The Free Pirate: January 2007

In the debate on how best to cut back the weeds of intellectual monopoly that entwine us, there are reformers, and there are abolitionists. I am an abolitionist.

The fledgling Pirate Party of the United States has not yet decided on its position, whether it is to be a party of reformers, abolitionists, or both.

The debate swirls upon the Pirate Party's "Points of Unity", which are its core principles, few in number, to which all board members of this pirate party must subscribe according to Section 2, Clause a, of the Proposal on Board Members.

On November 6, 2006, I wrote a small objection. The next day this objection was nearly ignored. Heart racing, I rose to defend my position.

[20:43:31] <nbx909> what about this objection
[20:44:06] <Gamer8585> its a radical proposal from the party fringe. I say deny it.
[20:44:46] <nbx909> i motion to dismiss this objection since it doesn't have enough support
[20:44:51] <Anon075> hi, I'm the objector. Actually the Swedish Pirate Party advocates the abolition of patents, too.
[20:44:52] <AdamG> well. How do you deny an objection? Has that happened before?
[20:45:02] <AdamG> Hello Anon075
[20:45:05] <Anon075> Hi
[20:45:07] <nbx909> hello
[20:45:11] <nbx909> good timing
[20:45:16] <AdamG> that's true, PPS does advocate the abolition of patents
[20:45:23] <Anon075> Jefferson advocated it, too
[20:45:24] <AdamG> That doesn't mean they are right
[20:45:33] <AdamG> Doesn't mean he's right either :)
[20:45:51] <Anon075> I may not be right, but should I be excluded?

Since then, the small objection has grown. From small seeds... And now I'm not alone. Prof. David K. Levine has contributed.

This is my objection. This is why I am an abolitionist.

Casey's Objection

My position
I would not be able to agree with the points on patent and copyright, since I favor the abolition of intellectual monopolies. I view the Intellectual Monopoly Clause of the US Constitution as a defect.
...

I'd recommend that the points of unity be agreeable to copyright reformers, copyright abolitionists, patent reformers, and patent abolitionists. Some might actually characterize my position as a copyright reformer instead of as a copyright abolitionist, since I believe in a right to attribution, which could be regulated much like copyright. I do believe copyright and attribution to be distinct, and so consider myself an abolitionist.
...

I urge support for Casey on this point. I've added material below explaining why patent and copyright are an intrinsically bad idea. It is possible to have principled disagreement on this point. I would urge the point of agreement to be that things have gone too far - that is, we agree that improvements need to be made. Does the party need to take a stand also against abolition? Would it not make more sense to be agnostic on this point? There are many of us who support abolition, but we support also sensible changes in existing law.
added by David K. Levine
[Professor of Economics at Washington University]
22 November 2006

Argument against intellectual monopoly
As I wrote on the fly in the IRC meeting (Logs11-07-06) in response to AdamG's question "What's your argument for no IP at all?",

I believe there is a natural right to imitate. That's the deontological reason. Then there is the utilitarian reason that it fosters cartels. Jefferson believed strongly that the general principle of forbidding monopolies was paramount. I could go on. There's also another book called Information Feudalism^[1] that explains how patent and copyright are ways in which this country bullies poor, developing countries.

There are other points I would add, now that time permits.

I also believe there are natural rights to teach and quote. Practically speaking, the right to teach with free, unlimited quotation is one of the most important, essential moves we can make to really help the poor of the world.

Competition is also important to drive a social conscience in companies. Say there's a company, a big company, that caves into China's demands for censorship. People should be able to compete with that company by imitating it in all the dimensions of its business except for the censorship, if they feel strongly about that. In economics, this is called free entry^[2].

In the real world, complex patent thickets have become an obstacle to free entry. Innocence, in principle, should be simple.

Finally, the ultimate goal would be to liberate philosopher Karl Popper's World 3^[3]^[4] and keep it free. Yes, this would be a Third World Liberation Front^[5] :-) This would ensure the most precious natural right we possess, the right to criticize. For those unfamiliar with Popper's idea of objective knowledge, here's a quote^[6],

By "world 1" I mean what is usually called the world of physics, of rocks, and trees and physical fields of forces. By "world 2" I mean the psychological world, the world of feelings of fear and of hope, of dispositions to act, and of all kinds of subjective experiences.

By "world 3" I mean the world of the products of the human mind. Although I include works of art in world 3 and also ethical values and social institutions (and this, one might say, societies), I shall confine myself largely to the world of scientific libraries, to books, to scientific problems, and to theories, including mistaken theories.

Elsewhere, Popper writes^[7],

The evolution of language and, with it, of the world 3 of the products of the human mind allows a further step: the human step. It allows us to dissociate ourselves from our own hypotheses, and to look upon them critically. While an uncritical animal may be eliminated together with its dogmatically held hypotheses, we may formulate our hypotheses, and criticize them. Let our conjectures, our theories, die in our stead! We may still learn to kill our theories instead of killing each other. If natural selection has favored the evolution of the mind for the reason indicated, then it is perhaps more than a utopian dream that one day may see the victory of the attitude (it is the rational or the scientific attitude) of eliminating our theories, our opinions, by rational criticism, instead of eliminating each other.

Perhaps the more we hinder the former, the more we foster the latter. This is one reason it's so important, so imperative to keep World 3 free.

How do people get paid?
I don't know, but as I said in the IRC meeting (Logs11-07-06), "The market has many ways." One person's imagination won't necessarily predict where the marketing people will find a way. Much of it will be by trial and error. But here I go anyway...
In a parallel universe, not far from our own, I go to iTunes and subscribe to the South Park season, much like we can now do for the Colbert Report with a Multi-Pass. Only there's a twist. If there's not enough interest, there's no new South Park season. Does this sound far-fetched? Seems pretty normal to me.

If I may add here. The bottom line is that they do get paid. The situation with patent and copyright is different, and in both cases there are a great many ways of getting paid. The problem is that there is a seemingly compelling theory of why people won't get paid - without IPR no one needs to pay because consumers will prefer to wait until it is available for free rather than pay the creator. There are two defects in this argument, one most relevant to patent, one to copyright. In the case of patent, the argument ignores the property right that exists without IPR, the property right in the first copy. Unless someone pays for the first copy, the innovator has no reason to make known the innovation. The right to go first is extremely valuable in fact. It is easy to debate the theory on either side. But the facts are pretty clear: there is no evidence that patents increase innovation, and plentiful evidence they do not. Two particularly good sources: Lerner's study [1] of 150 years of data on patents and innovation, and the careful study of the software industry by Bessen and Hunt [2] showing that patents reduced rather than increased innovation. Basically, while patents increase the return from innovation, they increase the cost due the need to acquire IPRs in order to innovate. So from a theoretical standpoint, patents can either increase or decrease innovation, depending on which effect dominates. In software it seems it is the latter; in general, it seems that it is something of a wash. It is important here to recognize that in addition to the effect on innovation patents have an impact on the usefulness of innovation. Hence, to justify patents from an economic point of view, not only must they increase innovation, they must increase innovation substantially enough to offset the other costs. The evidence is strong that they do not.

Turning to copyright, there is again no evidence that copyright serves to increase new creations. Simply looking at the time-series of copyright changes against the number of copyrights shows this pretty clearly - see for example my work with Boldrin [3]. The best comparative study is the book by Scherer Quarternotes and Banknotes documenting the fact that copyright had little or no effect on the output of classical music. The best pro-copyright argument is one of "now things are different because the electronic reproduction is so amazingly fast and cheap." This argument also is defective. First, it is the amount you can earn relative to the cost of production that matters - the same technology that makes electronic reproduction so amazingly fast and cheap also makes the cost of production amazingly cheap. Second, it ignores the potential for selling complementary items. The obvious examples are recorded music increases the demand for the creators live performances. So there is a perfectly viable model where recorded music is given away for free as advertising for the expensive concerts where the creator makes his living. The working example of this is the open-source software music, where the software is generally not only free as in freedom, but also free as in beer, with the profit coming from the sale of consulting services.
added by David K. Levine
[Professor of Economics at Washington University],
10 November 2006.

Additional Materials

A summary of the principles of a Free Pirate.
[added by AdamG]
Madison's speech about the Bill of Rights
[added by AdamG]
Against Intellectual Property
[added by AdamG]
Reds with Suits by Randy Barnett, professor of legal theory at Georgetown University. This is a review of Larry Lessig's book Future of Ideas, where Barnett praises his book, while spelling out his differences with him. He writes,
Unfortunately, Lessig is a trimmer when it comes to IP law, not an abolitionist.

Property Rights and Intellectual Monopoly by Michele Boldrin, Professor of Economics at University of Minnesota, and David K. Levine, Professor of Economics at Washington University in St. Louis. They write,
All of this brings us to what intellectual property law is really about - a reality that is simply obscured by analogies to other types of property. What intellectual property law is really about is about your right to control my copy of your idea. ...
It is no coincidence that the battle over intellectual property is so closely tied to debate over freedom and privacy. For you to control my use of my copy of your idea necessarily requires intrusive measures.

Princeton University Press has made available online the introduction to Randy Barnett's book Restoring the Lost Constitution. Natural rights are the measure of the legitimacy of any constitution, and Barnett develops this founding concept beautifully. In his conclusion, Barnett writes^[8],
There are other defects as well.... Congress is given the power to grant authors and inventors limited monopolies on their writings and inventions, which restricts the property rights of others.

Regarding AdamG's question in the IRC meeting, here's an excellent work on how sovereignty is limited by rights^[9], On the Sovereignty of the People by Benjamin Constant (1815).

Tom Palmer, Senior Fellow at the Cato Institute, wrote two papers that question patent and copyright law.
- Are Patents and Copyrights Morally Justified?: The Philosophy of Property Rights and Ideal Objects, Harvard Journal of Law and Public Policy, vol. 13, no. 3 (Summer 1990).
- Intellectual Property: A Non-Posnerian Law and Economics Approach, Hamline Law Review, vol. 12.

Finally, here's a quote from the economist F. A. Hayek (Nobel Prize, 1974), the man I credit with winning the commanding heights^[10] in the war of ideas last century. He writes in 1947,
The problem of the prevention of monopoly and the preservation of competition is raised much more acutely in certain other fields to which the concept of property has been extended only in recent times. I am thinking here of the extension of the concept of property to such rights and privileges as patents for inventions, copyright, trade-marks, and the like. It seems to be beyond doubt that in these fields a slavish application of the concept of property as it has been developed for material things has done a great deal to foster the growth of monopoly and that here drastic reforms may be required if competition is to be made to work. [emphasis added]
- "Free" Enterprise and Competitive Order. In Individualism and Economic Order. University of Chicago Press. pp. 113-114.

...

Notes

↑ Information Feudalism by Peter Drahos with John Braithwaite

↑ See free entry

↑ See Objective Knowledge by Karl Popper

↑ See also World 3

↑ For those of you who didn't grow up in the Bay Area in the 60s, here's an article in Asian Week, Back in the Day by Neela Banerjee

↑ Source: Popper's Theory of Objective Knowledge by Rafe Champion, quoting Popper's essay 'Indeterminism is not enough' in Encounter, April 1973.

↑ Natural Selection and the Emergence of Mind by Karl Popper. In Evolutionary Epistemology, Rationality, and the Sociology of Knowledge, edited by Gerard Radnitzky and W. W. Bartley, III (1987) p. 152.