Steal This Column

“Build a better mousetrap and the world will beat a path to your door.” Maybe so, maybe not … but if so, chances are very good that at least some of the path-beaters will make the journey for the purpose of serving lawsuits.

There’s a lot of big money in play right now, pushing an expansive definition of something euphemistically referred to as “intellectual property.” That big money got to be big money by using government to restrain trade and ban competition. But in the age of the Internet, the whole idea of “intellectual property” finds itself going mano a mano with reality — and losing.

Like so many bad ideas, “intellectual property” seemed like a good idea at the time. The theory was that giving authors and inventors “rights” to their written works (“copyright”) and commercially valuable products or processes (“patent”), would encourage them to write and invent even more.

Under England’s 1710 “Statute of Anne,” authors were given control over publication of their works for 14 years. Patents go much further back in history — a one-year patent law is said to have been on the books in the Greek city of Sybaris as far back as 500 BC.

Fast-forward to 2009. Under US law (the Copyright Term Extension Act of 1998), copyright now extends for the life of an individual author plus 70 years; for a corporate work, 125 years from creation or 95 years from publication, whichever is less. World Trade Organization agreements dictate a minimum patent duration of 20 years.

As copyright terms have been extended, technology has developed which makes them less and less enforceable. Copying a book in 1850 or a record in 1950 was an expensive proposition, profitable only with a large capital investment in printing presses or machines to stamp vinyl. Movies? Fuggedaboudit — your customers would need their own projectors! And if the enterprise got busted, all that money was down the hole.

Cassette tape began to break down that wall for music; the VCR for movies; photocopy for print media; and finally the Internet for pretty much everything.

The reaction of the industries which had made bank on printing books, pressing records and distributing movies wasn’t to seek new revenue models.

Their first reaction was to come up with various schemes to make it harder to copy stuff.

When that failed, their second reaction was to go back to the state for more “protection.” They got it in the form of the Digital Millennium Copyright Act, which criminalizes not just infringement on a particular copyright, but any technology which could allow anyone to infringe on any copyright. Which, of course, hasn’t made a dent in copying, although it’s allowed the industries to make some copiers’ lives miserable.

Patents have gone down a different path. The most visible symptom of their failure is the deluge of frivolous patents (Amazon tried to patent the idea of ordering a book by clicking your mouse). An entire industry of “patent hoarding” has emerged in which charlatans file patents on obvious and routine processes (one guy, parroting Amazon, sought and received a patent on the idea of placing a bet by clicking your mouse) then threaten to sue users of that process unless they buy a “license.” The idea is that the victim will cough up rather than pay the costs of protracted litigation. “Nice process you got there … be a shame if anything happened to it.”

Thomas Jefferson got it right, I think, in his letter of August, 13, 1813 to Isaac McPherson:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

“Intellectual property” was an unsustainable idea, an idea at odds with nature and reality, from the start. And government, of course, managed to bring out the worst in it to boot. If it ever was about protecting authors and inventors, no more — now it’s about protecting corporate dinosaurs from the necessity to adapt.

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