Intellectual Land Grab

The Libertarian think tank CATO recently published a small, trite piece that attempts to establish The Case against Literary (and Software) Patents. Being a Libertarian, I actually agree with the position; I just don’t think that this article fully explored the issue. Here, I seek to provide some links to more fundamental content.

It begins with the hypothetical existence of a ‘Literature patent’. I consider such an idea to be terrible at face value, and the article actually dismisses it as much. It would be ridiculous to expect every author to carefully comb over their work making sure that it doesn’t infringe on any registered plots or (worse!) plot devices (good buy holodeck!) Acquiring knowledge of registered patents would be prohibitive for a beginning author, they’d have to rely on publishers/editors. This significantly raises the cost of creating an innovative work. Not to mention the human effort the government must spend to maintain consistency in it’s patent database, and the legal costs and liabilities for the inevitable infringement.

The article then proceeds to demonstrate what happens in patentable areas. Immediately, there is a land grab on the ‘low hanging fruit’. During this process, established market leaders tend to benefit, because the have the resources (both funds and people) to make a large number of claims and file the required paperwork (economics of scale apply to paper shuffling too). Typically only a relatively few companies will be successful in this endeavor. The initial grab might also appear to be an ‘economic stimulus’, as it will show a remarkably steep and sudden interest in the field, resulting from the underlying similarity of the tragedy of the commons. After the market settles, a few incumbents then use their patent portfolios to threaten up-start competition. As the article points out, in the world of software patents, so much of the field is so obvious, that agents without an explicit interest in software will find themselves infringing as a normal course of their business but will be without their own patent portfolio and unable to make a bargaining counter-threat.

Another economic phenomenon that happens as a result of the patent system’s existence is economic stalemate. This actually happened with the sewing machine, as recorded by Adam Mossoff in A Stitch in Time: The Rise and Fall of the Sewing Machine Patent Thicket, which was blogged about at the Volokh Conspiracy. He recounts how the marketing and distribution of the sewing machine was actually encumbered by the patent system, because the machine required the combination of several innovations, and no single agent held all patents on the functionality. History also demonstrates the practice of ‘patent trolling’, whereby a company, which doesn’t actually produce anything, seeks to profit by legal threats of infringement and licensing agreements on its patent portfolio. The resulting stalemate was finally resolved through the explicit creation of a patent-holding company, whose sole function was to share the patents and resulting profits of all involved manufacturing firms.

So we can see that for areas where copyright is already established practice, the introduction of an extension of the patent system results in litigation and paperwork and encourages the preservation of an established regime of a few powerful companies working in loose collusion, both of which tend to outweigh any potential benefits to development and innovation

Now, I’d like to go out on a limb here, and reject the very concept of ‘Intellectual Property’. Richard Stallman has spoken out against its use, and continuously advertises the fact that it’s deceptive and misleading. At the root of the issue is that ideas and physical matter behave differently. That is, copying != stealing. The reasoning behind this position is fairly simple, when an idea is copied that does not deprive the original possessor from the idea. When you tell me about your theory of X, you don’t suddenly forget after telling me. In contrast, if you give me an apple, now you no longer have that apple. Ideas are part of a different realm of existence.

Finally, I’d like to point out the slippery slope, what happens if we go too far with this property idea: we might lose The Right to Read, or watch How creativity is being strangled by the law.

I hope that through these references, you can see where, how, and why I’ve developed my position on the patent issue; I’m firmly on the side of maximum freedom (and that includes the opening up of all media: open-music, open-software, open-hardware, open-design, open-architecture, open-video, open-government, open-literature, etc…)