Tuesday, June 12, 2018

The Faulty Syllogism of Intellectual Property's Detractors

Stuart K. Hayashi

This essay is adapted from the much longer essay “Economic Value of Patents As a Direct Result of Supply and Demand, Not Labor Inputs.”

U.S. Patent Design No. 264,109. George Lucas’s design patent  on toys with Boba Fett’s likeness.

In this philosophic debate over the legitimacy of intellectual property rights (IP rights or IPRs), IPRs’ detractors rely on a psychological bait-and-switch. IPRs’ opponents proclaim that private property rights are only applicable to values that are “scarce.” Then they say that ideas are not scarce at all. And that is true for (a) impractical, fantastical, scientifically unsound ideas and (b) ideas that might be practical and sound in a very generalized context but have yet to be fleshed out to the point where the idea can be practicably implemented. Those sorts of ideas are easy to come by.

But patents and copyrights are not claims of ownership over either type of idea. A utility patent protects a detailed, illustrated, and scientifically accurate set of instructions for producing a unit for some good or service that is to satisfy some marketplace demand. Copyrights and design patents protect the exact, specific, aesthetic form of a design, proscribing duplication that is either exact or near-exact-with-tiny-perfunctory-and-cosmetic changes.

The specific original designs in patents and copyrights are “scarce” for two reasons:

  1. A party must invest considerable time and effort and material resources to produce a new design that plausibly possesses the potential to satisfy marketplace demand profitably. Very few parties are willing to take on this financial risk. And if these parties are not even reimbursed on these costs by the consumers who make use of their inventive design or artwork, these parties will scale back on their innovation, resulting in still fewer original designs being made available in the future.

  2. As a consequence of the variability in human experience, even when separate parties implement the same basic idea, the final result of each party’s effort ends up with its own unique qualities.

And yet IPRs’ opponents place the highly specific, granular, and scientifically tested designs that are patented or copyrighted under the umbrella of “ideas.” They rely upon people noticing there is no “scarcity” to impractical, fantasy-only ideas or to potentially-practical-but-still-vague-and-unexplored ideas, and then, in a supreme conflation, proclaim that because everything is just “ideas” sans all important distinctions, it follows that the non-scarcity of impractical ideas and vague ideas necessarily applies to the practical and specific idea-implementations in patents and copyrights. But the difference between (a) the designs codified in IP versus (b) general ideas is not a mere difference in degree; the difference is substantial enough to make it a difference in kind.

IP’s detractors advance an argument that purports to follow this syllogism. In category A is “ideas,” category B  is “that which is not scarce,” and category C is “that which cannot be rightful private property.” Then, applying Aristotle’s syllogism “If A = B and B = C, then A = C,” IP’s detractors put forth this:

  1. Ideas (A) are not scarce (B). (And this is definitely true of impractical ideas and still-only-vague ideas.)
  2. That which is not scarce (B) is that which cannot be rightful private property (C).
  3. Therefore, ideas (A) are that which cannot be rightful private property (C).

The fallacy is the presumption that the specific, practicable, and tested ideas protected in IP belong in category A alongside the impractical ideas and vague ideas. Let us be more accurate and say that impractical ideas and vague, unexamined ideas are in category Y, whereas the specific, practicable, and tested ideas codified in IP are in category Z. The reasoning of IPRs’ opponents thus ends up like this:

  1. Impractical and vague ideas (Y) are not scarce (B). True.
  2. That which is not scarce (B) is that which cannot be rightful private property (C).
  3. Therefore, specific-practicable-tested ideas, Z, a category we haven’t examined, are C, that which cannot be rightful private property.

You see how that is actually a non-sequitur?