Monday, July 11, 2005

Internationalization of "Intellectual Property"

The Chinese Communist Party has acquiesced to enforce charges of piracy against Chinese people brought by United States companies. Despite the potentially lucrative implications for those companies, this is an unfortunate development for several reasons.

The first reason is straightforward. It increases the perceived legitimacy of so-called intellectual property. Although intellectual property was originally founded upon the public good, it is now increasingly being seen as a right that exists for the benefit of the IP owner.

Another body of law which was founded upon the public good is anti-trust law. In this realm, litigation has been decided in a way that confirms that the laws are for the public good. Companies like AMD, alledging harm by Intel, must present their claims and arguments in terms of harm to the public good.

By contrast, when companies (or individuals) try to use one of the Electronic Frontier Foundation's 10 Most Wanted Patents to extort money from small businesses, they do not have to show that such extortion is in the public interest. In essence, that debate is presumed to have already happened. The U.S. patent office implicitly takes it that the research done by the inventors, for the sake of the patents, has (in the preponderance of cases) benefited the public more to an extent that justifies the heavy burden on the courts of enforcement, and on would-be competitors and the market they would serve.

In a sense, it would be nice to have a renewed debate on whether the whole system is worth it in these terms. Unfortunately, it may be too late. Patents are no longer even supposed to be for the public good, but rather are considered as a right of inventors, akin to the freedom of speech or freedom to own physical objects.

The second reason that the development in China is unfortunate is that it pits the U.S. government together with the CCP against certain freedoms of the Chinese people. This arrangement seems like it could undermine the pro-freedom stance that has been taken in the past by the US government (not that the US hasn't seriously undermined such positions in and around Iraq over the last 3 years). Perhaps the CCP will be able to find tacit support from the U.S. and international corporations for "playing ball" like so many friendly dictatorships.

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