IP protections encourage the production of innovation. A more important argument would be the discouraging of trade secrets (if you invent something and patent it, your invention is protected; if you rely on trade secrets then others can still reverse engineer and copy your work).

I'm not sure I disagree with the author (or Hettinger) but they have missed an important counter argument.

ds9• 12 years ago

This was one of the original arguments for patents. It is actually the reason they're called patents (opposed to "latent"). There had been, in UK, cases of formulas for making certain things, which had been lost because they were kept secret to preserve then-defacto monopolies.

nova• 12 years ago

So, semantics and rhetoric aside, what is _really_ this thing called "intellectual property"? In the real world, in actuality.

A big game of Who Has The Best Lawyers.

Nothing less, nothing more. An expensive game, normally better played by big corporations, sometimes by small optimized "companies" (trolls), completely uncorrelated with any notion of fairness or economic sense. Another thing that exists not necessarily because is a good idea, but because of enormous inertia, like many other things we do "because that's how things are", even if they are completely stupid. A legal meme.

(As an aside, I'm personally totally OK with trade secrets; I'd accept a sane, limited version of copyright as useful; and I think patents should be abolished. All of them. Software patents are just the most aggressive and vicious strain)

loceng• 12 years ago

Well said.

belorn2• 12 years ago

Historically, intellectual property was the crown’s desire to raise unconstitutional revenue by getting money out of those who would buy a statutory monopoly at the net present value of the royalties that could be extracted. The monarch issued a writ patent, that is a royal decree, and the monarch raised money at the expense of society.

In 1620 after an outburst of patenting to raise extra Parliamentary revenue by James I, Parliament passed the Statute of Monopolies which stated that only Parliament might grant monopolies in statutory form and that only for new inventions. The principle written into the law was that the only valid or legitimate use of the otherwise dangerous mechanism of the statutory monopoly was for new discoveries and that for a limited time.

That was then. Where we current live at is that this 400 year old legal concept of statutory monopolies is used not to secure new discoveries, but to have government act in the market. Companies want to prevent cheaper or better products by competing firms from entering the market, and "intellectual property" is one of the better tools used to achieve this end. This is obliviously wrong, so it is up to government to step up like they did in 1620 and stop the abuse, but so far the trend has been to add more abuse, more government involvement in the market, and ever increasing number of royal decrees.

Against Intellectual Property (1995)

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