As I noted last week, the concept of intellectual property is an oxymoron. Today I want to expand on that by pointing out another absurdity of intellectual property.
Let’s consider a hypothetical situation where I own an electronics store and you just purchased a laptop from me. There was nothing unusual about the transaction. You didn’t have to read any contracts or sign any papers. You handed me cash and I handed you a laptop. The laptop is yours, right? Not so fast.
When you get home and power up your new laptop for the first time, you are presented with a legal contract that says you can’t make any modifications to the laptop’s hardware, install any operating system other than the one that came with the laptop, or install any software not distributed by the manufacturer’s app store. If you don’t agree with the contract, you can’t use the computer.
What I just described is a slightly hyperbolic version of a shrink wrap license. When you purchase a piece of software, you usually aren’t presented with the end user license agreement (EULA), the document that lays out what you can and can’t do with the software, until after the sale. No big deal, you may think, because if you don’t agree with the post-sale EULA, you can just return the software, right? You may find that easier said than done. Most stores won’t take back copies of software that have been opened and if you read the EULAs for online app stores, there are often severe restrictions in place in regards to returning purchases. But even if you can return the software, why should that be considered your only form of recourse? Why should you be bound to any terms presented after the transaction has been concluded?
This is yet another characteristic of intellectual property that I doubt most people would so willingly accept if it were applied to physical property. If you purchased a car and the dealer decided to foist a bunch of restriction on you after you paid for the vehicle but before you drove it off of the lot (i.e. it’s your property but you haven’t gotten into the car since it became your property), would you take them seriously? Most people probably wouldn’t. I certainly wouldn’t. So why is such a practice considered acceptable for intellectual property?
Mr. Burg continues his endless whining with this piece. This entire column comes down to his OUTRAGE at the timing of presentation of terms of sale. Waaaaah!
If in fact something is sold and then, after the fact, the terms of sale are altered, and there is no opportunity to cancel the sale at that time, then Mr. Burg (or anyone else) has a clear case for damages and can file a suit to collect them. The fact that he doesn’t take that action speaks worlds. What he really wants is for the government to outlaw sales whenever the wording of the terms doesn’t please him.
What an adult does when someone offers a product on terms he does not like is to walk away from the sale. Not Mr. Burg. His reaction is to start whining and demand that the terms be altered to suit his desires. In this, he’s a perfect representative of the Entitled Generation. The future of America is indeed bright, with this kind of attitude running loose!
It appears that I struck a nerve and that has caused you to throw a temper tantrum.
A case that would be thrown out immediately because the same government that administers the courts also allows such post-sale changes via its intellectual property laws.
Reading is FUNdamental. If you read the post slowly you might recognize that I’m specifically talking about changes to the terms that occur after the sale.
I’m cheered when anti-IP folks offer real, not theoretical, examples. Consider the following, then:
1. An inventor arranges several meetings with a big corporation that is perfect to buy his invention. At each one, corporate IT coaxes more and more details on the invention, until at the last meeting the CEO says to the inventor: “I think we can reverse engineer your gift now, sucker. I don’t call it ‘invention’ because it doesn’t really exist – it’s non-property. Don’t let the door hit you in the ass on your way out.”
2. A rival to J.R.R. Tolkien transmits his novel to his publisher from an airport public wifi. The text is intercepted, given to a print-on-demand publisher, and distributed to America, making the thief a millionaire. But we can’t call him a thief: He didn’t steal any property, and the digital non-property was acquired in a setting with no expectation of privacy.
3. A Chinese firm is contracted to make mass copies of a new Disney movie – let’s call it The Lion King. They do fulfill this service, but at the same time make and sell and take pure profit from an extra million copies.
So now, assuming that you and all those on the anti-IP bandwagon have smashed intellectual property rights, I’m sure you’ll be very pleased with the following:
1. The inventor gets squat; the corporation makes millions off the non-stolen non-property that it acquired from the non-inventor.
2. The rival to Tolkien gets not one red cent from the non-stolen non-property that it acquired from the non-writer.
3. Disney sales of the new movie tank and its stock drops; but the Chinese princes who arranged the non-theft of non-property rake in millions.
Many developers who have interviewed with companies claim that they suffered exactly this kind of problem. During the interview they were asked to write some code to demonstrate their ability. After not receiving the job they noticed that the code they wrote appeared in a future release of a company’s product. They had no legal recourse because even though copyright is granted automatically to an author unless it is signed away (which they state they never did), the argument boils down to he said, she said and in the government’s courts the party with the most money tends to win such cases.
The only recourse is relying on trade secrets (which is what Coke and Kentucky Fried Chicken do rather than get patents on their formulas). Don’t provide enough information for somebody to easily reverse engineer your invention. Better yet, in this day and age, don’t go to a third-party to sell your invention. Instead utilize alternate means, such as crowd funding, to raise the capital you need to sell the product directly yourself.
I’m glad you brought up Tolkien because he is an author who successfully dealt with unauthorized reprints of his works. When Ace decided to publish unauthorized paperback versions of The Lord of the Rings, Tolkien started a campaign to raise awareness of the unauthorized nature with American fans. The backlash from Tolkien’s campaign caused many sellers to drop the unauthorized Ace edition. And when an authorized version was released in the United States, the fan base bought the more expensive authorized edition over the cheaper unauthorized edition:
So there are plenty of mechanisms available to deal with such situations that don’t require the arbitrary decrees of government agencies.
You just described a situation that commonly happens today in spite of copyright laws. Chinese courts tend to be very lax when it comes to enforcing foreign copyrights and patents. If a Chinese firm steals an invention you patented, you usually have little in the way of recourse. So this scenario is really a demonstration of how ineffective the concept of intellectual property is. Your best bet may be to follow Tolkien’s tactic of starting a campaign to raise awareness of the theft and hope you can convince buyers to prefer your authorized product over the unauthorized one.
Chris,
Thanks for the detailed reply.
Yes, all the examples were to map to actual cases, as you knew.
Your replies remind me of the anarchist reply of what to do with obnoxious, hard-to-prosecute actors: Ostracize them. I can just imagine a tattooed, pierced, 300-pound biker living next door, playing loud heavy metal at 3 am, with rubbish piled in his front yard saying: “Ooh, yeah, I’m OSTRACIZED, ouchy-ouchy, I’m hurt — ha ha ha ha ha ha!”
In other words, the proposed remedies assume a society filled with conscientious, fully-informed citizens who rationally consider punishments and rewards. And this may be quite a stretch.
Thanks,
Terry