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THREAD: @lindsey_brink & @danieltakash have written a new paper for @niskanencenter on #IP. Should patents and copyrights should be considered “intellectual property” and thus part of the larger system of private property? We conclude the answer is no. /1 niskanencenter.org/blog/new-paper…
@lindsey_brink @DanielTakash @NiskanenCenter The purpose of patents and copyrights is to grant exclusive rights to creative works & innovations so in cases where the cost of innovation is high but the cost of imitation is low, free-riding & copying wouldn’t eliminate the incentive to innovate. /2
@lindsey_brink @DanielTakash @NiskanenCenter As stated in the US Constitution: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” /3
@lindsey_brink @DanielTakash @NiskanenCenter But in recent decades, these grants of special privileges for an expressly stated public benefit have become commonly known as “intellectual property.” /4 
@lindsey_brink @DanielTakash @NiskanenCenter This leads many people to think of patents & copyrights as just another kind of private property, much like land, personal belongings, or financial assets. /5
@lindsey_brink @DanielTakash @NiskanenCenter Which is highly advantageous for partisans of strong, expansive patent & copyright laws. They can claim they seek not special privileges, but simply their rightful due. They can cast their opponents as apologists for “theft” and piracy.” /6
@lindsey_brink @DanielTakash @NiskanenCenter This framing is especially influential on conservatives & other free-market supporters given their strong ideological commitments to private property. /7
@lindsey_brink @DanielTakash @NiskanenCenter They are much more likely to support “intellectual property” than economic regulation to overcome market failures. /8
@lindsey_brink @DanielTakash @NiskanenCenter But today’s #copyright & #patent laws don’t deserve the moral high ground that “intellectual property” confers. “Intellectual monopoly” is a better fit. /9
@lindsey_brink @DanielTakash @NiskanenCenter Ideal objects do not share the qualities that make private property desirable for physical objects b/c ideas are nonrivalrous. /10
@lindsey_brink @DanielTakash @NiskanenCenter An infinite number of people can sing the same song, use the same design for a widget, or read the same story w/out stopping others from doing so. /11
@lindsey_brink @DanielTakash @NiskanenCenter This does not apply to physical objects, which is why property rights so effectively manage scarcity. Clear lines around scarce resources prevent violent struggles due to conflicting claims & promote efficient use of scarce resources. /12
@lindsey_brink @DanielTakash @NiskanenCenter The thief of a piece of land, food, personal property deprives the original owner the ability to use it. The “thief” of an idea does not. This makes it impossible to assert ownership of an ideal object without government intervention. /13
@lindsey_brink @DanielTakash @NiskanenCenter Property rights in physical objects allocates naturally occurring scarcity. Private property rights in ideal goods creates artificial scarcity. /14
@lindsey_brink @DanielTakash @NiskanenCenter The creation of such scarcity may be beneficial. If patents & copyrights improve incentives to invent and create, the artificial scarcity they create may alleviate the real scarcity in the overall supply of useful ideas. /15
@lindsey_brink @DanielTakash @NiskanenCenter But this improvement of incentives can’t just be assumed -- it has to be demonstrated. /16
@lindsey_brink @DanielTakash @NiskanenCenter And it is emphatically not the case that artists & inventors need to capture most or all the benefits they produce in order to have the proper incentives. /17
@lindsey_brink @DanielTakash @NiskanenCenter According to a study by William Nordhaus, innovators capture <4% of total social returns from innovation. /18 capturedeconomy.com/schumpeterian-…
@lindsey_brink @DanielTakash @NiskanenCenter Most of the externalities from innovation, while a boon for society, are “irrelevant” in the sense that it is not necessary for innovators to internalize them an innovation to come into being. /16
@lindsey_brink @DanielTakash @NiskanenCenter Excessive privatization of the intellectual commons doesn’t improve incentives for beneficiaries -- it just gives them excess returns, or “rents.” /17
@lindsey_brink @DanielTakash @NiskanenCenter Furthermore, this excessive privatization can interfere with downstream innovation that is ubiquitous in the creative process. /18
@lindsey_brink @DanielTakash @NiskanenCenter To take one example, look at the opening crawl from Star Wars and compare it to that from Flash Gordon Conquers the universe. Look familiar? /19
@lindsey_brink @DanielTakash @NiskanenCenter In the case of #patents, patent “thicketing” makes it difficult for a would-be inventor to determine whether or not they have the liberty to innovate, forcing them to walk through a legal minefield of lawsuits from patent trolls. /20
@lindsey_brink @DanielTakash @NiskanenCenter Supporters of intellectual property, analogizing from John Locke, argue that artists & inventors should own their ideas so they can enjoy the fruits of their mental labor. /21
@lindsey_brink @DanielTakash @NiskanenCenter We examine this argument at length and find it doesn’t hold up under scrutiny. /22
@lindsey_brink @DanielTakash @NiskanenCenter Artists & inventors can enjoy at least some fruits of their labor without IP And there is no limiting principle to stop expanding this “right” to absurd lengths (ownership of scientific discoveries, eternal copyright terms, etc.) /23
@lindsey_brink @DanielTakash @NiskanenCenter Meanwhile, b/c copyright restrictions extend broadly to “derivative works” & independent coinvention doesn’t receive patent protection, current laws routinely prevent artists & inventors from enjoying any fruits of their mental labors. /24
@lindsey_brink @DanielTakash @NiskanenCenter So is anything left of the idea of “intellectual property”? A moral case can be made for narrow copyright & patent laws that prevent blatant copying and thus protect against commercial exploitation by free-riders. /25
@lindsey_brink @DanielTakash @NiskanenCenter First, copyright terms should be much shorter. Rufus Pollock estimates the optimal term is 15 years. And copyright should also require mandatory registration and notice again. /27 capturedeconomy.com/forever-minus-…
@lindsey_brink @DanielTakash @NiskanenCenter Furthermore, infringement should be limited to commercial exploitation and shouldn’t include sharing among customers. And all bona fide original works should be considered non-infringing regardless of whether they’re “derivative works.” /28
@lindsey_brink @DanielTakash @NiskanenCenter #DMCA anti-circumvention restrictions should also be done away with. Privately installed locks are fine, but it is not the role of the government to restrict what others can do with their property once purchased. /29
@lindsey_brink @DanielTakash @NiskanenCenter In the case of patents, software and business patents should be done away with entirely. They are often highly vague, often found invalid, and enrich trolls and lawyers at the expense of real innovators. /30
@lindsey_brink @DanielTakash @NiskanenCenter Patent eligibility must be tightened. Part of this would come from expanding the @USPTO workforce and giving examiners more time. But an easy fix would be to require a working prototype before a patent can be received. /31
@lindsey_brink @DanielTakash @NiskanenCenter @uspto Independent invention must be allowed. If an accused infringer can show independent discovery, both parties should be granted a patent, or the infringer should be able to claim independent invention as an affirmative defense. /32
@lindsey_brink @DanielTakash @NiskanenCenter @uspto Until such changes are made, ditch the term “intellectual property” and use “intellectual monopoly” instead. #IP should not be viewed as a right. It is a government-granted privilege and ought to be treated as such. /END niskanencenter.org/blog/new-paper…
