Jeff Tucker has been writing a series of articles, inspired by the works of Kinsella, Boldrin and Levine. I make my living from intellectual property (I am an engineer), so I thought I’d share some of my random thoughts on the subject.
I think it should be emphasized that all creativity is variation on a theme. No one is truly original. Every bit of art, music, fiction, architecture, interior decor, industrial design and so on that you have ever encountered in your life form the mental scraps of paper from which you construct the collage of your own creations. As an engineer, whenever I sit down to learn a new computer language, or start work on a new project, I do a lot of copying and pasting from the work of others into my own creations in order to “bootstrap” myself. My ability to create new designs is really the ability to recall on demand the right tool or trick that I probably “cheated” or “copied” from someone else, if I’m smart.
So, this brings up the question of how people ever learn things in the first place, when there’s no one else to copy from. How did the first computer programmer ever figure out how to boot a computer? The only way to learn, other than copying, is trial and error. If I am not copying off someone else’s work, then I have to replicate for myself the haphazard process of trying things until something works. This brings me to the point that there is a theoretical, utilitarian argument for abolishing IP (not just the empirical argument that Boldrin & Levine make in Against Intellectual Monopoly): genuinely new creativity is always the product of expensive and time-consuming trial and error. The artist who has not studied the works of DaVinci must replicate DaVinci’s effort in attempting to draw the body this way and that way until he finally gets it just right. Studying DaVinci is a way to avoid duplicating DaVinci’s effort. This process of purposeful plagiarism can only increase total wealth and productivity by eliminating wasteful duplication of effort.
While I may not want people to copy my work (and thereby be able to compete with me without having to expend the cost of the process of original discovery), I should be in favor of people copying the work of others as much as possible because this process makes me wealthier. Think of the innumerable YouTube videos which paste together pieces of the works of others to make completely new entertainment that did not exist before. Under the most stringent interpretation of IP, these videos are all “plagiarism” because their source materials are not completely original. But whose source materials are completely original?
I will quote from Kinsella’s Against Intellectual Property:
“… ownership of an idea, or ideal object, effectively gives the IP owners a property right in every physical embodiment of that work or invention. Consider a copyrighted book. Copyright holder A has a right to the underlying ideal object, of which the book is but one example. The copyright system gives A the right in the very pattern of words in the book; therefore, by implication, A has a right to every tangible instantiation or embodiment of the book—i.e., a right in every physical version of the book, or, at least, to every book within the jurisdiction of the legal system that recognizes the copyright.”
I think this is a crucial point that deserves even more emphasis - intellectual property is a right to a pattern. I want to further extend this observation to note that every pattern can be represented as a number by simply converting the specification of the pattern to digital form and interpreting the digital representation as a binary number. Critics of Digital Rights Management have used this fact to create so-called illegal numbers and even illegal prime numbers. These are numbers that, when interpreted as digital code or data, represent or violate some intellectual property or other. Obviously, numbers cannot be owned, so the concept of illegal or owned numbers is helpful in highlighting the absurdity of intellectual property, particularly digital “rights” management.
How are patterns to be protected, then? There is one, very simple way to protect a pattern: do not publish it. If you do not want your movies to be copied, then only show them in cinemas. If you do not want your book to be copied, then only make it available through paid readings (and check people for recording devices on the way in). If you do not want your software to be copied, then do not release the code, provide a web interface and perform all processing locally.
Secrecy is the correct foundation for intellectual property. If you have discovered or created a pattern that solves a problem or will entertain people, etc. that pattern can only be “owned” if you keep it a secret, that is, do not reveal it to others. In this sense, intellectual “property” is more like property titles (which Hoppe crucially distinguishes from property itself), than property. An anonymous property title can be created by use of secrets - challenge and response or “password” protocols. Anyone can withdraw from any anonymous bank account… so long as they know the secret number or pattern which represents that bank account. Patterns in general should be understood as property in the same sense. If you publish the account number of your anonymous bank account, it is no longer your bank account in any sense. If you publish your ideas, they no longer belong to you in any sense.
So, the problem of earning a living from intellectual property (writing, singing, painting, inventing, engineering, etc.) is really a business problem: how do you keep your pattern a secret and still earn money from it or how do you earn money from your pattern even if you publish it? Boldrin and Levine talk at length about how inventors and others have found ways to earn money from published patterns, even without copy “protection.” But I think the secrecy aspect of intellectual property is neglected by Kinsella, Boldrin and Levine. There are many ways to keep a pattern secret while still making it saleable - cinemas are a great example of this.
This also hints at how efficient copyright can be produced in the market. Efficient copyright can be produced by means of mutually beneficial business arrangements. The primary problem is incentive - how do you ensure that whoever you’re revealing your pattern to will also keep it secret? Especially in the digital age, patterns are very easily replicated so that one slip means your pattern is no longer secret at all. If its saleability crucially depended on its secrecy, then the onus is on the owner of the pattern to ensure its continued secrecy and to form contracts which will effect that end. It is not the responsibility of the rest of world to keep your secrets for you when you lose control of them.
If you publish your anonymous bank account number, you should not be able to go around suing people for using it. That is, once a secret becomes public, the “owner” of the secret no longer owns it, by definition. Ownership of patterns via secrecy is ensured only by continued secrecy. If you deliver the number to your anonymous bank account to a third party then they are co-owner of the bank account. As co-owner, they are within their rights to publish the secret account number if they choose. Similarly, if you reveal your patterns to a third party, that party becomes co-owner of the pattern. Think of a movie producer intending to release their movie to cinema. Once copies have shipped to those cinemas, the cinemas themselves are co-owners of the movie because they are now party to the secret. IP, on this view, is absurd since an owner can never violate his own property rights. That is, once I have come to possess a pattern, I am co-owner with whoever else has that pattern and I cannot be violating property rights by copying or revealing it to whoever I please.
Lastly, I wanted to talk about the internet DNS (domain name server) system and spontaneous homesteading of patterns. There is a healthy industry of speculators who purchase .com domains at the usual $20 and hold onto them until such time as someone attempts to register that domain. Let’s say I want to register “bobsbargainbasement.com” but I find out that, lo and behold, this domain has already been purchased by somebody out of Omaha, NE. I contact them and they say they want $1000 for the domain! Now, I could complain that they are engaging in extortion but, really, they are providing a valuable service. By reserving likely-to-be-registered domains, they are acting as auctioneers and causing domain names to be owned by those who really value them the most. There are probably many "Bob’s Bargain Basement"s in the country (or world), and by forcing me to bid for use of the doman, rather than just buy it for $20, the speculator is helping ensure the domain geso to whichever of us values that domain the most. This is exactly the same as ticket scalping.
How can domain-name patterns be property, but other kinds of patterns not? The reason is that a domain name is really a purchase of a right to an entry in lookup-tables in the domain-name servers. Each of these servers is privately owned and the owners have agreed to place entries in their lookup tables for domain-names which have been purchased from ICANN. The DNS system is largely self-regulating (though state interference is growing) and is a wonderful example of how the market can, through voluntary cooperation, produce what the state through coercion cannot: ownable patterns.
Clayton -
