Natural law

A natural law, as opposed to a social law, is simply one derived from an observation, or at least a belief, about the nature of something. A good example was the argument made by Thomas Jefferson in his 1813 letter Isaac McPherson that ideas are not by nature property:

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. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

Jefferson recognized, however, that a right in social law to what we now call "intellectual property" might be justified on utilitarian grounds. Nevertheless, the natural law regarding ideas is that they may not be owned.


To the extent that the law tries to be realistic and take the nature of things into account, all laws are more or less "natural" even if not purely so. What makes pure natural law so problematic in practice is that in most cases the argument is derived from nothing so simple as the nature of ideas but from human nature -- which is complex, not well understood and varies a bit from one human individual to the next making generalization difficult. Social law, derived from politics, fills the gaps in our understandings although it sometimes also represents unwise attempts to deny the nature of things.

The advantage of natural law, where it can be correctly determined, is that it is by definition realistic insofar as not being in conflict with nature. It is less prone than social law to fail due to unanticipated problems when tested against reality. Patent and copyright law is a mess -- full of arbitrary distinctions and determinations and endless disputes and controversies. This is the natural result of being so artificial.

"Intellectual Property" Consequences

Regarding "intellectual property": The facts are bearing out in detail what natural law philosophy and free market economics predicted in general outline.
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The Direct Costs from NPE Disputes

James E. Bessen

Boston University - School of Law; Research on Innovation

Michael J. Meurer

Boston University - School of Law

June 28, 2012

Boston Univ. School of Law, Law and Economics Research Paper No. 12-34

Abstract:     
In the past, “non-practicing entities” (NPEs), popularly known as “patent trolls,” have helped small inventors profit from their inventions. Is this true today or, given the unprecedented levels of NPE litigation, do NPEs reduce innovation incentives? Using a survey of defendants and a database of litigation, this paper estimates the direct costs to defendants arising from NPE patent assertions. We estimate that firms accrued $29 billion of direct costs in 2011. Moreover, although large firms accrued over half of direct costs, most of the defendants were small or medium-sized firms, indicating that NPEs are not just a problem for large firms.

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An InformationWeek article provides some details from this paper:
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-- A total of 2,150 companies had to defend themselves 5,842 times against patent suits in 2011 alone--an amount of litigation that represents "a wholly unprecedented scale and scope."
-- Those claims accounted for $29 billion in direct costs--outside legal fees, damages, and settlement amount. And, oh yeah, it doesn't include indirect costs, like the time and resources it takes a company to defend itself and the price of product delays and market share losses.
-- The amount represents a nearly 10% hunk of the $250 billion devoted by all U.S. business to R&D. Much of the burden has fallen disproportionally on small businesses: The defendants in that universe had median revenue of just $10.8 million.

To repeat just one more time this insight extracted from Thomas Jefferson's letter to Isaac McPherson, 13 Aug, 1813.

"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. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property."

Jefferson himself reluctantly went against his better judgement in helping to establish the patent system in the United States in the hope that the public interest would benefit on balance. He should have stuck to his natural law convictions as nature once again proves itself superior to human efforts to defeat it.

A defence of copyright

I would like to take a moment to credit Jamie Zawinski with a cogent argument that acknowledges the fallacy of so-called "intellectual property" yet plausibly justifies copyright as a matter of contract law. It would have to be one of those "social contracts" that as individuals we don't get to consent to or opt out of but with reference to the social nature of human beings it may fit within a reasonable interpretation of natural law. I'll be thinking about it.

RIAA, the Prohibitionist.

In Computerworld today is an article, Analysis: $1.92M fine in music piracy case could hurt RIAA, relating to a music file sharing suit by the Recording Industry Association of America, (RIAA), which has has produced an award which may or may not be overturned upon appeal as excessive, is noncollectable in any case due to the inability of the defendant to pay and may well cost the RIAA dearly in adverse publicity as well as trial expenses. Indeed, since this suit was originally filed, the RIAA has largely given up suing individual file sharers as expensive and ineffective at slowing the pace of file sharing.

What this reminds me of is Prohibition -- a well intentioned but unenforceable policy doomed by reality to create perverse results. Copyright goes against the nature of information and against human nature as well. It is an artificial device intended to encourage authorship much as Prohibition was an artificial device to encourage sobriety. Back in the Enlightenment, the period in which the US Constitution was initially framed, much attention was wisely given to the concept of "natural law". It was understood then, but largely forgotten by the time of the 18th Amendment and since, that opposition to nature in lawmaking is a major cause of unintended consequences. Thomas Jefferson wrote an especially clear natural law based critique of what today we call "intellectual property":

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. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. -- Letter to Isaac McPherson Monticello, August 13, 1813

Here is another perverse results example: There are actually two distinct groups of copyright violators troubling the music industry, the individual file sharers, mainly students, housewives and others of modest means, and criminal organizations with factories stamping out large volumes of counterfeit CDs and DVDs. Some of the latter are suspected of being financial supports for terrorist operations. File sharers displace counterfeiters sales as well as those of music companies so going after the file sharers indirectly supports terrorism!

It is useful to note that the US Constitution provides for copyrights "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", not to protect the profits of publishers. There is both theoretical and empirical evidence that file sharing does a better job of promoting music creation and distribution than enforcement of copyrights do. See File-Sharing and Copyright, a Harvard Business School working paper by Felix Oberholzer-Gee and Koleman Strumpf, (PDF), and the much earlier Perfectly Competitive Innovation by Federal Reserve economists Michele Boldrin and David K. Levine. What leading musicians lose from lost CD sales through the music companies they often gain back from increased income from concert tours as the shared music recordings have a promotional effect.

In time, the aims of the RIAA are doomed to failure since nature cannot be defied indefinitely. The cumulative costs of the perverse consequences, to the music companies and to society, will eventually become unbearable.