 Okay, test test. Okay, this will be Cancelo on Liberty podcast number. I don't know 209 or 210. We'll see We haven't even talked about the format. So this is my friend Sandy Seth. Say hello. Hi everybody. Okay, so Sandy's a fellow patent lawyer here in Houston and We were talking a little IP policy the other day, so we decided to just chat about it usually when I talk on these podcasts and being interviewed or I'm talking to a libertarian audience or I'm trying to Debate one of the few libertarians who still hasn't come around to my way of looking at things Most libertarians nowadays and as you know libertarianism is a theory of radical limited government or no government and maximum individual rights and pro-property rights and Most libertarians now are totally opposed to the local property law. Okay, they think patent and let's just talk about patent copyright They think patent and copyright should be totally abolished. Okay. Now you're a practicing patent lawyer as am I? so so You have some different views on this now the way I think we need to talk about it is from the point of view of Just from a common sense regular guys on a libertarian like you right? What's your political kind of leaning? I consider myself kind of an independent probably with democratic leaning. Okay, politically politically, okay but you believe basically in decency and justice and Property rights and due process and fairness and those kinds of things right I do and and and and even more so I believe that you know, we've come together as a people to form this union right this political experiment and What we are in my view trying to do if we have any government whatsoever is to Maximize liberty, okay within the within the confines of you know balancing competing interests protecting people from one another right and that way enhancing our freedom and And so I'm very curious about Libertarian thinking But so my view on IP is not really I Don't think you have to be a libertarian to think this way. Although it's complimentary on the narrow top of IP and we could talk about libertarianism someday if you wanted to but In general, would you agree that the way to approach these matters if we have a Disagreement or a question or dispute about a given type of law that exists The basic question is is the law a good law? Is it a fair law? Is it a justified law? Right? That's the basic question If someone says this is a law, I think this should be a law I think it shouldn't be a law or whatever the law should be changed. Our basic question is is it a just law? Yeah, I think that's fine. Okay. I think that's fine and and I have a question as well whenever Well, I mean so I think my question is What freedom That is it that you want That let's use copyright for example. What freedom is it that you want? That you don't have right now well, okay, we can jump into it. I mean I want the freedom to Use whatever information I have available to me in whatever way I see fit Okay, that's the freedom you want. Yeah in terms of copyright. I want the freedom to if I want to Go make a Star Wars movie with my ideas in it I want the freedom to do that if I want to write a sequel to a novel that someone else wrote I want the freedom to do that if I want to have a long quote of a 10-page excerpt a quote from someone's book in my book to illustrate something I want the freedom to do that I want the freedom to post a YouTube video online with my baby dancing with With Beyonce playing something in the background without the YouTube video getting taken down Okay, so you give I won't I want to be able to copy papers on You know all these academic papers and share them with people without being threatened with jail That's just an example Okay, I Want the internet to remain free and open because the internet's an important tool of freedom and the internet's being threatened by government laws designed to prevent piracy Right like so pa and the Transpersic partnership things like that Sure, I don't I don't think you have the right to stop people from look if you to my mind Information is information There's no objective way to distinguish one type of information from the other So if I teach you something if I teach you how to sing if I teach you the alphabet if I teach you What the constellations look like I've imparted information to you you've learned it from me You also might learn from me by observing me. I might be an auto mechanic You see how I fix an engine you observe me you've learned how to do that I might start a new business a new piece of joint and you see how I do it and that I attract customers And you learn from that and you might compete with me all those things are ways of learning things about the world and once you learn information you should be free to use that Information however you see fit Copyright takes a narrow slice of the type of information in the world and says that you cannot use it even if you have it Even if someone has made the information public which you do when you publish a book when you publish a book You're telling the entire world. Hey, here's my ideas But you can't use them in certain ways Well, this is where I see and this is where I feel like I'm glad we're talking today because I Sort of don't follow too much of this libertarian thinking but I have seen some posts, you know We've talked in some posts and had had a few debates and you know, I think my issue is that We should always be fine-tuning. We should always be improving in a way that maximizes freedom But we're not but you're talking about an eradication Well, you have to know you have to know what your ultimate end goal is to know which way whose direction you're going though But the so the thing is I mean where so let's first Let's for the audience who may not be experts in intellectual property like you are But to some degree that I am although I don't claim to be a copyright specialist Let's be clear on one thing copyright. We know does not protect the idea Okay, it does not protect the idea. That's what that's not that's what the that's what the copyright lawyers say I don't know if I agree with that. Well, for example You know, if you're we're both auto mechanics and you're teaching me how to tune an engine Okay, and you've imparted I know I know that's that's not a good copyright example. I agree I'm giving a general example of information and knowledge. Well, but I think it's an important distinction that we have to we have to Distinguish between the knowledge or the information and the expression okay, so let me let me slay for people who don't understand I don't want to get too much into the weeds an actual Technical copyright and patent law because most people get bored by that and it's not really relevant to the general case But copyright technically protects the expression of an idea right the way an idea is expressed, right? So for example, if if if You know JK Nolan writes, you know the the whole Harry Potter. Yeah. Yes. Okay. That's got ideas in the book Okay, that's also has a Expression of those ideas that's very well the book that we call the book But the book itself is basically a pattern of information, right? You can look at the book as a sequence of Combination of letters. It's a pattern of information That's fine. I don't I don't and that's what is protected by copyright That pattern of information. Well, you can't copy it. You can't copy that pattern of information without permission So let me ask you this question, right? So I understand that she wrote she spent let's say it's not her but anybody And we can just use her as an example, but somebody spends maybe two three years four years Writing this pattern of information. Yes. Yeah, as I understand that she spent Several years in a in a coffee cafe or a coffee house or something Yes with her computer with no other job, right? Yeah, because she she wanted to devote all of her time to this and Develop this story. Yep book. Yeah, and then published it Would you propose then that anybody can then Commercially yes, absolutely. Okay. No problem whatsoever with that. You have no problem. What's none whatsoever? Okay, that's fine Just just like if you see someone who introduces a new product on to the market that's popular like let's say let's say a small rectangular touchscreen smartphone Right like an iPhone Hey, now there's Samsung now. There's Android smartphones. Yeah, you see that's popular Took a lot of effort to make the smartphone now other people want to make the smartphone All right people emulate what is successful and what is popular? Well, that that's fine and the only way people hold all the only way you could copy or commercially exploit The Harry Potter novels is if she chooses to make it public She could keep it secret But if she chooses to make it public, she's she's revealing this information to the entire world She has revealed this that would be like telling a secret to the world and then expecting them not to act on it So the thing that I have a problem with is you're okay with it because you want to use it No, I'm okay with it because it's a matter of justice. I don't want to use it I don't think I would need to use it. Well, great. You don't personally need to use it But the thing the thing that I'm having a problem with is that if she wants to Commercially exploit that she's free to do that. How sell it Well, she can sell it but somebody can sell it at no cost to them Cheaper than she can sell it. She faces competition. That's the free market. It's competition That's like saying why would I open a pizza joint? Because if it's popular someone else can just open another competing pizza joint across the street and how am I going to compete with someone? You cannot compare you can Harry Potter series. Why not yet. I'm at Lee. Why not pizza joint? Why not? They're both they're both cases of competition. I'm not talking about it They're both cases of competition. That's of course. They're both cases of competition But you're saying she can't you know you say one in one there in the pizza joint example There is no intellectual property in a pizza joint There's no intellectual property in the idea of a pizza joint. So you can but hold on hold on Let's look at the parallel. I I come to a town. I see pizza is sort of popular I open the only pizza joint in this medium-sized town. Yeah, now I'm gonna I can sell a pizza for a high price at first Right. I might make good profit margins Right now. What's gonna happen if it's popular? I've got customers coming out the door. I'm charging high prices Eventually two or three other pizza places are gonna come in town and what am I gonna have to do with my prices? I'm gonna have to lower my prices So at first I can sell at a higher price But then my profits get eroded because of competition in JK Rowling's case. She sells the Harry Potter novel She's the first one to sell it. She's the original author She could sell as many copies as she wants pretty soon as long as if her price is not too low If her price is high enough people will knock off the book and they'll start selling duplicate copies And people who want to buy the book cheaper will buy it from from the pirate and she would have to lower her prices Competition would force her to lower prices Yeah, it's a pair. It's a direct parallel. No, it's not a direct parallel because in one case the pizza joint is is Not a novel If you will pattern of information or an idea that was developed or and or has any protection Well, it's original right on the copyright. It's not original Well, there might be something creative about coming up. There may be something creative about that pizza joint That may have never been done before that may have been the idea of this particular pizza joint owner For example, maybe he's come up with a clever name, but that's not going to be That's it would have to be something narrow that is original to that pizza owner and Depending on what what what intellectual property? Regime you're using has to meet certain criteria. Let me try this I mean, you can't just copyright anything look, okay But but the thing that the where your analogy breaks down in my view is that is this supposition that she's free to go ahead and sell this thing and And and and and and it's just something over time that the price will come down Of course, I'm telling you this competition. She'll never be able to make a dime off of it Why because nobody will have to pay her for it. Okay, so Nobody will have to be a publisher will say thank you So I don't I don't agree with you I can give you some examples about that But if if what you're saying is correct then the answer is so what the purpose of law is not to make sure Harry Potter Novelists can make money the purpose of law is not to make sure you can make a profit doing what your your dream What your heart has set on you have to be an entrepreneur You have to find a way to make money the purpose of laws to protect rights and that's it To provide a framework that you can operate within that you can make a profit if you find a way to do it That's the job of the entrepreneur. So if Harry if JK Rowling can't make a profit selling a novel too bad for her I mean look you you let's say you write poetry. Can you make money to selling poetry? No, but you might want to do it It's very hard to make money selling poetry. There's a difference. Hold on. Hold on. Give me a second. Sure I write tons of Scholarly articles for why used to for law reviews lots of law professors and Academic professors write all these scholarly papers. How much do you think they get paid when they submit an article to a law review? Nothing zero They don't want to get paid. They know they can't get paid. They do it for other reasons Yeah, and I think Harry JK Rowling didn't write this thinking she was gonna be a billionaire the richest woman in England. Do you? Well, I don't know but I do I do know she was like she was like a woman on welfare She had this passion in her mind. Do you really think that she thought she would be richer than the Queen of England someday? Well, I think she should be no no. Do you think that's what motivated her? Well, I don't I don't think that that nest is I don't know what motivated her. Okay, but I don't know what motivated her but I do know that that She had every right to make money off of that. No, she doesn't have the right to make money which What hold on going back to your earlier point? I agree with you. Let's let's say where I agree I agree with you that it is not the job of the law To provide people of a guaranteed profit exactly or a guaranteed profit, right? It's not the job, which means it's not the job of the law to protect money competition well There is a case for protection from unfair competition, but not from competition, but then that just pushes the question back What's unfair? Well, for example? And this goes I think back to the more more perfect union thing and that is unfair competition might be that let's say that You know you are Misrepresenting something about your your product, right, but it has nothing to do with copyright. No, but but we were just Somehow we got in on free for a free market competition as long as there's no torque No, no no misrepresentation. We're going back to the idea of whether or not She should have the right to make any profit off of but she doesn't she has no right to make a profit She has the right to do that's your that's your opinion No, but the law the purpose of the law is not to guarantee people any kind of profit No, but it is to protect property rights correct, okay, and so the we're begging the question Okay, the question is the question is whether she has any property right or not because if she does that is the question Then then then then then then we're agreement that the protection of property rights is a valid purpose of law, right? Yes, that's why I started out saying the general purpose of law is justice, which is to protect property rights now Not just property rights. Actually, it is just property rights. There's nothing else, but then there's nothing else But property rights all rights or property rights All human rights or individual rights and all individual rights or property rights. I Disagree with that characterization. Can you think of a right? That's not a property, right? a right that's not a property right might be the The right to not be a slave maybe well, that's a property right in your own body That's the property right to control your body. That is a property, right? Okay, yeah, the reason I put it that way the reason I put it that way is but a right is a Legally enforceable right right and all legally enforceable rights are ultimately enforceable by the use of physical force of the state Or someone for I agree with that so force has to always be applied against something in the world some physical thing in the world Okay, that's fine, which is what property is property is an object That's a thing that people can have a dispute over who gets to control it whether it's this table Right or this microphone or my glasses or my body or that book Well, and that's that depends on what you mean by book if you mean a physical piece of paper You know with with ink on it in a certain pattern That's one thing if you mean a pattern of information then we have to ask the question Is a pattern of information the type of thing that there can be property rights in now my view is it's it's not only a Bad law it's not only unjust But that it is literally impossible to have a property right in Information and the reason I say that it's just for what we just talked about all all rights are enforceable by physical tangible real force Which has to be applied against an object in the world which is not a pattern of information. So as a simple example You take on a client who's got a copyright you sue a Pirate who's copied their book if you win the power of the court is directed against the assets of the defendant, correct? And ultimately, what do you get from that client? I mean from the defendant you get their money So really this dispute is not about who owns the book the dispute is about who owns the money in this guy's bank account And you're using complicated legal rules as an excuse to take money from him and give it to your client Now in normal times we would call that legalized theft because you're just taking money from him giving it to him Normally that's justified in a tort case or a contract case If you have a basis for taking money from him giving it to him The only way you have a right to take money from the presumptive current possessor and owner and give it to someone else and it Not be considered a theft is if number one There was a contract where he agreed to transfer it, which is not the case in copyright infringement Or number two if he committed a tort that is he violated your property rights somehow and He owes you Restitution or recompense right that's the which is also did not it's not what happens in copyright Because in copyright all this guy does is use his own property to impattern it a certain way Using information that your client freely gave to the world She gave him the blueprint and he used it now. She's complaining that he's using the blueprint She didn't give him the blue she did she she released information publicly to the world Okay, but let me go back for a second because I mentioned something earlier I would give him this these kind of random examples about The pizza joint all this and you said well, that's not copyright before we move on Let me do one thing about what you just said all application of Law is an application of power. I agree with that force. Yep, or force. You can say power force whatever and in the case of This rolling Filing a copyright infringement suit against somebody who's happy to book and is selling it That is going to be the power of the courts power. Yes legal authority applied and it's not and it would apply not only to the physical Tangible manifestations I eat the the copied books that are being distributed which could be destroyed for example But it would also which she doesn't own by the way, so which she doesn't own those books But it could also be applied to an injunction Yes, so they're so which is a threat of the use of force if you don't comply with the court's order That's right Threat a force against your body like they might put you in jail for contempt of court That's right, or they might seize your assets. So it's all forced direct that against resources scarce resources physical resources owned by what I call the victim of this Yeah, if if that person was to for example Start making more right more copies, okay So it's no different than if you you for example assaulted, you know There's spousal cases and you assault your spouse and you there's the court issues in injunction. Yes You're going to jail. Yes, you ever even come within 10 foot. Yes, and I agree with those nothing wrong with those Because the the injunction there is aimed at someone who has threatened to or is a like likely to Violate the rights of someone else you and I would both agree that assault and harassment By the spouse is illegitimate and can be outlawed. The question is is there something wrong with copying it and using and modifying information? I mean, it's a common sense matter. Well, go ahead. So so yes, the answer is yes I mean it in if you are taking the direct book Okay, but you're not taking it if you're taking the Well, I think I say you're taking it. This is this is our disagreement give an example. What do you mean? Give me an exact con. You mean if I copy a book Yes, but that's not taking it because the when you take something. They don't have it anymore. Well, you're begging the question No, no, this is a difference in law You're saying that there's no property right in the expression. That's a different thing. I'm saying there is okay But I'm just I'm saying we have to correctly describe you cannot You can't make your argument that there is a property right by saying it's a property right because there's a taking Because that is disputed. So if I take this cup from you now, you don't have the cup anymore, right? That's what taking is. That's why the law makes this Conversion or trespass or theft because when I take it from you, you don't have it anymore That's an essential element of taking and Sandy if you look at the law, I mean, I'm just being technical here in the Supreme Court itself, right Commonly people will say Copyright infringement is stealing or piracy or theft or taking right, but that's not even in the copyright statute The Supreme Court has said actually it's infringement Which just means that's a word the statute slaps on it and it says if you infringe Which means if you copy without permission basically if you copy without permission, then there's then there's Consequences monetary but we just it's not taking that's fine It doesn't what the words we use infringement or taking doesn't matter No, it does if you if you call it taking and then you use that to argue that Therefore, there's a property right then that's why I'm not saying that there for there's a property I'm saying there's a property right there for it's a taking and and the way that in intellectual property it works is It's not necessarily Tangible in other words it is it's a little metaphysical, but it it's tangible in the sense of there's a string of words Okay, so in that sense, it's tangible that that book no string of words I don't agree with you string of words is not tangible Well, you may disagree with the characterization But what I'm trying to just do is say that there is what we first have to define what constitutes the Infringer okay, the infringement is duplicating a certain pattern of information without permission of the so-called owner That's right. Yeah, the so-called owner and what we have said is wait Let me let me let this we need to be metaphysical for a second. Would you agree with me? That Information itself cannot exist by itself in the universe Information that is a little metaphysical what I mean is information is just it does matter because information is just the Impatterning of a substrate In other words if there's no kid there's no carrier. There's nothing the information is stored on it would disappear Yeah, it's got to be in your brain or it's got to be on a CD or on a book Well, there's a there's probably an Aristotle and Well, there might be a platonic idea of a platonic form of it Not or our mystical god thing but in the real world that we're talking about I don't dispute that in other words If there's only one copy remaining Echo if there's only one copy remaining of a book and that book is destroyed Then the novel or the pattern is gone. I agree with that. I agree with no one remembers it. Whatever, right? That's right. That's correct. The point is anytime you have information. It's always just the feature of an object So for example, suppose let's take this cup again. This cup has various characteristics or properties You could call it right. It's got a weight. It's got a size. It's got an age. It's got a color, right? It's got it's the color is kind of a whiteness color, right? But the whiteness of the cup doesn't exist independently of the cup. It's a feature of the cup It's not like you could it's not like I can own this cup Well, I think whiteness does exist independent of the cup, but it is but whiteness again It can't whiteness cannot exist an independent of the cup There can't be white without something that's white just like there can't be information without something that's carrying information Well, the flower is white, but there's a flower there, right? So the point is if I own the cup I don't own that is the characteristic of the cup But I don't own the cup and its characteristics. I own the cup defined by its characteristics, right? So if there's if there's a word written on here world's greatest dad, okay, I came up with that I Own the cup and patterned in a certain way, but I don't own those words separately from the cup Just like if I if I write a novel on a piece of paper On a on a sheaf of papers. I own the paper. I own the ink I own this tangible object and it's got a unique characteristic the way it's in patterned But that pattern of information cannot be separated can be owned independently of a substrate the point is if you give someone ownership of that pattern you're effectively giving them ownership of Every piece of paper in the universe that happens to be arranged in that way That is that is a correct statement. That would be like if I own this cup and if that also meant I own this particular shade of white Now I automatically have ownership of every other object in the universe that's got this color So I'm taking your property rights away from you because you happen to have a cup that's got the same color as mine Well, that's what copyright does and that's my ultimate objection to it. So Well, so let me address that a Couple of ways first of all, you know, we restrict ownership rights all day long Tangible things for example, you may own a knife Okay You can't do everything you want to do with that knife. For example, you can't stab me with it Okay, so there are because because you have a property right in your body That's fine. In other words, what you call a limitation on property rights. I would say is If I if I'm a if I'm her I also have a property right in that Okay tangible expression. So we're we're going back to no, no, hold on. So whether or not There there should or should not be a property right, but there is that property, right? It exists what you're talking about the question is whether the laws just let me just let me that's fine Let's we'll get to that but I just want to say this Saying that there's a difference between physical property like a cup And intellectual property such as the string of words. Okay There's no question. There's a difference, right? Yeah, there's no question. There's a difference Well, it's not only a difference as I say it's it's literally impossible to have a property right in in patterns of information Oh, but it is it is no, I just gave you the example of When it comes down to it, it just means you can get an injunction against me and my physical property Or you can take my money from me. It really comes down to who gets to own Let me let me give you an analogy and No, it doesn't know I just have to dispute that when that injunction Okay, is is issued against the infringer. Okay, they're not able to Create a movie Harry Potter movie or a harry potter book Or a harry potter comic. It's not it's not It's a restriction on what they can do with their property. It's a it is very much It's like it's like it's like are you familiar with Like like if I have a pen and a pad, okay, I can do I can do whatever I want with the pen and the pad Okay, that isn't an infringement. Okay. Now that's a ridiculous example. No, it's not. No, it's not a good example It's a ridiculous example from the standpoint of if I want to sit there and spend a year Or a month or however long it takes hand writing a copy of Of her book Okay I can do that Okay, nobody's going to come after well, that's just because it's hard to enforce but technically that's illegal Technically because you're you're making a copy. It's technically it's illegal, but we should it be We're always balancing competing interests. That's an extreme. That's not how we are doing that We live in a society in which we are balancing competing interests You can't just do anything. So wait, wait in the beginning. I kind of can't just do anything I want so in the beginning I kind of got you to agree In rough terms with me that the purpose of law is justice Right And then the question is when we have a particular law in question We have to evaluate whether it's just or not whether it's fair And your argument has kind of come down to something like this Well, I agree that copyright limits what you can do with your property But lots of lots of laws limit what you could do No, I'm saying it's just it's no no no no no hold on. I am saying it's justly Limiting your right, but that's not an argument. You haven't argued why it's just all you're saying is so earlier Let me just characterize the reason why I so let me explain The reason why I believe that it is just is because she put the effort Of putting together something a pattern of information Which was not in existence before okay, okay, and what we do as a society is to Tell or grant to a person who has put together this pattern of information this story This these characters this whole assembly. Okay. It's not individual pieces She can't look at the look and feel of a pro software program No, well, we can argue. This is what I want to say We can always argue for an improvement of intellectual property We can always narrow you have to know what your end goal is You have to know what your end goal is we can always narrow something down so that it is Um, it is not unjust. Okay, okay, but the but this thing about justice but but the unjust is a collective No, okay. Well, it is a collective Let's say point that we get to with regard to any law. That's fine, but that's just that's just kicking it down the road So you're describing what happens. I know what happens I know why we have the copyright law now But that's the question is whether it's just or not and I'm just pointing out that And by the way, almost almost everything you've said so far Would not justify patent law as you know because it is true that may have to be a different podcast Oh Well patent and copyright law are so intertwined, but my point is the stuff about you said they're very different, right? Well Patent copyrights protect original things that probably would never have come into existence But for the authors painting or novel or what? I mean, I doubt we'd ever had harry potter exactly as it was If she had never been born, right? Patents are a different story altogether. I don't I think anyone has got to be loony tunes if they think that If thomas eddison had never been born that we wouldn't have incandescent light bulbs at some point, right? Almost every invention has several modes. I agree that there's different policy Considerations that play in patent. Yes, and and I do agree that there's many things that are patented that Would have come into being almost everything would have come into being Uh, we well, we don't know that everything would have come into being Yeah, but worse of who's the burden of proof on we have we have no You can see I've heard all these a million times. Well, I mean just hang on a second. Okay You you may have but but I know I'm having a really good time here talking about this with you The thing is uh, you may say that But the pop the and and we won't know I mean that's one of these things that whether For example, the I mean whether or not let's use the example of Of the iphone, okay If the iphone as exactly the iphone would have come into existence We can speculate whether or not it would have no not exactly but close enough Well, I don't know what you don't think we have a needle that you'd have a smart very fast Touchscreen driven, but but I'm but here's what I'm saying. I'm glad the iphone is in existence I use the iphone every day. It's transformed the way I operate the way I guess but they use patents to stop competition Well, of course and you can't argue that that we needed patents for there to be an iphone I can't argue that You can't prove it I can't prove it. You can't disprove it. But what I can say is that that um that What I agree with the policy reasons while we can argue just a second That's what we're talking about now. You're just kind of no. No. No. No. I'm gonna say something I think that the that the that the that this idea of giving a reward like let's say That's sandy earlier. You agreed. No one's got a right to a profit now. You're want to give them a reward I don't say that they have a right to a profit Well, if the government is going to institute a policy that is designed to basically transfer resources from some people To effectively give it to these people that are innovators and creators You're giving them A guaranteed profit Well, I'm not going to dispute that a patent is a limited monopoly if that's what you're asking copyrights a limited monopoly too And they're both designed to stop competition right is a very that's right. They're both designed to stop competition There's no dispute that when you have a copyright in something that somebody else can't copy that That does prevent competition. It only prevents competition And there's no dispute that if you have a patent on something that also is intended to stop another person from making that same thing Which would for 17 years for and it also reduces innovation Well, I'm not I I don't Why would you innovate if you have a monopoly on a hot product for 17 years? Don't you think your incentive to innovate goes down? And don't you think the incentive for people that would be competitors to innovate goes down because they know they can't even sell something similar So they don't waste their resources. We can speculate. It's not speculation. There's been millions of empirical studies on this There's not been so I've looked at some of the empirical studies The only evidence of an empirical study I found on at least in in in your in your stuff is a simulation No, no, no, no, no, that's andrew torrance. There's tons of other Studies and I mean, I I've seen empirical studies, for example If we're talking about innovation I'll say this and and I'm not and I don't think there's anything conclusive out there I don't think there's any conclusive proof that you'll be able to offer Because it's mythical, right? It's going to be in some mythical world Where IP rights don't exist. Yes, but by and how it's going to be I agree There's nothing inclusive and how it's going to be so much better And and and and and anything I point to it's going to be so hard to find causation That it's not going to be very it's not going to be very supportive I totally I totally agree with you, but the burden of proof is on you not me because my argument is not based upon empirical Mine isn't either. You just said it's a policy tool designed to increase innovation We give people a limited monopoly for a limited period of time, right to encourage them to innovate So that is an empirical argument. You're assuming that's one that's one policy argument Well, but that policy argument is flawed because that means the burden of proof is on you to come up with a study Don't you think that well in the last 200 years of the patent system Someone would have been able to come up with a definitive study showing this by now Um, I'm gonna just hang on one second. I want you to see one thing that I did find Let me see if I can just why don't we do this? It's gonna it's gonna be to send me the link later I'll put it on the show notes. Okay. Well, I'll say I'll say what it is It's a study of of the gdp growth. Yes, okay From a like maybe a 50 or 100 or maybe even 100 100 year period before A patent patent laws were introduced into the country. Yeah, and then after Well, that's right with the right around the time of the industrial revolution the industrial revolution Gained steam around 1800 which right when we had patent laws. Yeah, and there's it would be hard to argue Although I wouldn't put it past IP proponents from arguing that the patent system is the cause of the industrial revolution But that's very implausible Well, I and and what I'm saying to you is I'm not sure that this is at all at at all definitive It's not you just admitted. There's causation and correlation the basic argument I admitted that there is a difference there is a difference and we don't know what's causation What's correlation which means which means that's a flaw in the case for patents because the burden is on you People said let's give let's have the government have the ability to have this Let's call that a draw because you're not going to be able to prove that there's going to be higher gdp growth in a post Non-patent world and I'm not going to be able to prove that there's higher gdp GDP growth in a patent world. Let me put it this way. What I will say is this I like You know, do you have any patents? What do you mean? Do you do you own any patents individually? I don't you're the inventor I'm the inventor on several patents. You are right. I'm not an owner You don't own them, but you I was a patent lawyer and I you know You contributed as and so I had to have to name myself your name was on there And I had a couple I did before but I let them go but anyway, I think it's just That if you've come up with something and this is what I want to say that is Truly novel And we can talk all day long about the flaws in the patent system Okay, because there are many but if you come up with something that's novel and non-obvious That you have a limited protection for a limited amount of time. I know but that's the dispute That's what you think that is just I know you think that is not just No, but I have reasons for my view Well, I have reasons for my view, but what are they? That's what we're talking about The reasons for my view are several fold One we've already talked about that we're not going to have empirical evidence one way or another that it promotes Um, so the lack of evidence is a is an argument for a system that imposes force on people and prevent and restrict competition How could that be a good argument? I'm sorry, could you repeaters? Okay, the patent system does restrict competition It protects people from competition It it's a it's a prima facie infringement upon the free market and private property rights It's at least an encouragement into the free market You need to have a good reason to support that and if you if your reason can't be that the evidence is ambiguous Right If the evidence is ambiguous, we should we should the presumption should be freedom People should just compete and be free Oh, okay that no i'm saying that the that that in terms of gdp growth and rnd Growth We don't know I would I would acknowledge we don't know I would I would not I think we have good reasons to believe that without a patent system We would have higher gdp growth and much greater innovation. We have really good reasons to believe that So I wouldn't concede that well, I'm I'm not and it doesn't take a study by you know harvard But it also doesn't take a study by harvard economist to say this if I spend a hundred million dollars developing a technology That is new and innovative. Nothing is completely new and innovative, of course. No, but it's everything builds upon other innovations, correct? Yeah, absolutely. So it's kind of rich that you want to use other innovations To make an incremental improvement and then get a protection on your incremental improvement That's exactly while you were able to use all that came before to get to where you're going You were able to use everything is built upon everything. I agree That's the nature of freedom and the private right, but all we're talking about is this little Cutting edge because don't forget and don't let your um, let's not let the audience Think that these are permanent monopolies, right? No, they're just temporary. Thank god But a lot of people propose permanent ones and we can well, that's ridiculous That's it. That's first of all, that's impossible. So I don't even know well, hold on the copyright monopoly is right now about 120 30 years needs to be a lot. That's effectively permanent, right? That's it needs to be a lot shorter. Well, how about shorter? You know, I don't know. Well, if you don't know, why don't we go to zero and when you figure it out Then we'll add a little 10-year monopoly. No, because that's completely to say that it can be shorter Uh is not to say that it shouldn't exist Yes, yes, it is because if you don't know what the optimum is you don't know how much shorter it should be What if the optimum is two years? What if the optimum is two years for what? For the copyright term No, I understand the for for accomplishing the for accomplishing the goals that is designed to accomplish um, and right now we're at 120 So we're 90 or 118 years past what's optimum Let me ask you a question if if let me ask you a serious question. So let's The original copyright term is about 14 years Extendable once to 28 the original copyright term. You know why it was 14 by the way I probably pretty arbitrary. Well, it was arbitrary, but it was based upon um, and the patent was 14 years as well I said for and it's 14 years for the it was based upon the idea that When you have an apprentice you remember, you know, how long apprentice terms are Seven years So you have a seven year apprentice, right? So the idea was if you're a guy that's an artisan or whatever And you're going to have this apprentice. You're going to have to teach him your craft Seven years later. He's going to go off and become his own guy and compete with you. Okay So the idea was to give protection to The the the trained guy who's going to impart his knowledge to his to his apprentice So basically two apprentice terms it was a non non compete for seven years after he was good enough to copy your work Except it was a non-compete good against the entire world not just against that apprentice a non-compete against the apprentice would have been one agreement between two people basically Should be enforceable, but the law made it but i'm just saying that it was arbitrary But the problem with that is there's a lot more people that can infringe than the Infront My point is that we're not going to contract you can't contract with the world to say, okay I'm going to do uh, there's a million two million people in the united states and i'm going to issue two million contracts The reason i'm bringing that up is The founders of the country came up with a copyright and the patent acts right 1789 1790 right around that right? They made them roughly 14 years They did not have a bunch of empirical studies telling them What the optimum was they didn't know and by the way in the last 200 years They still haven't none of the proponents have come up with one of this definitive You think they would have by now, but they didn't My point is they went with a hunch They thought ah, let's give a little temporary monopoly that's encouraged innovation And by the way most of the drafters most of the congressman most of the framers of the constitution Were some of the most educated and innovative people in society These are the people coming up with plow designs and bifocal designs And writing books So it's kind of a coincidence They were in favor of intellectual property because it happened to redown to their benefit But let's leave that to the side right I think we need to I agree with you that they were innovative, but now you're subscribing and intent Well, of course, of course, they were self-interested They did lots of things that were self-interested But the the point is the founders said 14 years even though they were benefiting personally from it 14 years sounds like About right now. Let's assume they were correct. Let's assume they were right Let's say that 14 years is roughly the optimum for both patent and copyright. Okay, let's say that Let's say that 14 year copyright term is better than zero All right, but beyond that it's worse because you start losing books. You have orphan works problems things get lost forever uh, you have The entire industries get built around at the publishing industry everything right Now we've we've had this 14 years for copyright Expand expand expand expand expand because of the influence of people dependent upon it like disney and others right mickey mouths, etc So now it's over a century So the question for you is if you thought there was a reasonable case that 14 Is a reasonable term for copyright And it's better than zero And now we have 120 If you had to choose 120 or zero If that was your choice, which one do you think would be better? having a term that's a hundred and 10 years longer than it should be or having a term that's 14 years shorter than it should be What do you think would be a better situation to have basically an infinite copyright term or no copyright at all? Well, it's a hard question, but I would say it's probably better to have Infinite what we have now And let me just explain why let me explain why Um, first of all, I agree with you. It's too long. It's way too long So you would you take 14 over 120 if you got that choice? Yes, I would certainly would I certainly would well You realize that taking that stance would put you on my side. Well, I every one of every Every anti-piracy group every movie producer every music company would think you're insane Radical communists for advocating 14 years Well, I believe in good policy. Okay, I do I do and and we can differ on what's good policy I don't want to see undue restriction. I don't want to see Somebody just taking four years of somebody's effort or x years or whatever writing a book. They're not taking They're not taking the effort. I say they're taking it, but they're not but they're not taking the effort This is the key dispute. How are they taking they're taking the financial benefit of the effort Okay, but you don't own financial benefit Uh, we say you do we say sandy that's like saying we say that we we say that if we grant you copyright If we grant you a copyright, we are granting you the financial benefit And if somebody else wants to share in that financial benefit, you can contract with them and and they can share But you're shifting back from positive law to To normative we're we're saying what the law should be we're arguing what it should be before we get there Let me just finish that what we were just talking about We were talking about the 120 years versus the 14 years I agree with you the 120 years is has grown out of Much lobbying Much, you know, special interest. It's gonna get longer too, you know, and and and and it's it's spun out of control Um, the reason I said it's probably still better than zero Is because there are a number that there are a number of exception exceptions as you know Like what fair use? Well, yeah for one fair use is notoriously vague and it doesn't stop dmc takedowns on youtube Well, it doesn't it doesn't it, you know, there's Again, we can talk about implementation Um, and we can and we can improve implementation But we can't because the copyright lobby will never will never allow but I think there used to be clarified or broadened Well, they don't want it to be that's a that's a political problem. Yeah, but it's a different problem It's if it's inherently part of the system It's like saying you cannot advocate copyright without advocating what goes along with it What always necessarily has to go along with it is a special interest lobbying that's going to accompany it And if it's always going to metastasize into a cancerous Looming threat like we have now then you you're just better off not having it at all I can see that I can see that argument. Good. Let's stop here. Okay. No joking. Okay. I mean we can I'm just saying that that again, it's kind of like this. It's like well Do we want to have divorce or not? Okay, if we have divorce, okay If we're going to allow divorce in other words that that's something that's getting well If the government didn't define marriage in the first place, it wouldn't have to define divorce But we live in a society So if we so we're going to have divorce or we're not going to have divorce Well, okay, we choose what we can have divorce Now we're going to choose all the terms that we have You know that a company divorce in other words There's going to be a legal regime around it and things can get skewed Okay, things can get now in divorce. There's probably not a lot of special interest whereas in copyright there is So you're I think identifying a very real problem in that you have all of these disney's and people who are making Money off of copyrights that are constantly influencing the legislation not only that they influence treaties too. I mean And I think American style IP protection is primarily for the benefit of American industries Right Hollywood music part of the software industry And the pharmaceutical industry and they have lobbied for decades congress to insist on including American style IP protections in treaty trade free trade agreements with other countries Has nothing to do with free trade if you want to have free trade within other country It's just about tariffs and barriers between them But we sneak in these things saying if you want to have free trade with the u.s You need india or china or russia or canada whatever you need to start enforcing You need to increase your copyright terms to match our levels and you need to start putting people in jail And giving us the authority to go over there and investigate and raid kim.com in new zealand So we have used the the the content industry in america has used america's hegemonic power in the world To extend the ip laws in america which are already out of control insane to the entire globe So they are totally out of control and these laws are not By and large to the benefit of any other country except the u.s Because of the u.s. Is size and because of the dominance of our pharmaceutical and Movie and music industries That that's my view. So that's another Hey, hey Let me let me get back to one thing. I've been wanting to get back. So you asked about harry potter and I wasn't dodging the question because louis echo here Hold on just a second Echo hush On the harry potter thing so You asked about um, how she would make money and your assumption was about copyright. She wouldn't be able to sell books Etc. Let me just go through with you one Model of how she could make money. See what you think about it. Okay, although my case does arrest upon that as I said, but just to entertain people that not entertain but to To respond to the desire of people that are uncomfortable with the prospect of People like her not being able to make money. So She's some woman who's underemployed or on welfare or whatever. Which is what happened, right? She writes this novel out of passion She had no idea but that popular. Of course, it's a popular story. We know that, right? So let's say she published she self publishes it on kindle amazon kindle Probably take her a hundred dollars to have it typeset And she publishes it for two ninety nine on kindle and maybe 10 dollars in hard copy People see it read it kids start becoming fans of it. All of a sudden she's got Hundred thousand sales. She makes a little money, right? Maybe she make a hundred thousand dollars something like that Not trivial money for a woman on welfare And then let's say we have a copyright free world Right away pirates start noticing this no not right away actually because Pirates can't copy everything instantly because they don't have the resources What pirates do is they sit back and they wait to see what's popular Right, if you just waste your time copying every new book that comes out, you're just going to be wasting your time So what they do is they wait to see Who's popular and when they see this harry potter stuff becoming popular among kids That takes the time for them to notice that is popular. Let's say six months Six months into the thing. She's got some sales. She's made a hundred two hundred thousand dollars or whatever She knows she's got a hit harry potter is popular around the world And then there's now a flood of free or almost very cheap ebooks, right people can go to Pirate bay Well, they can just find it online because there's no barrier to people making copies of this Some people still pot about pay two ninety nine on on kindle because it's cheap or maybe 99 cents She gets most of the profit. So she's making some profits still Some people want to get it for free some poor kid in africa. I don't know So meanwhile her her fan base is expanding even among the kids that get free pirate copies So her fan base is growing all over the world, right? So she's got her first book out She's made some reasonable money, right? She's not the richest woman in england But she's made some money. Do you think there's a plausible story so far? Could that happen in a copyright free world? No Why not Because um and particularly you're using um electronic media. Well, that's what we that's the world we live in now I agree and this is what i'm saying is that is that the the the minute that the Somebody paid 99 cents for her copy. They could put it up for free And and anybody who wants it can download it. So you think she would sell like literally zero copies? I would say that there's no there's really no reason for anybody to pay for Why would you say that because they they can get it for free? sandy First of all, they can't get it for free right away because there's not going to be a free copy right away There's not going to be what a free copy right away How would the pirates know to even offer a free copy? Oh, it's it's not you're you're assuming and you're in your thing That there's some pirates trying to make some commercial benefit from it. Okay I'm not talking about a pirate. I'm talking about I bought I bought the book I got access to and you make a copy for your buddies and and I know I don't just make a copy for my buddies I upload it. Okay to a free book website where anybody can download it. Okay. Okay So anybody who now but you wouldn't do that. Wait, hold on. You wouldn't do that unless you thought it was a good book Right, let me just so anybody who now hears about the book and said, oh, hey, this have you checked out harry Carter Go, you know, they'll just go to pirate fine free books.com or wherever It is that that that people can upload hold on so everything I described is could happen Except you think the money would be lower. It wouldn't be a hundred thousand dollars I would say that theoretically it could be absolutely 99 cents. Okay. Okay. Now. I think that's I think that's completely ridiculous. I actually why because I have actual actual experience in the publishing industry And I see what happens people buy amazon books now that are free online. Do you realize that? Well, wait, hold on a second. That's fine. There there are millions of saying that No, no, sandy. This is happening now. Oh, that's fine. But it's not fine. It's like That's not the point the point that it's No, some people are choosing to some do some don't listen. My point is this You can go you wanted to know what the problem was with the hypothetical But it's not a problem is is that you can have an instant transfer of this pattern of information for free That's that's worldwide. It's not for free. Nothing's for free You got to find it. You got to know where it is. You got to trust the source If you can get a 99 cent copy on kindle It's very easy. Some people will do that. Some people might do that Do you realize some people go to the drugstore and they'll buy Tylenol instead of the generic acetaminophen? Even though it's three times as much. Why do they do that? I have no idea. Why do you have no idea why people buy Tylenol? Which one do you buy? You buy generic brand or you buy Tylenol. We buy the generic aguprofen. Why? Because I know it's the same chemicals. Yeah, because they're trying to save money Yeah, but do you see I be do you see Tylenol? I mean a motrin right next to it on the shelf Yes, do you think some people buy it? Some people buy it because they believe that there is a Some kind of quality associated with the brand so some people buy it For for some reason yes, because they believe in the brand same thing with kindle You might buy a 99 cent book sold by jk rolling because you know, it's the original deal It's not some skeebie thing. Yeah, you some people might some people might not the point is some fraction of Her fan base is going to buy it some wouldn't she would make some money There is just no doubt about that But my point of my hypothetical is not about the original money I'm just saying she would make some money and your idea that it would be 99 cents. It's just absurd Well, it's like literally absurd Well, that's fine. I mean it can't it could be 99 cents. It could be zero No, well, it could be zero if it's not popular. My point is this is something that's popular Okay, even if it if it's popular How likely that it's going to be more than 99 cents How many fans do you think there are of harry potter? Wait, hold on. How many fans today? We're taking a real world example How many fans of harry potter or they're in the world today? Do you think out of seven billion people? How many fans are there anything? I have no idea. Is it more than 10 hundreds of millions? Yeah, probably like two billion or something Um, I don't know maybe Okay, okay, so it's hundreds of millions, right? I definitely okay now if there's hundreds of millions of fans and if tomorrow Jake in a copyright free world tomorrow. She released a new harry potter story for 99 cents on kindle Even if there was free copies available all of the internet the very next day Do you think she would sell zero because no one will pay 99 cents? No, I don't think so. I think realistically she'll she'll she'll sell some books. Of course she would yeah Might be 1% but still that's something it's something look in today's world. We you you realize there's priority That's not the issue the issue. No. No. No. I'm giving you a high I'm giving you a hypothetical as to how you could make money, okay And so so let's take this example. She writes her first book She makes a little money. Let's just say it's a little money. Let's see if she makes $5,000 which I think is absurd For a book that's going to be so popular with literally millions Millions of parents of children around the world. Okay, so she's got millions of fans. She goes holy crap. I've hit on something here, right? She's gotten her mind. Guess what she's got the idea for the next six novels We know this because that's what happened in reality, right? Well, okay Well, are you finding that part? No, isn't that realistic? Yeah, okay, so Well, number one in the meantime She could have jkrolling.com or harry potter.com as you could say, hey, I'm selling merchandise here authorized by the all even science I'm a whatever She could start making money off of spin-off merchandise things like that Yeah, you can buy a knockoff bag from some cheap chinese site or whatever But if you're a daddy wanting to get his little daughter a present For christmas, you might want to buy the original thing Just like a guy buys his his wife a real diamond ring or the real the real perfume instead of the knockoff crap from walgreens Right, there's going to be some market. She can make some money off of it that way But now let's say she starts working on novel number two and number three and number four And she announces on her website to the world Guess what my 17 million fans across the globe? I've got harry potter number two written and it's really really good but As soon as I release it pirates are gonna Pirate it and i'm not going to make any money off of it so I've got an idea If just one million of my fans pre-order this book for ten dollars As soon as I get that i'm going to release it on on amazon I'll give you and i'll give you guys a free copy because you bought it already That's one million people ten bucks each ten million dollars Is that not plausible? I think that's plausible, okay Then she does then her I think that's been her fan base grows again. That's just book number two Let's see. She does it with book three four five six seven and the numbers go up each time Now she's up to 200 million dollars in revenue now. Let's say in the meantime, so she's already well I mean, you know, these are all just hypothetical. It's not that hypothetical She actually published seven novels that were very popular. No, no that part's not hypothetical And I'm saying the numbers what what numbers we we have here Well, I don't think the numbers are the numbers are probably conservative But in terms of your of your of this of the overall Scenario that you're laying out. That's plausible now. No, let's say that the numbers are let's say her fans Her fans are clamoring. Let's not let's not claim that we I'm what i'm objecting to is we that we're going to know it's a hundred million or this or that It'd be a lot, but it might it might be We know how much we know what what what we also know in that scheme what what other people can do And that for example, she's not going to get any movie rights Okay, let's turn the movies in so let's say that the fans are clamoring for a movie version So some some movie studio just said hell we're going to make a movie. They don't need her permission They just make a movie. That's right But guess what might be happening two two or three movie studios might be making a movie at the same time And they're all scrambling to get to the to the movie theaters first, right? So you let's say you have three movies in the works of the first harry potter novel all unauthorized All three unauthorized. Yeah, sure. Okay, nothing wrong with that Well, I think there's nothing wrong with it. I think there's nothing wrong with it But let's say what if one of them says You know, we've got to get an edge over our competitors. What might they do? No, I understand what we're the ones who are the authorized So they go they approach jk roley and they say we'd like to hire you to consult on the script And to bless it as the authorized version and we'll give you 10 percent of the of the of the Film royalties because we think we're going to sell twice as much as we otherwise I mean So this movie makes half a half a billion dollars She gets yeah, but there's also the scenario in which all three come. I agree that they could do that And but it's just an example. She's got to be the entrepreneur. I'm just giving I think enough I'm But the point is originally you just said without copyright. She can't make a dime now We've you and I've just come together brainstormed like a couple of Hollywood Newbies and thought of a way she could make maybe two one two three hundred million dollars Yeah And and if I said that she cannot make the dime without copyright that I misspoke I'm saying that that scenario can exist that she can make zero dollars Can't exist as well. I mean we can have that's an well that can happen now You've laid out a scenario in yeah, but there's there right now that can happen now if you don't sell a popular story No, no And and not only that sandy don't be in today's world I'm not trying to somehow say that now all of a sudden we have copyright so that Everybody has to buy every story and there's no good stories or bad stories. That's not what we're talking about here We're talking about my point is It really only matters with regard to popular stories, doesn't it? Yeah, but if she's popular, she can find ways to make money. That's just a good example of that I think there's it's a it I I agree that there's all kinds of ways you can make money Yeah, and there'd be there'd be others in the absence of a copyright regime There's also all all kinds of ways you cannot make money in the absence of the right, but we don't really have a copyright regime I'm talking out for a popular book, but we don't really have copyright right now We don't Well piracy is widespread you understand that there's torrent pirate bay and torrents all over the place Any movie that's released right now any book that's released you can instantly today find Free copies all of the internet you understand that this is widespread. There are Hundreds if not billions of people Hundreds of millions if not billions of people that get free stuff today as we speak they get textbooks They get they get a course books. They get novels They get music they get movies for free. This is going on right now So you have music studios. You have artists. You have novelists. They're publishing today In the face of widespread piracy And they're still making a profit So it is possible Would they be making a profit in the absence of copyright regime? Well, what would be different in the absence of a copyright regime there'd still be pirating there's pirating now There'd be pirating without copyright. Here's why I asked the question because the thing is like you can have some and I know I actually my son has A website where he gets these movies for free. Okay, he does Well, whatever, I mean You know and and so So I I I understand these things do occur out in the universe I also know that that the big studios can't compete right now With the the copyright holder or the movie studio that holds the copyright to for example The avengers movie or some any movie that you're talking about Okay, so if if if mgm has the copyright to that movie right now paramount can't do that right, okay So because copyright restricts their freedom Yeah, because that's right. That's exactly right So, um, they the the these websites are they do they exist? Yes Do they um Take away Some revenues Probably yeah, but they they also increase the fan base for some artists and maybe they increase the fan base too And and remember with the copyright you can always do Um, you can give away free stuff as well on they never do they never do well. They never do but they can And the but that only is to address the argument that it may actually they may actually serve themselves by doing it They may But it's going to be up to them what they do. That's the point. Yeah under the current system. That's right That that's that's the point. Yeah. I think we're probably have to all right Let's wrap it up here. You want to tell tell tell people what your practice is and how they could if they need to get a patent You can contact sandy. No, I actually don't Write patents. I am a patent lawyer Patent litigator. I'm but I'm a patent litigator. You need to follow a patent lawsuit contact sandy. Absolutely. What's your website? It's uh w w w Seth law s e t h l a w dot com and you can email me personally at s s So my initial sandy set s s at set law dot com. I'll put that I'll put in the show notes too All right. It's been fun. That's really I appreciate it too. Thank you