I can understand why this is an unpopular take with this community regarding IP rights. Despite this being a valid opinion I'm noticing a lot of people complaining with their downvote button instead of an argument.
1. IP assignment is overwhelmingly not retained by the creator of any work covered by IP. The vast overwhelming majority of engineers, for example, have in their contract of employment assigned all rights to any IP they generate in their work to the company they work for. The same is true of artists who contract with distributors
2. Independent creators often have no ability to successfully defend their IP claims, because said claims require expensive litigation, the cases are never straightforward enough for a summary judgement, and the individual nature of the claims mean that a class action lawsuit is nearly always infeasible
3. The way that IP law has been interpreted, especially under the DMCA, is incredibly abusable. The early history of the DMCA saw massive lawsuits filed by corporations against individuals based on obviously ridiculous numbers calculated as "potential lost sales" using flimsy evidence. A whole new business model of tech patent trolling has created a cottage industry that makes as many spurious claims as it can in order to leech money from businesses without producing anything of value. The current reading of the DMCA stymies users' attempts to repair their devices or even protect their privacy, because they can be criminally liable for attempts to modify devices that can be argued to be partially acting as DRM mechanisms, sometimes on the code running on the device itself.
When we talk about the value of a law or policy, the intent of the law is at best a diagnostic tool for an untested new kind of attempt at something. At the end of the day, it doesn't matter what a policy or law intends, it matters what the effects of the law are when interpreted and enforced. Intellectual Property as a legal paradigm generally is malfunctioning in a lot of places that harm people, harm society, and fail to uphold its promise. I think that the concept of ownership over ideas as a whole is at this phase in humman history doing much, much more harm than good, and needs to be eroded and eventually abolished from law
As for how creative people can make money off of their work in an environment without IP, there's actually a pretty clear answer for this that is not even my observation. Most creative work right now is paid for at production, not based on IP rights. The engineers working at a company are paid for their time and labor, and sign over the IP they produce. Independent artists work on commissions, and at a larger scale, crowdfund their projects. It is only the occasionally very established and wealthy artist or inventor that can really take advantage of IP laws, and their beneficiaries are as it stands mostly large corporations, treating IP as effectively a dragon hoard of speculative assets they can monetize through litigation and threats thereof. Most of the effect of this is stifling, not encouraging, independent innovation
Also, international agreements like the WTO have put the entire globe in a worse situation with regards to COVID vaccines - which need rapid, global distribution to be effective - because of patent rights over those vaccines. While many vaccines have resulted from a large amount of public funding, the IP controlling their production is largely in the hands of private corporations which view non-affiliated production of vaccines as cutting into their bottom line. They not only refuse to share the know-how to ramp up production with organizations trying to build up this capability worldwide, but have threatened to actively shut down such efforts if they happen anyway. This is obviously terrible for humanity as a whole, as we are currently in a situation where existing production and distribution is inadequate to keep ahead of variant evolution
What justifies your stronger claim that IP itself should be done away with?
1. We understand that ideas build on each other. It has always worked this way, and it is overwhelmingly the way humans get things done. Every scientific discovery stands on the shoulders of giants. Every story or song is influenced by ones that came before it. Creativity is valuable, but to define the entirety of a creative endeavor as undeniably the effort of a single person is insane. Because creativity builds on other creativity, any legal concept that tries to parcel out unique contributions of individuals or groups and impose a tariff on them is likely to stifle innovation, because any time it actually comes to matter, it can only create an unnatural block on a creative effort
2. Most people who have worked in a creative field understand that a concept or idea is seldom of much value, and must be executed in some way to be meaningful. Various concepts of intellectual property even try to capture this, e.g. by granting rights over performances or recordings specifically. The best arguments I've heard for "intellectual property" abstractly are as an interim solution for allowing collaborations to produce economic value for the person who didn't control the distribution, but this essentially can't function if we treat these rights as "property", because property entails the right to transfer this property, creating a mechanism to effectively void these rights.
3. Attribution is a valuable ethical principle, and giving people due credit for their ideas is an important part of creative endeavors from science to music, but property rights are simply not the correct framework to legislate this with. False claims of attribution can be fraud or sometimes defamation, and attribution can be proven by the well-understood mechanism of demonstrable prior art. Proof of prior art is more technologically feasible to ensure in an era where we have cryptographic signatures to uniquely prove authenticity and the ability to easily publish something with a timestamp to an archive
I don't think that's fair. I'm responding to a claim that IP is "wrong". The parent poster purported to demonstrate why this is so, and had not done this. The burden of proof is not on me.
You spoke of principles, but I think you got them backwards, and thus sought to clarify what the actual underlying principles are.
I agree with you that the law is dysfunctional in many ways. I especially agree with you that a law should be judged on the outcomes it creates rather than the intent of the policy that motivates it. But I’d suggest the appropriate solution is to improve the law, rather than abolishing IP rights.
Without IP rights, we’d just return to industrial trade secrets, which would only really benefit big business. You would see much less investment in areas where trade secrets are not possible (like most pharmaceutical research for instance). A lot of people already think current-day DRM controls are anti-consumer, but how does a cinema-only movie release sound?
As for art and media, the DMCA had a real problem to solve: The business models of the massive distribution conglomerates that had arisen when publishing and copying information was expensive were infeasible in the face of digital computers that could copy any information with high fidelity and distribute it over the internet. This business model should have collapsed in the face of this technology. The market would have been forced to adjust to some new model, e.g. crowdfunding (as has, again, already happened in even relatively large endeavors considered "independent" because they are not backed by a massive conglomerate). Instead, the market's status quo was prioritized. What needed to happen was for the market to equillibrate to the new reality of these technologies, and it's insane to view the "piracy" fights of the 90s as anything other than that process. DRM controls were, as a technology, a zero-sum game played by distributors against consumers, and some of them should - by any reasonable interpretation of laws against malicious access to a device owned by someone else - be illegal. Criminalization of circumventing DRM is a horrible monster of a law that puts a heavy criminal thumb on the scale in this conflict, prevented the market from equilibrating in favor of consumers or even new players trying new business models in any way, and cemented the dominance of existing players by fiat, giving them the backing of a police state to effectively enforce their business models as law
This very obviously did occur, though perhaps not as quickly as it might have otherwise. The market of CD and DVD sales has absolutely collapsed, and streaming services have taken over, regardless of that fact that this was initially resisted by the industry. But this new paradigm, which offers a much better product to consumers, is only possible because of IP rights. Piracy is no longer the existential threat to this industry that it once was, because legally licensed content has been able to offer a superior user experience (in most cases). But if I was allowed to set up a Netflix clone, host anything I wanted on it, and undercut their prices, then capital allocation to content creation would evaporate immediately. The thing you’re trying to promote access to simply doesn’t exist without these protections, and those protections don’t prevent anybody from crowdsourcing something if they want to.
> In practice, trade secrets don't usually stand up to sophisticated reverse-engineering efforts, and patents frequently and consistently fail to disclose implementation details that are important to how something works.
The ubiquity of out-of-patent technology in the market place seems to undermine the idea that the public doesn’t benefit from capital allocated to IP R&D. You don’t have to think about it for very long to realize that without these protections, allocating capital to innovate production and synthesis processes that can be maintained a secret becomes the most appealing investment for capital that would otherwise be going to patentable R&D.
A stance against IP protections in general is extremely fringe and extremely short sighted. If a system has problems, advocating for abolishing the entire thing isn’t very sensible, especially when it’s a system that has already provided so much benefit to society.
You might hypothesize that those benefits would have been realized even without that system. But that hypothesis doesn’t really stand up to much scrutiny, especially when we know for a fact that the value this system has created is directly quantifiable.
I think the market has demonstrated that this isn’t what most consumers actually want. But in any case, the anti-piracy provisions of the DMCA are so weak, that anybody who wants to can still pirate with almost absolute impunity. I personally think the anti-circumvention provisions violate the 1st amendment. But it’s hard to say this is a significant regulatory failure, because you can avoid the issue entirely by calling any circumvention tools you produce something other than circumvention tools.
The issues with existing IP laws are readily apparent to me, but this doesn’t extend to an argument against IP as a concept in general. Lots of regulatory systems have shortcomings, but it’s a significant leap to conclude that they can’t be improved.
There are example of things that can’t be effectively regulated, without causing significant harm to society. A lot of people would say that illicit drug consumption falls into this category. But in this case the harm caused by the regulation, and it’s shortcomings in actually providing much benefit is very straightforward. There’s really no comparing a situation like that, and the issues created by existing IP laws. In my anecdotal experience, most of the people who take a broad anti-IP stance also tend to hold anti-private property positions in general.
I think at the point where you agree that IP isn't fulfilling its purpose, the burden is on the concept of IP to demonstrate that it is a valuable legal concept, and all extant implementations simply fail to correctly realize it. Since we're playing the game of making wild extrapolative comparisons to arguments we haven't made, your line of argumentation reminds me of kids who balk at using the Soviet Union as an example for pure command economies being a bad idea.
I think property rights are, if not a necessary part of a functional society, at least something that we don't have a reasonable alternative for. In other places in this thread, I've contrasted situations in which property rights make sense with the ridiculous results of trying to apply the same principles to abstract ideas. The claim that it's not sane or coherent to consider ideas property is in no way equivalent to an objection to property rights in general
I think it very obviously is fulfilling its purpose generally speaking. I think this is evident in that fact that consumers have access to an extraordinary variety of technology, and content. The fact is that the prices for access to this are continually falling, the quality of products and services is continually improving, and these factors are continuously improving quality of life across all sectors of society.
The success of this system, and the benefits it provides to everybody is perfectly evident everywhere around us. You can find instances of this system failing, and identify some patterns in those failures, along with particular components of the regulatory framework that are likely responsible for more bad outcomes than good ones. But the system itself has proved its value many times over.
Edit: I also think the extent to which hoarding content collections has fallen out of favor with consumers is rather compelling evidence that the on-demand model is more popular. But that’s a little besides the point.
Classic
A more reasonable approach would be to look at how resources are allocated today. R&D investments are made in areas where IP protections can be maintained. For technological innovations, this is largely through patents, or by not actually disclosing your IP to the public (by offering your innovation as a service rather than a product to your customers). There are examples of business that have attempted to operate without IP protections, but they've frequently been massive failures that have reverted back to asserting IP protections in order to survive (Mongo, Elastic, Docker...).
There's examples of innovation resourced by non-IP related means, but this is obviously not a very successful model, because the level of innovation it produces is tiny compared to the innovation resourced by IP protection. I can't think of any company that has managed to replicate the RHEL model recently. The give something away for free to drive sales of something else model is quite limited in the ways it can be applied, and often times it's back by selling something with IP rights attached to it. Do you think Intel would put so much effort into contributing to Linux if it didn't have other IP that it wanted to sell you to run your Linux on?
In general, it's very easy, starting with a model and a bunch of phenomena, to explain why all the phenomena fit the model, regardless of what the model is. This is why we care about things like randomized controlled trials or recording when a hypothesis fails to predict a result in science
It's also ridiculous to claim that monetary investment in a context that does have a strong concept of IP demonstrates that it creates more innovation: My whole argument is that the value of IP is to hoard it in order to make money, and companies invest in things that produce it because it will make them money. Given the financial incentives involved, it is vacuously true that this will happen under the current laws, and this has no bearing on whether this is more efficient or produces or encourages innovation
In software, a considerable amount of innovation does happen in FOSS, and gets re-used in industry to build products. This just doesn't get captured as said technologies (libraries, drivers, etc) turning a profit themselves because again, the laws as they currently exist do strongly incentivize, with money, doing things the way the most profitable corporations in this space do it, tautologically
Intel contributing to FOSS is a great example of why a company would care about FOSS even in the absence of IP: Intel sells, first and foremost, a physical good that it has invested considerably in infrastructure to produce, which involves a supply chain, equipment, and material expertise that is expensive and difficult to replicate, much less at the scale that lowers their costs. Without software, that physical product would be of little value to most people, but without patents on the chips, Intel would still be able to manufacture and sell chips and turn a profit
With regard to "Most creative work right now is paid for at production". This is clearly false and almost all creative work is created speculatively, with the hope that it can be made profitable through future sales. All video games, all music, all television, all movies.
The only creative works I know of that are paid for at or before production are things on Kickstarter or those lucky enough to win grants or those with wealthy patrons.
No. The existing definition of "creator" as the person who did the creating is perfectly fine. Various supporters, such as those who provided the creator with lodging, food, salary or other provisions are themselves not the creator.
If you pay an engineer to create a psidget, you haven't created anything. The engineer did. You simply exchanged your money for the engineer's creation. This is similar to how paying a farmer for their crops does not turn you into a farmer.
> not the engineer / tools that were used to create
Do not conflate people and tools.
If you have an idea for a widget, and think there might be a market for it, describe what it should do and what it should look like, then pay an engineer to work out the details and pay them, you are undeniably the creator of the widget.
If Netflix decides they want a show that appeals to 10 year old kids who are into pokemon and video games, then pays people to go work up some concepts, then evaluates the concepts, and green lights the project, then gathers together a team of experts to make it, then there is no question Netflix created the show.
People can be used as tools. It's ridiculous to suggest anything else.
Patents are being granted for trivial things, and the courts are to big and too expensive for individuals to be able to exercise the rights they already have.
All people should have equal power under the law (regardless of wealth), whether its an intellectual property dispute, a malpractice lawsuit, or some development application.
This is a dehumanizing viewpoint.
The idea that creative work is produced "speculatively" rather than "at production" is using your ridiculous prior stated assumption that the entity that pays for the production becomes the "creator" of the work. I've already explained why that's insane. This speculative model of content production is a business model that's emerged in the context of extant laws, not an inevitable necessity of production. It is only possible for very entrenched entities with a lot of starting capital that can afford to take risks in this way, and I don't think it's valuable to protect this business model with criminal law
Or the author of a book.
Its not the capital that gives companies ownership of its creation, its the "will made manifest" by wielding said capital.
The company wants the creation to exist, then the manipulates the world around it so that the thing comes into existence.
You talk of companies as if they are not also people. Companies are collections of people.
The person who had the concept of the invention is the inventor. Not the employer who paid him/her, nor the lab assistants who experimented until they got the concept to work.
For example, in the pharmaceutical world, basic drug discoveries made at universities are transferred to large corporations who typically finance further clinical drug trials, before getting approval and marketing the drug.
Note also, this creates pressure to push the new patented expensive drugs, even if much cheaper out-of-patent drugs work just as well.
Also, a lot of industrial R&D is about improving in-house processes. This kind of research may or may not produce 'intellectual property' but it tends to reduce costs and improve efficiency.
Ideas are cheap, don't let the monopolists corral them all and prevent independent technologies from flourishing.
Pharmaceutical production costs are close to zero. It’s the funding of a research pipeline that mostly fails that concentrates all of the costs. If Pfizer spent 10 years on research and clinical trials of a new drug, and I can the next day of the FDA approval produce a generic derivative of their drug, I will drive them out of business. My costs are essentially 0.
And no, not all innovation has been produced by universities.
In reality we have TONS of examples of competition and rnd coming AFTER something loses IP protection
Everything from Movies to 3D printers can be cited as examples of this, Countless movies are based on Public Domain characters, books, and other works that have entered the public domain, and there is a strong case to be made that the reason studios keep remaking the same movies is because TONS of creative works are locked up in IP hell, there is a HUGE public domain hole due to increasing copy right lengths
For patents, look no further than 3d printers. The tech was there for 20+ years, locked away in various patents. The second those patents expired the industry exploded with innovation and plenty of companies investing all kinds of capital in 3d printers...
[0]Roughly the equivalent of 'I believe that if <Fiat Currency> ever served a legitimate purpose, it has now run its course and needs to be dismantled. <Because of Bitcoin/crypto>'
[1]Derision intended
https://github.com/minimaxir/hacker-news-undocumented#downvo...