Lies - Damn Lies - and I.P.

Submitted by zClark on Wed, 03/Dec/2008 - 13:42

Confusing the tangible with the intangible


Commenting on my post of December 12 ,2007 -- What's wrong with the GNU GPL? Alan wrote, "I believe the core argument in this post is: "Copyright is one of the state's basic mechanisms for seducing weak minds into sanctioning governmental violence to enforce contrived rights who's only hope of possibly being realized lies in the menacing threat of arrogant aggression." Without commenting on the rest of the post (which I mostly agree with), I feel this main point needs rebuttal."
    While the post in question concerned various (largely laudable) observations concerning the GNU General Public License, Alan did identify the single sentence that best captures my primary core argument. It could consequently be argued that this terribly belated response should follow Alan's comment under my original provocative post. I have, instead elected to create a new main (root level) post for the following reasons:
      1) Alan's comments far exceeds the scope of the main post.
      2) It's my unwary way of dignifying all my brutish ape-like
chest pounding that has preceded this event. Alan, graciously continues, "First, let me point out the extreme irony in this idea. It is no doubt that Mr. Z. Clark is strongly of the libertarian persuasion (as I am), sharing the two most important core beliefs of abhorrence from unnecessary force, and utmost respect for (physical) property rights. Yet, this is an argument over an abhorrence for intellectual property (IP) rights."
    Thanks, a better lead-in would be hard to come by. A no doubt conclusion (accusation) of my strong libertarian persuasion merits a few shared reflections however. I wonder if said persuasion is evident from this blog's contents or has more to do with personal knowledge of say the fact I ran against D. Gephardt as a Libertarian. In any event, the average libertarian may well cringe at any Z.Clark associations. If I had the stomach to investigate such things, Libertarians would likely still prove to be the least offensive political party in the US. But like the GPL, the mere exercise of either lends credence to a system which is ill founded at base. It's quaint at best to hope Libertarians can improve/salvage what the 'Founding Fathers' could not (i.e. the morbid transition from confederacy, to republic, to democracy on to socialism is systemic in nature and is fated to unfold as such despite the bloody patriot's best intentions). A flattering distinction for the GPL is that it hopefully sets a precedence (wittingly or not) of binding the machine against itself.
    To more directly contest the issue however, Alan apparently considers my inability to equate the "physical" horse in my front yard to the "intellectual" unicorn in Danny's imagination as "extreme irony" ... hmmm. All are invited to rephrase the foregoing to more advantageously reflect their perspective. Nevertheless the real crux of the problem I see lies in first 1) inventing then 2) claiming and finally 3) protecting 'rights' in the first place. Alan: "Assume two people toil to create something useful to others. One builds a widget, and the other writes a book. Assume both items have real, -physical properties, as well as IP. Virtually every government in the modern world have laws which protect both. That is it is both illegal to steal either the widget or the book, and it is also illegal to sell identical copies of either without agreement from the creator of the widget or book (assuming neither person abdicated their physical property or IP claims)."
    I underscored the third sentence because despite its dubious significance, Alan still uses it to support follow on assertions. Given Alan's above context/usage of the word "properties", it almost has to mean "attributes". So is that what the "P" in "IP" also means?? Is that what it always means? Or does it sometimes mean "possession"? To best support Alan's efforts, let me try to express more exactly what Alan likely wants to say. "Assume both items are ideal examples of real physical property as well as IP." Well I guess that's more useful than essentially saying that widgets have physical & intellectual(?) properties. Yet in whatever case, I'm still too dense to see any points being made here at all. Unless -god forbid- we want to maintain that IP has obvious merit since virtually every government in the modern world have statutes promoting it. Please don't make me go through the agony of conclusively demonstrating just how sick it would be to derive moral instruction from government acts. Even from the get-go, why in the world should we, "Assume two people toil to create something useful to others."?? What's the deal with two people? Is toiling a necessary ingredient? And even more interesting is the objective "to create something useful to others." I mean the same person could have both made a widget and written a book. And in the case of the Q'tip the toiling amounted to observing his wife prepare a swab to use on their baby. Lastly, if the real motivation is to create something useful to others then enforcement of IP rights would surely prove counter productive to that objective. Moreover, Alan seems to forget that even the government statutes he apparently adores, clearly distinguishes between the illegality of steeling a woman's pot of day old spaghetti and distributing copies of her recipe from the book she published which you bought and own (as the latter is addressed via privileged 'owners' being empowered by the state to sue offenders). And that's not even mentioning the distressing newspeak Alan employs. So gee-whiz, to have something with some chance of putting me in a corner then perhaps it will help to create a whole new example. Let's try this:

S is a red-neck Nazi father-raper who murdered his Jesuit inbred half brother to steel family land ill-gained through illegal drugs, KKK affiliations, the broken backs of black slaves, and prostitution. Land was originally occupied by enlightened Anasazi until they were hideously consumed by ravenous boars under the direction of Satanist. Land was subsequently used to bury huge amounts of atomic waste, arsenals of chemical warfare, and even graphic pornography by S.
      W is an African-Hebrew born death, dumb, & blind. Her ancestors valiantly escaped daily cotton field beatings only to locate in Germany and have the next generation largely parish in Hitler's concentration camps. Unlike S, who's never even exercises much less works (except when committing atrocities), W toils tirelessly due to sleep disorders attributed to terrible traumas suffered at the prime of her innocence via unspeakable violations of virgin orifices by none other than S himself. Despite all the horror she's suffered from misunderstood cheek turning, W has remained a steadfast altruist and voter. Rather than express her tragicly undeserved self-loathing by bodily giving herself to the lowest lifeforms imaginable, W has instead sacrificed herself for the good of humanity by performing countless antagonizing experiments on her own person. More remarkable yet, W can barely think since doing so invokes unimaginably excruciating migraines. Nevertheless W has endured thousands of tortuous hours of pure pain praying, tabulating the results of her self-inflicted experiments, and digesting volumes of material from holly ancient text to bleeding edge medical reviews -- all of which has resulted in a 100% cancer cure using unheard of ingredients in a previously indescribable manner (i.e. ZERO infringement problems). W's aversion too any sinful forms of pleasure naturally extends to capitalism at large, so her initial impulse was to put her invention into the public domain for free access by all. However, manufacture of the cancer cure produces a side product with menacing mind bending qualities leading to dangerously independent thinking and hence a major threat to the American way of life. By virtue of being awarded the Nobel peace prize and a congressional metal of honor among other notable tokens, W realized that she alone can be trusted to manufacture her cancer cure. So to best 'protect' not only her invention but global humanity as well, a patent was deemed necessary.
      Disturbingly, procuring a patent proved to be unmeasurable more arduous than both her appalling past and the rigors of creating a cancer cure; but in the end W prevailed with her precious patent. Now as fate would have it every person of S's prodigy including S himself was dying of cancer. Right, you guessed it, the first thing W does after receiving her patent is visit S at his mansion and successfully cures him and all his family. Regretfully, this fails to reform S's black heart. Within days of his full recovery S steels W's IP as published at the PTO and goes into full scale production. Predictably, all the cancer cure S produces is used as his personal ceremonious masturbation fluid. Moreover, S becomes filthy rich selling the minding bending side substance tax free on the black market. W would have humbly forgiven this thievery and even the havoc over running the world due to said side substance. But S selfishly bought up all the available ingredients so W is mournfully precluded from effecting her life saving cancer cure -- and that is simply taking things too far. Nevertheless, to be fair and give S the benefit of the doubt, W -in a show of good faith- arranges a meeting to discuss the situation with S that same day. Not being anyone's fool and out of respect for S's depravity, W would have surgically removed her own breast to best assure S's unperverted attention during this historic meeting; but alas, there was no time for such luxuries. Finally as the ultimate sacrifice (as if yet more was required), W is able to salvage a dose of the side-substance from her own lab that miraculously & providentially had not yet been incinerated. This she will carry to the meeting in her purse and consume after entering S's premises. This will hopefully distort W's mind sufficiently so she can better relate to S (who presumably ingests the god-forbidden substance regularly). W naturally realizes that the world's health hinges on this meeting and reasoning with S will constitute her greatest mental challenge ever ... the resulting migraine may well do her in. In anticipation of her arrival, S posts prominent signs stating in both Braille and bold letters, "Private REAL Property -- Trespassers will be Prosecuted to the full extent of the LAW!" Hopefully we can all see where this is leading, so let's just jump to the big obvious question, "Can even Z.Clark (the prince of irony) support S's right to imprison W for trespassing yet still deny noble W any I.P. protections what-so-ever?" Stay tuned.

Alan: "There is nothing wrong with freely releasing all claims of ownership, but the argument in this blog suggest that all claims to retain ownership of creative intellectual work are necessarily wrong."
      "Claims" to be the grim reaper, the inventor of the Internet or whatever is wholly superfluous. In other words, any mere claim per se is just a passing curiosity at best. The rub comes from acting upon or enforcing said claims. Nevertheless Alan merits 98.7% credit on calling this one correctly. 100% would go more like this: "This blog makes the astonishing claim that a Submachine gun --for instance-- and a poem about same do have different characteristics (as subtle as they may be). Moreover, ignoring said differences in the whimsical creation of statutes to supposedly 'protect' IP under the guise of 'property' shall result in less than optimal results (at least in terms of promoting creativity or freedom)." However, to placate potential objections to a silly Submachine gun example (and strengthen my point), we could just as well consider a comparison between the half buried bolder in my back yard used as a ritualistic sacrificial stone alter (RP) and the working design of a bona fide anti-gravity machine (IP). Alan: "While I clearly understand how boundaries of ownership regarding IP can become much less easy to identify (e.g., when does a derivative design or writing become a trespassing copy of the original?) than property (although meandering rivers can easily cause havoc to any reasonable system of property titling bordered by the river in similarly murky grounds; pun intended)."
      Thank you, the above criticism of IP is right on target if not woefully understated and barely scratching the surface. Plus I do feel sorry for Alan's cause if his best apology/defense for the noted IP quagmire lies with meandering rivers in the physical world. The unfortunate observation this begs is that while the boundary problem is an issue (if not the issue) in practically any instance of IP, meandering rivers is a comparatively infinitesimal issue in the real world. Ahhh, but one needs to be very careful here, because even though the proceeding argument packs a knock-out punch for IP, it is wholly off point of the big lie (as we'll see). So in actuality, undue focus on the cancerous issues Alan cites inadvertently lends a false dignity to IP newspeak (as much more fundamental problems beg attention). Alan: "While there is much wrong with IP law, there is also much right with it. I think it is the necessity (apparently) of arbitrariness regarding things like time limits, determination of boundaries, identification of ownership when contested, etc., which is the real core of the issue. However, the difficulty in sometimes identifying boundaries or owners or the lengths of limitation of state protection of property rights do not make IP wrong, only difficult."
      Again, the above well demonstrates that "there is much wrong with IP law," but disconcertingly offers absolutely nothing to show how "there is also much right with it" (if anything at all). Nevertheless, the above thankfully holds a crucial crux to a real identifiable difference between Alan and myself; because the problems Alan cite are NOT -by any means- "the real core of the issue." (although they are more than sufficient to constitute a death blow for IP). Alan: "As with most libertarians, compromise is an anathema to all they believe, and the apparent necessity of compromises in dealing with and determining IP boundaries results in declarations such as what started this blog. I contend these difficulties are no excuse for absolute abrogating all ties to property of the intellectual type."
      While Libertarians (and other 'third parties') could hardly be less coherent than the two biggies, I'd be leery about assuming any pervasive anti-compromise bearing on their part at large. Moreover, my initial reaction is this is not about compromise at all (at least not the ones Alan sees). Yet sadly enough, nothing is cheaper than the compromise, so that option always exists -- the glorious middle of the road. If you were, for instance, against witch burnings back in the 1720s, an appropriate and dignified compromise might be assenting to simply pulling their nails out and beating them senseless for their nonconformity. Yet the real IP related compromise that confronts us is even worse (logically speaking). To even deal with the issue at the same level Alan wants, I'd first have to essentially agree that the polka-dotted unicorn I invented for my son's bedtime story is my (intellectual) property and worthy of legal protections (very tempting). That may perhaps sound unfairly trivializing yet we'll soon demonstrate that even our authentic anti-gravity design is no better off. Finally regarding Alan's aversion to "absolute abrogating" -- I'd plead heck YEA! IP was one damn bastardized, ill-conceived baby that should have been thrown out with the bath water long before it grew into the morbid malfunctioning monster it has unavoidably become. Alan: "We do not claim the state seduces week minds into sanctioning governmental violence to enforce land or 'widget' property rights, so why would we make such a claim for mental property which comes from similar level of efforts producing analogous value in the form of creative designs, books, etc.?"
    OK, as Popeye would say (and to shameless violate Mr. Elzie Crisler Segar's 'property' with abandon), "That's alls I can stands, and I can't stands no more."
      The most classic newspeak ploy of all is to apply the same word to things with diametric attributes; and then treat/relate them as equals simply due to said lame naming convention. I exaggerate not. Patents are forever reverenced for 'protecting' inventions, software, etc. (as if they could be damaged). Or worse yet about 'pirates' 'stealing' (intangible) IP (if its tangible it's not IP). It's really no less ridiculous to talk about the need to 'protect' a number from damage or thief (indeed, any digital work can literally be construed as a rather sizable number). When it comes to the tangible, "Possession is 9/10s 'law'." (as much as I hate to bring up, such a newspeak ladened saying). There are natural physical reasons why this is universally true, generally respected and normally enforceable without any police force what-so-ever (whereas any possible hope of IP enforcement necessitates an extremely heavy handed state). The tangible (as characterized by Stallman's plate of spaghetti) has the property that if it is possessed or consumed by one then it is not simultaneously available to another. Moreover, if it is stolen from you then you are without. The case for intangible IP is the exact opposite. There is no limit to the number of copies that can exist without any damage at all to some imagined original. So herein lies the real crux -- at base, so called IP has nothing to do with physical property and instead is more like it's antithesis (at least in terms of requiring protection). Consequently the logic of basing and defending IP on the grounds that RP & IP are both 'property' ("which comes from similar level of efforts producing analogous value") is sorely lame to put it kindly. It is understood that the current conservative majority (as well represented by Alan in this instance), will likely feel that I'm coming from some lunatic fringe perspective. However, up until less than a hundred years ago imprisonment for making copies of your own possessions would have seemed horrifyingly inconceivable (not to mention that the original intent of copyright has been turned on its head from 'protecting' writers from big publishers to 'protecting' the big publishers from their clients). Although the blatant gargantuan differences between the tangible (a.k.a. "real property") and intangible (a.k.a. "mental property") are intrinsic and undeniable, I well realized that no IP defender will concede that this is a real issue (despite their incessant reliance on newspeak that purports no difference between the two). Instead they'll invent sweet moral imperatives to justify state intervention on their behalf. Ignoring inherent fundamentals is not sustainable however without ridiculous ramifications cropping up all over the place. Alan did a good job of identifying several of these euphemistic difficulties, but missed out on my favorite. One of the more ludicrous imaginings of IP is the idea that some mythical original thinker (as determined by the state) of a thought becomes said thought's owner and no one else has the right to benefit from that thought (especially monetarily) other than the officiated state thinker. Again, the only hope of such madness possibly prevailing popularly is through a huge mind numbing state and their "thought police". A social entity/disease that's ever ready to grow yet larger to protect an unending invention of 'fair' and well intended rights. It is easy to anticipate harsh off-point objections to my above S&W saga. That was NOT intended to trivialize IP defenders in any way (they do that well enough on their own). I was simply wanting to build an air-tight case totally in favor of IP. If you don't like it then I beseech you to create your own (that out does mine). The whole point is that at the end of it all we're still faced with the bald-face differences that exist between the tangible and intangible which IP proponents (as we've seen here) have a need to chronically and desperately ignore. Good-luck!