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Copyright, IP, Patent

The Anti-IP Entitlement Mentality

Most Facebook users suffer from low self-esteem, according to a study published last year.  Facebook is so pervasive (accounting for roughly a quarter of all internet users), that one has to wonder whether the Facebook study is representative of human nature across the board.  Chances are, someone with low self-esteem isn’t likely to consider him or herself  particularly creative, innovative or exceptional.  Inventions are unpatentable because they would have been “obvious to one of ordinary skill.” Thus, if most people consider themselves to be ordinary (or less than ordinary), the inevitable result is the if-I-can-understand-it-it-isn’t-patentable mentality.

Knowing this, patent system attackers routinely trivialize inventions by strategically laying the groundwork to bias their readers.  For example, an author might suggest that the patent titles constitute the invention.  You may have seen statements like: Can you believe someone got a patent on a method for performing e-commerce in 2002?  Readers undoubtedly know that e-commerce long pre-dated 2002, and could have been predicted in advance of the internet, based on experiences in home shopping and catalog orders.  An author may also superficially describe a technology implementation being accused of infringement, and then vaguely describe the patent as “covering” that implementation. For example: Acme Co. has been selling music online for years, but someone claims a patent issued in 2005 is being infringed by online music sales.  A patent on on-line music sales? How can that be?

Most readers won’t want to be bothered by explanations from patent lawyers about how these patents deal with specific aspects of broadly described business models (such as a novel technique or architecture to improve user experience, or a DRM scheme to protect content owners) because they already want to believe these inventions are public knowledge.  Why? Because, biased by their hindsight knowledge they understand the products and implementations. If they understand it, it’s not patentable. If it’s not patentable, then they (and anyone else) is fully entitled to use the technology as they see fit.

Whenever an issued patent interferes with this entitlement, the attackers hold it up as an example of how IP rights stifle innovation.  This is an easy sell to an audience that already believes in the entitlement to ideas they learned from others.  After all, one should be free to execute on unpatented ideas, and anything I can understand should not have been patented, right?

But that isn’t how things work in America. Our common law notion of property rights included the concept that the first to discover and claim previously undiscovered land would be entitled to a bundle of exclusive rights related to that land (among them, the right to exclude others form using it).  Our intellectual property system followed a similar notion.  Since you can’t build (or even describe) a new device or improvement until you conceive of the idea, invention (and ultimately, innovation) is physical labor that is necessarily preceded by mental labor.  Despite the clumsiness of the constitutional language, the American patent system rewards the first person who successfully engages the mental muscle to conceive of something new, provided that the mental labor is followed by the physical act of (at least) documenting the invention.

When charged with trespass, it would not have been a defense to say that someone else would have eventually discovered the land anyway.  In fact, someone (the trespasser) did discover the land and attempted to use it.  The trespasser has no entitlement to use the land simply because he discovered it without the landowner’s assistance.

In the same way, the fact that someone else would have (or did later) conceive of the same idea as the inventor is not a defense to infringement. The rights that accrue to the patent owner are the result of rewarding the first to engage the mental process of invention, and no one is automatically entitled to use that invention simply by virtue of having knowledge of its existence.  I describe the constitutional language as “clumsy” because its prefatory clause (“promote the progress of science and the useful arts”) leads readers to believe that individual patents should be awarded for the benefit of society at large.  Individual patents benefit the inventor by providing a mechanism to transfer inventions to organizers and laborers for execution, while still enabling the inventor to be compensated for the initial mental effort.

In a contemporary example from the copyright arena, IP rights are being blamed for preventing dissemination of a collection of jazz recordings from the 1930’s.  At the time, recordings were difficult to come by because of technological limitations.  One man, William Savory, figured out a way to record lengthy jazz sessions during a time when existing technology only allowed recording of about 3 1/2 minutes at a time.  Savory passed away in 2004, but his recordings live on at the National Jazz Museum, where they are currently being digitized.

But unless you travel to Harlem, you can’t listen to most of the recordings.  Many of them fall into a category known as “orphaned works,” which means the copyright owner’s cannot be identified or contacted.  Without their permission, copying and distributing the recordings poses a liability risk that the owner’s will emerge from hiding and assert their rights.  Steven Seidenberg discusses the controversy over these recordings:

The swing era lasted barely a decade—roughly the mid-1930s until the end of World War II—but it was a golden age for jazz.

It was the only time that jazz dominated American popular music. Legendary musicians … could be heard everywhere: swank hotel ballrooms, homecoming dances on college campuses, radio programs—but especially at cramped, smoky nightclubs in such musical hotbeds as Chicago, Kansas City and New York City. In those clubs, jazz musicians honed their craft during lengthy jam sessions, where a player might improvise on chorus after chorus of standards ….

But the only people who got to hear their jazz heroes stretch out and work through new musical ideas in those impromptu blowing sessions were those sitting in the audience.

via A Trove of Historic Jazz Recordings has Found a Home in Harlem, But You Can’t Hear Them  (emphasis added)

Since learning about the existence of these recordings, interested parties have evidently clamored for its release.  For example, Dan Morgenstern, director of the Institute of Jazz Studies at Rutgers suggests that the recordings have historical significance and “should be made widely available.”

I’m not debating the question of whether these particular works should be in the public domain.  Under copyright laws existing at the time the recordings were made, the exclusive rights would have lapsed by now.  Those rights only persist because of several retroactive extensions of copyright term, and retroactive elimination of copyright formalities.

Those are all policy choices that were made by our representatives in implementing the intellectual property system, and there is a legitimate debate over whether Congress has set “good” or “bad” policy in this respect.  However, IP laws exist, fundamentally, to counteract the entitlement mentality (implicit in Morgenstern’s comment) and are more significant with intellectual creations of widespread importance and adoption, where abuse of creators is particularly prevalent.  No one was entitled to listen to Savory’s recordings.  He chose to keep them private during his lifetime, and his heirs have now chosen to sell those recordings to the Harlem museum.

Similarly, widespread adoption of inventions evinces their importance, not their triviality.  In turn, such circumstances support the underlying purpose of IP protection to provide creators with a mechanism to trade on products of our most fundamental, individual asset: the human brain.

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  1. Pingback: The Anti-IP Entitlement Mentality - April 29, 2011

  2. Pingback: Righthaven Engages ‘Bad-Ass Litigatrix’ Copyright Superstar Dale Cendali « Gametime IP - May 9, 2011

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