The free software and free culture movements’ jihad against patents is ideologically driven, and unconcerned with the innovation that actually occurs in markets. Arguments that arise from criticisms of patents would constrain the technology sector, vastly harming an innovative and productive part of the American economy.

Its patently obvious the free software and free culture crusades are ideological and not practical. Concepts such as barriers to entry and monopoly are taken as per se valuations rather than analyzed for their actual effect on the market and innovation. In reality, barriers to entry and monopolies are designations that only have significance after injurious effect is determined. Yet intellectual property critics imply that barriers to entry and monopolies harm abstract-absolute values, in part as a substitute for any meaningful analysis and in part to play out their ideological battles. See an excellent explanation by Prof Lee Hollar: "The buzzword du jour is “innovation,” which will be “chilled” by just about anything done to rein in ...copyright infringement."

In being concerned with keywords like entry barriers and monopolies more than actual markets, the free software and free culture movements will appeal to sentiments that naturally go along with familiar conflicts by framing their arguments in terms of small firms v large players or new entrants v big-money incumbents. Yet their presumptions make this a very very odd approach thats certainly meant to evade serious discourse, and most definitely results in strained arguments.

Patent critics may say they cheer for the little guy, but call small-specialized firms patent trolls for developing and licensing technologies rather than creating components parts and manufacturing. In other words, patent critics don't like small-specialized firms because they don't invest in costly complementary and operations infrastructure that would be inefficient for smaller entities. Then the the free software and culture movements argue that they want competition but cry bully on the playground! at every instance where a large firm shows its market significance, even where there is not real impact on the overall technology sector. In other words, patent critics say they like the concept of competition, but don't like it when they see it. Such a view of competition only accomodates firms that are so non-competitive and non-viable that their actions are never significant.

Commercial firms must compete in markets, not against abstract-theoretical ideologies- I'm not sure which would be more trying.

Update: Tim Lee from Cato proves my point...

An argument I make above is that patent-critics don't like to look at empirical evidence nor even issues that directly relate to patent policy. Here Tim does not want to look at the connection between patents and innovation.Tim writes:

I have trouble putting much stock into studies that try to find a statistical correlation between software patents and innovation. ..Even if you came up with an objective measure of how innovative the software industry is at any given time, I don’t know how you’d figure out what the relevant counterfactual is.

It seems to me that a legal system that makes success in the marketplace a function of how smart your lawyers are, as opposed to how smart your engineers are, is a legal system that is stifling innovation almost by definition. I mean, this is how libertarians view almost any other kind of lawyers, right?

Note that I drafted this blog before Tim wrote his.

posted by Noel Le @ 7:09 AM | Patents

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