Robert's post very much resonated with me, if I were the anti-Merges I would expand it and use it as the 150 page intro to my book debunking IP generally. But I am not the anti-Merges. I'd like to take his post one step further and argue that we shouldn't even bother.
The author expends many pages providing philosophical foundations to IP. Much of this reads like desperate grasping for me: a scholar who has spent his whole career working from easy assumptions finds those assumptions challenged by data, this scholar begins an ex-post search for deontological justifications from established titans of the philosophical field in an attempt to salvage his own philosophy. This direction was not convincing.
The foundational justifications the author lays out also disproportionately focus on the “property” in “intellectual property.” Disregarding the intellectual enrichment one obtains from delving into the thinkers cited, I believe that ethical foundations to property rights are unnecessary. Property rights are necessary foundations for modern society as a purely realistic matter. This clear observation obviates any need to seek deeper deontological explanations. I am what the author would call a “skeptical positivist.” I’ve no objection to this, but I do find his beer-choice metaphor about people like me impenetrable and a little underhanded: I enjoy Weiss, Stouts, and Pabst equally, just at different times.
Back to business: the entrée of this discussion should be in the “intellectual” in “intellectual property,” that is, explaining why “intellectual” endeavors may entitle one to property rights over the fruits of those endeavors. My answer is that it shouldn’t.
Two things drive scientific/technological creativity: 1. Desire for profit. 2. The desire to solve problems. One thing in the end guards against the theft of the fruits of creativity and problem solving: jealous guardedness.
Allow me to illustrate: in ancient China there were no patents or IP, yet innovations were made, either out of imperial patronage or by necessity be they military or economic. For two thousand years it led the world in science and innovation. It is about to again. And again, there is essentially zero respect for IP in China.
I may sabotage my point somewhat by citing the fact that China is filing the second highest number of patents in the world after the US right now. But a cursory examination will show that many of these patent filings are spurious and essentially useless due to extremely skewed and politically motivated enforcement. The patent system in China is often used as a political or profit-making tool. A good example is an indigenous innovator who comes up with something, and begins to make a profit off of it. His factory manager steals the process, pays off the government officials in charge of the process, and pledges fealty to the government, promising to use the technology for national benefit. Thus, the patent system is hijacked by unscrupulous entrepreneurs who understand the government’s interests better than the innovator. This is manifested in the US in opportunistic patent poaching by large corporations, and endless patent litigation by individuals seeking to profit from patents. As always, the only winners are lawyers.
Some might argue that private innovation in China is stifled by such phenomenon. They simply fail to recognize that not all innovators are unaware of the government’s incentives. Innovation continues unabated, and indeed, briskly in China, funded to a large extent by the government and in government directed institutes. In China, innovation may follow these steps: 1. the government decides something is desirable. 2. The government orders it be discovered/researched. 3. The government throws its unlimited resources behind the order. 4. The thing is discovered/researched/constructed. 5. Profit for all those involved through spin-off companies. One asks, what if people start infringing on the government’s discoveries? This is irrelevant, an authoritarian government cannot be infringed on.
The critics also fail to recognize that people guard against theft of their inventions. In China, extremely precious innovations are protected jealously, because everyone recognizes that IP law does not exist. Innovation continues.
Another method of innovation comes from a conversation I had with a South Korean engineering scientist about China’s methods. The model is as follows: others innovate and sell into the Chinese market, Chinese entrepreneurs throw a thousand PhDs behind the thing to reverse engineer, improve, then sell for cheaper, outcompeting the foreign design. Yet it seems that no one has stopped innovating and selling into the Chinese market. Desire for profit, it appears, overcomes the lack of IP protections. Some may ask, wouldn’t this powerful ability to reverse engineer deter Chinese innovators? Sure, but I would respond that 1. This is just a risk people take. 2. Other things counteract, such as brand power and sophisticated marketing and business instincts, these have nothing to do with IP.
Economics, therefore, drive innovation, and IP law, whatever foundational justifications are proffered for them, will only become tools for the enterprising, with massive alternative incentives for innovation already supplied by the integrated economy, IP law is merely a mirage, subject to being hijacked for opportunistic profit-driven ends.
Against the reality of these factors, utilitarian or deontological justifications for IP become meaningless. The utilitarian one may have self-fulfilling effects, but deontological attempts can simply be ignored in favor of reality.
And that gets at the point I’m really trying to make: that in a world where practical people driven by utilitarian analysis see that they do not really have to care about IP (or even if for utilitarian reasons they see that they do), conjuring up sophisticated philosophical justifications for IP using 17th – 19th century continental and Anglo-Saxon philosophy is just a waste of everyone’s time.
Of course I do not advocate that the government do the opposite of IP: that of forcing everyone to share their inventions and processes behind those inventions in the public domain. I expect the government to do nothing. I do believe in fame for the originator. Credit where it is due. If the thing is big enough the inventor will be feted, if it is not big enough it is easier to guard its secrets and extract profit. But monopoly profits by government-enforced exclusion? No.
I look forward to reading more about the mid-level principles, which seem more relevant in a world where IP rights already exist and self-perpetuate like some indestructible hydra.
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