The Intellectual Property Cold War
3/31/2014

In my previous post, I discussed how technology was revolutionizing education, but what's happening in education is only a small part of a much larger transformation being brought about by the internet. Never before has humanity enjoyed access to as rich an ecosystem of creative inspiration and collaboration as we have today.

If I have seen further, it is by standing on the shoulders of giants.
— Sir Isaac Newton

Every creator and innovator draws inspiration from the work of others. The internet can allow us all to be free to stand on the shoulders of giants. As a software developer, I am delighted by the bonanza of interesting code that's available for me to learn from and to build upon. Everywhere, creators of all types are reaping similar rewards.

In the past, writers, artists, and inventors lacked the means to disseminate their own work. Today, we no longer need to place ourselves at the mercy of publishers and distributors. We can all share our work with the world. And because we have access to the shared work of others, we need not repeat it. Instead, we're free to build upon what's been done before.

One apparent challenge presented by free copying is that plagiarism has become trivially easy. But the internet takes the teeth out of plagiarism. If you want to protect your writing against plagiarism, just publish it online. So long as the original work is freely available, readers will be able to identify plagiarized writing as such. The more popular it gets, the more likely it will be identified. Plagiarism no longer allows anyone to steal credit for anything important enough to gain popularity.

But what is the meaning of intellectual property when it takes zero labor to distribute an idea or a creative product? Well, what was its meaning back when that wasn't true?

Copyright was designed by the publishing industry to support a certain kind of distribution mechanism that is completely obsolete today.
— Karl Fogel, Copyright Activist The Surprising History of Copyright

That's history, though. Do copyrights have a valid purpose independent of their original design? Some argue that artists and writers need copyrights in order to survive. But copyrights can only support the most popular artists and only a very small number will ever achieve sufficient popularity. Those few are said to have "made it." Making it as an artist is like winning the lottery. It would be absurd to claim that poor people need the lottery to survive. Why is it not just as absurd to claim that artists need copyrights to survive?

But artists and writers have another problem: copyright laws are designed to restrict the transmission of creative work. They inhibit art from gaining popularity in the first place. Copyrights are the life blood of the media and entertainment industries and copyright law is easy to enforce among big-time publishers and distributors. Fortunately for artists though, copyrights have become very difficult to enforce among private individuals.

Earlier this month, a new app called Popcorn Time exploded onto the scene. Popcorn Time is the equivalent of a free version of Netflix that allows people to stream copyrighted movies. Within a matter of days, the creators shut it down for fear of reprisal from the movie industry. But not everybody is so afraid. Popcorn Time is open source, which means anyone can continue the project and some already have. Popcorn Time is unstoppable.

Quite reasonably, because it is the law, many people choose to obey copyright law even when there's no real penalty for violating it. But, in some cases, avoiding infringement can be difficult, if not impossible. For example, in the practice of software development, it is common to mix and match source code from various authors. How do you keep track of all the associated combinations of copyright restrictions? Well, you don't. You put in a "reasonable" effort, which entails honoring licenses and trusting that the people who came before you put in a similar effort. Then you fix your code if anyone complains about infringement.

When you write any sizable piece of software, you will infringe on someone's patent. Proponents often argue that patents facilitate collaboration by making information available that otherwise would have been kept secret. But because willful infringement carries with it a steep penalty, software companies often instruct their developers to avoid reading existing patents so as to prevent willful infringement. The infringement will happen and it's best not to know about it. The software industry operates under the assumption that most patents are obvious.

Judges have difficulty understanding modern technology and jurors have even greater difficulty, yet patent plaintiffs tend to request trial by jury because they believe that jurors tend to favor patentees, believing that they must be worthy inventors defending the fruits of their invention against copycats.
— Richard Allen Posner, Judge of the U.S. Court of Appeals for the 7th Circuit

Software patents are perhaps even more insidious than copyrights. To correct an instance of copyright infringement, all you have to do is rewrite source code in your own words. But in the case of patent infringement, as long as your code achieves the results described in the patent, it will continue to infringe.

It's no secret that big technology companies like Microsoft, Samsung, Apple, and Google are involved in a patents arms race. They are actively competing to have the largest arsenal of patents. This process is called defensive patent aggregation. And they have to do it in order to protect themselves and their own freedom to innovate: "If you sue us, we'll sue you back."

Companies can also defend themselves from patent lawsuits by not producing anything. It is, after all, impossible for your product to infringe if you have no product. There's an entire class of companies that aggregates patents simply to extract licensing fees from actual innovators and producers. They are the non-practicing entities, otherwise known as patent trolls.

In the 1970's, the Supreme Court of the United States outlawed software patents for obvious reasons. But that precedent has largely been ignored by the lower courts since the early 1990's. Now, the Supreme Court is stepping back into the game. In the past two years, the Supreme Court has overruled the Federal Circuit by saying that you can't patent medical diagnostic techniques or human genes. Today, the supreme court heard arguments in the case of Alice Corp v. CLS Bank concerning whether "computer-implemented inventions" should be patentable.

Outside of the software industry, patent dynamics are a bit different. While software innovation comes cheap, the same is not true in the chemical and pharmaceutical industries. It's difficult to justify spending hundreds of millions of dollars on research and development for a new drug without assurances that you'll make that money back.

Patents grant monopolies on selling new medications. This allows pharamaceutical companies to recoup their research costs by charging high prices. But expensive medications place a hefty burden on those who rely on the drugs for their wellbeing. While money is necessary to fund research, patents are not. Without patents, the market for new pharmaceuticals could become competitive thereby keeping prices down.

Being not a "property" right but rather a "monopoly" right, patent possessors will automatically leverage whatever initial rents their monopoly provides them with in order to increase their monopoly power until all potential rents are extracted.
— Michele Boldrin and David K. Levine The Case Against Patents

While the promise of a future patent might motivate some degree of innovation, pre-existing patents only stand as obstacles to innovation. By offering patents for inventions, we're encouraging today's innovation by sacrificing tomorrow's. Licensing fees become a tax on future innovation. But unlike government taxes, this "innovation tax" can be extracted from you by countless entities whose patents you may unknowingly infringe upon. By abolishing patents, perhaps we can reverse this effect.

Patents are supposed to be an incentive for invention, but should we invent to make ourselves rich or should we invent to solve problems? Patents force us to reinvent the wheel because we're not allowed to use the existing wheel. Copyrights are supposed to motivate creativity, but creativity happens on its own. Copyrights encourage plagiarism because fear of infringement acts as a disincentive for creators to reveal their sources. And because it is trivially easy to do so, people will copy and imitate each other whether it's legal or not. If we don't abolish copyrights and patents, the economy will continue to abolish them for us the hard way.

I'll finish with a quote of dubious veracity by a known plagiarist that I lifted from another blog:

But Shakespeare didn't just read these texts and imitate their best parts. He made them his own, seamlessly blending them together in his plays. Sometimes, this literary approach got Shakespeare into trouble. His peers repeatedly accused him of plagiarism, and he was often guilty, at least by contemporary standards. What these allegations failed to take into account, however, was that Shakespeare was pioneering a new creative method in which every conceivable source informed his art. For Shakespeare, the act of creation was inseparable from the act of connection.
— Jonah Lehrer Imagine: How Creativity Works