Commentary - Intellectual Property
The pseudo-concept, intellectual property
, is an amalgamation of two incommensurate ideas. Property is the product of work, the intellectually guided effort that produces an entity or substance, or performs a service. The property may be any tangible thing (such as shoes, cars, or CDs) or substance (such as soap, steel, or drugs). In the case of a service, the "property" is usually in the form of, "money," paid for the service, but could be any other kind of tangible property, "payed," in exchange for the service.
Property consists of physical existents which can be counted or measured. Property consist of physical goods made from physical substances or components. Physical goods can be reproduced, but require more physical substance or components (resources) to reproduce them. Physical goods cannot be used or consumed without limiting their availability or existence to other users and consumers. Physical goods can be "used up" or "destroyed."
Ideas are psychological (not physical) existents consisting of concepts or combinations of concepts—ideas have no physical qualities. Ideas can be reproduced indefinitely without requiring any physical substances or components (resources). Ideas can be used indefinitely without limiting their availability or existence to other users. Ideas cannot be "used up" or "destroyed."
Since property consists of physical (material) tangible entities or substances and ideas consist of psychological (non-material) intangible concepts, the pseudo-concept intellectual property, means, (non-material intellectual material property). It is a self-contradictory non-concept.
The contradiction seems so obvious, one wonders how the concept could possibly have been developed. It is not a very old concept. It was developed shortly after the invention of the printing press, and came as a result of those who wrote books, with the idea of making a profit from printing and selling them, but found their expected profit diminished by others with printing presses who published their own versions of the same books.
The original publishers did what most people do when the free market does not provide them with the profit or income they expect or want. They appealed to the government to interfere in the free market and prevent others from printing "their" books. Their argument was, they had spent all the time and effort writing the book, others were profiting from their time and effort without compensating them for it. In other words, their argument was the Marxist argument, the value of there work was determined by their effort.
There is no rational basis in this argument at all. The only economic value of a book, or anything else, is the value the market is willing to pay for it. Presuming there is only one copy of the original manuscript, someone interested in having it might pay a great deal for it, but anyone only interested in reading it, would not pay so much. If the author decides to print (publish) it himself, he is entitled to all the income he can make from selling those published copies. The only products are the actual published books, not the idea contained in the original manuscript.
If someone else decides to publish the book, they cannot possibly make a profit if the author (or someone else) has already published the book and the market is saturated. To sell any books, the new publisher must offer something the original publisher does not, like a lower price, or larger print, or he must offer it to a market the original publisher has not reached. There is nothing to prevent the original publisher from doing whatever the new publisher intends to do, before the new publisher does it.
The original publisher always has the advantage of being first in the market, and of already having the "tooling" or whatever else is required to produce the product. If a competitor comes along and gains some of the original publishers market, it is because the new publisher is offering something the market wants and is willing to choose over the original publisher's product.
There is an even more foolish argument made these days for intellectual property, based on the notion that an idea can be property, even after it is shared with the public. It attempts to equate a grocer's inventory with an individual's idea, and goes something like this, "if it is OK for someone to sell someone else's property (idea) then it is OK to go into your local grocery store and take all the oranges in the store and set up your own orange stand on the sidewalk outside the store."
The obvious difference is that, "taking someone else's idea," (which only means they thought of it first), does not deprive them of the idea, or of selling it, while taking the grocer's oranges does deprive him of the oranges, which he no longer has to sell. This attempted argument from analogy fails, not only because it is false, but because it is a bad analogy.
There is no correct analogy along these lines, but one that would be less absurd is this: Suppose someone had an atomic duplicator and it could duplicate anything it could take a picture of. If the person with the atomic duplicator bought an orange in a grocery store, took a picture of it, and produced identical oranges with it which he subsequently sold, would that be a violation of property rights?
Now suppose someone buys a music CD, writes a program that can copy the CD and proceeds to make copies of the CD which he then sells. Is that a violation of property? The usual answer is yes. But how has anyone's property been violated? What property was taken away or destroyed? The actual case is just the opposite. If someone buys a CD, that CD is his property. If someone else prevents him, by force or the threat of it, from using his property, (the CD he purchased) in any way he pleases, it is his property rights that are being violated. If he uses the CD he has purchased to produce new CDs and is prevented from selling the new CDs or has them confiscated, the product of his effort, a tangible "real" product, is violated.
(Obviously if someone buys something and agrees at the time of the purchase not to reproduce the product in any way, and does so in writing, it is a violation of that contract if copies are made. This is not the case with CDs however. No one signs or agrees to anything when they buy a CD, no matter what is printed on anything accompanying it.)
But an orange is not an idea, is it? Well, if it isn't, either is a CD. But an orange cannot be reproduced by making a copy of an orange, can it? But just what does an orange tree do? If I buy an orange, plant the seeds from it (if the orange is not a hybrid) and grow trees that produce more oranges it is exactly like buying a CD and using my computer to produce more CDs. The only difference is, to produce CDs, I have to supply the reproducing device (the computer). Oranges not only can be used to reproduce from oranges, they even create their own reproducing device (the tree).
Potentials are Not Property
The most absurd argument for intellectual property is the argument that anyone who reproduces any of those things that are collected under that pseudo-concept is "stealing." If the producer of so-called intellectual property does an inventory before someone else makes their own copies and sells them (or gives them away) and takes another inventory after someone else makes their own copies and distributes them, they will discover that nothing is missing. The concept of theft is based on something being stolen, but if nothing is missing, just what is it the presumed violator of intellectual property rights has stolen?
Ready for the answer. It is potential. In an entirely different context, Ayn Rand said, "Rights do not pertain to a potential." ["Of Living Death," The Objectivist, Oct. 1968] But, in any context, a principle is always true. In this world there are no guarantees and one of the greatest mistakes of all governments is the attempt to provide them. Patent and copyright laws are perfect examples of this folly.
A potential cannot be property. What does not yet exist cannot be owned. What cannot be owned, cannot be stolen. To punish individuals or confiscate their actual property for the sake of a potential is a gross immorality.
By what mystic magic does thinking of something first confer the right to use unlimited force to prevent anyone else from thinking those thoughts. Don't tell me you have freedom of thought if men with guns are going to prevent you from putting your thoughts into practice.
Patent and copyright law, far from protecting property, are a violation of an individual's freedom to think and act on his own thoughts. If you think of, develop, manufacture, and sell a product which it is subsequently discovered to be something someone else thought of first, and patented, you will be prevented from continuing to manufacture and sell that product, even if the patent holder never has and never does produce the product.
There is an argument from intimidation usually put forth whenever anyone points out the absurdity of patent and copyright law. "If people can't be certain they will be able to make a decent profit from new products they will not spend the effort to develop them." This is nonsense, of course. If an idea for a product is not a good one, there will be no danger of someone else wanting to produce it anyway, and no "protection" is necessary. If an idea for a product is a good one, there will be profit in the manufacture and sale of the product whether it is protected or not. The only thing that is protected by patent and copyright laws is freedom from competition, that is, a guaranteed monopoly status, meaning there is no reason to attempt to either improve the product or make it less expensive.
Without patent or copyright protection, a business must maintain market advantage by producing the best possible product at the best possible price. There may not be as much profit without patent and copyright protection, but what is the moral argument for guaranteeing a certain amount of profit for any activity, and how is that amount determined?
Since when can a potential be property. It is not the idea of a product that is property, it is the product. If two men both discover how to make a light bulb, but only one actually makes light bulbs, only that one has produced property. It makes no difference where they got their idea for light bulbs, whether they thought of the idea independently or one learned it from the other. It doesn't matter who thought of it first or who got to the patent office first.
An idea is not a product, it is only a potential product; until the product which the idea describes, is actually produced, there is no product to protect. There are literally millions of patents and copyrights for potential products that have never been used to produce anything. All the protection in the world did not give them any value whatsoever. On the other hand, millions of dollars are spent every day for thousands of products that are no longer or never were patented or copyrighted. There are a lot of publishers making fortunes printing books which were never or are no longer copyright protected.
Copyright and patent law is just another government impediment hampering the affectiveness of the free market. Not only would the economy not suffer if these laws were abolished, there would be a great economic boom because of it. However, do not expect it to happen, and only defy these laws if you are willing to accept the risk of facing a totally irrational and vicious foe of unlimited power.
Only governments can create coercive monopolies, through regulation or licensing, for example. Every patent is a government guaranteed and coercive monopoly.
There is no other definition for a patent or copyright protected product than a coercive monopoly. Patents and copyrights cannot be enforced except by the initiation of force.
What is property, what is its value, and who owns it? Property consists of tangible goods or products created or acquired through the intellectually guided effort (work) of a human being. It's value is determined by the amount of goods or products others are willing to trade for it. The individual who creates the goods or products, or trades his own goods or products for them, owns them. Although an idea has market value, it cannot be property because it is not tangible. (Services are also intangibles that have market value, and as a subset of services, so is labor. If an idea is patentable, or can be copyrighted, then so should a service, or even labor be patentable. That is, the first one to perform a service ought to be protected from anyone else performing that service and the first one to do some kind of work ought to be protected from anyone else doing that kind of work. The absudity of that is obvious.)
How does doing anything, "thought of first," automatically grant an individual the privilege of preventing anyone else from doing it? What is the moral principle that says doing something first exempts an individual from competition from anyone else who wants to do it.
In reality, it is not who does something first, anyway. It is whoever can convince the patent office that they did it first, whether they did it first or not, which is another unjust aspect of these immoral laws.
There is virtually no difference in principle between all those other government "service" monopolies created through licensing, like doctors, lawyers, plumbers, and electricians, and those created by patents and copyrights. The only difference is the excuse used.
An idea cannot be property, nor can a collection of ideas, no matter how they are organized, presented, or sold. Books and software are only collections of ideas; in books it's words, in software it's logic functions.
The patenting or copyrighting of computer programs is very odd, because a computer program is nothing more than a series of states of some kind, in computer memory, or a hard disk, or some other recording media. The program itself can do nothing, and does not even have any meaning. For any program, only certain computers can use it, and then it is how the computer uses the stored series of states that actually makes something of the program.
The actual functions the computer program performs can always be done many different ways. In other words, many different computer programs can be written to perform exactly the same functions. Both actual programs, and computer functions have been patented and copyrighted. This means, any function for which a program has been written and copyrighted, no other program for that same function can be written and sold. This really is a deterrent to new development.
If the software happens to be images, text, or music, and the images, text, or music have been copyrighted, it becomes illegal to copy that software and sell it. The interesting thing is, there never are any images, text, or music in the software. There is only a series of states. Again, the right computer can use that series of states to produce images, text, or music, but they are not in the software itself, or on that which the software is recorded, such as a tape or CD.
It is possible to create a computer and program that can, from any "recorded" music, for example, produce, instead of the original music, something entirely different, such as an image (very easy to do) or an entirely different piece of music (not easy, but already has been done). The fact is, the software on a CD is essentially a tool that can be used to reproduce something specific, but can be used to produce something entirely different; but, whatever is reproduced, (music, images, information) it is not on the CD, and does not exist until some computer uses the CD to produce it.
Patents produce the same results that all Government monopolies produce, an elite group of individuals who produce products that are not affected by the market, because no one is allowed to produce a better or cheaper versions of the product.
Because patent and copyright protected products are a coercive monopoly. (See above, "Only governments can create...")
What other kind of property ceases to exist on some arbitrary date set by a government.
Outside the concept of a government, the concept of intellectual property is an impossibility. Those who understand the nature of government will understand this automatically invalidates the concept of intellectual property.
Whatever exists only by government fiat, like money backed, not by gold, but government mandate, or ideas or potentials turned into property by government declaration, cannot be dealt with as rationally identifiable entities. These things exist only on the whim of the current ruler or administration, and can disappear as quickly as they came into existence, without predictability. Their nature can never be learned or evaluated, the way gold, or an actual product can be analyzed and evaluated, because their very nature is determined, not by reality, but the caprice of whatever bureaucrats or committee is put in charge of them.