What Do Patents Encourage?

     A month ago, I posted complaining about how copyright law has imposed costs on the rest of us, prompted by my frustration in trying to legitimately copy some files from a CD-ROM to an iPad. This morning I had an experience that added to my frustration with intellectual property law, this time in the form of patents.
     The whole reason for having patent law is to encourage innovation, but at least sometimes I suspect  it does the opposite. I was driving my son to school in an older car a cassette deck where the CD player ought to be, when it occurred to me that, given how small MP3 players are now, shouldn't it be possible to build one into a device that emulated a tape cassette? You just make a little induction coil or some such gadget to interface with the tape head of the cassette player, and use that as an output. Have sensors in the reel sockets to detect when the cassette thinks it's playing, rewinding or fast-forwarding, maybe even have them draw some power from them for recharging, and there you go. All the technology to do this exists; it should be fairly simple to build such a device.
     As I thought about this, I realized that there were various hurdles to overcome besides the technical. The first one, I thought, from a business perspective would be market: how much demand would there actually be for this thing? I mean, there are still cassette players around, but for how much longer, and is it cost-effective for anyone to buy this gadget instead of just getting something up-to-date? But perhaps, if it were cheap enough, for people who just like their old stereo systems.
     The thing that really gave me pause, though, was patent law. Surely, I thought, someone else would have thought of this invention before I did. And that meant that if I were to go out and create this device and try to sell it, I'd probably get sued by whoever registered the patent on it. Even if nobody else had patented it and I didn't want to apply for a patent myself, I'd still need to search through patents to ensure that I wouldn't be running afoul of someone else's rights by creating such a device.

     This is all academic, of course, because I'm not at all technically adept enough to design and build this thing, and I'm not actually all that interested in marketing it either. (Also, I was right that someone else probably had thought of it, and built it. Turns out there are several on the market already.) But what I found striking was that of all the obstacles to turning an idea into a reality, the one that discouraged me the most was the whole business of patents. I just didn't want to have anything to do with the kind of research that would involve, and I've been to law school!

     That's not to say that patent law always discourages innovation. For people and companies who have ideas with solid economic potential, it is certainly worthwhile to invest the time and resources in developing the invention and applying for the patent. But for borderline case? For things that might be useful? Here is where things get iffy.
     Laws are generally intended to promote some sort of behaviour and discourage others, but it often turns out that the behaviour a law actually  promotes is not the behaviour it's intended to promote. Cynically, some people (wrongly) say "it's only illegal if you get caught." More accurately, you're only punished if you get caught, but the point here is that people often consider it more cost-effective to modify their behaviour around the practical consequences more than the actual intention of the law.
     Patent law is no different. As much as we might want patent law to encourage innovation, it isn't actually innovation that is encouraged, but the use of patent law itself. You aren't rewarded for coming up with and marketing a good idea so much as you're rewarded for applying for and asserting patent rights. Suppose two identical twins separated at birth independently come up with a brilliant idea, and both go through all the steps needed to develop it for market, but one of them applies for a patent and the other doesn't. Which one will reap the rewards? Clearly, all other things being equal (and here we've postulated that they are), it's the act of going to the patent office that's rewarded, not the innovation itself.

     Again, I don't have a solution for this. I don't have an alternative to patents to propose here, anymore than I was able to suggest an alternative to copyright. But I do think we should be aware of how sometimes our policies work against themselves.

Who needs laws?

     There is quote going around, attributed to Plato, that reads as follows: "Good people don't need laws to tell them to act responsibly, and bad people will find a way around the laws." It's an attractive sentiment, and one I'm inclined to agree with.... sort of. But I can't seem to find the passage in the works of Plato himself, and in hindsight that's not terribly surprising, because for all his talk about the ideal world of forms, Plato wasn't exactly an idealistic anarchist.

     The closest to this quote I've been able to find by googling Project Gutenberg has been this, from (not surprisingly) The Laws. 

For if a man were born so divinely gifted that he could naturally apprehend the truth, he would have no need of laws to rule over him; for there is no law or order which is above knowledge, nor can mind, without impiety, be deemed the subject or slave of any man, but rather the lord of all. I speak of mind, true and free, and in harmony with nature. But then there is no such mind anywhere, or at least not much; and therefore we must choose law and order, which are second best. 

     So here, the idea is that if people were smart enough to know what's right and wrong, we wouldn't need laws, but few people are that wise. Law is an imperfect compromise, then, says Plato, but a necessary one.
     The problem we have, of course, is that lawmakers are themselves human and rarely much if any wiser than the people to be governed by those laws, so agreeing to follow the laws doesn't seem to get us any closer to doing the right thing than if we were to simply choose on our own.

     But I think it's a mistake to think the law is there to tell us what's right. We need laws because we don't all agree on what's right. If we all agreed (even if we were all wrong) that a person ought to do X in situation Y, then we wouldn't need law, because everyone would do X in situation Y and no one would have a problem with it, regardless of whether it was objectively right or wrong, and there would be no need for law. So I prefer to think of the law as the weapon with which we finally resolve our disputes in civilized societies, when we cannot resolve them by more amicable means.

     I mean that in more than just a figurative sense, because I believe the law really is a weapon. Consider what distinguishes use as a weapon from other sorts of tool use: weapons are used to reduce the capabilities of the target in some way. A knife can be a tool for separating bits of flesh from each other in surgery or in combat; in surgery the intent is to effect some sort of repair that ultimately enhances the capabilities of the patient, while in combat the intent is to reduce (or eliminate) the target's ability to fight.
     The law is purely a weapon in this sense. Law cannot create freedoms; it can only reduce them. But, by pruning away certain freedoms (such as, for instance, the freedom to commit murder), we can allow other freedoms to flourish that otherwise would have been suppressed (such as the freedom to do things that you can't do when you've been murdered).
     It may not look like the criminal law is about dispute resolution, but taken as a whole I think it is. It's illegal to kill people not so much because we all (or most of us, anyway) agree that murder is immoral, but because murder violates the rights of the victim to exercise autonomy. So does any sort of violence. Theft and other property crimes are extensions of property law, which is how we resolve disputes over who gets to make decisions involving scarce resources. Contract law allows us to artificially and voluntarily reduce our freedom to break promises, enabling us to rely more on agreements and on the whole, enhancing our range of choices. And so on generally: the ultimate role of law is to resolve disputes.

     And that's why we need laws. Not to tell us right from wrong, but to allow each of us to seek after what seems to be right, whatever that may turn out to be.

Externalities

     Last week, I spent several hours trying to help my mother perform what ought to be a fairly simple function: transferring files from a CD-ROM to her iPad. This turns out to be surprisingly difficult, thanks to the Digital Rights Management paradigm around which the iPad and, increasingly, computers generally are built. A device like an iPad is presumed to be tied to a particular computer, and so the songs and other things you've bought on your laptop are conveniently and automatically shared with your iPad. But to prevent piracy, there are barriers to sharing files with someone else's computer.

     So, all I wanted to do was use the CD drive on my laptop to move the files from the CD to my mother's iPad, but a dialogue box warned me that the syncing process would delete photos on my mother's device that weren't present on my laptop. We were eventually able to move the files over, but it took a long time and was ridiculously inconvenient.

     Okay, I understand intellectual property law, and the rationale for copyright, and why it's important to provide a means for creators to earn a living from their works. I get that, I really do. I don't agree with the calculations of how much the music and film industries lose to piracy every year, which are absurdly inflated and self-serving, but I'm sympathetic to the plight of the starving artist. I really am. 

     But really, is copyright law the best we can come up with? Are these barriers to copying really justified? Because those barriers impose costs on people, and not just the people who ought to be paying. 

     If you've taken economics, you're probably familiar with the term "externality", which just refers to any cost (or benefit) that doesn't show up on the balance sheet of the economic actor in question. The classic textbook example of an externality is the pollution from a factory. The factory owner's costs of production are the cost of the land and the factory itself, the raw materials used, the machinery, and the labour to run it, but the cost of pollution (quantifiable as reduced property values, additional health care costs, diminished agricultural yields, etc.) is imposed on someone else. 

     Factories may be necessary, but the exclusion of externalities from their accounting greatly distorts the appraisal of their economic value. You can't argue that a factory is efficient because it's profitable if it's being subsidized by everyone who has to put up with the pollution it emits; you have to take into account all the costs (and benefits; there are positive externalities as well) of an activity before you can trust in the validity of the Invisible Hand's market results.

     Now, I'm not arguing here that intellectual property rights should be abolished. (I feel sure there must be a better solution, but at the moment I'm at a loss to provide one.) But I am arguing that the copyright as it is currently applied imposes significant externalities on people who aren't pirating anything. The files on that CD-ROM my mother wanted to look at were sent to her by their creators for her to review; there was no violation of copyright at all involved. And yet, to protect the rights of a relatively small subset of copyright holders (i.e. those represented by traditional publishing and media companies), the iPad was built to make it difficult to transfer any files outside of the commercial paradigm. 

     The inconvenience of copying perfectly legitimate files is only one of the costs we pay to protect the interests of copyright holders. There are countless others, from the trivial (why can't I skip past watching that same FBI anti-piracy warning on a DVD? How many person-seconds has that wasted?) to the absurd (why can't I watch the original WKRP in Cincinnati episodes with the original music? Is anyone seriously going to use that show to listen to snippets of popular songs without paying for them?) to the genuine stifling of creative contributions to the world's cultures (Was anyone going to read The Wind Done Gone and decide they didn't need to read Gone With The Wind or see the movie now that they knew how it ended?)

     All of these costs are imposed upon you and me and the rest of the world. There may be good reasons for imposing them, but we still end up paying them, and paying them involuntarily. That basic fact undermines the media industries' attempts to claim the moral high ground. They are trying very hard to make us all accept the idea that unauthorized copying of things is stealing, and there's some moral validity to that. But I just had three hours of my time "stolen" trying to copy something the owner actually wanted me to copy. If the recording industry wants people to recognize and sympathize with their losses to unauthorized copying, this is probably the wrong way to go about it.

Two 14-year-old Girls

     Not long after I wrote my last post on insulting the prophet, I heard a debate on the radio that raised my free-speech hackles a bit. One participant took the position that people should be criminally liable for speech or symbolic acts that they know are likely to result in violence, such as burning a copy of the Koran. She articulated the principle in terms of causality, which is what I found troubling, because it seems to me that to assign moral blame to the speaker for how an audience reacts is to deny (or at the very least dilute) the responsibility of audiences to react appropriately. Even if an inappropriate response is predictable, I am reluctant to blame the speaker, except in cases of fraud or deception.

     As if to make that point clear, last week the Taliban attempted to assassinate a fourteen year old girl, Malala Yousufzai, for her audacious and heretical suggestion that girls should be educated. The Taliban have made it very clear that they intend to respond with violence to such advocacy; it was therefore reasonable to anticipate that if Malala were to continue speaking out in favour of girls' education, she would be targeted. And yet we view her (rightly in my mind) as blameless in this, and in fact we praise her for her courage. The blame, all of the blame, falls squarely on the shoulders of the ignorant zealots who tried to kill her. They did wrong, not she. 

     The same week, a successful attempt on the life of a different fourteen year old girl was made, unfortunately by someone less inept than the Taliban: Amanda Todd committed suicide after ruthless bullying. 

     The juxtaposition of these two girls and their circumstances leaves me greatly conflicted. On the one hand, I feel very strongly that Malala did nothing wrong, and that nothing she said justified any act of violence whatsoever. At the same time, though, I have great sadness and sympathy for Amanda, and anger at her abusers. And there's the conflict, because ultimately she was the one who decided to kill herself, in response to abuse which at its core was speech. (I know she had been punched and blackmailed, but I will go out on a limb and speculate that it was the insistent display of hatred and moral condemnation more than anything else that drove her to such misery.) Did I not just conclude, before being confronted with this case, that speakers are not to be held morally responsible for the inappropriate reactions of their audiences, even if they are predictable? If Malala was blameless for the attempt on her life, even though it was predictable that Taliban zealots would react with inappropriate violence, how do I still feel anger at Amanda's bullies, for her inappropriate reaction of self-directed violence?

     I've struggled with this, and for a while I thought I could explain it this way: The bullies are not to blame for her death, but for something very nearly as evil. They are to blame for treating her with such devastating cruelty as to make her miserable enough to want to die, and that's plenty blameworthy enough.

     But I'm not sure that rationalization really does the trick, either. After all, Malala's speech clearly caused great distress to the poor sensitive Taliban, hurting their delicate feelings or their religious sensibilities or whatever badly enough to provoke them to violence, and yet I have almost no sympathy whatsoever for them and their reaction, whereas I do have sympathy for Amanda.

     The real answer, I think, is uglier. I said above that only in the case of fraud or deception can we blame speakers for the actions of their audience, and I think we have all deceived Amanda and each other. Malala spoke truthfully and frankly; she said she believed girls deserve to be educated, and the Taliban assassins could have tried to reason with her and her audience, to explain why she was wrong and to convince us all that no, after all, girls ought not to be educated. But they didn't do that. They surrendered the moral high ground and shot her instead.

     In contrast, Amanda's bullies told her, through their words and actions, that she was worthless and bad and deserved to die. Some creep manipulated her into showing her bare chest to him online, but we told her, collectively, that was something for her to be ashamed of. We empowered him to blackmail and humiliate her, by making a federal case out of "wardrobe malfunctions", by making it a big deal, a grave moral concern. In short, we told her a lie that she believed, and on that basis killed herself. We've got to stop telling that lie, and I suppose the first step there is to stop believing it ourselves. 

Explaining is not Excusing

     I was talking with a friend a few weeks ago who expressed a certain dissatisfaction with my earlier post on the Man-Cold. It's not that she thought it was necessarily false, she said. She just didn't like my giving men an excuse to be such wimps. Well, I don't think I did that. I gave an account for why it might actually have been a survival trait for men in our evolutionary past to be laid low by a simple cold, but I never said anything about whether or not it was morally appropriate. Indeed, while it might once have been sensible, most of us don't hunt mastodons anymore, so being unable to wash the dishes or take out the garbage just because you have a cold is just silly. We no longer live in an environment where being a wimp about a simple cold has any practical justification. We can understand why men might be wired this way without committing ourselves to saying it's perfectly all right for them to lie incapacitated on the couch if they get the sniffles.

     But the tendency to equate explanation with excuse is powerful and widespread. In The Blank Slate, Steven Pinker discusses at some length the surprising levels of anger faced by scientists who make any pronouncement about, say, the reproductive advantage that a tendency to rape might offer. Now, I should think it would be uncontroversial that, all other things being equal, a male of some species who was willing and able to force his attentions upon an unwilling female would have more reproductive opportunities than one who wasn't, and that it therefore shouldn't surprise us to find that some males carry such an urge. (Unless, of course, there really were some sort of magical shut-down system in the case of "legitimate rape", as a certain woefully ignorant politician recently claimed.) Yet, thanks to this instinct we have to confuse explanation with excuse, the very suggestion that some men might have an instinctive desire to rape is tantamount to declaring open season on women.

     It's not, of course. Recognizing that people have desires or instincts that may be inherited says nothing about the morality of acting upon those desires. No one would suggest that hunger is a culturally learned behaviour, that we only eat because we've been taught to. Hunger is a perfectly natural and hardwired instinct, but that doesn't mean we excuse all acts of eating as appropriate. (And we almost never justify cannibalism, an act of eating with a human victim. When we do, it's always in survival situations: "But I was really, REALLY hungry" is not the defense; "But I was going to die otherwise" is.) So what if we have a hardwired instinct to get horny? Unless it's possible to actually die of lust (I should be dead if it were, and I say this as someone who's been through cancer and chemotherapy), there can be no excuse for rape.

     In fact, I think those who object to explanations of bad behaviour as "excusing" it are promoting a very dangerous idea. The argument that a hardwired biological urge absolves us of moral responsibility is absolutely poisonous, because if it turns out that as a matter of scientific fact we do have hardwired biological urges, then we can no longer object morally to anything. Far better, and far more realistic, would be to acknowledge the plainly obvious fact that people do have instincts and desires, sometimes very powerful ones, that push them in the direction of doing evil things, and to say that we ought to cultivate the self-discipline to overcome these urges. Denying the reality of these feelings helps no one to resist them.

     There's another aspect to this that I feel is also morally dangerous. I had a conversation with another friend last week who said that she would rather not understand some things, because she never wants to understand how some people can do the evil they do. I can sympathize with that sentiment, but I think it's dangerous because it encourages us to think of evil as something other people do, and thus something we don't really have to worry about.
     That isn't how it works. People don't do evil because they are privy to some sort of secret knowledge that authorizes them to do things the rest of us find abhorrent. They generally do evil because they lack some belief or understanding or value that the rest of us consider important, or because they have managed to convince themselves that what they do is necessary and right. Or, I should say, that is why we do evil. We are unaware of mistakes we have made in our moral reasoning.
     That's the important point I want to make. Our moral responsibility is for what we do, and to ensure that we have made the best choice of action available to us. To do that, we need to be alert to the kinds of errors we might make, and to take seriously the idea that we might be wrong. The greatest evil is done by those who refuse to consider that they could be wrong, and the refusal to try to understand evil-doers is no protection against becoming an evil-doer oneself. It only makes it likelier.

Insulting the Prophet

What does it mean to insult someone?

We're all familiar with the basic schoolyard approach to insults.  They usually involve making some outrageous unflattering claim, often about the target's dietary or sexual practices, as a result of which presumably we are to hold the target in lower esteem. Personally, I was never much offended by the content of this sort of insult, nor much impressed by those who uttered them, perhaps because I have a tendency to interpret and analyze things literally. If someone alleges that I mate with iguanas, I'm more likely to be puzzled than offended: such a preposterous claim should reflect more on his credibility than my respectability.

Even in those instances where what was revealed about someone happened to be true, ("Billy's wearing green underwear!") it never made much sense to me that this should embarrass Billy. After all, we probably assumed he was wearing underwear, and it had to be some colour. I'd have thought it more embarrassing to be seen as having any interest in knowing the colour of Billy's underwear, and thus I always felt it was the insulter who should be embarrassed rather than the insulted. And I always felt just a little bit insulted as a member of the audience to such games, because the insulter who gleefully tells me the colour of Billy's underwear is implying through that speech act that I am expected to care.

That's the sort of thing that insults me. Not words, not statements of belief that I am unworthy, but clear demonstrations of that belief. You may say that you believe I am an idiot, and that's fine; you've presented a proposition which may be true or false, and put your own credibility on the line if I prove to be otherwise. But when you act in such a way that shows you fully expect me to behave like an idiot, when you tell me something obviously false and expect me to believe it or expect to convince me with a ridiculously flawed argument, that is something I can't help taking as an insult to my intelligence. When a grandmother's knitting needles are confiscated by airport security to protect me, it's an insult to my courage. When women are expected to dress modestly for fear their beauty will incite me to rape them, it's an insult to either my virility or my self-restraint or both. 

(Of course, if I am an idiot or a coward or an untrustworthy dangerous animal, it may be perfectly appropriate to treat me as such.)

And so what does it mean to insult Islam or its prophet or indeed any religion? Who or what should feel insulted, when someone makes a satirical film or a cartoon depicting the Prophet in an unflattering way? If what is said is false, well, does this not reflect poorly on the speaker more than it does upon the Prophet, and call for no more punishment than being revealed for a fool or a liar? And if what is said should be true, then it is either irrelevant and nobody's business (as in the case of Billy's underwear) or it is a relevant and legitimate criticism, in which case it is perfectly appropriate to act in accordance with it.

Actions speak louder than words. When, claiming to act on behalf of Islam, you storm an embassy and murder people because someone else thousands of miles away made a fool of himself, you demonstrate that you believe Mohammed to be an arrogant, vindictive and thin-skinned bully who resorts to violence rather than reason. If that belief is false, then it is you who insults the Prophet with your actions. And if it is true, then it is a perfectly legitimate basis upon which to criticize the religion.

That's not my house!

One day, when I was in kindergarten, we were all asked to draw pictures of our houses. And so we picked up our crayons and got to work. After a while, as my crude representation was beginning to take shape (I took great pains to get the chimney placement just right, struggling with how a vertical chimney could still be perpendicular to a sloped roof), the kid sitting next to me looked over and said indignantly, "That's not my house!"

Okay, so it was a French immersion kindergarten, and maybe the kid was still trying to sort out how pronouns worked, and thought the assignment for everyone was to draw his house. Kind of a cute mistake in a kindergarten kid, but it's somewhat more frustrating when this kind of subjectivity takes over in adults. Lately I've encountered it in two examples I'd like to discuss.

The first was in the context of a Facebook status thread argument about abortion, in which I reprised a little bit of my argument from this posting. Mainly I wanted to make the point that it may not always be a good thing to view the fetus as a person from the moment of conception, because while that may be a great way to behave as an expectant parent, forming a healthy social bond with the person-to-be, it also can create a great deal of unnecessary suffering in the case of a miscarriage. Miscarriages being rather common, after all, is it really better to think of oneself as the grieving parent of a dead child, or a (temporarily) disappointed would-be parent?

This comment drew considerable ire from one commenter who inferred immediately that I must not know what I'm talking about, or I could never say anything so heartless. Obviously I'd never been through a miscarriage myself. Obviously I wasn't a parent. Well.... as it happens, I have a fifteen year old son whom I love dearly, and my wife and I have been through somewhere between 4 and 6 miscarriages after he was born. (It's hard to know the exact number, because in at least one instance it was never fully established that she was actually pregnant. She sure had all the symptoms, but it's uncertain if anything remotely viable was actually starting to develop in there.)

Now, we were deeply disappointed each time, because we really did want a sibling for our son and another son or daughter for ourselves. We also had started to develop hopes for and bonds with the potentiality that was starting to grow, and it was sad to lose them. But did we feel like parents who had lost an actual child? No, no indeed. Our first pregnancy produced a healthy son, and now that he was born, the disappointment of losing a pregnancy was utterly inconsequential compared to the absolute horror with which we thought of losing him. We are the proud parents of a wonderful son; we are not at all the grieving parents of 4-6 dead children and one survivor.

My point here is not the commenter on that thread was wrong to think of a fetus as a person. I don't think she is wrong to think that way, or at least, not very  wrong; on a personal level I think it's quite desirable for individuals to bond with their unborn children that way because it is a part of good parenting. But I think she was wrong to think everyone must think that way, and to assume that her experience of pregnancy and miscarriage was privileged over any other experience that doesn't mesh with it. We are not wrong to be merely disappointed by miscarriage, either. The error she made, and the error I'm musing about in this post, is in thinking that her experience was the experience. Just as my kindergarten classmate mistook his house for the house we were all supposed to draw.

The other example that's been weighing on my mind lately is that of a frequent anonymous commenter to this very blog. He or she regularly exhorts me to accept a particular religious view, assuring me that if I just ask God to reveal Himself to me, I'll come to know Him and cease with all these silly doubts and philosophizing. Now, I don't doubt that I'll feel that way if I just swallow the blue pill (or is it the red one), that I'll be thoroughly and comfortably convinced of my place in the universe and my relation to the divine. But I can't get past the concern that feeling that way won't make it true.

Now, looking at it from the perspective of the commenter, I can certainly see his or her subjective position. I know that believing one has a personal knowledge of the divine feels exactly like knowing, and more, it feels like a private kind of knowing that no one else can truly understand if they don't feel it too. I understand how privileged that sense of knowledge can feel. I feel it too, but I recognize that it really only applies to things that I, by definition, must know, such as how I feel, how I perceive something, how sincerely I am open to God's revealing Himself to me. I know these things better than anyone else can, but I recognize that my subjective privilege doesn't go beyond the borders of my skull. It's not for me to know, better than you do, how you relate to God, whether or not you love your children, what your house looks like.

What I want to assert to my commenter here is that it's not for you to know, better than I do, how I relate to God, how much I love my son, or whether or not I'm drawing an accurate picture of my own house. It's not supposed to be your house.