There’s a Patent on Swinging on Swings Sideways

Apparently if you’re a major broadcasting corporation you can own the sky, or more accurately the word “sky.” Maybe the most hyped game of the year, No Man’s Sky, recently settled a secret 3 year legal dispute with British broadcasting company Sky plc over the use of the word “sky.

Sky plc is famous for making Microsoft change its SkyDrive product to OneDrive, so this was a big win for the small developer, Hello Games. Yet more curious than the legal battle over a fuckin’ word is the dystopian-like reality that a company can own a single word, a manifestation of natural human language. Sky plc’s rights over the word are not natural rights, but one’s bought with commerce and government.

Maybe the author of the first recorded instance of “sky” in the English language (Bestiary 1200) should sue Sky plc for using the word.

No Man’s Sky vs. Sky is a trademark dispute, but beyond that is a fight over intellectual property. Simply put, Sky was bullying No Man’s Sky for utilizing a word, the written and verbal manifestation of an idea, thought. It’s weird if you think about it long enough.

I’m no lawyer or expert in copyright, but it doesn’t take a professional to realize that the extent of power attributed to someone’s dibs on an idea seems a bit broken. So I went to the oasis of free ideas—the internet—for backup.

During my scavenging research I found a transcript for a speech given by Stephen Kinsella, an actual lawyer and winner of the “O.P. Alford III Prize in Political Economy.” I don’t know what that award means, but I’m sure it gives him credibility.

The speech is called “Ideas Are Free: The Case Against Intellectual Property” and while long is incredibly informative, persuasive, and surprisingly funny. Turns out that intellectual property law is bursting with more ironies than a Shakespearian play.

I’m going to focus on some high points here to provoke some thought on the matter. This isn’t meant to be some comprehensive argument against intellectual property, but simply giving a few talking points to open up the conversation.

Early on Kinsella lists some of the absurdities that IP claims have birthed. These real world examples are horrifyingly humorous:

  • There’s Amazon’s One Click patent, which is a patent on clicking once to purchase something instead of twice. They used it to sue Barnes & Noble at the dawn of e-commerce.

  • There was a company called Cendant that asserted Amazon had violated patent monopoly on recommending books to customers.

  • Facebook was sued by someone who had a patent on a “system for creating a community of users with common interests to interact in.”

  • [MY PERSONAL FAVORITE] And then there is the fun patent covering swinging on the swing sideways [laughter]. That’s a method patent.

The Problem with Intellectual Property

For Kinsella and online pirates the problem with intellectual property is that information is not scarce. Property rights were invented to protect scare economic resources such as land.

With traditional property, stealing is a more of an ethical concern because if you take an apple pie from someone you stop them from enacting a necessary bodily action. In contrast, if you take an apple pie recipe from someone, the consequence is much less dramatic because the recipe itself duplicatable. An idea once shared cannot be scarce.

A stronger version of this argument is that you could program infinite games simultaneously and the if-then statement could be used without a shortage.

Kinsella clarifies this notion of property and intellectual scarcity:

So the scarce resources that you need to use as means need to be owned by you. This is why there are property rights in these things. The nature of a scarce resource is that use by one person excludes use by another; but you don’t need to own the information that guides your action in order to have successful action. For example, two people can make a cake at the same time. They each have to have their own ingredients, but they can use the same recipe at the same time.

The primary argument against intellectual property is that patents, copyrights, and other protective legislation hold off innovation. IP laws prolong the time the “creator” can profit from the idea before it can be added to the human knowledge database to create better—fill in the blank. Kinsella was nice enough to share his ideas on the way IP stifles innovation for free (this is honestly the most important argument in this whole essay):

Material progress is made over time in human society because information is not scarce. It can be infinitely multiplied, learned, taught, and built on. The more patterns, recipes, causal laws that are known add to the stock of knowledge available to all actors and act as a greater and greater wealth multiplier by allowing actors to engage in ever-more efficient and productive actions. It is a good thing that ideas are infinitely reproducible, not a bad thing. There is no need to impose artificial scarcity on these things to make them more like scarce resources, which, unfortunately, are scarce.

One more time: “Material progress is made over time in human society because information is not scarce. It can be infinitely multiplied, learned, taught, and built on…It is a good thing that ideas are infinitely reproducible, not a bad thing.”

The ideal for any modern economic system is to manage scarcity and effectively distribute resources. We join and participate in the social contract of economy because we have to deal with the reality of scarcity. Why would we go out our way to treat ideas as if the same laws that govern physical resources apply?

There can be no shortage of ideas, so it makes little sense from a practical point of view. It does make sense from the capitalist point of view though. Consider the motives behind the most infamous example of artificial scarcity: diamond companies.

Why You Don’t Want IP Laws Messing with Your Games

Let’s bring it back to a games discussion. The gaming industry has had its large share of IP disputes. Nintendo is possibly the most well known legal aggressor, shutting down nonprofit passion projects from fans that use the likeness of their brand.

And hey, I understand the argument for protecting your brand, but that argument carries a troublesome implication: a company’s marketing assets should be protected before a human being’s ideate and create.

But more importantly video games as a medium have grown so quickly because of the open source nature of idea sharing in game design. Imagine if id Software had thought to copyright the first person perspective? May sound absurd, but companies have trademarked worst. We would have no Half-Life, Bioshock, or Gone Home. Just Doom 20 and Quake 30.

The same progress from an unhindered knowledge base is seen time and time again in platformers, 3rd person shooters, open world games, and infinitum.

The fact is that games have benefited more from lack of IP restrictions than from any legal protection of company ideas.

Look I’m a “knowledge worker”, I get paid to write content for companies (incidentally one with the word SKY in the name) and work on the occasional creative effort. So of course if I wrote the next Harry Potter I would probably want to “protect” my creation, but the reason I wrote this is because I wonder if intellectual property law should have limits.

Intellectual property rights are upheld with greater force than natural human rights. Doesn’t that seem off to anyone else?

Nearly all the ideas we have are not original. Should you have to pay royalties for those thoughts to the first person who had them? Or does it make more sense to say that ideas we create are as much everyones’ as the air we breathe?


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