Oct 112009
 

A tongue-in-cheek post by Justin Kownacki and a debate at Podcamp Pittsburgh 4 with Justin, Tami Dixon, Steve Klabnik, and Nick Pinkston has inspired some thoughts about intellectual property (IP). I can’t shake the feeling that the debate could have been more fruitful if some terms had been explicitly defined. Let’s see if I can sum up the gist of Steve and Nick’s point. Afterward, I’ll offer some suggestions for continuing the discussion.

If I understand them correctly, Steve and Nick are arguing the following.

  • Premises
    1. Every person has a right to be secure in his life, liberty, and property. (Watch “The Philosophy Liberty” if this is a new concept to you.)
    2. The purpose of law is to protect these rights (ala classical liberalism or libertarianism).
    3. A person may dispose of his property as he pleases.
    4. Nobody has a right to take my property by coercion or force.
    5. Property is defined as any physical entity that is owned by a person or jointly by a group of persons.
    6. Intellectual property is defined as “a number of distinct types of legal monopolies over creations of the mind, both artistic and commercial, and the corresponding fields of law”.
    7. Monopolies are antithetical to free competition in an open market.
    8. Monopolies on ideas are especially harmful because they stifle the free spread of beneficial ideas throughout society.
    9. The labor theories of value, defined as “economic theories of value according to which the values of commodities are related to the labour needed to produce them”, and all intrinsic value theories, are bunkum.
    10. The subjective theory of value, defined as “an economic theory of value that holds that to possess value an object must be both useful and scarce, with the extent of that value dependent upon the ability of an object to satisfy the wants of any given individual” and distinguishing between value, per se, and exchange value or price, is correct.
    11. Ideas are not economic goods, i.e., good that are scarce, but free goods, defined as “available in as great a quantity as desired with zero opportunity cost to society”.
  • Conclusion
    1. Ideas, being intangible, cannot be property.
    2. Ideas, not being scarce, have no market exchange or economic value.
    3. “Intellectual property”, understood as “idea property” is a meaningless concept.
    4. Monopolizing a free good has no proper place in copyright and related law.
    5. Since ideas, once expressed for consumption by others, should not be protected, creators can only expect their ideas to have economic value when first expressed, i.e., before they’re reproduced at low or zero cost to others.
    6. If someone copies your ideas, suck it up. Life’s hard; wear a helmet.

I’ve done my best to translate what I think I’ve understood of Steve and Nick’s arguments into more concrete and clearly defined terms. If I’ve misrepresented them, I’m sure they’ll let me know in the comments section. ๐Ÿ™‚

I offer the following thoughts (in no particular order) as suggestions for possible rebuttals. If they are inadequate for Justin, I’m sure he’ll let me know in the comments section. ๐Ÿ˜‰

  • Are ideas really free goods? Are they really not scarce? Are there really no opportunity costs? The life of a person, being finite, is a scarce good, so a person’s ideas are scarce goods. Except in rare cases of spontaneous inspiration, ideas have opportunity costs; a creator could have been doing something else while spending time in “idle” thought.
  • If ideas have no intrinsic or economic value, is creating ideas a luxury only the rich can afford (because they can afford resource and opportunity costs without compromising their ability to meet basic needs)?
  • Must a good be tangible to have economic value? When you buy a book, are you just buying the nice “value added” features of an attractive presentation, a convenient and portable medium, etc., or do you want a copy of a body of ideas to read? Can a book really be judged by its cover (or at least its medium)?
  • If consumers are willing to pay for ideas (think tanks, consultants, intelligence etc.), aren’t they de facto economic goods?
  • If ideas, such as stories, increase the value of the paper they’re printed on, aren’t they de facto economic goods?
  • Isn’t there a difference between a good that could be reproduced at low or zero cost and one that has been widely reproduced, just as there’s a difference between potential and kinetic energy? Is it unethical to use law to make certain free goods scarce, for at least a brief period of time?
  • Should trade secrets, such as the formula for Coca-cola, not be permitted? Should proprietary formulae, recipes, techniques, plans, etc. be eschewed in favor of free access for all?
  • Should reverse engineering be permitted?
  • Without protection for ideas, won’t entrepreneurship suffer? The risks involved in committing resources and paying opportunity costs are compensated for by the prospect of potential reward. If someone can legally copy someone else’s idea for free, i.e., without facing any of the risks faced by the idea’s originator, why would anyone want to accept the risks of idea creation?
  • Is copying ideas without permission contrary to dignity?

Let the commenting begin! ๐Ÿ™‚

Update 10/12/09: I’ve added an additional possible rebuttal and will continue to add them as they come to me until the first substantive comment is posted. At that point, I’ll treat the post as static and only make spelling or grammar corrections.

available in as great a quantity as desired with zero opportunity cost to society.
  • Seems to me that what the guys are proposing (if you’ve represented it fairly) amounts to communism. It’s very Marxian (from each according to his ability, to each according to his needs) and even Polpotian (hey, let’s dispossess and enslave the intellectuals!).

    Ideas, with rare exceptions, may be overrated (even do more harm than good), but we need stories and songs. How are you going to get them if you don’t allow their makers to be rewarded?

    That said, ideas travel like the wind (or the viruses riding it) and are impossible to contain. There has to be some other way of rewarding the maker of intangible goods than by the piece, by turning them into tangible goods (CDs, hardcover books). Protection against deliberate, provable, extensive plagiarism (as opposed to inadvertent echoing) is also very important. If you take something I’ve written and put your name on it, you are stealing my labor. Strangely, I’d mind less seeing something I wrote attributed to “anonymous.”

  • Oh yeah: it’s Marxian in being so brute materialistic, too. A spade is made, and is useful; a poem isn’t. You can’t eat it or grow food with it. No pharmaceutical company can patent its power of consolation.

    Full fathom five thy father lies,
    of his bones are coral made.
    These are pearls that were his eyes:
    nothing of him that doth fade
    but doth suffer a sea-change
    into something rich and strange.

    That’s nothing, right?

  • I have one question for Nick and Steve: When I find that one of my photos has been “borrowed” and is posted on a site, with the author pretending the child pictured is their own, should I just “suck it up?” What if the site is profiting from the photos?

    I tend to think that people who intentionally steal ideas, content, and photos and then profit from that theft are simply those people who are too lazy to think of anything original themselves.

  • Sorry for the delayed response — I’ve known this post required a detailed one, and I’ve been traveling for the past 2 days. Now that I have three uninterrupted minutes, here’s what I think:

    * I agree with each of Eric’s rebuttals above, which makes this possibly the first time we’ve been on the exact same page.

    * That said, I also agree with Nick and Steve’s general assertion that the spread of ideas is necessary for the advancement of humanity. I believe our core difference is where we draw the line between “free for all” and “worth my while.” Because as much as I’d like to save the world, I’d also like to eat dinner, and I can’t eat dinner if you’re not going to compensate me for saving the world. Therefore, if I orate to you a ten step process guaranteed to save the world, I don’t care if it’s not written down on parchment: it’s still worth a bowl of soup; otherwise I die and you get the glory, and I refuse to believe that the human ego’s need for recognition is what’s standing in the way of utopia.

    * Steve and Nick are anti-impersonation, true. What I’m not sure of is how they define impersonation. Saying “that’s my kid” (when it’s not) means I’m pretending to be that kid’s parent, which they’d argue against; saying “that’s my picture” (when it’s not) means I’m pretending to be the artist of someone else’s work, which they see nothing wrong with. I fail to see which elements of identity are involved in their version of “impersonation” vs. “righteous theft.”

    * Their company (GearHeadz) is a 3-D printing company, which uses existing blueprints to recreate existing products. But if their argument is for scarcity — say, a table is worth paying for because there’s only so much wood and metal in the world — doesn’t being able to replicate that table (without a craftsman, and from whatever materials the printer uses) automatically drive down the price of that original table? The original is no longer “scarce,” unless the argument is for price being attached specifically to *those materials*. (Also, in their POV, it goes without saying that the craftsman shouldn’t be paid for his work anymore, since everything he’s doing can now be done by a machine for near-zero cost.)

    * To sum up: I agree that we should have worked toward finding a common ground from which our larger disagreements could stem. Instead, we argued the symptoms of the problem without clearly defining the problem first. Was it less productive a debate than it could have been? Yes, but if we prompted anyone in that room to reconsider their own opinions of ideas, work, ownership and value, then it was a fruitful hour. (And if not, it was still entertaining.)

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  • Tony

    I was at the debate and found it very interesting. Consider it fruitful because I was one of those who was considering my own opinions during and afterward. Can’t say my mindset was completely changed but it certainly gave me something to think about.

    Steve and nick presented a pretty solid argument and gave very respectable responses to doubters. The internal conflict that I am finding is that, on the surface, their stance makes sense, but there is just something in my gut telling me it’s flawed. I can’t put my finger on it but the debate has given me the inspiration to look inward and define my own stance on the issue.

  • Brian Stackhouse

    Wish I could have been there for the session!

    I think Steve and Nick start off well, but they divert in their definition of IP. A legal monopoly means that you own what you have created — it is not equated to an industry or commodity monopoly. Case in point: I can write a song, record it and distribute it and it will not prevent you from creating your own song. It will prevent you from using MY song. IP will protect my rights to my work — not prevent you from producing your own song and competing in the market for listeners and customers.

    If you look at the complete definition of IP (see link above) “Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; ideas, discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property include copyrights, trademarks, patents, industrial design rights and trade secrets in some jurisdictions.”

    The monopoly granted is the exclusive rights to the use and gain from personal works.

    From this – your argument is found wanting, and your conclusions are erroneous.

    Great conversation,
    Brian.

  • I think this is one of the better discussions on IP that I have seen.

    I have to agree with Brian “If there is not protection for individual property rights โ€“ then why create anything?”. I am considering graphic design for a possible career, and that is one example of a field that depends a lot on putting a tangible (i.e. dollar figure) on art. These days, however, the industry is really at a crossroads, and art is often, if not usually, digital and therefore falls under the domain of intellectual property. While I personally think it is really cool to have Creative Commons and things like that for free redistribution within the art community (and beyond), in the end I think the best work is usually made when the artist or creator is being somehow tangibly compensated, (i.e. paid) for his/her work.

  • amba12

    There is scarcity at the source. There is scarcity of time, energy, motivation, and freedom to create the ideas on which humanity thrives. You sketch a society in which creators of things would be remunerated, often richly if people consumed lots of those things. Creators of ideas would be “starving artists.” If ideas are indeed vital to humanity, how do you propose to motivate and sustain the creators of ideas?

    The system of book and record marketing was to turn ideas into things, or rather, create things that were proprietary packages for ideas. Publishers and producers made profits; creators got advances and royalties. The Internet has precipitated a crisis in this system of compensation by dispensing with the need for the package. That so many creators of ideas are, in fact, now doing their work for nothing (except perhaps attention or reputation that they can eventually parlay into other sources of support, stipends, speaking fees, seminars, teaching jobs) suggests both that creators’ first priority is to create, often overriding their self-interest, and that “new” systems of compensation or patronage are evolving that do not involve turning ideas into products. (Am I answering my own question?)

    But then what about “ideas” that are collaborative and cost large sums to produce (e.g. major motion pictures)? Who is going to invest in them if copies can’t be protected and profits can’t be made? If the “creators” of such collective dreams need producers and locations and personnel and materiรฉl to create?

  • “Haha โ€“ Iโ€™ll take that as a joke, but I think you know that libertarian means having government, just a lot less of it.”

    It was only partially a joke in reference to a tweet you wrote to me. ๐Ÿ˜‰

    “Classical liberalism” and libertarianism

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