Boldrin and Levine have published THE BOOK

David Levine has announced that the long-awaited book Against Intellectual Monopoly, co-authored by Michele Boldrin and him, is now out, though it's not yet being shipped by Amazon, to which I can attest, having pre-ordered it a week ago. I read the early version last year and loved it.

Boldrin and Levine write in their blurb,

"Intellectual property" - patents and copyrights - have become controversial. We witness teenagers being sued for "pirating" music - and we observe AIDS patients in Africa dying due to lack of ability to pay for drugs that are high priced to satisfy patent holders. Are patents and copyrights essential to thriving creation and innovation - do we need them so that we all may enjoy fine music and good health? Across time and space the resounding answer is: No. So-called intellectual property is in fact an "intellectual monopoly" that hinders rather than helps the competitive free market regime that has delivered wealth and innovation to our doorsteps. This book has broad coverage of both copyrights and patents and is designed for a general audience, focusing on simple examples. The authors conclude that the only sensible policy to follow is to eliminate the patents and copyright systems as they currently exist.

Tonight after adding a Facebook "Pieces of Flair" button with the Swedish Pirate Party symbol, I happened to meander over to the US Pirate Party website, which had seen many months of apparent dormancy. I noticed no real activity until tonight. Now it looks like there've been some stirrings behind the scenes, starting with a "constitution" ratifed in Nov 2007. In Jan 2008 reportedly a 527 organization was registered. Tonight, despite periodically checking their main website for signs of life amidst the spam, was the first I became aware of this.

Sadly the positions Boldrin and Levine espouse do not seem to be welcome there, despite my efforts in 2006, making arguments on their wiki to which Levine himself contributed directly, and attending collegially the IRC meetings until the quorum flickered out. Judging from what I saw tonight on the wiki and the constitution, upon which more than a comment is due, the US Pirate Party now treats abolitionists as personae non gratae. On both patents and copyrights, the US Pirate Party 527 organization now is strictly reformist. This is odd since the Swedish Pirate Party calls for the abolition of patents. This fork did not need to happen. What to call the pirates who aren't "pirates"?

I'm looking forward to reading Boldrin and Levine's book just so that I know I'm not alone in my thoughts and imagination as a free pirate.

Update (Jul 13, 2008): Here's a quote from Boldrin and Levine's Jan 2, 2008, online edition of Against Intellectual Monopoly, showing their abolitionist stripes,

Once the lobbyist's nose is inside the tent, the entire lobby is sure to follow, and we will once again be faced with a broken patent system and absurdly long copyright terms. To secure our prosperity and freedom we must abolish intellectual monopoly from the tent entirely. (p. 300)

Update (Jul 13, 2008, 10:52 pm Central): I just noticed on the US Pirate Party wiki, which has been damaged by spam—the footnotes are now missing (here they are in a well-formatted copy of the original)—, that one prominent member, Ray Jenson, Operations Officer of the Pirate Party of the United States, wrote this response to an argument made by David Levine,

There is no evidence that copyright serves to increase new creations??? You're obviously not a student of history.

This was Jenson's full response to Levine, as far as I can tell.

Here was David K. Levine's argument,

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, 10 November 2006.

I'm saddened that this Pirate Party organization has now excluded those who advocate abolition of either patents or copyrights from their ranks, as I understand it.

Levine, backing up my argument that the party allow abolitionists to participate as officers and members, wrote,

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 22 November 2006

Why I am an Abolitionist

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

1. ↑ Information Feudalism by Peter Drahos with John Braithwaite


2. ↑ See free entry


3. ↑ See Objective Knowledge by Karl Popper


4. ↑ See also World 3


5. ↑ 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


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


7. ↑ 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.


8. ↑ Restoring the Lost Constitution: The Presumption of Liberty by Randy Barnett (2003) p. 355.


9. ↑ See also Le Droit Naturel: Ses amis et ses ennemis by Patrick Simon (sorry, no English translation yet).


10. ↑ See the PBS movie Commanding Heights

Net Neutrality and the United States Pirate Party

The US Pirate Party has proposed to adopt Net Neutrality as a core issue.

Faction or party?
If this proposal is accepted, the Pirate Party is no longer a party. It becomes a faction.

Why a faction? Because the "solution" abridges our rights to free speech. How's that? Doesn't it do quite the opposite? Doesn't it open up the internet to allow for more free speech? Isn't everyone agreed upon Net Neutrality and how important it is for the future of freedom on the internet?

Freedom of bits
There is another freedom, the freedom of bits. I may accept any bits I want. I may reject any bits I want. I may send out any bits I want. I may pass along any bits I want. This is our right as much as our right to speak freely. In fact, it is a special case of our right to free speech, our right to free discussion, our freedom to listen, and our freedom of the press. Ones and zeroes are the movable type of today's printing presses. And I may have a network which accepts those bits, rejects those bits, and passes those bits along however I choose, in principle.

Please don't misunderstand. I currently believe that an internet that fosters packet neutrality is destined for continued success. How do we handle bandwidth scarcity? I currently agree that paying for bandwidth on the client side is the best way to go. I'd avoid any ISP that would try, after promising too much bandwidth, to remedy its own mistakes by filtering packets based on whether some source had paid extra or not. It's ugly. I expect more from my ISP. That doesn't mean that I would forbid someone from following a different tack. It's important to experiment. I might change my mind. Perhaps there's a novel context down the road where charging the source of data, not the sink, for bandwidth near the sink makes sense. But if some faction comes in and says, "No, there is only one way of doing things, and you may not filter the bits coming through your network in any way," I disagree. If people want to fork the internet, let them fork it. As with an open-source effort, the possibility of forking, ideally rare, fosters a healthy dynamism. There's nothing wrong with defining criteria for a particular standard on this internet or that, but there's a world of difference between social agreement and government diktat.

Noblesse oblige
Lord Tim Berners-Lee says, "What's very important from my point of view is that there is one web," and one ring to rule them all. Will meddlesome regulation lead to capture by the big players? I fear so. My hope lies in technology, decentralization, and competition, not control.

Where a pirate party might focus its attention is on the essentials. While we are distracted, squabbling about Net Neutrality, the government is off auctioning the Wimax spectrum to the big players. It's as if a new Louisiana Purchase has been made, and instead of encouraging millions to homestead the land and thus distributing the land equitably, the government is auctioning it off to the most wealthy and most connected, in huge state-size swathes, and establishing a few lords and ladies, with all the power imbalances that that entails. Let's discuss this as citizens. Why wasn't the spectrum divided up in a more decentralized fashion, perhaps with some element of homesteading? Why did the federal government have to be the sole seller? Do they have the power to do that? Why couldn't citizens themselves have sold it in a variety of ways, some of which might have been guided by a social conscience? Now perhaps we're stuck. And we're stuck, too, with some of the cartelization that may occur because of patent cross-licensing deals. This is some of the nitty-gritty a pirate party might focus on. If Wimax technology is driving the price down to near single digits (8 to 15 dollars) to connect a home in the last mile, let's make sure that there are no artificial barriers to entry put into place, as competition is poised for action. Patent monopoly grants, patent-based cartels, and spectrum homesteading, now there're some essential issues. After all, we pirates do have a history of marauding the radio spectrum :-) One caveat - the issue of property rights in spectrum is not trivial.

A sea of rights
Popular sovereignty is limited by rights, rights so vast we can't write them all down, which is why we have the Ninth Amendment. Government powers are islands in a sea of rights. Our rights are not islands in a sea of government powers. Where is it in the Constitution that we can play the music we like, or go to bed anytime we wish? It's right there in the 9th Amendment. So is my right of free bits. So is my right to freely network. As pirates, let's sail on our sea of rights.

When I first read the Statement of Principles (v. 3.0) of the Swedish Pirate Party, I felt hopeful. When the US Pirate Party website added advocacy of Net Neutrality, I turned disheartened. If this proposal is officially adopted tomorrow, the USPP risks becoming a pirate faction.

---

UPDATE: I'm not the only one to suggest that pirate parties explore the issue of spectrum rights. Over at Pirate Party International, Ole Husgaard of Denmark writes,

I think we have two problems here that it makes sense for pirate parties to speak about.

The first problem is on the allocation of the radio spectrum. Back when we had a read-only culture (ie. running a radio station was expensive) this would make sense. Today a low- or medium-power radio transmitter is so inexpensive that everybody can run a radio station. But the radio spectrum is still administered to ensure that small personal radio stations are not allowed, so this keeps the read-only culture and stops the read-write culture from entering the radio spectrum. And worse: The allocation of the radio spectrum is probably being used to block certain political viewpoints in an undemocratic way.

The other problem is on the receiver side. You have probably all heard the stories about North Korea where you may own a radio receiver, but only if it is locked so that it can only receive the official national radio station. Something similar is about to happen in the west under the disguise of "copyright protection". This is part of the DRM problem, but worse as some forces want to make the sale and possession of non-DRM receiving equipment illegal. For example, see an old article on the "problems" with GNU radio (a universal software radio that can pick up any signal).