Here’s Why the Pro-IP Crowd Is Right About Intellectual Property

By Paul Morinville
February 21, 2020

“Takash fails to recognize that, regardless of the industry, exclusive rights, the very essence of private property, are essential to attract investment into that property, whether intellectual or physical. You would not seek a mortgage to build your house if your deed did not enable you to keep others from living there, and no bank would loan the money if you did not have full ownership and control of the house.”

https://depositphotos.com/100422814/stock-illustration-intangible-assets-types-strategy-mind.htmlOn February 13, 2020, The Niskanen Center, a center-left think tank, published a piece condemning pro-intellectual property voices for what they consider flawed views on intellectual property.

In the article, author Daniel Takash explicitly attacks the “unearned moral high ground,” which supporters of IP supposedly occupy. “Supporters of free markets and property rights,” he proclaims, “must stop thinking of the unauthorized use of ideas … as ‘theft.’” Instead, they must “wholesale reject the notion that patents and copyrights are property.” This position is incredibly naïve and demonstrates a profound ignorance of intellectual property and, quite frankly, innovation in general.

Takash’s Mistakes

First, Takash suggests that supporters of robust IP protections believe patents and copyrights are property. This is, of course, wrong. Patents and copyrights are actually legal recognition of intellectual property; they’re the government’s commitment to provide the owner of intellectual property with an exclusive right to that property. Much like a deed grants a homeowner with legal rights to physical property, so too does copyright protect an innovator’s intellectual property. It is illogical to suggest that the deed—not the home itself—is the property. But that’s one mistake that Takash makes.

Another mistake is that Takash makes a distinction between IP and what he calls “actual”—or physical—property and suggests that IP isn’t really property. To make his point, Takash cites the upcoming Supreme Court case, Google v. Oracle, as a key example. In this case, Google is credibly accused of copying Oracle’s copyright-protected intellectual property—its well-known Java software—and illegally putting the copied code into its Android operating system.

To support his argument, Takash wrongly claims that software copyrights aren’t like other legitimate forms of IP protection. Whereas IP protections are necessary to recoup costs in fields like pharmaceutical R&D, he argues, copyrights within the software industry only hinder the creative process.

But Takash fails to recognize that, regardless of the industry, exclusive rights, the very essence of private property, are essential to attract investment into that property, whether intellectual or physical. You would not seek a mortgage to build your house if your deed did not enable you to keep others from living there, and no bank would loan the money if you did not have full ownership and control of the house. Likewise, why would anyone put in the hard work and money needed to create new software if a company like Google could so easily take it and make it their own? Rather than promote innovation, forcing software to become open-sourced would only result in more theft and less investment. This would stifle innovation—not encourage it.

The Fundamental Flaw

According to Takash, taking IP belonging to someone else shouldn’t be considered “theft” because the owner, Oracle, “has not been deprived of anything” and Java’s code “[works] just as well as before.” Takash is arguing that because software inventions are easy to replicate, they can’t be stolen. Using that logic, music piracy, which costs the U.S. economy an estimated $422 million annually, should be completely legal. After all, the musicians themselves haven’t been deprived of anything since their original recording still works. Takash has no clue as to how intellectual property rights create scarcity, and that scarcity is what attracts investment and promotes innovation.

The fundamental flaw in Takash’s argument is clear: the dangers of intellectual property theft lie not in the physical nature of the theft itself, but rather the loss of control the theft causes. Oracle may not have been physically deprived of Java’s code, but Google took something more valuable. It converted what was Oracle’s private control over their own creation into public property free for all to take. This makes Java an un-investable proposition. Had this been known before its inception, nobody would have invested the time and money to create it.

Oddly, Takash scoffs at the legitimacy of exclusive IP rights, calling them “monopoly rights.” He argues, “Copyright and patent holders suffer no loss, other than that of monopoly profits, when others are able to use their own property as they see fit.” Given Oracle’s loss of much of its investment in the creation of Java, this admission clearly contradicts his previous claim that Oracle “has not been deprived of anything.” But more than that, the argument reveals precisely why intellectual property protections are essential—they enable profit, the incentive for innovation, which is also lost under Takash’s argument.

IP laws do create the potential for financial windfalls—and why shouldn’t they? If an individual had the creativity, drive, and risk tolerance to develop a novel, functional, coveted piece of technology—say, Java, for instance—shouldn’t they benefit from their intellectual labor? More importantly, shouldn’t our system encourage people to develop innovation that improves the lives of large numbers of people in the first place? Takash says no.

In his dogged determination to defend Google’s theft of Oracle’s property, the author goes so far as to shrug off the value of IP entirely. “My position is that [intellectual property rights] do not deserve the same moral or rhetorical treatment as the right to physical property,” he writes.

Hypocrisy, Thy Name is Google

He attacks so-called “IP hawks,” but ironically fails to recognize Google itself has been a stalwart defender of intellectual property when it stood to benefit. Google’s Android mobile operating system, while free for consumers, requires a license for manufacturers to use. Incredibly, this was precisely the case with the Java software—a quasi-open source platform free for coders but requiring licenses for competitors like Google.

That’s right. For all the noise Google makes about the value of open-source software and the harm of Java’s application programming interface (API) copyrights, Google remarkably hides some of its own APIs to prevent companies like Amazon from making Android apps (in Java) that compete with Google apps (also coded in Java). They protect what they stole and call it Google Services.

So, in the case of Java, Google was happy to steal Oracle’s copyright-protected intellectual property, and rather than pay a licensing fee, unashamedly claim the moral high ground with its “everything should be free for us” position. However, when the shoe is on the other foot, Google locks up their own API and expects that manufacturers pay to license it. But if someone steals their IP, they jealously protect it – even with criminal charges.

So, where exactly is the monopoly power Google claims to hate so much? Hypocrisy, thy name is Google.

And why is an organization like the Niskanen Center bending over backward to spin an argument for Google’s incoherent position on intellectual property? The likely answer comes right at the close of the article: “In the interest of full disclosure, the Niskanen Center receives support from Google.” Indeed, the arguments in Takash’s piece reflect those presented by Google in its upcoming Supreme Court lawsuit. And unfortunately for Google, they don’t hold up under scrutiny. Google’s self-serving perspective on IP is massively out of step with understanding intellectual property and promoting innovation. Hopefully, that’s a reality the Supreme Court recognizes.

Image Source: Deposit PHotos
Vector ID: 100422814
Copyright: dizanna

The Author

Paul Morinville

Paul Morinville is the Founder and former President of U.S. Inventor, Inc., which is an inventor organization in Washington D.C. that advocates strong patent protection for inventors and startups. Paul has been as executive at multiple technology startups including computer hardware, enterprise middleware and video compression software in the U.S. and China, and now medical devices.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 24 Comments comments. Join the discussion.

  1. anonymous February 21, 2020 8:58 am

    Takash argues “Supporters of free markets and property rights . . . must wholesale reject the notion that patents and copyrights are property.” He then says, “I am by no means anti-patent or anti-copyright.” Um, okay. He’s just anti-Constitution and anti-statute.

    The Takash piece is the most laughable article I’ve read in a while. What a twisted and outright dangerous worldview he has. The Article 1, Section 8 phrase “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” is the very definition of a constitutional creation of a property right.

    35 USC § 261 says, “patents shall have the attributes of personal property.”

    The Efficient Infringer lobby is finally being honest about its objective – the collapse of the American intellectual property system. Wars have been fought over far less.

  2. Model 101 February 21, 2020 10:02 am

    Indeed!

  3. angry dude February 21, 2020 10:29 am

    We do not have patent system in the US at the moment – other countries have patent systems but USA does not

    Now they moved on to destroy copyrights (see Google v Oracle)

    Normal banana republic… but without bananas growing in the backyard

  4. Bemused February 21, 2020 11:55 am

    Daniel Takash is to intellectual property rights what Bernie Sanders is to free markets.

    To wit: you own nothing and the government gets to unilaterally determine what they take from you without payment and give for free to others.

  5. Jam February 21, 2020 12:25 pm

    Great article Paul. The anti-patent forces’ analogues to real property are laughable. E.g., “let’s enforce communistic/socialistic principles with intellectual property to deny capitalism and individual rights, because communistic/socialistic principles worked out so well with real property as shown by countries that deny capitalism and individual property rights.”

  6. mike February 21, 2020 12:54 pm

    The bottom of that Takash article on http://www.niskanencenter.org has a disclaimer that reads: “In the interest of full disclosure, the Niskanen Center receives support from Google for its Captured Economy project.”

    Support from Google. That clearly reveals the bias in the article and the author’s lack of independence.

  7. Kyle E. Mitchell February 21, 2020 1:33 pm

    Daniel Takash’s framing of Oracle v. Google as a left-right, black-and-white issue struck me as irresponsible. But the same sin’s repeated here, by reinforcing that framing and barreling into the simplistic debate it engenders. That might be good for people who like to fight on two sides of a shouting (or lobbying) match. I take it Dan and Paul are having fun. But it’s not helpful for those trying to see and set practical policy.

    The idea that works with low or no marginal cost of reproduction shouldn’t receive legal protection is indeed too neat. Taken at face value, it would legitimize unauthorized copying and distribution of music—or film—no matter what it cost to make. But the idea that creators would stop creating if not for the specific incentive of copyright is also too neat. Taking that jab at face value, if there weren’t any copyright, there wouldn’t be much music. Or APIs.

    Out in the world copyright law actually regulates, marginal costs of reproduction aren’t the only costs. When those other costs stymie desirable production, intellectual property rights and other exclusive privileges do our society well. It’s not wrong to call them limited monopolies, as courts and scholars do. But there’s nothing inherently wrong with limited monopoly, dangerous though it can be.

    Out in the world, the dollar values of royalties and the strategic values of injunction claims aren’t the only motivating rewards. When other rewards provide sufficient incentives, further legally created exclusive rights amount to overkill or public favors, yielding little but rents for the few and transaction costs for the many. I say this as a tech trans lawyer who pays his own rent with clients’ transaction costs.

    Oracle v. Google is both hard and important. I’d like to think that’s why the Supremes took it. I wonder why Dan and Paul think they took it.

    That being said, I subscribed to IP Watchdog precisely because I looked forward to an IP-maximalist view on the issues, to balance the IP-minimalist tendency of the circles I travel. What I’ve read instead is an IP-maximalist view of the parties, especially Google, the Enemy, with a lot of non-sequitur into unrelated sins at the ends of posts, apparently to “close out strong”. I’m not sure that self-interest counts as a sin among public companies. If it does, it might be original sin, and hypocrisy flows from it. Oracle can throw no stones, but that’s similarly irrelevant to the copyright case.

    What about idea-expression dichotomy? What about overlap with patent? What about the administrability of fair use? Will we see a software parallel to all those “you stole my melody suits”, with smalltime coders suing Oracle for aping prior APIs? What industry analysis do we have to show a latent market for improved API design? Is there evidence we’re producing them suboptimally?

    It’s fun to make IP simple. All the answers become obvious, and we feel good about being right. Until we bump into folks with equally arresting, likewise oversimplified ideologies that point in exactly the opposite direction. Is one side going to finally and totally vanquish the other—a total victory both sides have foretold, and neither has delivered, for generations? Or are we going to graduate to a better debate?

  8. Anon February 21, 2020 1:55 pm

    Kyle,

    I do not know where you get your ideas concerning how the battle has been fought (or results foretold), but you appear to have some serious misunderstandings of what a “Maximalist” is about.

    Please consider me to be a Maximalist. Note as you do, that I certainly do not hew to the same (fire)brand as many who would post based purely in emotion and without reason.

  9. Anon February 21, 2020 1:57 pm

    mike @ 6 — thank you. I had intended to actually visit the site and look for any such disclaimers before wading in.

  10. Paul Morinville February 21, 2020 3:51 pm

    Kyle E. Mitchell @ 7. You call it a lobbying match.

    There is a critical difference that makes it lobbying on one side, but not the other. Takash was paid to write his article. I was not and never have been for any of my articles or any discussion in Congress, or anywhere else for that matter. Gene doesn’t even pay me, and I do not want to be paid.

    I am here for one reason and one reason alone. I am an American inventor and entrepreneur. My rights to protect the fruit of my intellectual labors have been stripped. I’m here to get them back. The effort will no doubt help thousands of other startups and inventors, but I am here for me and none of them pay me.

    You admit to making money on the transaction costs of infringement. If IP protections were strong, you would lose money because the party paying you would be incentivized to settle rather than litigate, or not infringe in the first place. That cuts your demand and therefore your paycheck.

    Like Takash, you are here to lobby.

  11. angry dude February 21, 2020 4:07 pm

    @Kyle E. Mitchell

    Dude,

    I need someone to write a lot of code for me … including API …. for free

    So I can make a product and sell it for profit

    Waiting to hear from you or any other interested party

    Embedded C++, some Python wrappers, maybe some Java

    The pay is zero, of course – that’s what you want , right ?

    Any takers ?

  12. Pro Say February 21, 2020 6:17 pm

    ” . . . the Niskanen Center receives support from Google.”

    So just how much does this innovation-stealing tech giant hypocrite pay you — in dollars — each year?

    How much did they pay you in 2019?

    How much have they committed to pay you in 2020?

    A think tank?

    A stink tank is more apropos.

  13. Paul Morinville February 21, 2020 6:54 pm

    anonymous @1 “Wars have been fought over far less.”

    The tree of liberty must be watered from time to time.

  14. Kyle E. Mitchell February 21, 2020 8:20 pm

    Anon @ 8: Thanks for taking the time to respond. Perhaps you meant to include your name, rather than post anonymously? It’s hard to associate anything with you that way.

    If you’d like to discuss the copyright case, but prefer to do so privately, you can find my e-mail address on my website: https://kemitchell.com.

  15. Kyle E. Mitchell February 21, 2020 8:51 pm

    Paul @ 10: I didn’t mean to imply that you have been paid by Oracle. If that were the case, I’d expect your byline would have said so. It does mention that you lobby, which is fine.

    Good arguments are good arguments, no matter who pays for the time, gets paid for the time, or doesn’t. Suppose Google got Daniel for a price—that’s been insinuated, but not substantiated—and that Oracle got you for free. So what? Ad hominem barbs are not good arguments, especially when the legal point at issue matters more than the litigants or those arguing for them.

    Neither are pro hominem exhortations. Your being an American, an inventor, or an entrepreneur doesn’t elevate your personal interest to the national interest any more than my being an American, a programmer, and a lawyer elevates mine. By the by, I pay my bills forming entities, negotiating deals—predominantly software deals—and advising for small companies and startups. I’ve founded or cofounded a few small ventures myself. I don’t litigate, though I often forget that the jargon “tech trans” doesn’t convey that quite so readily to non-lawyers.

    None of this matters.

    My concern in seeing articles that are 50% weak argumentation and 50% strong recrimination. The replies I’ve received for saying so have been 100% recrimination. Which is all to my point.

    I’m always looking for places to learn and develop strong arguments in broader ways than briefing allows. If the way of comments here is instead to whip like-minded partisans up into a higher state of frenzy, I’m out.

  16. Paul Morinville February 21, 2020 11:33 pm

    Kyle, “If the way of comments here is instead to whip like-minded partisans up into a higher state of frenzy, I’m out.”

    You are pontificating about what you perceive as weak arguments, yet you present no rationale or reason why you think the arguments are weak. Maybe you could stimulate some respect if you did. Be specific in what you disagree with.

    Most here will listen to reasonable argument and respond with reasonable arguments.

    Not sure if I am sorry to see you go or not.

  17. Kyle E. Mitchell February 22, 2020 2:33 pm

    Paul, I did indeed share why I think arguments are weak—one of yours and one of Dan’s—in my first comment above. I also added a number of questions and prompts that go directly to the copyright issue and it’s implications, rather than the relative virtue of the litigants.

  18. Paul Morinville February 22, 2020 3:14 pm

    Kyle, If you think you already answered, I can’t tell what it is that you are saying… you seem to think that people would invent new stuff and put it out in the world without protection, even though big tech can freely take it.

    What are the incentives that you speak of other than IP protection? Who would invest in new tech if it could not be protected?

    Your perspective is that of large corporation with lots of money, lots of engineers, lots of lawyers, and huge markets that are leveraged to saturate markets with new tech. They protect their systems in ways than IP protection. In this world you are right.

    However, that is not the world most people live in. Most people who create new tech need others to invest in it becasue they have none of the resources of huge corporations. When they start up startups, they seek funding from investors (often called angels but sometimes friends fools and family) to prove out the idea in the market. Once proven, they need more funding. But investors are pretty smart. They look for some sort of security and in most cases a startup really only has IP to use as that security. They can’t hide in the bowels of a datacenter since they don’t have one. They have to disclose it to a lot of people to build it, market it and sell it. They don’t have huge cash reserves to secure the market faster than big corporations. It comes down to IP.

    You argument does not consider startups. Don’t feel alone. For the last 20 years, nobody has considered startups.

    And because that argument won, startups are moving to places like China, who now have superior IP protections than the US.

    Since the founding of the US and the US patent system, almost all new and revolutionary technology cames from little guys with big ideas. It came from startups. But since we have destroyed IP protection for those entities, the effects of that perspective is moving new tech startups to other countries. That is doing grave damage to America national security and economic growth.

    So to address one of your other comments… the one where you sluffed off that I am an American… being an American is very relevant to this discussion.

    It comes down to this… Do you want to continue living in a free country? Or do you eventually want to be the slave of a dictatorial master?

  19. Anon February 22, 2020 5:13 pm

    I for one welcome Kyle’s posts (even as the influence of ‘the Dark Side’ is very evident).

    😉

    No matter his innate or developed views, he does try to use reason rather than emotion or bombast.

    For one with technical leanings (but without a registration number), he may be able to serve as an ‘interpreter’ of sorts.

    He certainly is more inte11ectually honest than the likes of TFCFM who continues to purposefully misrepresent foundations of patent law.

  20. Flippy February 23, 2020 10:13 am

    To the extent it weakens the notion of patents as private property rights, and runs counter to 35 USC § 261, Oil States should be stricken down.

  21. Michael J. Ram February 23, 2020 4:50 pm

    Paul:
    Thank you for trying to set Takash and standing up for IP rights. I totally Agree with you.

  22. Tiburon February 24, 2020 4:08 pm

    Amazing – I check in on this site for the first time in a long time only to discover people are still blindly believing in patents!

    Look folks, do yourself a favor and face reality. Google has $120Billion of cash in the bank – and growing. They have – and will continue to – lobby against patents and copyrights. Innovation and technological happens as a result of software – not pieces of paper registered by a government.

  23. Anon February 24, 2020 6:22 pm

    Tiburon,

    Do you know what it means to have principles, or do you believe that anything is ‘right’ if you merely have the power to ‘make it so’ (especially regardless of the source or application of that power)?

    Serious question.

  24. Nigel Worth March 9, 2020 6:35 am

    Applaud this rebuttal,Mr.Takash being so fundamentally misinformed as to the increasing relevance of intangibles in a knowledge economy,seeming to support collectivism in his approach to their ownership. Equally,failing to appreciate the economic value of circulating IP as driver of change, growth and prosperity.

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