Tuesday, September 10, 2013

Objective Intellectual Property Law

Our ideas about intellectual property are rooted in medieval law about real estate.  Patents are given to the “first” inventor (which is defined differently by different laws) and deny the reality of independent invention. Rational law would recognize that all independent inventors have the rights to the products of their own minds.  Also, rather than expiring, intellectual property would continue forever, like any other kind of property.

Johanna Blakely of the Norman Lear Center at the University of Southern California has a TED Talk about the importance of copying to the multi-trillion dollar fashion markets.  Copying is how trends develop. The buyers of originals are not the buyers of knock-offs (and vice versa). In fashions no patents or copyrights exist. Only trademarks are protected.

We still think of property as if it were land. You cannot copy land. Therefore, you must not copy an automobile transmission. No two farmers can plow the same land at the same time, so no two engineers can be allowed to develop the same process at the same time.
Great Artists Steal - it still took
three point one tries to get it right.

On a deeper psychological level, our laws on intellectual property are founded on a false doctrine of jealousy in love, which is based on a lack of self-esteem, and the desire to own and control another human being. “This is mine and no one can have it.” That is fine, for things that really are yours. Other people and the content of their minds are not yours.

We have examples of the value of the opposite mindset.  In 1661 Robert Boyle's "Sceptical Chymist" explained why the secretive methods of alchemy had to be replaced by open publication of reproducible results. It was a radical idea.  The proud (arrogant, in fact) creative people in the Homebrew Computer Club came together to show off their work. They shared ideas by implicit trade. Those who had something cool were highly regarded. It made the computer revolution possible.  However, it was not to last.

Look at your computer display. Open a window. Make it smaller by dragging the corner up. That is a logical XOR, either the bit is on or the bit is off. From that, one window overlays another, wholly or partially. That became a patent. Someone claimed it, years after it was standard operating procedure.
    “Ever since Autodesk had to pay $25,000 to “license” a patent which claimed the invention of XOR-draw for screen cursors (the patent was filed years after everybody in computer graphics was already using that trick), at the risk of delaying or cancelling our Initial Public Offering in 1985, I've been convinced that software patents are not only a terrible idea, but one of the principal threats to the software industry. As I write this introduction in 1993, the multimedia industry is shuddering at the prospect of paying royalties on every product they make, because a small company in California has obtained an absurdly broad patent on concepts that were widely discussed and implemented experimentally more than 20 years earlier.”  Read here “Patent Nonsense” by John Walker. 
 Patents are defined as broadly as possible in order to secure their rights against any and all similar but different competitors. Take xerography, for example. Many different chemical combinations and many different processes can be engaged to create copies of images. Xerox wants (wanted) not just a patent on the one they actually developed, but they use the one they actually developed as evidence of their claim to all other possible variations. Then when someone else does the same thing a different way, suits at law are supposed to sort that out, as if courts (judges, juries) are competent to evaluate any and every new technology. 3-D printing is now being developed by independent technologists in many different ways. Will someone then be able to claim the rights to all of them?

I see Henry Ford in his motorcar. I can build one, too. Of course mine will be materially different for many basic reasons - basic, metaphysical reasons from the nature of human intelligence.
A generation ago, computer programming instructors figured out that in any average introductory class, no two students will ever (likely) produce similar programs, even for the most basic of assignments. Therefore, any two programs that are arbitrarily "too similar" may easily be evidence of copying (cheating).  So, too, with other inventions. It would take an intellectual effort - having first stolen the plans - to slavishly copy without making any changes. 
Even when you have the Blueprints ...
(Memory Alpha)
Even when you have the blueprints, you may well lack the special insight of the original inventor. A process could be documented completely but its failure modes might be known only to the inventor. 

Enter “early automobile patents” (and similar phrases) into your search engine. The internal combustion engine itself was patented, of course, even though it is only a recombination of James Watts' steam engine. I mean the valves and chambers. The only new idea was putting the flame inside the engine, a tough nut to crack, indeed, but many ways to achieve it. Sparkplugs are the common solution, but Rudolph Diesel's engines achieved combustion by pressure alone, though modern engines do have "glow plugs." And on and on it goes.

Some libertarians attempt to justify property rights on the assertion (from John Locke) that you "mix your labor" with it to earn the right to it.  Undeveloped frontier land is offered as an example.  But what if you choose a buy-and-hold strategy, keeping the land as wilderness to watch its value increase as other property is developed?  
Anonymous and created for Loompanics Unlimited, 1991, for my article, "Did Thomas Jefferson Wear Mirrorshades? - or - Why is the Secret Service Busting Publishers?"  I was inspired by the cyberpunk story, "Mozart in Mirrorshades" by Bruce Sterling and Lewis Shiner (Omni, September 1985). I found this image shrunken to an avatar by a patriot named "Fegeldolfy" on the Ron Paul Forums Liberty Forest. 
Also, applied to commercial and financial markets, this "mix your labor" theory would nullify any buy-and-hold investment strategy. Applied consistently in a libertarian utopia, you might lose your ownership in a joint-stock company if you fail to vote your shares, or otherwise display an active interest in the company's operations.  

Finally, when you steal someone's invention - unquestionable theft, let us grant: you steal the blueprints from the bedroom vault - if you have only stolen the ideas, then in order to profit from them, you must also "mix your labor" even if only to sell the plans to someone else.  Clearly this "mix your labor" theory cannot support even the right to land. It surely cannot be used to define and protect intellectual property.  

Read about the case of Charles M. Gentile and the Rock n Roll Hall of Fame. It is an example of the false philosophy behind such laws. 
NYSE Facade:
a copy of a copy of a copy
(Wikimedia Commons)
Gentile was sued for his images of this public building. Architect I. M. Pei claimed all rights to the image. The museum was built with public money. It sits wide open to be seen from anywhere. After being sued, Gentile was ordered to destroy all copies of his work. Eventually an appeals court reversed the ruling at a cost of about $2 million to the artist. Interestingly, about 100 such buildings are protected by similar copyrights, including the New York Stock Exchange and the Chrysler Building.

Alternately, if an invention is property then, it never ceased to be property.  The government would act like a land office, registering the ownership deed. But land is finite and limited in occupation by the laws of physics. Ideas have no such limitation. So, independent invention and discovery must be allowed. But granted that, the property exists forever.  Instead we have a mystical fiction that 17 years or some other magic number is the correct length of time for a patent.  Right now under the Digital Millennium Copyright Act, a work is protected for the life of the artist plus 75 years, or plus 90 if the work is sold to a corporation.   That is not rational, but just arbitrary.

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