Patents and Copyright

Francois-Rene Rideau
Thu, 30 Mar 2000 23:43:53 +0200

[I dared publish this answer to a private e-mail on a public forum,
and do not feel like I broke anyone's rights; that said, I do hope
Frank won't find it rude, and will not choose to cease correspondance]

On Thu, Mar 30, 2000 at 05:34:17PM +0900, Frank B. Humphrey wrote:
> Konnichi wa,
> As a fellow classic liberal, I was happy to stumble upon your website
> chock full of info on the free-software (open source) software issue.
   thanks a lot for your appreciation. I suppose you read my french pages,
since my english pages are not so full of info (yet); didn't you?

> I
> am opposed to the granting of patents and copyright (even though I am a
> published author of some trival English study guides in Japan and
> benefit greatly from copyright law) based on the notion that it goes
> against classic liberal philosophy for me to force others (through
> taxation to support the patent office, copyright office, and the courts)
> to protect my property. I believe that anything I write or make belongs
> to me, but it is up to me to protect it. Not you. If someone wants to
> make a million copies of my books and sell them for a nickel each, then
> it should be up to me to stop you from doing it, not you.

I fully agree with this position.
But I am also aware that no one will ever be able to stop
million of copies of "one's" works from being spread;
at least, not for long (for in as much as they are worthwhile,
other people will eventually reverse-engineer or spy one's dear secrets).
So that if one wants to make money oneself by spreading one's creations
(for which one has a natural advantage
that requires no government-granted privilege),
then one will have to spread millions of copies of it oneself
at a price so low as to make competition unattractive. Which is good.
This means that ultimately, in absence of intellectual property,
consumers will benefit from cheap interesting and trustworthy information,
and that producers of information have a direct and strong incentive
either to spread it widely at affordable price as soon as possible,
or to let other people spread it and focus on creating more information.
Wherever are their proficiencies, they are incented to use them
at providing consumers worthwhile and cheap services.

Not only is the very nature of intellectual property restriction,
its incentive effect is thus also negative, not positive.
It encourages people who have already created useful information,
who have proven their proficiency, to stray away from further creation,
and to focus on making money by being a brake to other people's efforts.
It encourages people who have never created anything worthwhile,
and people incapable to create any such interesting information,
to publish imperfect information, or even utter rubbish,
in the hope of pressuring a captive market.
Few will manage, and even they will even have
to provide _some_ useful information
as they create or maintain these captive markets;
but this will be only the bare minimum of useful information
needed to generate government-protected revenues;
this useful information will be a small part of the overall information,
whose large mass is otherwise cheap, unoriginal, and/or basic information;
and producing this whole information will only take a small part
of all the money plundered by the monopolists.

So you can't prevent affordable foreign drapes from reaching your country
and replace your expensive french drapes in the french market? Then don't;
and the government shouldn't help you at this harmful undertaking.
So you can't prevent affordable copies of your works from reaching the
public and replace expensive copies you produce? Then don't;
and the government shouldn't help you at this harmful undertaking.
Exact same reasoning. Intellectual Property is protectionism.
Intellectual property, like all forms of protectionism,
is based on people being paid, by force,
not for services they render, not for value they create,
for not executing their threats of harming, imprisoning or killing opponents.
This activity is and has always been named racketeering.
It may be disguised under softer names;
the armed forces of government may wear shining armors;
they may be preceded and hidden by armies of suit-wearing lawyers;
these lawyers may drape themselves in the legality of the racket;
it's still a racket.
A piece of shit, under any other name, does smell as bad.

> Aslo, I am interested in your assertion that Msoft is a rackeeter. Do
> you mean that they coerce people or computer makers to buy Windows
> through the so-called Windows tax or through product tie-ins, e.g. you
> can only buy Windows if you also buy Explorer. This may be inefficient,
> but I think not against classic liberal thought. Would not Mises support
> your freedom to NOT sell me your car unless I bought the protective
> cover too? Just becasue you may not like the deal offered doesn't mean
> it is morally unsound from the classic liberal perspective. I look
> forward to your comments.

Your remarks are quite right indeed, but they miss the main point,
by taking for granted intellectual property and its consequences.

To me, the problem about Microsoft indeed is not quite about
their trying to tie the sale of some of their products with other products.
At least, not per se.
Such tie-ins as Microsoft enforces are no doubt a great evil,
but a free market is indeed able to put down such evil
much more easily than any governmental intervention ever could.
Now the problem is precisely about these evil attempts succeeding
because of the market NOT being free,
because of privileges granted by the government.

Governmental intervention to end evil deeds per se is most unwelcome,
because whencever government draws authority to fight such evil,
it can be but from a weakening of private liberties,
which will necessarily lead to even more evil than will be solved.
But governmental intervention can and must end unjust behavior,
by recognizing past injustices and banishing future injustice
that matches known patterns.
Courts cannot punish what legislators said was legal;
but they can discover what was not legal and punish it;
and they can discover what ought not to have been legal,
and put an end to it.

Then again, the problem at hand is precisely that the market is not free,
because government has already biased it, with intellectual property.
In no way could Microsoft have done any of the evil things it lives upon
without the backing of government through "intellectual" "property" "laws".
Microsoft IS a racketeer, albeit a legal one.
The ultimate source of their racket is in government-enforced IP laws.
Microsoft has learnt to use government-granted privileges
to maximize its profit to the detriment of society.
Courts cannot and should not punish it, in as much as it abode by law;
but they may and must put an end to further harm by intellectual property.

Microsoft IS evil incarnate; it shamelessly use flaws in the legal system
so as to impose a ruthless racket upon society, without the least scruple.
Should lightning strike the scum who make Microsoft what it is,
and who make what they are all the other racketeering IP monopolists,
the world would be better off.
But law CANNOT and MUST NOT punish immoral behavior;
morality is outside of its scope.
It can and must only punish unfair behavior;
its scope is justice.
It is wrong to convict Microsoft for being the racket it is,
because this racket is not based on breaking any law;
well, Microsoft did, at times, break law, and should be punished accordingly;
but its core business,
just like that of other racketeering software publishers,
is not based on breaking laws, but on taking advantage of them.
If anyone or anything must be condemned (and I think they must),
it is the protectionist IP laws that are a threat to liberty,
and a permanent source of iniquity throughout the world;
it is the politicians who vote, continually confirm and extend, IP laws;
it is the lobbyists who have these politicians
vote such laws against man and nature so as to plunder society
(if Microsoft is among these stinking lobbyists, as I believe they are,
it is for this crime against mankind that it should be punished,
not for their legal activities that benefit from these iniquitous laws).

Government created the mess;
it is utterly hypocritical or completely misled
to ask that government do nothing about the mess it created.
Of _course_, the solution is _not_ for the government to try,
as it is trying to do with Microsoft (splitting it up),
to solve case by case the injustice it encouraged
when it grew obviously out of hand.
Such "solution" is but fighting injustice with even more injustice;
the result of such a solution is only an overall increase of injustice.
The only solution is to stop governmental intervention;
it is to end this whole intellectual property madness;
it is to stop supporting any claim of copyright, patent, trademark,
and any kind of exclusivity.

Note that I do not reject everything about
what people falsely pretend that "intellectual property" covers.
For instance, I do think that authors _should_ be properly acknowledged;
not because they "own" their works,
but because the _consumers_ ought
not to be cheated about what they are provided;
this acknowledgement is not in any way a right of the author;
it is a right of the public;
it does not in any way grant the author
any "control" on what is done with his works.
Similarly, I do think that some limited trademarks
can be usefully enforced,
not because they constitute intellectual property on words and drawings,
but because they are a means for the _consumers_
to unambiguously identify their suppliers and not be cheated;
so as to prevent abuse, trademarks must contain no less syllables
than would safely allow everyone to equally identify one's products
with a same-sized trademark.
It is not a "right" of corporations, it is a right of the public.

Thank you Frank for giving me the opportunity to develop my position.
Thank you readers for your attention.

Yours freely,

[ François-René ÐVB Rideau | Reflection&Cybernethics | ]
[  TUNES project for a Free Reflective Computing System  |  ]
Free Market is not the end of every large-scale economical problem;
but it's the beginning to any long-term solution to anyone of them.

Free Software is not the end of every large-scale software problem;
but it's the beginning to any long-term solution to anyone of them.

Freedom is not the end of every large-scale problem;
but it's the beginning to any long-term solution to anyone of them.