Mickey Mouse: Nemesis of Creativity

This is not just about Mickey Mouse, but Mickey Mouse has played a major role in the limitation and downfall of creativity in the U.S..  Long ago, a collection of men wrote an incredibly important document, through a collaborative process that involved constant debate, argument, and compromise.  This document was intended to define how the new government of the American colonies would govern its people.  One section of this Constitution was intended to enumerate the powers  of the Federal government, and after the first 7 powers were decided upon, the discussion turned to patent and copyright.  The British government, which played the role of abusive parent to the colonies, had a patent and copyright system, but most of the governments of the world did not.  Those in favor of such a system argued that protection of ideas would motivate people to come up with more and without such protection, people would not bother creating, because there would be nothing of value in it for this.  Some also argued that invention is expensive, and inventors needed some way to recover their costs.  There may have also been an idea that protection of ideas would help increase immigration from countries without such protections.  And thus, the Article 1, Section 8, Clause 8 of the U.S. Constitution was written, giving Congress the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

This clause was not accepted unanimously though.  Many opposed it, including Thomas Jefferson who described any government enforce monopoly as a travesty and said the following with respect to the idea of ownership of ideas:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.

 And Jefferson was not the only person present who felt this way.  It was widely accepted that ideas cannot be literally owned and had no natural owner associated with them, for more reasons than stated by Jefferson.  Ideas cannot be stolen, because taking an idea away does not deny the creator the use or value of the idea, like the theft of physical property does.  Ideas can be shared freely without the loss of any amount of the idea for those sharing it.  An idea, once taken, cannot be confiscated from the taker and returned to the creator.  In addition, multiple people can create the same idea, without interfering with each other.  The use of physical property is exclusive.  Only one or a limited number of people can use it at the same time.  Ideas can be used by any number of people, without any sort of crowding or interference.  As Jefferson wrote, "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea..."  And the majority agreed with him.  The reason the Federal government was given the power to create patents and copyrights is clear from the wording in the Constitution: “To promote the progress of science and useful arts...”  While some clearly argued that ideas should naturally belong to their creators, otherwise Jefferson would not have had cause to write what he did, the majority agreed that patents and copyrights should be granted for the progress of society.  Thus, the power granted to the Federal government only allowed for temporary copyrights and patents, not permanent ones.

Unfortunately, the evidence suggests that even the argument ultimately used to justify this power was wrong.  Elsewhere Jefferson pointed out that at the time, Britain was the only nation known to grant patents and copyrights, and yet Britain was no more advanced than any other developed nation.  Patents and copyrights had done nothing for Britain to "promote progress of science and the useful arts".  In fact, the evidence suggested that patents had hobbled Britain, as the exclusive ownership of ideas had prevented those ideas from being improved upon by others.  Giving inventors exclusive rights to their ideas did not and thus far has not proven useful in encouraging invention.  And now days, we are actually seeing substantially more innovation in the realm of open source invention, where inventors and creations deliberately give up exclusive rights to their ideas, than we have ever seen in proprietary invention.

This is not all though.  As Jefferson and others saw with Britain, we have also seen our own share of copyright and patent actually retarding the progress of science and the useful arts.  In the early '90s a technique dubbed patent trolling became a major source of profits for some companies.  These companies would hoard patents, doing their best to obscure what patents they held, and then they would wait for someone to infringe.  Infringement of a patent gives the patent owner the upper hand.  This allowed patent trolls to extract excessive sums of money from honest companies who did not realize they were infringing on a patent, because the patent trolls had deliberately made that information hard to find.  Companies like Apple and Microsoft objected to this highly dishonest practice, and they were the ones to give companies like this the title of patent trolls.  Of course, over the next 10 years, Microsoft developed into one of the worst patent trolls our society has ever seen.  Since then things have improved, as patent searcher are now much easier with the internet and Microsoft has finally begun to prioritize ethics, but patent trolls still severely hinder innovation.  Many companies carefully avoid innovation, staying safely within the public domain, to avoid the threat of patent trolls.  Many small businesses and startups have been destroyed completely by patent trolls, when they could not afford legal fees to fight, and they could not afford the demanded settlement.  In addition, patents and copyright deny the ability to make derivative works without permission.  This mean that new ideas cannot be built on top of patented ideas until the patents expire.  In the U.S. patents have a term of 20 years.  This means that an idea which could be iteratively improved or built upon at a rate of some major new innovation every 2 years will progress at a rate 10 times slower, because of patents.  And in many cases, innovation will never occur, because after 20 years, many ideas are no longer in the public eye and are buried under 20 years worth of newer ideas.  Ideas which could have turned into something incredible are frequently forgotten in less time than that.

It is not clear whether patents and copyrights had a significant impact on immigration, but it seems unlikely.  We currently have many times more people wanting to immigrate than we are allowing.  Even if this was a legitimate thing when this power was granted, it has not been for well over a century.  Most people immigrated to the U.S. for economic and religious freedom and still do, not because of the promise of exclusive ownership of ideas.  If patents and copyright ever did have an impact on immigration, it was hardly significant.

Then there is the Berne convention, an international treaty on copyright, which the U.S. joined in 1988.  The Berne convention treats copyright as a natural right of the creator.  It holds the U.S. to the copyright laws of whatever country an item is copyrighted under.  It also requires copyright to be enforced even without registration.  Every single point here violates the Constitutional power granted to the Federal government.  The Federal government is only authorized to treat copyright and patent as existing for the "progress of science and the useful arts".  And given the well documented opposition to treating ideas as natural property by a majority of those who drafted the document, any honest judge must interpret the Constitution as denying any form of natural right associated with copyright and patent.  The mandate to enforce the copyright laws of the country of origin is only Constitutional when there as a guarantee that those countries' copyright laws adhere to the same requirement that they exist for the exclusive purpose of "progress of science and the useful arts".  Enforcing copyright law without registration is a bit more ambiguous in its legality.  If it was clear that copyright promotes "the progress of science and the useful arts", then automatic copyright without registration would definitely be Constitutional.  This is not clear at all though.  Unlike patents, copyright has less potential for hindering progress.  At the same time though, of the vast quantities of materials that are copyrighted due to automatic copyright, only the barest fraction benefit anyone by being copyrighted.  And while only the tiniest faction of copyrighted would could benefit anyone if derivative works were allowed, there is enormous value in being able to obtain copies of materials that are no longer considered valuable enough to continue publishing.  This includes the enormous amounts of books that publishers do not consider profitable enough to prioritize over newer books, old newspaper articles, and old magazines.  We cannot even legally learn about our own history, because copyright prohibits us from copying (even digitally) newspaper and magazines that are not substantially older than a vast majority of us are.  This is certainly not promoting "progress of science and the useful arts".  In short, the Berne Convention is directly opposed to the Constitution.  Congress should never have ratified it, and if it was brought to the Supreme Court, they would either have to rule it unconstitutional or violate their integrity (which sadly is not an uncommon occurrence in that court now days).

How does this have anything to do with Mickey Mouse?  It has everything to do with Mickey Mouse, because Mickey Mouse is a copyrighted character and has almost had his copyright expire at least three times.  We are approaching the fourth time rapidly.  Mickey Mouse's current copyright expires in under 5 years.  Under current copyright law, it expires in 2023.  Don't start getting your hopes up about making derivative work or otherwise using the character.  Mickey Mouse has almost expired three times already.  Each time, Disney lobbied Congress to extend the length of copyright to maintain control over this character, and Congress gave in.  The legality of this is questionable.

Thus far, I have focused exclusively on the purpose of copyright.  Now it is time to pay attention to the mechanics.  Specifically the part of clause 8 that says, "...by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."  Note that it says "for limited times".  By periodically extending copyright, Congress is violating the Constitution deliberately.  But because each extension has a time limit, Congress can avoid scrutiny.  Disney is not the only company behind this, but it is very obviously the main one.  Every significant increase in copyright term has happened right before the copyright on Mickey Mouse expired.  Within the next few years, we are due for another unconstitutional increase in copyright term, and it is unlikely to matter which party is in control.  Both are more under the control of large businesses than anything else, and the music industry, the movie industry, the writing industry, and the journalism industry, all of which are massive, are going to be right there with Disney pushing for another extension so they can maintain control of what they think should be theirs forever.

At this rate, nothing will ever expire from copyright, and our history, science, and everything else will be under lock and key forever, only available to those wealthy enough to pay for licenses.  And some may eventually go out of publication and disappear from public access forever, ultimately being permanently lost as storage devices fail and no backups are made, because the "owners" don't consider the content worth the cost of saving.

Congress needs to tell Disney and the media industries "no".  The term of 70 years after the death of the author, and the term of 95 to 120 years for corporate creations is already excessive.  They practically guarantee that nothing created during our own lifetimes will ever be available for our own use, even if the creators make many times what they spent back in profits.  Maybe it is time for us to tell Congress, "No, Mickey Mouse is ours now.  We have already paid Disney many times what he is worth.  He is rightfully ours, because he has been bought and paid for by multiple generations.  Disney can keep using him, but he can no longer belong exclusively to Disney, because we have paid every bit what he is worth many times over."  And this applies to every other media company as well.  If they have not managed to make their money back after a lifetime of exclusive ownership, either they are not competent enough to do so ever, or they were never valuable enough to worth the copyright in the first place.  In either case, it is time for someone else to have a try.

Right now, Mickey Mouse is toxic to progress in society, because he is the excuse for a harmful and unconstitutional system of copyright.  Mickey Mouse is the nemesis of creativity.  The only way this can be fixed is for Mickey Mouse to be allowed to gracefully enter the public domain in 2023, when his copyright will finally expire, unless of course, Disney colludes with Congress yet again to violate our Constitutional rights, to withhold what was rightfully ours many decades ago.

America is Already Socialist

America is already socialist, and it has nothing to do with welfare.  Socialism as a style of government is based on the fact that civilization is a social construct.  It is essentially the idea that everyone in a formal society (like a nation with its own government) has implicitly agreed to a social contract to support and conform to that society.  The other side of the social contract is that society makes it possible for all members to survive reasonably comfortably within society.  From a socialist perspective, this is where welfare comes from, however, the U.S. welfare system does not come from socialism.  It comes from Christianity, where welfare is a charitable, love-based thing.  Of course, most of this love-based charity seems to come from non-Christians, at least in the U.S.

I don't want to talk about actual Socialism though.  Most Americans, especially conservative Americans, believe that Socialism is defined as a system of government where all the means of production are controlled by the government.  This may be one way, and admittedly the most popular way, of enforcing the social contract of Socialism, it is not the only way.  It is, however, the way that most conservative Americans fear, and probably with just cause.  This brand of Socialism has been tried before, with mixed results.  The USSR spent most of its existence on a downhill slope, as its toxic mix of Socialism and Communism discouraged a good work ethic and marginalized the masses.  Ultimately, it fell apart.  The People's Republic of China has fared much better.  Aside from poor representation of the people and mass murder of its own citizens, China has managed to avoid the steady drop in productivity that the USSR saw.  In the end though, China is still finding that even the government itself fares better when some businesses are privatized.

In U.S. has largely feared this brand of Socialism since the beginning.  The very idea of government owned or controlled monopolies was derided by many of this nation's founders.  During certain periods of our history, merely discussing the merits of Socialism could result in imprisonment, despite the laws that supposedly protect American citizens from government discrimination based on religious and political opinion.  The fear of this kind of Socialism is still strong among conservatives.  The fact, however, is that it has existed since the very beginning.  The United States of America has already embraced what is widely considered the most toxic form of Socialism, though, on a very small scale, and this Socialism exists as a power, granted to the Federal government, by The Constitution of the United States of America.

The common definition of Socialism is a system of government where the government controls the means of production.  The government does not strictly have to own the means of production.  In practice, what this means, is that the government says who can and cannot produce things.  The government may or may not control distribution (controlling distribution is closer to Communism, though this depends on the specifics).  Merely regulating production does not qualify.  The government can impose regulations without explicitly saying who can and cannot produce a product.  Requiring a license for producing a product could qualify, but it is a bit of a stretch if anyone can qualify for a license by meeting some general guidelines.  U.S. Socialism limits production to specific individuals or sometimes small groups, who may extend that permission to a third party (technically this permission can be granted to any number of third parties, at the discretion of the individual or group, but it is far more common, now and historically, for exclusive production rights to be granted to a single third party).

Why has this not been realized and rectified?  Ironically, the most vocally anti-Socialist political party has put a great deal of effort and money into ensuring that this Socialist system is maintained and even significantly strengthened.  The Republican Party has worked tirelessly to further extend the duration and scope of government granted rights to production.  They call it "fair," despite the fact that those who have been granted these production rights often end up with profit margins far over 100% and have potentially unlimited profit margins.  Violation of these production rights once was only a civil offense that could only be punished with a moderate fine based on the profits lost by the controller of the production rights.  Over the last several decades, however, the violation of this Socialist system has become a very serious criminal offense.  The penalties have been extended to include jail time and exorbitant fines based on the amount of profits that the production rights owner could have or might have lost, without any burden of proof that any profits were actually lost.  It turns out that the most vocal opponent of Socialism is actually the driving force behind the most Socialist practice allows by the U.S. government.

What, exactly, is this Socialism?  Simple, intellectual property law.  The U.S. Constitution grants the Federal government the power to grant temporary monopolies over production of patented and copyrighted material.  Our modern law actually goes beyond what is allowed by The Constitution to include copyright for things that have not explicitly been copyrighted.  This system is Socialist, because the government controls the means of production by dictating who can and cannot produce patented or copyrighted works.  It is worse than this though.  The government does not actually directly control production.  It delegates the control of production to someone with a vested interest in the profitability of the product.  When pure Socialism puts the production in the control of the government, it does so with the intent to avoid conflicts of interest and maintain fairness for everyone.  The U.S. brand of Socialism does the exact opposite.  Ironically, the U.S. Constitution seems to predict this, as the stated purpose of this Socialist power is to stimulate progress in the arts and sciences.  Unfortunately, the government does not care about this anymore, the Supreme Court makes decisions based on personal opinion instead of Constitutional law, and the biggest sponsor of this Socialist system, the Republican party, is more interested in profits than doing what is right or fair.  This may be one of the biggest conflicts of interest in the history of the U.S., but the people are blind to fact that their biggest fear has been realized.

The real facts are these:  "Intellectual property" laws are more Socialist than any amount of government welfare.  The enormous costs associated with patent wars are ultimately paid by the general public, so this Socialism is actually far more toxic than directly government ownership of production.  The stifling of innovation is also bad for society, and it directly violates the Constitutional purpose of patents and copyrights.  The evidence provided by the media piracy "epidemic" proves that oppressive intellectual property laws are unnecessary to ensure that content creators receive fair compensation for their work (in fact, the evidence seems to indicate that weaker "protection" would actually help a majority of content creators).

When The Constitution was drafted, Thomas Jefferson, among others, expressed concern with the idea of giving the government control over any level of production.  He recognized the toxic Socialist influence it could have, and he has turned out to be right.  It is a crying shame that it has taken over 200 years for anyone to notice this, and it is especially concerning that a major political party that claims to oppose this kind of oppression is the biggest supporter of it.

Guilty Until Proven Innocent

A landlord sues a tenant for not paying rent four months in a row.  The tenant says the rent was paid on time each of those months.  The landlord's lawyer asks the tenant for some proof that the rent was paid.  The tenant, who is representing herself, says she was not given receipts when she paid the rent, and it was paid in cash, so there are no bank records of the transaction aside from withdrawals for amounts that represent rent as well as some bills.  Because there is no proof the rent was paid, the judge rules that the tenant has to pay the landlord the value of four months rent.

An employee blows the whistle on an OSHA violation where he works.  A week later, he is fired without cause.  He knows that there are anti-retribution laws specifically intended to protect whistle blowers, but he cannot afford a lawyer, so he walks away.  He ends up unemployed for over 6 months, because his previous employer lies about his character when called for references.  He knows he could sue for slander, but again, he cannot afford legal representation, so he just deals with it.

A small video game company comes up with an awesome new game idea.  Partway through public beta testing, a major game company files a lawsuit against them for patent infringement.  The lead designer knows the element in question has been used before, and that it was in a game much older than the large company's patent, but he cannot recall what that game was.  Settling out of court would destroy the company, essentially turning it into a slave of the larger company, so they opt to hire a lawyer.  When the lead designer still cannot remember the name of the game that used the element in question, the judge rules that the small company infringed on the larger company's patent.  Ultimately, the legal costs cause the small company to go bankrupt.


These three stories have several things in common.  The first is that the rich prey on the poor.  In the first story, the landlord uses the legal system to rob the tenant.  In the second, the employer sends a message to its employees, that retribution will be served for reporting labor law violations.  In the third, the big company destroys potential competition using a patent that is not technically valid.  The second thing they have in common is that none of the defending parties have adequate legal representation.  The first two have no representation, and the third does not have sufficient legal representation to do the necessary research to find the prior art that would invalidate the patent.  The third thing they have in common is that the defending parties are all assumed to be guilty unless they can prove their own innocence.  In short, justice is not met, fair legal representation is not available, and the principle of innocence until guilt is proven is violated.

In criminal trials, the U.S. Constitution mandates a legal right to legal council for the defendant.  U.S. criminal courts provide court appointed lawyers for defendants that cannot afford to pay for their own.  This is protected as a legal right.  This right is not extended to civil law though.  This is a problem.  In the above three situations, sufficient legal council was a necessary part of a just outcome, and without that, justice was not served.  In the first, a lawyer might have been able to gain access to the landlords financial records to search for evidence that the rent was paid.  In the second, the lack of legal council was the pivotal factor that ultimately prevented the victim from even pursuing the issue.  In the third, better legal council might have been able to find the prior art that the lead designer could not.  Even in civil cases, fair legal representation is necessary to ensure justice, but in the U.S., only criminal defendants are provided with legal representation.

U.S. law does not actually mandate the idea of innocence until guilt is proven.  Taken together, several Constitutional amendments are interpreted to mean that this principle should be followed, but this really comes down to ambiguous phrases like "fair trial."  Further, these amendments apply only to criminal cases, not to civil cases.  This is also a problem.  Many civil cases place the burden of proof on the defendant.  In other words, the defendant is assumed guilty unless she can prove innocence.  Typically this is a matter of convenience, and it has nothing to do with justice.  It is more convenient for a defendant to produce proof of payment than it is for a prosecutor to prove that payment was not rendered.  It is more convenient to ask the defendant to provide proof of prior art or proof that an idea is common knowledge or otherwise not novel or unique than it is for the prosecutor to prove that no one has ever had the idea before or that the idea is particularly ingenious.  The fact, however, is that doing these things places the burden of proof on the defendant, making the defendant legally guilty unless she can provide proof that she is not.  Not only is this common in civil cases, it is a problem in a majority of civil cases involving wealthy prosecutors suing poor defendants, who cannot afford legal representation.

In the recent past, these two things have been established all over the world as fundamental human rights.  It is widely recognized that trying someone without adequate representation is unfair and morally wrong.  Likewise, it is also widely recognized that the accuser bears the burden of proof, not the accused.  In fact, this was well understood even in some ancient cultures, where an accuser could be put to death, if proof of the accusation could not be established.


The fact is that there is little difference between criminal and civil law.  Both are intended to prevent or mitigate harm.  The only difference is classification and penalty.  In criminal law, the state acts against the suspect.  The suspect is judged by a jury based on codified legal standards.  If the suspect is found guilty, a penalty is selected based on a set of codified standards.  The punishments all restrict the freedom of the convict.  In civil law, an individual or organization acts against the suspect.  The suspect is judged by a judge based on personal opinion and legal precedent.  If the suspect is found guilty, the judge determines a penalty based on the request of the prosecutor and the cost of the damage.  The penalties typically take the form of fines paid to the state and remunerations given to the prosecutor.  The actions prompting a lawsuit can be nearly identical in many cases, with only minor differences.  For example, if you accuse me of stealing money from your pocket, I will go to criminal court.  If I live in your apartment building, and you accuse me of not paying my rent, I will go to civil court, despite the fact that the harm caused may be identical.  Both cases amount to theft.  The circumstances of the theft are different, and this is used as justification to provide counsel for one and not the other and to assume initial innocence in one and initial guilt in the other.  The differences between criminal and civil cases do not justify refusing to provide fair counsel or assuming initial guilt.

Civil law needs two things desperately: Fair representation and innocence until guilt is proven.  These two things are essential parts of a fair justice system, and without them, justice cannot be served, regardless of whether it is criminal or civil court.

Patentable Genetics

The U.S. government will allow you to patent almost anything, with very few exceptions.  You cannot patent food recipes.  You cannot patent mathematical algorithms, unless of course, you call them computer programs (which are nothing more than mathematical algorithms).  You cannot patent things that have already been patented.  You can patent things that have been done before, so long as no one catches you, and even if they do, there is no accountability.  Someone even patented the act of "exercising" a cat using a laser pointer to entertain it.  There are some pretty absurd things you can patent.  Genetics happens to be one of them.

Genetics should not be patentable.  First, genetic material is little more than a mathematical algorithm using a different form of math than traditional arithmetic.  Second, genetic material used to grow food (vegetables or animals) is nothing more than a recipe for creating food.  Neither of these things are legally patentable.  So, why are genetically engineered or even just selectively bread seeds patentable?  Personally, I think it is because our government is run by uneducated politicians (by uneducated I mean, they have almost no education in anything relevant to their job; an education in politics is little more than learning how to get into office; it does not teach anything about the real world problems you will have to deal with once you get there).  Really though, I do not care why.  I want to discuss why genetics should not be patentable.

For a patent to be enforceable, there are some requirements.  The first requirement is that the patented thing be easily distinguishable from similar things.  If someone invents a flint lock made from tool steel, and someone else makes one from spring steel, they cannot both patent their inventions, because they are almost impossible to distinguish from each other.  Any case of patent violation could claim that the stolen design was the one from the other guy, and while it is possible to test the metals, the cost would be very high.  Genetics has an even worse problem.  Compared to testing genes, testing metals is trivial.  It can cost hundreds or millions of dollars to check a sample of genetic material to see if it matches a specific sequence.  The problem is aggravated by the fact that most people do not have the ability to do this.  This brings me to the biggest problem with not being easily distinguishable.  What happens if someone gives me a bag of seeds, where they may be patented genetic material in some of the seeds?  If those patented seeds were not obtained directly from the patent owner (for instance, a friend gives me a bag of popcorn kernels where some of the seeds are from special Monsanto corn he grew), then it would be illegal for me to plant and grow those seeds.  Here is the problem: I now want to grow my own popcorn.  I could go to the store and buy seeds, or I could use the bag of seeds my friend gave me.  If I choose the later, I am legally obligated to pick through the seeds, removing the Monsanto seeds from my planting stock.  The cost of the genetic profiling required to separate the seeds is absurd.  Even most very rich people would not be able to afford it.  Because the patented material is not easily distinguishable from similar things, it is absurd to expect anyone to honor it.  Worse, if my friend neglected to tell me about the Monsanto corn, I could be breaking the law without any way of knowing.  So that sounds pretty bad, but it keeps going.  Let's say the bag did not actually have any Monsanto corn.  My friend grew some heirloom variety of corn that is so old it is not patentable.  So, I grow some of the seeds in my backyard.  From my harvest, I set aside some of the seeds to grow the next batch and so on.  It may sound like I am safe, but I am not.  What if my neighbor bought some Monsanto corn and grew it in their backyard?  Now, some of my corn is probably going get pollinated from the Monsanto corn.  The resulting seeds are now a cross between my heirloom variety and the Monsanto stuff.  At least half of the seeds pollinated with the Monsanto pollen probably have the patented Monsanto genes.  It is now illegal for me to plant those seeds, even though I may not have a clue that they contain patented material, and there is no reasonable way for me to tell that they have patented material in them.  And, the government still expects me to honor Monsanto's patent.  Thankfully, it is going to be extremely difficult for Monsanto to catch and prosecute me, because the cost for them to discover my patent infringement is very high.  Still, using law to define ethics is a rather tyrannical practice (in fact, it is exactly how tyrants work).

The second problem is obviousness.  This requirement is that things that are either obvious or common knowledge cannot be patented.  This one gets really hairy.  This is also a part of patent law.  Legally, a thing that is obvious or common knowledge cannot be patented (it still happens all the time though).  If something is common knowledge, it is subject something called "prior art."  Prior art is anything that has already been done.  If you sue me for infringing your patent, I can get your patent invalidated by showing that you were not the first person to come up with the idea.  Note that it does not have to be me that invented it first.  If I can show that anyone came up with the idea before you, your patent is invalid.  The idea with these is that if someone else could easily come up with the same idea, then you should not be able to have a monopoly on it.  Now, applied to genetics, this can be used to show how absurd it is to patent genes.  First, all genetics were created by one of two things.  The first is God.  If God created all genetics, then it is pretty much all prior art.  Nothing built on these genetics would be patentable because it has pretty much all been done (Monsanto looks for useful sequences in existing organisms and puts them into other organisms; no original genetic code is created).  The second is random chance.  If random chance created genetics, then I would argue that it must be obvious.  If it is obvious, it is legally unpatentable.  In this case, it is still also all prior art.  So, this argument may seem weak.  It is in some ways, but it still has the law behind it.  Prior art is legally acceptable evidence that a patent is invalid.  So, legally if I can find each genetic sequence used in a Monsanto seed in something else that has existed since before Monsanto created the genetics for the seed, I should be absolved of any wrong doing.  The problem is that Monsanto has the means to prove that I have used their seeds, but I do not have the means to show prior art, entirely because I cannot afford the massive genetic profiling that would be required to do this.  In other words, I am automatically guilty of patent infringement unless I can afford to prove innocence.  Further, Monsanto has no accountability.  If I do manage to prove the existence of prior art, they do not have to pay my research costs or even pay damages for the costs of the law suit.  They also do not have to compensate their customers who paid premium prices because Monsanto's invalid patent protected the company from competition.  They loose their patent, but they should never have had it in the first place, and they still did benefit from it.  Note that this does not only apply to genetics.  This lack of accountability applies to all types of patents.  In genetics, however, the high cost of proving innocence makes it far worse.

Now, let's take this one step further, into the absurd.  Eli Whitney invented the cotton gin, a device to make the arduous task of separating cotton fibers from the seeds much easier and faster.  Now, who would he have sued if nature had randomly created a cotton gin?  Let's say that a combination of a lightning strike, a falling tree, and the perfect position of iron ore and water managed to create a cotton gin without any human intervention.  Who would he sue?  We do not have to worry about this because it will never occur.  If the combination of random natural events could create a cotton gin, it would not be patentable, because it would be obvious.  Ideas like dams, which have been built by beavers for millenia or burning wood for heat, which has been done by lightning for even longer, are not patentable because they are obvious.  One consequence of this is that humans have learned from nature to do these things, as soon as we developed sufficient technology to do it.  Now, some might say that genetics is different, because it is so difficult.  I would argue that at one time, building a dam was an insurmountable task for humans.  We had to develop the appropriate tools before we could build dams.  Genetics is not any different.  Unlike the cotton gin, nature routinely combines and alters genes to create new varieties of organisms.  In fact, nature can alter individual genes and even small parts of genes.  We do not have a clue how small parts of genes interact to develop different life forms.  Even Monsanto can do nothing more than search of gene sequences that do things and hope that inserting them in the right place will add the desired traits to their plants.  Essentially, modern genetic engineering is nothing more that reverse engineering things nature has created, and trying to combine the "code" differently to get desired results.  There is no invention going on here.  It is all prior art.  As with the dam, we are just adapting things nature has created to do what we want.  Just because the tools for doing this were invented recently does not change the fact that we are doing nothing more than combining prior art in rather obvious ways. For instance, is it something novel to make a crop resistant to herbicides so that higher doses can be used to destroy weeds, given that the technology to do so exists?  Is it novel to use genetic engineering to improve the taste, texture, or nutrition of food, given that the technology to do so exists?  How many people have wished that some healthy food was better tasting?  How many people have wished the junk food was healthier?  If these are not obvious things to do with new tools capable of doing them, I do not know what is.  So, now for the hundred dollar question: If nature manages to randomly produce something that Monsanto has patented, who does Monsanto sue?  Nature will never randomly create a cotton gin, because it is too complex for natural processes to produce.  Genes are not too complex for nature to produce (right, a seed is, evidently, less complex than a cotton gin; take that, opponents to natural selection).  In fact, it is extremely probable that nature has produced "Roundup Ready" varieties of many plants throughout the millions of years it has been playing with genetics.  Evidence has even been found that ancient ancestors of wheat, corn, and many other grains were much more nutritious than modern varieties (in fact, some evidence support the theory that the "grain" classification of food plants contains exclusively human created plant varieties; otherwise stated, all plants classified as grains are man made, thus the entire classification itself may have been created through human intervention).

Anyhow, allowing genetics to be patented is absurd.  There are at least two legal reasons genes should not be patentable.  There are multiple ethical reasons they should not be patentable, including the fact that it is impossible for most people to distinguish the difference between patented genetic material and public domain genetic material.  It is like making laws against certain types of speech but not telling the people exactly what it is that is illegal to say (throughout history, tyrants have done this and similar things).  Also, the transfer of genetic material is such an easy process that it is almost impossible to tell whether or not it has even occurred.  Making arbitrary laws that are impossible to determine if they have actually been broken or not is the hallmark of an oppressive government.  While this is not criminal law (which would allow the government to punish people on charges that are impossible to verify), it is still wrong.  Technically speaking, if I used traditional plant breeding techniques to create an herbicide resistant variety of corn or rice, and if the random combinations of genetic material created in the process managed to match the genetic code of Monsanto's Roundup Ready variety of the same plant, I could be sued for patent infringement, even though I used a completely different technique without any means of comparing the two products.  This is ethically wrong!  This is actually not just a problem with genetic patents.  It is not horribly uncommon for two people to invent the same thing around the same time.  When this happens, the person that gets the patent papers in first wins.  This is extremely unfair to the other person, especially when the cost of inventing is high.  With genetics though, this is aggravated by the fact that most people do not have the means to tell when they are violating patents or not.  Plant husbandry can take years to create what genetic engineering can do in months.  The cost for both is ultimately very high.  It is also uncommon for either to be used in a way that is really novel.  Probably the most novel use of plants is using tobacco to produce cancer cells used to illicit an immune response.  Nothing Monsanto, or any other plant producer, does with genetic engineering or even selective breeding is novel.  Outside the realm of food, flowers are often bread for specific colors or scents.  This is not novel.  People like pretty and good smelling flowers.  Within the realm of food, plants are engineered or bread for size, texture, nutrient content, flavor, and even aesthetic (colors, size, etc...).  These things are also not even remotely novel.  People have been successfully breeding food plants to favor one or more of these traits for thousands of years.  It is neither new nor novel.  Novelty is a legal requirement of patents.  There may be some things that can be done with genetics that nature has not done and that has some novel unique use.  Until at least one of these things is discovered, genetics should not be patentable at all.

Ultimately, gene patents are unethical.  They amount to little more than a way for companies to sue people without much risk of those people being able to prove their innocence.  Gene patents give great power to large corporations with a lot of resources at the cost of small businesses and individuals.  It is a manifestation of a common form of government oppression and tyranny.  Gene patents should be abolished.

The smell of chicken, the sound of music?

I want to share a parable of sorts that I was told as a child:

Long ago, there was this poor man.  He had a wife and two children.  He worked in a quarry for one piece of silver a day.  This was just enough money to buy a loaf of bread and some milk each day to feed his family.  Each day, he would get up at sunrise, to work at the quarry.  After six hours of work, he would get an hour off for his lunch, then he would work another six hours, before going home.  During his hour of lunch time, we would take his lunch, a small chunk of bread, to the market, and he would sit near the stall of a fried chicken vendor and enjoy the aroma of the chicken, while eating his bread.  One day, the vendor approached the man.  He pointed out that he had seen this man eating his bread near the stall, every day, for a long time.  He asked why the man chose to walk to the market and eat there each day, instead of staying at the quarry (the rock dust on his clothing made the man's occupation obvious).  The quarry worker told the vendor that he enjoyed the smell of the fried chicken while he ate his lunch.  The vendor suddenly got hostile.  He told the quarry worker that he had worked hard to make that chicken.  He demanded that the quarry worker pay him a silver piece for smelling the chicken.  The quarry worker laughed at him.  Several days later, the quarry worker was summoned to court.  The fried chicken vendor was there.  The judge informed him that the chicken vendor had accused him of theft.  When the vendor was allowed to speak, he reasoned that the quarry worker had benefited from his labor by smelling the chicken and thus owed him something of value in return.  He argued that, since the quarry worker had been smelling his fried chicken for many years, it was not unreasonable to charge him one silver piece.  He demanded that the quarry worker pay him something of equal value to the benefits received.  When the vendor was done speaking, the quarry worker was dumbfounded.  Being uneducated, he could not think of any argument against the chicken vendor, even though he was certain the vendor's demands were unfair.  An old wise man who had been observing the proceedings then stood and asked the judge if he could present a fair resolution to the case.  The judge, also unsure of the situation, agreed.  The wise man approached the quarry worker and asked him for a silver piece.  The quarry worker handed him the only silver piece he had, the previous day's pay.  The wise man held it up and asked the chicken vendor if he could see the shadow the coin cast on the floor.  The vendor acknowledged that he could.  The wise man then said, "You may take it and leave."  The judge agreed that this was a fair resolution, the silver piece was returned to the quarry worker, and the vendor left with only the knowledge gained from seeing the shadow of the coin.

This story is interesting, because nearly everyone can see the justice in the outcome.  It is immediately clear that the demands of the vendor are unreasonable.  After all, who can own a smell?  We can see the absurdity of the demand, even though the vendor is clearly correct that the smell was produced as a result of his hard work.  We can also see that the quarry worker did indeed benefit from the smell produced by the work of the chicken vendor.  The argument of the vendor is almost flawless.  Why then do we consider it unfair that he demand compensation for his work?  It is just a smell.  It is not a physical object, and it does not improve the quarry worker in any way.  The only material value that the quarry worker can get out of it is that it might make his bread more palatable.  It is possible that it gives him temporary pleasure, but this is only of value while he is actually smelling the aroma.  Once he goes back to work, the benefits are gone.  The smell of the chicken does not give any lasting benefits.  Similarly, the vendor might enjoy looking at the shadow of the coin, because he obviously likes money.  Seeing the shadow might give him temporary pleasure, just like the smell of the chicken might give the quarry worker temporary pleasure.  Just like the smell though, the vendor cannot take the shadow of the coin with him.

The moral of this story is that immaterial things do not have material value.  Immaterial things only have value as they are being experienced.  They have no value before or after the experience, only during.  Some might argue that pleasurable experiences can increase happiness.  This is true.  I would like to see someone try to put a material value on this.  The first problem with this is that it is completely subjective.  The chicken vendor smells the chicken every day, all day long.  If the pleasure from the smell of the chicken does indeed result in lasting increases in happiness, then the vendor should be the happiest man alive.  As such, it seems to me that it could be argued that the vendor is already getting the full benefits of the smell and thus should not expect compensation from anyone else.  If, however, the vendor is so sick of the smell that it results in decreased happiness, how then can we decide on a fair price?  The guy in the next stall over might also be sick of the smell, or he maybe he likes fried chicken so much that the smell will never get old for him.

What it comes down to is that the smell is just information.  Furthermore, it is information that has no inherent value.  A person who has smelled the chicken cannot use the knowledge of what it smells like to gain any profit.  Since there is no way to predict the affect of the smell on people, we cannot even claim that the smell improves happiness, and even if we could, there is no way we can accurately rate the value of the happiness it might bring.  In the story, the outcome was completely fair, because the vendor was "paid" with equally valueless information: what the shadow of the coin looked like.

Is there a way that we could make the smell more material, so that it could be considered to have material value?  First, to do this we would have to make the smell difficult to obtain.  If we cannot do this, then there is no way to assign a value.  The guy in the stall next to the chicken vendor will never pay for the smell, in any form, because he can get it for free.  In light of modern patent and copyright law, this might seem unfair to the chicken vendor, but it is actually an integral part of a free market system.  It is both unreasonable and unfair to attempt to force people to pay for a resource that is freely available.  It would be like trying to charge people for the air they breathe.  Air is required for our survival, but it cannot be assigned a value, because the supply is saturated.  The vendor would have to stop making chicken in the market, and he would have to prevent anyone else from making chicken there.  Second, he would have to attach the smell to a physical object.  This is necessary because the smell must have some means of  being transported.  Again, no one is going to pay much for it if they cannot use it as they please.  He could enclose his stall, so that no smell escapes, then he could charge a fee for entry (or, an hourly fee for being in the stall).  He would get few or no customers though, because most people are not willing to pay for valueless information, if the information will then be denied because they are no longer willing to pay for it, or can no longer afford it.  The solution to this would be for the chicken vendor to prevent anyone else from producing the fried chicken smell, then make something like scratch and sniff stickers with the smell.  Even this solution has problems though.  It clearly interferes with the freedom of other fried chicken vendors.

Now let's discuss media.  Movie theaters use one of the potential techniques I suggested for the fried chicken vendor.  They enclose their "stall" to prevent the "smell" from escaping.  Movie theaters are not much more than glorified stalls designed to allow paying customers to experience something with some of their senses, while preventing those who have not paid from experiencing that thing.  As I mentioned above though, for this to work, they also have to prevent any other "stalls" from offering the experience for free.  This is done with copyrights, in the case of movies.  Funny that it seems fair to do this for movies, but not for the smell of fried chicken.  Would it be fair to do this for fried chicken if this vendor had invented the product?  Now we have a dilemma.  Fried chicken is trivial, so it seems wrong to allow the government to impose such absurd limitations.  Movies take a lot of work to produce, so it seems more reasonable to impose these restrictions.  In fact, this particular contradiction actually exists in U.S. law.  Even though these are ultimately exactly the same thing, U.S. law forbids copyrighting or patenting of food recipes, but allows copyrighting or patenting of movies, music, writings, and a great number of other things.

Now let's look at this with reference to music piracy.  Why is music piracy so rampant in the world?  I have heard it argued that it is because people do not want to pay for things and will take anything that is available for free if they want it.  I cannot entirely discount this theory.  It is true that some people will steal if there is very low risk of getting caught.  That said, I think that most people have better ethics than that.  Most people can clearly see that shoplifting is wrong and choose not to do it, even though it is very low risk and extremely easy (in fact, most retail stores will not detain or press charges if they do not have continuous observation of a suspected shoplifter, because the person may have put the item down when not observed).  I think that music piracy is so rampant due to a combination of factors.  One factor is the freeness, and another is the convenience (bit torrent is even easier than I-Tunes).  The reason that people do not treat it like shoplifting, though, is that they do not see media piracy as the same thing as stealing.  The above story illustrates why.  Music has no material value.  Listening to a song imbues the listener with the knowledge of what it sounds like, but this knowledge has no functional value.  Music has value as it is being listened to, but not before or after.  As with the smell of the chicken, pleasure obtained during listening to music is completely subjective.  Some people love country music, while some people hate it, and this applies equally to every genre of music.  Some people do not like any music at all.  The only difference between the music and the smell is which sense is used to detect them.

So, here is where the problem lies with music:  The music industry used the scratch and sniff sticker strategy to monetize music.  They used copyright law to prevent other vendors from making the "chicken smell."  They attached the music to physical objects (vinyl records, tapes, CDs).  Then they sold the objects.  Using this strategy allowed them to include the perceived value of the music in the price of the physical object.  The internet made the inherent flaw in this strategy evident.  This strategy is not a free market strategy.  It relies on government intervention to work.  The problem is that the government only has so much resources, and further, it is not the government's responsibility to identify those who violate copyright, only to judge those that are accused.  The internet has allowed a huge number of unregulatable "vendors" to distribute the "smell" at no cost and in an extremely convenient way.  Since the media has been disassociated from the physical object, it is nearly impossible to regulate effectively.  The media is now free (as in freedom) information.  It is not chained to physical objects.  This means that music has become like the smell of the chicken, except that now it has a much more effective mode of transportation.

Let's look at data as a recipe for something (since it is really nothing more).  A computer program is a list of instructions, just like a cooking recipe.  An mp3 file is a more abstract recipe for generating sound.  Note that it is not the sound itself, it is just digital information that can be translated into a list of instructions for generating sound.  Similarly, digital movies are nothing more than a list of instructions for generating sound and video.  The only difference between this and cooking is that cooking requires that physical ingredients be consumed.  (Do not, however, think that this is a justification for treating them differently.  A patent is not much more than a list of instructions for a process, or for building and using a device, and exactly like a recipe, when building a patented object physical ingredients are consumed.  Like recipes to copyright, patents have an exception: mathematical algorithms cannot be patented, even though it could be argued that any process described in a patent can be boiled down to a simple mathematical algorithm.)

Anyhow, what this comes down to is that media piracy is so rampant because most people recognize the hypocrisy in charging for a sound or an image that has no lasting value.  This provides an ethical conflict that allows the desire for free and convenience to have highest priority.


I also want to cover an argument against my assertion that people will not pay for valueless information unless they are free to use it as they please.  First, there are always exceptions.  Not everyone has good judgment (and, our culture encourages poor judgment in this area).  Second, the obvious argument that people pay for video games on a subscription model is not a valid argument to claim that people will pay for valueless information.  Video games have repeatedly been shown to have educational value.  As interactive products, games also tend to continuously provide information (unlike a movie or song, games typically provide much more information, and well made games often provide different information each time they are played).  In fact, the interactive nature of games often creates a feedback loop that improves skills at the same time as encouraging the user to continue playing the game.  This leads to the third part, this does not apply to addictive substances or media.  Plenty of people pay subscription fees for pornography, even though the information has no value (and often has long lasting negative value).  This is because it causes dopamine addiction.  People acting on addictions cannot be considered competent customers.  (In some cases, games can also fall into this category.)

Lord Rybec

Intellectual Property and Tangible Property

On August 22, 1995, the U.S. government granted some person authority over the usage of all laser pointers throughout the country.  I don't know the name of the person, but I do know that this decision was neither reviewed by Congress, nor the President.  Likewise, the person granted this authority was neither elected by the people of the U.S., nor by any representative subset of the people of the U.S.  The authority was arbitrarily granted by previously approved U.S. law.

The specific authority granted to this person was the authority to grant or withhold permission for people in the U.S. to use their laser pointers to entertain and exercise cats.  Since this date, it has been illegal for any person residing within the United States of America to use a laser pointer to cause a cat to exercise, without the express permission of this person.  The U.S. laws that grant this person the right to control how other people use their personal property are none other than the patent laws.

I am guilty of patent infringement.  I got my first laser pointer in 1999.  The first thing I did with it when I got home was to torment our cat with it, infringing on patent number 5,443,036.  Of course, I was not aware that anyone had patented this practice, but according to the law, I am still guilty of patent infringement.  Since then, I have infringed on this patent many more times.  I learned of my infractions only a year ago, and while I have not had time to commit any more, I would happily do so if I had the time.

I do not intend on ever requesting permission to use the so called intellectual property of the person who has this patent.  This example makes it clear that patent law infringes on the right to ownership of tangible property.  Besides that, I would submit that patent law infringes on another of the fundamental rights that our nation was founded upon.  Patent law infringes on the right to fair representation in government.  The authority granted to the above mentioned person was approved by a patent clerk, not by any elected representative.  Right, ultimately the law that granted the clerk the authority to make the judgment can be traced through representatives of the people, but I do not think it is just to allow any person to seize authority over the physical property of others merely by inventing something that can be made with that property, or by inventing a process that requires the use of that property.  The process of granting such extensive power over the personal property of others should require at least the direct vote of elected representatives, if not the direct vote of the people themselves, on a per case basis.  Any government that grants such arbitrary power over the property of others without the explicit consent of those governed can reasonably be considered an oppressive government.  Admittedly, the U.S. government is still one of the most free and least oppressive on Earth, but when it comes to ownership rights of physical property, it is doing a very poor job of effectively protecting them.

Lord Rybec