INTRODUCTION

The United States Constitution states that Congress shall have the power 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” [1]. Our Founding Fathers understood that protection of novel ideas and information falls within the realm of the proper role of government. Protection of novel ideas has become known as intellectual property (IP), wherein works of art, such as music, paintings, and movies, and inventions, such as processes and configurations, are protected by law through copyrights, patents, and trade secrets.

Modern prophets have taught that IP should be protected. The latest Gospel Principles manual states, “Copying music, movies, pictures, or written text without the permission of the copyright owners is dishonest and is a form of theft” [2]. Elder Bednar has said “Deceitful acts supposedly veiled in secrecy, such as illegally downloading music from the Internet or copying CDs or DVDs for distribution to friends and families, are nonetheless deceitful” [3]. Protection against theft and deceit clearly falls within the role of government [4].

The following is my understanding as to why protection of IP falls under the proper role of government as taught by prophets. After writing this article, I realized how long it had become. Therefore, first I will give a very brief overview of the major points. A better explanation of the major points with examples is then provided throughout the article (matched to the outline).

To skeptics of IP protection: please read the longer explanation of points you disagree with (including Common Arguments Against IP). I’d be happy to hear your criticism, but only after you have read my longer explanation of what you disagree with.

OUTLINE

  1. Property is defined as the fruit of our labors. Much labor is goes into creating truly novel ideas of value.
  2. Individuals can give others limited use of their property through contract, including implied contract. This applies to both physical property and IP. A breach of contract is a crime.
  3. IP is protected under a contract that the creator of a novel idea will only share the idea with others who enter a contract to only use the idea in a limited way and promise not to share or distribute the idea to others in an unauthorized way. Part of this contract is that the person who receives the idea will only reveal it to a third party in an authorized way after they put the third party under the contract.
  4. Someone who knowingly assists in a crime, even if they don’t use force directly, is guilty to that crime. Therefore, if you knowingly assist someone in breaking a contract to only use an idea under limited terms, you are also guilty of a crime.
  5. Just as there are benefits to having government issued documents to protect valuable physical property, there are also benefits to having government issued documents, in the form of copyrights and patents, to protect IP.
  6. The current US government has some policies in place that help protect IP based on principle. However, there are some areas where they have moved away from principle. For example, currently it is illegal for someone to distribute an idea they have independently created if a similar idea is registered as a patent by someone else. This is wrong because the “second creator” legitimately could distribute the idea without breaking any contract, and therefore force is not used.
  7. It is a breach of implied contract, and therefore a crime, to violate a Trademark because you are claiming something which is false.
  8. Responses to common arguments against IP (arguments are listed here, see actual responses below in article)
    1. My right to physical property trumps your right to an idea.
    2. I can’t be punished for violating a contract I didn’t make myself.
    3. It’s impossible to violate someone’s right to an idea because an idea cannot truly be stolen.
    4. There can be no enforced punishment to violations of intellectual property because nothing is lost.
    5. Ideas can’t be owned as property because duration of the copyright/patent/etc. is somewhat vague.
    6. Ideas can’t be owned as property because they have vague boundaries.
    7. Something must be scarce in order to be property, and ideas aren’t scarce.
    8. Property can’t be defined by labor because that corresponds with the Marxist theory of value.
    9. I didn’t know that the author was claiming a copyright (or inventor was claiming a patent)
    10. Protection of intellectual property inhibits progress as a society.
    11. Someone cannot retain an exclusive right to IP if they freely offer their idea in public.
  1. Implantation of IP protection: the same principles that are applied to protect physical property should be applied to protection of IP
  2. References

 

1.      The Definition of Property: The Fruit of Our Labors

The Doctrine and Covenants states that government should “secure to each individual… the right and control of property” [5]. On multiple occasions, President Ezra Taft Benson defined property, which is an unalienable right, as the fruit of our labors [6,7]. Defining property by labor is in harmony with what God told Adam Eve upon falling and leaving the Garden of Eden, “In the sweat of thy face shalt thou eat bread” [8]. Adam and Eve now had earn their way by working for sustenance.

One way to comprehend the definition of property as the fruit of our labor is through considering how property rights should be established when people migrate and discover a new land. Consider those traveling with Lehi and arriving to the Americas for the first time. As they were crossing the Pacific Ocean, could one of them, upon spotting the first island, point at it and say “mine”, while a second person upon being the first to spot the main continent point and say “mine”, while a third person pointed at the moon and said “mine”? Merely claiming something as property wouldn’t give them a right to it. However, by laboring for it, they could. For example, upon arriving, one of them could go to an un-owned field and labor to bring forth crops, upon which they could claim the field as their property. Another could go and cut-down some un-owned trees and labor to build a house, and be able to claim that house as their property. A third person could labor to obtain ore from the ground, and claim the ore as their property. Following this pattern, people could take that which wasn’t previously owned, and upon laboring for it, claim it as property. Upon claiming it as property they could also transfer ownership to others through trade or gifting it. This same pattern is followed today. People can labor upon that which isn’t previously owned and claim it as property. They can also trade for property, whether they trade a different type of property for it, or perform some kind of service in exchange for property.

Property, which is the fruit of our labors, doesn’t necessarily have to be physical items. In the gospel, fruit doesn’t always refer to physical items. For example, in Lehi’s dream, the fruit of the tree of life represented the love of God [9]. When Christ taught us that we could determine whether someone was a true or false prophet by their fruits [10], they weren’t teaching us to examine their physical possessions or characteristics. Fruit can also refer to ideas. People can labor to create new ideas in the form of inventions and works of art. For example, there is much labor that goes into creating a movie, in the form of thinking up ideas, acting, filming, editing, etc. There is also much labor that goes into novel inventions in the form of thinking, trial and error, experimenting, building prototypes to validate, etc. If someone works hard to create an idea which is truly novel and of value, it can be claimed as property, which is consistent with the definition of property as given to us by prophets: the fruit of our labors.

Patents, trade secrets, and copyrights essentially involve protecting an idea. An invention that is patented is essentially a specific configuration of matter to perform some process. A book is a specific configuration of words and ideas. Pictures are configurations of colors. Music is a configuration of sounds, and movies are a combination of pictures, music, ideas, etc. Intellectual property basically breaks down to protecting an idea to limited use.

2.      Giving Others Limited Use of Property Through Contract, Including Implied Contract

Under the reign of the judges in the Nephites’ time, which was a government established by prophets, we learn that the people “durst not lie, if it were known, for fear of the law, for liars were punished” [4]. The law can have hold over those who lie through breaking contracts or committing fraud (fraud generally refers to breaking an implied contract). Breaking a contract is a violation of our right to liberty and/or property. When we contract, we have given a portion our liberty or property to another with a promise from them that they will give us a portion of their liberty or property. If they lie and break the contract, they have stolen our liberty or property.

Contracts can be written, verbal, and even implied. To illustrate implied contracts, consider all the implied contracts that are made when you visit a restaurant. If the restaurant owner posts a sign out front indicating that it is a place of business and provides a parking lot, there is an implied contract that even though you park and leave your car unattended (for a reasonable amount of time), you remain the owner of the car. There is an implied contract that you can enter the property without being charged with trespassing. You are agreeing to respect the property (such as not damaging anything and complying with whatever rules they establish, such as requiring shoes/shirts, prohibiting drugs, etc.) and respect other patrons; in exchange they agree to not abuse you and respect whatever personal property you are bringing (note: they retain the right to have you leave their property for any reason, but they agree to notify you and give you an appropriate amount of time before forcing it). By ordering food, you enter another implied contract. You agree to pay for the food and service as long as it is presented to you in a reasonable condition. Although the cook has some flexibility with ingredients in the food, they agree to not to add something they know is harmful (unless you know, such as alcohol). When you hand over your credit card to pay, another implied contract is made: you agree to allow them to create a debt in your name with a financial institution, and they agree to only make that debt in the amount indicated that you will pay, they also agree not to write down the credit card number, your personal information, and charge more or share it with someone else at another time without your permission. These are just examples of several implied contracts made when simply going out to eat. We use implied contracts all the time, and they are generally based on what the understanding of the culture is. Implied contracts make life more enjoyable and efficient—if we didn’t have them, it would be a big hassle every time we wanted to trade property for property and/or labor.

Through contract, we can give others limited use of our property. This done all the time with physical property; some examples are renting a car, using a hotel room, and visiting an amusement park. As part of the contract, the property owner can set limits on how the property is used. For example, dictating that only people over a certain age can drive the rental car, that noise will be kept to an appropriate level in the hotel room, and that the patron won’t cut in line or be abusive to others at the amusement park. An example of an implied contract with physical property is valet parking. As you hand over the car and keys, you are not giving them permission to take the car permanently, but that they will simply park it and return it upon your request (and after you pay). Often keys are handed over without saying anything, and certainly not signing anything, so it is very much an implied contract.

3.      Intellectual Property: The Principles of Contract Applied

The principles behind intellectual property are basically based on this: someone labors to create a novel idea. To maintain control over this idea (and hence, they can be considered the “owner”), they only share the idea with others who enter a contract to only use the idea in a limited way and promise not to share or distribute the idea to others in an unauthorized way. Part of this contract is that the person who receives the idea will only reveal it to a third party in an authorized way after they put the third party under the contract. Anyone has a right to refuse to enter such contract, but they do so by refusing to see details associated with the idea.

As an example of a copyright, consider a movie. A team labors to create it. They advertise brief parts of it to give you a taste. However, when you go to the movie theater, rent it, or buy it on DVD, you enter a contract with them not to distribute it without authorization. When you go to the theater or rent it, this includes not recording or copying it in any form. When you buy a DVD of it, you can create copies for your own use (such as back-up or to view it on different devices), however you promise not to distribute it to others, or allow them to make copies of it. When you buy it, you are contracting with the creator of the movie to put anyone that you invite to see it under contract not to copy it in any form, and therefore anyone that comes over to see your copy of it is also entering the contract. Of course, anyone can refuse to enter this contract by refusing to see the movie. However, once they go to a movie theater to see it, they have agreed to enter the contract. Once they see the movie by watching someone’s copy, they agree to enter the contract (upon buying the DVD of the movie, the purchaser has contracted to put anyone they share it with under contract).

Patents follow these same principles. The creator is offering to reveal or sell their idea to others as long as they contract to only use their idea in the way the creator tells them they can. Those who enter this agreement with the creator also contract to only reveal it to third parties if the third party also enters into the contract, that they won’t use the idea revealed to them unless specifically buying such from an authorized distributor. If others want to apply the invention that has been revealed to them in another way, they must get authorization from the creator.  (Note: it is possible that someone else can labor to create the same invention or novel idea independently. Such a person should be permitted to use and distribute this idea on their own, provided they legitimately created the idea on their own and not by copying the idea in a way that broke a contract made by them or someone else. This will be discussed more later on.)

Basically, Person A, the creator of the idea, is telling Person B that they have labored to create a novel idea. However, they will only disclose details of it with Person B if Person B promises to only use it under Person A’s terms. Person B can refuse to enter such contract, but if they do, they refuse to get the details from person A and therefore are left pondering what in the world Person A’s idea is.

With intellectual property, sometimes this sharing of an idea after putting the other person under contract happens very formally with written contacts, however usually it tends to be under an implied contract that is entered. For example, this implied contract is entered upon going to a movie theater, visiting an art museum, buying a book, or buying a device marked with a patent number.

So how long does the contract last before the purchaser of the idea can freely distribute it? I believe the principle behind determining how long a copyright or patent should last is to consider how long would it be before someone else could reasonably create the same idea independently (generally, trade secrets naturally terminate at this time anyway). For example, if person A tried to put person B under contract not to distribute their invention without authorization for 50 years, but person B thought he could create it on his own in 25 years, person B wouldn’t enter the contract until it was negotiated down to 25 years.

For complex artistic works which are protected under copyright, such as novels, songs, paintings, and movies, entering a contract for at least the lifetime of the author shouldn’t be very arguable. For example, it seems essentially impossible that someone could independently create the same exact movie by coming up with the same plot, scenes, dialogue, actors, camera angles, etc., and therefore entering a contract for a hundred years or longer isn’t unreasonable. Non-complex ideas, such as a simple note, tone, or color, shouldn’t be protected as a copyright, for those probably could be legitimately created independently a short time later (or perhaps they should be protected by copyright only for a few years).

Patents are a little trickier, because often they could be legitimately created by someone else independently after a time, so judgment must be used. Currently in the United States, patents are protected for 20 years after they were filed (or 17 years after the patent was awarded if in 1995 or earlier). Perhaps a more principled approach would be to use a graded system. For example, patents could be ranked by complexity and given term lengths of 5, 10, 20, 50 years, etc. Once again, the principle should be that the patent lasts until someone else could reasonably create the idea independently (without copying it due to someone breaking a contract).

If someone disagrees with the term of the implied contract associated with a patent or copyright but still wants access to the idea, they are free to negotiate with the owner of the idea a different contract, but they must do so before entering the contract (for example, before buying the DVD of the movie or learning details about a patent). Such can’t be done after the implied contract is entered. To give an example with physical property, when a place of business has a parking lot out front, there is an implied contract that when a customer parks, the customer retains ownership of their car. After a customer parks, the business owner can’t suddenly change the terms of the socially understood implied contract and claim that he never explicitly agreed to allow the customer to keep their car, so he is now the owner. To do so, the business owner would first have to inform the customer of his new modified contract (any parked car in his lot now belongs to the business) and allow the customer the opportunity to accept or reject this new contract. The customer must first have the option of driving away. Same principle applies to a copyright. If you don’t want to be bound to the socially understood terms of the implied contract, you must first renegotiate the contract with the owner of the copyright and give them a chance to reject your offer, before you buy the DVD and decide to freely distribute it.

4.      IP Protection from 3rd Parties Who Don’t Directly Enter a Contract

Sometimes it is argued that, while IP can be protected against those who directly enter a contract (such as through buying a DVD), it can’t be protected against 3rd parties who didn’t directly enter the contract. For example, let’s say person A creates a movie, then person B enters a contract by buying the DVD from an authorized distributor, and then person B makes a copy and makes an unauthorized distribution to his friend, person C. Can person C accept the copy and claim that since he didn’t specifically enter a contract with person A, he hasn’t violated any rights? No, because he has assisted in breaking the contract. Knowingly and willingly assisting in a crime makes one guilty of the crime, even if they didn’t directly use force themselves. As a parallel example, if person B steals a car from person A and then sells or gives it to person C, can person C accept the car and claim that he’s not violating any rights because he didn’t actually steal it himself? Of course not—especially if person C knows it was stolen. By accepting the car, person C is assisting in the crime and is therefore liable. Breaking a contract is a crime, and therefore knowingly and willingly assisting someone in breaking a contract also makes one liable of the crime.

Only if person B legitimately created the movie independently (thought up the script, filmed it, edited it, etc. without copying person A), then person C can accept it from person B without violating another’s rights. However, such a scenario actually happening would be highly unlikely.

5.       Benefits of Using Government Documents to Protect Property

There are distinct advantages to having government documents to protect property. First, let’s look at an example of physical property. Person A owns a car and person B steals it. Person A hunts down person B and takes him to court to lawfully repossess his car by force (or get monetary compensation for what he has lost). Person B tells the court that he doesn’t owe anything because person A gave the car to him as a gift. It would be unrealistic for person A to prove to the court beyond a reasonable doubt that he did not gift the car to person B. Instead, person A can show government documentation (car title) that he was the original owner of the car, and then use the argument that it is unlikely that he would have gifted the car to person B without unless there was formal documentation that such has happened. Now person A probably shouldn’t be forced to have government documentation showing ownership of the car, but freely obtaining it is in his best interest in the event that it is stolen. Therefore, it should definitely be a service offered, but not enforced, by the government to have document for valuable property, such as cars, boats, plots of land, etc.

The same principles apply with intellectual property: the government should offer documentation through providing patents and copyrights. For example, the creator of an invention shouldn’t be forced to have a patent, but it is in his best interest to get such to protect his idea. In the case of litigation, it provides the creator solid evidence that he did in fact create the idea. If person B claims that he was freely gifted the idea, person A can show the documentation and use the same logic shown above, that it is unlikely that he freely gifted the idea to person B unless there was formal documentation.

6.       United States Intellectual Property Laws: Incorporate Some of These Principles but Violate Others

Many of the above principles are incorporated into US IP laws. Protection of trade secrets isn’t very disputable because usually a contract is explicitly signed. Protection against the majority of copyrights is also difficult to dispute. For example, think of how long it would reasonably be before someone else could independently create ideas such as Star Wars, Harry Potter, or The Book of Mormon. Protection for centuries isn’t unreasonable.

Patents are a little trickier. However, many principles are incorporated in our US laws.

  1. For something to be patentable, it must be novel, non-obvious, and useful. Simple combinations of ideas aren’t patentable. These conditions establish that basically one must labor to create the idea—for property is the fruit of one’s labor.
  2. An idea is only patentable if it is kept secret up until the patent is applied for. While the idea is in its infancy and one is laboring to develop it, it can only be shared with others if they are under contract to keep it secret. There can be no public disclosure until it is fully developed, which is signified by applying for a patent. This helps ensure that others don’t hear your idea and go copy it without realizing that they have entered a contract with you not to copy or distribute it without authorization.
  3. When selling a device which contains a patent, the patent number must be clearly visible on the device. This informs others that upon examining or buying the device, they are entering a contract not to copy and distribute the idea without authorization.

There are some areas where US IP law needs to be changed because they violate the principles on which IP is founded. Sometimes someone does independently create the same idea before a patent held by another expires. Under current law, such individual is not allowed to distribute the idea. This is a violation of principle, because if the second person could legitimately distribute the idea without any contract being violated.

If two people create the same idea independently, one thing that should be considered is whether the idea is truly novel and complex enough to be patentable—if multiple people came up with the same idea, that could very well be an indication that the idea isn’t really novel. After considering this, it may be that both did labor for years to create a truly unique idea that should be patentable. In this case, both should be awarded with patents—for both should be free to put others under contract that they will share the idea under limited terms. Neither would be violating the right of the other because no contract has been broken to put a third person under contract. Of course, most often it would be in both of their best interests to collaborate and distribute the idea together under agreement where they each take a certain percentage of the profits, but that’s up to them to decide and contract about under the free market.

However, there may be the case that the first person to file a patent for the idea claims that the second person copied the idea from them out of contract (either directly or through assisting a third party in breaking a contract with the first person). Such a case should be investigated, and if the second person didn’t create it independently, the first person should have exclusive rights to it.

 7.     Trademarks

Up to this point, I’ve generally spoken to principles concerning copyrights, patents, and trade secrets. I’d like to briefly touch on trademarks, which are a little different. Trademarks refer to protection of a brand name, logo, etc. For something to be eligible for a trademark, it must be a novel idea—such as a novel word or combination, for it would violate principle to suddenly allow someone exclusive use to a word or idea that is already commonly used among the population. Trademarks can, under principle, be protected by law. Referring back to Alma 1:17, liars, and therefore those who commit fraud, can be punished by the law. If someone labors to build up a business reputation under a unique name, and then someone else suddenly comes in and purposely sells under the same name to trick people into buying a product, they have committed fraud and therefore can be punished by law. For example, it would breach of an implied contract, and therefore fraud, for someone to manufacture a cheap watch and sell it under the Rolex trademark, because a customer would be willing to pay a fair amount of money based on expecting a certain amount of quality.

8.     Response to Common Arguments that Oppose the Right of Intellectual Property

Below, are several common arguments I’ve heard from those who oppose protection of intellectual property. Usually the best way to show that anti-IP argument is flawed is to apply it to a physical property example.

Argument A: My right to physical property trumps your right to an idea.

Often people claim that when physical property and an idea come into conflict, the right to physical property should trump the idea. For example, if person A owns a writable DVD, they should have the right to do whatever they want on it, such as copying another’s copyrighted movie. However, anyone that claims that one type of right trumps another doesn’t have a good understanding of rights. We have a right to life, liberty, and property. Our right to any of those is bound by the rights of others to those. For example, Person A can’t say that his right to property allows him to do whatever he wants with his property, so therefore he can take his baseball bat and kill Person B; such would be claiming that right to property trumps right to life. On the other hand, person B can’t say that his right to life allows him to steal money from person A to pay for healthcare to extend his life at any cost; such would be claiming that the right to life trumps the right to property. Person A’s right to property is bound by Person B’s right to life, and Person B’s right to life is bound by Person A’s right to property.

Therefore, Person A’s right to physical property is bound by Person B’s right to a novel idea and contracts. Person A cannot use his property to violate the right of life, liberty, or property (including intellectual property) of someone else.

As further evidence of the flaw of this argument consider the following. A contract itself is an idea; a contract is simply an agreement between two or more parties. Let’s say person A contracts that he will pay a gold coin if Person B mows the lawn. After Person B mows the lawn, can Person A claim that his right to physical property (the gold coin) trumps Person B’s right to an idea (the contract to mow the lawn) and therefore refuse to pay? Of course not!

Argument B: I can’t be punished for violating a contract I didn’t make myself.

For example, Person B enters a contract with by buying Person A’s movie from an authorized distributor, and then distributes an unauthorized copy of it to Person C. The claim here is that Person C is not liable to copyright violation because he never directly entered a contract with Person A.

Breaking a contract is a crime, and therefore an unauthorized use of force. So the flawed argument here is essentially that since Person C didn’t directly use force themselves, they can’t be liable to the crime. However, one must realize that willfully and knowingly assisting in a crime makes one liable to that crime, even if they don’t directly use force themselves. For example, if Person B steals Person A’s car, and then sells it (at a very low price) it to Person C, can Person C claim that he can keep the car because he didn’t steal it himself, especially if he know it was stolen when he bought it? One might argue that Person B has more liability to the crime and Person A should go after Person B, but what if Person B can’t be found while Person C is found with the car? Person A can rightfully claim damages from Person C. As another example, if someone drives the getaway car from a robbery, although they may not have broken in and stolen property themselves (and therefore didn’t directly use force), they are still liable to the crime because they assisted in it.

Knowingly and willingly assisting someone in violating the intellectual property of another makes one liable to the crime. Technically, the idea isn’t distributed without authorization unless a third party actually accepts the illegitimate copy, so therefore they are directly assisting in the crime (breach of contract).

Argument C: It’s impossible to violate someone’s right to an idea because an idea cannot truly be stolen.

The claim here is that because an idea can’t be “stolen” in the same way physical property is stolen, the right to IP cannot truly be violated. For example, if Person A steals Person B’s car, Person B no longer has the car. However, if Person A gets an illegitimately copy of Person’s B movie, person B still has the movie themselves (they can still burn and distribute whatever copies they want) so it isn’t technically “stolen”.

Just because “stealing” an idea is different than “stealing” physical property, it doesn’t mean that a violation of rights hasn’t occurred. First of all, one must realize that the right to physical property can be violated in ways other than theft. For example, in the cases of trespassing or damaging someone’s car, a right is violated even though the owner is still in possession of the physical property. This in itself proves the argument flawed.

Second, consider identity theft. One’s identity isn’t “stolen” in the same way a car is “stolen”; what has happened is that a second person is distributing without authorization an illegitimate copy of someone else’s identity. Clearly identity theft is a violation of rights. Violation of IP is also unauthorized distribution of illegitimate copies. In fact, one’s identity itself can be considered an idea.

Finally, consider the words of modern prophets. The most recent Gospel Principles states, “Copying music, movies, pictures, or written text without the permission of the copyright owners is dishonest and is a form of theft” [2].

Argument D: There can be no enforced punishment to violations of intellectual property because nothing is lost.

The argument here is that punishment for a crime should be based on restoring what has been lost, and if a novel idea is distributed without the creator’s consent, the creator still has use of the idea themselves so there is nothing actually lost which needs to be restored. However, violation of rights often involves losses of non-tangible items. This is especially true regarding violation of contracts. For example, let’s say person A contracts to mow person B’s lawn in exchange for a meal. It would be a violation of person A’s rights if person B refused to provide a meal after the lawn was mowed. However, in this case, person A didn’t physically lose anything. So what must be restored? One thing is that person A lost time, but it would be impossible for person B to restore the time to person A. If what is damaged can’t be restored, our best judgment must be used for resolution. Often, money is used to resolve such.

For an example of IP, let’s say someone buys a movie and then distributes it without authorization over the internet to thousands of others. Through a breach in contract, the unauthorized distributor has now robbed the creator of all the time and work put into creating a movie and creating the movie’s value by limiting distribution to only certain authorized parties. To restore what has been lost, the perpetrator must destroy all the illegitimate copies circulating around the world and erase the movie from all the minds of those who have watched an unauthorized copy (the movie has lost much value because many that have now seen it are no longer willing to pay to see it for the first time). Of course, such would be impossible so often money is used to restore what has been lost, according to our best judgment.

Those who oppose IP often don’t realize all the time, resources, and work that are invested in creating a valuable idea. To protect the value of the idea, recover the investment, and gain an honest profit, the creator may only distribute the idea under contract of limited use. If a contract is breached which devalues the idea, the creator is robbed of all the work put into creating value of the idea

Argument E: Ideas can’t be owned as property because duration of the copyright/patent/etc. is somewhat vague.

Often judgment must be used to determine the length of IP protection. However, that in itself doesn’t invalidate it as a right. Consider physical property: how long does something have to be left alone (e.g. abandoned) before someone else can claim it? For example, consider a car vs a t-shirt left in the mountains at a trailhead. Consider a t-shirt in a plastic bag left by the side of the road vs a t-shirt left in a car by the side of a road. Judgment must be used, and is often based on complexity, intent, how it is packaged, etc. The same concepts apply to IP.

Argument F: Ideas can’t be owned as property because they have vague boundaries.

The argument here is that because ideas don’t have clearly defined boundaries, they can’t be considered property. For example, how similar can a novel that I write be to another’s novel before I have violated their copyright?

Just because boundaries aren’t exact and judgment must be used to determine when a violation has occurred, doesn’t mean that a right can’t be violated. Consider traffic accidents. Judgment is used all the time to determine who is at fault and therefore liable to the damage. It isn’t always clear. Further, consider a plot of land. How far down must Person A go before they can dig directly below Person B’s land to take resources? 1 foot? 50 feet? 50 miles? How far above Person B’s land can Person B fly some kind of device without trespassing? 1 foot? 50 feet? 50 miles? Perhaps it depends on what kind of device (kite vs airplane), and what Person A’s intentions are (traveling to get somewhere else vs spying on Person B). Often the form of the “copy” and the intention behind it are used to judge whether a violation of IP has occurred.

Argument G: Something must be scarce in order to be property, and ideas aren’t scarce.

The claim here is that something can only be considered property if it is scarce, and ideas can be used by multiple people at the same time so they aren’t scarce. For example, a specific car is scarce because only one person can drive it at a time, but a specific movie isn’t scarce because many people can watch it at the same time in multiple locations.

On multiple occasions, President Benson defined property as the fruit of one’s labor [6,7]. IP clearly falls within the realm of this definition. I don’t know of any authorized servant of God that has used scarcity to define property as a right. Scarcity often contributes to the value of property in a free market, but it doesn’t in itself define ownership or property.

God is the ultimate owner of anything on Earth, for Earth is the fruit of His labors. Anything that we claim as property ultimately belongs to Him. However, He has granted us temporary stewardship over certain portions of Earth, which is our God-given right to property. It seems self evident that He grants it to us on the basis of working for it, as a reward for our labors, rather than granting it to us on the basis of something being scarce.

There are other ways rights can be violated which don’t fall within the definition of “scarcity”. For example, when the Nephites first arrived to the Americas, they had a right to claim plots of land by being the first to labor upon it. If someone were to build a house on a plot that another had already built a farm, it would be a violation of property rights even though plots of land weren’t scarce. A second example is our right to privacy. We may choose to give limited use of our privacy to certain individuals, such as a spouse, doctor, etc. However, usually there are contracts (implied or explicit) in their limited use, and if they violated by giving it to third parties in an unauthorized way, it can be a violation of rights. A third example is that someone could copy your credit card information, and therefore it can be used by multiple people at the same time in multiple locations. What is violated is an idea (credit card info) which is simply linked to an idea (debt contract). Related to this is a right to our identity, which could be used without authorization by multiple people at the same time.

However, even to address the IP cynic that insists on defining property by scarcity rather than the fruit of one’s labors, surely they should agree with IP on the basis of contracts. Perhaps rather than calling it intellectual property, they can think of it as protection of a novel idea through contract. It is fraud to agree to use a novel idea under limited terms, and then later break the contract after the novel idea is fully revealed. It seems easier to think of protection of a novel idea through limited use contracts as “property” by convention, but whether or not one prefers to call it “property”, a breach of contract is an unjustified use of force.

Argument H: Property can’t be defined by labor because that corresponds with the Marxist theory of value.

Surprisingly, I’ve heard this argument from multiple people. However, such individuals don’t understand Marxism or private property because these are two completely different concepts. Under the Marxist theory of value, rather than letting the free market determine the value of goods, the value of goods is determined by the amount of labor put into it. For example, let’s say the Marxist government determines that one man-hour is worth $10. If two houses are built, and it takes Person A 10 hours to build one, while the other takes Person B 20 hours (because he used less efficient tools and was less skilled at building), even though the houses may be exactly the same, the first one will be priced at $100 and the second will be priced at $200 by government mandate. Also, neither house is owned by the person who built it—it is owned by the community at large. The price is only used to determine equal redistribution of goods to everyone, regardless if they work full-time or not at all.

However, under a free market where private property is defined as the fruit of one’s labor, Person A owns the house he built, while Person B owns the house he built—the houses are the reward of their labor and their God-given right to property. Each can decide on their own whether to keep it or sell it. If they do decide to sell it, they can sell it for whatever price they’re able to negotiate with a buyer wish, regardless of whether it took 10 hours or 20 hours to build.

Defining property as the fruit of one’s labor is truly a prophetic definition—it is rewarding ownership based on labor and allowing a free market, which gives the biggest benefit to society as a whole.

Argument I: I didn’t know that the author was claiming a copyright (or inventor was claiming a patent)

Some anti-IP people argue that it isn’t practical to protect IP because they claim it is difficult for a third party to know when an idea is protected under limited use by contract. However, by applying this same argument to physical property, the flaw in it becomes apparent. For example, when going to the park, how are you supposed to know what is currently claimed by someone as physical property? If you see cars parked in the lot, do you assume that they are freely available to the public as whole, or is someone still claiming it as property? If a random stranger offers to give you a computer for free, do you take it on the assumption of trusting the person, or are you skeptical that they stole it and proceed with caution? The rule of thumb seems to be that if an object is complex and has significant market value, it is best to assume someone is claiming ownership. The same rule of thumb and common sense should also be applied to IP. Complex and valuable novel ideas should be assumed to be protected under copyright or patent, and you should investigate before accepting them for free or ridiculously low prices.

Argument J: Protection of intellectual property inhibits progress as a society

Some claim that by limiting use of novel ideas through protection of intellectual property inhibits a society’s progress. However, history has shown the contrary. For example, from 1875 to 1975 the United States probably had a government system protected physical and intellectual property better than any other nation (note: it wasn’t perfect, but better than any other). The US also became the most advanced, well-off nation. This comparison is especially apparent when comparing the US to countries which had little to no protection of physical and intellectual property during that time, such China and the USSR. Protecting someone’s ownership of the fruit of their labors, in the form of both physical and intellectual property, encourages individuals within a society to work and produce, which fosters more progress. Unfortunately progress in the US is slowing down as property rights are degraded over time and redistribution is happening through force rather than through free market exchanges and charitable giving.

Argument K: Someone cannot retain an exclusive right to IP if they freely offer their idea in public.

This argument generally stems from misunderstanding of what it means to “freely offer” something to the public. For example, when an author puts out a book or movie, they aren’t freely offering the idea to everyone to use and share the idea however they wish. Under copyright protection, they are putting all those who go to see the movie or read the book under an implied contract to limited use of the idea.

For a parallel physical property example, consider a restaurant owner. He opens the doors to the public, allowing people to come in and use it. However, this doesn’t mean he “freely offers” the restaurant to the public, in that they can come in and do whatever they want, such as disturb other customers, vandalize furnishings, and take home whatever they find inside. Individuals that choose to enter the restaurant agree to limited use of the property under an implied contract made once they enter the premise.

Implied contracts make life much more efficient. In the case of a restaurant or store owner, it wouldn’t be feasible to make him have every customer who wants to enter sign a long contract spelling out exactly what they can and cannot do if they choose to enter the property (plus, the customer may be able to find loopholes to whatever contract is there—does every little thing need to be spelled out?). In the same vein, it is often much more feasible for IP owners to function under implied contracts.

9.        Implantation of IP protection: can you prove that someone else didn’t create it?

A discussion of protection of IP based on principles often leads to the question of how to enforce it. For example, if someone is caught distributing a patented or copyrighted idea without authorization, what is required to find him guilty? Is it necessary for the plaintiff beyond reasonable doubt that the defendant didn’t also create the idea independently?

This deals with implementation of the law and not the principles behind our right to protection of IP. Such a discussion is only valuable after it is understood that we have a right to IP in the first place.

Proper protection of rights in a society is dependent on the majority understanding and agreeing on basic principles, such as that lying, theft, and murder are wrong, and are a violation to our God-given rights. There will be some dishonest people in the society which try to get away with violating the rights of others, and dealing with this to restore damages will always have imperfections.

Protection of IP should be based off the same principles that are used to protect physical property. So first, let’s consider an example of physical property. If Person A hunts down Person B who is found in possession of Person A’s stolen car, what must Person A do to prove the car was stolen in order to claim damages for the crime? If the thief, Person B, claims that Person A had gifted him the car, to whom does the burden of proof fall? Must Person A prove that he did not gift the car? Or does the burden of proof now fall upon Person B to prove that Person A did gift him the car? Such is a difficult dilemma, for it would be difficult for either to prove one way or another. Due to the difficulty, does the thief, Person B, get to keep the car because Person A cannot prove beyond reasonable doubt that he did not gift the car? Such seems unfair.

Our society has developed a method to deal with such: Person A can get a government issued car title indicating he is the owner. He shouldn’t be forced to title the car (this is where our system has gone too far), but it should be a service that he can freely choose to receive—and it would be in his best interest to do so for a valuable item such as a car. If Person B steals his car, to repossess it, Person A could show his car title, indicating he is the rightful owner, and then use the argument that it is unlikely that he would gift such a valuable item to someone else without formal documentation. If Person B claims that he created the car independently, Person A could make a similar argument: it’s unlikely that Person B happened to create the same type of car (with the same exact features, same VIN, etc.). Of course, if Person B has documentation or reliable witnesses that show that he did create the same type of car independently, he should then have the right to keep it.

Although not perfect, this system of offering formal documentation to protect valuable property is a good one to help protect against dishonest criminals. If such is the system used for physical property, then it is also reasonable to use it for IP. If Person A finds Person B in possession of an unauthorized copy of his idea, instead of having to prove that they did not gift it to Person B (or that Person B did not create it independently), it should be sufficient for Person A to prove that he is the original owner of the idea and it is unlikely that he would freely gift such a valuable idea to Person B (or it is unlikely that Person B created the idea independently) unless Person B has reliable witnesses or some kind of formal documentation. Such is the value of a government issued patent or copyright—to establish initial ownership of the fruits of one’s labor and help protect against those who would dishonestly claim a right to it.

10.        References

  1. The Constitution of the United States, Article I, Section 8.
  2. Gospel Principles. The Church of Jesus Christ of Latter-day Saints. 2009 Edition. Pg 181.
  3. Things as They Really Are. Elder David A. Bednar. May 3, 2009. [http://lds.org/library/display/0,4945,538-1-4830-1,00.html]
  4. Alma 1:17–18
  5. Doctrine and Covenants 134:2
  6. The Constitution: A Heavenly Banner. President Ezra Taft Benson. Speech given at Brigham Young University on 16 September 1986. [http://speeches.byu.edu/reader/reader.php?id=6985]
  7. The Proper Role of Government. Ezra Taft Benson. God, Family, Country: Our Three Great Loyalties. Pg 281-303. [http://www.latterdayconservative.com/articles/ezra-taft-benson/the-proper-role-of-government/]
  8. Genesis 3:19
  9. 1 Nephi 11:21–23
  10. Matthew 7:15–20
 Editor Note: LDS Liberty does not endorse this article.
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