Does Intellectual Property Need a Redesign?

Posted on July 25, 2011

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“The secret to success is to own nothing, but control everything.” — Nelson Rockefeller

The Patent Problem

Patent law in the United States has always been framed with the intent to promote innovation.  Because there has generally been a large amount of capital required to produce such innovations as the railroad, the airplane and modern medicines, the government wisely decided to allow an incentive for these investments by means of protecting the rights of companies to have exclusive claim on profits made for research they have done for a limited time.  By allowing room for an innovation to breathe, we had created an economy where everyone could benefit by the rapid rate of technological progress.

Today, however, these profits are protected not for innovators but for a minimal investment by patent trolls.  The incentives were never intended to create a viable career for lawyers and companies that harass smaller companies for unintended violations of patents which should have been obvious industry practice.

We are left with an economic result that does not encourage innovation, but instead creates a chilling effect in the technological field.  It doesn’t encourage the necessary competition that must exist for a capitalist economy to grow.  It instead encourages companies to acquire a war chest of patents that they can use as ammunition against other companies in the battleground of patent law litigation.  If anyone has been watching the wars between Motorola, Apple, Microsoft, Google and Oracle in recent years, then it is obvious that we are wasting a significant amount of our national resources in the attempted of Rockefellian control of everything technological.  I think we could and should spend those resources more efficiently.

The Copyright Conundrum

Copyrights were also created to promote the progress of the sciences and the arts.  The United States patent law was written to be a civil matter which had as a purpose to prevent authors from losing profits to printers and other copycat authors at the treat of a civil suit which must be pressed by the copyright holder.  It was never intended to be used as a criminal statute against the purchaser of such works.  Such an idea would have been laughable because it would be both unenforceable and completely against one of the key freedoms necessary for capitalism to work: ownership.

But capitalism now has a problem.  The Digital Millennium Copyright Act (DMCA) passed by President Clinton makes it a crime to tamper with your own possessions.  As I have stated before, ownership must mean you can make all decisions of your possession for capitalism to work.  How did we ever get to the point where tampering your own possessions was against the law? The old guard of companies that exist today cannot see how to make money off of their own industry, except by means of the heavy hand of government.

Besides the obvious violation of personal liberties that the DMCA imposes, it poses a serious threat to our Republic because it is unenforceable.  In order to enforce such a law, we would have to pass another law that makes it a criminal act to purchase, build or own a digital device that does not have DRM (Digital Rights Management) built into it, to prevent users from being able to move information in the way they see fit.  And doing that would be such an egregious violation of our personal freedoms that it would be looked back upon by future generations as Prohibition is looked back upon by ours.

The Simple Solution

Capitalism must always mean that there are winners and losers as technologies and people change.  The problem we have is caused by a legal system which is devoted to keeping afloat business models which do not really work in the modern technological realm.  So we have been imposing drastic attacks on our own freedoms in order to keep the old business models working.

The solution really is simple: stop!  We will go through a period where large companies lose their ability to make money the way they always have.  Of course, they will complain to no end about this.  But we shouldn’t listen.  There will be new players that can innovate and change the way our economy works.

Ending the criminalization of data transfers may mean that selling pieces of plastic called CDs and DVDs will no longer be a viable means of profit.  But new businesses for artists to pre-sell their creations could be formed.  An artist could offer their album up for pre-sale and not release it until they have achieved a desired amount of sales, for example.   This would still leave room for the current copyright laws to apply to commercial use restrictions.

I would not suggest ending all patents, as mechanical and medicinal patents are still very necessary for innovation.  Ending patents should only apply to software.  The small amount of capital required to create software and the obvious nature of almost every software patent shows that patents do not incentivize innovation it the field of software.  Besides that, Free Open Source Software (FOSS) has shown that truly great creations can be made on very little capital and are very likely with collaboration instead of competition (i.e. Firefox, Blender, VLC Media Player, LibreOffice and Linux Mint).

We really live in a new paradigm of technological and economic possibilities today that we have never really properly addressed.  I believe if we stop and rethink the structure of our legal system and apply to it our value of personal liberty, then we can create law that better suits the possible future that the Internet Age promises.

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