Freedom and Piracy

Some food for thought before the meeting on Thursday.

After the non-aggression axiom, the right to own property has always been high on the list of fixations of those of a libertarian instinct.

How property is defined, however, has been a matter of much debate, particularly with regard to “intellectual property”.

On the one hand, Ayn Rand wrote that “patents and copyrights are the legal implementation of the base of all property rights: a man’s right to the product of his mind.” whilst on the other Roderick Long  considers that “prohibiting people from using, reproducing, and trading copyrighted material is an infringement of freedom.”

So who is right?

Well, there are two strands to the debate and the first question to answer is whether intellectual property rights help or hinder progress. And I would argue they usually hinder.

Supposing, for example, someone discovers that cold fusion occurs when Dettol is mixed with HP sauce (original recipe).

Would the world be better served if he patented the formula and spent the next twenty years trying to develop it himself or would progress be quicker if he made the information available to all manufacturers to compete in developing the best DHPS generator?

And would it then help or hinder progress if the company who devised a working generator patented the design and prevented their competitors from building similar generators?

There is a real historical example of this happening and, when James Watt took out patents on the basic design of the steam engine, he found they didn’t help him much. 

“Ironically, not only did Watt use the patent system as a legal cudgel with which to smash competition, but his own efforts at developing a superior steam engine were hindered by the very same patent system he used to keep competitors at bay.

An important limitation of the original Newcomen engine was its inability to deliver a steady rotary motion. The most convenient solution, involving the combined use of the crank and a flywheel, relied on a method patented in 1780 by James Pickard, which prevented Watt from using it. Ironically, Watt also made various attempts at efficiently transforming reciprocating into rotary motion, reaching, apparently, the same solution as Pickard.

But the existence of a patent forced him to contrive an alternative less efficient mechanical device, the “sun and planet” gear. It was only in 1794, after the expiration of Pickard’s patent that Boulton and Watt adopted the economically and technically superior crank.”

As a result of the above, the 18th century technological revolution was significantly delayed.

But the second strand of the debate is to ask whether a lack of IP protection is equitable – to companies who have invested in research and to individuals, who have had their work copied.

Let’s take music as an example because, in music, there has been no effective protection of copyright since technology made recording possible and in the internet age it is ludicrous to try to pretend that IP rights can be enforced.

Yet, even without protection, good musicians can still earn an excellent living and it is the big corporations that have lost out. We have arguably never had a more interesting and vibrant music scene since the advent of file sharing etc – low barriers to entry for new artists and established bands producing live music rather than relying on revenue from recordings.

Do we really want to go back to the days when the record companies devised and manufactured the “next big thing”?

But what about the lack of incentive for companies to develop new products if the profits cannot be protected? Would the new wonder drug that cures cancer be discovered at all if the results of research could not be patented and the company concerned reap the rewards?

On the other hand, is it ever reasonable that the patent holder of a new drug allows millions to die whilst they price it for the treatment of the very few that can afford it?

Not easy questions and it may be that, in a world without IP protection, there would be less total money spent on medical research (though I also think that the drugs market is skewed because of state involvement in healthcare provision and the regulation of medicines).

Anyway, perhaps inspired by the relative anarchy of the internet and the perceived need to defend it, it seems that anti protectionist views are gaining currency and, in Germany, the Pirate Party recently won 9% of the vote and 15 seats in the Berlin state parliament. Absolutely astonishing for a party only founded in 2006.

Their platform is the preservation of rights in telephony and on the internet. In particular they oppose the European retention policies and Germany’s new internet censorship law. They also oppose artificial monopolies and various measures of surveillance of citizens.

I think we could all vote for those policies?

The author notes: the above post has been shamelessly copied from a previous post on the Anna Raccoon website however Anna cannot claim copywright infringement as I have changed a couple of words!

Your editor notes: I’ve also shamelessly ripped off Emoscopes’s gears graphic. I am sure he won’t mind.

  14 comments for “Freedom and Piracy

  1. Apr 3, 2012 at 7:16 am

    Ken all your arguments relate to the common good. Copyright is no different from other areas of policy and should be seen through the prism of *individual* rights.

    Rand did so and decided copyright should exist for a limited term, obviously she did not know about ACTA and the internet (though she did know an awful lot about plagiarism, having written Fountainhead). So there are gaps in the area of enforcement, but we should come at it from the same individualist angle, per the name of the website!

  2. Apr 3, 2012 at 8:29 am

    Very good post. However we are mixing patent and copyright. My view is that patents are bad and copyright is good.

    You should be able to protect you property from copy in it entirety. So the manufacturing process, the look and feel and how things work.

    But you should not be able to stop someone producing the same product in a different way and different form.

    • Richard Carey
      Apr 3, 2012 at 10:49 am

      Rob is right. There is an important distinction between patents and copyright. Copyright is a legitimate condition of sale deriving from a just property claim, whereas a patent is a state-enforced monopoly, which invades the property rights of other people. Some things which are today covered by patents could be covered by copyright.

      Utilitarian arguments on the basis of the ‘greater good’ are not particularly convincing to me.

  3. Mises
    Apr 3, 2012 at 11:24 am

    But copyright is a legislative imposition, not a contract. And if it can be largely reproduced through contract what is the argument for keeping the legislation?

    Also trademarks. Passing yourself off as somebody else is simple fraud and the obvious sign that they are not legitimate is that they have to be registered with the state.

    PS: Stephan Kinsella rules.

    • Richard Carey
      Apr 3, 2012 at 4:02 pm

      “But copyright is a legislative imposition, not a contract.”

      Surely it is a contract. It sets out that the full ownership is not transferred. So breach of copyright is a breach of contract.

      “And if it can be largely reproduced through contract what is the argument for keeping the legislation?”

      True enough, you don’t need special legislation if there are courts to deal with it under general laws.

  4. Tim Carpenter
    Apr 3, 2012 at 12:29 pm

    I concur on the rejection of “greater good”. Bit non-consensual collectivist for me.

    If one were to abandon patent, the whole concept of “non disclosure agreement” will have to get overhauled and have some force. Copyright would not protect “the little guy” from predation or the big organisation from fishing expeditions. As it is I have had meetings turned down by companies who do not wish to even discuss any idea for fear of being sued if my proposal and any of their projects overlap.

  5. Ken Ferguson
    Apr 3, 2012 at 1:37 pm

    Utilitarian arguments on the basis of the ‘greater good’ are not particularly convincing to me.

    This is a fair point.

    In fairness to me, the article was written for a mixed, rather than a purely libertarian audience and, like it or not, mixed audiences tend to be more influenced by what is in the “greater good”. We need to be able to justify libertarian policies in those terms as well as our own.

    Seen through the “prism of individual rights” I am not suggesting that IP protection should not be able to be written into individual contracts nor that disputes should not be capable of resolution by civil courts.

    However the internet has made such protection almost impossible to realise without the connivance of the state and, given this de facto position, I believe the remedy is worse than the problem.

    I’m with this guy.

    http://www.ted.com/talks/larry_lessig_says_the_law_is_strangling_creativity.html

  6. Tom Knight
    Apr 4, 2012 at 8:13 pm

    Libertarianism and copyright is a right mess…

    The heart of libertarianism is freedom of thought and action, without harming the same freedoms of other individuals. Clearly theft of invention and ideas is an infringement of this core philosophy, as individuals enjoying freedom from copyright comes at a cost of a ‘harm’ to the creator, through denial of reward for using his IP. This element is therefor clearly in contravention of libertarian thought, and liberatrians should naturally support copyright law.

    However, the opposite can also apply when considering the reverse of the relationship. While the creator of IP is harmed when others steal his IP, what we also need to ask is whether the creator is harming others by controlling the use of this IP, through copyright? Is his/her freedom to control IP, to limit distribution, to demand money, etc, a threat to the freedoms of others? The medical issue has already been raised. Is a refusal to freely distribute a life saving/extending drug a form of harm to potential patients, as they are bieng denied a potential freedom, such as the freedom to live? As such, should creators be denied copyright of IP under libertarian principles, because exercising their freedoms harm others?

    But then is denial of a new invention through copyright really a form of harm, as there was no access to it pre-invention, as it didn’t exist. Therefore there is no actual loss regardless of what the creator does with his IP…

    Hmm…

    • Apr 4, 2012 at 10:50 pm

      It’s certainly a tricky issue, at least copyright. I think patents are more easily dealt with.

      With music, I wonder whether recorded music has become something like a free good, i.e. no longer subject to scarcity. I mean, if a loaf of bread could be replicated at will, who would still buy bread?

      We must bear in mind that the situation we face is one where there are patents and copyright in operation, and it’s hardly a perfect world as it is. So, perhaps abolition would have problems, and they’d be different problems than the ones we undoubtedly have now.

      Like the drug legalisation argument, you can’t point to the negative effects of drugs under a regime of prohibition as an automatic justification for prohibition. Most of these (not all of course) would be greatly lessened if prohibition ended.

    • Mises
      Apr 4, 2012 at 11:22 pm

      “Clearly theft of invention and ideas is an infringement of this core philosophy”

      Nope. Theft of invention or ideas would only be a crime if you stole the physical plans/formula for something, copying ideas is allowed since it does not constitute aggressive violence or physical theft. The exception being where there is a contract prohibiting this.

      “While the creator of IP is harmed when others steal his IP”

      I presume you mean copy his ideas. No he is not harmed, he is not physically harmed, he hasn’t lost his ideas, nothing has been stolen from him. This is what you would call an appeal to financial harm through “neighbourhood effects”, the inventor loses out due to competitors who have copied his idea (or what he might think was his exclusive idea). No crime has been committed against the inventor but the IP supporter would have the competitors aggressed against even if they came up with a similar idea independently.

      Conversely:
      “Is his/her freedom to control IP, to limit distribution, to demand money, etc, a threat to the freedoms of others?”

      No, this does not impinge on the freedom of others under the libertarian concept of freedom, no aggression is committed against the person who cannot afford the new cancer drug.

    • Apr 5, 2012 at 11:54 am

      Remember death / poverty is the default state. The inventor made life better.

  7. Ken Ferguson
    Apr 5, 2012 at 9:09 am

    If I were to copy Mises post above and paste it onto a thread in Anna Raccoon under my own name, would I be a thief? What if I changed the punctuation?

    No, of course not (though you might consider me a prat).

    There can be no such thing as copyright in the juxtaposition of words, arrangement of musical notes or whatever. Plagiarism is dishonest, but it is not theft.

    • James R
      Apr 5, 2012 at 11:27 am

      If this website contained a suitable phrase in the Ts & Cs, or if Mises had added words to his post such as “The above text
      is an original work by Mises. It may not be copied in whole or materal part to other websites or publically available spaces without Mises’s prior approval and approriate attribution.”

      Has a contract been established in common law by the use of such a clause? What remedies could Mises seek?

  8. Ken Ferguson
    Apr 5, 2012 at 6:01 pm

    If this website contained a suitable phrase in the Ts & Cs, or if Mises had added words to his post such as “The above text
    is an original work by Mises. It may not be copied in whole or materal part to other websites or publically available spaces without Mises’s prior approval and approriate attribution.”

    Unless Mises created both the words themselves and the things that the words describe there can be no issue of copyright.

    Even if God demanded copyright on his creation, I would tell him to bugger off.

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