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How not to argue against intellectual property

s20451 (410424) writes | more than 7 years ago

Patents 13

Being a supporter of intellectual property (IP) protections*, and because I seem to enjoy banging my rhetorical head against a wall, I am frequently led into debates about the relative merit of IP laws. My impression, reinforced by this recent exchange, is that the arguments commonly heard against IP are weak, and almost laughably so. So here's a short list of poor arguments against IP protection that should be avBeing a supporter of intellectual property (IP) protections*, and because I seem to enjoy banging my rhetorical head against a wall, I am frequently led into debates about the relative merit of IP laws. My impression, reinforced by this recent exchange, is that the arguments commonly heard against IP are weak, and almost laughably so. So here's a short list of poor arguments against IP protection that should be avoided:

  • If we abandoned IP protections, there would be much more innovation than there is today, because we could learn from other people's contributions. There's nothing preventing you from reading, e.g., a patent and discovering how something works. This is the whole point of patents. Also, if this is true, then why aren't jurisdictions where IP enforcement is lax (e.g., China, southeast Asia, the former Eastern bloc) beating the pants off the United States as far as innovation is concerned? Indeed, more effort in these places seems to be directed towards infringement than innovation, which completely belies the argument. I have yet to hear a convincing counter to this point, which is the biggest elephant in the room for the anti-IP crowd.
  • In the absence of IP, people will still innovate, and people will still get paid to innovate. A watered-down statement of the above, and true. But they would not innovate as much, because corporate and private research would be difficult to fund. It would be much riskier to develop, and harder to fund, a start-up tech company, because a much larger company could use its full resources to reverse-engineer the start-up's product, and use its reach to shut the start-up out. These risks scare away investors. To a much larger degree than today, professional innovators would only be funded by the government or by wealthy benefactors (e.g., at universities). I don't see as utopian a world where innovation takes place at the whim of the government or for the pleasure of the rich.
  • In technology, being first to market is more important than having IP protection. Often true, but without protection, investing in innovation is riskier (because a competitor could copy your product at any time), and the comparative payoffs for investing in innovation are smaller (because your pricing power is gone once your innovative advantage is gone). Again, investors react to higher risk and lower payoff by getting out of the market.
  • Once your product is stale, your market is gone, so you have to innovate. There doesn't seem to be any lack of buyers for, say, toasters. Their technology hasn't changed in decades, and in a lot of cases, neither has their style. There are enormous markets for well-made, static products.
  • The Renaissance was one of the most innovative periods in human history, and they had no IP protection. True. But this is my favorite weak argument. The Renaissance did not have science as we know it today. There was no steam engine, no mass production, no replaceable parts. The economy of most nations was based primarily on agriculture. The printing press only made its appearance towards the end of the period. So basically, this argument boils down to the following: "In a world that is nothing like the one in which we live, they innovated without IP."

I support IP laws because innovation drives our economy, they support the little inventors by giving their ideas real value, and mostly because they have been demonstrated to work in practice. There are many things about them that suck, granted, but there is no evidence whatever that the alternative represents an improvement.

*I support reform of IP laws, but not abolition.

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As to point #2... (1)

deblau (68023) | more than 7 years ago | (#17054214)

In the absence of IP, people will still innovate, and people will still get paid to innovate. A watered-down statement of the above, and true. But they would not innovate as much, because corporate and private research would be difficult to fund.
You mean, difficult to fund privately. The NSF already gives grants for innovative research. If research truly benefits society, I see no problem in funding it from the public wallet. The big areas of benefit are health and safety, and not surprisingly, it's Big Pharma that does a lot of the protesting about patent reform. For example, increased funding in the pharma market, with the condition that the government makes any drugs developed freely available to the public at a reasonable markup over cost, benefits everyone and could guarantee the drug companies would recover their initial R&D investment. No private funding needed, and for the sake of argument, no patents needed either. Of course, you could object on the grounds that you don't want to spend public money for this use, but health & safety of its citizenry is one of the core functions of government, regardless of IP policies.

Re:As to point #2... (1)

s20451 (410424) | more than 7 years ago | (#17060688)

You mean, difficult to fund privately. The NSF already gives grants for innovative research. If research truly benefits society, I see no problem in funding it from the public wallet.

Neither do I. I'm an academic at a public university and I'm quite happy to spend the government's money on innovation. But why can't we have both? It seems to me that giving corporations an incentive to do research, and profit from it, leads to more innovation overall.

Patents!=Copyright (2, Insightful)

Prien715 (251944) | more than 7 years ago | (#17057026)

Once your product is stale, your market is gone, so you have to innovate. There doesn't seem to be any lack of buyers for, say, toasters. Their technology hasn't changed in decades, and in a lot of cases, neither has their style. There are enormous markets for well-made, static products.

You're not talking about a high-technology market in this analogy. If you want 1 MP3 player because, say, Sony patents a portable music playing device, then go ahead. Of course, this didn't happen but it is common in other markets. Technology company can either spend $A litigating patents or $A innovating. Hint: only one of these is good for customers.

Copyright, which you seem to be talking about elsewhere, is different. You assert IP law is good for "the little guy". Do you have any actual evidence to support this? Name one person in latter half of the 20th century who made money primarily from IP creation. In my experience, the costs of litigation and patent makes it prohibitive from any "little guy" from actually making money, but does allow larger companies into suing people out of existance for doing nothing wrong.

Re:Patents!=Copyright (1)

s20451 (410424) | more than 7 years ago | (#17060620)

Do you have any actual evidence to support this? Name one person in latter half of the 20th century who made money primarily from IP creation.

I know several people personally. The normal progression is: have an idea, patent it, start a business. I know of one case where the business failed for lack of customers, and another where it was bought out by another company. The other option is that the business could succeed on its own.

The "patent" step makes impossible the outcome of failure because a larger company stole the idea. Without patent protection, the business is riskier and the payoff is lower, because a company that might have been interested in buying you out has the option of reverse-engineering and taking your idea, leaving you with nothing. As I have stated, increased risk and reduced returns cause the smart investor to avoid the sector.

A smarter counter-argument is that the idea already exists before the patent, so it represents innovation whether or not it is patented. Then we must ask the question of whether more ideas are generated and promulgated without the mechanism of patenting. At this point the argument degenerates into economics and psychology. I can make a handwaving argument to suggest that innovation is greater; I'm sure you can hand-wave your way through the opposite argument.

Re:Patents!=Copyright (1)

Prien715 (251944) | more than 7 years ago | (#17071212)

First of all, no one "steals" IP. They either reverse engineer or copy. I know how patent law works. There's also patents against things which are obvious.

Economics is nice because it provides ways of measuring things. How do you compare the value of an engineer's talent versus the value of a Ford assembly line worker? Economically, we can measure salary as it includes both the costs of entry and the rarity of the position. If your argument is that IP allows inventors to reap the economic benefits of their inventions, shouldn't IP lawyers be getting paid less than the actual innovators? Also, it should be noted that since lawyers don't produce anything valuable, they can economically be measured as an inefficiency in the system.

Maybe your friends are very well paid, but I know where I work the people filing patents are paid less than those who litigate them.

Re:Patents!=Copyright (1)

s20451 (410424) | more than 7 years ago | (#17073684)

First of all, no one "steals" IP. They either reverse engineer or copy.

Okay, I was trying to be semantically neutral but that phrase sneaked through. My bad.

Economically, we can measure salary as it includes both the costs of entry and the rarity of the position.

If your argument is that IP allows inventors to reap the economic benefits of their inventions, shouldn't IP lawyers be getting paid less than the actual innovators?

You can't look at individual salaries, since there are far fewer IP lawyers than engineers. Furthermore, the attorneys wouldn't get paid at all if the engineers (or the Ford assembly workers) weren't doing their jobs. The economics of the legal profession is somewhat skewed anyway, since lawyers form "self-regulating bodies" that set fees, effectively cartels that operate outside the market.

There are two better questions, neither of which I know the answer to:
1. Without IP protection, would those generating the innovation get paid less, or more? And if less, would fewer of them do it, leading to less innovation overall?
2. What percentage of the economic value of innovation is taken up by attorney fees? If it is high, then IP law is merely a self-perpetuating manoeuver by the legal cartel. If it is low, then IP law represents real economic value which is merely "taxed" by the attorney fees.

Incidentally, my friends who sold their company got paid in the millions of dollars.

You should address the moral arguments.. (2, Insightful)

QuantumG (50515) | more than 7 years ago | (#17057394)

I mean, killing all the jews, or some other atrocity could also be good for the economy, that doesn't mean we should do it!

When two people willingly enter into a contract, the government should enforce that contract. No party should be forced to enter into a contract unwillingly and any contract where a party is unwillingly coerced should be invalid. If one of the parties violates the contract and this causes a loss for the other party then the government should force the first party to pay the losses of the second party. These are solid principles to base a legal framework on. It's the basis of civil law.

On the other hand, consider copyright. The instant a creative work is created, everyone else in society is automatically bound by a contract prohibiting them from copying that work. This is clearly immoral. Suppose this were not the case, as it should not be, and the creator wants to limit the distribution of his work. He can easily limit that distribution by not giving anyone the work. Alternatively, he can give the work to some people with the requirement that they not make copies or give the work to a third party. This is fair, voluntary, contractual agreement.

Suppose the creator of the work were to charge a fee to enter into these contracts. If the other party were to violate the agreement, making copies or otherwise distributing the work, the creator can call for the government to enforce the contract, and can seek damages from the other party for the potential sales lost by their breach.

However, the third party that receives the work is in no way bound by the agreement between the creator and the other party. They have not willingly entered into an agreement. Their actions are free and should remain so.

Re:You should address the moral arguments.. (1)

s20451 (410424) | more than 7 years ago | (#17059972)

The instant a creative work is created, everyone else in society is automatically bound by a contract prohibiting them from copying that work. This is clearly immoral.

That does not follow. You could make a similar case arguing that, e.g., human rights are immoral.

However, the third party that receives the work is in no way bound by the agreement between the creator and the other party. They have not willingly entered into an agreement. Their actions are free and should remain so.

I am not a lawyer, but I know enough about the law to conclude that you are not a lawyer either. There are many instances under the law where a "contract" applies even though two parties did not enter into it explicitly.

I find it odd that you raise morals, because that argument so easily cuts the other way. In your example, it would certainly not be moral for the third party to distribute the work against the wishes of the original person. More generally, under the current system of copyright, since it is possible for a creator to release their work into the public domain, failure to do so implies that the creator does not want it to be distributed freely. It is neither moral nor ethical to violate that, especially if it runs the risk of impacting the creator's livelihood.

Re:You should address the moral arguments.. (1)

QuantumG (50515) | more than 7 years ago | (#17062900)

I'm arguing that the current system of copyright is immoral, so you can't use "under the current system of copyright" to justify a claim that it is not immoral. And there is nothing immoral about doing something against someone else's "wishes". If that were so then freedom of religion would be immoral as there would always be someone who "wished" you didn't practice whatever religion it is you practice. Whether or not you are the creator of something doesn't give you the moral right to dictate what others can do with it. In our society you have the legal right to do so, yes, but that is precisely what I am arguing is immoral.

So, essentially, if we can't even agree that people should not be forced to enter into contracts unwillingly, we might as well stop talking as you don't seem to agree with basic rights to free will.

However, in a hope to salvage something from our conversation, how about instead of reacting to others, you put forward an argument as to why intellectual property is morally acceptable? In particular, address the moral dilemma of a loved one asking you for a copy of something which is under a non-permissive license. Explain to us why we ought to deny our loved one a copy and instead choose the side of the copyright owner.

Re:You should address the moral arguments.. (1)

s20451 (410424) | more than 7 years ago | (#17065892)

There is a contradiction here. You are arguing from both a standpoint of free will and morality, but these come into conflict as other people owe you a moral duty (to keep your will unfettered), but you do not seem to owe a moral duty to others (because that would conflict with your free will).

I would also point out that the concept of private property violates what I see as your conception of free will.

So, I agree that we disagree on axioms, not on substance, so there is not much point in continuing this argument.

Re:You should address the moral arguments.. (1)

QuantumG (50515) | more than 7 years ago | (#17077524)

I'm still waiting for you to make an argument of your own, if you're interested.

Re:You should address the moral arguments.. (1)

s20451 (410424) | more than 7 years ago | (#17090064)

I'm going to make a more extensive post next week to respond to your arguments and others.

Re:You should address the moral arguments.. (1)

AusIV (950840) | more than 7 years ago | (#17092170)

So you're saying people can't be bound to things they didn't explicitly agree to? So if I were to walk into your house and steal everything you own, that would be moral, because I never explicitly agreed not to rob your house?
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