Saturday, January 23, 2016

Intellectual Property

Property isn't always clear cut and dry. Even when claiming parcels of land, whether vast farmland or a tiny chunk of a neighborhood, where one holding ends and another begins has the potential to come into dispute. Intellectual Property is even less clear, especially in the digital age. Films, software, music, literature, video games, schematics, recipes or even leaked memos have the potential to be distributed quickly and easily at the cost of little more than the search engine's effort.

It bears standing that if someone used their time, effort, knowledge, and resources to develop any of this media, they'd like to be compensated when someone wants it. Who could fault them? None among us can say we don't want to be compensated for our efforts, barring labors of love. However, I can't say that it's fair to lay the protection of Intellectual Property on consumers. What is the incentive to consumers? What is their moral obligation? If a thief steals from a storefront, we do not lay the responsibility for the theft at the feet of another patron - but the owner may be grateful if this patron chose to intervene.

A producer that leaves their Intellectual Property unprotected may be within their rights to object to the methods of it's distribution, just as I may be within my rights to object to someone using my unlocked front door without my consent. The burden of protecting my home from entry fell on me, and I chose not to exercise my ability. Whether the invasive entry was right or wrong, I forfeited a reasonable, and perfectly acceptable ability to prevent it.

Intellectual Property being less tangible than the example, how does the Producer defend the creation? Coming back to Libertarian principal, contract is an acceptable and reasonable defense - and it finds use in this application today. We call it a Terms of Use.

We have this for a wide variety of goods and services today. Digital distribution services (Netflix, Steam, iTunes, internet variations of cable channels) employ this method, and they may go a step further to add some sort of protection to the end-user product. Even a rented living space comes with a terms of use, as does a leased commercial property. A Terms of Use even applies to the tangible. I can grab three items that I've paid for the right to use, and I may find some variety of a Terms of Use.

  • My forklift training card comes with the disclaimer that I've only completed a course, and that my competence in operation isn't endorsed.
  • My dish soap's label advises me not to add bleach
  • I was getting worried, as not every product I chose at random had an explicit terms of use, but close enough for me but maybe not for all. But aha! An old computer software manual has six pages worth of terms of use (These pages are maybe the size of a Blu Ray case, and the print is large. I don't need an attorney to explain it), contents of which also states that the Intellectual Property owner offers me the software on lease, not ownership. It even states that if I disagree, I can forfeit my lease and the hard copy containing the leased material for a refund. This hard copy of the lease also informs me that I will need to agree to these terms again during the installation process.
If these solutions exist today then why aren't these enough? Because the muscle-bound arm of the State is willing to enforce abstract terms instead, sometimes to the detriment of the producer.

Who would enforce this, if not government? The producer, and whoever said producer chooses to aid in the defense of the  property in question.

What would be the compensation for a violation of the Terms of Use? The producer may specify such in the Terms of Use. This happens today when I play a movie on a home system. Difference being, it's accompanied by threats from the FBI and Interpol.

But doesn't that warning describe an unreasonable fine and imprisonment term? Yes, that's the strong arm of Government (financed by the victims), not the producer.

What stops the Producer from imposing such a penalty, or a worse penalty? Who can say definitively? We haven't had a private sector Intellectual Property defense. Cultural norms, peer review, and the cost of enforcement would likely prevent anything outrageous. Why spend millions of dollars to incarcerate hundreds or thousands of "pirates"at a cost to the producer? It's cutting off your nose to spite your face.

You've just pleaded a case for a corporation having incentive to harm or murder several someones. I challenge you to name one private enterprise that has gained from thinning it's market share, fatally at that. Enterprises that enjoy the boon of government connections and protections do not count, and only plead my point.

This does nothing to prevent corporate espionage or reverse engineering. Corporate Espionage might be another topic in itself, though many of the same methods detailed here for Intellectual Property can be applied. Instead of Terms of Use, you could call it Terms of Relations - never mind Non-Disclosure Agreements. Reverse Engineering too might be it's own topic, but might even fall under Terms of Use. A successful Reverse Engineering might even yield a positive opportunity for the original producer and the engineer in question. This also ignores WD40, which remains a strong brand despite it's numerous knock-offs, many of which may be flawed or have poor brand recognition.

Nothing about a printed agreement prevents action that violates said agreement, that's how violations of law happen today.  That's called life in all relationships, personal and commercial. The point of this is who shields the burden. Right now, it's a little bit of the consumer and the government - everyone except the party invested in protection.

Edit: Whoa. I wrote this without realizing that there had been a lengthy discussion about it on Bionic Mosquito's page. This post was spurned as a challenging question on another libertarian site.

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