| | Luke:
I consider looking at deeper motives behind arguments quite appropriate as I observed in my article "Questions and Motives" years ago.
Because discussions like this consume so much time, and so frequently involve sophistry, one really has to ask whether a troublesome participant argues in "good faith" or has ulterior, malevolent motives.
So I do not consider accusations of fraud and hypocrisy at all out of place in this forum. I don't know how I feel about this as a general matter; I don't find it that interesting of a question nor one that lends itself to some rigorous analysis... it seems to me that basic rules of civility and courtesy apply, and this is more of an art than a science. But in any case, Tibor posted a thoughtful article on IP; and I tried to comment sincerely and thoughtfully on it. Anyone who thinks that I've been "troublesome" or that I have "malevolent motives"--well, let's just say I disagree, and am not sure it's worth even debating the matter with such a person. Anyone making this assertion will have to suffer the judgment of their peers--i.e., they'll lose credibility.
Dennis: Ad hominem is an inappropriate argument when it involves a fallacy of relevance. �You once smoked crack so nothing you say could have any validity.�
In Stephan�s case, his work is obviously relevant because it clearly implies a lack of genuine conviction. But this is really not "about me"; if it were, I could go into the internal details of my life and career, were that not so boring and beside the point. It would take a bit more sophistocated understanding of the practice of law and in particular IP law for laymen to even understand the nuances and my "defense," as it were--if I were on trial.
If anything, to be honest, I could try the opposite tactic--using my authority as IP attorney as part of my argument--that I know more about it than you laymen, so just trust me. I could try to talk over your heads, use inside jargon, etc. I could try to act superior as if I'm better-qualified to opine on these matters, *because* of my experience. But I do not, and indeed to not think any of these things is valid or true. I think your average thinking person is as "qualified" as me and I try to explain things in normal terms where possible, etc. So here I am, arguing in a fair manner, giving my sincere views and trying to discuss an important and interesting issue fairly and rationally, and not resting on my status as IP attorney becaues that could be an illegitimate debating tactic... and then I get accused of the opposite, of being a fraud for not mentioning it loudly enough, or of being a hypocrite for having dissenting opinions about something I know a lot about, blah blah blah. It's so distracting and tiresome, and pointless. And it's not the way we would talk to each other at a dinner or cocktail party. Come on.
John: Why is it not acceptable to you when a rival company commits theft to obtain a design of a drug when those two drug companies don't have a contract with each other? Because as a libertarian, indeed as a pro-civilization person, I oppose theft, which is to say, I favor institutionalized respect for property rights. If A breaks into B's building to learn A's secrets, it is committing trespass, and ought to be punished. One thing taken into account in punishing is of course the harmful consequences to the victim. Sure.
But it is acceptable that a drug company can stipulate with the sale of every drug that the design of that drug cannot be reproduced, so in essence no other drug company could possibly get the design for that drug without either violating a contract, because afterall how can the rival drug company obtain a copy of the drug without first buying the drug from the rival drug company and thus must abide by the stipulations of that contract, or else simply break into a store or the company's factory and steal a copy of the drug. The difficulty here is ensnaring third parties. I believe that to assume the third party is necessarily caught in this web of contracts, you have to presuppose information is ownable, which is question-begging. I explain this in detail in Against Intellectual Property, pp. 33-41. Let's take a concrete example. Suppose A sells his drug to B, with every contractual stipulation you can think of. B is not permitted to tell anyone about the drug, or let anyone see it or use it unless that person also signs a similar agreement, etc. Okay? fine. But what if B *violates the contract*? Let's say B erects a billboard on his lawn that displays the formula for the drug. B's neighbor, see, from his own house, sees the information on the billboard, and thus now knows how to make a drug that does certain useful things. So he starts making this drug, and selling it, cutting into A's market share. Yes, yes, A can sue B for damages. But can A sue C? On what grounds? What did C do? C never saw the drugs B possessed, never used them, never touched them. There is no possible argument that he was holding "A"'s property without A's consent, so he can be ensnared. In this case, C only got knowledge, and he got it by doing nothing illegal or rights violative; he merely peered out of his own window, and saw information displayed in a billboard on his neighbor's lawn.
Should C now be forced not to act on information he has in his head? Why? On what basis? The only way to argue this is to say that *information* itself -- ideas, patterns of information, recipes, designs, whatever -- is property. I think this is obviously pernicious, but in any case, it is the question here, so to assume it is question-begging.
Either way through just an added stipulation to a contract, and the recognition that outright theft of a tangible product is banned with or without a contract, we have a de facto recognition of intellectual property rights. This is not correct, again, as I explain in detail in the paper noted above.
So how can a rival drug company under Stephan's view of jurisprudence, lawfully reproduce their competitor's drug? They would either have to break the conditions of a contract when buying the drug product, or they would have to resort to theft to obtain the drug product in order to reproduce it. Why do you assume this? All the competitor needs is *information*. They need not ever obtain a sample of the first company's product to be able to recreate it. In fact, information about the drug is publicly avialable--part of the FDA process etc. In a free market surely it would be publicly available so doctors and certifying agencies could inspect it and verify its safety, efficacy, etc. Even if it's secret, the purpose of the drug is known--what it does. If the competitor reverse engineers it, and comes up w/ basically the same compound as the first one did, to produce the desired effect, they are STOPPED today by patent law. Why should they be, esp. if they independently invent it?
Dennis: And it certainly is not hypocrisy for a CPA to use his expertise to minimize his client�s losses. Both the CPA and taxpayer are acting consistently with their principles. No one has a choice about whether to pay taxes. Seeking patents is optional, as is the legal work to make it happen. A patent attorney is not helping clients minimize the damage done by a law neither of them likes; he is actively helping clients get the maximum benefit from a law both are free to disregard if they so choose. If you do not apply for a patent, there are at least two risks. First, a competitor could later file a patent on this and shut you down. Second, you are relatively defenseless if a competitor sues you for infringing its patents. Applying for a patent is a very good way of preventing others from obtaining a patent on the same idea, later. So that is purely defensive. Second, if you obtain an arsenal of patents, it makes others afraid to sue you. They are VERY defensive in nature. Given that the system allows your competitors to obtain patents, it would be self-sacrificial to not obtain your own for defensive purposes.
I must say I am a bit flabbergasted most of my critics here seem unable to grasp this point. Any typical businessperson would have no trouble grasping this argument.
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