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The Myth that Patents are a Monopoly


The Myth that Patents are a Monopoly
This+article+explains+why+patents+are+not+monopolies.++

A patent gives the holder the right to exclude others from making, using or selling the invention.  35 USC 154.  It does not give the holder the right to make, use or sell their invention.  A monopoly is an exclusive right to a market, such as an electric utility company.  An electric utility company has the exclusive right to sell electricity in a certain territory.  Since a patent does not even give the holder the right to sell their invention, let alone an exclusive right to a market, it is clearly not a monopoly.

When a person describes a patent as a monopoly to be consistent they should also state that they have a monopoly over their car or over their house.  In fact, they have more rights in their car and house than a patent gives the inventor over their invention, since you have a right to use and sell your car or house.  A patent does not give these rights to an inventor over his invention.  All invention are built upon existing elements (conservation of matter) and if the elements that the invention uses are patented, then the inventor will not have the right to sell their invention without a license.

Some economists argue that a patent is designed to give the holder monopoly power.  Those economists who are consistent also state that all property rights give some monopoly power.  The property rights are monopolies thesis shows how confused economic thought is on this subject.  The only logically consistent definition of a monopoly is an exclusive right to a market.

According to Wikipedia “In economics, a government-granted monopoly (also called a “de jure monopoly”) is a form of coercive monopoly by which a government grants exclusive privilege to a private individual or firm to be the sole provider of a good or service; potential competitors are excluded from the market by law, regulation, or other mechanisms of government enforcement.”  Since patents are clearly “government granted”, then this is the appropriate definition.  Since a patent does not even provide the holder the right to sell their invention, it clearly does not grant an exclusive privilege to a firm to be the sole provider of a good or service.

There is a lot of nonsense in the economic profession about monopolies.  Even the definition above can lead to nonsense.  For instance, according to Locke’s Natural Rights theory you own yourself so you own the product of your labor, both mental and physical.  This means anything you produce you have the exclusive right to make and sell, does this make you a monopolist?

The historical basis for monopolies is the Statute of Monopolies of 1623 in England.  The Statute of Monopolies prohibited the Crown from issuing monopolies for items that were already known or being produced.  The idea was to protect the Natural Rights of Englishmen to practice their craft, in today’s language the government in issuing a monopoly was interfering with private citizens rights to their property.  However, the Statute did not prevent an exclusive grant for inventions.  The reason for this in the words of the day was an invention did not interfere or take away anything from private citizens.  The invention did not exist before it was invented, so it does not take away anything from private citizens to provide a limited term property right to the inventor.

Modern antitrust law has turned the concept of monopolies on their head.  Instead of being a limitation on government power, like the Statute of Monopolies, it is a limitation on private action.  Instead of protecting people’s rights to their property, like the Statute of Monopolies, it limits or takes away private property.  The only logically consistent definition of a monopoly is an exclusive right to a market.  No property right, gives you an exclusive right to a market.  Market success is not an exclusive right to a market.  Only the government can create a monopoly.

People who suggest a patent is a monopoly are not being intellectually honest and perpetuating a myth to advance a political agenda.




59 Comments

  1. Theory yes. Real world implementation is.

    2 people go up to buy a patent. First person is my friend so I give him the patent usage rights for nothing. Tell my friend to tell no one about this agreement. Next person I hate so I charge a lot of money to use the patent.

    There is no regulations requirements to tell anyone what these deals were. So using patent to create a monopoly happens because of theses stealth actions out of site of competition regulators.

    You don’t need the right to exclusive right to a market to make a monopoly. You just need the means to make it unfair so everyone else competing is over priced compared to the one you want to live.

    Give it enough to your competition will die so giving you the monopoly you always wanted.

    Minor alteration to patent law requiring all patent deals to be released publicly and regulators able to investigate unfair dealings would cure this problem. Its not like patents are top secret documents. So why do the sales of patents have to be top secret.

    Patent system was never designed to operate with top secret sales of patents. It was thought when it was invented that no one would do this. So it pure abuse of the patent system.

  2. Actually, you are incorrect in your assertion that there is no protection for the two separate people that bought rights to your patent. The patent office has a recordation system for changes in titles and licenses of patents. This recordation system is similar to that found with titles to real property. So if the first buyer of your patent records the assignment (sales contract), the second buyer will have notice of the change in ownership if they perform a search of the recordation database.

  3. “Since a patent does not even given the holder the right to sell their invention, let alone an exclusive right to a market, it is clearly not a monopoly. ” That is implied just like how unless otherwise stated, you can sell any private property. 2+2 does not equal 3.

  4. Joe, it is not implied, its a statement of law. This is not the same as real property, which gives you the right to use your property. For instance, if I invent a new cellular telephone that uses a microprocess and there is a patent on the microprocessor, I do not have a right to make or use my invention (telephone). In order to make or use my cellular telephone I have to obtain a license, which may be obtained by purchasing the microprocessor from its inventor.

    If I own a car I have a right to use it. This is not the same situation at all. Regardless, property rights are not a monopoly.

  5. What is the real difference in between right to exclude and monopoly? What makes not including right to use in monopolies inconsistent?

    Then let’s just call it “de facto monopoly” instead, since it’s not an actual monopoly according to you, but still have exactly the same effect – the ability to force your competitors out of business and counter-suing those who patented sub-parts of what you’ve patented, putting them out of business too if you are bigger.

  6. Nathan,

    Since a patent does not give you the right to make or sell your invention, it cannot be a monopoly. A goverment granted monopoly is the exclusive right to sell a good. A patent is a property right not a monopoly.

  7. It’s still *exactly that effect that it has*.

    I guess we have to “agree to disagree” (you won’t ever change your definition, we will never change our definition).

  8. No it does not. There are hundreds or thousands of patents on microprocessors and yet there are several producers of microprocessors. There are thousands of patents on cellular telephones and there are numerous producers of cell phones. There are hundreds if not thousands of other examples. The effect of patents is not to create monopolies in any sense of the word.

  9. That’s because those patents either aren’t too broad (unlike that video streaming patent), they are being licensed out (such as in patent pools, which most big companies use) or they aren’t used to sue others.

    But those who wish could easily force their competition out of business.

  10. Nathan, that is not true. The patents are not broad because of the prior art, which is how patents work. Patents can only exclude people from making something that did not exist before. So in no sense is anyone precluded from business they were already conducting. In addition, remember that patents only last 20 years from the date of filing. Since it now takes 4-8 years to obtain a patent this only excludes people from using another’s invention for a very short period of time.

  11. But what about that video streaming patent?

    http://w2.eff.org/patent/wanted/patent.php?p=acacia

    http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=/netahtml/PTO/srchnum.htm&r=1&f=G&l=50&s1=5,132,992.PN.&OS=PN/5,132,992&RS=PN/5,132,992

    BTW: What about business you’re about to conduct? You know as well as I that companies often compete in finding the solution to a certain problem. The loser often goes bancrupt, even though their solution might be better.

    “Only” 20 years is not so little.

    “Since it now takes 4-8 years to obtain a patent this only excludes people from using another’s invention for a very short period of time.”
    Which itself is bad, since I can start a project now and get sued in 7 years.

  12. Nathan,

    Do not confuse property rights with monopolies. Property rights give you the right to exclude others (trespass) and in the case of real property rights to occupy, improve, etc. Just because you want to build a shopping mall where my property is does not mean that I have a monopoly over my land.

    In the case of the video streaming patent, people who want to use the patent can either pay a royalty or they can find a design around to the patent. There are numerous ways to stream video. So creating a design around is definitely feasible. Of course, it might be inconvenient to not use the video streaming patent in which case you have decided it is better to pay for the patented technology than design around the patent. This is no different than the case of the shopping mall developer. If he really wants to build a mall where my property is, then he has to pay me enough to make it worth my while to move or build the mall elsewhere.

    Simultaneous invention: It is very rare that two people given the same problem come up with the same solution (invention) or even necessarily overlapping solutions. Most of these cases are purposeful ignorance of other people’s rights. Many companies have a policy of not determining if they are likely to infringe someone else’s patent. I see no reason to excuse other people’s negligence

  13. That patent covers sending media from a source to a reciever that can do what a VCR can do. Exactly that.
    How do you desing around THAT!?

    Building a mall on your land makes it impossible for you to us it. Using the same idaes as you doesn’t. It’s more like those people in the 50′s that tried to ban airplanes from flying over their land since they were trespassing…

    http://cm.bell-labs.com/who/ken/trust.html
    “That brings me to Dennis Ritchie. Our collaboration has been a thing of beauty. In the ten years that we have worked together, I can recall only one case of miscoordination of work. On that occasion, I discovered that we both had written the same 20-line assembly language program. I compared the sources and was astounded to find that they matched character-for-character. The result of our work together has been far greater than the work that we each contributed.”

    Now, what was that?

    There’s also more plenty of matematical laws that was named after somebody that discovered it years (decades/centuries) after the initial discoverer, but neither the first person OR HIS WORK was known to the public when teh law was named.
    I can give you examples on request.

  14. Nathan,

    Here is claim 1 of the patent you are concerned about.

    1. A transmission system for providing information to be transmitted to remote locations, the transmission system comprising:

    library means for storing items containing information; identification encoding means for retrieving the information in the items from the library means and for assigning a unique identification code to the retrieved information;

    conversion means, coupled to the identification encoding means, for placing the retrieved information into a predetermined format as formatted data;

    ordering means, coupled to the conversion means, for placing the formatted data into a sequence of addressable data blocks;

    compression means, coupled to the ordering means, for compressing the formatted and sequenced data blocks;

    compressed data storing means, coupled to the data compression means, for storing as files the compressed, sequenced data blocks received from the data compression means with the unique identification code assigned by the identification encoding means; and

    transmitter means, coupled to the compressed data storing means, for sending at least a portion of one of the files to one of the remote locations.

    The fact that the claim uses “means for” language is very limiting. I believe it would be easy to avoid several parts of this claim including the “compressing means”. There are many compression schemes. I do not have the time to analyze this in detail. However, if I had a client who wanted to really get around this patent I would put money on us coming up with a design around in under a week.

  15. I can’t figure out how to understand that in any other way then that OGG/Theora-encoded videos on a server would be covered when using them with the HTML5 video tag, and keeping several videos listed in any kind of library like system (I guess a normal file system is enough).
    I doubt it would be enough with a week to get around.

    BTW: If you checked the EFF link, it looks like they got it invalidated.

  16. (Hmm, bad grammar. Meant to say that it would be covered as well)

  17. Nathan, you would have to understand the claims in detail before you attempted to design around the patent. Since this is real work which I normally get paid to undertake, I am unwilling at this point to do so.

    I enjoyed the conversation.

  18. [...] Rights. This is completely consistent with patents.  For more information, please refer to, The Myth that Patents are a Monopoly: and Scarcity – Does it Prove Intellectual Property is Unjustified? .  The Court would be wise [...]

  19. [...] 9) The book also mistakenly calls a patent a “temporary monopoly.”  A patent is a property right, just like property rights in land, houses, cars, etc.  The logical basis for patents is exactly the same as other property rights.  Property rights are based on Natural Rights, which states that since you own yourself you own the product of your labor (physical and mental).  For more information see The Myth that Patents are Monopolies. [...]

  20. [...] a product or service.  A patent does not give the holder this right.[1] For more information see The Myth that Patents are Monopoly. The concept of economic rent is a more useful concept than monopoly for analyzing patent law. In [...]

  21. Dale – I see the larger point you are going for, but I think that you are presenting it a bit incorrectly. As you state, patents are exclusionary rights; they confer only a right to exclude, rather than rights to make, use, and sell. Many people misunderstand that and assume that a patent awards the patent owner the right to go out and practice the invention.

    However, I think your argument that patents are not a monopoly trades persuasiveness for hyper-technicality. From where does your definition of a monopoly come? I would establish what a monopoly is before arguing what a patent isn’t. And I think it is hard to define a monopoly, formally. Sections I and II of the Sherman Act don’t even use the word “monopoly” as a noun. Your definition of a monopoly carries the “exclusive” term, which conflates a bit with the patent definition: a patent is an exclusive right to make, use, and sell….. These two definitions become very similar, and I don’t see how your argument separates them.

    In the end, it seems to me that you aren’t arguing that a patent is not a monopoly, but that the definition of “monopoly” that you initially propose is not correct. And really, if you are right, what is the harm?

    Thanks – Tom

  22. Hi Tom,

    The definition I use for a monopoly is from Wikipedia. Those economists who use the phrase “monopoly power” have to admit that every property right confers some monopoly power. This leads to the nonsense that every property right is a monopoly.

    Historically the concept of monopoly comes from England’s Statute of Monopolies. This statue limited government power, but did not limit private property rights. Patents are private property rights. The statute 35 U.S.C. 261 states patents have the attributes of personal property. The system of recording patents, the ability to license and assign patents, and the nonpolitical process or granting patent rights are the attributes of property. Monopolies (as defined in the Statue of Monopolies) are issued by politicians for markets, not specific embodiments of products. There is no such thing as designing around a monopoly. The Sherman Antitrust Act turned the whole concept of monopolies on its head. The Sherman Antitrust Act limits the ability of private citizens to use private property. This is the exact opposite of the Statute of Monopolies which limited government’s (the crown) power.

    If you use the political language of “monopoly power”, you end up in the absurd situation of suggesting that all private property is monopoly power. I reject this as illogical position as an attempt to destroy private property by Marxists.

  23. “If you use the political language of “monopoly power”, you end up in the absurd situation of suggesting that all private property is monopoly power. I reject this as illogical position as an attempt to destroy private property by Marxists.”

    Do you mind if I reject your position as an illogical position by neocapitalists to destroy innovation and freedom?
    Because that’s how I percieve it.

    Patent are only property as long as the humans’ law says it’s so, and it’s all about semantics. In fact, you have to define what you mean by property first as well.

    I think that the only fair description of patents and the like is “exclusivity priviligies”, and that they never shall be treated as property.
    Only something temporary to make it possible for somebody who came up with a great new idea to finance coming up with more great new ideas, for the benefit of the society.

    But patents just don’t work that way in real life.

  24. Natanael L

    You entitled to you own opinion, but you not entitled to your own facts. All property is a government enforced right to exclude others. All property rights are based the Natural Right that you own yourself so you own product of your labor both mental and physical. Patents just recognize this right, which is why patents and copyrights are defined as “rights” in the US constitution, Article 1, Section 8, Clause 8.

  25. The Vatican has a law that says that the pope is infallible (perfect, can’t be wrong). Is he? The law says so!

    Whatever you call it, patents and property are human constructs, not something inherent in nature.
    It is however logical and reasonable that I can, as example, keep what I have made with my own hands and not have it taken away from me, such as if I make a tool to cut wood, and then build something with the wood.

    To restrict the free use of ideas, such as mimicking how somebody else is using their tools, and say that it’s a natural right to do so is stupid (among other very bad things).

    The idea of property is based on the fact that we would be worse of if you could not keep what you have earned fairly by working because somebody who is stronger wants it.

    Far from all property laws are based on this – copyright is rather based on giving authors an *incentive to create more*, while patents are made to give the same incentive as well as to finance further innovation.

    I’d like to repeat your own first sentence, “You entitled to you own opinion, but you not entitled to your own facts”.

    Whoever that has defined patents as “rights” used the wrong word and bad logic, and that is my opinion. It seems like there are no “objective fact” about who of us is right on this particular fact, and I’d love to see you try to prove otherwise.

  26. Nataneal L,

    It was the US founding fathers the word “right” when speaking of patents and copyrights. You are objectively wrong that copyright are based on some societal reward system.

    The word “right” as used herein has an objective definition and it includes the right to your labor. Stealing other people’s idea is just as immoral as stealing someone car and both involve stealing other people’s labor.

    Law is actually divided into natural law and administrative law. Only administrative law is subjective. It is objective that murder is against the law. The murder objectively does not have a greater right to the victim’s life than the victim. And you objectively do not have the right to steal other people’s ideas.

  27. Interesting discussion here. Dale, would you provide a reference for your definition of monopoly?

  28. Jason,

    From Wikipedia “In economics, a government-granted monopoly (also called a “de jure monopoly”) is a form of coercive monopoly by which a government grants exclusive privilege to a private individual or firm to be the sole provider of a good or service; potential competitors are excluded from the market by law, regulation, or other mechanisms of government enforcement.” http://en.wikipedia.org/wiki/Government-granted_monopoly

    A patent does not exclude competitors from a market, it does not even allow the patent holder to make or sell a product embodying their invention. It is important to distinguish a property right, which in a civil society is a right to exclude and is enforceable at law if the right is not respected, from a monopoly. A property right is earned by a person’s labor (mental or physical) a monopoly is earned by a company’s (person’s) political connections.

  29. Ridiculous. That the founders of the country said so doesn’t make it natural law. If you thought that was the criteria, you’re just too stupid for me to keep talking to you.
    Want proof that copyright and patents as-is today ONLY are based on societal reward?

    “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”

    “To promote the progress” is the reason WHY, and rewarding the authors and creators are the HOW. Or at least that is how it was back then. And the progress is the progress of society, not the bank account balance of the authors and creators.

    Here’s some relevant links:
    http://cyber.law.harvard.edu/property99/history.html
    http://science.thomsonreuters.com/support/patents/patinf/patentfaqs/history/ – See the part about teaching
    http://www.movingtofreedom.org/2006/10/06/thomas-jefferson-on-patents-and-freedom-of-ideas/ <– READ THIS

    The word "right" as used herein are abused, and is wrong. Right to labor don't mean right to ban others from mimicing you. Humans invented those kinds of bans during the last couple of hundred years, there's no such thing as a "right" to do that.
    And ideas CAN NOT BE STOLEN! You do NOT loose your idea if somebody copy it, at worst you do not make potential profit you could have gotten by selling it to him. And that is NOT a right, ONLY a legally enforced exclusivity.

    And that last paragraph is a strawman or whatever that arument is called. Here's my counterexample:
    You have no right to murder, and you have no right to lie, so you should go to jail for lying about patents and copyright here.
    Am I right? Unlikely. Is my logic identical to yours? Yes. What does that mean about your argument? Simple – it's unlikely to be right. Either that, or I am likely to be right as well and can (and should) have you sent to jail.

    You also have to justify treating exclusivity over ideas on the same level as the right to live. Why?
    Without a motivation, I can say that I have the right to not see ugly things, and that I have the right to define what's ugly, and so demand that everybody that I don't like move out of the way.

  30. Nathan,

    The word Right in the Constitution means Natural Rights. The Founders writings all have to be viewed through the lens of Natural Rights. The Declaration of Independence recites Natural Rights as the basis of forming a government. The only place that the Constitution mentions a RIGHT is the patent and copyright clause. The preamble does not limit a RIGHT, if it did it would not be a right.

    Ideas certainly can be stolen. What do you think trade secret law is about. No law can force me to disclose my ideas. Trade secrets exist even if the law does not recognize them.

    Just because you are ignorant on the subject of property rights does not mean I have lied. Perhaps you should learn the history and logic of property rights, which include intellectual property rights.

    You clearly do not understand Natural Rights. It is all based on the idea that I own myself. As a result, I own the product of my labor, both mental and physical.

  31. The main argument seems to be that a patent is not a monopoly because it doens’t entail an automatic right to market the invention.
    This reasoning seems somewhat stretched, because once a patentholder has found a way to bring the invention to the market, the patent virtually guarantees a monopoly for his/her invention.

    So yes, a patent is not synonymous with a monopoly, but the net effect of a patentholder marketing his/her product is virtually undistinguishable from a monopoly.

  32. Dirk,

    You are incorrect. A patent does not confer a market on the holder even if he produces a product. You can design around a patent you cannot design around a monopoly. A patent does not meet the definition of a monopoly. It does meet the definition of private property.

  33. First of all, please prove that. Where any one of then say that all their rules are somehow derived from nature and not the slightest bit a “positive law” (as in made by man)?

    https://homes.eff.org/~barlow/EconomyOfIdeas.html – It begins with a quote:
    “If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.”
    –Thomas Jefferson

    http://www.archives.gov/exhibits/charters/declaration_transcript.html
    “We hold these truths to be self-evident”, and nowhere they mention “intellectual property”.

    You: “The only place that the Constitution mentions a RIGHT is the patent and copyright clause”
    http://www.usconstitution.net/const.html
    Search for “right” in there. Either you never read it or you are lying, hoping that I won’t notice.

    Ideas can NOT be stolen. The word “steal” means to take something away. If I copy you, you do NOT loose the idea, thus the idea CAN NOT be stolen. The only thing that you MIGHT loose is THE OPPORTUNITY TO SELL something. Trade secret laws are ONLY around to prevent mass-spying in industries in order to protect investments. Of course they exist without laws protecting them. It don’t make the ideas any more or less of a property then otherwise. Also, if it really is like any other property, how can there be a time limit?

    I understand property rights and so called “intellectual property rights” better then you think. In fact, I happen to know that patents, copyrights and trade marks all have different reasons to exist, which is another reason for why it’s retarded to put them all under the same umbrella, claiming that the three somehow are one.

    You clearly do not understand nature. The only reasonable thing to assume is that I have the right to decide what I do, and that I have the right to do what’s necessary to stay alive, and to achieve that, a concept of ownership and other such rules is necessary to keep a large group of people together in a stable society. The so called “right” to exclude others from mimicing you are not a natural right. For something to be a natural right it MUST be obvious by simple reasoning and must be indisputable.
    The right to life is such a right. Claiming that you have the right to decide the exact terms for others that wish to mimic you in order to make a profit for yourself is not. Nobody needed to claim IP rights on starting controlled fires to be able to survive. All they needed was the fires. And if patents are really that natural, why don’t dolphins or monkeys have them?

    And if it really is a natural right, why didn’t the guys who invented the wheel and discovered how to make fire patent their ideas? Why aren’t there any limit on how to use such things? Because it wasn’t obvious to the people back then “that their rights should be respected” the same way you respect others’ right to live?

    https://secure.wikimedia.org/wikipedia/en/wiki/Natural_and_legal_rights
    “Thomas Hobbes (1588–1679) included a discussion of natural rights in his moral and political philosophy. Hobbes’ conception of natural rights extended from his conception of man in a “state of nature”. Thus he argued that the essential natural (human) right was “to use his own power, as he will himself, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing any thing, which in his own judgement, and Reason, he shall conceive to be the aptest means thereunto.” (Leviathan. 1,XIV)

    According to Hobbes, to deny this right would be absurd, just as it would be absurd to expect that carnivores might reject meat or fish stop swimming. Hobbes sharply distinguished this natural “liberty”, from natural “laws” (obligations), described generally as “a precept, or general rule, found out by reason, by which a man is forbidden to do, that, which is destructive of his life, or taketh away the means of preserving his life; and to omit, that, by which he thinketh it may best be preserved.”"

    “Thomas Paine (1731–1809) further elaborated on natural rights in his influential work Rights of Man (1791), emphasizing that rights cannot be granted by any charter because this would legally imply they can also be revoked and under such circumstances they would be reduced to privileges:
    It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few.”

    “Wallace advocates a social contract, much like Hobbes and Locke, but does not base it on natural rights:
    We are all at a table together, deciding which rules to adopt, free from any vague constraints, half-remembered myths, anonymous patriarchal texts and murky concepts of nature. If I propose something you do not like, tell me why it is not practical, or harms somebody, or is counter to some other useful rule; but don’t tell me it offends the universe.”

    Also, see this: https://secure.wikimedia.org/wikipedia/en/wiki/Thomas_Jefferson#Individual_rights
    “Jefferson’s dedication to “consent of the governed” was so thorough that he believed that individuals could not be morally bound by the actions of preceding generations. This included debts as well as law. He said that “no society can make a perpetual constitution or even a perpetual law. The earth belongs always to the living generation.”"

    This does not work well together with your idea of “having to understand the history of the laws” to understand natural rights, etc. If the human society in 100 years decides to abolish patents and all other “intellectual property”, it has the *RIGHT* to do so. Nobody has a “right” to stop it.

    https://secure.wikimedia.org/wikipedia/en/wiki/Natural_law
    Hobbes’ twelfth law: “Such things as cannot be divided, be enjoyed in common, if it can be; and if the quantity of the thing permit, without stint; otherwise proportionably to the number of them that have right.”

    I can’t see how patents fits with those descriptions. It Just Do No Make Sense. You have failed to explain the WHY. You just keep claiming It Is That Way.

    Pierre Charron in his De la sagesse (1601): “The sign of a natural law must be the universal respect in which it is held, for if there was anything that nature had truly commanded us to do, we would undoubtedly obey it universally: not only would every nation respect it, but every individual. Instead there is nothing in the world that is not subject to contradiction and dispute, nothing that is not rejected, not just by one nation, but by many; equally, there is nothing that is strange and (in the opinion of many) unnatural that is not approved in many countries, and authorized by their customs.”

    You can NOT in ANY way prove that you loose something on me copying you. As said before, you can not prove more then that you are unlikely to later gain a profit on selling the thing to me. You do not loose it, you still have it. And now so do I.
    Unlike a tool that you made yourself that you no longer have id I take it, there is a doubled benefit if I also get to share an idea that you had. There are nothing inherently bad in that, rather the opposite. Therefore there are no obvious justfication for it (the benefit to society based on giving creators an incentive is too abstract in comparison and hard to proove) and thus it can’t be a natural right to patents or copyright.

    I’m not ignorant. If you think I am, then what are you when you don’t even bother to spell my nickname right?
    If you think that I have missed important parts in the history of the laws, then just tell me what. And also, of course, the history should not be some absolute reference to how things should be interpreted. In fact, I think that those who wrote the declaration of independece wasn’t so fond of the idea of letting the history of UK laws define their laws or future…
    Also, see this: https://secure.wikimedia.org/wikipedia/en/wiki/Thomas_Jefferson#Individual_rights
    “Jefferson’s dedication to “consent of the governed” was so thorough that he believed that individuals could not be morally bound by the actions of preceding generations. This included debts as well as law. He said that “no society can make a perpetual constitution or even a perpetual law. The earth belongs always to the living generation.”"

    This does not work very well together with your idea of “having to understand the history of the laws” to understand natural rights, etc. If the human society in 100 years decides to abolish patents and all other “intellectual property”, it has the *RIGHT* to do so. Nobody has a “right” to stop it.

    http://www.open-spaces.com/article-v2n1-loren.php (copyright)
    https://secure.wikimedia.org/wikipedia/en/wiki/Is-ought_problem
    http://www.gnu.org/philosophy/not-ipr.html
    http://www.ditext.com/bentham/bentham.html
    https://secure.wikimedia.org/wikipedia/en/wiki/Animal_rights <– Why don't they have patents? :P

    Oh, and you said that rights can not be limited. You also said that "intellectual property" are rights. But then why are both copyrights and patents time *LIMITED*!? And why do both copyright law and patent law demand an arbitarily chosen minimum level of creativity/expression to be applied to a work?

    —-

    Ok, now I'm not gonna bother replying here again. I think this is enough.

  34. Natanael,

    Animals do not have intellectual property rights in part because they do not invent – this is symptomatic of the illogical line of argument you have presented.

    As for your argument by authority, here are some much more relevant authorities.

    “The condemnation of monopolies ought not to extend to patents, by which the originator of a new process is permitted to enjoy, for a limited period, the exclusive privilege of using his own improvement. This is not making the commodity dearer for his benefit, but merely postponing a part of the increased cheapness (or excellence) which the public owe to the inventor, in order to compensate and reward him for his service.”

    John Stuart Mill, “Principles of Political Economy,” 1848

    “The dawn of the right of inventors has been actually [contemporaneous] with the destruction of monopolies odious to the common justice of men; and the common sense of mankind has marked a distinction between such monopolies and the exclusive rights conceded to inventors. Their rights, under patents, are called ‘monopolies’ only from the poverty of language, which has failed to express in words a distinction which no less clearly exists.”

    Louis Wolowski, Chair of Industrial Economics, Conservatoire des Arts et Métiers, 1864

    “How can the exclusive right of an invention be compared with a monopoly in trade? How can the exclusive privilege to sell salt in Elizabeth’s time, which added not one bushel to the production, but which enriched the monopolist and robbed the community, and the exclusive right of Whitney to his cotton gin, which has added hundreds of millions to the products and exports of the country, be both branded, with equal justice, with the odious name of monopoly?”

    Jefferson was not the only founding father and he was not alway correct – see his ideas on the French revolution. It was the US founding fathers the word “right” when speaking of patents and copyrights. You are objectively wrong that copyright are based on some societal reward system. The word “right” as used herein has an objective definition and it includes the right to your labor. Stealing other people’s idea is just as immoral as stealing someone car and both involve stealing other people’s labor.

  35. Couldn’t be written any superior. Reading this post reminds me of my old room mate! He always kept talking about this. I will forward this article to him. Fairly sure he will have a good read. Thanks for sharing!

  36. Late reply, I know, but:

    “Animals do not have intellectual property rights in part because they do not invent – this is symptomatic of the illogical line of argument you have presented. ”
    I don’t see how that is relevant. So intellectual property was already a natural law before humans existed, but just became relevant once we were here? Is that what you are saying? And don’t say that animals don’t invent, there are animals who use tools on purpose (in particular, squids are pretty clever).

    So, your quote of John Stuart Mill is merely about not taking away patents because of the reward and incentives. Since patents NOT are the only possible solution, it does NOT follow that patents are a natural right (and it would not follow even if it were the only solution).

    The quote from Louis Wolowski is about semantics. I’d still like to call them “exclusivity priviiligies”, and that they are.

    The last quote (from Jefferson?) is also about semantics. It’s about monopoly being regarded as negative, and he want to use a word that not have a negative value to describe exclusivity.

    “It was the US founding fathers the word “right” when speaking of patents and copyrights.”
    Doesn’t make it an objectively natural right.

    “You are objectively wrong that copyright are based on some societal reward system.”
    You’re the one who are objectively wrong since it did not exist before humans. It is a human idea, created with the intention to give incentivesto authors. Since no incentive is needed but however was wanted, copyright law was created.

    “The word “right” as used herein has an objective definition and it includes the right to your labor.”
    I doubt there can be an objective definition of “right”. Sure, we know what the word “right” means, that definition is objective. But what is a right? THAT definition is not objective. If the whole world agreed there were no right to live, would that be an objective fact that it is so? Not?
    People in USA can’t even agree on if health care is a right or not. We’re talking about the right to not suffer! If people can’t agree that there objectively are such a right, how can you claim that patents and copyrights objectively are natural rights?
    There are no motiviation for why there should be an exclusive right to compositions of words and inventions other then giving an incentive.
    There are no objective motivation for why an action that does not cause you to loose what you have should be illegal.
    There are just theories about how people and societies work and goals that people want to achieve, and innovation is one of the goals and patents and copyrights are one of the means to get there.

    “Stealing other people’s idea is just as immoral as stealing someone car and both involve stealing other people’s labor.”
    Yeah, but nobody is cracking open any authors’ or inventors’ skulls to remove their ideas from them, so no need to worry. COPYING ideas is however something different.
    If I copy your idea you have lost nothing. Even copyright law and patent law agree, neither protect ideas. They “protect” (make exclusive) the act of putting them in practice. They let you keep manifestations of them exclusive.
    But the ideas are still unprotected.

  37. Nathan,

    You do not understand the definition of the words “rights” and “objective”. For instance, you do not understand the basic logical proposition that what is objectively true is not dependent on what the majority believes. If everyone believes the world is flat that does not make it flat. This is not Alice in Wonderland, words have meanings.

    You do not understand that a right is the morally justified ability to undertake an action. You have a right to your life, so you have the right to take actions necessary to undertake those actions as long as you do not interfere with another person’s rights. You cannot have a right to someone else’s effort, such as a right to health care. That would be the right to enslave other people.

    Only people can have rights, because they are rational beings. It makes no sense to suggest an animal has a right to anything.

    All property rights, like patents and copyrights, are the acknowledgement by the law that you are the creator (or you acquired rights from the creator). Logically, if you are the creator you are the owner. It is a matter of property rights, not a matter of encouraging innovation. Encouraging innovation is a result of a proper property rights system.

    When you copy someone’s work without paying them you have stolen the market for their invention or book from them. You did not create the market and you did not create the writing or invention, you a free loader like every other common thief.

  38. “For instance, you do not understand the basic logical proposition that what is objectively true is not dependent on what the majority believes. If everyone believes the world is flat that does not make it flat. This is not Alice in Wonderland, words have meanings.”

    So what are you arguing against here? Not me. My point was not that logic depends on the situation, my point is that *what’s considered a right* depends on the situation. The word “right” has a definition. But since no two countries have the same definition of it in their laws, it’s obvious that *what* is a right can be logically deduced. If that can not be logically deduced, it can not be objective since it’s only up to opinions.

    That goes for patents and copyrights too. They are not natural, objective rights – they are created by humans.

    “the morally justified ability to undertake an action”
    Copyrights and patents allow the owners to *prevent others* to take some actions. It does not give them the ability to take ANY other new actions. They do not become more able to use the thing they made then they would be without them.
    At most they make funding easier, but that’s an *effect of it*, not something that *only* are enabled because of them.
    Also, moral is subjective.

    “you have the right to take actions necessary to undertake those actions as long as you do not interfere with another person’s rights.”
    So if I in my own home downloads a copy of a movie I do not interfere with anyone. Why is it prohibited anyway?

    “You cannot have a right to someone else’s effort, such as a right to health care. That would be the right to enslave other people.”
    Well, the right to live requires at least a legal system with judges, etc, funded by taxes. Otherwise it just won’t work. Relying on people to use guns for self defense to protect their right to live would have the same effect as not having any law at all.
    So if we’re willing to give up some effort to make society work, where’s the limits? Of course they’re not objective, it’s all about what we prefer. Preference is not (inherently) objective.

    “Only people can have rights, because they are rational beings. It makes no sense to suggest an animal has a right to anything.”
    That implies that animal cruelty isn’t possible since they can’t understand that they are being hurt. That implies that animals don’t have the right to live or anything else.

    “All property rights, like patents and copyrights, are the acknowledgement by the law that you are the creator (or you acquired rights from the creator). Logically, if you are the creator you are the owner. It is a matter of property rights, not a matter of encouraging innovation. Encouraging innovation is a result of a proper property rights system. ”
    Well, then why all these limits? Why a 20 year limit on patents? Why can’t I protect words I made up? Why can’t i protect ideas themselves, only compositions that include them?
    Why is the law so arbitary if there’s fixed, clear, sound and objective logic behind it?

    “When you copy someone’s work without paying them you have stolen the market for their invention or book from them.”
    … except for in the not so rare cases where people download something to see if it’s good because all the trailers always lies and then pays for what they like. Did you know that the biggest pirates ALSO are those who pay the most for music?

    “You did not create the market and you did not create the writing or invention, you a free loader like every other common thief.”
    I’d rather call he who thinks all he has to do is to write some words on a paper and then live on others that are trying to make a living, for the rest of his life, for a thief.

  39. Owning exclusive rights to an idea is inherently contradictory with the idea that everyone owns the fruits of their own labor.

    What happens when someone discovers the same idea, completely independent of you, putting in the same work to discover it as you? Does he not own the product of his own hands and mind?

    It has happened before,
    https://en.wikipedia.org/wiki/Shadow_volume#Regarding_depth-fail_patents

    What John Carmack (the guy who rediscovered the shadow-volume depth-fail algorithm) personally has to say about it.

    “The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying.”

  40. The evidence does not support your point of view. The fact is that ownership of inventions is likely the key that allowed people to escape the Malthusian Trap. The fact is that the wealthiest, healthiest, freest, most inventive countries have the strongest patent laws. Please provide some real facts next time you decide to comment

  41. Dale,

    What are you trying to do?
    Drive away dissenting comments?
    What about the 1st Amendment and its encouragement of open debate?

    Erik above holds onto a popular sentiment.
    It should be addressed rather than dismissed.

    (I’ll try to do that later as time does not permit at this instant)

  42. Dale:

    The evidence does not support what exactly?

    That this indicident occurred, or that this kind of incident can occur?

    I think that as long as it is naturally possible, it is important to consider.

  43. @Erik,

    Now with a little more time in my hands, let me explain.

    I respectfully disagree with Dale’s narrative about the US patent system having been set up to protect the “natural” property right of him or her who is “first” to invent.

    The Framers of the US Constitution were followers of the scientific Enlightenment movement. They understood that people would naturally keep inventing, albeit at a relatively leisurely pace.

    They also understood that they were in a technology arms race with Britain and others of the then extant powers.

    So in order to speed up the inventing process in the new United States (the 13 colonies), they devised a winner-take-all race system.

    The idea was that if inventors knew they were running within a winner-take-all race, each would quicken his pace.

    That is why the US Constitution says, to “promote” [to hasten, to speed up] the progress of science and the useful arts.

    Being “first” to invent was understood to be insufficient for winning the race. One also had to complete the race and cross the finish line by filing a dis-closure in the form of a specification that teaches others how to make and use the invention.

    The enlightened Framers of the Constitution were followers of Sir Isaac Newton’s observation regarding having seen farther because he stood on the shoulders of others who had contributed before hand such that he (Newton) started his quests while “standing on the shoulders of giants”.

    So those are the two main features of the US patent system: disclosure and a winner-takes-all race.

    There was never a notion that he who is merely “first” to invent but does not disclose has exclusive rights in his invention.

    Hope that puts things into proper light. :-)

  44. step back: Thank you for the clarification

    Requiring a public disclosure afterwards does not change the fact that it is morally wrong (i.e. it is initialization of coercive force without any natural or moral justification).

    Not only is such a system unjustified morally, it is unjustified economically.

    Any benefit that comes to the patent owner from such a system comes at the detriment of other people. The only reason a consumer would pay for a service other than the patent holder is if the competitor provided a cheaper or better service (i.e. they are more productive). With patents in place, each positive effect as a result is met with exactly double the negative effect on productive competitors and consumers who are forced to pay for the monopoly rent to the inventor and lost productivity.

  45. Erik,

    The facts do not support your point of view. If you are going to comment please provide facts. For instance, a macroeconomic study showing that patents reduces growth rates .

    Your sense of morality is skewed. You clearly think it is okay to steal the product of other people’s work. Puts you in league with most third world dictators and socialist.

    In fact you position is completely consistent with Marx’s labor theory of value. If this theory is right, then we should not pay college professors, doctors, engineers, lawyers – they don’t own that information, having to pay for it is immoral – at least in the case of inventors they actually produced the information. Thanks for spouting off the failed marxist ideology that is becoming so dominate in the US.

  46. I do not at all think it is okay to steal other people’s work. My only objection in this regard is that patents allow you to completely cross off certain ideas from being the work of other people. This is [especially] a problem in the case that someone else performs the same work as you at the same time or before, and the government decides that his work is no longer usable.

    What do you say about the instance I brought up? As far as I am aware, it is legitimate. (I can expand on this if necessary)

    I’m not really aware of this labor theory you bring up, but I’m not sure what point you’re trying to make with it. Doctors can charge for their expertise, combined with their experience and knowledge. They are still allowed to charge what they want, even if it was immoral. The difference between the immorality of patents, and the immorality of selling knowledge (if it is indeed immoral), is that one is government enforced coercion, and the other is not enforced at all.

    And as far as I know, most medical knowledge is freely available in other places (internet, libraries, etc.), unless otherwise encumbered by patents.

    There seem to be a couple studies that might support my position, but I am too busy right now to give them the time they need, so I won’t link to them for now.

  47. I just wanted to add that I really appreciate the discussion and that you are willing to take time to respond to my posts.

    I wish we could have this discussion in person, as it would then become more of a thought exercise in the socratic style, with a quick feedback, and branching off to related ideas more easily (which is what I really hope for in these kinds of discussions in the first place). That doesn’t work online, it tends to devolve into writing large posts in the hope that you will ‘win’ against the other person, and I am perhaps even more guilty of that than you.

    Cheers,

    Erik

  48. Erik & Dale,

    Forgive me, but I am a bit confused by your intermingling of words like “natural” and “moral” and “stealing”.

    People are animals just like all other critters that crawl, hop and trot across the earth.

    In nature, when a more powerful animal (i.e. lion) comes across another (i.e. zebra, but could be another lion, etc.) from whom he can take something of value from the first animal (i.e. food, mates, group leadership) , then usually he takes –and does not “pay” for it because most animals don’t have cash or credit cards. That is nature and its “natural” ways.

    Among human beings, and in order to keep civilization “civilized”, the more powerful impose their will by use of police forces, armies, jails, covert activities, etc. Those in power pass the laws and regulations that suit them and their purposes. Period.

    It has been found that a winner-takes-all kind of race such as that set up by our patent system tends to encourage inventors to come forth and disclose their works. Otherwise most would keep them hidden as trade secrets.

    All this talk about “moral” and “natural rights” makes my head spin.
    What’s love got to do with it? Patents are purely a macro-economical and emotionless policy-implementing procedure.

  49. Step back,

    You have a problem confusing what is with what should be. Without a standard of what should be you cannot decide if what is – is appropriate. Based on your ‘logic’ what is – is what should be. Thus if most people believe the world is flat, who are you to argue that they are wrong – it is ‘what is’. There is an objective reality separate from you and me and people. That is what all science is based on. There is a science of morality, it is based on ‘what is’ – that humans are animals whose main means of survival is reason (reason is volitional by definition). This is straight forward evolution. Thus there are conditions under which humans live and conditions under which they die. That is why communism, socialism resulted in the deaths of hundreds of millions of people in the last century. Your ‘what is’ anti-intellectualism provides a perfect basis for these purveyors of death to thrive.

  50. Erik,

    Property rights are not enforced by government coercion. If you take my property – you have initiated force. This is the same if you steal my apple from orchard as you steal my invention or my song. Note if I steal your property by placing a fake deed to my property with the recorders office – who initiated force when you file a lawsuit against me. You clearly have not thought through what property rights are, how they are created, and who is initiating force.

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