From: hal@finney.org
Date: Fri Dec 24 1999 - 12:28:51 MST
Robin Hanson, <rhanson@gmu.edu>, writes:
> The key problem is: who if anyone can be trusted to make the needed
> judgement calls about what sorts of patents to allow where and when?
> Those with sufficient faith in the ability of governments (and courts)
> to make such calls well should support patents, and give governments
> a lot of discretion about what patents to allow. Those with greater
> skepticism about such government ability should ask which is worse:
> no patents at all, some very simple rule about which patents to allow,
> or a very error-prone government using a lot of discretion.
Rather than focusing on the role of governments and courts in enforcement,
I would pull back and look at it as a social issue. Does society want
to create property rights in intellectual space? If so, then we need a
mechanism to enforce them, which will come down to courts and police
ultimately.
But the same question and the same mechanism applies to property rights
in physical space as well. Do we need faith in government and courts to
decide that physical property rights are important? To some extent, yes,
for government can certainly misuse the powers associated with physical
property rights. But in the larger context, distrust of governments
should not cause us to reject the notion of property rights a priori.
Ignoring the specific implementations, we can ask what sorts of property
does society want to recognize. Even if we had no governments, but
merely relied on ostracism of violaters to enforce property rights,
society might still recognize rights in some forms of physical and
intellectual property but not in others.
The question then becomes a matter of what sorts of property are easy
to manage and what sorts are troublesome.
I suspect that much of the reason we have so much problem with patents
is because they are like intellectual homesteading. In the early days
of the U.S., when much physical property was unowned (by members of the
dominant culture), homesteading was used for the inital allocation of
property in some areas. People would move onto unoccupied land, build
a home, and start to farm it or use it in some way. In this way they
came into ownership of the land.
This sounds simple, but obviously there would be many ambiguities
possible. What constitutes use of the land, how much land can one person
reasonably claim, where are the boundaries? These are the same questions
which arise in patent disputes as well.
At present, homesteading is not widely used, if at all. There aren't many
issues arising today about homesteading. But in today's competitive
world, if there comes a time when physical homesteading becomes a
significant phenomenon (say, to colonize other planets), I believe we
will see a much more difficult and troublesome set of questions arise.
Especially with the aid of automated systems, robots, nanotech and the
like, physical homesteading is going to be in many ways just as full of
ambiguities and difficulties as intellectual homesteading.
One difference between patents and homesteaded physical property is that
patents expire after 20 years. I wonder if society might benefit if
patents were permanent. With the 20 year period they are mostly used
in a negative way, to interfere with competitors. If patents were
permanent the owners would look at ways to exploit them over a long
period to bring in license fees.
Hal
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