The Tragedy of the Commons in the Rentier Mind
February 12th, 2015 | Published in anti-Star Trek | 2 Comments
Complementing my last post, here's a story about the twisted ideology that now surrounds intellectual property, where IP is considered not just as utilitarian necessity, but as some kind of [inherent natural right](http://thenewinquiry.com/essays/phantom-tollbooths/). In the most absurd form, it is seen as a moral responsibility for creators to zealously defend any IP they can get their hands on, and maximize whatever amount of money they can squeeze out of it.
This [article](http://www.latimes.com/business/la-fi-sriracha-trademark-20150211-story.html) is about our trendy hot sauce of the moment, Sriracha. Specifically, it is about the fact that while the hot sauce in question is strongly associated with a particular product made by Huy Fong foods, the Sriracha name itself is not trademarked. As a result, everyone from your local twee sauce artisan to Heinz and Tabasco is now jumping in with their own Sriracha.
None of this seems to much bother Huy Fong's founder, David Tran. But boy does it bother all the people that look at this scenario and see a bunch of juicy lawsuits!
The author of the LA Times article calls it a "glaring omission" not to trademark the word.
"In my mind, it's a major misstep," says the president of a food marketing consultancy.
Even his competitors are baffled. "We spend enormous time protecting the word 'Tabasco' so that we don't have exactly this problem," says the CEO of a rival hot sauce company that's now going into the Sriracha market. "Why Mr. Tran did not do that, I don't know."
An IP lawyer laments: "The ship has probably sailed on this, which is unfortunate because they've clearly added something to American cuisine that wasn't there before."
That David Tran has added something to American cuisine is hard to dispute. But Tran also has a successful, growing business that has most likely made him very rich. One which he has said, on numerous occasions, he deliberately does not scale up as much as he could, in order to maintain the quality of his product and control the sources of his peppers.
So for whom is it so "unfortunate" that he doesn't spend his life in constant litigation against anyone who dares make a Thai-style hot sauce and name it after a city in Thailand? Tran himself gives the answer. "We have lawyers come and say 'I can represent you and sue' and I say 'No. Let them do it.'"
February 17th, 2015 at 11:44 pm (#)
In the linked article you give a “is anything truly original?” counter to the moral case. I see a stronger if narrower one relevant to patents especially. The common assumption of such moral arguments is that we have no moral right to the use of someone else’s idea because without them we wouldn’t have that idea. But that’s not generally true. If I don’t invent the light bulb today, sooner or later someone else will. And patenting the idea doesn’t just give me the rights to my idea’s contribution to society, but their potential idea as well. If my patent doesn’t expire before they would have come up with the idea, then I have taken something from them and after that date any further profits I extract from that patent are taken from society for a claim on something society didn’t receive any marginal benefit from me for.
The problem with the moral case becomes especially clear with patent trolls. Here we have someone who comes up with an idea and patents it with as little fanfare as possible and make no effort to promote their idea, because they fully expect that others will independently arrive at the same idea. Their patent is not so much a claim on their own thoughts and ideas as on the thoughts of the next person who thinks of the same idea.
February 18th, 2015 at 12:07 pm (#)
Yes indeed, something I thought of but forgot to include in these two posts is the idea of multiple discovery, which is another argument against strong IP–most important innovations are arrived at independently by multiple people at around the same time, because they’re “in the air” or are the logical progression from what came before.
So one of the funny things about IP driven pseudo-innovation is that it essentially mandates the artificial recreation of multiple discovery.