With this news, I thought I’d propose an alternative anthem:
O Canad-arr!
Our rights and Internet
True law reform of patents we shall get
Through peer to peer we seed and leech,
The bandwidth broad and free
From far and wide,
O Canad-arr, share your files with glee
Courts keep our net neutral and free
O Canad-arr, share your files with glee
O Canad-arr, share your files with glee
I’ve been thinking of externalities and by far the hardest form of an externality example to come up with has to be a “positive production externality”. That is, where the production of a good or service has a beneficial spillover effect for the rest of society’s producers. I came across an older post by Jason Welker where he speaks of the difficulty in providing examples. In that post he quotes economics professor Dr. Tim Haab who had this to say about PPEs:
The problems usually come in defining a positive production externality. A benefit to someone that is not fully captured by the producers–usually difficult because producers are usually pretty funny about finding ways to recover the full benefits of their production.
The case of proprietary software provides evidence for this claim. When proprietary software is published, it uses trade secret, patent and copyright laws to keep other producers from benefiting fully from the spillover. For example, trade secrecy keeps useful source code hidden from 3rd parties. Patent laws can keep 3rd parties from implementing similar ideas in their programs. As well, non-disclosure agreements are used within companies in an attempt to stop any benefit from “leaking” to other producers. Proprietary software production is an allocatively inefficient deployment of resources (historically justified under the fallacy that quality software won’t be written otherwise) and represents a market failure.
In the case of Free software production, the PPE isn’t negated by NDAs and patent thickets. With Free software, all producers are affected by the benefit. Non-copylefted Free software brings the marginal private cost (MPC) curve closer to the marginal social cost (MSC) curve while copylefted Free software aligns the two even closer as producers are unable to prevent others from acquiring the same benefits they received. Therefore, it makes the most sense for government policies to support businesses and other institutions in a way that encourages even more development of Free software.
On a related but unfortunate note, countries like Germany are trying to correct a negative consumption externality of proprietary software. Specifically, the burden of malware. Promoting Free software also tackles this problem as Free software offers users the best defense against malicious code.
Update (Oct.14, 2008): If you make it to the bottom of this post and watch the video, this new post is important.
So I had my IT classes read and paraphrase the following famous quote by Thomas Jefferson that rebukes the claim that ideas be treated as property:
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 every one, 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. […] Inventions then cannot, in nature, be a subject of property.
I then had the class find where in the US constitution a provision is made to establish copyright and patent law. Using a search engine, they quickly came up with the appropriate passage from Article 1, Section 8, Clause 8:
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.
I then asked them to respond to the following question:
Does the clause support or stand in opposition to Jefferson’s argument?
A few struggled with this as the answer appears to be both yes and no. The fact that the constitution establishes “exclusive Right[s]” seems to conflict with Jefferson’s position. Many students immediately saw it this way. My rhetorical follow-up question helped balance their view:
So when you buy a car, how long do you think you should be allowed to keep it?
Our next task is to examine how digital technology and global networks have increased the conflict in an “exclusive Right[s]” environment as compared to our analog past. The plan is to then look at a framework that helps bring 21st-century balance to All Rights Reserved copyright law and find out why many software developers are up in arms over patents.
This unit has been interesting so far. Most students had heard phrases like “intellectual property”, “piracy”, and “stealing” numerous times. In fact, virtually all of them had seen this “educational” video prior to my instruction and held the belief that without All Rights Reserved, artists would not be able to make money. We’ll be examining these phrases and beliefs closely over the coming days.
Keith Johnson on “intellectual property” in comments at Doug Johnson’s blog:
Chilling Effects aims to help you understand the protections that the First Amendment and intellectual property laws give to your online activities.
That is true for trademark law (e.g. as a consumer through the web). And, assuming the existence of fair use doctrine, this is also true for copyright law. Patent law however, has nothing to do with protecting my online activities. This overgeneralization is produced by lumping together insubstantially related laws. As well, the term “property” signals a bias in treating the naturally intangible as somehow tangible.
Hopefully, Keith will consider editing the chillingeffects.org site (the same quote appears there too) to better educate its readers about how copyright law and trademark law can protect you online.
Doug Johnson (in comments):
Peter, I find terms like “stupidity” to be deliberately inflammatory. Let’s try to keep the degree of civility high on the Blue Skunk. I appreciate discussing ideas and sharing different opinions, but in atmosphere of respect.
My response (in comments):
Lumping these laws into an insubstantial aggregate called “intellectual property” is unproductive and misleading. Therefore, as an educator who wants to promote clear thinking and understanding, what would you call doing so?
I have problems explaining to my 9 year old daughter that my not helping her download songs from the Internet is due to ethical issues […]
Michael “explains” to his daughter that apparently, law and ethics are synchronous movements:
I try to explain to her that copyright infringement is a crime, even if everyone does it.
Michael then “explains” the importance of how others may perceive him:
I explain that as a Patent Attorney, I help people protect their intellectual property, so I cannot have illegal software on my computer, including illegal downloads.
First, Michael should ask himself why he has trouble explaining the “ethical” problem of file-sharing. Second, he should cease fearing hypocrisy. After all, what his daughter does is a matter of copyright law, not patent law. Perhaps Michael isn’t seeing this because he’s been blinded by “intellectual property”.
Steve Tobak spreads confusion at C|NET by arguing for “Intellectual Property”. With complete disregard for commercial vs. noncommercial use, Steve states that downloading unauthorized works while criticizing those who sell unauthorized copies is a “double standard”. He then trumpets the virtues of patents in general, while failing to distinguish between software idea patents, patents on tangible objects, or patents on pharmaceutical products designed for healthcare – all of which bring up very different issues. Steve says:
By definition, a patent, a copyright, or a trademark–intellectual property–entitles the owner to reasonable compensation for its use by others. It’s the law.
The word “compensation” implies that whenever you listen to or view a copy, the original author has worked for you and that he should be compensated accordingly. This absurdly puts listening and viewing copies on par with situations resembling a live performance. However, if one were to manufacture then sell a similar but patented toy or sell a product using another’s trademark, “compensation” is an inaccurate descriptor. What has occurred here is best described as “damages”, not a situation where work deserving of “compensation” has been done. Steve sums up:
We are a nation of laws. Without them, I doubt we would have the quality of life we have. And without intellectual property rights, I doubt we’d have technology-enriched lives. It’s not a perfect system, but it works pretty well. You either buy into that or you don’t. You can’t have it both ways.
Steve demonstrates that lumping these disparate laws together often produces incoherent, misleading, and all-or-nothing arguments. Arguing either for or against “Intellectual Property” invariably spreads confusion. If we wish to construct reasonable laws then we must avoid the temptation to argue in such abstract terms (“Intellectual Property”) and acknowledge their disparity.
GNUosphere 