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Patent Absurdity and Tyranny of the Mind

The following is adapted from discussion of my own article, "Commentary - Intellectual Property," from the the Autonomist's Notebook, in which I make most of the essential argument's against the absurd notion of "intellectual property." Since all of the following is in reference to that (though it stands on its own), you might like to read that article as background for this.

Intent

My intention is not convince anyone or convert them to my views, but, for those who get worked up over my views, and feel they just have show me the errors of my way, I wish to save them some trouble, by showing there is hardly an argument for the pseudo-concept "intellectual property," I have not already encountered, considered, and addressed. It is those arguments which I'll address.

The format I'll use is to present the various arguments in favor of intellectual property, or against my views, in italics, followed by my comments and explanation. In some cases, the response is my original answer addressed to the individual making the argument.

What Can Be Patented

An invention is a creation by an individual's mind, a creation that is given physical form in a device or machine or a book, etc. One is not allowed to patent a mere non-physical idea. To be patented or copyrighted, an idea has to be implemented.

If you create a machine, a book, a bottle of drugs, or a tube of lipstick, those are property because they physically exist. The design of the machine, the ideas in the book, the formula for the drug, and the process for producing lipstick are not physical, have no material existence, and cannot be property.

It is, in fact, not the machine, or book, or drug or lipstick that is patented or copyrighted, but the "ideas" behind how they are created. The ideas do not have to be implemented. I know of many patents on methods of encryption, for example which have no physical aspect at all, and many have no practical application, yet.

What Is Property

The right to property is a corollary to the right to life -- it is the necessary recognition that man's life requires that he be allowed to keep the things he creates -- all of the things he creates.

Of course. I do not know why this is so difficult. If you have an idea (we are talking about so-called intellectual property), one you develop because you need it to live your life, it does not matter a particle if one or a million other people have the same idea and use it, or how they got it, they cannot take your idea away from you or prevent you from using it. If all patents and copyrights were meant to do is ensure no one's ideas could be taken away from them, they would be superfluous. No one can take anyone's ideas away from them.

If all patent and copyrights were meant to do is ensure the product of one's efforts were not taken away from them, they are again superfluous. There are already laws against stealing.

The key word in your argument is "things." Ideas are not things.

But patents and copyrights are not mean to protect anyone's ideas or property, their sole purpose is to prevent people from using their own ideas and their own property, on the spurious supposition that the first person to have an idea has a "right" to use force to prevent others from using that same idea.

"Atlas Shrugged," does not belong to Ayn Rand (and now her estate) simply because she was "the first one to write it." It belongs to her because she created it.

Certainly all the original manuscripts belong to her (or her estate), but what exactly do you mean, "it belongs to her." If I buy the book Atlas Shrugged, it belongs to me. It is my property. I own it, fair and square. If it is my property and my property rights are protected, I can do anything I want with that property. I can read it, burn it, or use it for toilet paper if I choose to.

I can also copy it. If I copy it, those copies are also my property. I created them using my own property and my own materials by my own effort. If I have property rights I may sell any property I own to anyone who is willing to pay for it, including the copies I made of Atlas Shrugged. The only thing that might stop me would be an abrogation of my rights by some immoral law, like copyright laws.

You have completely ignored the non-production costs of a book. The new publisher can offer a lower price because he doesn't have to recoup the costs of: the writer, the referees, the editing, the advertising, etc. All he has to do is print the book and sell it.

I suspect this writer is not very familiar with the publishing business. No one can just, "print the book and sell it." It is nearly as expensive, possibly more expensive, to copy a book, prepare it for what method of printing and binding is to be used, finding vendors who will stock it, delivering the product, as well as, promoting and advertising one's own version of the book. But even if one really could just, "print the book and sell it," there is no assurance he will sell any. If the original publisher is satisfying the demand of the market, how is the new publisher going to sell any books? If the original publisher is not satisfying the demand of the market, why shouldn't the product be available to those who prefer the new publisher's version?

Effort and Value

Edison did not merely "think of the light bulb first." He spent thousands of man-hours in experimentation, identifying a material for the filament, determining the type of glass for the bulb, and designing a configuration that would work. It is preposterous to say that at the end of that process, Edison deserves no more right to the invention of the light bulb than does the first man that subsequently lays eyes on it.

Patents are based on who has an idea first, but what is wrong with this argument is the Marxist idea that the value of a product is determined by the amount of effort that went into producing it. That would mean that food produced by a modern farmer using labor-saving farm machinery and farming methods that produced ten times the food with half the effort would be less valuable than food produced by a primitive farmer using a hand plow and dawn-to-sundown back-breaking effort. The amount of effort that goes into a product has nothing to do with the value of a product--or how much profit the producer of the product ought to make.

The mistake here is forgetting what patents are based on. The reason Edison labored so long on the development of the light bulb is because experiment after experiment failed to produce a filament that really worked—until the last one. If Edison had quit one experiment earlier, or had taken a little vacation, during which time, another inventor discovered the right filament (Edison was not the only one looking for it), and had rushed to the patent office and patented it, would Edison still "deserve" some kind of profit from his labor, even though it failed?

If I agree that replicating a product is not stealing, wouldn't replicating a product and putting the original manufacturer's name on the product be fraud?

Of course. It would be stealing, stealing another's reputation and earned trust. This would be true for any product whether patented, copyrighted, or not.

Reverse Engineering

Without patent laws, reverse engineering would be a perfectly legal and practical way to do business. All the parasites would have to do is sit back and wait for someone to expend the effort required to come up with, and develop, a new idea, and then they could duplicate it. The problem is, who's going to do the hard work when the market allows the looters to flourish?

The following answer is not mine, but that of a very successful engineer and manufacturer friend who has a real stake in this issue. I've edited it only slightly.

Since when is reverse-engineering a picnic? Who is truly the looter? The manufacturer who wants the government to police its control over its designs and methods, or the manufacturer who protects its ideas by itself through trade secret? For a century anyone who has wanted to can try to reverse-engineer Coca-Cola (and many have), but they have all failed because the owners of Coke have jealously guarded its formula. However, the effort to copy Coke has provided the market with a wide variety of colas to satisfy every taste out there.

A patent is mischief because what it truly gives a person a monopoly upon is a discovery--i.e., a discovery of applied science. Being the discoverer of an application of science may well merit our honor and respect, but not our acquiescence to a government-mandated privilege to make good on that discovery. Science progresses because we do not, for the most part, let the government obstruct the transmission of ideas and discovery. Engineering would also move forward with the speed of science if we didn't bog it down with a patchwork of monopolies upon ideas and discoveries.

One of the big disadvantages of a patent is that you must disclose everything about your idea. That gives a lot of people a big leg up when it comes to reverse-engineering variations on the idea that fall outside the protection of the patent. That's one reason why trade secret is a much better way to go if you have a truly unique idea that you are capable of producing.

To that I would like to add that your assertion that without patent laws to protect their inventions, no one will invest in developing the products that are good for everyone, therefore, creating coercive monopolies is justified, (which is what patents do), is purely utilitarian. There is no moral justification for coercive monopolies, even if it means there would be less development of good products.

Big Drugs, Inc. spends ten years and $50 million designing a new drug, doing animal studies, etc. They market their new drug, with the price determined by, among other things, the cost of developing the drug. Along comes Fly By Night Drugs, Inc. They duplicate the drug in mass quantities and market it. And those silly consumers buy the cheaper product, which is identical to the "brand name" product but costs much less.

The drug companies may determine their price in any way they please. They may attempt to recoup the cost of development of a drug. If that were their intention, it would not be just the current drug that would have to be considered, but many other drugs, also researched and developed that never reached the market, because they did not perform as expected, or more likely, did not receive FDA approval. However, research costs is not how most drug companies (if any) set drug prices. They are set based on production costs, and their estimate of what the market will bear. They set the price as high as they possibly can, and they ought to.

Research and development always entails risk. There are no guarantees. In addition to the fact no one may be interested in the product, the intended product just may never perform as intended, or the intended product may be outlawed (as non-approved drugs are), or another company may produce a different product that satisfies whatever market demand there is for the kind of product being developed. Reality does not guarantee a return on research and development investments. Government enforced patent monopolies are an attempt to provide such guarantees, but it must be done by using force to prevent others from entering the market, which is a coercive monopoly.

Copyright, however, is a different story. While I object to its current abuse by extending copyright laws to protect interests far beyond that of the originator, art is distinct from discovery. A work of art is created, not discovered. While any idea is subject to discovery by anyone, a work of art is produced only by its creator. I cannot quite put my finger upon the underlying principle, but even if patents are foolishness, there is an injustice in denying an artist the benefit of his work. After all, when I buy a book, I am not buying the paper it is printed on, but the author's composition.

I agree that discovery and creation are distinct. Technically one cannot patent a discovery but as you have pointed out, the patenting of certain gene patterns is getting very close to discovery verses creation. I do not agree that most physical patents are discovery, however. They are primarily applications of scientific principles, which application is called technology.

I do not think this difference between creation and discovery applies to your real question, however. You said: "I cannot quite put my finger upon the underlying principle, but even if patents are foolishness, there is an injustice in denying an artist the benefit of his work. After all, when I buy a book, I am not buying the paper it is printed on, but the author's composition."

I think part of your concern, and the reason you cannot quite put your finger on it, is a very normal reaction to the facts, especially if you happen to be an author. "I know the hours of effort and creative energy that went into creating this book, dammit; why should some copy-cat punk cashing in on my effort be able to deprive me of the profit I could otherwise make?" (I assume this is what you mean by benefit of his [the artist's] work, since copyrights would not protect any other kind of benefit.)

The answer is, in the real world, there is no such thing as a "profit I could otherwise make," there is only the profit you can and do make. You might write a book that is objectively and artistically superior to Hugo, Dostoevsky, and Rand put together; but if no one is interested in it (because public education, for example, has been completely successful in achieving its goals and no child has been left behind), you will have no profit. No matter how many hours of effort and creative energy you put into a book, if nobody wants it, all the copyrights in the world will not earn you one penny.

Copyrights only matter if a book is successful and sells well. Books that don't sell do not need to be protected, because no one is going to be interested in copying and printing them. But if a book sells well enough to tempt others to copy and print it, it has already made a profit for the author. Copyrights are only an attempt to make more profit, by coercively preventing others from entering the market.

But, if it is profitable to the copy-cats to print additional copies of the book, it would be profitable to the original publisher as well. If the copy-cat's version is cheaper, the original publisher has an advantage over the copy-cats, he already has the original, already has a developed market, and already has the "tooling" to produce the book, which probably only needs modifications to produce a less expensive version.

You said, "After all, when I buy a book, I am not buying the paper it is printed on, but the author's composition."

But, in fact, you are only buying the paper, the binding, and the ink-spots. The "author's composition," is entirely conceptual, and exists, originally in the mind of the author, and subsequently in the minds of anyone who reads (interprets the ink-spot correctly) the book. There are no "ideas" in the printed book. The book is only a means of transmitting the ideas that comprise the "author's composition," by means of symbols which another mind can interpret and understand. The ideas are not in the book, only the symbols are in the book. That is why a book can be translated, all of the symbols being entirely different, and still be the "same" book.

The book, the binding, and the ink-spots comprise a physical entity which can be property. The ideas the ink-spots symbolize, are not physical, and cannot be property.

About Property

The following refers to my description of property in the Autonomist's Notebook article.

You said, "Property consists of physical existents which can be counted or measured. Property consist of physical goods made from physical substances or components." Why is this the correct definition of "property"? It's not my definition, it's not the dictionary's definition, and it's not Rand's definition. Where does this definition come from?

It is not intended as a definition, but a description. I do not happen to Agree with Ayn Rand regarding intellectual property, but this is what she wrote about property: "Bear in mind that the right to property is a right to action, like all the others; it is not the right to an object, but to the action and the consequences of producing or earning that object. It is not a guarantee that a man will earn any property, but only a guarantee that he will own it if he earns it. It is the right to gain, to keep, to use and to dispose of material values." ["Man Rights," The Virtue of Selfishness, Page 94.] [Emphasis mine.]

About Profits

The following is actually in response to many of the arguments above.

In the Autonomist's Notebook article, I pointed out that the whole argument for so-called "patent-rights," is based on the false notion that someone could claim a right to a mere potential, something that does not exist, and may or may not ever exist.

"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 stole? 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, the principle is the same. 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."

If those you call parasites actually take something away from the inventor or creator of a patented or copyrighted, "idea," you ought to be able to tell me exactly what the inventor or creator had before the supposed, "parasitic theft," they no longer have after the "theft."

I make a prediction that you cannot do this without reference to a potential, (as opposed to an actuality) such as the potential profit the inventor or creator might make.

I can certainly understand the sense of unfairness, even injustice, one feels when thinking someone who has expended their time, money, and effort to create something of value, might be deprived of making what seems a reasonable profit on their efforts. Who defines what that reasonable profit is, of course, is problematic, and a question those who defend patents and copyrights never answer.

The fact is, there is no automatic right amount of profit, or any guarantee there will be, or even ought to be, a profit at all. Suppose, for example, in Edison's case, some very clever individual, like Tesla, because his scientific background was far superior to Edison's, immediately saw that tungsten would be a far superior filament to carbon embedded in silk and patented the idea. Edison would certainly have been credited with inventing the light bulb, but it would have been a market failure, because of Tesla's superior product.

Tesla actually did beat Edison in another field, and Edison lost his shirt, because he failed to see the superiority of AC (alternating current) for the transmission of electric power. If the potential profit of an invention is reason enough to prevent someone else from entering the same market, why shouldn't Tesla have been prevented from using AC power transmission until Edison had made his mythical rightful profit?

In a truly free market, it is the best product at the best price that appeals to the most people that wins. It does not matter how much effort, money, or time you put into your product, either in creating or producing it; it does not matter if you were the first or the last to attempt to produce and sell the product. To compete in a free market one must be prepared to produce the best product, not relying on anything else.

Patents and copyrights are great devices for rewarding a certain class of individuals favored by the government, but they are inimical to a free market, because they attempt to guarantee market success based on coercive force, rather than market forces, the free interaction of all members of the market, producers, sellers, and buyers.

But It Is Theft

To my assertion that so-called intellectual property could not be stolen there were further arguments.

You said I ought to be able to tell you exactly what the inventor or creator had before the supposed, "parasitic theft," they longer have afterward the "theft." What I had before the parasitic theft was the exclusive right to the use and dispose of my property -- my design. What I no longer have -- after the unauthorized use of my design -- is that exclusive right to the use and disposal of my design.

What is stolen is the exclusivity -- which means: the ownership -- which means: the property. Non-eclusive ownership is a contradiction in terms.

If by "design" is meant the drawings and engineering descriptions, the actual documents and files recording that design, they are already protected as real physical property against theft. If by "design" is meant the "ideas" those documents and files represent, anyone might have those same ideas. There is no guarantee one's ideas are "exclusive," and no one has the right to prevent others from using their ideas, even if someone comes to have those ideas by studying a product they have purchased.

The issue is, can ideas be property, and this argument "begs the question," by assuming they are property. Everyone has the right to use their own ideas in any way they choose. No one has a right to prevent others from using similar ideas, however they acquired them.

It is those who want to enforce so-called "intellectual-property" rights that violate people's real property rights. There is no reason in the world why two or more people cannot arrive at a similar or even identical design idea entirely independently. (In fact, this very frequently happens.) If one of them obtains a patent, they can use force to prevent the others from using their own ideas. That is a true violation of property rights and the right of every individual to use their own ideas in any way they choose.

There is a very important philosophical principle violated by the idea of "intellectual property." When an individual has an idea, it is his idea. Ideas, like any other kind of knowledge, cannot be transferred from one mind to another. When teaching others, the best one can to is to explain, illustrate, and demonstrate what one is intending to teach, but it is not possible to put the concepts and ideas into someone else's mind. The learner must use his own mind to understand and comprehend what is being explained and illustrated, and once he has understood it, the concepts and ideas are his won by his own intellectual effort.

How someone comes to have the ideas they have is irrelevant to the fact that whatever ideas they have, they are their own ideas. Any ideas an individual has is exactly the same idea, requiring the same amount of intellectual effort, regardless of whether the individual is the only person in the world to have that idea, the first person to have that idea, or the last person to have that idea. The attempt to make ideas, "property," on the basis of when someone first announced they had an idea is totally arbitrary and without any factual (or moral) basis.

Ideas are property only in one sense; all the ideas any individual has are that individual's property, no matter where, how, or when they developed those ideas. If it is possible to violate the rights of an individual to use their own ideas, it is patents and copyrights that do it.

Patents and copyrights can be transferred, sold, and inherited. But if a patent or copyright is the, "idea," without resorting to Platonic "real" universals, an idea has no existence apart from the rational minds that think them. Ideas do not have physical ontological existence, ideas only have psychological existence.

What is actually transferred, sold, or inherited is a government protected monopoly to produce a certain product. Ideas are non-transferrable, and cannot be property.

Other Ways

There are other ways of protecting ones ideas not requiring government intervention. Trade secrets, already mentioned is one way. Another is suggested in the following question.

What would you all think to the idea of "copyright" being defended purely by contractual mechanisms? So when someone purchases a book/CD/DVD or whatever they agree not to copy or make use of the "art work" contained therein. This would have loopholes in that there would be no obvious recourse against someone who had received copies from someone violating the agreement.

By the way just as a point of interest, there's a fascinating story of how JRR Tolkien enforced his rights over Lord Of The Rings in the USA despite problems with the US government copyright laws of that time giving him no legal recourse. He wrote to his American fans and other interested parties explaining that there was an unauthorized edition on the market, for which he was receiving no royalties. This in effect instigated a boycott of the edition in question and resulted in its withdrawal from sale.

Of course I think it would be great, and certainly one way a creator could attempt to protect the potential value of his efforts without resorting to the "guys with the guns." The interesting illustration about Tolkien is practical evidence that if one's work really has market value, the market itself will frequently help protect it.

No Danger

For those of you who think the end of patents or copyrights would be tantamount to the end of the world, or at least the end of civilization, be assured, there is no danger of that. No government is going to let go of that cash cow, nor of the power patents provide as another means of regulated business.

The arguments are not just a mere academic exercise, however, but a means of exposing how easy it is to accept something as true without ever examining that thing objectively. It is exactly how things like global warming, environmentalism in general, and psychology are put over. Everybody just "knows" they are true, it's what they've always been taught. Unfortunately most of what people believe, because it is what they have always been taught, is untrue.

—(05/14/10)