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Antibiotics stay useful only so long as they are not overused or stopped too early. Either one brings the spread of resistant bacteria. In a libertarian property rights regime, where drugs were in principle freely available to any who wanted them, what, if anything, would prevent the quick overuse of antibiotics, meaning a loss to both the drug companies who develop them and the consumers who want to take them only when they are genuinely sick?
I've offered a number of solutions and responded to the feedback from my earlier post. Further discussion is welcome, as I really am just discovering these questions myself.
The distinction came from Tom Palmer's article, in which he argues against it. I did not find his argument satisfying, and I hope to post soon about my difficulties with it.
Your discussion of subjective utility is beside the point here, though. If I am able to put various conditions on the sale of an item, why can those conditions never include the prohibition against duplication? What is so wrong with that?
And why, again, must trade secrecy be the only protection against reverse engineering? Why can't we also protect those forms of intellectual property that don't come with the built-in benefit of being hard to figure out?
William J. Stepp -
4/17/2005
"Why can't an inventor sell a product's physical manifestation, but only on the condition that he is not selling a license to manufacture? What's wrong with that?"
I'm not sure what you mean by selling the physical manifestation of a product. People consume a product's services, which they evaluate subjectively. Different people evaluate the utility of the same physical good differently. Joe might buy a beer because it's less filling and not care at all about the taste; John might buy it because it tastes great but cares not a whit about getting filled up.
The physical manifestations might be completely irrelevant, or matter a little, or a lot.
In any event, I don't see a big market (or even any market) for selling the "physical manifestations" of a product--after all, capitalists sell the "whole package," not just the physical effects. Why would anyone limit his market by limiting the package of wants that his product might satisfy?
Does anyone buy bottled water or Coca-Cola, etc. for their "physical manifestations"?
I doubt Reardon produced Reardon metal solely for its physical manifestations. Surely its utility stemmed from what it could do for peoples' projects.
People can contractually agree to buy a product from someone and not manufacture it. Presumably in some cases, they could demand a discount not to manufacture, so this might be one way the market could address your complaint.
But the State should butt out, as it should in everything else in life.
Jason Kuznicki -
4/17/2005
I should also add that for industrial products where trade secrets won't be effective in protecting intellectual property, I still find that patents are also legitimate. The example of a new metal alloy, one that could easily be analyzed and duplicated, is actually quite a good one. If I worked at developing this alloy, what entitles someone else to profit from it if I do not wish them to?
Jason Kuznicki -
4/17/2005
A copyright also in some sense infringes on the liberty of those not holding the copyright. After all, why CAN'T I sell bottled water and call it Evian? Isn't this a free country--or isn't it supposed to be? Why is my liberty to use those particular letters, in this particular context, being denied to me?
The answer to my mind is that there is an apparent conflict between two liberty interests, and in such cases we must ask a somewhat deeper question: Why do liberties exist in the first place? And which liberty must then prevail?
I believe that liberties exist to reward the creators of value, and this is why the system of trademarks, copyrights, and even patents seems justified to me. When you have a good idea, it is right and proper for you to profit from it. It is wrong for someone else to profit on your labor, even if it happens that you labor in a field where it is easy for another to pick up your idea and use it himself. Trade secrets are fine, but in areas where trade secrets won't do the job (music, literature, etc are prime examples), I find that copyright is legitimate.
To go back to our example of a book you had written: You belittled the idea that I might sell it for one dollar cheaper and cut you out of the market, suggesting that this was impractical. Perhaps. But how would you feel if your book--on which you'd spent much of your life--was distributed everywhere for free via the Internet? How would authors like you ever hope to make a living? And beyond the utilitarian issue, doesn't there seem something fundamentally unjust about that?
Jason Kuznicki -
4/17/2005
The special thing about the metal was its formulation, not its name. The former is patentable, and was one of the issues in Atlas Shrugged. The latter would be covered by trademark, but this wasn't what he cared about, nor does it seem to be our point of contention.
Let me ask you this question, as it was one I found unsatisfyingly answered in the articles you recommended: Why can't an inventor sell a product's physical manifestation, but only on the condition that he is not selling a license to manufacture? What's wrong with that?
William J. Stepp -
4/17/2005
Well, theft is theft and I assume you won't criticize me for being against it. As Rothbard points out in his discussion of patents, the law proscribes and punishes theft. If someone breaks into your office and steals your blueprint for the Next Big Thing, why shouldn't he be punished as a thief and made to disgorge the stolen property and return it to you?
That part of the law is consitent with property rights, and is a lot different from the law of patents, which invades property rights.
William J. Stepp -
4/17/2005
Shifting the discussion to trademarks, which are consistent with libertarianism, you have me scratching my head as to why Reardon is the only one allowed to make Reardon metal? It's because he has a trademark to it, or so I gather. (It's been ages since I've read the book and my memory is hazy here. I had a Rand period in school that lasted six months or so. I quickly followed my sister out of the Church of Rand and fell into that of Rothbard, which she missed. Some might say I took a wrong turn.)
But he has no right to exclude an independent inventor of the metal with the same metallurgical and chemical properties as Reardon metal, any more than the Evian company has a right to exclude anyone else from producing bottled water, as long as it's not called Evian.
Jason Kuznicki -
4/17/2005
I'm starting this as a new thread since the old one seems to have talked itself out. Having read several of the articles you mention, I fail to see why a regime of trade secrets--where you can go to the government or your favorite PDA to punish people who steal your secret--is all that different from a regime of patents, trademarks, and copyrights, where you can go to the government or your favorite PDA to punish people who steal your intellectual property, but you don't have to take the extra, often dangerous and impractical step of keeping the thing secret in the first place.
Jason Kuznicki -
4/17/2005
Well, yes... I suppose I am being a bit brief because these are only comments. It takes some improvement to the land before you can actually call it your own. The key difference remains between us though: I would give, say, Hank Reardon the right to profit from his invention. You would reply, "Why is Reardon the only one allowed to make Reardon metal?"
Now do the same with physical property, and we'll have a communism.
William J. Stepp -
4/17/2005
"If I claim a plot of unclaimed land, then that land is mine. Am I violating your property rights because you cannot trespass on it? Certainly not. The same principle applies here."
Actually, this is incorrect, or at least in need of amending. A mere claim doesn't suffice to make you a land owner--you have to homestead the land by occupying and working it. Waving your hand in the air and claiming an unowned parcel of land like Columbus on behalf of Ferdinand and Isabella would violate my right to it if I came along five minutes later and set up camp on the land and started planting on it.
And you didn't state in your first sentence, nor did I deny, that a homesteader has a right to prevent another would-be homesteader from taking his property. You broght in "homesteader" after I mentioned it, in your reply.
Nor did I conflate independent invention and theft.
As for the theory that he who makes the effort should get the reward, I agree; but the reward should be a profit resulting from a market transaction, and not intermediated by a state grant of monopoly privilege.
As for plagiarism, people who commit it are usually found out (M.L. King Jr., Michael Bellesiles, Doris Kearns Goodwin, Stephen Ambrose--gee anyone on the right ever do this?). My guess is that the vast majority of cases are undergraduates who are going nowhere and who are hurting mainly themselves.
And I think there's software that detects plagiarism, which might make it virtually impossible to do someday.
Jason Kuznicki -
4/17/2005
I see nothing absurd in claiming that a homesteader has the right to prevent someone else from homesteading upon the land he has claimed.
I do, however, see something absurd in your conflating of independent invention and theft. If two people really do discover something independently, then perhaps an allowance should be made for them. Otherwise, I would hold to a Randian theory of desert: He who makes the effort should get the reward.
And your strawman example of plagiarism is nothing like what I deal with in the academy, where real cases can actually be very difficult to detect.
William J. Stepp -
4/17/2005
"If I claim a plot of unclaimed land, then that land is mine. Am I violating your property rights because you cannot trespass on it? Certainly not. The same principle applies here."
The homesteading principle doesn't apply to inventions, and I have never seen an argument that it does, even by defenders of patents. The correct analogy would be that a homesteader of land allegedly has a right to prevent someone else from homesteading his own land, which clearly is absurd. If Jones invents a widget and therefore homesteads it, he has no right to prevent Smith from independently inventing the same thing. The fact that they are physically the same is irrelevant--they are the products of two different people, working independently, just as the two homesteaded land parcels are. Your theory is fallacious.
"How much investment is 'appropriate?' That's not for us to decide--so of course I have begged the question. It's the inventor who decides how much work to put into something before declaring it done. And whether he's put a profitable amount of work into the thing is only for the market to decide. Patents are the mechanism that allow the market to do so."
Of course it's up to the market to determine how much investment is appropriate and we agree on this, as all libertarians do. But profit and loss, not patents, are the appropriate institutional mechanism to sort out the winners and losers. Patents are a violent, state-imposed invasion of the market process.
" 'Since patents prevent, or at least impede, independent inventions, it may well be the case that the patent regime actually results in less invention and innovation than a patent-free world.' "
"Tell this to the starving artists of every era before the modern one."
I think you're confusing patents with copyrights, even if
they're both intellectual property. Writers and artists typically resort to the latter. Tom Palmer has provided a good critique of copyright in two articles, which can be read at his website.
And to set the record straight, there are lots of starving artists around today. There are also lots of starving inventors around too. This might come as a shock, but most inventions don't earn their cost of capital, despite the patent regime. Oddly, and contrary to your theory, that doesn't stop would-be Edisons from tinkering with new ideas, even though they probably have even less of a shot of getting rich than their kid does of making it to the major leagues.
"Suppose you spent twenty years writing a book. You call it A History of Economics, by William J. Stepp.
Now I don't really care to do all that hard work, so I buy a copy of your book from Amazon, send it off to another publisher, and I call it A History of Economics, by Jason T. Kuznicki. I sell it for one dollar less than you do.
Am I correct that all of this would be perfectly fair in your world? And should I stop punishing my students for plagiarism, too?"
Well, if and when I do publish a book, I'm going to (1) insist that it not be copyrighted--we'll see if this flies with any publisher--, but assert my moral right as author to call the book mine (which excludes you from calling it yours); and (2) have a brief statement in the itro. of my theory of copyright.
I would suggest that taking a book on the history of economic thought by me (or by anyone else) and calling it yours would be a money loser from the getgo, so I don't see why you would do it. If you did this, I think you'd lose even more, as your reputation would suffer (maybe you don't care about it), and word would get around the internet in a nanosecond. Presumably your employer would do to you what Emory did to Mr. Bellesiles.
So yes, this would be perfectly fair in my world.
As for your students committing plagiarism, you seem to think that the absence of intellectual property rights would make it right to do this. .
Here's my 1000-page dissertation, Prof. K. It's called Human Action. Honest.
Uh huh.
Jason Kuznicki -
4/17/2005
"Patents are a monopoly grant by the State to first inventors; they prevent independent inventors from exercising their property rights."
If I claim a plot of unclaimed land, then that land is mine. Am I violating your property rights because you cannot trespass on it? Certainly not. The same principle applies here.
"Your utilitarian defense of patents fails because, as Rothbard points out in Power and Market, it begs the question of how much research investment is appropriate."
How much investment is "appropriate?" That's not for us to decide--so of course I have begged the question. It's the inventor who decides how much work to put into something before declaring it done. And whether he's put a profitable amount of work into the thing is only for the market to decide. Patents are the mechanism that allow the market to do so.
"Since patents prevent, or at least impede, independent inventions, it may well be the case that the patent regime actually results in less invention and innovation than a patent-free world."
Tell this to the starving artists of every era before the modern one.
"Some economists have argued that patents in effect enable inventors to sit on their duffs collecting licensing fees."
Good for them! They have richly earned their leisure, and I hope one day to be just as fortunate. In the meantime, the reward I take from them is that I am able to benefit from their creation (for a modest fee, of course, which is only of marginal use to me anyway).
Let me put it to you this way: Suppose you spent twenty years writing a book. You call it A History of Economics, by William J. Stepp.
Now I don't really care to do all that hard work, so I buy a copy of your book from Amazon, send it off to another publisher, and I call it A History of Economics, by Jason T. Kuznicki. I sell it for one dollar less than you do.
Am I correct that all of this would be perfectly fair in your world? And should I stop punishing my students for plagiarism, too?
Patents are a monopoly grant by the State to first inventors; they prevent independent inventors from exercising their property rights. Patents are therefore an invasion of property rights and are inconsistent with libertarian principles.
Your utilitarian defense of patents fails because, as Rothbard points out in Power and Market, it begs the question of how much research investment is appropriate. He also points out that the argument for patents is much like the infant industry argument for tariffs, in its mistaken assumption that the normal competitive conditions of the market don't encourage investment in inventions.
This is an odd argument for someone allegedly devoted to capitalism and the market to make--capitalism works in every area save for inventions! Of course, there is no empirical evidence for this, and lots of historical evidence against it. Inventions were created before patents existed.
Since patents prevent, or at least impede, independent inventions, it may well be the case that the patent regime actually results in less invention and innovation than a patent-free world. Some economists have argued that patents in effect enable inventors to sit on their duffs collecting licensing fees. Mr. Lemelson (he of the Leni...oops Lemelson Prize) comes to mind here and there have been cases of companies that are essentially just patent mines and do little more than collect fees for licensing patents. Rambus and Scios are examples in the tech world. (The former does have some good proprietary technology, but who knows whether they'll be able to go beyond it.)
You might want to look at P&M (Scholar's Edition, pp. 1133-38 and the literature cited, especially Plant).
You may not be convinced but you'll at least be amused.
Jason Kuznicki -
4/16/2005
I am tempted to turn the question around: By what theory of justice do you presume to deprive the creative of the fruits of their labor? I hadn't thought Rawls to be such an influence in libertarian circles.
For my own part, you should know that I've long considered myself a Randian, and I believe that what legitimately belongs to us is only what we ourselves create or exchange. That's why I would give the profit from an invention to its inventor, and why intellectual property should be protected.
For artistic creations, I would have the protection last the life of the creator. For technologies, which are often the result of collaborations that last for many years and that cost considerably more, I would say that a several-decade period of exclusive ownership is proper.
Without the reward that comes afterward, I can't imagine why anyone would bother putting in the work.
Max Swing -
4/16/2005
Shouldn't the inventors determine, how they'd like to handle their inventions?
I mean, you are guessing about it, but I'd like to know the opinion of engineers, scientists and especially artists.
I have read some remarks by Jay M. Stratcynski (the screenwriter of Babylon 5)about why he likes a copyright and patent system for arts. A writer must make a living from his work and if there weren't a way to protect his work from copying, he'd soon get no money at all. This is a good argument for copyright and patent systems, because the patent system is thought to be the same to a scientist/corporation.
However, it starts to get difficult when we have to decide whether the scientist or group of scientists get to decide about it or the corporation/company that funded the research.
We also have a problem when it comes to the question of simultaneous research. Two scientists discover the same item on different spots in the world. Both have done an incredible job in their research, but scientist A is faster than scientist B. Should we now prohibit scientist B's version, just because he needed longer to figure it out.
As I said, it is difficult to attend and perhaps we should ask the creators themselves, how they would like their achievement to be handled.
William J. Stepp -
4/16/2005
This is an empirical question and one that probably can't be settled to everyone's satisfaction, certainly in a short post. But what is the standard of justice you're using here? And why do you presume that investment in R&D, etc. wouldn't be made absent patents? Why only "a few days of profit"?
I think there's little reason to think that R&D would not thrive if there were no patents.
Jason Kuznicki -
4/16/2005
"Inventions can be patented but ideas cannot."
Well yes, of course. I was speaking colloquially. But describe for me, if you will, how inventors and designers will ever have sufficient reward for their efforts without a system of patent and trademark. I don't think it can be done, and it strikes me as unjust to reward years of hard labor in many cases with nothing more than a few days of profit.
William J. Stepp -
4/16/2005
Inventions can be patented but ideas cannot.
Ideas by themselves aren't going to get you any compensation; you have "embody them" in some product or service that the market demands.
Jason Kuznicki -
4/15/2005
Well, I've never been much in agreement with Rothbard. If I think of a beneficial new idea, that represents an effort that entitles me to whatever compensation I get for it. It certainly doesn't entitle anyone else to compensation, does it?
William J. Stepp -
4/15/2005
I'd bet that a big majority of libertarians would oppose patents on principle. Certainly Rothbard did.
Other economists such as Arnold Plant, Fritz Machlup, and Edith Penrose questioned the patent regime as well.
For an interesting critique of the patent regime by a
"world-renowned environmental leader" (I'm quoting from the inside of the book), see Vandana Shiva, Protect or Plunder? Understanding Intellectual Property Rights (Zed Books, 2001).
Chap. one, "The Role of Patents in History" begins with a secion on Patents as Instruments of Conquest. The second chapter is "The Myth of Patents." Libertarians will disagree with much of what she says, but there are many good points.
Jason Kuznicki -
4/15/2005
These are good questions. Even in the realm of art, I am inclined to allow intellectual property rights to laps after a time. There seems to be no obvious duration to choose aside from the life of the inventor, but that can be very difficult to determine when the work has been produced by a corporation. Extending patents for a certain amount of profit--and declaring them lapsed once that profit is reached--has certain very bad consequences as well.
My final answer? A large, but not too large, and probably arbitrary number of years. I wish I could do better.
Gus diZerega -
4/15/2005
A few questions-
How long should a patent hold? How long shopuld a monopoly on the use of information be protected? The longer it is protected the more it becomes a grant of privilege since the more likely it would have been discovered by others. This is because, unlike art, it is based on impersonal crieteria.
What should be the case if the antibiotic to be patented relied on information that was the product of free research - either publically or foundation funded, as is often the case?
