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Saturday, March 12, 2016

The Patent is the Property

Being a roboticist, a song writer, and someone interested in economics and politics means that I almost never go a week without running into the term "Intellectual Property" at least once. The first thing that's interesting about that is that it's a relatively new term that was coined in the 1960s, the decade when the World Intellectual Property Organization (WIPO) was founded, and even then wasn't in widespread use for another couple of decades.



Before that, it seems, it was commonly agreed that one could own a patent, and therefore a patent was a type of property. On the other hand, it wasn't generally thought that the intellectual creation that formed the knowledge on which the patent was based was property. Nowadays, the phrase Intellectual Property has distorted the language sufficiently such that many people believe that intellectual creations are indeed property and are double-plus good.

My belief is that intellectual creations and knowledge are not usually property without completely distorting the meaning of the word 'property.' In order to argue this point, I'm going to focus on just one aspect of intellectual creations as an example: the creation of knowledge that forms the "meat" of method patents. I'm also going to focus on a single attribute of property: that it can be stolen. If something cannot be stolen, as defined by law, then it's not property.

Let's say Joe invents a method. Let's say it's only in his brain and notes and that he hasn't disclosed it to anyone else. Does he, at that moment, own the invention? Not really, I would say. First, Jack, John, Jill and June might have already also invented the method independently or will soon. Indeed, most inventions are not patentable because they fail the non-obviousness criterion. Even the ones that are deemed adequately non-obvious still are, or would be, invented independently by multiple people or entities.

If the invention is ever property, it is at that moment when it is a trade secret, and if and only if nobody else has also come up with the same invention and disclosed it. At the moment, the undisclosed knowledge can be stolen and therefore it can potentially be thought of as property. Someone could torture Joe until he discloses the invention (very unlikely); someone could break into his office and steal his notes and learn of the invention that way (pretty unlikely - have you ever tried to read an inventor's notes?); or someone could bug his office and eavesdrop on him discussing the invention with someone else (rather unlikely). However, trade secrets are typically lost when a rogue employee distributes them without permission and that does happen once in a while. At the moment, if Joe is really the only one to have come up with the invention and if Joe has not disclosed it publicly, then it can potentially be stolen and I'll concede that it is, at that moment, plausibly a type of property. Even so, a trade secret is just a type of secret, and I'm not sure that secrets, while perhaps quite dear to the originator, are really property.

They say Necessity is Mother of Invention. I say Progress is the Father of Necessity in that as new knowledge and products are created so are new needs (part of the process of Creative Destruction). Supporting Technology is the Father of Invention. Engineers and Scientists (and others) are the Siblings of Invention and we all live in the same great big happy and competitive family and are nearly simultaneously exposed to the same Necessity, state of Progress, and Supporting Technology. In other words, many of us are driven to invent more or less the same thing more or less at the same time. I've never seen an invention that nobody else would have ever invented if the particular inventor who first figured it out had not. Of course, I haven't looked through all of the many millions of patents worldwide or considered the far larger body of non-patented inventions, but I've seen quite a few and that's my impression.

Most of the time, it makes no sense to patent an invention. For example, I've invented hundreds of methods in the realm of robotics but have only patented between ten and twenty of them. Perhaps the invention is too obvious so you can't get a patent; perhaps it's so non-obvious that disclosing it in a patent is counterproductive because the disclosure would give the competition a step up that it wouldn't otherwise have; perhaps the value of the invention is less than the cost to file, maintain, and enforce the patent; perhaps the inventor or company just doesn't have enough money or other resources to pursue a patent even if it would be well worth the cost; and so forth.

Are these non-patented inventions property and if so, whose property is it? If Joe's non-patented invention is disclosed, either because he uses it in a commercially available product and the invention is readily deduced from looking at the product or he otherwise causes its disclosure, then everyone learns about it and can use it for any purpose. We don't consider this dissemination and use to be theft or to be illegal, unethical, or immoral in any sense, so I find it hard to consider Joe's invention to be property of any kind. Again, the principle is: if you can't steal it, it isn't property.

Let's say Joe's invention is sufficiently non-obvious and novel to qualify for a patent and he writes the patent and files it and he is the first of the inventors to file (even though the others may have invented it first). Is the invention property now? No. It's the same deal. Until the patent issues (and it might never issue for a variety of reasons), anyone can use the disclosed invention for any purpose. In addition, it's likely that the patent will publish and disclose the invention well before the patent is issued. Again, anybody can use the disclosed invention for any purpose until the patent issues. Again, it's not stealing, therefore it's not property.

Let's say Joe's patent finally issues today. Yesterday, the invention wasn't property. Is it property now that the patent has issued? No. The patent is the property. The patent is a type of Government Originated Legally Enforced Monopoly (GOLEM) (and a GOLEM, in turn, is a type of Government Originated Legally Enforced Restriction on Trade (GOLERT)). The patent is what's sold, licensed, or bartered. The invention is still disclosed and known by many people. They can still build on the knowledge or work to circumvent the knowledge. They can still even use the knowledge for certain non-commercial purposes. The thing of value is the GOLEM and that was created by the government out of thin air. You still can't steal the invention since it's been freely disclosed, therefore the invention is still not property. It's the GOLEM that's property and that property restricts others from using the publicly disclosed invention.

Eventually Joe's patent expires. One day Joe has the right, via the GOLEM, to control most uses of the invention. The next day he doesn't. The invention, which wasn't property one day is definitely not property the day after the patent/GOLEM expired. Now it definitely can't be stolen.

In summary, the only time the invention is plausibly property is prior to when the first inventor discloses it (either intentionally or accidentally). After that, the invention, the intellectual creation, the method, is not property.

The patent is the property.

116 comments:

erp said...

Bret, do you think that knowledge and inventions freely shared lead to more and better products and more profits for all? The genius inventor/innovator isn't much good without the guy who can shape those ideas and market them.

A couple of original IT companies -- Lotus 123 comes to mind didn't make their products available at a reasonable price and as a result lost their market to those, like Microsoft, who did.

I remember probably 35+ years ago I talked the college into buying it for me at the staggering sum of over $500. I used it for everything including publishing. A guy from the company actually came up to my office to see what I was doing with it, but they still didn't make it user friendly or affordable and only die-hard nuts like myself would go through the trouble to manipulate to their ends.

Bret said...

erp,

There're 2 things that patents potentially help with. First, it might give incentives to inventors. I'm skeptical of that one overall because the hassle and expense of getting, maintaining, and enforcing a patent is very large and those same resources might be better used elsewhere. I don't really know though and it probably varies by industry.

The other use is in capital formation. In other words, the monopoly gives incentives to investors to invest money into the invention. Again, I really don't know how much it helps versus how much the monopoly hurts.

I, personally, would shorten the length of time for the patent, incrementally, first down to 16 years, see what happens, and then if it doesn't seem negative, down to 12 years, perhaps going lower from there.

Clovis e Adri said...

Erp,

Some argue Microsoft did more than pricing it cheaper: they made it easy to "steal" their products, getting then a far larger market share to build upon.

IOW, they creatively used their govt-granted monopoly to build a non-govt-granted near monopoly (at least for a time).

A new example of such creative thinking is seen with Uber now. Only they are trying to break a gov't-granted monopoly in order to build a non-gov't-granted near monopoly.


Bret,

There are already a few examples of AI (or at least computer based) inventions.

Once robots/AI start filling patents, how long do you think this old system holds?

erp said...

Clovis, my memory isn't what it once was, what government granted monopoly did Microsoft have? They surely had no non-government granted monopoly either. There was plenty of competition in those days.

Google and Yahoo ... were free as is Facebook and the other social media. The outfits that kept costs high and tried to maintain exclusivity are no longer around.

I'm not sure I am decoding "government granted" correctly.

Taxicabs are licensed by local government, not the feds and they naturally don't want to give up that lucrative income. Also I believe licensing and hopefully vetting cab drivers is useful.

I used Uber in San Francisco a couple of times and wasn't at all comfortable being in a stranger's car by myself even though in all cases they driver was polite and there was absolutely no issue about the experience.

Bret said...

erp,

Microsoft had a copyright for their operating system which became the dominant operating system on the planet for a bit.

As far as Uber goes, are you more comfortable in a stranger's car who happens to be a taxicab driver? If so, why?

Bret said...

Clovis,

No idea what happens to the patent system when AIs start filing patents, especially since, if they do start, they'll probably have the capability to file at an ever increasing rate. Clearly AIs will have to be used as patent examiners too.

My guess is that we are at least decades away from that point, but I could be way off.

erp said...

Bret, having a copyright on something is not a government monopoly, crony capitalism not having been perfected its current state of neo-fascism.

In those bad old days, college dropouts could fell mega-giant IBM tinkering in their parents' garage. I don't see that happening again unless and until we can somehow wipe out the last 40-50 year indoctrination of We, the People.

I know anecdote isn't beanbag, but it is illustrative. We had some trees cut down by a company owned by Mr. James, a black man of about 60 years old. He's a native of this area who went to segregated schools until high school. His spoken word is perfect with just little trace of southern drawl -- much less discernible and pleasant to the ear than my NY accent.

In fact, if you spoke to him on the phone, you'd have no reason to think he grew up black in the south in the days of Jim Crow. He had a couple of young guys as helpers who spoke in a lingo that was almost comical making Stepin Fetchit sound like Laurence Olivier. They are also native to this area and went integrated schools. BTW the boss spoke black to them.

While felling trees and cleaning up the debris, Mr. James and I had some very interesting conversations and if he started commenting here, he would fit right in perhaps to right of me.

Re: Uber

I'm more comfortable in a taxi that has drivers who are licensed and hopefully vetted by the responsible agency. Just a holdover from when government agencies were actually public servants, not public enemies.

In today's world, it's probably better for old parties to stay home and not put themselves in at risk situations.

Re: AI

Well over 30 years ago a very good friend of mine, an original STEM girl, was a math professor who got interested in AI and spent some time at MIT working on a program there until it got unfunded. It's interesting that the same conversations about ethics, logistics, etc. were taking place then and they have apparently not been resolved. I'm surprised that there hasn't been more movement in AI over all these years.

Harry Eagar said...

I am sure you have a point but damned if I can guess what it is. The same line of argument can be used to show that there is no such thing as real property: did Joe create that?

Or property in mineral rights.

I spent my working life creating intellectual property, and it was stolen right and left because of flaws in the legal system, although apparently you would not consider it theft.

But one thing you cannot say is that someone else would have done it if I hadn't.



Harry Eagar said...

'The outfits that kept costs high and tried to maintain exclusivity are no longer around.'

Apple is gone? I hadn't heard.

The history of dBase III is interesting. The rights were based on theft, and the colonization of the marketplace was based on paying people to use it. It worked for a while then was sold to Broderbund, which was run (as far as I can tell) by honest people.

When Broderbund tried to protect its legal interest (whether it was property according to Bret or not, it was a legal interest under law, or at least Broderbund had thought so when it paid money for it), a judge determined it was all shibai and canceled the patent.

And where is Broderbund?

As RtO has often said, the Fireproof Hotel phenomenon works against decent behavior among capitalists.

erp said...

Apple doesn't have now nor did it ever have exclusivity. However if continues down the crony capitalism path, it may will be "gone" in that it will no longer be a leader in innovation.

Harry, by intellectual property, do you mean stringing some words together, words that were used by millions of others in various combinations? If not, perhaps you could favor us with an actually intellectual property that was stolen by others due to "flaws in the legal system." In addition, if you will, name those flaws.

Thanks.

Bret said...

Harry wrote: "I am sure you have a point..."

Ah yes. I did forget to mention the point. This is in response to yet another Cafe Hayek post where, in the comments, I wanted to show that a patent is little different than other types of GOLERTs.

Note that I specifically used method patents as the example. The arguments are different for the GOLEM called copyright. Perhaps, someday, I'll write a related post.

Clovis e Adri said...

Harry,

---
I spent my working life creating intellectual property, and it was stolen right and left because of flaws in the legal system, although apparently you would not consider it theft.
---

Would you expand on that one, please?

erp said...

Are Crossword Puzzles intellectual property? I don't know the answer, but if Harry can claim, "he was robbed" of his words, why not crossword puzzle creators? One thing though, from someone who's been doing the Sunday NYT puzzle since I'm 14 years old (66 years), if I were the author of the foolishness that passes for them in today's world, I'd use a pseudonym.

Susan's Husband said...

Bret;

"I've never seen an invention that nobody else would have ever invented if the particular inventor who first figured it out had not."

I'm not so sure. Perhaps our current technic society makes that unlikely, but look at the history of the stirrup. Apparently an obvious and simple invention yet with a massive impact, it nevertheless didn't make it to Europe until the Middle Ages. Why wasn't it invented a thousand or more years before that? It certainly didn't require technology that wasn't available until then[1].

[1] I thought about using the printing press but it's unclear that the demand side would have justified it much earlier than Gutenberg, so it may be consistent with your statement.

erp said...

What about the wheel?

Susan's Husband said...

erp;

That's an interesting case but more debatable. For instance the Inca didn't use it but they knew of it (based on toys). The prevailing view is wheels just aren't that useful in the mountainous terrain of the Inca. I'm not sure about what went on in Central America (particularly the area which is now Mexico). For the North Americans, wheels aren't useful if you don't have cities so again it's unclear if it was failure to invent or lack of utility.

erp said...

IMO Wheels would have been useful any number of ways almost anywhere, just as levers and mechanical aids, etc. Their invention made modern civilization possible.

Bret said...

SH,

The total population on earth when the stirrup was invented was may 200 million people. So I guess my answer is that was then, this is now.

But you're right, I'm definitely exaggerating a bit. I'm sure out of the tens of millions of patents, at least some of them might not've been invented for a very long time if it wasn't for the inventor who came up with the idea. However, I think the number, especially in this day and age, is really small.

Clovis e Adri said...

Bret,

Yet, to cite only one example, the difference of "inventing" penicillin 50 years later would be of millions of lives, literally.

And with a broader notion of inventions, there are examples enough of advancements in science that were made by single geniuses, and only God knows how long it would take to appear someone as gifted. Isaac Newton is an obvious name to place on that category, but there are many others.

erp said...

Clovis, in order for genius to thrive, freedom is needed. Over the millennia, IMO it is quite probable that many Newton level geniuses were ignored or even put to death for bringing forth ideas contrary to the status quo received wisdom. That not a single brain in all of South America and much of Africa and Asia thought of using the wheel as a labor saving device is inconceivable.

We watched a documentary recently about how modern day people on an island off South American brought salt out of the sea on to the beach, dried it, bagged it and stacked the bags using only human muscle. Very heavy laborious work. On the bright side, the men were in very good shape and didn't need to go to the gym.

Bret said...

Clovis,

Perhaps penicillin isn't the best example as it was never patented (being a discovery, not an invention). :-)

Note that I'm not arguing in this post against patents. Yes, I would shorten the term, but I'm not proposing to abolish them. The patent, being the property, provides an incentive to invent and bring the inventions into the mainstream. Maybe, anyway.

I find your Newton statement interesting. There's something like 10,000 times as many scientists now as when Newton was alive. I suspect that 10,000 reasonably okay scientists could incrementally develop Newton's body of knowledge pretty quickly. What I find impressive with folks like Newton is that they did their thing pretty much in a vacuum of knowledge with no help and no collaboration. That's amazing! The actual body of knowledge? Yeah, pretty good, but I think achievable by hordes of others working together. Maybe not, I don't really know, it's sort of hard to really tell.

Clovis e Adri said...

Erp,

I agree freedom helps a bit, but it is far from being a requirement for a genius to work - many ones did through history, without it.

Where freedom looks to play a larger role is for the process of turning inventions into goods and products for the greater society. The USSR had great minds, yet also lines to buy toilet paper.


---
I suspect that 10,000 reasonably okay scientists could incrementally develop Newton's body of knowledge pretty quickly. [...] but I think achievable by hordes of others working together. Maybe not, I don't really know, it's sort of hard to really tell.
---
I go with your "maybe not".

Science is daily done by ants, and without them there wouldn't be much advancement either, but some of the main breakthroughs were achieved by minds operating at another level.

There were scientists enough working in the begin of the Twentieth century, and Relativity could in principle be achievable to anyone already at least for 2 decades, nonetheless only Einstein got it. All the great minds, working on the same topics that Einstein explored to achieve it, were following labyrinths with no end.

Just like with Newton, once someone showed the path, there was no lack of new generation great minds to establish great discoveries, but I can believe that door would be shut for a long time if not for Einstein.

To wit, we may have 10.000 times more scientists now than in Newton's time, yet fundamental physics has been stuck in dead ends for a few decades now.

Bret said...

Clovis wrote: "...fundamental physics has been stuck in dead ends for a few decades now."

Wait! But there's string theory!!!!! :-)

Do you think if we had some with Newton's (or Einstein's or Bohr's or ...) intellect that they'd make the next breakthrough? Don't we have anyone with their intellect available?

erp said...

Clovis, what did the Soviets invent, where were the innovations?

Science isn't free today because research is at the mercy of federal grants and the most important people in any department, in the U.S. at least, is the guy who can write the grants that get the funds, not the brilliant innovators, if any are even any on the staff..

Bret said...

erp,

There's tradeoffs and happy mediums everywhere.

I haven't had much government funding for my robotics company, but from what I see, the government funding of robotics research in universities and elsewhere has actually been fairly effective from my perspective (i.e. I've used a lot of the results over the years). And they've actually been pretty good at working on stuff that's useful 10 years out.

I'm a "when in doubt, leave the government funding out" kinda guy, but I'll have to admit it's been better than I expected and has been for a long time.

I don't know about other research areas. I'm still waiting for that cure for cancer that the NIH has spent about $1 trillion on, but it's been pretty good in robotics.

Clovis e Adri said...

Bret,

That's a tough question.

Many times fundamental science depends on new developments in technology, so we may have a lot of Einsteins out there, but no data to help them to get anywhere.

But if we are to focus on intellect only, my feeling is this: too many of our most 'brilliant' minds are stuck in the stage set up by Einstein. String theory is a good example: its main 'geniuses' are all trying to pull out an Einstein, but maybe the kind of thought you need to make the next revolution is very different.

Meanwhile, the LHC is running and Supersymmetry - supposed to be the next revolution in particle physics, and the second (or maybe first) objective the LHC had in mind - is nowhere to be seen. Superstrings, without Supersymmetry, will be a footnote in history.

Clovis e Adri said...

Erp,

I said the Russians had great minds - take a list of their Nobel prizes if you want examples - not that they necessarily had great inventors.

But I think they were fairly innovative in defense related technology. To wit, they are the ones taking you Americans to the stars these days. But the price their society paid for that was certainly too high.

erp said...

Clovis, Soviets got their Nobel prizes for the same reason that Carter, Gore, Obama and others got theirs. I don't doubt that there are great minds everywhere. Only that they need to be free to pursue their thoughts.

Ruskies may be pursuing the stars along with the Chinese, but I'm pretty sure they're using our left over stuff after all we don't need it any more now that NASA's mission is Islamic Outreach.

Bret, do you remember pj who used to comment at the Bros Judd. He's a Harvard astrophysicist who became ill and when he couldn't find out the answers to his sickness, developed the Perfect Health Diet with his scientist wife. I've been following it for about five years with great success.

He's an absolutely wonderful guy and we've kept in touch. They started a biotechnology company and the plan is to cure cancer. He explained the mission to the scientifically impaired me as vascular therapy – we plan to destroy tumor blood vessels, starving the tumor, while leaving normal vessels healthy.

My money is on them doing just that if the NIH leaves them alone.

Howard said...

erp,

Actually some of those Russian scientists and engineers have been very productive:

The former Soviet refusenik, backed by an army of highly skilled Russian immigrants in Israel, wants to develop trade and joint research and development projects between the former Soviet republics and Israel's booming high-tech industrial sector.

Some 750,000 immigrants from the former Soviet Union, most of them highly educated, have poured into Israel in the 1990s, helping feed the far-reaching growth in advanced technologies that is transforming Israeli society.

If Russia's brain drain was Israel's gain, it is fitting that Sharansky, 49, a mathematician and chess master, should be promoting Israel's integration into regional and global markets.


Freedom to pursue the science and technological applications for military and commercial purposes has worked quite well. The article linked to is from 1997. Now in 2016 Israel is thought to have the second largest high tech sector in the world and the largest on a per capita basis.

erp said...

Thanks Howard.

Of course, you are absolutely right and none of it could have happened under the repressive conditions pre-Reagan.

Sharansky is only 49??? He's got another lifetime ahead him.

Mazel tov.

Howard said...

erp,

Again, that article was from '97, so Sharansky should be 68 now.

erp said...

Ah. Thanks Howard. I thought quite a few years had seemed to get by me unseen. Interesting that Glenn has a piece on scientific research today too.

erp said...

Here's the correct link.

Susan's Husband said...

Having been directly and personally involved in the ferment that created what we now know as the Internet and the World Wide Web (I was giving presentations on my implementation of what would become HyperText a couple years before Mosaic was created), is strong evidence for Bret's thesis. Post facto people will say this person or that person invented this thing or that thing but the reality was the entire community was thinking about how to do all of that and engaging in massive exchanges of ideas, tips, techniques, etc. I have no doubt we'd be about where we are today absent basically of the official recognized pioneers. The moment had arrived. Ironically I was told to patent my ideas but I thought software patents were a terrible idea. Oh well...

Bret said...

SH,

You reminded me of something I left out of the post. The fact that software patents weren't even allowed a few decades ago!

erp said...

That's amazing creating something utterly new. Did you have any idea just how completely the world would be changed? My daughter was at Yale and her brother at Grenoble labs somewhere with a NSF grant and they were communicating very early on. I was simply stunned by it, but at the time in my wildest idreams I would never have thought that I'd be sitting here typing on this little glass screen and the images would appear on screens anywhere in the world and while this was happening a little ping would be letting me know my other son is sending me pictures of my littlest granddaughter on the message app.

Brave New World Indeed!

SH think of it this way. Had you patented your ideas, you'd be a billionaire and conspiring with the rest of the one worlders. This way you've maintained your integrity and self respect.

Harry Eagar said...

'in order for genius to thrive, freedom is needed'

Nonsense. Most of the inventions that led to civilization came from southwest Asia-north Africa, where freedom was unknown. Then, for reasons not known, the flow stopped around 2,300 years ago (more or less).

erp said...

Please enumerate the inventions that led to civilization that came from Asia-north Africa and describe the conditions prevailing at the time before the flow stopped 2,300 +/- years ago in that part of the world.

Harry, please never stop making these statements. They provide no end of mirth.

Harry Eagar said...

Oh, soap, glass, bronze, writing, stuff like that. Samuel Noah Kramer, the great American scholar of Sumer, published a book of 41 of them from Sumer, but the flow kept up for around 3,000 years, then stopped. Conditions? Despotism all the way.



Harry Eagar said...

Clovis, I used to write news. The copyright was not mine but my employer's. Once the Internet came along, and all the stories were put up, they were all stolen. Almost no one would pay for them when they were available free.

There was not -- and still is not -- any workable way for publishers to protect their property.

The zeitgeist in Silicon Valley was that this theft was all good, and I recall a few yeas ago on this forum Bret claiming it did not matter because all the material formerly created by newspapers was also being published for free by new entrants.

At the time, I denied that was true. Since then I have retired but I know what stories I would be writing if I were still working. Nobody else is writing them.

The free information revolution was fantasy and all the content creators knew it.

I also predicted that since we creators were outnumbered by the thieves, we would be swamped. I was right.

Howard said...

Then, for reasons not known, the flow stopped around 2,300 years ago (more or less).
That is one story. Perhaps the answer is bad luck.

The real question is about innovation:

What kind of “societal environment” is best suited towards fostering innovation, harnessing creativity, and supporting wealth creation? The answer is almost self-evident:

A democratic form of government, a free-market economy with investors seeking new technology, protection of intellectual property, control over corruption and crime, a legal system in which the accused has a chance of being declared innocent, a culture that tolerates criticism and allows independence, a willingness to learn from failure in order to try again — these are some of the intangible characteristics of an innovative society.

Graham’s unique insights as a science historian are shared by development economists.
...
In sum, if there are no sound institutions in place, namely private property rights and the rule of law, economic prosperity is virtually impossible to achieve no matter how many brilliant people and natural resources your country has. When Russia is compared with other countries that embraced economic freedom , the stark contrast is glaring. For those of us who promote and defend a free society, these poignant lessons from science, history, and economics are instructive and should remind us of what is at stake. Reflecting upon his life under authoritarianism, former Russian chess champion and current human rights activist Garry Kasparov said it best: “Innovation requires freedom of thought, freedom of capital, and people who believe in changing the world.”

erp said...

Bernie Sanders "schooling" Kasparov on the glories of communism is chutzpah on steroids. He really means it too. No wonder the left is terrified of his being the nominee.

erp said...

Harry, you have a blog, why not write your masterpiece there.

Harry Eagar said...

Charles Singer's 'History of Technology' says the most important innovations came from the northwest Africa-southwest Asia sector for 3,000 years, then stopped cold. He does not suggest why. It could not be because there was more despotism all of a sudden.

erp, I have written about this at my blog. Dunno if it was a masterpiece but it was informed by, you know, facts.

As for the idea floated here that the ideas would come from someone, anyhow, the experience of Semmelweiss and Wegener suggest that that's wrong.

Harry Eagar said...

Whbnatr about the wheel?

What indeed? Wheeled transport was used in north Africa for millenia then mostly abandoned in favor of pack animals. This is mostly explained in terms of climate although that is not entirely satisfactory.

There are other examples. Stone construction was used in Iran for millenia than forgotten (in some districts).

If you are going to argue that ideas will necessarily bubble to the top as novelties, it is especially hard to explain how already invented ideas disappear. (While not an idea, exactly, the loss of soma is curious in this respect.)

erp said...

Harry, is Charlie as coy about what those most important innovations were as he is about why they flourished and suddenly went poof?

Harry Eagar said...

Well, no. He wrote 5 thick volumes about them.

erp said...

Well that's the area where the Garden of Eden was located, so I guess God did make everything just like the evangelicals say and we were just left to police the area. :-)

I particularly like that he invented soap. Very handy.

Harry Eagar said...

I am not aware of wheels in Peru. The toys in Mexico with clay wheels on a straw axle show that the concept was known but are a long way from the strong, light, shock-resistant and durable wheel that was invented in southwest Asia.

Those required metal, which the Mexicans didn't have. The heavy, all-wood wheel wouldn't have required such sophisticated design but without draft animals was not that much more efficient than human carriers.

I have read a lot about innovation but cannot recall any student of it who thought freedom was important. One (whose name I forget) concluded that life along the Nile was so easy that the residents didn't bother to invent much (except perhaps deities) and that the innovations that led to the civilization of Egypt originated mostly in the steppes farther from the river where life was difficult.

However, difficult conditions cannot account for Bell Labs, nor even desire for profits. One of the most important sites for innovation in America was the Rad Lab at MIT (which erp may have seen before my brother had it torn down). Everyone there may ave been working for freedom but they personally were mostly working under military compulsion.

Even more Nobels came out of the Cavendish Laboratory (27 to 10 for the Rad Lab), and it depended as much as anything else on a monied class supported by brutal exploitation of workers.

Hey Skipper said...

Once again, I am playing catchup.

[Bret:] My belief is that intellectual creations and knowledge are not usually property without completely distorting the meaning of the word 'property.'



I'm also going to focus on a single attribute of property: that it can be stolen. If something cannot be stolen, as defined by law, then it's not property.


That seems to create a materialistic distinction that is unmoored from the existence of property in the first place.

Say I build a fence for my house, and in so doing, add to the value of my house — I converted my labor into money. The fence could be stolen, and along with it my labor that created it in the first place.

I spend a lot of time to write a book, which has value that would not have existed without my labor. Someone makes a copy of the book, and sells it. That person is gaining value from my labor without paying me for it, and I gain less value from my labor.

In both cases, what is being stolen is that without which neither thing would have existed in the first place. By focusing on the effect, rather than the cause, you miss what is most fundamental.

Hey Skipper said...

Let's say Joe invents a method. Let's say it's only in his brain and notes and that he hasn't disclosed it to anyone else. Does he, at that moment, own the invention?

The method exists through some amount of Joe's effort, maybe a little, or a lot. Doesn't matter, because it doesn't exist without his effort. Since he was the source of labor that created the method, he owns the method itself.

Primacy matters, because there is subsequent clear dividing line between independent discovery and shameless copying.

Most of the time, it makes no sense to patent an invention.

I guess that depends upon how much effort the invention requires. Why go to the bother if others can steal your labor?

Against which: patent trolls.

Hey Skipper said...

[Harry:] I spent my working life creating intellectual property, and it was stolen right and left because of flaws in the legal system, although apparently you would not consider it theft.

As others have noted, it would help a great deal if you could give an example.

'The outfits that kept costs high and tried to maintain exclusivity are no longer around.'

Apple is gone? I hadn't heard.


That comment betrays a staggering amount of economic illiteracy. There's probably room for you as a Sanders advisor.

The history of dBase III is interesting. The rights were based on theft, and the colonization of the marketplace was based on paying people to use it.

Bollocks.

I worked extensively with dBase III for several years — its colonization of the marketplace was based on the fact that it, for the time, was the most powerful and flexible data base design and management platform available.

Hey Skipper said...

[Bret:] I've never seen an invention that nobody else would have ever invented if the particular inventor who first figured it out had not.

[AOG:] I'm not so sure. Perhaps our current technic society makes that unlikely, but look at the history of the stirrup.


A couple years ago I got to Machu Picchu. Quite astonishing how the Incans managed all that, never mind the terrain or the altitude.

More astonishing, though, was how much extra work they went to, and how limited their architecture was, because they never figured out what had been used in Europe for 3,000 years: the arch (and with it the barrel vault, and dome).

(And you haven't seen all the inventions that haven't been invented.)

Hey Skipper said...

[Clovis:] There were scientists enough working in the begin of the Twentieth century, and Relativity could in principle be achievable to anyone already at least for 2 decades

Exactly. (Interestingly, the incompleteness of Newtonian mechanics was made apparent with the inventions that made possible telescopes capable of discerning binary star systems.)

[erp:] Clovis, Soviets got their Nobel prizes for the same reason that Carter, Gore, Obama and others got theirs.

I disagree. In the sciences, the Russians well and truly deserved their Nobel prizes.

Hey Skipper said...

[harry:] 'in order for genius to thrive, freedom is needed'

Nonsense. Most of the inventions that led to civilization came from southwest Asia-north Africa, where freedom was unknown. Then, for reasons not known, the flow stopped around 2,300 years ago (more or less).


Harry, for a journalist, your vocabulary is surprisingly limited.

Let me help. Thrive is not a different way to spell "exist"; rather, it means to prosper, or flourish.

Clovis, I used to write news. The copyright was not mine but my employer's. Once the Internet came along, and all the stories were put up, they were all stolen. Almost no one would pay for them when they were available free.

Omitted from this evidence-free assertion is the impact that Craig's List had on classified ad, which, if memory serves, amounted to something like 30% of total revenue.

[harry:] What about the wheel?

What indeed? Wheeled transport was used in north Africa for millenia then mostly abandoned in favor of pack animals. This is mostly explained in terms of climate although that is not entirely satisfactory.


Explained by whom? What was their explanation?

erp said...

Skipper, perhaps the Soviets, like scientists from other parts of the world "deserved" the Nobel prize (I am in no position to pass judgement on their work), the committee's choice being completely subjective, but it was awarded to them because IMO the Nobel committee members were then and still are, enamored of the USSR. This is especially obvious in the literature awards because books are more accessible to non-scientists.

The Peace Prize is now, if it were ever anything other, essentially a joke and should be renamed the "Neville Award."

Harry Eagar said...

I bet you cannot even name a member of the committee yet somehow you know at least a minority are enamored of the Soviet Union.

Here is a summary of the triumph of the camel: http://archive.aramcoworld.com/issue/197303/why.they.lost.the.wheel.htm

I am baffled by your reference to Craig's List. It had nothing to do with theft of my stories, which was going on before there was a Craig's List. Craig's List did destroy classified advertising, which greatly reduced the production of news stories, but it had zilch to do with theft of the stories.

I asked the man who was president of the company that stole dBase how they marketed it and he told me they paid people to use it. (The dBase story needs to be told but at least as of about 10 years ago, which is when I was doing my inquiries, no one had told it. It would be an excellent topic for a dissertation.)

Hey Skipper said...

It had nothing to do with theft of my stories, which was going on before there was a Craig's List.

You have provided precisely zero evidence of any theft of your stories.

I asked the man who was president of the company that stole dBase ...

I can find no reference anywhere to Ashton Tate stealing dBase, nor of it paying people to use it.

Absent any evidence, I have no reason to believe it actually happened.

However, my experience with using dBase III to design, build and maintain a multi-site data base system with extensive reporting capabilities showed it to be an extremely powerful, flexible, and bug-free application.

But what the heck do I know, I only have first hand experience to go on.

Oh, and could you do us all a favor and provide more basis than none at all for your grand pronunciamentos?

erp said...

Harry really ... by their deeds (fruits) they shall be known. No need to know the names of the Nobel committee members. Their stripes have been hanging out there for all to see ever since I was knee-high to a grasshopper.

Skipper, what's happening with ICANN taking over control of the internet? Is it more crony capitalization with one worlders and the lefty (sorry for being redundant) billionaires???

Hey Skipper said...

erp, ICANN isn't taking control of the internet -- it's role has been to set and maintain standards. Apparently, ICANN wishes to shift some of its responsibilities elsewhere; however, I'm nearly clueless about what those wishes are, or their pros and cons. AOG, can you help?

erp said...

This is so far above my pay scale it's scaring me a lot.

Bret said...

Hey Skipper wrote: "Someone makes a copy of the book, and sells it."

You still own the copy of your book. The book has not been stolen. If there was no copyright (which hasn't always existed, of course), there would be no theft, period.

What might be true nowadays is that you hold the property created by government from thin air called copyright of your book. Copies of the book are not your property, however they may violate the property you own called the copyright which entitles you to legal action against those that violated your copyright.

If you and I wrote the exact same book and finished it at the exact same instant, who owns it? We each own our specific hard copy and that's it. One of us may end up with the copyright.

If tomorrow, the government nullifies all copyright laws, then your book is still not your property and your bit of property that is copyright also goes away.

Nobody ever steals the book. They only violate the copyright.

Ideas are not property.

Never were, aren't now, never will be.

Only the GOLEM is property.

Bret said...

Hey Skipper wrote: "Since he was the source of labor that created the method, he owns the method itself."

Even if someone else also creates the method with their labor? Even if they did it first?

That's one place the whole thing falls apart.

If you build a fence and I build a fence we both own a fence.

If you come up with a method and I come up with a method, only one of us owns the method?

No, the answer is neither of us owns the method, one of us may own a GOLEM regarding the method. The GOLEM is the property, not the method.

Bret said...

Hey Skipper wrote: "...because they never figured out what had been used in Europe for 3,000 years..."

I didn't say everyone else would come up with the invention. I simply said that someone else would come up with the invention.

You must've missed the part where I wrote about the Mother, Father, and Grandfather of invention. If they had different ancestors they wouldn't come up with the same inventions.

Hey Skipper said...

[Bret:] You still own the copy of your book. The book has not been stolen. If there was no copyright (which hasn't always existed, of course), there would be no theft, period.

But it isn't the book itself that matters. No one is going to pay much for a stack of blank pages with a cover, and even less for one whose pages are covered with random letters.

It is what is on the pages that gives the pages value, and what is on those pages came about only through significant labor which, if property rights are to mean anything, belongs to the author.

For someone to come along, copy the work product -- the words -- and then sell it means that person is, in part (or in total, if that someone decides to give the content away) making the author a slave.

There is your theft -- it is of time and effort, neither of which is material.

Which is why I think you are making a fundamental mistake here. If someone steals my car, it isn't the car I care about, but rather the time and effort it will take for me to replace it. If someone copies the author's book, it isn't the individual instance of the book that matters, but rather the time and effort to create the content in the first place.

I have no idea to what extent stealing content has affected the bottom line at newspapers (or in the entertainment industry), but there has been some impact, and every bit of it has been obtained by getting the product of other people's time and effort for free.

Kind of like slavery.

Hey Skipper said...

Even if someone else also creates the method with their labor? Even if they did it first?

That's one place the whole thing falls apart.


That isn't where it falls apart, that's where it gets murkier.

Let's say the method is very complex. The likelihood of two people coming up with the same very complex method at the same time is very small -- like two people simultaneously writing the same book. Indeed, at a philosophical level, there probably is no difference between a book and a complex method.

So, with regard to methods, my argument using books applies.

The murk comes in that at some point a method becomes sufficiently simple that it required little or no effort to create, and therefore is almost certain to have come into independent existence elsewhere.

For instance, security questions. SFAIK, I am the only person ever to have developed the method of applying a rule to creating answers to them; e.g., your answer to all security questions could be the first letter of each word in the question. It is a method, I have never seen it mentioned anywhere else and, therefore, I suppose I could copyright it.

But it was the result of a flash of inspiration, combined with precisely zero time and effort, which is what theft is really about.

I don't know where the dividing line lies. Clearly, if people are going to go to the effort of creating complex things, then they can't be made into slaves.

Just as clearly, though, the patent office has granted patents to what are simply ideas tossed off in a moment, and with which patent trolls are plaguing us now.

Bret said...

Hey Skipper wrote: "...but rather the time and effort it will take for me to replace it..."

The car takes considerable time and effort to replace. The book takes no time and effort to replace - you still have your book.

What you don't have is the exclusive right to make copies which you only have because of the GOLEM. The GOLEM or copyright is the property, not the creation. By copying your book I'm violating the GOLEM. This is much more obvious for a patent but still holds here.

Hey Skipper wrote: "...all security questions could be the first letter of each word in the question ... I suppose I could copyright it."

You mean patent, and perhaps, perhaps not. For sake of argument, let's say you could. This would be exactly the thing I would never patent. Why? Because patents are published so everyone in the world would know the technique and could use it with impunity because how would you ever prove they were using it? It's not like you could force some random person to disclose all of their passwords because you're suspicious that they might be using your password method.

I never patent any technique that you can't figure out from looking at my products and that even if someone else does patent it later (or already has), can't prove that I'm using the technique in my products. You can't demand someone cough up their source code just because you think there's some chance they're using one of your patented techniques (just like you couldn't demand someone turn over their password in the example above). It has to be quite likely there's an infringement and with internal software algorithms in a complex robot, it never is.

Hey Skipper said...

The car takes considerable time and effort to replace. The book takes no time and effort to replace - you still have your book.

You seemed to have missed my point.

It took a great deal of time and effort for me to obtain the car. In a free market economy, the car is the physical instantiation of the worth of my time and labor. If someone steals it, it isn't the thing itself that is important, but rather the time and effort it represents. Let's say someone steals my car, and replaces it with one identical in every detail. Where's the theft? Or, let's say someone steals my 10 year old car with 75,000 miles, and replaces it with a two year old car of the same model with 15,000 miles. Where's the theft?

And it is just the same for a book. It does not exist without the author's time and effort. If someone puts that book on line for free, and therefore wiping out the author's ability to turn that time and effort into a car, then the thievery isn't the book, but rather the ability of the author to convert time and effort into a physical instantiation of that time and effort.


You mean patent, and perhaps, perhaps not. For sake of argument, let's say you could.

You are right, I meant patent.

And you are right about the details, but they aren't relevant. IMHO, patents (and copyrights) should protect the ability to turn significant time and effort into physical instantiations of that time and effort.

Waving aside the details, my idea isn't worthy of patent because it required absolutely no time and effort. If someone "steals" my idea (I have read many articles about online security, and not one, ever, has mentioned the bloody obvious. Weird.) I'm not out anything, because I invested nothing.

That's the problem with our patent system, too often people get patents for mere notions, involving nothing, and then we are stuck with patent trolls.

Howard said...

Not to distract from the question at hand, but since the subject is patents it should be noted that the first recorded patent was issued on June 19, 1421 in Florence. The city states had fairly sophisticated property rights. Reading history with sufficient attention shows that some form of property rights and rule of law were part of those commercial cultures. I guess it's easy to miss that if you get caught up in a narrative based primarily on political drama.

Clovis e Adri said...

Skipper,

----
It took a great deal of time and effort for me to obtain the car. In a free market economy, the car is the physical instantiation of the worth of my time and labor. [...]
And it is just the same for a book. It does not exist without the author's time and effort.
----

Right. But I think Bret's point may be recast as two different levels of societal/govt constructs.

The possibility of turning your time and effort into a car (or land, or any other physical property) is something so basic that, in some form or another, was always seen as a "Natural" Right (even if only granted by use of your own Force, which should be added to the necessary effort to get and keep the property).

The possibility of turning the effort of making a book (or any idea more generally) into a car (or piece of land, etc) is something only possible in more recent times, and asks for a far more organized and powerful level of Force, never achievable by your own capacity for defending what's yours.


It may well be that such "Higher-organized externally imposed" Right was beneficial to modern societies in the last few hundred years, and the standard narrative out there is told.

It is not self-evident that it still is, or will keep being a net positive in future. Patent trolling is an essential part o the game now, and the ones not able to play it are out. Furthermore, complexity in some areas has been growing fast enough to render no few absurdities in the whole process.

Hey Skipper said...

Clovis:

My point is that I think Bret's premise is wrong:

My belief is that intellectual creations and knowledge are not usually property without completely distorting the meaning of the word 'property.' In order to argue this point, I'm going to focus on just one aspect of intellectual creations as an example: the creation of knowledge that forms the "meat" of method patents. I'm also going to focus on a single attribute of property: that it can be stolen. If something cannot be stolen, as defined by law, then it's not property.

Because it focuses on the wrong attribute -- physicality, rather than what gives that physicality value.

Patent trolling is an essential part o the game now, and the ones not able to play it are out.

It need not be. The patent office issued patents for mere notions, not processes.

Bret said...

Clovis wrote: '...a "Natural" Right...'

Yes, that's a substantial part of the basis for what I'm saying. When Moses came down with the commandment "Thou shall not steal," it's laughable to think that commandment, at that time, possibly had anything to do with ideas or what's now intellectual property. The commandment regarded stealing physical property and nothing else.

As Howard points out, the first patent wasn't until a few hundred years ago and the concept of "Intellectual Property" didn't exist until a few decades ago when a bunch of greedy lawyers decided to try and expand their reach.

The first software patent wasn't granted until 1968 and until that point, it was assumed that software methods were freely usable with no protection of any sort available. Clearly not property even though software methods sometimes required huge effort.

After 1968, they're still not property. The patent is the property.

Clovis wrote: "It is not self-evident that it still is, or will keep being a net positive in future."

From what I can tell from some research I did a while back was that in areas of rapidly developing technology, they're less positive than in areas that are relatively stagnant. In areas that require enormous capital investment patents are possibly more positive than in areas where a couple folks in a garage can churn out and distribute a new product.

Bret said...

Hey Skipper wrote: "My point is that I think Bret's premise is wrong."

We'll just have to disagree. From what I can tell, the only people who think your way are a bunch of greedy lawyers and those indoctrinated by them (such as yourself). Before a few decades ago, there was no such thing as intellectual property.

The patent was the property.

Hey Skipper said...

[Bret:] From what I can tell, the only people who think your way are a bunch of greedy lawyers and those indoctrinated by them (such as yourself).

Then you aren't paying attention.

I have absolutely no idea what lawyers say on this subject, so I they can't possibly have indoctrinated me. Rather, I'm trying to reason from basic principles. I may well have done so incorrectly, but until I am set straight, the conclusion I arrive at is that you're notion of property is focusing on the wrong thing.

Before a few decades ago, there was no such thing as intellectual property.

Your definition of a "few" is far different from mine.

I promise I didn't read this before my previous comments.

Copyright, which a form of intellectual property, has been around since the invention of the printing press.

The British Statute of Anne (also known as the Copyright Act 1709) further alluded to individual rights of the artist. It began, "Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing... Books, and other Writings, without the Consent of the Authors... to their very great Detriment, and too often to the Ruin of them and their Families:". A right to benefit financially from the work is articulated, and court rulings and legislation have recognized a right to control the work, such as ensuring that the integrity of it is preserved.

...

... with copyright laws, intellectual production comes to be seen as a product of an individual, with attendant rights. The most significant point is that patent and copyright laws support the expansion of the range of creative human activities that can be commodified.


That is, the ability to turn time and effort into the acquisition of tangible objects. In a monetary economy, it is the loss of time and effort that underlies the notion of theft, not the tangible objects themselves.

After all, the receipt of payment is what separates selling from theft.

erp said...

... just read a fictionalized account of Gutenberg's travails and a similar debate goes back as far the 15th c. at least.

A heated debate raged in academe with the onset of the relatively inexpensive photocopier. It was established that only a limited number of pages would be allowable for copying. That fell apart almost immediately when they became so cheap, they were available to everyone. The last printer, an HP, we bought last year for $40 prints from the i-Pad as well as three different laptops running three different versions of Windows and also provides copying and scanning with any number of options.

Ain't technology grand.

Bret said...

Hey Skipper,

I didn't write that patents and copyright haven't been around a long time. I wrote (or at least meant to write) that the creation itself wasn't considered to be "property" until a few decades ago. Indeed, that's why patents (and copyright) were created. The patent is the property, not the creation.

Note that in your excerpted passages the word "property" doesn't appear. "Product" and "property" are two very different things. CO2 is a product of your breathing. Is that your property also? A written page may be a product of your writing, but is not your property. Your copyright on that writing is your property.

The patent is the property.

Hey Skipper said...

The patent is the property, not the creation.

It is neither:

... with copyright laws, intellectual production comes to be seen as a product of an individual, with attendant rights. The most significant point is that patent and copyright laws support the expansion of the range of creative human activities that can be commodified.

The distinction between tangible and intangible misses the essence of the problem: what becomes a tangible possession is the result of human activity that can be commodified. Stealing the tangible possession isn't what matters, it is the human activity required to obtain that possession in the first place.

That is why patent and copyright laws exist -- to protect the theft of human activity.

Putting it the other way, without that activity, the patent or copyright does not exist. Yes, it is possible to sell a copyright or patent, so it is like property in that way, but destroying the ability to commodify the activity leading to the patent or copyright -- China, looking at you here -- is just as much theft as stealing a car, because it is the fruit of labor that is being stolen.

(If I get around to it, a Netflix rant is to a weblog near you any day now.)


Hey Skipper said...

... is coming to a weblog ...

Bret said...

Hey Skipper wrote: "That is why patent and copyright laws exist -- to protect the theft of human activity. "

I completely and absolutely disagree.

Does, "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" ring a bell?

Do you see "property" or "theft" anywhere in there? I don't. And that's because nobody considered it to be either property or theft.

Hey Skipper said...

In your OP, you confined theft to the illegal taking of tangible possessions. Consequently, mere copying isn't theft.

Does, "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" ring a bell?

Indeed, it does.

And, near as I can tell, it goes exactly to my point. If people aren't able to commodify intellectual effort, they won't do it.

Just as if everything I commodify with my physical effort gets stolen, whether through taking whatever I buy, or taxing the hell out of my effort, I will stop working.

The sine qua non is effort -- steal that, and effort will disappear.

erp said...

Skipper, re: Netflix. I hope you include indignation/irritation that everyone time one looks up an item, it just happens to be unavailable for streaming and only available on on a disk. We don't even bother with it anymore.

Clovis e Adri said...

Skipper,

----
The sine qua non is effort -- steal that, and effort will disappear.
----

So can you please explain to me Shakespeare? Or Bach? Or Linux? Or quantum mechanics?

It just happens the examples above took much effort, and neither I or anyone else paid a penny to get them. Whom am I stealing from?

Bret said...

Hey Skipper wrote: "...steal that, and effort will disappear."

The effort may disappear, except, in the case of ideas, it's not stealing. That's why there's a specific clause in the constitution dealing with ideas, creating GOLEMs with the goal of promoting "the progress of science and useful arts."

If ideas were property and stealable, then they would've been covered by normal property law, and the separate clause and creation of GOLEMs would not be required. The fact that there is a special clause and that the clause doesn't even mention property clearly shows (at least to me) that the founders did NOT consider ideas property.

One of the main motivations of patents was to encourage disclosure. In other words, to encourage inventors to publish the idea so all the world would have it freely. In exchange, the inventor gets the GOLEM, which gives him exclusive use of the idea. But it does NOT give him exclusive ownership of the idea. Quite the contrary. It forces him to allow everybody access to his idea.

Bret said...

Clovis wrote: "...Shakespeare? Or Bach? Or Linux? Or quantum mechanics?"

That's a very nice set of very different examples on how creations can be funded. Shakespeare, probably mostly by acting and production; Bach, by the church; Linux, by, well, lots of people with different funding and motivations (my most widely distributed software is bug fixes and drivers for linux); quantum mechanics, by institutions funded by philanthropy and taxes.

People have always created ideas. Perhaps what GOLEMs do is enable those ideas to get more traction.

Hey Skipper said...

Each of those examples proves my point. (Indeed, IIRC (and am not about to check) Shakespeare continually complained about others staging his plays).

Without some means to commodify intellectual effort, it won't exist, or at least not nearly to the degree it does today.

Why? Because people have to obtain commodities somehow, and if they can't do so with intellectual activity, then they will have to spend their finite time doing something else.

If ideas were property and stealable, then they would've been covered by normal property law, and the separate clause and creation of GOLEMs would not be required.

You are still confusing tangibility with stealability. GOLEMS protect non-tangible valuable property. No one steals things that aren't valuable; just because something isn't tangible doesn't mean it isn't valuable.

Of course there had to be a special clause, because the "item" of value isn't tangible. The property being protected is the ability to commodify intellectual effort, not any specific instantiation of effort.

Clovis e Adri said...

Skipper,

---
Each of those examples proves my point.
---
Do they? So why didn't you answer whom am I stealing from? I happened to use all of those items in recent past (even daily), and now you convinced me I need to pay someone for it - can you give me the bank account number?


---
Shakespeare continually complained about others staging his plays
---
Oh, which one of them?

Hey Skipper said...

Do they? So why didn't you answer whom am I stealing from? I happened to use all of those items in recent past (even daily), and now you convinced me I need to pay someone for it - can you give me the bank account number?

Your examples were able to commodify their efforts, right?

(And not all examples fit: SFAIK, discoveries are not intellectual property.)

Hey Skipper said...

BTW, I am having fits with Netflix here in Germany.

Bret said...

Hey Skipper wrote: "Your examples were able to commodify their efforts, right?"

Certainly Linux is commodified. In the case of Linux, GOLEMs made it harder, but I'm not saying the GOLEMs are necessarily a bad thing.

Hey Skipper said...

[bret:] ... but I'm not saying the GOLEMs are necessarily a bad thing.

True. But you started your argument reasoning from basic principles. I think one of them is profoundly flawed, because you don't really get to a basic principle. What matters about theft isn't tangibility. After all, I have money in a bank account; the only representation of that money is bits, which are (absent robust security measures) eminently intangible and reproducible.

So if I wake up tomorrow, and all the bits are gone, no theft has occurred because they are intangible?

Clovis e Adri said...

Skipper,

---
True. But you started your argument reasoning from basic principles. I think one of them is profoundly flawed,
---
I can spot a flaw in your own argument too. Take your example:

---
What matters about theft isn't tangibility. After all, I have money in a bank account; the only representation of that money is bits, which are (absent robust security measures) eminently intangible and reproducible.

So if I wake up tomorrow, and all the bits are gone, no theft has occurred because they are intangible?
---
To keep the analogy, it ought to happen that, if I take one of your ideas, you would lose it. Or if I copied your book, you would have none in your hands afterwards.

You argue, of course, that what is being stolen is the non paid effort to achieve such idea.

But stealing myself a concept once used here by AOG (in another context), the thing is: failure to help is not a crime.

The creation of a system where ideas can be patented and enforced is (or should be) a voluntary act of a society, and one aware enough of its implications.

Were said society to disavow such a system, would it be immoral?

As I see it, they would be only "failing to help". Which is very different from stealing something that is objetively subtracted from its owner.


IMHO, the copyright laws disguised as trade deals imposed over many countries all over the world, many times without consent of their citizens but through buying their political levers of power, is indeed a form of stealing. And one not compensated by the supposed good those laws would bring to them.

erp said...

Clovis: ... if I copied your book, you would have none in your hands afterwards.

Is that correct? Wouldn't it mean, that both of us would have a copy??

erp said...

All the rules about intellectual, I like to think of it as intangible, property need to be rethought in light of new technology. Short pieces, art, photos, etc. cannot be protected because even if they're behind firewalls, they can be so easily copied and pasted into an email or document and sent off to the known world.

Don't know the answer, but I sure hope draconian measures aren't taken to "regulate" the internet and put a stop to any, but official information, being allowed to reach us cogs.

Clovis e Adri said...

Erp,

Exactly: because we both would have a copy, nothing was subtracted from you, contrary to Skipper's example of missing money from his bank account.

To argue the contrary is to argue that a society that fails at directing its resources to punish the man copying books is just as immoral as any thief out there. And that's what Skipper is defending, knowingly or not.

erp said...

It's not that simple. If I buy something, a book or a toaster, I can give it or lend it or sell it to someone without penalty. Why is it theft then if I merely copy my own property and give that copy to somebody else, something that will apply to objects even more tangible than books with the new "printers" I've heard can "print" anything -- I hope I live long enough for replicators to replace kitchens.

I have come to love reading ebooks on my very lightweight ASUS for a lot of reasons like holding a heavy book is hard on my hands, font size and brightness can be adjusted, Google is there for instant lookups, ditto time and date, email as well, but what is irksome is that I can't merely send the book to another reader without making elaborate arrangements beforehand.

We need some very smart people fixing this problem before the meddling busy bodies mess it up irrevokably.

Clovis e Adri said...

Erp,

If you ever sent one of those eBooks to others, and they were not in public domain, well, you just broke the law. And to some, you are a thief, if not worse.

The only thing barring you from paying heavy penalties and serving prison is lack of State resources to chase and prosecute you. At least for now.

erp said...

I don't know how to share ebooks not in the public domain other than the cumbersome system Kindle provides, however, I have no compunction watching pirated new movies online because the film industry is so heavily subsided by me and my fellow taxpayers, that I feel that as an unwilling investor in something that in the main produces a product that trashes We, the People, I am entitled to seeing the products without being tortured by sitting in a theater seat.

BTW since I have zero interest in modern film, we only watch those my math/theater arts combined major college student granddaughter wants us to see for various technical stuff she admires.

Clovis e Adri said...

Still a criminal, Erp. Or so says your law codes.

erp said...

I wish they’d come with the media and handcuffs to arrest me. They’d have a video worth going viral.

Hey Skipper said...

[Clovis:] To keep the analogy, it ought to happen that, if I take one of your ideas, you would lose it. Or if I copied your book, you would have none in your hands afterwards.

Actually, what I wrote was an example, not an analogy.

Bret argues that tangibility defines theft. If that is true, then emptying my bank account cannot be theft.

Which is why his assertion fails. It isn't the "taking" of intangible bits which is theft, it is the theft of my ability to commodify those bits. Just so with intellectual property. Stealing a book, or publishing it without regard to compensating the author, did not stop being theft when the Kindle Nook was put on the market. It was never the book itself, no matter how material it may be, but rather impeding authors' ability to commodify their efforts.

To argue the contrary is to argue that a society that fails at directing its resources to punish the man copying books is just as immoral as any thief out there. And that's what Skipper is defending, knowingly or not.

Wrong. I am not defending anything, I am attacking Bret's assertion as philosophically flawed, because it focuses on the wrong thing. There is no difference between the bits representing my bank balance, and the bits constituting a book. The bits don't matter. What does matter, and is what is getting stolen, is my ability to turn those bits into tangible commodities.

To be clear, I think there are some serious issues with IP laws and enforcement. But, to the extent I'm right, making the concept of theft dependent upon tangibility does nothing to illuminate them.

(As an aside, when I lived in Alaska, I paid my monthly subscription fee to Netflix. Now that I live in Germany, Netflix wants* to greatly reduce what I am able to get for my money, simply because of where I am.

That is idiocy on stilts.)

(*Actually, content providers are the real bozos. But it is NF that is still happy to take every bit as much money for providing a fraction of the choice.)

[erp:] It's not that simple. If I buy something, a book or a toaster, I can give it or lend it or sell it to someone without penalty. Why is it theft then if I merely copy my own property and give that copy to somebody else …

[Clovis:] If you ever sent one of those eBooks to others, and they were not in public domain, well, you just broke the law. And to some, you are a thief, if not worse.


I know that some are attempting to impose that view of IP. However, so far as I know, doing such a thing constitutes "fair use". In fact, Amazon explicitly allows e-book lending, and many libraries have copyrighted e-books available for checking out.

Going back to my argument that commodification is what matters, it is an interesting question as to whether lending books helps, or hinders, authors' ability to commodify their work. (On balance, helps, I think.)

Bret said...

Clovis wrote: "If you ever sent one of those eBooks to others, and they were not in public domain, well, you just broke the law."

There're some interesting loopholes, however.

A number of years back, one of my daughters discovered a site where you could illegally download music. I told her she couldn't do that (since it's illegal) and she said "ok, daddy."

A couple months later I noticed that she had hundreds of songs on her iPod that I was certain she didn't buy. I was more than a little annoyed and was about to take a hammer to her iPod when she explained that she didn't download a single one of those songs. Rather, she gave her iPod to a friend and when she got it back from the friend it had those songs on it. So she didn't actually disobey I what I told her nor did she violate the "letter" of the law and she said she thought her friend bought all of those songs for her.

So I looked it up. What she did is probably not illegal. What the friend did was borderline (assuming the friend didn't actually buy the songs for my daughter - the friend is rich so there's some small chance she did). iTunes allows download to 5 personal devices and the friends probably just used one of the 5 allocations for each song downloaded. So that wasn't illegal either. The possibly illegal step was when the friend gave my daughter her iPod back.

The important thing I learned (other than that daughters will often find a way to get around parents' edicts) was that in that generation, copying stuff is simply not wrong in any way. They can't even begin to grasp how it could possibly be wrong. She can't get why anybody would think she took something from someone. After all, everybody else still has their copy and she wasn't going to buy it anyway.

I'll be surprised if copyright, at least for music, survives even one-hundred years.

erp said...

Bret, my point about intangible property like the thoughts that went into literally writing a book whether in software program, with pen/pencil or a quill, is once it's in a tangible form and sold, the creator has lost control. If it's still under copyright, he/she can sue if the words are used by others even with attribution.

I agree that the more people read a book, the better off is the author.

ebooks and other stuff on the internet can't be contained and book "lending" is a pain in the neck the way it's currently set up.

Unfortunately I'm not as savvy as your daughter about getting around the rules and all the rich people I know are to old to care.

:-)

Bret said...

Hey Skipper wrote: "Bret argues that tangibility defines theft."

Did I? It's funny, then, how no form of the word "tangible" appears in my original post.

My definition of theft is depriving someone else the use of the thing being stolen. If I make a copy of a song you wrote, you still have your copy so it's not theft. It has nothing to do with whether or not it's tangible.

If I steal "bits" from you such that you no longer have access to said bits, then it would be stealing. If, on the other hand, I merely make copies of those bits, then it is not.

Also note, stealing and violation of contract are different. Non Disclosure Agreements are a type of contract. Violating them is not theft, but still prohibited.

erp said...

... Err that's too old.

Clovis e Adri said...

Skipper,

---
It was never the book itself, no matter how material it may be, but rather impeding authors' ability to commodify their efforts.
---
There again, that ability is not dependent on the authors own effort alone, but on the effort of the rest of society upon (i) agreeing with giving it protection and (ii) paying up the system that enforces said protection.

To the extent (i) and (ii) are only achievable through the effort of very many other people, it is quite a stretch to think of the author's 'right' to commodify his efforts as something 'natural' or obvious. Actually, it can - and has been - used nowadays to steal effort from others in order to protect special interests, or just to hinder competition.




---
[Clovis:] If you ever sent one of those eBooks to others, and they were not in public domain, well, you just broke the law. And to some, you are a thief, if not worse.

I know that some are attempting to impose that view of IP. However, so far as I know, doing such a thing constitutes "fair use".
---
Some are attempting to impose that view? That's an interesting way to describe what is already law. tp say the least.

I am not talking about the lending system set up by Amazon to their kindle eBooks.

What I've meant is, if Erp had in any way just directly copied one of her copyrighted eBooks files, and applied any technique to unlock it for others to use, she's certainly violated the Kindle user agreement and their copyright protections. She can be sued and jailed for that in your Land of the Free and Home of the Brave.

Clovis e Adri said...

Bret,

---
There're some interesting loopholes, however.
---
There are, but not quite the one you described.

Just as with lending ebooks within the Kindle system, what your daughter's friend did may have been quite OK. Apple does not define which are the 5 devices it allows sharing of the iTunes music - actually, they have a 'Family' function by which you can share content from those devices registered as 'Family'. Obviously, they can not define whom you call family.

I am assuming this is how she did the copying. If otherwise she just unlocked the files and directly copied them, she did break the rules.



---
The important thing I learned (other than that daughters will often find a way to get around parents' edicts) was that in that generation, copying stuff is simply not wrong in any way. They can't even begin to grasp how it could possibly be wrong. She can't get why anybody would think she took something from someone. After all, everybody else still has their copy and she wasn't going to buy it anyway.
---

I am not only from such a generation, but from a whole culture where there has never been much respect for copyrights. And I grew up hearing how that was a hallmark of our underdevelopment. If only we could respect copyrights like the Americans and Europeans did...

IMHO, the above view is itself the hallmark of underdevelopment. Very few cultures, if any, grew out of poverty by paying their due copyrights to whatever idea came from abroad. The best example of fast growing economies in the 20th century - Japan, South Korea, China - did a lot of copying and, upon learning the trade by copying so much stuff, started figuring out how to do new things themselves.

It's been always thus. Or would your tribe first pay to buy the new best sword bulding technique from the next tribe before being slaught by them?


I am not quite preaching anarchy to the world system of IPs, but since the whole thing has been built on so much lack of transparency, I am not caring much for the better balance right now.

erp said...

The wild west in the ether. I love it.

Hey Skipper said...

[Hey Skipper:] "Bret argues that tangibility defines theft."

[Bret:] Did I? It's funny, then, how no form of the word "tangible" appears in my original post.


From the OP:

My belief is that intellectual creations and knowledge are not usually property without completely distorting the meaning of the word 'property.' In order to argue this point, I'm going to focus on just one aspect of intellectual creations as an example: the creation of knowledge that forms the "meat" of method patents. I'm also going to focus on a single attribute of property: that it can be stolen. If something cannot be stolen, as defined by law, then it's not property.

How else did you mean property in that sentence, except as something a) valuable and b) tangible?

My definition of theft is depriving someone else the use of the thing being stolen. If I make a copy of a song you wrote, you still have your copy so it's not theft. It has nothing to do with whether or not it's tangible.

And I believe your definition is ill founded, because it completely ignores how property comes into being. If you steal my car, what matters isn't the car itself, but the theft of my efforts that were required to make that particular car my property. In essence, your theft made me a slave to you for the amount of time it took me to earn enough of an intangible — money — in order to obtain the car in the first place.

If you take a song I wrote, instead of paying for it, then you have made me a slave to you in exactly the same way. If you take a song I wrote, and sell copies of it to other people, you have violated the most fundamental property right of them all — my time.

It isn't the use of something that is the issue, it is the commodification of my effort.

[Clovis:] There again, that ability is not dependent on the authors own effort alone, but on the effort of the rest of society upon (i) agreeing with giving it protection and (ii) paying up the system that enforces said protection.

That is true of all property rights.

To the extent (i) and (ii) are only achievable through the effort of very many other people …

To be clear, I'm not trying to justify any particular IP regime, only to assert that misunderstanding the core meanings of property and theft won't help understand why IP exists, or what the problems are.

Some are attempting to impose that view? That's an interesting way to describe what is already law, to say the least.

I can't cite chapter and verse, but I'm pretty certain the law isn't nearly as stringent as you think it is.

For instance, I can make copies of copyrighted material for my own personal use. The entertainment industry strongly fought this, and decisively lost. Therefore, I can rip a DVD onto my iPad, or copy songs from my library to CDs. (Although, anymore, I'd be hard pressed to say why I'd do such a thing, but still.)

I can loan, or even give, a book to anyone I choose. I can sell a book to used book store.

Sometimes I can loan an ebook, but I can never sell one. (There is perhaps an interesting discussion between IP and tangibility to be had there.)

If erp was to make copies of an actual book, it would be just as illegal as with an ebook. However, she can quote portions of a book without concern.

Apple's approach, allowing 5 AAC copies of copyrighted material, is completely legal.

I can make as many mp3 copies as I wish, without breaking any laws.

Bret said...

Hey Skipper: "If you steal my car, what matters isn't the car itself, but the theft of my efforts that were required to make that particular car my property."

I don't think so. Or maybe that's true for you, but then you're really, really unusual.

You're saying that if I took your car but left you a lump of gold that would've required you the exact same "efforts" "to make" your "property" you'd have no problem with that? That would be true if "what matters isn't the car itself."

erp said...

Bret, when I left academia 25 years ago, a certain portion of a book could be copied, but it was a hot issue and I'm not sure what the copyright law about copying books is now.

IMO you certainly shouldn't be able copy a book or anything else and sell it as the original product.

As for ebooks, here's an avid user's take. My legitimately purchased ebook should be mine. I didn't rent it with strings attached and there should be a way to easily dispose of it anyway I want to whomever I want and all the rights and responsibilities of ownership transferred to the beneficiary of my munificence.

Note: I didn't copy the book and no longer have access to it -- in exactly the same way everything else I own can be given away, loaned, sold, etc. without jack-booted feds getting in on it.

Hey Skipper said...

[Bret:] You're saying that if I took your car but left you a lump of gold that would've required you the exact same "efforts" "to make" your "property" you'd have no problem with that? That would be true if "what matters isn't the car itself."

That is exactly what I'm saying.

If, to follow your hypothetical, if you took my car and left me with a lump of gold big enough to replace the car, and compensate me for the time, effort, and opportunity cost to replace it, then I would have no problem with it. Why should I? Under those circumstances, your stealing the car did not in any way make me a slave to you, because your theft did not affect my ability to commodify my time and effort.

Similarly, if you stole my car, and left a brand new version of it in its place, or left a materially identical version of the one you stole, that would not constitute theft, for the same reason.

[erp:] As for ebooks, here's an avid user's take. My legitimately purchased ebook should be mine. I didn't rent it with strings attached and there should be a way to easily dispose of it anyway I want to whomever I want and all the rights and responsibilities of ownership transferred to the beneficiary of my munificence.

Exactly. ebooks should be treated no differently than tangible books. If the point of copyright is to protect intellectual property, then the form that property takes is completely beside the point, provided the form does not unduly impact copyright protection.

Near as I can tell, ebooks fit that description. Movies and music are a different matter.

Bret said...

Hey Skipper: "That is exactly what I'm saying."

Well, that explains our disconnect. For me, ownership is about control of the property. I would still be livid and call the police and press charges even if completely compensated for the value of the car and the time to replace the car and the time and inconvenience for not having the car there when I expected it. My guess is you'd find a whole lot more people with my attitude than yours. And note that because I could still press charges even though fully compensated, the law agrees with me as well.

erp said...

I'm with Bret here. My property, including my car, and I have a history. In fact, my 20 year old Chrysler Concorde that has 200,000 miles of our life imprinted in it is worth less than $2,000 for resale, but I wouldn't sell it for ten times that amount. In fact, it costs a fortune to keep it in prime condition, but my plan is for me and my car to go out together and I would take unkindly if someone were to interfere with that plan.

Hey Skipper said...
This comment has been removed by the author.
Hey Skipper said...

Bret, erp:

I am quite certain there is a price at which you would submerge your objections.

Then it wouldn't be theft, it would be a transaction.

Which gets exactly to the point I have been making all along. Theft is not a transaction.

erp said...

Exactly, a transaction between two or more willing participants. My objections might be submerged if the need were great, failing that, not likely.