The Morality of Copyrights and Patents
by Thomas M. Miovas, Jr.
[originally published on Objectivism Online.net]
I'm hesitant to start this thread on oo.net due to several issues I have had with people taking the opposite stance and due to my suspicion that even some Objectivists do not understand the nature of copyrights and patents, and hence oppose them.
In a moral society -- one in which it takes man's life as the standard and recognizes individual rights as stemming from the nature of man qua man -- issues such as copyrights and patents are an extension of the fact that the creator of a product has the absolute right to set terms and conditions of using his product. To post this message here, I have to agree to oo.net's Terms and Conditions, and everything I post here is covered by copyright law. Now, I could post some sort of Terms and Conditions of presenting an essay here of my own and say that if you read my posts, you have to agree to my terms and conditions (within the bounds of the T&C of oo.net). But that would be extremely cumbersome if we all had to sign a T&C agreement for everything we partook in or bought in our capitalist society. So, by law, it is recognized that the creator of a product has certain rights that are protected, without him having to get each end user to sign a T&C for every product he makes. Under copyrights and patents, and by buying or using the product, you basically agree not to duplicate the creator's work -- you agree to participate in that transaction without stealing from that producer. And, yes, copying and pasting or downloading without permission and then re-distributing a production digital format is a type of stealing. You are basically taking his product and claiming it as your own without proper compensation agreed to between you and the producer of that product. It's not that copyrights and patents are granted by the government, but rather a proper government recognizes the rights of the producer and defends them.
I'm mentioning this because there are some Objectivists who believe that getting huge fines or long jail sentences for copyright and patent infringements should not happen. But if you steal a copyrighted or patented product, the producer has the right to get just compensation or to punish you for stealing his product. So, for a case like Aaron Swartz, who tried to download and then re-distribute the the entire JSTOR data base and then post it to the internet without the owner's permission, deserved to be punished for that infringement. I'm not sure I agree with a fifty year sentence, which the prosecution was aiming for, but when one keeps in mind that JSTOR charges $25 or so for each article, and that he downloaded many hundreds and thousands of such articles without permission, then it can be said that he stole hundreds of millions of dollars worth of intellectual property. And he had to be punished for this action.
Now, it turns out that JSTOR is run by academia, which is, in part, paid for and supported by tax dollars taken by force; but not everything is paid for by the taxes, those universities do charge tuition and other fees, and they do their own research and compile them into JSTOR. This muddies the issue to some degree, but does not change the principle that the creator has a right to set terms and conditions of using his product. Universities and academia should not be supported by taxes, but this does not mean that each and every tax payer or former student or MIT Fellow has unlimited access to those files and articles. This is a clear case of the "Tragedy of the Commons" whereby ownership is difficult to establish, but it does not mean that Aaron Swartz himself owned those articles and property.
Turns out that JSTOR, the digital archive of academic works, is not run or operated by academia (colleges and universities), but rather a corporation who had negotiated with the originators of certain articles and publications to be the distributor of those in digital format. In other words, they have paid for the right to distribute those articles and papers in digital form. I think this makes the case against Swartz even stronger, though JSTOR dropped the charges after he returned the illegal copies and made amends, because it decreases the ides that he was returning something stolen from the people (via taxes to support academia in part). This makes it no different from someone stealing movies and programs from companies who produce those items. And if one looks at the filing for JSTOR, one will find that their total assets are over $100 million and that Swartz attempted to steal every bit of it for himself; which definitely puts him in the category of a major grand theft individual.
Rights are an abstract concept. The fact that you own a particular physical item does not necessarily mean that you own all the rights to it. Just as one can own land and not own the mineral rights to that land, so one can own a physical copy of some item (a movie or a book) but not own the rights of distribution of that product. A stated copyright or a filed patent means that you do not own the distribution rights of that product; and therefore do not have the right to take it upon yourself to distribute it without the rights owner's permission.
Further updates and responses to objections:
Posted 31 March 2013 - 06:38 AM
It is very important to realize that the action of filing for or declaring a copyright or a patent is NOT a declaration that one cannot think about the ideas behind the products nor can prevent you from you yourself making an improvement on the application of the ideas behind the product. There are absolutely no restrictions of thinking or what you do with ideas in your own mind. The restriction is strictly on the fact that the innovator was the one who brought the idea to physical fruition, made a product based upon an idea, which would not exist without him doing so, and he retains the rights to the **product** not the idea behind it. Henry Food cannot prevent you from thinking about the Model T; he cannot prevent you from coming up with a different type of automobile; he cannot prevent you from using mass production techniques. What he can prevent you from doing is making unauthorized copies of his product because by declaring and receiving a patent for the Model T, he is placing a restriction on what you can do with his product -- namely that you cannot reproduce it without his permission, and by buying a Model T you, at least implicitly, agree to those terms and conditions.
Likewise with buying a movie or going to a movie theater to watch a movie. The creator of that movie has placed a restriction on you watching that movie, and the restriction is that you cannot copy it or distribute it without his permission. This is the root of having a copyright.
By declaring that all of my work is copyrighted, I am placing a restriction on what you can do with my essays. You are quite free to read them insofar as I have made them available to you at no charge now (though maybe charging for longer essays in the future), and the only restriction I make by declaring a copyright is that you do not have my permission to distribute them without my permission. I cannot prevent you from thinking through the issues. I cannot prevent you from understanding the ideas behind intellectual property rights. I cannot prevent you from writing your own essay on the topic, pro or con. I cannot prevent you from having an idea in any way whatsoever. What I can prevent you from doing is taking my essay without my permission and putting it somewhere I would rather it not be. That is my right by creating those essays that go from my mind to a blank sheet of paper (digital or otherwise).
Posted 02 April 2013 - 05:25 PM
The idea that the person trying to get a patent but missing the opportunity by 10 minutes is a case of borderline applications. Yes, the second guy likewise was an innovator (assuming he knew nothing about the first person's ideas and practices); but the second guy filed for a patent in order to block all others from using his product without his permission -- so why should he complain that he didn't get there first? would he have the same opinion if he got their first by 10 minutes; would he permit the second guy filing to have his market as well? I think not. I actually know a guy at work who filed for a patent on a heated toilet seat after coming up with the idea while working on a plastic that had metal filings in it and could conduct electricity. He missed it by a week or so. But he was looking forward to having a patent and making millions of dollars, so why begrudge someone else having the same idea and getting there first? But I think it has to be kept in mind that not getting there first is not a punishment in any way. Just as one is not punished if one's best girl marries someone else, so one is not punished if someone beats you to the patent application. Try something else to make millions.
Regarding the time limitations on patents. I think part of this would depend on the broadness of the patent itself. I have heard respected Objectivist intellectuals claim that a patent should be as broad as the concept of the invention, in effect. In other words, when the inventor of the radio filed for a patent, not only should he have a patent on that particular machine, but he should own all frequencies that could possibly be used for communications via EM waves, and every conceivable adaptation of any machine that could use EM waves. This is far too broad, especially considering the technical limitations of the first radio. Over the years, patents have become more and more narrowly defined. So much so that a little change can be filed for a new patent, like bending a wrench a few angles to better get at an automobile part. Why wouldn't the inventor of the wrench have a patent that would also cover minor variations of his original application? If a patent is severely limited, then I don't see the need to have an expiration date on a patent; but certainly if the case were different and the first radio maker owned all the frequencies and every possible configuration of a machine that used EM waves, then a time limit would be set up so as to not stifle innovations further down the line. This is very different than copyrights which are no hindrance to innovation because there is not necessity of having a part of one person's novel incorporated into one's own, for example. For machinery, often times a part patented by one person is crucial to the patent of another innovator's machinery -- like a transmission on a car, which they used to not have. So, a time limit is placed on them so innovation will not be stopped for the life-time of the innovator.
By the way, one reason I am taking up this issue is to press the issue that parts of machines are patentable, and that software -- yes software -- is a part of a machine. The specific configurations of electrical-magnetic "bumps" are like, say, gears on a transmission, which can be patented. Too often some programmers confuse a program with an English story or article, because they can read it, forgetting that as a part of a machine, they are like miniature gears of a complex machine; and are therefore patentable. But many programmers complain that they cannot write their specific program for profit if they have to pay for other people's software inventions. This helps stress the point of the time expirations of patents. I've done some programming, and yes, it is very difficult to come up with unique ways of getting a computer to do something as a whole. If software patents lasted until the death of the software programmer and some years after his death, then no one would be able to write better programs based upon ideas made possible by the first innovator.
Posted 03 April 2013 - 01:54 PM
First of all, Objectivism is NOT libertarianism, and the fact that libertarianism has no principles and no philosophy has been pointed out so many times that if someone states that they are a libertarian then they are automatically not an Objectivist. They have nothing rational to say about rights whatsoever.
Second, I did give the objective, fact based, reason to have patents and copyrights in my opening statement on the topic -- the fact is that it takes and individual human mind thinking about reality to come up with a patentable product or an treatise or article of some type that can be copyrighted; and because he created it, he has the right to decide how it is going to be used and how it is going to be distributed.
Third, there is no in-perpetuity for anything invented by an individual mind because the individual does not live for an eternity. The typical expiration for copyrights is the life of the creator plus a few years to make inheritance possible. The reason patents are not handled the same way is that a patented material thing or gadget cannot be used to prevent others from improving on his work -- the original inventor has no right to stand in someone else's way for his own invention. I gave the example of one man creating a smaller part of a more complex piece of machinery, say a small gear that goes inside a automobile transmission. For a limited time, he can outright prevent the use of the gear in that manner-- he can prevent the car manufacturer from distributing his invent in the car's manufacturing, if he chooses not to let the car manufacturer reproduce his invention. But he has no right in-perpetuity to do this to anyone. He can protect his own patent, but that's it; he cannot stand in the way of someone else for an unlimited amount of time.
And it is your libertarian background and your refusal to think in terms of principles that makes it impossible for you to realize that neither patents nor copyrights are rights granted by the State. NO rights are granted by the State. They all stem from the nature of reality and man's nature as a rational being able to create things using his rational method and dealing with reality as a rational being. The State only protects rights, it does not grant them.
Here is a debate on copyrights and patents. I have to agree with Adam Mossoff and Ayn Rand that a patent is a protection of property owned by the inventor / writer and is not something special granted by government favors. As I have argued elsewhere, the designation of a patent or a copyright is a statement before the purchase that you agree to the terms of not reproducing the inventor / writers property. It is not something super-added to the process of creating something new by special government grants.
In response to someone pointing out the following argument against intellectual property rights:
That's an extremely rationalistic essay trying to make arguments from definitions instead of from the facts of reality. He claims that in law there is a difference between property rights normally recognized as having possession of a material thing versus intellectual property rights which does not necessarily mean you have possession of a material thing (i.e. someone else has it and you are placing restrictions on it). But the concept of rights is an abstract concept. As Adam Mossoff points out on his side of the argument above, the fact that there is property rights **at all** stems from man's rational mind, so the property rights argument, properly understood, falls under the intellectual property rights rather than the other way around. It is only the recognition that someone has to do something to earn that physical property that anyone can have any inkling that there are property rights involved in the possession of that material thing. So, property rights to land also falls under the category of having been made or created by the active human mind creating something in reality -- i.e. you have to work somehow, using your own mind, to get money to buy that land in the first place. All moral and legal possessions of property of any type derives from the fact that it took mental effort and physical follow-through to be able to have that property; thus making all types of property an intellectual property distinction.
The article is also rationalistic to say nothing is taken away from the creator if someone else uses the idea and doesn't compensate the creator for that idea. Every time that happens, the creator loses a sale; a sale that is his by right of having created that item in the first place. And intellectual property rights are not just based on having a good idea, like his pencil sharpening method. Having an idea per se does not grant you any sort of right as such to prevent others from using it. What it does do is identify the fact that the creator came up with an idea, and put it into practice in a material way -- like a process patent -- and because he did that, yes he does have the right to say it is his in material form and that he deserves to be paid for it. What is taken away from the creator is his exclusive right to decide who does and who does not get to use his idea in that material form exclusively because he came up with it first.
There is no moral argument against property rights, intellectual or material. It doesn't matter what the law says or what the legal foundations have been in the past. What matters, as I have pointed out repeatedly here is the moral right of the creator to set the terms and conditions of using his material thing. He says you cannot copy it without his permission, and that the way it is. Period. All legal matters stem from this moral argument and not vice versa. It doesn't matter what legal authority says about what previous legal precedings. The moral right of being the creator trumps the legal argument.
The legal foundation presenting this paper above has no moral grounding in his arguments; and it is therefore a void argument.
I have a little bit of time on my hand, so I will answer some of the rejections to my position a bit, but I refuse to argue for the sake of arguing. No, my position is not a religious or an intrinsicist position. I had previously blocked a few people in this thread and on oo.net because they have no objective outlook on a free society. If the person creating the product for the very first time does not thereby acquire all imaginable rights to that product by the fact of creating it for the very first time, then there are no rights associated with the creation of a product whatsoever -- which is basically the position some of you are taking, which is total BS.
In a wilderness scenario, you gain the rights to the land by utilizing it for your own survival, and because you gain the rights by using it in such a way, you can exclude others from coming onto your land. The issue of intellectual property rights is no different. In the case whereby you create something new for the purpose of enhancing your survival -- you make a movie or an essay or a new pencil sharpener or whatever, by the mere fact of creating it makes it similar to the wilderness scenario stated above. You are in new territory and thereby gain all the rights to that product. And, yes, that means you can exclude others from making that product or make them pay you for that product before they can use it.
That some of you do not understand this, and that some of you are actually moderators of oo.net and do not understand that issue is one reason oo.net lacks any serious interest from those who take Objectivism seriously. There is no rationalistic argument from some prior premise that makes it "logically clear" that the one who creates it for the first time has all the rights to that product. Those facts is what gives him those rights.