Wasn’t sure exactly were to put this, but here’s this question.
In an anarcho-capitalist society, how would copyright and patent disputes be handled? I.e., what systems might be put in place to protect innovators and creators from theft of ideas?
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Copyright and Patents
Wasn’t sure exactly were to put this, but here’s this question.
In an anarcho-capitalist society, how would copyright and patent disputes be handled? I.e., what systems might be put in place to protect innovators and creators from theft of ideas?
There certainly is disagreement on the subject. I think most libertarians would fall in alignment with one of these authors:
My thinking would tend to be that the only practical way to address these problems would be via contracts/licenses. If you provide a book/movie/etc. to a person for the purposes of publishing, you can dictate they pay you royalties on any profits, and that they pass on such requirements to any subsequent persons provided with the material via a “copyright”. If you provide schematics to a person for the purposes of manufacturing, you can dictate they only use such information to manufacture the product for you via a “proprietary information agreement.”
It would look a bit like the system we see today, but the onus would be on the “rights holder” to guard such information, define terms of use, and enforce such terms. There would be no recourse to third parties independently developing similar products.
It means additional difficulty in recovering costs of developing new products, but is a huge incentive for continued innovation and improvement.
“theft of ideas”
Does anyone think these things through? It is not possible to “steal and idea.” However I aquire an idea, it is my idea in my own mind and I am free to use my ideas in any way I choose, whether I originated the idea, learned it from what I read or hear, or acquire it in any other way. Nobody owns an idea.
Randall, No I didn’t think it all the way through. That’s why I asked the question. I thought it would be a good idea to get thoughts from others before trying to fully define my own position. That’s the point of these discussions.
You might be right that “theft of ideas” is a flawed concept, BUT. If I agree to provide you the plans/schematics/whatever for my new device on the condition that you agree not to provide them to anyone else or sell the product without providing me a percentage, and you do anyway, you are in breach of contract. I don’t have any recourse to someone you may have provided information to, or someone who developed a similar product, but I do have recourse to you if you are not in compliance with our original agreement.
Have can one claim ownership of an idea or way of thinking ? Can someone claim ownership of letters /numbers and how they are used ? no .. I it an absurd idea that is based on bullying and force .
In my personal opinion libertarians try to solve a problem which is not theirs to solve.
Look at it in this way: If a group of people organize a society and decide that in this society there will be patent laws, then where is the problem? All land owners, i.e. owners of the property over which the patent laws are valid agree and support the existence of such laws. Whoever disagrees (i.e. non-owners in this society) is free to leave and join another society without copyright laws.
The same may happen in the opposite direction: A society decides not to implement any patent laws for instance.
Note that in both cases NAP is not violated. By the way it may turn out that in some societies it would be better to have copyright but in others – not. Who has said that there must be just one right solution to this problem?
In my view this problem is artificial and stems from the deep rooted wish to tell people what is right for them.
Brad, sorry I quoted you to make my comment. It was not directed at you.
“If I agree to provide you the plans/schematics/whatever for my new device on the condition that you agree not to provide them to anyone else or sell the product without providing me a percentage, and you do anyway, you are in breach of contract”
That would work with me, because I always keep my agreements, which is why make very few of them.
I think however agreements (and contracts) have no direct bearing on the meaning of so-called, “intellectual property.” If one wants to protect their ideas, agreements is one way, an even better way is to keep them secret (which many companies now do instead of patents).
Once a product is produced and sold, however, it can be reversed engineered (sometimes, and always with difficulty) and whatever knowledge is gained by the process belongs to whoever acquired it and they may morally used it in any way they choose. I think this is where you would have difficulty agreeing, and would be glad to address any doubts you have about it.
I actually do agree with you on your points in the last two paragraphs. You have no recourse to against somebody who did not enter into any agreements with you. Also it acts as a significant motivator for continuous improvement. Even if you create some wonderful new invention, if you don’t keep improving on it, your competitors will, and they’ll put you out of business.
The “copyright” issue is a bit trickier in that it’s so hard to “enforce”. If I write a book, how can I make a profit off that if everybody and their mother can make a copy and just give it away for free to whoever they like? Copyright (or copyleft) agreements tend to work well enough in that I at least may have some recourse to whoever I initially sell the book to, and they then have recourse to whoever they sell to, and so on down the line. It is just a significant risk.
Maybe that’s just the way the economics work out, and the true value of the production of those types of materials is low, and the world would just adjust to that reality. But maybe that’s another incentive to continuous improvement and production of ideas. I’m just curious to know how that would work out.
Not saying it’s necessary to have patent or copyright laws, because they do at some level represent government interference in free markets. And we all know how well that usually works out.
Hi Brad,
“If I write a book, how can I make a profit off that if everybody and their mother can make a copy and just give it away for free to whoever they like?”
There is not a lot of difference between that and someone buying a book and then passing it around to anyone who would like to read it. Still, there will be those would like to have an original copy of the book for themselves, and the total market is worldwide. Copies won’t be distributed that widely.
The other side of the question is, what if you publish a book and nobody is interested in it? All the copyrights in the world will not make you a penny.
Just some ideas for the mill.
There is also a sort of cultural barrier to limit people exploiting what seems like free ideas. Copying a book word for word and selling it under your own name is a huge professional taboo (plagiarism) and pretty much anyone who does so is going to be ruthlessly blacklisted. Not good if you are trying to make your way in a free-market.
What if you want to do something to make money but you can’t figure out a business plan that will yield a profit because people won’t voluntarily pay you as you want them to do? Obviously they should be forced to do whatever is necessary for you to make a profit! After all, you deserve compensation for your effort.
Have you read Stephan Kansella’s Against Intellectual Property? It’s available as an ePub in the Liberty.me library and is less than 50 pages. Excellent introduction to the question.
“If I write a book, how can I make a profit off that if everybody and their mother can make a copy and just give it away for free to whoever they like?”
One strategy is to give away your first book and gain some fans. Every business has a marketing cost, and that is your marketing cost. Then, write a second book and setup a crowdfunding campaign for it. When your fans have pledged $20,000 (or whatever amount you decide), you release the second book. Repeat for subsequent books.
Linking the income for your creative work to the industrial process of making copies was viable in the past when few people were able to make copies, but a writer can’t force that link anymore.
“You make it sound so easy.”
Easy or hard, it’s a necessary step – with or without a copyright monopoly.
What! You expect a business to have a viable business plan? How unreasonable.
I agree with Randall here, intellectual property is state monopoly based on force, and must be abolished. There are several ways creators can protect their inventions in a free society. With books, authors would have to publish them quickly, to extract most of the profit available. Pirates only copy successful books, and this is not known for many months, leaving a window of opportunity for the author. Also, books can be written and published under contract for sponsoring organizations who distribute them rapidly.
Corporate identity – for example, the logo and colors of a MacDonald’s restaurant – would be protected by strong law in a free society, because copying it would be fraud against potential customers.
Significant technical inventions would have to be kept secret and released only under contract to a trusted manufacturer or business partner selected by the inventor. Companies that exploit new technology always want to partner with the inventor, to benefit from their expertise, so there is no incentive to cheat that person. Also, understand that, in a free society, the public would have access to simple, instantaneous boycotts of any product or producer. A company that cheated a clever inventor would be treated as an enemy of society by the public, and it might go bankrupt from a single boycott. Think: this point is more powerful than all of IP monopoly “rights.”
Fraud would continue to be a crime in a free society, and the false claim of authorship of music or software would be legally actionable. It would be legal for a person who legitimately acquired a copy of a creative work to sell it, but if a person deprived the author of revenue, then the public would descend on him or her them like a ton of bricks, and the cheat would “never work in this town again.”
Simple and more “obvious” inventions are always easy to copy, but an agile inventor can still make money out of them. When the invention is copied, profits drop, but so what?
I’m an author who, along with my husband, releases all our works under Creative Commons Attribution ShareAlike licenses. We’re very anti-copyright, in no small part because my husband, who is a developer, sees how intellectual property damages innovation. The slide-lock debate is a small example of that. Companies applying for hundreds of patents that they never use per year — requiring their employees to apply for multiple patents per month (in the name of the company, not the name of the employee) are larger examples.
(This does not mean we do not respect other people’s copyrights. We don’t violate others’ copyrights.)
We’ve never had someone say, “hey, we won’t pay for this book because we can get it free elsewhere.” We’ve given our books away free in some instances (right on Liberty.me, even. House of Refuge and After Dark are in the library) and had people who liked them turn around and buy them as well.
If you put out good quality products, people will want to reward you as the creator. Thousands of people write Harry Potter fanfiction, but all those Potter fans still get most excited and ready to pre-order books when they hear that J.K. Rowling is putting a book out. Fans write Game of Thrones fiction, and HBO is going to put a real ending on the series, but everyone is still clamoring to hear George R.R. Martin’s version of how it ends. How often have you heard a song free on the radio and then bought an album? Radiohead did the experiment where they released an album and anyone could pay anything to get it. Most people paid, and many even paid the price of a regular album.
To say that work has no value or earning power if it can’t be strictly controlled devalues the appeal of a creator.
Now, Mike and I release our books under a ShareAlike license, meaning anyone who uses our work also has to (in addition to attributing our contribution), they must release their derivative work or copy under the same ShareAlike license. This is the opposite of, say, Disney, who is more than happy to mine the public domain and then lockdown their new creations and prosecute those who would profit off their derivative creations. Anyone can make a little mermaid comic based on Hans Christen Anderson, but no one had dare use Ariel. So let me ask you, if an artist puts eight hours of work into a beautiful drawing of Ariel that no one at Disney would create themselves, why is it so wrong for that artist to make prints and sell their own drawing of Ariel?
As a matter of fact, how many “original works” that are under copyright are just differently named, slightly changed versions of already popular, copyrighted things? Yet people want these new things and twists all the time. How many people torrent movies, but then decide if they actually like the thing, go on to buy the DVD or see it in theater? How many people support something just by telling others they like it and making recommendations, even if they never buy it themselves?
Copyright is often useless to the “little guys” or original creators, and mainly works in favor of large corporations. I’m pretty sure The Question and second iteration of Blue Beetle are in the public domain, but you won’t be seeing them in my books, because if Warner Bros decided to sue me, even if I’m right, I can’t afford to be taken to court. The elderly creator of Ghost Rider sued Marvel to try to get some money off the film, and they counter-sued him. He is no longer able to bill himself at conventions as the creator of Ghost Rider, even though he is the creator of Ghost Rider. He is no longer allowed to sell prints of the character. A daycare center was told they had to repaint their walls because they put Disney characters on them, even though they weren’t selling anything related to Disney, they just wanted to make the kids happy. (Hanna-Barbera, I believe, stepped up and said use our characters instead). These decisions go on all the time. They only protect whoever has the largest pocketbook and best lawyers. Yet individual creators, often dirt-poor ones hoping their idea will be their big break, cling to the idea of copyright like it can really help them.
So I don’t think copyright is necessary. I think fans can often do better what copyright protection claims to do.
Case in point: Tolkien didn’t want paperbacks of his books made. (He was a book snob, and thought only hardcovers were legitimate books.) There was no copyright protection of his books in the U.S., so a U.S. company made paperback books and sold them. At first, they sold like gangbusters, but Tolkien complained about it and his fans boycotted the paperback books because they realized he wasn’t making money off them. The publisher then negotiated with Tolkien and convinced him that the paperback sales were obviously profitable, and he should be more open-minded. They made a contract, giving Tolkien his fair share of the profits, Tolkien, in turn, endorsed the paperback books, and his fans happily snapped up the cheaper copies of his books, supporting him and making his books more accessible to a whole new demographic. All without copyright (because remember, there was no copyright for Tolkien’s books in the U.S.)
What makes me wonder is why so few people realize that keeping something secret has a price and this price must be paid by the inventor if he wishes to profit from his invention.
An example: A company develops a new software. If there are copyright laws and they are well-imposed then this company could just release the software as it is and not worry. What however happens when there are no copyright laws or when they do not function well (or can not function well)? The result is that the company closes the software (does not supply program code, just an executable one) and starts implementing all types of software protection. The latter however costs money, i.e. economic resources which must be spent for non-productive purposes. Such costs must be borne by all the inventors if they wish to profit from their inventions. This is a whole lot of money spent for non-productive purposes.
The apparatus to police, adjudicate, and enforce copyright laws is an enormous expense borne by everyone. Software companies can innovate, thrive and be profitable without this burdensome apparatus. In fact there are commercial software companies which even go so far as to open source their code, and then provide support contracts and customization services. Others provide their code for free and then take a royalty for commercial use. See the Crytek and Unreal engines as examples, both of which have powered several billion dollars worth of commercial software sales.
David,
“The apparatus to police, adjudicate, and enforce copyright laws is an enormous expense borne by everyone.”
Absolutely correct. This enormous expense must be born by the people who break the laws, not by the general population.
“Software companies can innovate, thrive and be profitable without this burdensome apparatus.”
The problem is that they could have thrived even better. And by the way there is no way for you to see how many companies have not been created because they realize that once they spend millions on some project it will be stolen and they will never get their investment.
How do you propose to have the so-called copyright criminals be the sole funding source for the policing, adjudication, and enforcement of your copyright laws?
You’ve provided no evidence that companies under whatever system you’re imagining would thrive even better. You’re aware that software is among the most rapidly advancing commercial fields in the world?
In any case, for software companies who do feel like copyright enforcement is important to their business, they have and will continue to rely not on the existing costly and ineffective legal apparatus, but from the market. For example, several companies today that spend billions developing entertainment software turn to companies such as Denuvo for anti-piracy solutions.
David,
“How do you propose to have the so-called copyright criminals be the sole funding source for the policing, adjudication, and enforcement of your copyright laws?”
I have written a whole article ( a long one) on this issue. If interested, read it. I will just note that from an ethical perspective it is the one who has committed a crime who must pay for the crime procedure not the person who has suffered from it.
“You’ve provided no evidence that companies under whatever system you’re imagining would thrive even better.”
The reason is that I can not. It is physically impossible to provide evidence. What I do is apply Bastiat “seen and unseen” view to this particular case and show you where it leads.
“You’re aware that software is among the most rapidly advancing commercial fields in the world?”
Yes, I am aware. But this by itself shows nothing. The question is: How fast would it have advanced if copyright laws were stronger/better. This is an alternative history which has never happened. I can only scientifically deduce from other, well known and accepted economic principle what it would look out (as I have done already!).
Note that I am not pro or against the copyright laws. My view is that people must be free do use them or not. What I am against is when somebody says that copyright is definitely bad always! Has it occurred to you that it may be bad in some societies but good in others for instance?
Although, yes, ethically, it should be the person responsible for breaking the copyright (in a copyright-enforcing society) who is held financially responsible for the damages, often, there’s really no financial recourse. You can fine a person 100,000 or 10,000,000 dollars, but if they don’t have that money to give, well, all you can do is shut them down. And then the companies “take it out” on everyone else who does pay.
Now, whether or not that’s actually able to be put in a true dollar amount is arguable. You’ll hear companies saying “pirating costs us X amount of dollars” but that assumes those who pirated the material would have ever bought the material. For example, someone may watch a pirated movie that they got for free instead of paying $30 for a DVD, but if they were denied the opportunity to watch it for free, would they actually go buy the DVD, or would they just seek some other free entertainment?
To address another note, copyright being good in some societies but bad in others brings up what is already a problem with current copyright laws: other countries, and the fact that most media today are not physical. If someone steals a physical painting, that’s theft. But if someone in a country without copyright copies and distributes a file, prints their own photo, burns their own DVD, etc., what is a copyright holder to do? It’s the intangibility of media that makes copyright a sticky issue.
It’s even an issue with “public domain” today — different countries have different starting years for what is in the public domain, and different life spans after the author. Not to mention that it’s stuck in the U.S. One court ruling and multiple extensions later, and everything that should be public domain is stuck in limbo. It’s all very arbitrary, including the number of years involved, no matter how much its debated. So… should it really exist? Or are we just trying to grasp at air?
Shell,
“You can fine a person 100,000 or 10,000,000 dollars, but if they don’t have that money to give, well, all you can do is shut them down”
You could put him in jail to work our his debt for instance.
“But if someone in a country without copyright copies and distributes a file, prints their own photo, burns their own DVD, etc., what is a copyright holder to do?”
If his work is transferred to another country without copyright he can do nothing. So, if this is a serious problem may be the particular society may decide to :a) build a Berlin wall, b)ditch the copyright laws entirely or c) something else. In any case it must be their decision not Rothbard’s or somebody else’s one.
” It’s all very arbitrary, including the number of years involved, no matter how much its debated. So… should it really exist? Or are we just trying to grasp at air?”
Exactly. It is up to the particular society to decide, even nowadays. There need not be The One and True Answer.
As for copyright encouraging innovation in technology, I have to disagree with the idea. Often, copyright holds back innovation, because denying people the ability to use information to build upon essentially sets all innovators back to Square 1.
Say Wally wanted to innovate a new take on apple pie. Apple pie already exists. He thought it would be awesome if it had rum and raisins in it. To test his idea, he must obviously alter an apple pie. If Wally has a ready-made pie crust and a pound of apples, his job is significantly easier: he can just add rum and raising to the mix. But say pie crust is copyrighted, and so are apples. Wally must instead learn how to make pie crust from scratch, and must gather seeds to grow his own apples, and this takes so much more time.
The same is true of software development. Developers rely on freeware and already-existing samples for much of their code. Say they’re developing a program that changes the tint of your computer screen to mimic sunlight, giving your brain time cues that it would miss from long hours staring at the screen otherwise in a windowless room. (This exists, although I’m not fond of it.) Well, there’s plenty of programs that already exist to check the time on a computer, and others that adjust monitor color and brightness settings. If the developer had to write those from scratch, without referencing or copying previous work it would take him just as long as the original programs took to write: let’s say 10 years. But if he can just worry about building the bridge between those two existing programs, maybe it only takes 2 years. And consumers benefit from the innovation.
And let’s not forget that copyrights and patents can hurt people who stumble across the exact same discovery. Create something too close, even if you actually created it in a vacuum not knowing about the other creation, and you’re subject to the same penalties if you had stolen it outright. (And really, many ideas are not that unique, it’s mainly speed and quality of execution that separates them.)
Great discussions guys. I did go read Stephan Kansella’s Against Intellectual Property? (thanks for the suggestion Michael Blair). I’d say I agree with Kansella’s argument that you don’t have a right to dictate what other people can do with their property, including copying some idea or concept.
Slightly off-topic, but this year in the UK the copyright period for furniture is increasing from 25 to 75 years. If you own one of these pieces of furniture you will not even be able to photograph it without a copyright license, because the courts regard photography as making a copy. Most people in the UK would not even realize that furniture is subject to copyright.
I’ve written and spoken exhaustively on all these topics–didn’t have time to read this whole thread but if anyone has a particular question I can field, feel free.
Quick point: there is no “problem” that a free society needs to address–there is nothing wrong with copying, emulating, competing. And contract cannot be used to form IP as I explained in many places–I have a section devoted to Rothbard’s mistake and confusion on this very topic, in Against Intellectual Property.
Finally–no, I don’t expect libertarians to be “divided” as D’Amato suggests–there are a few remnants of the Randian era and a few unprincipled utilitarians and Constitutionalists who are confused about this matter–and a couple of sci-fi novelists who are self-interested. But the IP issue is very clear–there really is no debate over this. IP law is clearly and utterly unlibertarian and one of the worst forms of intervention in society that the state engages in–it’s up there with taxes and the fed and the drug war–it’s even worse in some ways.
Stephan,
Here is my question.
I am of the opinion that one can not forbid a free society to impose copyright laws. Here is how I reason:
A private property owner is entitled to decide how to use his property. If this private property owner is a land owner and if he joins his land with the ones of other land owners who support copyright, then the society which will be created can create and impose copyright laws over the land they control. They will have this right, since all land will be private and all land owners would agree about the copyright. No-owners who live on this land will have the option either to accept the copyright laws or leave the land.
If we deny the private property owners the right to impose copyright laws we deny them the right to use their own property as they see fit. Basically, we would limit their freedom. Note that I am not discussing at all if copyright laws have a positive or negative impact on the economic development. This is a separate issue. All I am saying is that we can not say that imposing copyright laws is “non-libertarian” in general. It is definitely non-libertarian when the state does it, but this does not seem to apply to the case when private property owners do it.
Youliy,
I think your argument is probably correct. I don’t know why such a group of people would agree to such an arrangement, but they would have a right to do so.
However, they then don’t have any right to enforce such a system on those who aren’t part of that arrangement. So even if that group has decided to impose some patent agreements, if one of them created some invention, they have no method of stopping someone living just over the border from their lands from copying that invention and selling it to others. Even if the group agrees not purchase from outside individuals who infringe on their agreed upon patent laws, they have now created for themselves some isolationist state.
