Ideas Just Want to be Free

January 28, 2015

Last blog post I suggested that the best approach to speech is an absolutist one, moderated only by Mill’s harm principle. What if I told you that for about the past two hundred years, we have routinely succumbed to laws that limit our speech well beyond instances where there may be some harm involved, all in the name of promoting innovation? What if I told you that this is a recent aberration in the law, and that for thousands of years innovation and creativity thrived without these laws? The law of patent and copyright (intellectual “property” law) is the regime I’m speaking about, and although we now take it very much for granted, there is little reason to suspect that it accomplishes what it was meant to accomplish, and there is every reason to oppose it based upon its limits to free expression.

For thousands of years, the notion of property was limited to “real” property (res, in latin). These included land, “moveables” and other possessible items… things whose possession excluded the simultaneous possession by others. It is likely that property law evolved from the social act of possession to the exclusion of others, formalizing rules for transfer and peaceable possession. During that same period of time, there was significant creativity and innovation, bringing about many of the technological and cultural productivity that created modernity. Shakespeare wrote all his works without the benefit of copyright law, making money through selling tickets to performances. Newton made his scientific advances unconcerned about any exclusive rights he might obtain in them, and inventors developed new tools and processes that also earned them respect, fame, and money long before the first patents were issued. The first patents were monopolies “letters patent” issued by the monarch in England and then elsewhere, meant to attract and keep inventive immigrants in the service of the monarch. The abuse of these letters patent in England was the subject of the first Statute of Monopolies act which limited the term of such monopolies to a period of years, rather than the indefinite periods that were being granted by the early 1600s. Both patents and copyrights are still monopolies, granted by sovereigns, preventing during their validity the expression of ideas by those who don’t hold the monopoly.

When the first patents and copyright were granted in the US, in a system modeled more or less after the English experiment, the terms for both monopolies were 14 years. After that, the works fell into the “public domain” where others could then freely express them. Although we have grown used to these systems, the terms have expanded. Now patents last 20 years, and copyright last an incredible term equal to the lifetime of the author and then an additional 70 years. This means that most works end up being protected for more than a century. All this time, there has been scant evidence that these restrictions on speech (for after all, the First Amendment doesn’t guarantee only the freedom of “original” speech) are either necessary nor useful. In fact, a number of economists have suggested that in the long run neither patents nor copyrights promote innovation or creativity (only about 4% of patents granted ever yield any profit at all, while the patent bureaucracy and costs are significant), and may in fact hinder innovation. Certainly, the creation of “patent thickets” like those in the smartphone domain, create costs that affect consumer prices adversely, and may well hinder the development of better technologies as corporation navigate them.

If, like me, you are a free speech absolutist, you too might well begin to question the IP system we take for granted. I’ll be on the Stossel show this week, Friday discussing this idea. I look forward to more public debate on this issue in the name of free expression and free inquiry.