A few months ago, Tom Burroughes gave an enlightening talk on intellectual property to the assembled Libertarian Home group at the Rose & Crown. If you have not seen that talk, it’s available with an introduction by Simon, here.
Whilst Tom’s talk was certainly interesting and managed to catch me completely unaware of one of my own personal favourite Libertarians of all time, Lysander Spooner’s position on the matter of IP, what I consider to be the really valuable moment of the evening came from a small break off group’s comments afterwards. Before I reveal this great insight, there’s just a few things we need to take care of first that I feel Tom came just a bit too short on.
It will come as no surprise to anyone in this audience that free markets are an incredibly powerful force for good and that to work they require property rights. The utilitarian argument for property rights accepts this view. Why am I bringing up utilitarianism among Libertarians? Because the entire original reason for intellectual property was utilitarian, to ensure that sufficient profit incentives for content to be created existed so that a rich medium of works would be available for consumption by the public.
That this argument effectively rests on the idea of pragmatism and scarcity as an excuse is an argument I have never found persuasive both for IP and normal property rights. However, it is the utilitarian argument so that shouldn’t surprise anyone. Whether it violates the NAP is another consideration entirely and one that I won’t be discussing here.
So let’s assume that we’ve decided IP doesn’t violate the NAP. What then? Do we suppose to advance absolute IP control and the abolition of fair use? I don’t think anyone wants that nor truly believes that would be a positive move for the relevant mediums. However, it is clear that our current IP regime is hindering rather than helping the advancement of the science and the arts.
Billions that would otherwise be spent on R&D are now wasted fighting frivolous patent trolls and it has become a generally accepted notion in the tech industry that no matter what you do, you will violate many patents without knowing it and may be surprised with a lawsuit at a moments notice. This has led to 2 even more depressing, now standard practices. The first consists of rewarding the trolls by settling with them out of court. This is exactly what the trolls want as it means there is no lengthy, costly legal battle. The second is only open to larger companies with the intention being to build an arsenal of patents with which to scare off any potential troll. However it also means that each of the large companies threatens to wipe each other off the face of the Earth.
Some of you might be wondering how patent trolls can violate patents and are therefore scared off by these arsenals. Almost none of the companies which have made a business out of this actually produce any goods and are therefore known as non practicing entities. Well, thanks to the ridiculously huge volume of these government granted monopolies, that patent you paid thousands if not millions for might violate one held by someone else somewhere and the first you might hear of it is when you receive the ransom in the mail. This is obviously ridiculous and seriously calls into question what the function of the patent office is, if anything.
With this in mind we should look to rebuild IP and in the process truly understand what we are trying to achieve. Our current system mimics a field of potential, infinite in all directions with a single, thin brick wall a few meters wide at it’s center. As the people in the field go around the wall, they are adding to it, building nothing but brick walls with doors in them and charging to use the doors. As time goes on the brick wall gets longer making new arrivals have to go even further afield to find a way around and they too add to the wall when they find such an opportunity.
A new system of IP should be envisioned as an infinite field with an equally infinite long brick wall as the problem already in place from the state of nature. People who use their strength to bring down sections of the wall or those who build ladders from sticks should be rewarded for their ingenuity and allowed to charge for the use of the solutions they offer. They should not be given the opportunity to be rewarded for making the wall more difficult to cross, simply covering sections of the wall with bunting or in an even more offensive maneuver, pretending that a wall exists where none does. We should aim to have the wall covered in ladders and sections that have been brought down to the point where crossing is no longer a challenge and everyone involved can move on to bringing down the next problem that stands in their way.
Whilst it’s certainly not a perfect analogy I thought it was one of the best I have heard for how we should aim to restructure patents and copyrights, focussing more on expressions and solutions then just general ideas, no matter how good they may be.
The cover image, by Paul Stephenson, depicts a medieval cattle grid constructed from stone.