Comments regarding Competition & Intellectual Property
by DonPaul Olshove, Official US Consumer&Taxpayer, April 25, 2002
The laws concerning private property in free markets are misapplied to "intellectual property" due to a fundamental conceptual error. The words "intellectual property" are a self-contradiction. The basic nature of economic property is exclusive use. Intellectual goods do not exhibit this nature. The inevitable result is government sanctioned monopolies which suppress individual freedoms, reduce human ingenuity, and create an unfair and unstable economic system which misapplies its resources. Different, more appropriate methods of encouraging the so-called knowledge-based economy are sorely needed. A failure to stem the current trend in "intellectual property" rights will undermine America's intellectual dominance and international security.
"Intellectual property" is a popular phrase in today's expanding knowledge-based economy, but what exactly is it? Important problems occur when we try to apply the misguided and misunderstood concept to things such as ownership of the human genome, music and software piracy, copyright, personal privacy, patent drugs, and ideas for doing business. Each of these problems is a version of the central misapplication, applied in different fields and arts. Disguised as a partisan struggle between free competition and private property rights, the situation is actually due to a grievous error which is leading to ever-increasing restrictions which damage our most valuable personal, intellectual and economic freedoms.
I. The Value of Free Markets and Private Property
Humanity first invented the idea of property as a means to organize the distribution of resources between producers and users. Property enabled us to organize and appropriately value our resources, allowing a solution to the inherent conflict between those who have and those who need resources. With this tool, human society was able to evolve from a basic hunting/gathering, to an agricultural, and then an industrial structure. At the same time we developed increasingly detailed laws protecting real and other tangible property to prevent such things as exploitation, fraud and trespass. Our country's constitutionally anchored laws concerning property have descended from this long history with property conflicts. These laws are legitimate because they work to the overall benefit, not of a few, but of the whole of human society by enforcing the purpose for which property was initially created. In other words, good laws protect good economics, good economics promote a good (efficient, fair, well-distributed, well-to-do) society. Real and tangible private property exchanged in a free market is morally superior because it is economically superior.
Good laws provide tangible benefits to the users, but it is also true that there are bad laws. The last century's experiments with alternative legal forms of ownership and control, notably state ownership and central planning, have the surface appeal of saving waste and also preventing exploitation. Because of the surface appeal, there is always pressure to create the sorts of bad laws that state controlled systems embody. Laws can be made to treat anything as anything. So it is a simple matter to make laws to treat something as property thereby artificially creating scarcity for it. For example, at one point in human history, some people called Kings used their Divine Right to make a law stating that only the royal elite had the right to know how to produce and use soap! Of course, this fine example of one early form of "intellectual property" was stupid and ridiculous, but they didn't realize that. It is very easy to let bad ideas slip into law. While such "intellectual property" laws will benefit some few, more often they will be to the detriment of the many. Ultimately, such laws will lead to an inefficient and misapplied distribution of scarce tangible resources. In the long run, bad laws need to be replaced. Most "intellectual property" laws appear to be bad laws.
The classic benefits provided by private property when coupled with free markets derive from the fact that such property is limited. We cannot multiply real and tangible property. If I plant wheat in a particular acre of ground, then another person cannot use it at the same time for a golf course. Private ownership coupled with free choice has proven the most efficient means to determine use for such limited resources. These resources are economic goods simply because they are limited. If I sell some of my lumber to one person, I cannot sell the same lumber to someone else. I have given up one scarce item, the economic value of the lumber, and replaced it with another scarce item of more value to me. If this also occurs on the other side, we have a mutually beneficial exchange. Real and tangible property such as this, when exchanged in a free market is inherently stable. Such exchanges need protection. For example, if the owner of a piece of real estate has his property and therefore his assets physically and measurably harmed by a use he has not authorized, he deserves compensation. It does not matter whether the usurper is an individual, a business entity, or the government. Damage such as this will finally accrue to the whole of the society so we have laws to control and regulate such trespass while permitting free exchange. With scarcity based goods, many exchanges such as this will ultimately settle relative exchange values for all the freely traded goods to a mutually agreed optimum. Free markets work very well to allocate scarce goods. In fact, the effectiveness of free markets and private property as the best way to organize most ordinary physical economic aspects of society seems beyond question at this point.
II. Private "Intellectual Property" Is Inherently Unstable
On the other hand "Intellectual property" is very different. The harm or loss to an owner of "intellectual property" by exchange or unauthorized use is an abstract hypothetical. The "intellectual property" itself is unchanged by exchange or theft. The only loss to the "owners" of "intellectual property" is the resources they theoretically could have taken from the supposed exchanger or trespasser. In an exchange involving "intellectual property," a beneficial exchange indeed occurs, but the system is unstable since the "intellectual property" is not a scarce resource. The exchange reduces the resources of the supposed trespasser, but the "owner" has produced nothing new in return for this taking. This cannot be economically justified. In this type of exchange, the normal, scarcity-based, values of the property between the user and the supplier are in complete disconnect. As an example, if I sell the image of a cartoon character to someone, I still have, "own," and can use the original image. I have given up nothing. In this situation, why should I try to work hard to create new cartoon characters since the state is willing to extend artificial protection for the old ones that have already established themselves in the public consciousness? Unauthorized use does not damage "intellectual property" such as this. Use does not wear out the idea of a drug, the algorithms of a program, a song, a business model, an operating system, or the image of a cartoon character. Use generally makes things like cartoon characters, songs, and software MORE valuable as they becomes more familiar. So, as the "owner," I give up nothing of value, but the user, normally by force of law, must. And the more cartoon images I sell, the more and more valuable the "intellectual property" becomes. This is a highly unstable economic system and a typical example of the "knowledge-based" economy. There is a beneficial exchange to be sure, but beneficial exchange alone does not make good economics. For example, charging a small business to NOT firebomb the store will result in a beneficial exchange, protection for money, but we easily recognize that this is destructive and wrong.
Paying to purchase something that becomes more valuable to the "owner" because of the purchase is a natural monopoly in action. Of course, monopolies are not necessarily bad. In fact, in many cases, they may be unavoidable. We are all familiar with natural monopolies that occur with physical goods. For example, a national road system. However, given free rein, no monopoly can be expected to naturally trend to the most productive final outcome, and so ALL economic monopolies of any sort must be regulated by democratic action to prevent improper allocation of resources. The economic incentives of monopolies just do not tilt in the correct direction. The natural tendency of all monopoly is toward instability and exploitation. The negative tilt is what makes them monopolies. This is especially true of "intellectual property" because there is virtually no limits on reproduction. When monopolistic goods such as this are allowed into a free market, mis-allocation of resources and exploitation is the inevitable result. Exploitation is not good morality.
III. The Monopolies Resulting from "Intellectual Property" are Immoral
The error of allowing "intellectual property" into a free market creates serious problems. A recent screen play depicted a bad guy who released a highly contagious and deadly disease that guaranteed certain death within days. Only his company had a cure and producing it was simple and easy. Backed by the strong arm of the law, he intended to capitalize on what his proprietary product was "worth" in the free marketplace. As the only legal producer, he was planning to appropriate the entire goods of the world's residents in exchange for their lives. This is a silly morality play perhaps, but it is a clear example of the poor economics and evil that "intellectual property" can create. The story may be fiction, but the economic forces the evildoer harnesses with his "intellectual property" are real. This scenario is actually playing out in certain areas of the world where the nominal income is a few dollars a week. If anyone in those areas uses certain of our fine American drug companies' knowledge of how to treat some currently deadly diseases, the companies demand to be paid the equivalent of a lifetime's wages. For another, much milder example, consider what it is worth to use the "standard" computer operating system in the new computer-based world? Obviously more and more as that system becomes more widespread. To choose any other system is like trying to use Chinese in an English language-based economy. This is in direct conflict with the normal behavior of tangible property. What is happening is that the old economic problem of grazing the commons is turned upside down by intellectual goods. Grazing more and more sheep in the intellectual commons results in a MORE productive commons. As a consequence, the classic solution of private property that can be made to work so well for a limited, tangible, commons is not applicable. For intellectual commons, the private property solution will create less productivity by preventing the increased usage which allows the increasing productivity. This is obviously poor economics which damages the whole. The rules we have so painfully learned over the centuries for real, tangible property do not work with "intellectual property."
With the artificial legal protections (anti-free market rules) in place, the price of intellectual goods does not track and regulate their value. Since real competition to distribute the intellectual good is illegal, the resulting monopoly will set the price at whatever it would take to do without it, instead of the cost to produce it. The inevitable result is a form of extreme central planning and dictatorial power that would make the reddest Communist proud. Like the drug for the incurable disease, the value of legally-based "intellectual property" far exceeds the cost to produce. This is wrong. Good economics should produce fair values. In contrast to Adam Smith's invisible hand in a truly free market, the artificial protections create perverse incentives to make things that can be successfully exploited by legal means, instead of things that will be of greatest benefit. Another classic example: Both the drug companies and the medical professions lack any interest in the many possible natural cures which could help reduce our spiraling health care costs. In fact, these power groups have the explicit economic incentive to actively discredit any such "free" alternatives since they would destroy lucrative protected markets.
In the current environment, the professional distributer of "intellectual property," under the guise of "entrepreneur," is protesting loudest. One of the favorite arguments is the idle threat: "If we do not get protection for 'intellectual property,' no one will make any." This argument is seldom advanced by the actual entrepreneurial producers of the intellectual goods. The fiercest proponents of this argument are usually wealthy individuals who wish to use their already ample capital to start corporations with protected markets. These are not truly entrepreneurs, since they produce nothing new themselves. Nor are they like merchants, trading on the economic value added by distribution. Like the Kings of old they are secretly in the business of harnessing the law to say that they have some Divine Right to profit by excluding others from somebody else's creation. They are milking existing ideas with a new form of feudalism. Intellectual serfs labor unjustly in the fields of the resulting well-lawyered corporations. The corporation claims all their intellectual output and rewards them with a living wage and the promise that they too might someday become wealthy exploiters. Unfortunately, the persons who most need rewarding here are the creative producers of original ideas or other good intellectual works, the creators of intellectual commons, not the talented exploiters. Intellectual products are easily recognized as the most valuable products of humanity. Unfortunately, with today's legal system, "owners" (not usually the producers) of creative works often receive exorbitant monetary rewards far out of proportion to the contribution they make. Concentrating this much wealth into so few hands by the force of law unreasonably penalizes alternative views. At the extreme, it becomes not simply feudalism, but a form of intellectual slavery with all creative activity, both on and off the job, directed and "owned" by corporations or corporate interests. The resulting economic pyramids may be impressive, but they are built by "intellectual property" slaves.
This failure to understand clearly the distinction between tangible goods and intellectual goods in our free markets has wide-spread negative consequences for the entire society. Because they can be reproduced at little to no cost, the intellectual goods will overrun and destabilize the real and tangible property, limited resources, and the fundamental basis of economic societies. For example, the unrealistic housing prices in geographic areas surrounding the recipients of such cash flows are a direct result of such instability. The large cash flows and increasing concentrations of money coming from law-based "intellectual property" create mental confusion in the minds of both economists and government officials who conclude that somehow something like valuable tangible property is being produced. This error has happened because those who occupy these positions of power are inclined to see any increase of money flows or concentrations of power and money as a contribution to society. The fallacy of this viewpoint becomes apparent when you consider how common tragedies like earthquakes and hurricanes also boost the GNP. Increasing cash flows are NOT always "a good thing." With "intellectual property," the damage done to any one individual is usually small, so it is a particularly insidious form of creeping destruction of individual freedom and creativity. It is a slow but relentless process as the "intellectual property" petitioners weave an increasingly complex tapestry of interconnecting rights and privileges and so lay claim to an ever increasing portion of the real economy. Blaming "intellectual property" companies is not really fair. They are behaving exactly like Adam Smith would predict. They simply go where the money is. We have to assign blame to government lawmakers who made the mistake of unwittingly allowing the creation of market rules with way too much protection for imaginary "intellectual property."
IV. Can We Place a Value on "Intellectual Property?"
"Intellectual property" involves a self-contradiction. The economic characteristic of property that makes the property laws of our free market system work to everyone's advantage is exclusive use. It is either wheat or golf. The characteristic of exclusive use exhibited by real and tangible property is simply, plainly, irrefutably FALSE for intellectual works. They are, after all, intellectual. Ideas and their benefits can be multiplied indefinitely. Ideas, works of art, drugs, writing, programs, songs, and so forth lack the basic economic characteristic of property, irreproducibility. So they cannot be property in the economic sense. Good new ideas may be a scarce resource, but once an intellectual item is created, it is no longer a scarce economic resource. Abstract things do not fit into the free market mold. Most of the value (or rather the market price) of intellectual goods arises because of the legislated right to exclude others under penalty of law. In other words, the value arises from force or the promise of forbearance of force. When carefully controlled, force is fine protection for the distribution of truly economic goods whose value is connected to scarcity, but it is a really unsatisfactory way to make economic allocations of an almost unlimited resource.
So how can we value an idea or other intellectual work if a person or corporation cannot treat it as property and so prevent others from using it? The right to exclude others is, after all, a fundamental value underlying scarce resources. Why engage in the effort and cost to produce an intellectual work of value when that value will not "belong" to anyone? If intellectual works can be reproduced and distributed at will, why bother? Well, why not? There has never been a shortage of people ready for creative endeavors. In fact, the history of humanity is an exponential unfolding by creative individuals of increasing real world knowledge. Creative work is the highest goal of nearly anyone who has advanced beyond mere survival.
Only in the last couple hundred years has the idea arisen that such works require payment beyond payment to the original worker. Before the creation of "intellectual property," creative work was considered a luxury. Personal economic need and its extension, greed, are not the only motives that drive talented creators of "intellectual property." A person requires neither economic need nor the force and protection of law to create successfully. Ideas, songs, scientific research results, and computer programs, are and will be a dime a dozen if people are free to produce them. This is true for a programmer or a basketball player or a college professor, anyone. In advanced societies, where the basic economic requirements generally are filled, the truest form of human reward is recognition, not resources. "The deepest principle of human nature is the craving to be appreciated." (William James) In our modern society, we have even come to treat money AS recognition. People are often judged by their salary. Consider how ball players are more often compared by their compensation than their ability on the playing field. Once basic needs are met, more advanced needs are what have high value. Real producers of intellectual goods may want monetary rewards, but they also generally want their curiosity satisfied. They want to feel pride in their work, be of service to humanity, receive public recognition and respect for the value of their insight and see their works distributed. Usually, some reasonable combination of these provides satisfactory reward. There are many ways to encourage the production of intellectual goods besides creating massive legally based monopolies.
Money alone cannot do the reward job without destroying money's other utilitarian functions and, at the same time, destroying the other, non-monetary incentives. If monetary greed dominates, the irrational, antisocial, predatory drives in creators and distributers will become economically destructive. The same drives that give birth to Adam Smith's "invisible hand" in ordinary scarcity-based economic transactions becomes an "iron fist" for "intellectual property." Logically, since the value of the "intellectual property" arises with government, these people will focus on obtaining special graces and protections through the power of government completely misallocating huge resources to a contest waged for a grant of monopoly power from the government. The merchants of "intellectual property" need to be controlled and harnessed in a productive way. In other words, we need to bring something like the "invisible hand" that harnessed the selfish search for scarce economic goods to the quest for our increasingly abundant intellectual goods. Butchered tangible property laws can not do the job.
V. Encouraging The Knowledge-Based Economy
Do laws to protect "intellectual property" result in expanding knowledge? An "owner" of "intellectual property" who refuses to share his intellectual asset does harm by refusing to allow the free-flow of intellectual benefits. So, how do we get him to share? Notice that the thing we want to encourage in the originator is more good new ideas, but the effect of the "intellectual property" rights is to focus his attention squarely on protecting already created intellectual goods. He is not paid for creating new ideas since they compete with the old ones. Instead he acquires a motive to protect his increasingly valuable existing "intellectual property." In fact, he will actively try to prevent competing new ideas, the very thing we would like to encourage. This result is diametrically opposite to the positive motivational results with scarce property in free markets where the property rights result in the greatest benefits to society. It was with the idea of mitigating the harm created by secreting good ideas that our founding fathers first created our patent laws. The sole purpose of patent law should be to encourage inventors to reveal and share their ideas and so reduce the harm that results from keeping good ideas secret.
Evidently, even the founding fathers recognized that "intellectual property" does not obey the ordinary laws of supply and demand. It is not a tangible, and so, naturally scarce commodity. The grant by the state of an abstract legal right to exclude others is intended to save the inventor the effort of restricting it by attempting to keep it secret. In exchange, he is required to reveal his invention for free public use. While this right is not unlike the rights granted to owners of tangible property, the basic nature of the property is different. Tangible property is scarce. "Intellectual property" is not scarce. Beyond the original creation of "intellectual property," artificially restricting its distribution (by secrecy or laws) is the only significant source of scarcity. As opposed to tangible property for which we need appropriate laws to regulate the scarcity, "intellectual property" scarcity can come only from secrecy or government edict. The legal sham of treating "intellectual property" like a truly scarce economic good does not make it into the classic sort of property to which we can successfully apply ordinary free market principles.
While laws can protect people from physical interference by others and so allow them to think and work, laws of any sort which attempt to control intellectual matters can only restrain the development of human knowledge. Individual effort combined with the intellectual heritage of humanity creates advancing intellectual knowledge, not laws. The laws are just a coincident phenomena necessary to help protect the process from interference. In fact, history shows that intellectual development in a given society will continue to the point where some group manages, usually by subterfuge or possibly by force, to establish a legal privilege or restriction which captures an uneconomically justified portion of the benefits from intellectual goods. The creative spark then moves off to a more intellectually tolerant environment, usually a different nation-state that has a government with a different, more intellectually free, attitude. This will not be noticed within the first society until it is too late. Due to the inertia ideas carry, the creators of new ideas will be gone by the time the currently mature ideas finally expire. The cycle of success, suppression, failure has been repeated many times in human history. Laws to protect "intellectual property" will not result in expanding knowledge even though they will result in an apparently expanding economy due to all the meaningless payments.
This is wrong. Every creative intellectual work, all "intellectual property," is derived from the intellectual human society in which it is produced and therefore "belongs" in some sense to the whole of humanity as well as the individual that first produced it. The "idea whose time is come" is well known. Practically every new concept occurs to many people at virtually the same time once the background intellectual field is adequately developed. Why should a corporation be allowed to take "ownership" of it? Society's institutions and government do not and cannot create new ideas. Ideas come from people, period. People get the material for those ideas from their society's intellectual history, from those who have willingly shared their ideas, not those who have tried to keep them secret. "Intellectual property" companies could not exist without this background intellectual knowledge on which they are founded as well as the physical support supplied to it by the society on which they feed. "Intellectual property" threatens to destroy the intellectual background. This is not to say that these people do not deserve rewards, but the purpose of the legal/economic system should be properly and fairly to compensate the producers and distributers for their actual contribution to these intellectual products, not to make Kings of them. The long-term, effectively perpetual, rewards to corporate "owners" for an intellectual good cannot be justified. When things are not economically justified but are nonetheless protected by law, then rebellion, social upheaval, or civil disobedience will eventually follow.
This problem is as difficult and important as the problems that originally motivated the invention of private property laws or the laws preventing human slavery. Where we are now headed will hardly be a golden age of expanding freedom or fresh works of intellect. We need new rules to govern in the best manner possible (= good economics) the relationship between the creator and user of intellectual works. That does not mean that simply plugging in the private property laws is the correct, or even a remotely workable answer. Laws written for real and tangible property issues are inappropriate to the economic character of "intellectual property" and THAT is the source of the current difficulties. The history of human development is a history of intellectual development. Before the catch-phrase "intellectual property" came on the scene, intellectual stuff was mostly free except for the effort to learn or duplicate. The marketplace of intellectual goods was relatively free. I believe heading back toward to this "state of nature" for intellectual goods is the best available course of action to encourage the production of human knowledge. The separate scale of reward for intellectual works in a free market of ideas such as the universities used to supply is the classic idea. Unfortunately, the money-is-the-measure-of-everything mentality exercised by today's government and its legal system eventually destroys all alternative systems, even the classic university system. The re-creation of our former free marketplace of intellect would require that money be removed entirely. This is not likely to happen because of powerful (meaning wealthy) vested interests. Money and "intellectual property" rights have poisoned the well. Yes, it's a difficult problem.
VI. What Should We Do?
Change course! Our government is currently headed in the WRONG direction with the balance of power more and more heavily weighted in favor of distributors (big corporations, well-lawyered patent and copyright holders) as the primary beneficiaries of unrealistic, government-created "intellectual property" rights. On this path, we will continue to sink into an ever widening legal morass of control and suppression much like the USSR experienced with their unrealistic central planned economic/social experiment.
The tasks as I see them: FIRST: Decide the proper ethical and economic relationships between users, distributers, and creators of intellectual stuff. The biggest obstacle here is confusion of the economic properties of intangible, abundant, intellectual stuff and scarce, tangible, NON-intellectual stuff. SECOND: Create a legal system to support the proper relationships. Trying to do these tasks in reverse order by forcing intellectual goods into an existing tangible goods legal mold simply creates confusion and conflict, which is where we are now. If we can focus on the idea that the solution to the first step involves the most efficient allocation of resources for the society as a whole, not just the richest or best-lawyered corporation, largest block of political contributors, the most voters, or the most vocal minority, the rest will fall into place. Take the case of Napster. They are clearly doing the economic task of music distribution much more effectively than the old-time media types. The large corporations are trying to profit in perpetuity from an artificially created property right to something that maybe we should not allow them to "own" in the first place. What does it mean to "own" some of humanity's knowledge? Who really "owns" the songs I have memorized? Will someone eventually "own" Calculus? Who will be allowed to "own" the gene sequence for the color of your eyes? Microsoft does not have an entry on their balance sheet for the value of their code because knowledge cannot be measured and surveyed like a piece of real estate. It multiplies, leaks and escapes like so much genetically modified corn. Intellectual goods are NOT tangible property. Unlike ten acres of fertile ground, they can be and should be copied and distributed worldwide at minimal cost for the benefit of all. Ask yourself exactly what human benefits result from restricting the distribution of songs through payments of royalties in excess of the original compensation to the artists. The users of Napster were bearing the cost of distribution. The "owners" of the "intellectual property" were doing NOTHING AT ALL, and yet they expect reward. With very few exceptions, they did not even create the original work. This is ridiculous. Are we seriously expected to believe people will sing less if the distributors are not paid a King's ransom? Why do we need Kings?
At some point of extension all good ideas become bad ideas. Free market capitalism cannot properly apply to non-economic intellectual goods because they are a natural monopoly. Stretching free market capitalism beyond its well-proven uses with scarce resources just makes it into a new form of tyranny. We fully expect soon be to paying royalties on everything we see and hear on digital TV and radio. Once these words and images enter your brain whose are they? Will we be allowed to own every one of our thoughts and words? How many ideas, words and phrases are an individual's original invention? Almost none. Logically, the person who first produced a word is the proper owner of such "intellectual property." Will we soon owe royalties to someone every time we produce a piece of writing or talk to a neighbor? There have already been serious proposals to charge "micropayments" every time a known sequence of three or more copy written words appear in print or online. This trend has reached the extreme in a recent patent granted for the "frowny face" emoticon that consists of a specific sequence of three standard typewriter keys similar to the happy face emoticon, :-) I cannot print the actual sequence here. The misnamed entrepreneur who supposedly "owns" this obvious sequence of three standard characters has the legal right to sue anyone who uses "his property" without his permission and compensation. Currently, no limit is in sight. As with all expanding ideas, the limits of "intellectual property" will be fully tested. It is going to be interesting, but not much fun. Humanity has a long history of being unable to recognize how apparently benign ideas will become great evil when fully developed. Let's try to climb back up the slippery slope before we slide any further this time. When examined carefully, "intellectual property" can be seen for the foolish and dangerous myth that it is. Ethics requires that we do our best to make humanity's creative ideas freely available to every one of humanity's members without exception. Intellectual goods cannot morally be property except in a very restricted sense and then ONLY to the extent that they create the overall benefit of GREATER distribution of the intellectual asset. We need to move to a much more free marketplace for intellectual goods than has been created.
Without a change of course, we are standing on the edge of a massive explosion of government-led suppression. I think we should head rapidly toward greatly reduced legal protection of the non-economic item called "intellectual property." I would suggest the following: Ownership of intellectual objects should be allowed only by real, individual persons, not by non-individuals like governments, corporations, universities or partnerships. The originating individuals should have greatly reduced time for legally protected exploitation of returns on intellectual works, perhaps a return to the standards put forth by the founding fathers. In no case should benefits extend beyond the lifetime of the individual. At the death of the originator, all non-physical assets should escheat to the public domain. Rents from any intellectual work should accrue strictly to the human that originated it and be non-assignable and subject to contracting rules similar to the rules governing direct employment of the individual that prevent human exploitation and slavery. Reselling of rights beyond one stage should be prohibited. The right to retraction of licenses is guaranteed if sufficient notice is given. Government has the obligation to provide legal counsel to originators similar to the obligation to provide counsel to criminal defendants. Existing, erroneously granted, "intellectual property" should be quickly (no more than 5 years) conformed to the above requirements. The inherent monopoly of all "intellectual property" must be recognized along with the right of the state to regulate it for greatest creation and distribution. I admit that these objectives are not well thought out, but something like this could provide recognition of the value of the individual and remove most of the current poor economic and inequitable aspects of so-called "intellectual property." Expropriating creative works from their creators will not encourage them to do more, and building legally-created, "intellectual property" monopolies is wasteful and unethical. While the proposed objectives do not solve the inherent error in the concept of "intellectual property," they might provide greater individual motivation without creating more of the current, excessively unreasonable entitlements.
VII. The Consequences if We Fail to Mitigate The Conceptual Error
If we fail to arrest the continuing corporate "intellectual property" gold-rush, it will destroy the economic stability of our nation. The monopolies granted will require ever-greater enforcement efforts. As we try to implement our increasingly restrictive "intellectual property" laws, intellectual developments will gradually move away to more hospitable environments. There really is no choice here if we wish to remain the major intellectual force in the world. A failure to stop the growth of ownership of "intellectual property" could even possibly destroy the stability of the entire world as we end up attempting to force our laws on everyone worldwide. "Intellectual property" laws are especially unfair to countries with developing economies. Basically, this is neocolonialism. The third world is put in a position of eternal servitude by having to somehow buy their way into the current intellectual scene. I doubt they will agree to this willingly, and ultimately, they will be forced to rebel, rightly rejecting our self-serving leadership in the process. America's insistence on excessive "intellectual property" rights will isolate and discredit us. We are the fortunate heirs to the world's most intellectually free society. This unusual heritage is the source of our success. It is blindly foolhardy and an insult to our founding fathers to destroy the very source of our achievements. We need to set the example and freely share our intellectual achievements with the rest of the world. This will in the long run do more for our international influence and world-wide peace and prosperity than any other action we can take. I do not think the rich corporate "owners" or the rich heirs of creative individuals will like truly free markets, but they can always protect their products with non-legally-based means (like secrecy or copy protection) or get to work to produce and sell their own original intellectual products if they wish. In the final result, "intellectual property" rights only serve to make the rich entities of the world unjustifiably richer, a dangerous situation. It would be better to create a system that focuses resources where they will be most beneficial to the whole of humanity. The creative individual, regardless of political or economic status, is who we need to encourage. Legislating a special place for a few people and organizations whose major talent is obtaining favor from the world's most powerful government is a very big mistake. The current system creates a neo-feudal world. There are sound economic and moral reasons the feudal system was replaced.
"Intellectual property" IS NOT a true economic, that is, scarce good that can be managed by a free market. This is confused because intellect IS an economic good and is the item we want to encourage. Ending artificial legal protection for corporate "intellectual property" and focusing it on the real producers of intellectual goods will best serve the economic and political interests of society at large. Excessive limitations on the free distribution of intellectual works is immoral because it does not serve society's overall economic benefit. The founding fathers vision which provided the legal framework for rewards directly to the producers of intellectual work can perhaps help encourage the production of valuable ideas. Perhaps no legally mandated or monetary rewards are needed at all! In any case, creating special, effectively perpetual, legal protections for the benefit of feudal corporate interests is not only an economically unsatisfactory solution, it is dangerous. We need good laws that reflect good morality. In turn, good morality will reflect good economics. We know that we have many bad "intellectual property" laws on the books at this very moment. Bad laws erode the respect of law as well as the moral character of a people. Of course, it is very difficult to redirect a juggernaut as massive as the US legal system, but the magnitude of the existing conceptual error only makes the task more urgent.
The opinions expressed herein are strictly my own. They quite obviously suggest a course of action that is diametrically opposed to the current direction of my government. Changing course so dramatically can appear completely mad on first review. I ask nothing but that serious, thoughtful, consideration be given to the final outcome for our country and the whole of humanity of our "intellectual property" policies. After all, like the idea of "intellectual property," even state-sponsored eugenics seemed like a good idea at first. Outcomes cannot be figured by money and corporate profits alone but should be based on simple ethics and our nation's founding values. Recognizing bad "intellectual property" laws and creating new, more appropriate laws is going to take courage, vision, world-class statesmanship, as well as resistance to large corporate contributions and legal gamesmanship. Corporate interests undoubtedly will speak with a disproportionately large voice. I hope our government officials can find wits and moral backbone equal to this task.
Respectfully submitted, DonPaul Olshove