Intellectual Property and Liberty

Column by Alex R. Knight III.

Exclusive to STR

An ongoing debate in libertarian quarters has been and is whether or not intellectual property (or IP, for short) is a concept which has any place in a free society. While honest arguments on both sides can be compelling, there also seems to be a great deal of misconception surrounding the entire topic, and my goal here is to attempt to demystify some of it, and perhaps offer a clearer picture than may have been heretofore available.

Carl Watner published an interesting piece in The Voluntaryist Issue 168, “On the Ownership of Ideas,” which was too extensive to extrapolate upon here in minute detail, but in brief related the fact that there have long been two opposing camps of libertarian thought regarding IP. For the record, Carl himself professed to be of the pro-IP one, on the basis of the idea that good ideas are relatively rare and hard to come by.

I think one thing that needs to be clarified at the very outset in any discussion regarding IP, and yet, rarely is, must be the critical differentiation between the idea of “copyright,” and the idea behind “patents.”

First off, why have I used quotation marks and italics above? The answer is because, before there can be any meaningful discussion about these two forms of IP, we should certainly acknowledge that such concepts, at present, are largely creatures of the State. So much so, in fact, that we must from the very outset recognize that these practices (really just the former, but I'll get to that) would likely be implemented very differently in a stateless world than in the current statist one. In fact, it is perhaps due to no coincidence that Carl Watner also published a piece in The Voluntaryist Issue 166, titled, “Copyright Before (Statutory) Copyright: A Voluntaryist Perspective on a Statist Development.”

With the recognition then that, if such practices still existed in freedom they would do so purely as a product of markets and free enterprise, we must then ask the obvious question as to whether individuals would be entitled to such protections at all. And I think here and to that end, some analogies might be in order.

It should appear obvious that the first authors of horror tales did not enjoy, nor do they now, any monopoly on the production of same. Any of us are free to follow in their footsteps – as I have done on occasion, along with many others of greater and lesser repute. Just as Ford is subject to much competition in the production of automobiles, Hewlett-Packard in the arena of computers, and McDonald's when it comes to making hamburgers. Imagine how much less advanced, yet how much more expensive, all of these products – and so many more of them – would be were any of these individuals, firms, or their heirs, able to claim exclusivity on an idea. The result, I think, would be as devastating as any kind of communism or central-planning could ever be. Progress – both scientific and economic – would be hopelessly stultified. Liberty would suffer greatly under such conditions.

But wait: Does this mean that if I publish a horror novel then, for example, anyone should be able to come along, finance the production of copies of my work on their own without any form of permission, then reap whatever profits might be had without paying me a single cent? Should anyone be able to produce an exact Ford replica, an identical Hewlett-Packard PC, a McD's burger complete with golden arches on the wrapper, and then cash in?

My answer is an emphatic no. Why? The answer is actually deceptively simple: The distinction behind the concepts of “copyright” (which might well be called something different in an open marketplace), and “patent.”

To be more direct, “patent” seeks to forever insulate the originator of an overall idea from any and all forms of competition, improvement, or innovation. Whereas “copyright” seeks only protections and exclusivity for the creator of a certain unique version of an idea. One cannot “patent,” thus, the wheel. But Good Year, Michelin, Pirelli, and a thousand or more other companies may “copyright” their modern versions of it.

Let's ponder something more esoteric. Let's suppose I invent and produce the first-ever teleport machine. (And let's also assume this occurs in an already free society in which I will have to fear no government assassination attempts). This is obviously a revolutionary technology for the world. Might I arrange to forever after be the exclusive producer of any and all such machines? Is it either wise or consistent with freedom to allow no improvements, no advances, no further innovations to teleport technology except what I authorize or am able to think of or produce myself? Or might I only have rightful ownership of the particular version of teleport machine I've made – in this case the prototype – and any I might be able to make in the future based upon my own further ideas, and my own ability and desire to continue competing in that market arena? I think it's easy to see which path is the most rational: “Copyright,” as it were, remains preferable to “patent” in virtually every conceivable scenario.

In closing, none of us can at this juncture have any real idea as to how “copyright” claims in a truly free society might be implemented and enforced. Likely, there would be several different models – each themselves perhaps “copywritten” in their own regard in some capacity. But this much is clear: The premise behind “patents,” as such, is toxic to liberty and progress, whereas we can conclude that the “copyright” concept is critical to both – now, and in the future society of liberty voluntaryists hope to create.

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Alex R. Knight III's picture
Columns on STR: 145

Alex R. Knight III is the author of numerous horror, science-fiction, and fantasy tales.  He has also written and published poetry, non-fiction articles, reviews, and essays for a variety of venues.  He currently lives and writes in rural southern Vermont where he holds a B.A. in Literature & Writing from Union Institute & University.  Alex's Amazon page can be found here, and his work may also be found at both Smashwords and Barnes & Noble.  His Facebook page can be found here.  Receive Alex's occasional Tweets here.

Comments

Samarami's picture

Good topic for discussion, Alex. And well thought-out.

    "...With the recognition then that, if such practices still existed in freedom they would do so purely as a product of markets and free enterprise, we must then ask the obvious question as to whether individuals would be entitled to such protections at all..."

Key words here (as I see them) are "entitled" and "protections". If you invite me for a visit into your home, are you "entitled" to be "protected" from my crapping on your floor or being rude or unkind to you and/or members of your family??? Of course, if you didn't know me well enough to discern that I'm not one who would so engage, you would probably not extend the invitation in the first place. Caution is prudence.

You summed it up well in your final paragraph. Since none of us have experienced "true freedom" (with the possible exception of yours truly :-]) it's up in the air as to exactly how many of these "rights" will be protected once uncivil government is finally exterminated. Because there will still be, for example, "unfit" parents (is the newborn "entitled" to be fed, clothed and kept clean???).

With the advent of the internet and compooterization, where it has become so easy to copy & paste, I try to be vigilant with myself and give credit for quotations and things that make sense to me -- to provide "links" where appropriate. But, as in your example of the wheel, I suppose nothing I say or write is totally, 100% original with me. Someone at one time in my life taught me to say, "Ma-Ma". I did not originate the term, but I use it (my dear Ma-Ma died in 1996).

So discernment will probably rule in many cases, and there will always be some who will steal ideas and concepts without intending to remunerate whoever took the time and effort to produce them.

And you might have to hunt 'em up and gun 'em down. Sam.

Alex R. Knight III's picture

As always, I appreciate your input and analysis, Sam.  :-)  Thank you.

John deLaubenfels's picture

My views mirror yours, Alex.  My favorite example is a spreadsheet program: if I write and sell one, nothing prevents you from writing and selling a program with all the features mine has, but reasonable copyright prevents you from making money selling the program I wrote.
 
Where should the line be drawn between something that is protectable and something that is not?  In my view, the criterion should be that a work is complex enough that it is ridiculously unlikely (say, odds of one in the number of atoms in the universe) that it might be duplicated by chance by someone else.  Thus a book would be protected but a book title would not (same as now).   
 
I also agree that patents are illegitimate, both in terms of the simplicity of ideas they protect and in the method by which they protect them, which discourages rather than being neutral or encouraging competition.  In contrast, by protecting individual works, copyright encourages competition.  But if we sweep away patents, some of what they now cover needs to be carried elsewhere.  I don't want to defend the crony-capitalist practices of today's drug companies, but if we want a continued flow of new life-saving drugs, then the huge effort it takes to bring a drug to market must be rewarded by some form of protection.

D. Saul Weiner's picture

"I don't want to defend the crony-capitalist practices of today's drug companies, but if we want a continued flow of new life-saving drugs, then the huge effort it takes to bring a drug to market must be rewarded by some form of protection."

There are many assumptions built into this statement which may not be warranted.
First, do we want these drugs? Well, we really can't answer that question in the absence of a real market, where consumers willingly pay the full price for these drugs out of their own pockets.
Second, do we actually already have a "flow of new life-saving drugs"? The evidence is that few new drugs are life-saving, most only suppress symptoms, and many have been shown to be harmful and lethal.
Third, even if we were to concede the 1st 2 points, is it really true that "the huge effort it takes to bring a drug to market must be rewarded by some form of protection."? Maybe the huge effort and expense is actually just a form of protectionism, to keep less lucrative therapeutics off the market, since they cannot afford to run the FDA gauntlet. Maybe if we had a system of competing private firms certifying drugs and other therapeutics, it could be done much more quickly and efficiently, and would not require monopoly prices to underwrite such an effort.

But, let us suppose, that even in an environment where competing private firms were operating that it might sometimes, if not often, be cost prohibitive to produce new drugs which are profitable absent patent protection. What should we make of this? Should we wring our hands or simply accept the verdict of the market, that such drugs have failed the market test and that our resources toward improving health or fighting disease should be allocated elsewhere?

John deLaubenfels's picture

Oops, I meant to reply to you but created a separate new message instead.

John deLaubenfels's picture

I agree with many of your points.
 
   . The cost of bringing new drugs to the market is, without question, heavily distorted by government rules, allegedly in place to ensure quality but, like many or most government rules, of questionable cost-effectiveness (at best) or counterproductive (at worse).
 
   . The true cost of drugs is obscured by government influenced, if not mandated, practices of paying for them.
 
   . Other more cost-effective theraputics might supplant many expensive drugs now being prescribed, if the market weren't so distorted.
 
On the other hand,
 
   . Even if we stipulate that the vast majority of new drugs introduced are worthless or worse, I would assert that some fraction are life-saving, a real boon to mankind.
 
   . Even if we streamline the qualification process, removing all rules other than truth-telling (not over-hyping how safe a drug is known to be, etc.) for marketing a drug, for example, the process of testing a new drug will be very expensive.  This can be mitigated to some extent by performing human trials on people who are dying and eager to try anything, aware of the risks, but it will still be very expensive.
 
   . As time goes on, it will become increasingly easy to maufacture any particular compound, which will make it easier than ever to make a cheap profit off someone else's work.
 
"Should we wring our hands or simply accept the verdict of the market...?"
 
Is that how you feel about copyright too?  Should I be able to sell and profit from the spreadsheet program you wrote rather than writing my own?  I think unique new drugs should be protected in much the same way copyrighted works are today.

D. Saul Weiner's picture

I don't think that we can assume that drug testing will necessarily be very expensive in a free market setting. We really have no idea if there are far superior models for evaluating drugs than the FDA-mandated one. We need a market in order to determine how the testing ought to work and what it will cost.

I am not sure about how copyright should work.