Re: Brian Martin's article Against Intellectual Property

A related argument is that people have a right to possess and personally use what they develop. Hettinger's response is that this doesn't show that they deserve market values, nor that they should have a right to prevent others from using the invention.

Furthermore, the argument is claimed as a support for intellectual property: yet may quite readily be turned against it. In the absence of intellectual property, should I invent some marvelous device (say), I shall always be able to use it for my own purposes as I see fit – what is there to stop me ?

Under the present regime, however, intellectual property in that invention has financial value: consequently (were I not between jobs at present) my employer would have insisted, in the contract I was obliged to sign in order to take up my job, that all inventions I come up with while in their employ (whether I make the invention during working hours or not, whether on their premises or not, whether influenced by – or involved in – my work or not) belong to them. In such a case, my invention is not available to me thereafter, save by grace and favour of whoever employed me at the time I invented it.

Even if (as, in fact, arises today) I was between jobs when I made my invention, I may find it to be covered by someone else's patent – indeed, I may find that the patent was applied for after I had made private use of my marvelous invention for many years. (How is it any the more just, when I have not seen the patent, to forbid me to use an idea I had after the patent was granted ? Surely my invention of it should constitute proper grounds for declaring it insufficiently non-obvious.) In such a case, my invention is not available to me, save by grace and favour of the patent-holder.

Equally, were I between jobs but in debt (the two have a propensity for going together), my creditors would be able – thanks to the economic value of my invention – to appropriate my rights in my invention, towards paying off my debts, thereby depriving me of further use of it. In the absence of intellectual property law, they might deprive me of the fruits of my invention, but could never deprive me of the liberty to exercise the idea again at a future date.

Consequently, the very existence of intellectual property undermines my right to possess and personally use ideas I have developed. That it does so is a direct and inescapable consequence of IP enabling me to prevent others from using my idea. To me, the true evil of intellectual property is that it assigns higher priority to my authority to control how others use my ideas than to my right to use my own ideas.

Furthermore, every ambiguity in the intellectual property law exacerbates this problem. While working for my last employer, I wrote a short program to iterate over all permutations of a finite set. To do so, I exercised my mathematical training and knowledge of assorted prior art (which are social goods I obtained from others). In theory, my employer (I am pleased to say they are decent folk, so this arises only in theory) could attempt to assert a patent (at least in the U.S.A., though today's news [2001/Nov/8th] reveals the European Patent Office has ignored relevant law and joined that game) on the algorithm I devised. If they were to succeed, I would be forbidden to deploy a result of mathematics which I (derived and) deployed in pursuit of my work – at least until I endure a lawsuit in which I must prove the obviousness of its derivation from prior art.

I trust you can imagine how much that would annoy me – mathematicians are more strongly motivated by the beauty of the results we discover than by the money we are paid. Why should I have to prove that I was not exercising rare genius to be able to reuse my own work ?

the value of intellectual work is affected by things not controlled by the worker, including luck and natural talent.

Indeed, that value is dominated by contingencies entirely external both to the worker and the work. This only becomes more pronounced in the presence of intellectual property: whether some other worker, exploring the same avenue as me, applied for their patent first makes the difference between my work's value being zero and being the whole of the value of the work we both did.

A fourth argument is that rights in intellectual property are needed to promote the creation of more ideas.

The creation of more ideas requires access to existing ideas and the liberty to use them. I need no rights in the existing ideas beyond this liberty: and my ability to create more ideas is undermined by the presence of any other party whose rights in the existing ideas abrogate that liberty. The above can only possibly be justified by amending it to:

A fourth argument is that the money obtained by exercising rights in intellectual property is needed to promote the creation of more ideas.

since, otherwise, it is manifestly false.

There is an even more fundamental reason why copyright provides no protection against plagiarism: the most common sort of plagiarism is built into social hierarchies. … Copyright, if it has any effect at all, reinforces rather than challenges this sort of institutionalised plagiarism.

The illustrations given here are of a piece with my remarks above about my employers being able to deprive me of the ability to deploy my own ideas.

Getting rid of intellectual property would reduce the incomes of a few highly successful creative individuals, … Christie, Webber and Spielberg might be just as popular without intellectual property to channel money to them and their family enterprises.

Furthermore, in a free market for Christie's books, Webber's operas and showings of Spielberg's films, the authors would have a vastly expanded marketplace within which to offer various services. Opera houses would compete (on price) to have Weber take enough involvement in their productions to encourage higher attendances; movie houses would compete (on price) to have Spielberg give an introductory talk; book-shops would compete (on price) to have Christie attend signings. The money authors could make from such activities would not be decided for them by publishing houses but by a free market among retail outlets.

Meanwhile, Christie (or J.K.Rowling, today) would be able to make massive money out of the first publication of each novel – by agreeing with one publisher (or a few) to let them publish it first in exchange for a large wad of money; they then get first to market advantages they can exploit to recoup that money in the interval while their competitors scan in the first paper editions (purchased at the retail price charged by these first publishers) and begin republishing. I'm quite sure the next Harry Potter novel would fetch millions for the author from one publisher who knew they would dominate sales for (of order) a month.

Webber can likewise make massive money out of the first production of each of his works – if only because the opera house is guaranteed that someone will be sending a team of transcribers (each paying for a ticket) to early nights of that production: they, the reviewers and a significant slice of the public (namely folk eager to be au courant and, indeed, those – society always yields them – eager to ensure they are known to be wealthy, which is commonly demonstrated by extravagant spending), will endure a relatively high price to see that production.

Spielberg, by judiciously orchestrating the first release of each movie, can get a large number of movie houses to pay serious money to be among those who receive copies on some agreed date – before everyone else – knowing full well that each of these houses will be making copies of the movie and selling them on to other movie houses in a competitive market in which profits will rapidly drop to negligible levels. Spielberg, however, is in that market before the transient – he can charge top dollar to the early adopters, all the more so given that they shall recoup some of what he charges by such resale.

But what about the incentive to create? Without the possibility of wealth and fame, what would stimulate creative individuals to produce works of genius?

I trust the above (effectively alternative business models) serve to show that the possibility would still remain; hence so would the incentive. Albeit I grant Kohn's point about this not necessarily producing the effect anticipated by normative dogma.

… it needs to be recognised that intellectual work is inevitably a collective process. … The less there is to gain from credit for ideas, the more likely people are to share ideas rather than worry about who deserves credit for them.

Are you aware of a long serious of mathematical publications under the name Nicolas Bourbaki ? These are in fact by a variety of authors, effectively abdicating any claim to credit for the intellectual content of the works (which typically bring together the work of many of the true author's peers). I believe a well-researched cultural history of this meme would make a fitting addition to your analysis. Bourbaki is a higly respected sources of mathematics precisely because of the dispassionate devotion to the task of exposition without regard to credit.

Professions use specialised training, jargon and esoteric theories,

as do academics – but this tendency is only encouraged by priority (i.e. property) issues (IMO).

Valid CSSValid HTML 4.01 Written by Eddy.