[Leaplist] FYI, evidence of realities of IP

[Bill Anderson]

On Monday 22 January 2007 17:25, William A. Mahaffey III wrote:
> Justin M. Keyes wrote:
> > On 1/22/07, William A. Mahaffey III <wam at hiwaay.net> wrote:
> >>  Bill Anderson wrote:
> >>  On Monday 22 January 2007 08:04, William A. Mahaffey III wrote:
> >>
> >>  Justin M. Keyes wrote:
> >>
> >>  On 1/21/07, Justin M. Keyes <justinkz at gmail.com> wrote:
> >>
> >>  ...
> >>
> >>  Also, what does history have to do with it? It's arguable that patents
> >> stifle--not encourage--innovation.
> >>
> >>  Hmmmmm .... so that's why the U.S. has been (far & away) the most
> >> innovative industrial nation for about the last 200 years ?
> >
> > The U.S. has been successful because of freedom. Patents aren't
> > intrinsic to freedom; they counter it. Ideas are not property, so no
> > property rights are violated by copying an idea. "Intellectual
> > property" is a marketing term and an oxymoron.
>
> Again, the founders disagreed binarily w/ you :-).

No, they did not. I've read much of the period writings as well as the 
surrounding history. See below.

>
> >>  In spite of, not because of.
> >>
> >>  Evidence ?
> >
> > Elementary. If one profits from patent royalties, then the incentive
> > for the inventor to continue inventing, is diminished--not destroyed,
> > but diminished. Furthermore: if others must pay royalties to use a
> > patented invention, then others must pay money or find alternative
> > methods to improve processes, wasting time and effort.
> >
> > Therefore, patents stifle innovation.
>
> Wrong. The allure of the ability to profit from one's invention is the
> incentive, the profit (a postori) is the reward for the hard work. The
> invevtor may or may not invent again (statistics indicate that most
> *do*, since a considerable fraction of patent holders hold patents on
> more than 1 invention), but he is still due his reward for his hard work
> that lead to the 1st invention, & that reward is what the patent laws
> guarantee. There is no waste of money or time by those who pay royalties
> to use an invention, it's called free enterprise. If they don't want to
> pay, they can innovate themselves, with the double incentive of avoiding

No, they may not. The patent and copyright systems have no respect for 
independent conclusions and effort. It is solely and exclusively a "first 
past the post" method where the first to register wins.

> royalties to the 1st gentleman *&* possibly setting themselves up for
> receipt of royalties on *their* innovations. BTW, note that the language
> protecting intellectual property is *not* in the Bill of Rights, or
> other amendments, but in the text of the original document. It is an
> indicator of how strongly the founders felt on the topic, & the last
> 200-odd years of history *clearly & strongly* bears them out.

This faulty conclusion is the result of temporal context bias and incomplete 
historical knowledge. We know through their writings and the events of the 
Crown that much of the constitutional rights were essentially a list of 
grievances against the crown. We see this today in the poorly named items of 
political issue such as "taxpayer bill of rights" or "patients bill of 
rights". Each of these is a reaction to a perceived wrong or abuse of power. 
Copyrights, trademarks, and patents are no exception.

History of copyrights indicate that it was first a private law. Yes those 
exist, even to this day. The interest of the de facto monopoly of printers in 
England eventually rose to the level of interest by the Crown. The Crown saw 
them as an opportunity for revenue. You see, in so-called private law, only 
those who agree to be bound by it are subject to it. We see this in every 
group or association. Essentially private law is a contract.

The Crown saw that if the printers guild's codes were codified into royal law 
for a fee, Royal coffers would increase. But the Crown was more so motivated 
by another more pressing matter: censorship. With the advent of printing any 
bloke could print up material. Often material the Crown disliked was printed. 
By establishing a royal mechanism to "provide protection" the Crown saw an 
opportunity to regulate what was printed. It's the gripping hand:  every 
agreement has consequences be they foreseen or not. 

For the printers guilds, they were granted the right to exclude others from 
profiting from undertaking their own efforts to copy. Prior to printing there 
were no restrictions on copies - indeed they were encouraged heavily to those 
who could. But the press changed that. Now, while the work was still not 
insignificant, it was less. In exchange, though they doubtless did not see it 
at the time, they handed the Crown the right to prevent printing of materials 
the Crown did not like. 

And  use it the crown did. Yes, this was the birth of censorship: the English 
Crown. It was not up to parliament to decide, but the Crown. This situation 
played out for well over a century before parliament finally had had enough. 
The specific wording of the US constitution was to prevent the US President 
from exercising the same censorship ability. Particularly while specifically 
stating freedom of speech was a fundamental right.

It was specifically worded to be about "promoting the sciences and arts" to 
prevent it being political censorship. It was specifically placed in the 
hands of the Congress in the attempt to make it open, rather than a closed 
room fiasco.

The framers knew full well the destructive power of monopoly., Indeed it can 
be argued that the design of the US government with sovereign states was 
specifically an attempt to reduce the monopoly. Thus they attempted to limit 
it's effects to "limited times to Authors te exclusive Eight to *their* 
writings" emphasis mine. Note that it specifically states their writings. It 
does not state anything about derivatives or using the same ideas or even 
characters and story lines. They were fully aware of the history of many 
popular tales and their many variants, no evidence is found to support he 
notion they felt it necessary to prevent variants.

Indeed, the term copyright was preceded in England by Queen Elizabeth in her 
bestowing of "monopolies" to printing. This was one of many favors the Crown 
was able to bestow in reward of acts of any kind it approved of, or in 
opposition to acts or entities it disapproved of. The word monopoly stems 
from Latin monopolium meaning literally "one 'to sell'". In many ways the 
government establishment of copyright and patent rights is in itself a rather 
obvious oligopoly or cartel.

Standard economics shows us thar monopolies are in fact detrimental to the 
market and would-be competitors, and increasingly more dangerous as the 
monopoly continues temporally. Of this there is no doubt. monopolies rapidly 
run out of efficiency and become highly inefficient. We see this in *all* 
monopolies from political power monopolies to economic ones. On what basis 
should we exclude text distribution and use if methods and idea monopolies?  
What evidence is there that this *one* particular use of monopoly is a good 
thing?

Nowhere in the constitution, or writings of the period, do you find support 
for effectively limitless terms of monopoly. Indeed the express payment to 
the fedgov was the surrendering of the work to the public at the end of the 
monopoly. Same goes for patents, which were expressly to ensure that the 
knowledge of the process not be lost. In this open source shares a kindred 
spirit. 

Today open source projects are as much about ensuring that the code, the 
methods and algorithms are not lost when a company closes shop, or an author 
dies, as they are about freedom. Indeed this is an oft stated specific goal 
and business advantage of open source.

There is no doubt that stagnation of progress and creative output is a 
specific effect of monopoly. Again we see this stated in open source ideology 
regarding technological advancement of a stagnant monopolist which suffers no 
competition. So we should hardly be suprised that patents and copyrights are 
in fact a detriment to progress. Of that there is no question among those who 
study them and political and technological history.

One such manner of stifling is in the systems insistence on the one true way. 
Independent discovery is denied. Yet history is replete with people without 
communication with each other or even peers, having independently arrived at 
the precisely identical method for achieving a given end result. 

Imagine you and I independently arrive at the same means for an internal 
combustion engine to run on ethanol and achieve 5X the fuel economy of 
today's gasoline powered engines. We both spend thousands or tens of 
thousands of dollars developing this method. We dont' even know each other 
exists, let alone have any communication or sharing of ideas. On March the 
first we both set out for the patent office. You miss the bus due to it 
arriving early. As a result I get to the office first, file first, and you 
are shut out in the cold. Now, if you seek to get any return, let alone 
profit, on your investment of time, money, and probably blood sweat and 
tears, you must pay me.

How can that *not* stifle creativity. I have literally heard many a would-be 
inventor stay away from working a path just because "someone already probably 
has this patented". I've heard it many times. I've suffered that thought 
myself on more than one occasion. As a result this process provably and 
demonstrably has limited the work of inventors and creative people.

I've read *many* a good story that was based in another's created world. In 
many cases these stories were better than the original in which the world 
and/or characters were originally printed. Yet these are prevented from being 
published because of Copyright on the original. Evidence of this is again all 
around us if you care to look for it.

To say that the US has been productive and progressive in terms of science due 
to copyright and trademark is false. It is based solely on unprovable 
assertions. It is tantamount to saying that Alexander the Great's death at 
the time it happened (neither earlier nor later than when it did happen), 
made our world today better. The fact is it can not be stated that the US has 
advanced as it has due to copyright and patent law, because we do not know 
exactly what would have happened otherwise.

We can however, say without doubt or contention that the system has and 
continues to stifle invention and creativity by it's existence - it is in 
fact designed to limit the profit of technology. With impacts ranging from 
simultaneous independent discovery to non-simultaneous but independent 
discovery. And this it does well.

Consider music and movie. By use of the copyright system to limit the works of 
others (as well as anti-market matters such as corporate charter) , we have 
arrived today at a point where new music artists must genuflex to the clearly 
oligarchic Music Industry controlling  trio (is it three or four, I forget). 
It is nearly impossible for artists not signed to the big labels to get 
airtime. Without airtime they suffer under a lack of exposure to a potential 
audience. Further, if they happen to sing a particular song better than one 
who made it popular, they must pay to use their own talents.

Effectively the RIAA has raised the barrier of entry to prevent others from 
breaking their oligarchy. This is no different in function than OPEC ensuring 
that the barrier to produce a competing product is too high - specifically 
the ability to lower price to stifle competition by bankrupting them in that 
case. It is this reason and no other that the Internet is deemed such a 
threat, as is digital copying of music of *any* kind - labeled or not.

Today it is close to trivial for a musician or group of musicians to produce 
their own "records", their own "labels", and more importantly, to distribute 
it via the Internet. I have arrived at the conclusion that the RIAA fight is 
as much about "indie music" as it is about alleged loss of profit. If other 
labels and channels can become viable at a lower cost to consumer as well as 
lower cost to producer and artist, their monopoly is doomed. Again we see 
this throughout history.

The MPAA and RIAA are not alone. We see this in a usually ignored sector: 
automobiles. The push for increased regulation of cars and trucks by 
automakers is in fact a direct result of the threat of competition from 
smaller companies. Here again we see this under the guise of "consume 
protection"; we are told it is to make our lives safer by making cars safer. 

I see it another rather personal avenue. One I suspect not familiar to many on 
this list: feminine hygiene products. Thousands (hundreds of thousands even) 
of women use "cloth pads". Sadly they must make them themselves. Why? 
Government requirements raising the barriers to entry through 'IP" 
and "public safety standards". Again another case of stifled output in both 
technological advancement as well as economic output.

We see this in the effect of open source and Free Software on entrenched 
monopolies. It is nothing new that monopolies and oligarchies turn to 
government "protection" when their monopoly is threatened by upstart 
competitors. The harder they turn to government the closer they are in "going 
down".

No, the framers of the US Constitution did not belive that monopoly of what we 
today term "intellectual property" was a cornerstone of advancement. A good 
reading of period literature and political events reveals the context of the 
desire as well as the wording. It is clear through the writing that it was a 
compromise, as was the phrase "life, liberty, and the pursuit of happiness. 
Incidentally the original phrase was "life, liberty, and property".

The only form of governance that is not based entirely on compromise is 
unanimous approval. The US Constitution, and the ensuing Bill of Rights, were 
not products of unanimous consent. By contrast however, open source software 
essentially is a product of unanimous consent. Those who wish to abide by the 
rules are allowed to participate, those who disagree do not.

The argument you make is identical to an argument that Linux is better then 
BSD because Linus made Linux and it has flourished while BSD has not (no slam 
on BSD, just a fact) had the public success and support Linux does. If Linus 
had instead gone the route of BSD things would be different but not provably 
better or worse.

However, to say that the US has been productive and advanced as it has in 
spite of the government monopolies is provable and demonstrable. For it to be 
otherwise a mandated monopoly on the use of a method, idea or the use of a 
work of fiction would have to have absolutely *no* downsides that would 
hamper progress or advancement of knowledge. Since this is provably and 
demonstrably true (to everyone but monopolists who want to keep their 
position), the assertion that we have done as well as we have in spite of 
being hampered by patents and copyright is likewise.

And I didn't even get into abuses of C&P law, or the government confiscating a 
patent they wish to use for "national security" or if it duplicates something 
they've secretly done (again for 'national security') - yes it happens. Trust 
me. 

Congrats and thanks to anyone who has made it this far. ;) I've tried to keep 
it somewhat OT yet informative and thorough

Cheers,
Bill