Against Intellectual Property

Intellectual Property Laws are Ineffective

I’ve enjoyed pointing out the absurdities that the concept of intellectual property enables. Now I want to address the matter from a more pragmatic angle.

Gun rights activists like to point out the fact that gun control laws are ineffective and thus passing them is pointless. Advocates for drug legalization like to point out the fact that drug prohibitions are ineffective and should thus be repealed. Both are sound arguments. Investing resources into enforcing ineffective laws is a waste. Those resources would be better redirected at effective means of addressing problems. Many of the people who make those two arguments are surprisingly inconsistent with their logic when it comes to intellectual property laws though.

Intellectual property laws are ineffective. I can pirate almost any creative work right now with a few keystrokes thanks to numerous piracy websites. The most notorious of these sites is The Pirate Bay. Governments around the world have attempted to use intellectual property laws to shutdown The Pirate Bay for more than a decade but the site remains online. Even when governments are able to shutdown a piracy site, several new ones appear in their place. And those are clearnet sites whose server locations and operators are, for the most part, easily found. There is a whole world of “darknet” piracy sites hidden with Tor Hidden Service, I2P, and similar protocols.

Piracy can’t even be thwarted in the physical world. Everything from counterfeit designer clothing and fashion accessories to counterfeit electronics can be readily had. Even the government of the United States can’t reliably distinguish counterfeit components from authentic ones.

Advocates of intellectual property continue to claim that intellectual property laws protect inventors and authors of creative works but the evidence indicates otherwise.

Intellectual property is a fairly modern concept. Before it came into being inventors and authors came up with other strategies to protect their works. The same is still true today even with intellectual property laws on the books. Coca-Cola, for example, doesn’t have a patent on its formula. Instead it relies on keeping it a secret. Kentucky Fried Chicken relies on the same strategy. Many online content creators make a living on content that they release for free. How do they accomplish this? By urging their fans to support them through services like Patreon. For a fee Twitch viewers can subscribe to the channels of creators they enjoy to support them. YouTube allows creators to monetize videos through advertising. Many inventors and authors utilize crowdsourcing services such as Kickstarter to get paid upfront before releasing their latest product.

Netflix, Spotify, and iTunes Music have also demonstrated that piracy can be reduced by offering a product in a convenient package at a reasonable price. Why bother searching through various pirating sites for a song when you can pay $10 a month to Spotify or Apple to access a vast all-you-can-consume buffet of music? Your time is worth money after all and for many people $10 a month isn’t a lot of money.

None of these strategies would likely exist if intellectual property laws were effective. If gun control laws and drug prohibitions are argued to be pointless because they’re ineffective, then so should intellectual property laws.

Changing the Rules Way After the Sale

Nintendo believes it can use its intellectual property claims to prevent you from monetizing any footage you make of its video games. Restrictions like this are generally only presented in the end user license agreement (EULA) after you’ve purchased the game. But what happens when the restriction is implemented retroactively?

Today it’s understood that when you purchase a software package, you will be presented with pages and pages of legalese when you first attempt to use it. That wasn’t always the case. When you purchased old Nintendo Entertainment System (NES) or Super Nintendo Entertainment System (SNES) games, the boxes didn’t include contracts that you had to sign and send off to Nintendo before receiving an actual copy of the game nor did the games themselves present you with a EULA to which you had to agree before playing.

Nintendo is a notoriously litigious company and a few years ago was using the Digital Millennium Copyright Act (DMCA) to have footage of things like altered Super Mario World levels removed from YouTube. Because of the conditions I mentioned above, nobody who purchased a copy of Super Mario World for the SNES agreed to not alter the contents of the cartridge. They didn’t agree to any restrictions whatsoever. But through the magical process of intellectual property, namely the copyrights granted to Nintendo by the government over the characters that appear in Super Mario World as well as the software itself, Nintendo is able to change the rules way after the sales occurred.

This absurdity is compounded by the fact that copyrights can remain valid for the life of the creator plus 70, 95, or 120 years after their death [PDF] depending on the type of work. Compounding the absurdity even more is the fact that copyright terms that were already ridiculously long were extended whenever the copyright for Micky Mouse was about to expire (hence why it is often called the Mickey Mouse Law). If we go by precedent, the stupidly long terms we’re currently suffering under will likely be extended again and again. That means Nintendo could continue adding new restrictions to old NES and SNES games for decades to come.

Imagine if this characteristic of copyright law was applied to physical property. Let’s say you purchased a Ford F-150 today. Now let’s fast forward two decades. You still own the F-150 and have had to resort to having new parts custom fabricated because all of the major replacement parts manufacturers stopped producing new parts. One day you receive a letter in the mail from Ford, which is a cease and desist order for installing custom fabricated parts in the truck. Ford decided to pull a John Deere by claiming its copyrights to the software on the truck grant it the right to restrict you from maintaining your 20-year-old truck. It sounds pretty absurd, doesn’t it? But that’s the reality people are facing with NES and SNES games that they purchased two decades ago.

Changing the Rules After the Sale

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?

Intellectual Property Means Not Owning Property

I make no secret of the fact that I don’t subscribe to the concept of intellectual property. The biggest reason I don’t subscribe to the concept is because the concept itself is an oxymoron. Property implies ownership and ownership implies absolute control. Intellectual property takes the form of copyrights, trademarks, and patents. If you create a song and are granted a copyright, does that mean you own it? No. The copyright is granted by a government agency. The agency dictates the terms of the copyright. Usually it dictates limitations such as a time frame (for example, your copyright is only valid for so many years). The same is true of trademarks and patents. Receiving a copyright does not grant absolute control, it grants limited controls. Under the concept of intellectual property the only ownership that can be said to exist is government ownership over all creative works.

Things are even worse for consumers. Consider Nintendo’s recent announcement:

For nearly three years now, creators who wanted to make money from videos that included footage of Nintendo games had to go through the onerous approval and content requirements of the Nintendo Creators Program, which also gave Nintendo a 30 percent cut of any ad revenues. Today, Nintendo announced it would be halting that program at the end of the year, in favor of a new set of “basic rules” for video creators. If those rules are followed, Nintendo now says, “we will not object to your use of gameplay footage and/or screenshots captured from games for which Nintendo owns the copyright.”

[…]

In addition, Nintendo says video creators can only monetize these videos through a number of official partner programs on a handful of platforms, including YouTube, Twitter, Twitch, and Facebook.

When you pay for a Nintendo game, you’re only paying for the privilege of playing it as far as Nintendo is concerned. If you dared to record yourself enjoying “your” game and clicked the monetize button on YouTube, you could expect a take down notice from Nintendo’s legal department because, as far as the company was concerned, it owned any footage made of its games and determined that it wouldn’t allow anybody to profit from “its” footage. Nintendo eventually eased up a bit and announced that it would allow you to profit from “its” footage so long as you gave Nintendo a 30 percent cut of the profits. Now it’s changing the rules again because as the owner of the games and, according to it at least, all footage of the games, it has the legal authority to do so. While you don’t have to become part of Nintendo’s Partner Program, you are restricted on where you can post footage from which you want to profit.

Imagine if these restrictions allowed under the concept of intellectual property were expanded to actual property. The construction company that built your home might be able to restrict you from monetizing any footage you made of the house. The manufacturer that built your vehicle might not allow you to post pictures of it on Instagram but only on Flickr. The manufacturer that built your computer might prohibit you from making an unboxing video. If any of the rules that apply to the concept of intellectual property were applied to actual property, most people would probably recognize how ridiculous the situation is.

In my opinion if you purchase a copy of a game, you should own that copy. You should be allowed to do whatever you want with it. If you want to record yourself playing it while you’re snorting coke off of a hooker’s ass and monetize that video, you should be allowed to do so (I also believe that you should be allowed to snort coke off of a hooker’s ass). There shouldn’t be a loophole that says any footage of that game is owned by the developer nor should there be any restriction preventing you from profiting from the game you purchased.

Reliving the Good Old Days of Colonialism

Colonialism is dead, or is it? France seems to be trying to relive the good old days where it would plant a flag in a foreign land and claim it as its own:

A French-born American has now sued his home country because, he claims, the Ministry of Foreign Affairs has illegally seized a domain that he’s owned since 1994: France.com.

[…]

However, sometime around 2015, that very same ministry initiated a lawsuit in France in an attempt to wrest control of the France.com domain away from Frydman. Web.com locked the domain, and Frydman even roped in the Berkman Klein Center at Harvard Law School to intervene on his behalf.

By September 2017, the Paris Court of Appeals ruled that France.com was violating French trademark law. Armed with this ruling, lawyers representing the French state wrote to Web.com demanding that the domain be handed over.

I guess we can all take some solace in knowing that if this form of colonization turns out like the original, France will end up losing everything in the end.

This story is absurd on multiple levels. First, Jean-Noël Frydman has owned the domain for 23 years. I think it’s fair to say that if an entity doesn’t defend its trademark for 23 years, it should loses it. Second, it’s ridiculous for a nation that calls itself democratic to claim a trademark. The philosophy of democracy states that a government is ultimately owned by its people. That being the case, the people of France should be able to use the name, image, etc. of their country however they desire. Third, having a court French court rule on the matter is inappropriate because it can hardly be considered impartial in this case.

Ultimately, I think the biggest thing to be said about this story is that the court’s decision was really enabled by the centralized Domain Name System (DNS) on which the Internet currently depends. Courts are able to enforce their decision on matters such as this because there are centralized organizations that can be identified and coerced. If DNS records were managed by an anonymous decentralized mechanism, it would be far more difficult for decisions like this to be enforced.

Government Granted Monopolies are Good for Business

Few markets in the United States are as ripe with corruption as the medical market:

A drug that treats a variety of white blood cell cancers typically costs about $148,000 a year, and doctors can customize and quickly adjust doses by adjusting how many small-dose pills of it patients should take each day—generally up to four pills. At least, that was the case until now.

Last year, doctors presented results from a small pilot trial hinting that smaller doses could work just as well as the larger dose—dropping patients down from three pills a day to just one. Taking just one pill a day could dramatically reduce costs to around $50,000 a year. And it could lessen unpleasant side-effects, such as diarrhea, muscle and bone pain, and tiredness. But just as doctors were gearing up for more trials on the lower dosages, the makers of the drug revealed plans that torpedoed the doctors’ efforts: they were tripling the price of the drug and changing pill dosages.

Before some socialist reads this and thinks that they’re going to be oh so clever by posting, “See? This is what happens under capitalism,” let me explain how this kind of behavior is enabled by government.

In a market unrestrained by government interference, news stories like this would result in competitors making cheaper alternatives to the drug in question. However, in this case the manufacturer has a patent, a government sanctioned monopoly, on the chemical makeup of the drug, which makes it illegal for other manufacturers, at least in countries that recognize the patent, to make a product using that same chemical makeup. If a drug manufacturer wants to triple the price of their patented products, there’s nothing to stop them because no competition exists.

If you look at drugs that are no longer patented, there are usually several generic alternatives to the name brand drug. These generics have the same chemical makeup and therefore do the same thing but they usually cost a fraction of the cost of the name brand version. Once a generic is on the market the original manufacturer can either keep their prices absurdly high and lose a bunch of business or bring their prices down to a more reasonable level in an attempt to compete.

Unfortunately, so long as manufacturers can patent chemistry, they can set their prices as high as they want.

Digital Serfdom

Do you own your phone? How about your thermostat or even your car? I would guess that most people would reflexively respond that they do own those things. However, due to intellectual property laws, you don’t:

One key reason we don’t control our devices is that the companies that make them seem to think – and definitely act like – they still own them, even after we’ve bought them. A person may purchase a nice-looking box full of electronics that can function as a smartphone, the corporate argument goes, but they buy a license only to use the software inside. The companies say they still own the software, and because they own it, they can control it. It’s as if a car dealer sold a car, but claimed ownership of the motor.

This sort of arrangement is destroying the concept of basic property ownership.

I’ve hit on this topic numerous times but it bears repeating. Copyright laws don’t apply to purely mechanical goods so when you buy an older car or a mechanical watch you actually own it. Copyright laws do apply to software so when you buy anything that runs software you are licensing it. The difference between ownership and licensing is significant.

If you own something, you have the right to do whatever you want with it. If a product that you own breaks, you can hire anybody you want to repair it. If you are unhappy with the performance of a product that you own, you can modify it to your heart’s content. If you license something, you have a limited set of privileges. If your licensed product breaks, you might be restricted on where you can take it for repairs. If your are unhappy with the performance of your licensed product, you might be restricted on what kind of modifications, if any, you are allowed to make.

As software becomes more pervasive, ownership will become more endangered. It doesn’t have to be this way though. If copyrights didn’t apply to software, manufacturers wouldn’t have a legal foundation to restrict buyers. If manufacturers used free (as in freedom) software, buyers would be able to own their products. Unfortunately, I don’t think manufacturers will make any major move to utilize free software since most of them probably enjoy the fact that the State is subsidizing them by enforcing their ability to license instead of sell their products to buyers. Until that changes, digital serfdom will remain the norm and buyers won’t be able to claim that they own the products that they spend money on.

Intellectual Property Dealt a Hard Blow

I pull no punches when it comes to my views on intellectual property. While I want intellectual property abolished entirely, I do admit that some uses are more egregious than others. One of the most egregious uses is restricting what consumers can do with a product after they’ve purchased it. John Deere made headlines by using intellectual property laws to prevent farmers from repairing their own equipment. Printer manufacturers have also been using intellectual property laws to restrict consumer access to third-party ink. The Supreme Court’s most recent ruling dealt a hard blow to those printer manufacturers:

The US Supreme Court voted 7-1 to place more limits on the rights of patent-holders, striking down a decision by the nation’s top patent court for the second time in two weeks.

[…]

Lexmark sued Impression, alleging two different kinds of violations of patent law. First, Impression was accused of buying Return Program cartridges, altering their chips, re-filling them, and re-selling them in the US. Second, Impression bought some Lexmark cartridges abroad and imported them into the US. Lexmark said all the cartridges in that second group infringed its patents, whether they were Return Program cartridges or Regular. The Federal Circuit held that in both cases, Lexmark could go ahead and sue, in part because Impression had full knowledge of exactly the restrictions that were placed on the cartridges.

The Supreme Court reversed on both counts. As to the US sales of Return Program cartridges, “Lexmark exhausted its patent rights in these cartridges the moment it sold them,” wrote Chief Justice John Roberts for the majority. “A patentee is free to set the price and negotiate contracts with his purchasers, but may not, ‘by virtue of his patent, control the use or disposition’ of the product after ownership passes to the purchaser.” [Emphasis in original.]

Once I’ve purchased a product it should be mine to do with as I please. If I want to send my spent ink cartridge to a company that specializes in bypassing measures designed to prevent me from refilling the cartridge then I should have every right to do so. Being able to do whatever you want with your property (so long as it doesn’t harm another person or their property) is the very definition of ownership.

In recent decades companies have been abusing intellectual property laws to restrict what consumers can legally do with their property. The Digital Millennium Copyright Act (DMCA) was one of the worst instances of consumer restriction because it actually made the act of bypassing any form of manufacturer restriction implemented to guard copyrighted material outright illegal. This combined with software copyright laws created an environment of consumer feudalism where consumers were effectively serfs who licensed products and could only use them in manners expressly permitted by the manufacturer lords. Fortunately, the current Supreme Court appears to be reversing this trend.

Intellectual Hypocrisy

I don’t believe that intellectual property is a thing. This is why the content of this blog is public domain. Putting content in the public domain is only way that I’m aware of under United States law to legally toss aside the automatic copyright granted on created works. I try to practice what I preach. Not everybody does though. The Internet has given rise to companies that exist by ignoring intellectual property. These companies make products such as t-shirts using other people’s intellectual property. However, some of the artists involved in these venues are rather unhappy that other people would dare copy their works:

The problem of designs being stolen was echoed by other artists. “This is something that plagues the community with great force, and it’s something myself and a numerous amount of other artists have been affected by too many times,” designer Spicy Monocle said in an e-mail interview with Ars. “I know many other artists and myself included try to spread the word, but it’s an upward battle.” Vincent Trinidad, a full-time T-shirt designer—mentioned this issue bleeds over to consumers, too. He said stolen designs tend to be at a lower resolution, creating an end product that isn’t that good.

The issue, however, has developed into more of a gray zone for artists than you’d expect. That’s because when it comes to some of the works being duplicated, many designs depend on using the IPs of other companies.

“Some of it is fair use, but some of it really isn’t,” Kozak says. “So, it’s hard for artists. We’ve thought about making like a big campaign against the sites that are stealing artwork and stuff like that, but then it also brings attention to people who are maybe not, you know, doing something that’s completely sound in the copyright laws.”

Intellectual hypocrisy is a term I like to apply to people who both ignore other people’s intellectual property protections and demand intellectual property protection for their works.

The t-shirt companies mentioned in the article all exist by ignoring intellectual property protections. Most of the time they’re ignoring the intellectual property protections granted to science fiction and video game producers since geeky t-shirts sell well. I have no problem with this. But now some of them are whining about people ignoring their intellectual property protections.

If you’re going to make a business out of ignoring intellectual property protections then you should make your statements consistent with your beliefs instead of wanting rules for thee but not for me.

It is Against the Law to Publish the Law

Ignorance of the law isn’t an excuse so everybody must be free to acquire copies of the law to ensure they’re in compliance with it, right? Not in Georgia. In Georgia there are two sets of published laws. The first set is the freely accessible one. The other set is an annotated version copyrighted by the State of Georgia. Carl Malamud dropped over $1,000 to acquire the annotated version so he could publish it for the world to see. This made the State of Georgia very unhappy so it took the matter to court. Not surprisingly, the State’s court sided with the State:

Open-records activist Carl Malamud bought a hard copy, and it cost him $1,207.02 after shipping and taxes. A copy on CD was $1,259.41. The “good” news for Georgia residents is that they’ll only have to pay $385.94 to buy a printed set from LexisNexis.

Malamud thinks reading the law shouldn’t cost anything. So a few years back, he scanned a copy of the state of Georgia’s official laws, known as the Official Georgia Code Annotated, or OCGA. Malamud made USB drives with two copies on them, one scanned copy and another encoded in XML format. On May 30, 2013, Malamud sent the USB drives to the Georgia speaker of the House, David Ralson, and the state’s legislative counsel, as well as other prominent Georgia lawyers and policymakers.

[…]

In Georgia’s view, there were two separate works at issue: the actual text of the laws, which were available to the public, and the annotations, which were copyrighted and owned by the state. The annotated code includes things like judicial decisions related to particular sections.

[…]

Now, the case has concluded with US District Judge Richard Story having published an opinion (PDF) that sides with the state of Georgia. The judge disagreed with Malamud’s argument that the OCGA can’t be copyrighted and also said Malamud’s copying of the laws is not fair use. “The Copyright Act itself specifically lists ‘annotations’ in the works entitled to copyright protection,” writes Story. “Defendant admits that annotations in an unofficial code would be copyrightable.”

Ignorance of the law isn’t an excuse but knowing the law is only possible if you’re willing to pay a sizable fee for a copy. If that isn’t a catch-22 targeting poor individuals I don’t know what is.

What makes this decision even more egregious is that the copyrighted material was funded by tax victims. The laws themselves are created by politicians who are paid with tax dollars and the annotations include things like judicial decisions, which are created in courts funded with tax dollars. Georgians are paying the State of Georgia to create these documents and then have to pay again if they want to actually read them. It’s a good example of double-dipping.

Mr. Malamud is appealing and it’ll be interesting to see where his case goes.