So, in the face of all the problems we are facing (populist idiocy on both sides of the aisle bringing in a new wave of government intervention) there is the equally stupid reaction from the libertarian/anarchist side to just tear everything down. On one side you have Trump and Sanders calling for universal health care, on the other demanding all entitlements be ended, the sanity of the Universal Basic Income (which costs less but helps more) being lost in the shouts of insanity. And in this mess Intellectual Property has also come under such attacks. Yes, current Intellectual Property law is bordering more on cronyism that stiffles competition, but the typically stupid libertarian response is to demand that all intellectual property be ended.
So, we need to do two things.
One, establish why we need Intellectual Property rights. Two, figure out how to reform a system that has currently gone too far from being a system that encourages new ideas and prosperity.
So, what is Intellectual Property and why should we protect it.
All property rights are based on the idea that the property I have earned or created is an extension of myself as it is a physical embodiment of my work (see Locke’s Second Treatise on Government). The argument for property goes that before people came around all land and everything on it was unowned. Then by the act of working with it by farming, mining, building, anything, we have mixed our labor and work, put a part of ourselves, into this land or other physical objects and thus in mixing our labor this thing that was not owned by anyone is now mixed with ourselves and thus we have a right to that which is partly ourselves. In a modern economy we trade this work not for claim on the things we work with, but for money in a strict sense (or barter, favors, or just out of the joy of charity if you want to get into the whole range of human experience)—but at no point do we not mix part of ourselves with the things we work with, because our work is ourselves. Thus, Intellectual Property—things like art, poetry, music, movies, books, short stories, inventions, scientific discoveries, industrial processes, new drugs, new tools, computer programs—all of these inventions of the human mind get copyright and patent protection. Why? Because they’re yours. Now, as society advances property rights become codified into laws and as with all rights there are no absolutes. Thus, there is just eminent domain, squatter’s rights, and fines imposed for certain actions for actual property, there are also limits to copyright and patents, there are limits in time and there is fair use. But the core of this is the works of the mind are yours because they come from you.
It is preposterous to say that the work of my mind is somehow less than the work of my body, when the mind is actually more my work because I am a thinking soul with a body, not the other way around. The work of my mind IS me. It is an extension of my mind and my mind alone. If property has rights, then the intellect certainly should. To say otherwise is to reduce everything I do to only being a body, my mind and my soul don’t matter. Yet this is the very argument taken by socialists, communists, anarchists, and a handful of idiots claiming to be libertarians. This is a dangerous road to go down as it actually threatens all rights because when you remove the soul from the equation all rights eventually are worthless. In fact, this discarding of the value of the intellect, which does appear to be where modern libertarians and anarchists want to go, is the central flaw to Marx’s Das Kapital… in fact it’s the core problem of Marx who otherwise did an excellent job of analyzing the stages of the market.
They are arguing that granting me title to a physical piece of property is not a monopoly but granting me title to my own ideas is a monopoly…thanks Libertarians for continuing that evil of Marxism but taking it a step further. You’re doing just a bang-up job defending liberty. Does anyone remember when libertarians weren’t a laughing stock of anarchists, stoners, and leftists? As to it being a monopoly…Well, yes I do have a right to a monopoly on MY IDEAS, because they are mine. In the words of a libertarian who had not taken a complete leave of her senses (yet) “I came here to say that I do not recognize anyone’s right to one minute of my life, nor to any part of my energy, nor to any achievement of mine – no matter who makes the claim!“ What the mind creates it has a monopoly over because it is the creation of that mind. And those rights must be protected by law, or law has no value.
Then, if you want to torture yourself by listening to libertarians rail against IP, they seem to claim that Intellectual Property is based on protectionism. In the same way that stopping trade is protectionism by a nation to protect its home industry. But this requires you to consider property rights protectionism…in the real world protectionism is a term that suggests government force is being used to prevent the competition that the free market brings…laws protecting my property (i.e. the extension of me through the work of my labor and thought) is not protectionism because there is no “competition” for what is mine because it is mine and I can choose to do with it what I wish. Protectionism would be preventing other people from coming up with competing ideas, but that is not what Property rights are. But they claim that intellectual property is different because two people can use the same idea. Oh, so property rights exist only because you can’t share things…not because it’s a part of you, so if sharing is possible then everything should be shared. Uh-huh. So, if someone could take money out of my bank account, invest it, make it back and put it back in to my bank accounts (you know sharing it) before I even noticed that would be okay too. Seems to be by their argument. Where in reality that is called theft.
This new brand of anarchism then tries to defend their hatred of Intellectual Property, apparently Intellectual property rights are evil because the government is needed to protect them. As opposed to physical property rights which are apparently perfectly protected in the state of nature…yes because the lack of law in Somalia and most of South America has resulted in so much property being protected. Do these idiots just forget that this is why we have governments? To protect rights and specifically property rights.
Also, apparently, copyright and patents prevent new inventions from being created EVER, their argument goes…despite the fact that patents and copyrights come with expiration dates…but like a childish liberal if these so called libertarians can’t have what they want NOW it’s not good enough. (Apparently reforming the problems with some patent and copyright lengths wasn’t a good option either, no we just need to get rid of property rights).
Oh, and patents are evil because they favor corporations. (Yes, because libertarians are supposed to be making the argument that ALL corporations are evil and should be legislated against). And why do they favor corporations? Why because of all the government regulation that makes it so expensive to get a patent. That seems like a rational libertarian response doesn’t it? There’s too much government regulation, therefore the only option is to get rid of the most basic of property rights. Was reforming the government and getting rid of those bullshit regulations even an option?
And I love this whole argument forgets things like the fact that nations without patent protection (like China with 5 times the US’s population creates only one tenth the number of patents) in fact destroy intellectual innovation instead of create it…or the fact that drug research has become such a terrible field with relatively few investments (comparatively) for the very reason that drugs have some of the worst patent protections around. Yeah let’s not deal with the fact that the claim that removing patents and copyright would bolster innovation has ABSOLUTELY no evidence in support of it and a mountain of evidence against it. No, why should facts be relevant. After all, these are libertarians of the modern age. Reason and property rights be damned.
My personal favorite however is a claim that IP protection is unconstitutional. No, I’ve really heard this one. Like with this recent comment by Reason Magazine: ”Contemporary copyright law is a statutory privilege that inevitably contradicts our constitutional rights to free expression.” Really? Copyright law contradicts the Constitution? Well it might if you’re an ignorant sack of shit that thinks the Constitution is the First, Second and Fourth Amendment and nothing else like most hacks who call themselves libertarians these days. Meanwhile people who actually can read (clearly not all the people at Reason right now), I read the Constitution and see: ”To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;” Yes, copyright and patents are one of the original powers granted by the Constitution to Congress. It’s the 8th power granted in Article 8. They put this before setting up a federal court system and all the powers involving the military and war. That’s how important it was to the Founders, they put it before defending people’s right to life. It’s Constitutional.
But What To Do About IP”
So, while Intellectual Property is something people have a right to as much as anything else we can all agree that there are legitimate limits to rights, and that systems need to be put in place to ensure the best defense of those rights but also to encourage the growth of store of Intellectual Property out there. And the system we have right now isn’t that. Right now we have patents that last for 20 years and it can last for 120 years for copyright. That’s a little insane on both accounts. Because it does create a system where ideas are not flowing fast enough to be useful to society which gives the idiots who want to eliminate copyright the pretense of an argument to get rid of it completely (although any time a person’s first reaction is to go from one extreme to another that’s a good sign you might want to see if there’s a middle ground option first).
First off let’s go with the obvious. While I’m fine with 20 year patents, copyright needs to be lowered. Author’s life + 25 years or 75 years whichever is longer. If it’s a corporation that holds it then they get 100 and only 100 years, but only if the IP was created for them originally, no buying up property and then saying you get it for 100 years—the corporation had to commission it or it’s not a corporate copyright.
Another way we can ensure that patents and copyright are not held for longer than is productive is to require frequent reapplications to keep your hold on the IP. No matter how long the total length for the particular patent or copyright is you should have to refile every seven years. And to ensure that patents that are being used, not just held for no reason, the fee for reapplication will be $10,000,000 divided by profit you can show you immediately benefitted from a single patent, and $1,000,000 for copyright. Thus, if you make a million in profit off of your patent, you only have to pay $10 for the patent renewal. You’re making money off of it thus your patent is doing what it should, encouraging you to make things that people want and benefit society. If you’re not making money off it that means either you haven’t found a way to use it or what you want to charge people for it is just outrageous making it an idea that is either worthless or your use of it is not helping anyone thus if you really want to hold onto that patent that you’re only making $10 in profit on after the last seven years, you have to really put your money where your mouth is. This will prevent the kind of patent trolling we saw with Polaroid preventing others from getting into the instant camera market, and it will help prevent current styles of patent trolls who are looking only for small payouts and will never be willing to pony up the fees required to register their patent. If a company has three patents in a product, then they have to divide the profits of that piece equally between those three…this will encourage them to not refile both to patent parts and thus certain things will make it into the public domain sooner. Some might complain about this idea, but really it’s simply an extension of the logic of squatter’s rights that even the most ardent capitalists defend in terms of physical property rights—i.e. if you’re not using it and someone else can then you don’t have a right to the things you don’t use, within reason.
Also, to prevent patent trolls we need some tort reform. We need a loser pays all system, we need you to prove that the person you’re suing not only made money off your patent/copyright but that you were harmed by its use (if you made money from free advertising no harm no foul). And we need stricter definitions on what counts as a patent. In the beginning of the computer age a lot of concepts that shouldn’t have been patented were. While some ideas are revolutionary, like Milton Friedman’s example of the supermarket, you just can’t patent them and have to deal with everyone using the idea as well.
We also need to realize that copyright has gone far too wide and far in what is covers. For instance, many, many years ago photography was an art, and even to this day a small portion of photography is still art. But 99% of photography is just point and click idiocy that a monkey can do and it’s an insult to real art to give it the same kind of protection. I propose a simple rule for determining if something is art. If you can prove you spent at least an hour of work on something then it gets classified as art. If you just clicked an offhand picture of nature and it turned out well, then it doesn’t matter how much time you put into it, it’s not art it’s luck. And I’m sorry photojournalists, while a few of you are still working for the artistic shot, we all know that the majority of you are just clicking away and choosing from the best shot you have amongst the lot. It takes little to no skill at this point and to call what most (not all, but most) of you artists worthy of copyright is silly. I know this leads to the danger that a lot of what goes up on social media is now out of protection, but you don’t get to eat your cake and have it too. Either we can all use pictures we find on our own feed, edit other people’s pictures and words to make our own points, or we can clamp down on IP. If you want to use other people’s minor things without having to pay for it, you have put your own stuff out there as well. Now you can certainly put a provision in that if any person or company makes money off it, then your work (so long as you can prove it is your work) gets retroactive copyright and you’re entitled to a commission of the direct profits that come from that use, but if you’re just doing things without thought and without expectation of profit you’re shouldn’t be able to shakedown someone who figured how to actually make it valuable.
As for fair use, in addition the calculations of if someone makes a profit without permission, or harms your bottom line, the additional factor of free publicity must be taken into account. All of Comicon is pretty much in violation of every aspect of modern copyright law if the studios and publishers wanted to push that point…but the fact is they make more money off the free publicity than they would ever lose by the fact that someone isn’t paying to appear as this or that character.
Look, copyright law needs to be reformed, but to scrap it is to find a cure worse than the disease. You have a right to your Intellectual Property, and government has a responsibility to protect. Now we as citizens have a responsibility to push for reasoned reform of the law which have gotten out of control before we lose the right to have our own thoughts belong to us because idiots want the product of our minds without any effort.