Monday, May 25, 2009

A Peek at My Book on Intellectual Property

There's quite a bit of give and take in the comment section of my post on Jeffrey Tucker's latest article on Intellectual Property. In particular, I want to bring to the top here, two important questions left by Erick which address some key points I will be making in my book.

Erick writes:


Who gets the copyright/patent when two people invent something

Are thoughts alienable?

These questions, especially the first, go to what I believe cause much confusion in current IP thinking.

Let's take care of the second question first:

Are thoughts alienable?

Of course, they are!

What is a management consultant, a financial consultant, a doctor, a nuclear physicist or a computer programmer doing but selling specialized thoughts?

Now to the first question:

Who gets the copyright/patent when two people invent something

One of the problems with current IP thought is that it is generally viewed within a statist framework, and there is further aggregation of IP protection that is not necessary.

Who gets the copyright/patent when two people invent something independently?

This question implies the aggregation trap which I am going to address in detail in my book. But, the short answer is they both do.

If they both invent something independent and are not stealing from each other, then why shouldn't they both have the right to their creations?

Thus, the great hullabaloo about someone inventing the wheel and thus having patent protection on the wheel in perpetuity and that person not allowing anyone use of wheels becomes nonsense. Since anyone who has the thought of a wheel is free to create such. This eliminates the problem where government patents take and always award a patent to just one monopolist.

Now, some may ask, "What if a person didn't independently think of an invention but simply saw it and now is claiming independent creation?"

This would have to be solved in the courts. ( I don't plan on discussing here or in my book the types of courts, private sector or public. That's another debate.) I would suggest that in such courts Innocent until proven guilty and beyond a reasonable doubt would hold, thus something such as the invention of the controlling of fire and the invention of the wheel, which seemingly could have by more than one independent inventor would hold that no patent infringement occurred.

On the other hand, if someone walked around selling copies of the The Old Man and the Sea after Ernest Hemingway had already written the book, and there was evidence that Hemingway has already written the book, then it would be absurd to believe that this second individual had independently written the book, and as such he would be guilty of theft.

There's obviously many more details I am working out in the book, but this is the direction I am taking. Rather than the current system of whomever is first in line gets copyright/patent protection. It is whomever, beyond a reasonable doubt, has independently done the creation.

And, I must add, that it is not impossible for more than one person to simultaneously come up with some very complex thought. After all, the discovery of marginal utility was discovered independently by Jevons, Walaras and Menger nearly simultaneously.

In the modern age of the internet, if say someone is working on a cure for the common cold and is fearful someone else may be working on the same project, then dated emails to himself can serve as evidence of his independent thinking on the subject, if someone else publicly announces the discovery of a cure at a near simultaneous moment. Thus, they would both receive patent protection. If someone under my system claims, in modern day, discovery of a complex string of thought, but does not have proof of the on going thought, through, say, a string of emails, then his claim should not be accepted as independent discovery.


  1. Robert, I think your position on intellectual property is essentially one of normative issues, and not one of factual issues.

    Your paragraph about The Old Man and the Sea captures this. There aren't any factual issues worth debating in that example. It's obvious that only one person could reasonably be the author of that novel. The second party must therefore have copied the contents of the novel from Hemingway, but you conclude that "as such he would be guilty of theft."That conclusion is normative in nature, not factual. I understand that, from your perspective, such copying is akin to theft. But to judge it as theft requires the presupposition that copying intellectual works is a the same as theft.

    At first I was inclined to argue with you about the correctness of your post. But then it occurred to me that we don't really disagree on any issues of fact. What we disagree on (since I'm largely in agreement with Boldrin / Levine) is whether the copying of an original work, without the author's permission, is a blameworthy offense.

    Is there some factual issue which could conceivably determine whether it is, in fact, blameworthy? I doubt it. And that leaves me thinking that your disagreement with Jeff Tucker (and by extension, myself) is more or less just a difference of opinion.

  2. Let me ask you, if Hemingway shows (or sells) the book to anyone else and pre-states, I am showing/selling this book to you on the condition that you do not copy it and further that you issue this same clause, against copying it, to anyone you show the book to. If I find you have violated my agreement with you, I shall consider it theft of my property, in the same way that would consider it theft if I let you borrow my car to run an errand around the block, and instead you have driven off 3,000 miles with the car, is there a difference?

    Does not Hemingway start with ownership in both cases and then limits how others can operate within his initial complete ownership?

    Or do you somehow have the right to usurp the conditions that Hemingway would like to impose on something Hemingway owns?

  3. To your first question, no, there is no reason why Hemingway could not create such a contract. There is a huge flaw in the agreement, though. Contracts are agreements regarding two or more party's behavior. It makes no sense for the penalty clause to be that Hemingway will consider my actions illegal.

    This is very important. Who cares if he thinks it's illegal? His opinion does not make it so. The mere violation of the contract may, itself, be illegal, but the penalty clause (nor Hemingway's opinion) isn't what determines that.

    Instead, the clause could specify damages that I would be contractually obligated to pay, if for any reason I leaked the contents of the work to others. But notice that Hemingway needn't even be the author to make such an agreement.

    He could just as easily enter into that agreement using the text of some other book, by some other author. And that's the point I illustrated earlier using the hypothetical, lost work of Shakespeare.

    If I am the creator of a work, I'm in a unique position to create such agreements, since presumably no one else has enencumbered access to my creations. But that needn't be the case. Nor is my initial, exclusive control the equivalent of ownership.

    It seems clear enough to me that you are making two arguments: On the one hand you are asserting that authors have a natural, default ownership (and therefore exclusive control) of their creation. On the other hand you are asserting that it's a standard contract which creates this ownership situation. But that's not how traditional ownership functions. I don't need to contract with you to make the confiscation of a wallet illegal. Either I own the wallet or I do not, and a non-sale contract cannot change that.

  4. First, I must quickly object to your saying that Hemingway has no right to think something illegal, you are thinking in the aggregate as a statist again. I don't want to debate the fine points here. That's another book and another debate,but I reject "illegality" as being determined by the state or any other group of people.

    I can live with you calling it a penalty clause (But, in fact, for me it is much beyond that.)

    Second, I can think of no work of any kind, where the creator isn't the initial owner, unless he contracted out to do the work before completion.

    In any other case, it is the owner who "starts the ball rolling" as to any future ownership rights.

    I am open to you giving me an example where the creator isn't the initial owner (except where he has already signed his rights away, but I can't see it.

    Finally, my view is that ownership comes with creation (except when it has already contracted away). And a contract (or implied contract is the only way the ownership can be transferred in any manner).

    Further, I agree with you that contract is not necessary for theft.I was using the example of a contract to demonstrate theft simply to show an simple, easy example of what view as theft. However, if Hemingway left a copy of The Old Man and The Sea, on a park bench, his kitchen table or on a web page, to me it is theft if it is used in any manner other than the way Hemingway intended it to be used under those circumstances.

  5. I don't want to belabor this issue. I think that our disagreement is as I described it in my first post on this page. There aren't any issues of fact in contention. There is no empirical difference between our positions. We simply disagree on what amounts to an opinion.

    Can an idea or a pattern be owned? Obviously it can in a legal sense, but beyond that it's not a question which can be resolved definitively, because it doesn't refer to anything material. You believe that ideas and patterns can be owned, while I believe that this is a meaningless metaphysical construct.

    This is an issue which needs to be addressed by any proponent of intellectual property. Are you (and others, of course) merely suggesting a way in which you think the world ought to be? Or are you describing some fact about the way the world actually physically is? I strongly suspect it's the former, but I look forward to reading your book on the subject, should you publish it.

  6. Please refer to the previous discussion on my reply to this.
    Copyright, whether private or state protected, is not about ideas as such, but about behavior. Copyright does not protect your ideas from somebody else knowing it, but restrain specific actions following from this knowledge. Libertarian theory fully allows for contracts regarding action, or the restraint of action.

  7. This is an interesting topic, one needing much attention. So I am excited to hear more about the book!

    I am curious about where you place the burden of proof:

    Rather than the current system of whoever is first in line gets copyright/patent protection. It is whoever, beyond a reasonable doubt, has independently done the creation.When someone disputes the independence of my creation who bears the burden of proof?

    I can see one scenario in which I must prove my independence. In another, my accuser must prove the sources of my inspiration.

  8. @Erick

    Actually, I have quite a few thoughts on this, which would apply to people who originally invent the wheel up to and including those who right a unique text, such as, The Old Man and The Sea.

    It's really too broad a topic to cover in a comment on a blog site, so it will have to wait until the book. I do think my thoughts resolve a lot of dilemmas for those who cry out "How can you issue a patent for the wheel?" Eliminating the monopoly first creator and working on developing the logic of independent creators is the way too go.

    Obviously, for The Old Man and the Sea, it will remain one creator. For the wheel it is going to be difficult, I dare say impossible, for any one person to say that they are the only ones to have such an independent thought. Most other creations fall between the wheel and the uniqueness of The Old Man and The Sea.

    My book will contain a major section on how to deal with these creations in the middle.

    BTW: The fallout between Ayn Rand and Murray Rothbard was actually over this issue. I think Rand and Rothbard both got caught in the first discoverer trap. Rand's charge that Rothbard's ideas had to have come from Rand was based on faulty first discoverer thinking and that she was the first discoverer. (Leaving aside the fact that she was probably not the first discoverer of many of the ideas that Rothbard cited.)

    Rothbard by finding earlier citations to his ideas certainly proved Rand wrong on her impression of who was first. However, Rothbard failed to use the defense that first should not be the critical defense, but that independence of discovery should be.