How I Changed My Mind on Intellectual Property

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Avatar for isaacmorehouse
3 years ago

I'd been solidly libertarian for many years the first time I gave thought to "intellectual property" (copyrights and patents) at all. Someone mentioned the protection of property, including intellectual property, as the root of prosperity and freedom. I agreed without hesitation.

It just seemed to make sense. Now and then I would read or hear someone reiterate this position and it always seemed right to me. I had spent a lot of time working through the arguments in favor of private property – both philosophical and economic – and I didn’t think IP required any special arguments to augment what I already believed about other forms of property.

Then a quote by Thomas Jefferson caught my eye:

“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.”

This bothered me. It kept rattling around in my brain and the more I thought about it, the more it seemed that IP was not just like any other form of property. Indeed, it became clear that IP rights required a new set of arguments; arguments for physical property rights were insufficient in defense of IP. So I started to poke around.

Rethinking Everything 

My instincts were so strongly in favor of IP that I began by looking primarily for arguments that would bolster my bias. After all, the people who criticized IP in my experience were the same people who hated markets and businesses and all individual property, or else people who just wanted to get movies and music without paying for them because they didn’t work and had no money. They seemed to be complainers and looters, not thinkers, producers and achievers. They had to be wrong.

Once I began looking for theoretical arguments in favor of IP, I realized that a great many people who were not market-hating hippies or Marxists or welfare queens did not find a credible case for IP. This was a disturbing discovery. The more I looked and read and thought, the more problematic the idea of IP became. It was a philosophical problem.

For starters, how was IP to be defined? Any mental exercise I tried presented insurmountable problems with even defining it reliably. If someone writes a certain combination of words on a page in a certain order, do they own it? What if they never show anyone else? What if someone else with no knowledge of the first person has the same combination of words in mind or on paper? What about simultaneous discovery, which is not infrequent in the history of great ideas?

These puzzles and many others forced me to acknowledge the strange characteristics of IP which made any consistent definition or enforcement impossible. Ideas are non-scarce. They could hardly be defined as property at all. What kind of law makes someone a criminal by adding a chemical to another chemical and selling it, even if they had no idea someone else had done the same and gotten government approval? It began to seem more like a violation of property rights than a protection. Why should my use of my property be confined to things other people have never done before?

The Slow Change 

I read many more articles and had many late night discussions on the theory of IP over the course of about a year. I came to the unhappy conclusion that ideas were not property, IP was impossible to define, and therefore enforcement was a game of favoritism fraught with all the rent-seeking problems that any regulatory hurdle presents. I didn’t like IP because it was not a coherent concept. But I still believed it was necessary.

I maintained a philosophical disbelief in IP and a pro-IP policy position for some time. Even though it seemed an incoherent concept, I could not wrap my head around how innovation would occur absent patents. I didn’t care much for copyrights, and I thought trademark issues could be handled via fraud protection, market pressure and contractually without recourse to special IP laws.

But patents seemed an absolute must. It was the production of prescription drugs that got me. I failed to see any possible way in which advanced pharmaceuticals could be produced in a world without IP. Though I was not a pure consequentialist, this concern was enough for me to resist a strict anti-IP position even though I couldn’t justify it philosophically.

The IP issue was never (and is still not today) the most interesting issue to me, so I let it be. It only occasionally came up, and I was content to somewhat awkwardly debunk it in theory but support it in practice. My quest for IP consistency was shelved as my intellectual journey took me elsewhere.

The more I learned about economics and political philosophy, the more ridiculous and far-fetched the state became – even a minimal state – and my ideas grew more radical. When I ran out of arguments for the existence of the state – both moral and practical – IP reared its head again. Someone asked me if I thought any form of IP could survive without the state’s initiation of force. I could not conceive of any way in which it could.

How Would It Work in Practice 

This left me in a weird place. I had been dragged, again kicking and screaming, to a disbelief in the state as an ethical or practical form of social organization, yet I had always believed that without state created patents, major innovations would cease. Then I came across Boldrin and Levine’s, “Against Intellectual Monopoly.” I read it and my eyes were opened. I wondered how I could have been so dull and lacking in imagination and a grasp of history!

They argued not from a philosophical standpoint, but from a practical and historical standpoint that, far from spurring innovation, IP was one of the greatest stranglers of progress. In fact, the entire purpose of IP laws has been from the beginning to restrict innovation and experimentation and ensure the benefits of good ideas are concentrated on privileged groups, not according to how much they help consumers, but by how well they navigate the bureaucracy.

It was all so simple and obvious; I wondered how I could have missed it. I marveled at how I got by for so long with a worldview so full of the inconsistent and unexplainable. How could I see so clearly that occupational licensing didn’t protect consumers but instead protected the big industry players who lobbied for it while failing to see the same about IP?

Upon reflection, it seems the reason my belief in IP was so strong was because it was planted in intellectual soil that had been cultivated since childhood to see the world as on the brink of chaos and disaster, only held together and kept sane by the force of law. Life on this planet was the Hobbesian jungle, and in every facet – from basic survival to usable language to a medium of exchange to innovation and common decency – we needed the strong arm of Leviathan to keep us on track.

When I began to realize how utopian this view of the state was, and how complex the real world was with all its intersecting norms and institutions, it became possible at last to see what should have been rather obvious; that ideas needn’t be held hostage in order to be put to use and that the incentive to innovate needs no special nudge from the state.

This is how I came full circle on the issue of IP. I don’t want or expect you to read this and be convinced I’m right. I haven’t even really presented any arguments. I do hope, however, that you may be inspired to keep an open and inquiring mind and the topic and keep poking around.

If you do, check out Boldrin and Levine’s book on the practical case against IP, and Stephan Kinsella’s on the theoretical case. Think about your instinctual position on the issue and ask yourself what worldview it comes from.

Don’t assume anyone who doesn’t favor IP is a property-hating socialist. And for goodness sake, enjoy the process!

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Avatar for isaacmorehouse
3 years ago


Now what if I told you that you can be against patents, and for licensing of inventions via the blockchain?

I think we now have the technology, thanks to Bitcoin, to remove the need for state enforcement of patents as monopoly rights, all the while making sure that inventors can STILL get paid.

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3 years ago

Intellectual property is the playground of statism, oppression, socialism and fraudsters.

The constitute in every country says: the law protects everything you create. Its however, not enforcable. Even have copyright on something, first, you have to make a corporation. You must pay all the fees, all the tax from this corporation, employ yourself in the corporation, pay your taxes again, and then do all the paperwork to sustain this corporation. This, varies on your country, costs approx 10k usd, plus another 2-4k per month.

Then you have your corporation, now you must search for a copyright management institute. You have to prepare the work you want to copyright, patent, or place it under other types of intellectual property. Once you have that, you must write a long documentation about this property, how you have created, invented it, how this property can be recognized, and later on, how you can prove its yours. Then the lawyers of your corporation and the lawsers of the property management office corporation sign it, then they register it. This costs about 10k, plus the contract must be renewed in every year which is about 1k. This is a per product, so 10k per product (software, music track, picture, whatever) and 1k per year to sustain the copy protection. The fee of these lawyers and the fee for the copyright management office, the fee of the state to actually accept these documents are not included in.

To keep this short, it costs about yearly 100k-half million usd to have a copyright thats sustainable in the front of police/court.

I know this just because once i went to the police to report when someone stole my product, and they laughed in my face.

Copyright? intellectual property? Its not something thats designed for you. Its against you, to potentially slit your throat if you illegally run windows on your computer. Copyright is a form of oppression, designed to sustain the monopoly of the state and the state-friendly investor groups.

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3 years ago

Positive rights in general don't make sense within libertarianism because they force other people to associate with you whether they want it or not. And disassociation is key in libertarianism in order for all interactions to be voluntary.

Patents are easily proven to be positive rights: I could have the same idea as you, without copying it. And now, somehow, my actions are limited. Even though I had no association with you, I am forced to associate with you and act as if I never had that idea. Or perhaps you make an exclusion in patent law that requires me to prove that I had the idea independently and then I have the right to use your patents as well. Leaving aside the impossibility of proving this, it would also form a positive right: you have the right to force me to prove I am innocent, which is again forced association. Just because you claim I did not come up with the idea should be forcing me to have to do something for you.

Copyrights are a bit more complex. Some forms of copyright could exist under contract law (and contracts do not need positive rights to work since nobody forces you to enter a contract). But to assume that we automatically enter a contract that we will never copy song/programs/videos/etc just be being born is a stretch. As for whether they are a positive right, they are. Here's why:

There is Alice Cooper, Susan the seeder and Danny the downloader. Susan somehow has an mp3 of Alice's song in her hands. If she did record this mp3 in a concert then perhaps she breached the contract she entered when buying tickets for the contract, but, for now, lets assume that someone else gave her that mp3, so Susan did not breach any contract. Initially all three are in some state of well-being. If Susan shares the file with Danny, then Alice is in exactly the same state (she did not lose money but she is perhaps a bit annoyed if she learned about the sharing), Susan is in the same state, and Danny is richer as he has more stuff to enjoy now. Copyright disallows this exchange, even though it does not make anyone worse off. Alice is only worse off if we assume she has a right to have her mp3 bought by others, in other words if she has a right to force others to act in a way that benefits her, not just in a way that doesn't make her worse off. If others did not exist at all, Alice would be in exactly the same state as she is when sharing happens. There is no objective difference in Alice's state whether Susan and Bob disassociated from Alice completely or whether Susan and Bob share the mp3 between them. In both cases Alice gets no money and doesn't lose something other than the prospect to sell an mp3 to Danny. But a right on prospects would be a positive right as it would require others to be forced to associate with you, not just to try and leave you unaffected. A loss a prospect is also what happens when a bakery open across another bakery. The first one loses prospective customers.

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3 years ago

Great thoughts.

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3 years ago