Since there has been a lot of discussion John suggested rather than having it all as comments to a single post, I create an open thread for general discussion. I will try to set up an open thread each Monday for whatever IP topics catch the imagination and see how it goes. So go ahead, and post away comments to this posting on whatever IP/Monopoly topics you'd like.

Technological Innovation and Intellectual Property

Summary:

Patents as property I

The idea that patents can be analyzed as a property system both regarding its strengths and its weaknesses seems to be gaining currency in influential circles. This post reports on a recent editorial in the Wall Street Journal.

What s wrong with software patents?

This post, continuing summaries from Patent Failure, reviews the evidence on whether software patents have a particular problem, and, if so, what it is and how it might be fixed.

Patent sharks

Summary of recent articles on patent sharks, both old and new.

IP and startups

Theoretical model explores a novel effect of patents for startup firms.

From time to time, there have been stories about countries asserting ownership of pathogens for a variety of diseases. Indonesia's Minister of Health is the latest, and the story took a darker turn when the Indonesian government accused U.S. Naval Medical Research Unit Two (NAMRU-2) scientists of profiteering off its "sovereign" viruses and allegedly manufacturing the H5N1 bird flu in a biological warfare scheme link here. As a practical matter, the H5N1 strain is not limited to Indonesia and the fear is that the most deadly strain will cross national borders and kill millions before an effective vaccine can be developed. But it is also in Indonesia's interest to have the world working on cures for its own benefit.

This isn't the usual sort of intellectual property, but the monopoly that Indonesia wants to create is certainly akin to that of copyright and equally objectionable.

Patterico seems to think so with regards to their reprinting of a blog post authored by your humble servant (without my permission).

And Patterico is right - I don't care. It certainly isn't going to cause me to lose my incentive to continue writing about topics that interest me.

Robert Levine writes in the NYTimes today about Gregg Gillis, a D J who goes by the title Girl Talk and produces musical performances composed of snippets of other people's music link here. He is pushing the limits of copyright, claiming fair use, and is distributing some of his performances as free downloads, with a request for contributions, but is looking forward to a big album and might love the publicity of a suit.

Levine speculates that Gillis hasn't been prosecuted because the RIAA is afraid of losing a precedent setting case in which large snippets were found to constitute fair use. I would guess it may also have learned that prosecuting is pretty unpopular with their music buyers.

Although this case seems to constitute an example in which fair use is expanded and copyright restricted, it is only one small example of a possible win against the ever expanding limits imposed under copyright law. Fighting these cases in court against the well heeled doesn't see to be working, so I have come to agree with Larry Lessig that the IP monopolists will only be rolled back by political action.

Recently, re-listening to the 1991 lecture "Ayn Rand, Intellectual Property Rights, and Human Liberty," by Objectivist attorney Murray Franck, I was struck by one of quotes given in defense of IP. During his lecture, Franck reads (most of) the following quote approvingly:

"When we come to weigh the rights of the several sorts of property which can be held by man, and in this judgment take into consideration only the absolute question of justice, leaving out the limitations of expediency and prejudice, it will be clearly seen that intellectual property is after all the only absolute possession in the world. The man who brings out of the nothingness the child of his thoughts has rights therein which cannot belong to any other sort of property. Land or chattels are pre-existing in some form, and the rights therein are limited in many ways, and are held in the great service of the world, but the inventor of a book or other contrivance of thought holds his property, as a god holds it, by right of creation; with his silence or inaction the sustenance and advance of millions yet to be may vanish into the great darkness again. His brain has brought the seed out of the infinite, planted it in good soil, tended it with the care that only the sower can feel. Surely the world should not deny him a share of the increase he has brought about, and if he, giving the reversion of his property for all time to his race, is granted the product of his creation for half a score of years, he should surely be secured against being plundered by the law as well as by the lawless."

Franck says the quote is from one "Forvold Solberg" [sp?], "a former register of copyrights", but my google-fu indicates that the author is one Nathan Shaler, Professor of paleontology and geology at Harvard from 1869-1906, in his Thoughts on the Nature of Intellectual Property, and Its Importance to the State (1878). It's perhaps a bit ironic that the author quoted approvingly by an Objectivist in support of IP was a racist, one-time Creationist, and author of a book about some idea's "importance to the state"!

In any event, the latter part of the quote is extremely utilitarian: "the world" should give the innovator or creator "a share" of the wealth he contributes... by giving him a monopoly on it for about ten ("half a score") years.

The first part--about how inventors are "like gods" calls to mind Rand's embarrassing justification for smoking--that it's symbolic of fire "tamed" at man's fingertips.

The quote also emphasizes very explicitly that Randians and other IP advocates believe "creation" is an independent source of rights: you hold your intellectual creation like a god, "by right of creation."

I note also that Franck says in the lecture that copyrights should survive in perpetuity.

Incidentally, I graduated from law school in 1991, the year of this lecture, and listened to it soon after, about the time I was beginning to practice IP law (1993 or so). I had recently morphed from an initial flirtation with Objectivism to Rothbardian anarcho-libertarianism. I was very interested in this lecture, since I had long struggled with Rand's weak justification of intellectual property--which was especially troubling since she claimed that "patents are the heart and core of property rights." The lecture failed to convince me; I kept searching for better justifications of IP than I'd seen from Randians. After shooting blanks for a few years, I finally came to the realization that I was unable to find a justification for IP ... because it's unjustifiable and contrary to individual rights. By 1995 I had reached my current views on IP, as can be seen in this exchange between me, Franck, and David Kelley, in the IOS Journal: Murray I. Franck, "Intellectual Property Rights: Are Intangibles True Property," IOS Journal 5, no. 1 (April 1995); Kinsella, Letter on Intellectual Property Rights, IOS Journal 5, no. 2 (June 1995), pp. 12-13; David Kelley, "Response to Kinsella," IOS Journal 5, no. 2 (June 1995), p. 13; and Murray I. Franck, "Intellectual and Personality Property," IOS Journal 5, no. 3 September 1995), p. 7 (all of these except the first are here; I find only this bad link to Franck's first piece).

In Against Intellectual Monopoly, Michele Boldrin and David K. Levine point out that the great rise in American agricultural productivity after 1930 took place when patents were not granted on plant life, especially in the case of corn. Corn varieties were patented only starting in 1974, almost half a century after the great ag productivity boom began (pp. 55-56). They state that better hybrid strains were the primary driver in the farm belt's boom.

The economic historian John Gordon Steele points to another factor in what he calls "The High Price of Farm Productivity" (scroll down a bit): Henry Ford's introduction of the Fordson tractor, which by 1922 cost less then a team of good horses. By 1930 the only farmers using horses were the Amish.

In 1900, a third of U.S. cropland was used for fodder crops; by 1930 it was used mainly for making human food. I don't know which affect was more important, but surely they both were influential.

Here is John Gordon Steele's economic history of America, An Empire of Wealth.

According to Michael Heller the cures are lost in patent gridlock. His article in Forbes has the not very pretty details.

Stephanie Meyer's best selling Twilight Series has become "the first social networking best seller."

Her readers have created a new Twilight world on the web, which has served as an alternative marketing tool for her books. Sales of other books such as Freakonomics and The Last Lecture have benefitted the same way.

Unlike the billionaire fiction writer J.K. Rowling, who sued a young French writer of a Harry Potter Lexicon for copyright "infringement," Stephanie Meyer has basked in the glow of the Twilight Lexicon, created by her fan Lori Joffs. Ms. Meyer's main problem now is that she's too busy to keep up with all the Twilight-related stuff, and too busy (and grateful) to sue anyone.

Fan fiction continues to spawn new genres. So it's not surprising that the copyright lawyer Rebecca Tushnet wants to bring it out of the shadows and make it part of "fair use." Ms. Tushnet, although I'm sure you're well intentioned, please don't do it. If you want to do something useful, join the abolitionists and argue against copyright.

And note that Star Trek creator Gene Roddenberry ignored fan fiction, and the Star Trek fan base (and his income) grew by leaps and bounds.

An Open Letter to Leftist Opponents of Intellectual Property: On IP and the Support of the State

We libertarian opponents of IP sometimes perplex IP advocates and leftists. There's an analogy here to the way libertarians, and especially anarcho-libertarians, are treated by mainstreamers. The press does not know what to do with libertarians, for example. They typically use "libertarian" to denote civil-libertarian ACLU types; while libertarian thinkers and institutions are often described as "conservative." And "anarchy" is usually associated with chaos, bomb-throwing, or leftist anarchists--rather than with anarcho-libertarianism, which is the only genuine form of anarchism. (See my What It Means To Be an Anarcho-Capitalist.)

There is a common assumption in society that "intellectual property" is a legitimate type of private property right. Thus socialists and leftists oppose IP because of their hostility to private property rights, capitalism, corporatism, and industrialism. Thus, many IP opponents are leftist, anti-capitalist types (for example, Richard Stallman and Eben Moglen are, IIRC, at least somewhat leftist [if I am mistaken in this, I stand corrected; in any event I would welcome email providing backup of this, or examples of other leftist anti-IP arguments).

Likewise, many libertarians accept the fallacious notion that IP is a type of property, and thus support IP because they support property (and because many well-known libertarians, such as Ayn Rand, were strong advocates of IP).

Conversely, those who innately or independently oppose IP, are often classified as leftists, or even believe themselves to be leftists (I believe a similar phenomenon explains why the press tend to be left; they naturally tend to be pro-freedom of speech and freedom of press, but accept the mainstream dichotomy that if you are for personal liberties, you are against economic liberties, and vice-versa; they do not understand that economic and personal liberties are essential and complement each other).

The truth is that the only principled case against IP is the libertarian one, as I've argued in my Against Intellectual Property. The problem with IP is that it undermines and infringes on private property rights: it lets some person gain rights of control over the property already owned and acquired by others (for example, a patent or copyright gives the holder a veto right over certain uses others might put their own property (their bodies, paper, raw materials) to). To oppose IP is to uphold private property rights--libertarian rights. To oppose IP while also supporting socialism is a confusion.

And more than this. IP is not possible without legislation; legislation is not possible without the state. And conversely: with a state, you always get legislation; and legislation always leads to a proliferation of bad laws (see my Legislation and the Discovery of Law in a Free Society).

What this means is that not only is your case against IP weakened if you do not adopt libertarian principles and reasoning to undergird it. But if you support the state at all--if you are not an anarcho-libertarian--then you do not really oppose IP. If the state exists, it will legislate, and it will probably enact IP laws, along with plenty of other bad laws. So, if you support the state, you really can't complain about IP laws. As Ludwig von Mises pointed out, "No socialist author ever gave a thought to the possibility that the abstract entity which he wants to vest with unlimited power—whether it is called humanity, society, nation, state, or government—could act in a way of which he himself disapproves."

IP opponents must not oppose only the "worst excesses" of IP. They must oppose all IP, root and branch, on principled, pro-private property, grounds; and more than this: they must oppose the state itself, and legislation as a means of making law.

So shape up, non-libertarian IP opponents. If you want to make a real case against IP, you must ground it in sound political principles. For some suggested reading, see:

• Hans-Hermann Hoppe, Anarcho-Capitalism: An Annotated Bibliography, LewRockwell.com, Dec. 31, 2001
• David Gordon, Books on Liberty, LewRockwell.com, March 15, 2001
• Llewellyn H. Rockwell, Jr., Reading for Liberty, LewRockwell.com, June 9, 2003
• Stephan Kinsella, The Greatest Libertarian Books, LewRockwell.com, August 7, 2006

(Cross-posted at Mises Blog)