By Blake Imeson 

Intellectual Property rights (IP) have long been a hindrance to the advance of society, giving advantages benefitting a few. This paper seeks to correct the view of IP as essential to our society and expose them to be what they really are.

                Government intervention in the dissemination of ideas has stunted the growth of our society and is stunting the growth of America’s economy. An injustice is being perpetrated upon the victims of these laws, laws that are beneficial to large companies and a roadblock to the individual and small company. 

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                This paper takes into consideration many of the most common and powerful arguments for IP and through rational thought and researched evidence, aims to enlighten the reader. The targeted scope is primarily America’s Intellectual Property system but the principles found herein apply to all societies.

                IP rights are illegitimate due to the qualities inherent in a right. Upon examination it is obvious IP rights are not rights and do not belong in any free society. Property rights depend upon scarcity and ideas are never a scarce resource. One individual’s use of an idea does not cause another individual to lose something. IP should be eliminated from our society and the blessing of liberty shall flourish.

 

Contents

Definitions & Assumptions. 3

Utilitarian arguments for Intellectual Property Rights (IP). 4

Arguments against IP due to abstraction. 5

Arguments for IP due to creation or a Natural Law.. 5

IP: Throttling Society by the Neck. 6

Privacy violations and government interference. 6

Problems with Patent law.. 6

Business Method Patents. 7

Inconsistencies of IP. 7

Copywriting & Trade Marking… Unnecessary and Illegitimate. 8

The Mark of a Successful Product. 8

The demise of IP rights and our better world. 9

Innovation. 9

Less government intervention. 10

The Open Source software movement. 10

Products/Services changing the rules of IP. 11

Popularity of works. 12

Our World as it should be….. 13

 

 

Suppose the first person to invent the wheel or discover fire put a patent on it. What would this have done to the progress of society? It would have been catastrophic to our advancement, if others were not able to make wheels or start a fire to keep warm. Our patent system may be squelching “wheel” and “fire” type inventions and consequentially our society progresses at a much slower pace.

Intellectual Property rights (IP) are invalid and detrimental to the innovative growth of society. Contrary to popular belief, in the absence of IP, innovation would flourish and our standard of living would increase. Intellectual Property and Intellectual Protectionism are two terms for the same injustice. Why is the state allowed to grant a monopoly of an idea to an individual? This is a gross infringement upon other’s rights.

Definitions & Assumptions

As with any intellectual probing of a subject, it is important to first define the terms. These are some of the main terms relevant to the IP issue.

·         Patent, “the right to exclude others from making, using, or selling an invention or products made by an invented process that is granted to an inventor and his or her heirs or assigns for a term of years”[i]

·         Copyright, “a person's exclusive right to reproduce, publish, or sell his or her original work of authorship (as a literary, technological advancement, musical, dramatic, artistic, or architectural work)”[ii]  

·         Trademark, “a mark that is used by a manufacturer or merchant to identify the origin or ownership of goods and to distinguish them from others and the use of which is protected by law"[iii]

These all fall under the heading of Intellectual Property (IP), also included but not defined are: registered trademarks, business method patents and industrial design rights.

This treatment of the subject of IP rights assumes and affirms the following: (1) human beings have distinct “natural rights” endowed by their Creator, (2) property rights are foundational to a free society, (3) government’s role is to recognize and protect these rights only, (4) government should not create monopolies or engage in any protectionism that favors one group of people over another (5) less government intervention is always beneficial to the growth of society.

 

Utilitarian arguments for Intellectual Property Rights (IP)

“No wealth-creation calculus can justify the overturning of property rights, which is what patents achieve.” ^xxxv

The central argument for Intellectual Property rights is that without them, innovation would cease to occur, as there would be no financial incentive driving growth.[iv] Is the purpose of the law really to maximize wealth and innovation? The answer is a resounding no! “The goal of law is justice, not wealth maximization.”[v] The purpose of the law is to protect citizens and their rights. As John Locke understood, “the end of law is not to abolish or restrain, but to preserve and enlarge freedom.”[vi] By imposing a monopolistic protectionism on an abstract idea, the state is in effect limiting all other citizens’ rights to utilize their own ingenuity by furthering a good idea or discovering it autonomously. It is neither within the bounds of the state nor its role, to ensure a participant in the market shelter from competition and market forces. Anti-trust laws currently can actually apply to patents, as they truly are monopolies.[vii] Even lending a book or borrowing one from the library could be considered suspect, as that may be depriving the creator of profit. When competition and innovation are allowed to coexist, the market flourishes. The sectors with highest competition are notably the fastest growing, most innovative and most profitable. Copyrights are most certainly not even a result of free market but “Like all privileges (emphasis added), they were grants of the king.”[viii] 

The IP advocates state that the incentive for innovation is negated as a new idea/invention can be “stolen” and utilized by others. However, most companies do not research and develop just to patent. Their primary goal is to bring a product to market. “Being `first on the market’ is its own reward.”[ix] Patents and copyrights are typically only defensive measures. In the free market, patents and other Intellectual property rights stifle creativity, impede innovation and bring unnecessary government intervention into our commerce. The belief that the monopolistic advantages of IP are needed to sustain innovation in a society reflects a great lack of faith and distrust in the free market system.

Arguments against IP due to abstraction

The author of a piece of music or a book cannot have rights to words and sounds everyone else can utilize just because of the order of the words or sound. Does it make sense that the previous paragraphs cannot be copied by other people due to word order and origin? Words and ideas are both abstract and do not exist in the real world but only in our minds and as such are subject to interpretation. “The economic case for ordinary property rights depends on scarcity.”[x] Instead, IP rights “purpose is to create scarcity, thereby generating a monopoly rent for holders of such rights.”[xi] Information is obviously not a scarce resource; it cannot be depleted.  Thomas Jefferson said it best, “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 mine. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature.”[xii] Jefferson understood, allowing the spread of ideas does not harm others. This free spread of knowledge is the natural way of life. Property and rights to it exist only if, the original possessor is missing his property when it is utilized or it is no longer in his possession.  This deprivation of the owner obviously does not occur in so-called IP “violations”.

Arguments for IP due to creation or a Natural Law

“The notion that the mere act of creation confers ownership is problematic.”[xiii] “The patent holder can prevent others from practicing the invention even if, as is quite common, they arrive at the process quite independently.”[xiv] This view, that one is entitled to the fruits of one’s creation regardless of others rights is neither just, nor a protection of rights.

“In addition to allowing the author to partially control the paper, ink, computer, and photocopier of others, copyright in particular restricts not only our rights to our property, but to our very bodies. Consider the choreographer of a dance who gets the right to stop another from moving his body in a certain fashion.”[xv]

The physical universe holds many secrets; why should the discoverer be allowed to prevent others from utilizing the new discovery? Even worse, the law declares null any independent discovery of a new process/product/idea due to previous discovery. This government granted protectionism infringes on the rights of many and confers special privilege on the few.

IP: Throttling Society by the Neck

History has many instances of patents severely debilitating and harming society.  Cipro[xvi] was a drug discovered to combat a possible anthrax outbreak. The one company that “owned” the right to produce it was unable to produce the quantities needed to meet supply. One company had the exclusive government granted right to produce several chemicals in a particular combination. This could have had disastrous effects in the event of an anthrax outbreak. Even more affected than industrialized countries are developing and third world countries unable to acquire affordable medicine.[xvii] If competition were legalized, generic pharmaceutical companies would be able to meet this need.

Privacy violations and government interference

The Crackdown on IP violations has greatly contributed to America’s decline of privacy. Peer-to-Peer clients (P2P) such as Kazaa[xviii], DC++, and Napster have all been attacked and forced to betray clients who may or may not be engaging in “illegal” activity. These networks act as a medium to allow two parties to exchange files. This technology has been attacked and forced to go underground or risk shut down.

Problems with Patent law

Patent laws are not always respected abroad. China is “notorious for its disregard of IP.”[xix] China has been able to grow at a pace impossible if not for their cultural view of IP as illegitimate. This puts domestic companies at a great disadvantage, as they are forced to respect laws their global counterparts do not. In the increasingly global economy, companies cannot afford even the slightest disadvantage or failure will ensue. In this new “flat world”,[xx] IP rights are increasingly ineffective/inefficient, partly due to enforcement inadequacy and due partly to the pace of technology as new advances cannot easily be recorded and checked against previous ones. Another weakness of the IP system is the huge costs associated with filing, particularly with patenting. The complexity of filing in the US alone is incredibly ineffective as technology accelerates to a speed unable to be checked and regulated. The system is very much stacked against smaller companies and individuals. Large companies such as Apple, Intel and Microsoft have many lawyers working for them focused solely on patents. These companies will often find software in violation of one of their patents and bully their way into gaining new technology or royalties. Patent lawyers are often high priced and many fledgling companies cannot afford the financial risk involved in the lengthy patent process, a process that may get through but may never be rewarding.

Business Method Patents

Business method patents are among the most ludicrous types of IP rights as they allow patenting a certain way of doing business. Most notable is the example of the “one click” purchasing option from Amazon.com.[xxi] It is absurd to believe a certain method of doing business can be monopolized. Groundbreaking business practices need to be assimilated into current business.

Inconsistencies of IP

The alleged rights associated with intellectual property are riddled with inconsistencies. Why is a patent/copyright’s length of ownership not infinite? If this were a true “right”, it could be bought/sold/traded at will or held at the owner’s discretion. Another inconsistency is the tribute or cover band as they make money off other artist’s creations.

How are libraries able to “lend’ a book out thousands of times (possibly depriving the author of potential money from sale of the book) yet a book cannot be uploaded to the internet and also viewed by thousands of people? Are not libraries in violation of the principle underlying IP? If the goal of these IP laws is to maximize and ensure the wealth of the author, logically, should not the government also protect against these other possible profit losses?

Copywriting & Trade Marking… Unnecessary and Illegitimate

People will tend not to use others brand’s logos as they are viewed as being cheap and copying. Many faux Rolexes are sold daily, does this affect Rolex’s profits? The buyer of a fake Rolex is generally unable to afford the genuine article. A Rolex is much more than just parts put together a certain way. The consumer is buying an image or status symbol. The point being, there is much more tied into a brand than appearance.  A store using the Wal-Mart name cannot be “Wal-Mart”; they would find it impossible to compete, as they would not have the experience, structure or distribution channels Wal-Mart employs. The threat of brand forgery is much less of an issue in the real world than trademark proponents proclaim.  If blatant misuses and forgery of a company’s image occur, there are free market solutions such as organized boycotts, business organizations, and news media exposés. A situation is foreseeable where the free market develops an agency that certifies or in some way verifies the legitimacy and business history of a business. Imposters would be eliminated from the market by sheer customer choice. Currently, it is difficult to forge a known brand identity in any location due to the uniqueness of the brand’s address whether physical or web URL. The problem of brand replication is a hypothetical argument that in reality bears little merit.   

The Mark of a Successful Product

Many of the innovative advances in society become neologisms (new words) and are brought into our cultural reservoir. Whether or not these are generic products or the real thing, consumers inevitably refer to them by their branded name. This does not hurt the company to any great extent, as the first innovator generally has the advantage of brand trust and loyalty. In fact, a genericized product is proof-positive of successful innovation and a winning product. Many of these consumers are invariably unaware of the trademarked status attached to a word, as they refer to all products of similar type by the “branded” word. “Pass me a Kleenex”, “Xerox this”, or “take an Aspirin” are all phrases in which brand ownership is entirely disregarded by the consumer. Incidentally, Aspirin lost its trademark due to its genericization.

The demise of IP rights and our better world

Companies waste a tremendous amount of money on research and development to get around patents already in existence, even though these processes/components may be the best way of doing something. If a company is able to build upon previous research and utilize best methods, innovation is finally going to be released from its chains. With the free transfer of ideas/technology, innovation would accelerate and be more efficient.

Innovation

“Great playwrights like Euripides and Shakespeare never wrote an original plot in their lives; their masterpieces are all adaptations and improvements of stories written by others. Many of our greatest composers, like Bach, Tchaikovsky, and Ives, incorporated into their work the compositions of others. Such appropriation has long been an integral part of legitimate artistic freedom.”[xxii]

Indeed, in the formulation of this response to IP rights, the thoughts and intelligence of a multitude of scholars have been drawn upon. Even the scholars cited herein incorporated their forebear’s wisdom into their works. Thus society progresses, learning from past and present knowledge. In a steady downpour we now try to pass this torch of knowledge. This dampening effect on innovation and creativity is the main result of Intellectual Property rights.

    All great new products are copied to some extent soon after their release. The highly popular iPhone was recently joined by the LG Voyager, which has many of the same features and touch interface as the iPhone, but is a step forward. If there were no IP restrictions, LG would have been able to incorporate the best features of the iPhone and add new ones in the constant struggle to produce the very best product. The iPhone has also been replicated by a Chinese firm that disregards IP. This new iClone is, according to Popular Science,[xxiii] chock-full of new features and a great leap forward for the consumer. This identical twin of the iPhone sports many features/qualities that put it leaps ahead of the iPhone. It is going to be half the price, offer a customizable operating system, and be able to work with any carrier (not just AT&T as with the iPhone).   Samsung recently went after some cloners of their phone in China; they were so impressed by their efficiency that they tried to hire them.[xxiv] These skilled cloners are forced to work covertly and live the lives of criminals, not able to be the innovative entrepreneurs they really are.

Less government intervention

Companies can still use defensive measures to “fence”[xxv] their products. Many music formats are already providing a free-market solution sans government involvement. iTunes music files contain Digital Rights Management (DRM) code that greatly restricts the use of the music. These safeguards can and are broken but for the majority of users they are an efficient solution to controlling the spread of content.  Proprietary coding is often used to allow a company to keep its code safe. Granted, this does not encourage the free spread of ideas but it does so without state intervention in the market. In a world without IP rights, these defensive measures by companies are unable to punish others for using the code. The supposed problems IP rights prevent already have free market solutions without the need for government to exercise its monopoly of violence. Currently an individual can ultimately be killed or end up in jail for resisting the government and breaking IP rights. This is the threat inherent in any government law. The removal of this threat to a citizen’s life is a step forward for liberty.

The Open Source software movement  

Society has reached a new paradigm; this new movement has decided the free market model of competition and collaboration leading to innovation is the ideal. This new open source movement is building and reinventing software collaboratively and synergistically. One person may pioneer a new software idea and he allows the community to access the code, tweak it, improve it, and reinvent it. This new way of providing software has revolutionized the industry and the end user has reaped the benefits. This new system is not completely free from government intervention as many times the software still has a form of copyright. Strangely enough, there is a new type of IP sometimes called Copyleft that sets parameters on the use of the free code or work. The limitations set on typical Copyleft licenses are the “rights to use, modify, and redistribute” as long as “extended versions of the program… …be free as well.”[xxvi] A programmer can improve a product but they cannot turn around and make it into a saleable product. Other examples of this new movement for free use of ideas are: Copyleft, Creative Commons, and the GNU General Public License. These are still IP rights of sorts; they just do not restrict the item’s use in any way except in regards to profit.

Products/Services changing the rules of IP

The following are all products/services that have benefited greatly from the new collaboration and disinterest for IP rights: Google book search and Project Gutenberg both are services offering entire books whose copyright has expired and copyrighted books in viewable, sometimes-editable, text form.  Source Forge[xxvii] offers a centralized location for open source code and programmers can utilize its extensive database of existent code to save time. MIT OpenCourseWare is a new free resource that provides all of the teaching resources necessary to autodidacticaly learn the same material as MIT students.[xxviii] Incidentally, this service is licensed under the Creative Commons[xxix] license and as such may be freely distributed/edited but may not be used in a profit-seeking venture. Open Office is one of many new computer programs that are open source and completely free. It provides a complete desktop publishing suite comparable to Microsoft Office.  Mozilla Firefox[xxx] is an open source alternative to Internet Explorer. It is immensely more powerful than IE and much more user friendly/driven and responsive to end user needs. It is giving IE a run for its money as Microsoft is watching its powerhouse lose market share to a free open source alternative. Wikipedia has now grown to over a staggering 2 million entries, over twenty times larger than Encyclopedia Britannica. Wikipedia is entirely user generated and there is no effort to make the information contained within proprietary. Wikipedia uses the GNU Free Documentation License (GFDL)[xxxi] a Copyleft license that allows free use with some commercial use allowed.  Shared intellectual commons such as OpenCourseWare and Wikipedia are changing the rules of intellectual property and setting new standards that are greatly benefitting humanity.  All these services are available completely free of charge. These new technologies are incredible in what they are doing for the poor and less fortunate. A child in Africa with access to a computer and an internet connection can teach himself the same material students at MIT are being taught.^[xxxii] The potential for self-improvement and pulling one’s self up by the bootstraps is of unimaginable significance. The class boundaries that in the past may have hindered social mobility are being broken. Education and training once available only to the well heeled are now available to all. These advance come with an ever-increasing disregard for IP rights. These companies are thriving by not being greedy and utilizing government monopolies to protect them.

Popularity of works

                Many artists and creators of all kinds of mediums are finding great success in releasing their works to the public free of any IP restraints. The band Radiohead recently caused an earthquake in the music industry when they released their new album on the internet free or "pay what you want".[xxxiii] This band is a very popular and well-known band but they have figured out that the publicity and good will they receive by allowing free distribution of their CD outweigh the potential gains. Artists are continually finding new ways to make money off their works rather than just relying on profit directly from the sale of their creation. A revolution is in progress in the television industry as internet TV is becoming feasible. That industry is adapting and inventing new profit models. The following is an interview by Reason magazine of the creators of South Park.

Reason: When it looked like Comedy Central wasn’t going to rerun the Mary episode, people were still able to download it illegally online. Did you see that as a victory for free speech, or did you think, “My God, these people are stealing our intellectual property”?

Stone: We’re always in favor of people downloading. Always.

Reason: Why?

Stone: It’s how a lot of people see the show. And it’s never hurt us. We’ve done nothing but been successful with the show. How could you ever get mad about somebody who wants to see your stuff?

Parker: We worked really hard making that show, and the reason you do it is because you want people to see it.[xxxiv]

This interview is representative of the new attitude that needs to develop for authors/artists to maintain a fan base and keep popularity.  Authors of creative works can and will survive and thrive without the crutch of IP giving advantage to few. 

Our World as it should be…

Intellectual Property rights are form of protectionism and not unlike tariffs and subsidies a government grant of privilege or monopoly. IP rights take away rights from otherwise law-abiding citizenry. The threat of violence is ever-present for a violation of these “rights”.  As such, they are incompatible with a free society.

The free market can and does provide a better solution. In a world without IP rights, innovation and entrepreneurship are allowed to advance. No longer would a business be able to bully its way to the top of an industry via government regulations. The people’s right to their creativity and innovation will finally be unbound from the shackles of Intellectual Property rights.

 

 

 

The author of this work hereby waives all claim of copyright (economic and moral) in this work and immediately places it in the public domain; it may be used, in any manner whatsoever without further attribution or notice to the creator.

Tags: copyrights, Intellectual Property rights, IP rights, patents, trademarks