April 13, 2005
Free Market Miracle #0018
There's only so far you can go in trying to patent the ever-popular peanut butter and jelly sandwich. [...]
Smucker's 2-ounce peanut butter and jelly pockets come in two flavors -- strawberry and grape -- and are enclosed without a crust using a crimping method that the Orrville, Ohio, company says is one of a kind and should be protected from duplication by federal law.
The courts have said no...for now. What's next, one wonders, for the "Intellectual Property" mongers? Ice cream? Children's ice cream? How long before Bechtel attempts to patent the "process" of taking a shit?
Anyhow, guess how Smucker came upon the "rights" to make its ingenious take on the PBJ? That's right: it bought the "property" from the original "inventor":
Smucker already owns a general patent, which it purchased from Len Kretchman and David Geske, two Fargo, N.D., men who came up with the idea in 1995 and had been baking the products for schoolchildren.
The two cases before the appeals court involved two additional patents that Smucker was seeking to expand its original patent by protecting its method.
Somehow, the word "its" doesn't merit scare-quotes...
Score another triumph for "innovation", for the "entrepreneurial spirit" that drives our "Free Market" economy to such great heights.
The patent office received 376,810 patent applications last year. ... About 65 percent of all patents submitted are approved, Quinn said.
For those scoring at home, that's 250,000 approved patents per annum. 250,000 distortions of the operation of the "Free Market". Yet, somehow, the poor (especially those in the Third World) aren't allowed to benefit from the taxpayers' charity.
What you can do: "Steal" as much "Intellectual Property" as often as you can. Of course, there may be consequences. But our rights will wither and die if we don't assert them.
Remember, kids: "Property is theft."
Posted by Eddie Tews at April 13, 2005 05:49 PM
Comments
Agreed that attempting to patent the process of making a peanut butter and jelly sandwich goes beyond the realm of absurd and unabashed greed. But to use that trivial example as a basis for attacking the concept of intellectual property (whether through copyright or patent) is just as absurd, if not downright irresponsible. What you have done is employ the same logical fallacy used by GW himself to argue in favor of tort reform; i.e. because one person tries to sue McDonalds for serving hot coffee, all tort lawsuits are therefore frivolous and all personal injury damages should be capped. It's nothing more than an oversimplistic political argument that undermines the credibility of your more worthy offerings. How "stealing" intellectual property benefits anyone except the thief is quite simply beyond me. Should we cry out against abusive misuse of the copyright and patent laws? Absolutely. But if your aim is to attack those laws themselves, please do better than this limited and exceptional example. -- Posted by: Clarence Darrow on April 13, 2005 06:19 PM
Ed. Response to above comment: You're certainly correct that this post doesn't lay out the case against "Intellectual Property". But check out some of the other posts in the "Free Market Miracles" series, and hopefully you'll find the case fleshed out more fully. But the point of the series isn't really to make that case on principle (though I personally think the case is a slam-dunk, on principle), but rather to point up the hypocrisy of the ravings of the "Free Market" apologists: in our "Free Market" economy, the rich make out like bandits courtesy of the State, while the poor are made to suffer the ravages of the market because the "science" of economics "teaches" us that market distortions are harmful to the beneficiaries, as well as the economy at large.
A question, however: what is your beef with the Peanut Butter Sandwich patent? You decry Smucker's "unabashed greed", but if not to try to maximize one's profits, why else go into business (at least at that scale) in the first place? That is to say, if we accept the principle of "Intellectual Property", why shouldn't a specific process for constructing the PBJ be patent-able? Why shouldn't the person that originally designed the PBJ have been able to patent that? Where do we draw the line? What is the difference, in principle between Smucker's attempts to patent its PBJ sandwich, and, say, the RIAA's attempts to protect its "Intellectual Property"?
As far as the Civil Disobedience recommendation goes, I stand by the assertion that if we don't exercise our rights (especially those not codified and those not recognized, in practice, by the judiciary), they'll not gain general acceptance.
-- Posted by: Eddie on April 13, 2005 06:48 PM
For the same reason you can't copyright a fact, such as someone's phone number or address, you can't patent something that is obvious by nature, something that isn't novel, like a peanut butter and jelly sandwich. Now if Smuckers truly did come up with some innovative mechanism for creating the sandwich, or some novel form of the sandwich, then certainly I would have no problem whatsoever with the granting of a patent, but that was not the case here where Smuckers sought to patent that was obvious by its nature, and clearly not innovative in any real sense. Obviously, the patent office agreed, and so in my humble estimation, the law worked in this case. It kept Smuckers from obtaining a monopoly over a process that had no business being patented.
Second, although a semantic point to be sure, the RIAA doesn't actually own any intellectual property, it merely protects the intellectual property of others. Be that as it may, I have no problem with the RIAA, or the artists they ultimately represent, protecting the rights afforded them by copyright law. Let's say you work in a restaurant... someone comes in, orders food, you prepare it, cook it, arrange it on a plate, serve it, clean it up, and the person eats it, enjoys it, and then gets up and leaves. Fair? So why is it any different when an artist creates a song, or a book, or a film, presents it to the public, and someone comes along and downloads it, enjoys it, and doesn't pay for it? Now certainly you are entitled to certain "fair use" rights, but that hardly justifies encouraging the wholesale theft of someone else's hard work and creativity.
Whether you agree with the concept or not, copyright and patent laws are designed to ENCOURAGE creativity and innovation by granting the creators and inventors a limited monopoly over the use of their work. If you disagree, then create your own art and release it into the public domain. Write open source software. Invent products and release them to the world for use by everyone. That is your right. Do not, however, presume that you have some higher, unwritten right to determine how others choose to share their ideas.
Furthermore, to argue that only the "rich" benefit from intellectual property laws is just another oversimplification, and is, in fact, quite wrong. Copyright and patent laws protect those who create, rich or poor. There is no law that gives only Microsoft the right to copyright software, or Intel the right to patent technology. Copyright can protect the poor author from the rich publisher. Patent law can protect the poor inventor from the multi-national juggernaut corporation. The point is, the law puts the creators on equal footing under the law, and protects those who might otherwise fall victim to unscrupulous or greedy evil-doers!
You ask, "Where do we draw the line?"... well, start by reading Article I, Section 8 of the Constitution, and Titles 17 and 35 of the U.S. Code. If you are still confused, there are literally thousands of court opinions containing detailed discussions on this very topic. -- Posted by: Clarence Darrow on April 13, 2005 09:11 PM
For the same reason you can't copyright a fact, such as someone's phone number or address, you can't patent something that is obvious by nature, something that isn't novel, like a peanut butter and jelly sandwich.
A peanut butter and jelly sandwich is "obvious by nature"? If that were the case, then we would expect it to have been adopted, in all cultures, immediately after its necessary ingredients became available. Clearly not the case: the PBJ was apparently invented during World War II, long after its components were invented. Yet candy bars, for example, were being patented from the early 20th Century. Is a candy bar any more "obvious by nature" than a peanut butter and jelly sandwich? Of course not.
One could even go so far as to say that if the PBJ were "obvious by nature", then the only reason that sliced bread, peanut butter, and jelly were developed in the first place was so that the obvious-by-nature PBJ sandwich could be made from them. An apple, clearly, is "obvious by nature". But a peanut butter and jelly sandwich, at least to my way of thinking, clearly is not.
To be clear: I wasn't asking, in my previous comment, why Smucker couldn't patent the PBJ, but why its original inventor could not have.
You ask, "Where do we draw the line?"... well, start by reading Article I, Section 8 of the Constitution, and Titles 17 and 35 of the U.S. Code. If you are still confused, there are literally thousands of court opinions containing detailed discussions on this very topic.
I don't see anything in the Constitution or the U.S. code to indicate why a candy bar can be patented, but a peanut butter and jelly sandwich can not. Maybe you can point to an online legal decision (are legal decisions available online?) that would help clear matters up. But, perhaps I should better have asked, "Why do we draw the line where we draw the line?"
I would submit that, especially in light of the "Trade-Related Intellectual Property" agreements of the GATT, the matter is political: those powerful enough to do so are able to patent processes that are much closer to being "obvious by nature" than is a candy bar -- even processes stolen from indigenous cultures (and they're then able to turn around and restrict the indigenous cultures from themselves using the very processes that were stolen from them in the first place).
Now if Smuckers truly did come up with some innovative mechanism for creating the sandwich, or some novel form of the sandwich, then certainly I would have no problem whatsoever with the granting of a patent, but that was not the case here where Smuckers sought to patent that was obvious by its nature, and clearly not innovative in any real sense.
I think that I did not make the point clearly enough in my original post, but this is what happened (almost): some dude invented (probably after watching his neigbhour's kids doing it, or something) a new type of PBJ sandwich...hang on, I'll put a picture of it up in the original post...
The dude did in fact obtain a patent for this new type of PBJ, which Smucker then purchased, but has failed in its attempts to expand the patent.
So, I apologise for not making that clear at the outset. But now "Clarence" owes Smucker an apology for having charged it with the perpetration of "unabashed greed".
Second, although a semantic point to be sure, the RIAA doesn't actually own any intellectual property, it merely protects the intellectual property of others.
Conceded.
Be that as it may, I have no problem with the RIAA, or the artists they ultimately represent, protecting the rights afforded them by copyright law. Let's say you work in a restaurant... someone comes in, orders food, you prepare it, cook it, arrange it on a plate, serve it, clean it up, and the person eats it, enjoys it, and then gets up and leaves. Fair? So why is it any different when an artist creates a song, or a book, or a film, presents it to the public, and someone comes along and downloads it, enjoys it, and doesn't pay for it?
Fair, indeed: the patron is paying for the preparation and service of the food (as well as the cost of the ingredients, utilities, rent, & cetera).
But let's say the patron, having greatly enjoyed his meal, decides to "duplicate" the experience in his own home. He invites a bunch of friends over to his house, and serves them the same meal that he so enjoyed in the restaurant. Should the cops come over and bust up his dinner party, on the grounds that he is stealing the restaurant's "intellectual property"?
If not, then why shouldn't I be entitled to purchase a CD, decide that I like it so much that I want to share it with friends, purchase the necessary "ingredients" (blank CDs, jewel boxes), make copies, and share those copies out with friends?
One might argue that there's a difference in that the restaurant patron's meal isn't an exact duplication of the restaurant's. But supposing that it were? Supposing that the patron were able to "reverse engineer" his restaurant meal, and thereby exactly duplicate it at his dinner party? (This isn't so far-fetched, really: one of the hallmarks of a good restaurant is consistency. So if the restaurant can consistently produce like meals one after another, there's no reason to suppose that a patron couldn't do the same.)
One might argue that the difference is that the CD is "protected", while the restaurant experience is not. But, ought a restaurant be able to "protect" its "Intellectual Property"?
One might argue that the file-sharer, like the restaurant-experience-sharer should be entitled to share away, so long as he doesn't profit by doing so. So, supposing a restaurateur, visiting from out-of-town, is so impressed by the resaurant that he decides to implement its processes in his own restaurant -- and notices a marked increase in business as a result (so that, the first restaurant's processes weren't "obvious by nature", or the second restaurateur would already be using them). Has he stolen the first restaurateur's "Intellectual Property"? Would he have if the first restaurateur had trademarked the food's presentation, and patented the recipes? Is this the kind of world we want to live in?
Now certainly you are entitled to certain "fair use" rights, but that hardly justifies encouraging the wholesale theft of someone else's hard work and creativity.
Well, note that in the original post, I placed the word "steal" in scare-quotes. In other words, I consider the act of theft to be granting of property rights in the first place. You may say that just because I disagree with it, that doesn't mean that I should take matters into my own hands. But I beg to differ: I think that when you identify an injustice, you have some level of moral obligation to right the wrong. If this means breaking the "law", and as a result suffering consequences, well, that's how progress is made (or at least, that's how progress has historically been made).
Whether you agree with the concept or not, copyright and patent laws are designed to ENCOURAGE creativity and innovation by granting the creators and inventors a limited monopoly over the use of their work.
Maybe that's what they're designed for (though I have my doubts, as noted above), but in fact their effect is to stifle creativity and innovation, as is, er, patently obvious.
If I build and obtain a patent for a mousetrap, thereby precluding others from taking my original design, improving upon it, and using the better mousetrap to whup my ass in the market with; clearly I have much less incentive to myself make improvements upon the original design.
Let's go back to the peanut butter and jelly case. Smucker says that it "bought a unique idea for making an everyday item more convenient [and] made a significant investment in the idea and in developing the innovative manufacturing technology that makes Uncrustables so easy to use." But by trying to obtain a patent on the "unique idea", it is trying to prevent others from developing even more "innovative manufacturing technology":
Smucker asked Albie's Foods of Gaylord, Mich., to stop producing ready-made PB&J sandwiches for a school district, but the food manufacturer went to a federal judge in 2001 and then the patent office to invalidate Smucker's original patent. Albie's was "caught off guard, literally, because they didn't think you could patent a peanut butter and jelly sandwich," said the company's lawyer, Kevin Heinl.
Don't know what he means by "literally", but, you get the picture. It's certainly worth mentioning, by the way, that the truly profitable (as in, Fortune-500-caliber) "processes" were by and large developed in the public sector, and then given over to private industry, which now claims the "Intellectual Property" for its own.
On the other hand, look at the Open Source movement. Constantly rigorously innovating and improving its "product", to the point that, for example, openoffice.org (a free program) is now superior to MS Office (a far-from-free program), and a year from now will likely be far superior.
If you disagree, then create your own art and release it into the public domain. Write open source software. Invent products and release them to the world for use by everyone. That is your right. Do not, however, presume that you have some higher, unwritten right to determine how others choose to share their ideas.
There are a couple of different issues here.
First, the original point of the post was that whether we consider "Intellectual Property" rights fair or unfair, they're a fairly gigantic market distortion.
When a record company (let's call it "Warner Bros.") signs an artist (let's call him "Robyn Hitchcock") to its roster, it obtains exclusive rights to bring the artist's "product" to market.
If it were a free market, on the other hand, when the artist produces a record (let's call it "Moss Elixir"), any person should be able to obtain a copy directly from the artist, and bring it to market in any fashion he or she (the vendor) deems appropriate. In fact, if it were a truly free market, any person could purchase a copy of the Warners pressing, make copies of his or her own, and sell them on the street corner. And we'd then let the "invisible hand" sort them out.
So what? Well, that's actually (as mentioned earlier) the point of the "Free Market Miracles" series: to point up the hypocrisy of fat-assed sons of bitches blathering on and on and on about the economic "necessity" of imposing market strictures upon the poor, while at the same time calling upon the taxpayers to bail out, prop up, subsidise, proselytize for, the rich.
Second, as I say, I don't agree that when I see an injustice that my obligation to mitigate that injustice has been absolved by not practicing the injustice myself. While acknowledging that I'm the one that brought up the RIAA in the first place, I should say that this matter is fairly trivial in the grand scheme of things.
Would you argue, for example, that if I were able to "steal" a pharmaceutical company's "Intellectual Property" and in so doing were able to make AIDS medications readily available to the millions upon millions of Africans and Asians that cannot now afford to purchase the medications from said pharmaceuticals, that I should not do so, because I'd be violating big pharma's "Intellectual Property"?
Third, I'm more than a little uncomfortable with the idea of a professional artist. The commodification of one's art is a soul-sucking process. As is, I should say, the selling of one's athletic abilities. Or the selling of one's labor. Which is to say that we're all prostitutes; and that Capitalism, in forcing us human persons to commodify our very beings in order to survive, is the bunk.
So, we live in an imperfect world. But for the time being, yes, artists help to make our lives a little bit better. So, if we want to support the artists that enrich our lives, we should "steal" the Record Companies' "Property" (for the artist only sees 25 cents (or something like) from that $17 CD), and if we like the artist's work, support him or her directly by attending live shows (voila!, much as we pay the restaurateur for the preparation of our meal, we pay the artist for the live performance of his work) and buying merchandise. Or, if we like the CD, we could simply mail the artist a sawbuck.
Furthermore, to argue that only the "rich" benefit from intellectual property laws is just another oversimplification, and is, in fact, quite wrong.
As I say, I was speaking to the practice of imposing market strictures upon the poor, but doing the precise opposite for the rich.
-- Posted by: Eddie on April 14, 2005 01:02 PM