A Field Meets a Brick Wall

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.

Anti ACTA and Digital Economy Act March

A bunch of activists* are putting together the UK leg of what is said to be a global day of protest against ACTA, DEA, CDP/CISPA… basically the whole group of intellectual property supporting but freedom sapping legislative acts in America and the UK:

Global day of action and PROTEST against ACTA and as a local (to UK) extra – the Digital Economy Act that was rail-roaded through the final days of the last Labour government. See http://www.bbc.co.uk/news/technology-17270817.

Looks like SOPA/PIPA is not as dead as we would have liked either – the Americans have to fight CISPA too now. – very much like the snooping powers that our own government has backed down on (for now). For info on CISPA see http://youranonnews.tumblr.com/post/21314689010/come-together-to-stop-cispa-what-is-cispa-the

We need all groups to come together on this PROTESTERS, PIRATE PARTYS, SWP’s, UK COLUMN, BRITISH REVOLUTION, LAWFUL REBELLION, THE BRITISH CONSTITUTIONAL GROUP, UK UNCUT, BRISTOL CLASS ACTION, and every other protest group to join to make sure that these Act’s and Law’s are rejected once more.

It kicks off on the 9th of June. I’m posting it here because it’s certainly of interest, but these things are generally chock full of lefties talking about Social Justice, so it’s not a straightforward proposition. I’m interested to know what people think could be a good strategy when these events come along.

* I like that these things aren’t run by one group, it says a lot about social media and how that’s changing things, but it makes it really awkward to write about who is doing what… In this case it seems to be a loose alliance of the Pirate Party, Socialist Workers Party and Anonymous with the Open Rights Group helping out.

Video: Intellectual Property: a dilemma for Libertarians

Tom Burroughes walks us through the libertarian, and some wider, arguments for and against the institution of Intellectual Property, including copyright, patents, trademarks design rights and secrets.

For anyone without means to enjoy the video, Tom has provided the following summary:

Libertarians place great importance on the institution of private property; private property is inseparable from liberty in general – freedom and “self ownership” are one and the same. Property is important for the benefits it makes possible: an extended market order, competition, privacy, a widely dispersed form of control over the means of production, and so on. Some of the arguments for property focus on the consequences. And some defences focus on a more normative approach, as in the natural rights tradition that argues that property is, as John Locke or Ayn Rand argued, a logical consequence of the idea that humans own their lives and need to be able to own the things that enable them to survive and flourish as free people.

But despite this, the issue of intellectual property is a difficult one for libertarians. On the “pro-IP” side, if one regards property as essential for fostering creativity, then there appears a strong case for encouraging people who develop creative works, be they novels, inventions, trademarks or whatever, to be able to own these things and derive an economic benefit from them for a period of time, if not indefinitely. This argument also draws on ideas of dignity and fairness: a novelist who has worked on a novel is entitled to try and insist on the exclusive right to sell their work for money. Even once a novel or some other work has been published, it does not immediately fall into the “public domain” where people can copy it at will since many people will still not have encountered this work and it seems unfair to deny the creator the chance to sell it for money, at least until a period of time has elapsed.

But there are big criticisms. To begin with, can an idea be “owned” in any meaningful way? Physical property such as land is what economists call an excludible good – only one person can stand on a patch of land at one time, say, whereas an infinite number of people can read a passage of a book without denying the owner of it use of this work. Physical goods are, in this sense, scarce, and we have property to ensure peaceful control of these things, but in the real of ideas, there is no such scarcity. Also, IP represents, on this argument, an attack on freedom. If I own a computer, and a supplier of software bans me from using it in certain ways lest I violate IP, then I am being told how to use my own physical property. In short, IP limits freedom. Also, like any state enforced right, there are issues of rent-seeking (not to mention the phenomenon of the IP “troll”). And IP is harder to enforce in the age of downloading and the internet. Even if IP has some merits, those merits are declining in today’s world. And some anti-IP folk deny that IP even is good for invention, arguing that many ideas and works will be developed anyway even without patents and copyright.

The talk does not suggest that there is a definite “right” or “wrong” answer, although having considered many of the arguments, I am more favourable to IP than I had expected when I started to explore this issue. It is hugely relevant: patent fights, for example, are frontpage news concerning firms such as Apple. And copyright fights feature regularly in the music and movie business.

I’d like to thank Tom once again for taking the time to prepare this excellent talk and for coming out of his way to deliver it to us. In addition, Tom has provided the full-text of the talk based on his notes which has been promoted to a spot in the site’s navigation.