Contra Brin; or, Why patents are worse than secrecy

So David Brin has this article here:
Considering Copyright

It’s got copyright in the title, but his focus is more on practical technology than on expressive art, so discussing patents might be more appropriate. But that’s a minor quibble. His theme is “intellectual property”, and so is mine.

Brin doesn’t like IP very much, and he thinks it’s especially bad these days. But unlike myself, he does not advocate ending intellectual monopoly. He argues that abolishing monopoly would bring back the old practice of pervasive secrecy, which is even worse than monopoly. So although IP is bad, we should try to make it better, because we don’t have a good alternative.

I disagree, because IP has many practical problems that are really hard to get rid of, and these costs tend to greatly outweigh the benefits.

First off, to make the system enticing enough to overcome the allure of secrecy, we’ll have to make it strong and broad. This is expensive and risky.

A great part of the expense (and risk) comes from enforcement. You have to enforce the patent basically everywhere, because any place that can escape enforcement will still be able to profit from the disclosed information. The United States did this in its national infancy, to the country’s great benefit and Britain’s chagrin. China does this today. If we want patents to work, how do we deal with this? One way is to force the rebellious nations to get in line and honor the patents, but this adds considerably to the expense involved, and also the risk: if we start calling in the military for something that clearly isn’t national defense, then it becomes more tempting to call them in for other non-defense issues, and we get creeping tyranny. Of course, there are other ways to punish patent violators besides shooting at them. We could enforce trade sanctions… just like folks did in the days of mercantilism. I don’t recall that working out well. Or we could hide the details of the patented technology from the cheaters… but then we’re back to secrecy, which we were trying to avoid.

Then there’s the matter of qualification. Which inventions deserve special status? Since the point is to combat secrecy, we should only select non-obvious inventions. But how do we determine what is obvious and what is obscure? Who is to judge? Here is another expense, and another great risk. Whoever’s in charge of judging patents possesses great power, and with great power comes great opportunity for favoritism and graft. When the controlling power is corrupt or incompetent, then greedy folks can get patents on obvious technology and plunder at will.

In practice, this disclosure thing isn’t working out, so much so that this article calls disclosure a “myth”. Furthermore, the historical record goes against Brin’s theory of encouraging disclosure. By that theory, we would expect to see IP law put into place before a period of innovation. In practice, we see IP law put into place after a period of innovation. The lawmakers create these privileges not to encourage new progress, but to exploit existing progress. The people who demand these laws are usually people who have lost the capacity to profit from secrecy, and so they are looking for a legal privilege to replace their lost competitive advantage.

We do not need an “innovation” like IP to encourage creativity. We just need honesty and laissez-faire.