US Innovation: Built On Copying And Permissionless Innovation

from the a-history-lesson dept

We recently wrote about Rep. Marsha Blackburn's nearly 100% fact free oped about how we need stronger copyright and patent enforcement to encourage innovation. I wanted to revisit that article to drill down on one point:
America has always been a society that rewards good ideas and protects property rights in a free-market capitalist system, not one premised on permission-less innovation where others can free-ride or take someone’s creation without even asking. It’s wrong to deny creators and innovators the fruits of their labor or to deprive them of their individual right to profit for the work they legitimately create.

That’s why the U.S. Constitution under Article I, Section 8 recognized these natural rights and empowered Congress to secure them in a way that advances honest and legitimate activity.
As we noted in response, that's simply not true. And the history of American innovation is actually almost entirely about permissionless innovation and copying someone else's ideas and making them better. Ben reminded us that a few months ago Bloomberg actually had a really detailed discussion of how early US industrialization, led by the same founding fathers of the US, was all about copying others and permissionless innovation. We wrote about this at the time, but it's worth a reminder, just to see how incredibly wrong Rep. Blackburn is in her oped.
In its adolescent years, the U.S. was a hotbed of intellectual piracy and technology smuggling, particularly in the textile industry, acquiring both machines and skilled machinists in violation of British export and emigration laws. Only after it had become a mature industrial power did the country vigorously campaign for intellectual-property protection.
In fact, it was a widely supported view that Americans should flat-out copy the innovations of other countries, and this included direct statements from some of the key framers of the Constitution. Take, for example, Alexander Hamilton, considered one of the key people behind the Constitution. He cowrote the Federalist Papers, and his contributions are considered some of the most important in understanding and interpreting the intentions of the Constitution. So, how did he feel about Blackburn's claim that Article I, Section 8 was recognizing the "natural rights" based on innovation and that it was wrong to "deny creators and innovators the fruits of their labor"? Turns out Hamilton says that Blackburn's interpretation of the Constitution and history are both completely wrong:
The most candid mission statement in this regard was Alexander Hamilton’s “Report on Manufactures,” submitted to Congress in December 1791. “To procure all such machines as are known in any part of Europe can only require a proper provision and due pains,” Hamilton wrote. “The knowledge of several of the most important of them is already possessed. The preparation of them here is, in most cases, practicable on nearly equal terms.”

Notice that Hamilton wasn’t urging the development of indigenous inventions to compete with Europe but rather the direct procurement of European technologies through “proper provision and due pains” -- meaning, breaking the laws of other countries. As the report acknowledged, most manufacturing nations “prohibit, under severe penalties, the exportation of implements and machines, which they have either invented or improved.” At least part of the “Report on Manufactures” can therefore be read as a manifesto calling for state-sponsored theft and smuggling.

The first U.S. Patent Act encouraged this policy. Although the law safeguarded domestic inventors, it didn’t extend the same courtesy to foreign ones -- they couldn’t obtain a U.S. patent on an invention they had previously patented in Europe. In practice, this meant one could steal a foreign invention, smuggle it to the U.S., and develop it for domestic commercial applications without fear of legal reprisal.
Much of the rest of the article gives example after example of how US innovation and industrialization was based on this exact pattern. And, of course, this is not just an American pattern. We've seen how other countries, including Germany, Switzerland and the Netherlands used similar techniques to industrialize. Either way, even a basic knowledge of the history of industrialization shows that Blackburn's claims about the Constitution are completely misinformed. And yet she wishes to base a massive policy shift based on these misunderstandings? Yikes.


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  1.  
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    Vidiot (profile), Jul 12th, 2013 @ 10:00am

    Post-innovation

    What the US does have is a history of stealing first, and once the invention works, trying to nail things down tight as a drum. Edison... clearly built on the works of others, but litigated furiously once he had enough market share -- and income -- to hire a pack o' lawyers. Alexander Graham Bell, ditto; a community of inventors who all understood each other's technologies stood behind the telephone, but once patented, Bell's lawyers performed a revisionist purge. And the Wright brothers, who assembled a pile of competing technologies and gave it a tweak... their lawsuits against competitors lasted decades.

     

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    Anonymous Coward, Jul 12th, 2013 @ 10:13am

    I watched a History channel show called, "The Men Who Built America". There was an episode about Henry Ford, and how the existing automobile manufacturers were trying to deny his company the 'rights' to build automobiles he was designing himself.

    Ford basically ignored the Intellectual Privilege Maximalists and continued manufacturing cars in his facilities.

    Then the Minimalists agreed to set up a car race with Henry. Their car design against Henry's, if he won he could build his cars 'legally'. Henry did win, and the rest his history.

    If Henry had lost, America might not have had the manufacturing capacity to help win WWII.

    So in a way, patents almost destroyed America. I'm sure it's not the first time that's happened, and I doubt it will be the last.

    There's no way present day Intellectual Privilege monopolies would agree to settle things with a car race in this day and age.

    Which is a shame, because that probably means present day innovators, like Henry Ford, are probably being snubbed out, and we're losing out as a global society and advancing much slower than we are capable of.

     

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    Mike Masnick (profile), Jul 12th, 2013 @ 10:15am

    Re: Post-innovation

    What the US does have is a history of stealing first, and once the invention works, trying to nail things down tight as a drum.

    Absolutely true, though it's not just the US. If you look historically, the same is true of many innovative places. The increase in IP laws and enforcement *TRAIL* the period of time where actual innovation happens, as the initial copiers have built up a big enough business to seek to block out competitors after the fact.

     

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  4.  
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    Paul (profile), Jul 12th, 2013 @ 10:22am

    Post-innovation

    Also... Bell, Edison, Ford, and other American Inventors were protected by IP laws 100 years or more later after Hamilton.

     

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  5.  
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    Anonymous Coward, Jul 12th, 2013 @ 10:26am

    Re: Post-innovation

    That came later, once the "permission culture" of the country evolved. If you look at the early inventors (one of whom was a founding father), I think Benjamin Franklin summed it up pretty well:

    In order of time, I should have mentioned before, that having, in 1742, invented an open stove for the better warming of rooms, and at the same time saving fuel, as the fresh air admitted was warmed in entering, I made a present of the model to Mr. Robert Grace, one of my early friends, who, having an iron-furnace, found the casting of the plates for these stoves a profitable thing, as they were growing in demand. To promote that demand, I wrote and published a pamphlet, entitled “An Account of the new-invented Pennsylvania Fireplaces; wherein their Construction and Manner of Operation is particularly explained; their Advantages above every other Method of warming Rooms demonstrated; and all Objections that have been raised against the Use of them answered and obviated,” etc. This pamphlet had a good effect. Gov’r. Thomas was so pleas’d with the construction of this stove, as described in it, that he offered to give me a patent for the sole vending of them for a term of years; but I declin’d it from a principle which has ever weighed with me on such occasions, viz., That, as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously.

    An ironmonger in London however, assuming a good deal of my pamphlet, and working it up into his own, and making some small changes in the machine, which rather hurt its operation, got a patent for it there, and made, as I was told, a little fortune by it. And this is not the only instance of patents taken out for my inventions by others, tho’ not always with the same success, which I never contested, as having no desire of profiting by patents myself, and hating disputes. The use of these fireplaces in very many houses, both of this and the neighbouring colonies, has been, and is, a great saving of wood to the inhabitants.

     

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    out_of_the_blue, Jul 12th, 2013 @ 10:46am

    The take is set by the phrase: "adolescent years".

    Because the 14-year-old writers and readers are fixated on adolescence.

    "direct procurement of European technologies through “proper provision and due pains” -- How VERY characteristic for Techdirt pirates! Advocating stealing inventions! -- There's NO argument that stealing can be worthwhile to thieves.

    First, industry and invention today is QUITE a bit more complex than Hamilton knew. You pointy-headed ivory-tower academics keep going back in history where your notions can be "right", but it's useless for present actualities.

    The problem today is that The Rich have already got markets and outlets locked up: what's needed to reform has little to do with "innovation", MUCH to do with pulling down those already successful thieves so that others are left free to actually compete in something like a fair market. -- We need MUCH more anti-trust to break up companies merely because BIG -- Microsoft especially -- and steeply progressive tax rates on unearned income, else the plutocrats continue to gain power.

    By the way, I'm here not necessarily supporting Blackburn, just showing how this take is simplistic and "adolescent".

     

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  7.  
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    Anonymous Coward, Jul 12th, 2013 @ 10:48am

    the chances are, her 'speech' earlier was written by the industries representatives for her to just read out, being one of the most heavily sponsored of the industries lackeys. she couldn't have come up with it herself. why do you think she's a Congresswoman? good with her mouth and useless with her mind, jumps into play here. no one other than a complete idiot or a pais servant could ever state the complete opposite of how the USA was formed. no one who did the slightest bit of research could come to any conclusion, based on the events that took place concerning the movie industry moving to California, other than wanting to use all the inventions of the day without paying a dime to the inventors. once they had managed to bankrupt a few people, much like they do today when they are in the wrong, know they are in the wrong and been proven to be in the wrong, just keep appealing, appealing, appealing, until the 'opposition' runs out of money. the problem with Blackburn and others like her, in powerful positions, they use their positions to give the advantage to the ones that pay them the most, rather than to the ones who are not only right, but deserve to be able to continue their quest for improving whatever they are working on. they never think for one second how, because of the way they aid an ailing industry, they have delayed the advances of the modern technological age and that a lot of those inventions that dont happen could have made a real difference to their lives too. how backwards is that??

     

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    RyanNerd (profile), Jul 12th, 2013 @ 10:50am

    As a software developer I use R&D all the time

    Oh, R&D to a developer means Rob and Duplicate.

     

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    out_of_the_blue, Jul 12th, 2013 @ 10:51am

    Re: Re: Post-innovation

    @ "initial copiers have built up a big enough business to seek to block out competitors after the fact." -- I didn't read this before my comment, but for once you're right. It's iron law of ALL economic systems, at all times and places, that The Rich gain control of markets and then distort them to solely their advantage. We agree there...

    BUT you seem unable to logically follow up what should be done to insure a productive ferment: BREAK UP EXISTING CORPORATIONS and tax the HELL out of The Rich, else they'll continue to use power against any innovative upstarts.

     

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  10.  
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    Ninja (profile), Jul 12th, 2013 @ 10:53am

    That's called hypocrisy.

    The current intellectual property lobby excels at it.

     

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  11.  
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    MacCruiskeen, Jul 12th, 2013 @ 10:55am

    Also, before the signing of the Berne Convention in 1895, US publishers routinely pirated the works of British writers. They would buy copies of the printing plates of popular works from British publishers, but rarely did the authors get any royalties.

     

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    Anonymous Coward, Jul 12th, 2013 @ 10:58am

    Re: The take is set by the phrase: "adolescent years".

    The quickest an way of pulling down the big corporations is to get rid of intellectual property, other than trade mark to identify who made something. This allows the small guy to come into the market, and do a better job of improving products, as small companies are almost always more nimble than big companies.
    This would be self sustaining, because if a company becomes too big and limbering, new small companies will take their markets.

     

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  13.  
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    Ninja (profile), Jul 12th, 2013 @ 11:03am

    Re: Re: Post-innovation

    That, as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously.

    Stamp it in steel plates and mail to the IP maximalists. They are in sore need of being reminded of it.

     

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  14.  
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    Anonymous Coward, Jul 12th, 2013 @ 11:09am

    Re: The take is set by the phrase: "adolescent years".

    I'm curious. If we need anti-trust to break up merely because BIG why is it you think putting all that money and power in the hands of an equally small group would fix anything?

     

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  15.  
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    Anonymous Coward, Jul 12th, 2013 @ 11:12am

    Re: Re: Re: Post-innovation

    There's nothing logical to the proposal that transferring wealth and power from one small group to another small group will fundamentally change anything.

     

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  16.  
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    RD, Jul 12th, 2013 @ 11:29am

    Re: The take is set by the phrase: "adolescent years".

    Shut the fuck up, blue. No one wants to hear your whining. Just because you are a failed creator/inventor/human being doesn't mean YOU are right, and luminaries like Alexander Hamilton and Benjamin Franklin, people who were actually SUCCESSFUL and far wiser than you or I, are wrong.

    Those founders you disparage for being "old" and not in touch with todays-whatever actually BUILT this fucking country, fought for it, bled for it, sacrificed for it, died for it. What have YOU done for it? What do you contribute?

     

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  17.  
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    Baldaur Regis (profile), Jul 12th, 2013 @ 11:37am

    Re: As a software developer I use R&D all the time

    Ah, the more honest version of Microsoft's "Embrace and Extend" policy from the '90s.

     

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    Vidiot (profile), Jul 12th, 2013 @ 11:46am

    Re: Re: Post-innovation

    Franklin's London experience sounds identical to Edison's London experience 150 years later, as he tried to introduce DC generation, power distribution and lighting systems there. In correspondence, Edison whines about the inability to license his ideas... not nearly as high-minded as Franklin... but you sense a kind of oh-well shrug in his complaints; in practice, his own local enterprise became one of the competing players in a free market, and at some level, he seemed all right with that. Even as an old, established magnate years later, you get the feeling that he knew he had to take a stab at policing his IP, but that he understood his own... "collaborative"... past.

     

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  19.  
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    dennis deems (profile), Jul 12th, 2013 @ 11:58am

    Re: Re: Re: Re: Post-innovation

    Not to another small group. To the people.

     

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  20.  
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    Jeffrey Nonken (profile), Jul 12th, 2013 @ 12:39pm

     

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  21.  
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    Anonymous Coward, Jul 12th, 2013 @ 12:39pm

    Re: Re: As a software developer I use R&D all the time

    But without the "Extinguish".

     

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  22.  
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    Jeffrey Nonken (profile), Jul 12th, 2013 @ 12:44pm

    Re:

    Oops. Proofread fail. Sorry. Remove the second "them".

     

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  23.  
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    Anonymous Coward, Jul 12th, 2013 @ 1:05pm

    Re: Re: Re: Re: Re: Post-innovation

    And "the people" usually winds up being a small group of elites in govwerment

     

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  24.  
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    dennis deems (profile), Jul 12th, 2013 @ 1:11pm

    Re: Re: Re: Re: Re: Re: Post-innovation

    Then I guess there's nothing to do but choose the corporation whose colors best suit your complexion.

     

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  25.  
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    JP Jones (profile), Jul 12th, 2013 @ 2:01pm

    Re: The take is set by the phrase: "adolescent years".

    Blue, you are once again operating under a false assumption. Let me make this perfectly clear. It is virtually impossible, by definition, to steal an idea. The only way you could arguably steal an idea is by hearing someone else's idea and promptly murdering them, therefore depriving them of the idea. Otherwise you are simply copying an idea. And "copying" has never, ever meant "stealing". Reality doesn't work that way.

    I don't know any other way to put it. If someone says "Hey, the sky is blue" that's an idea. If I later say the same thing, I haven't stolen anything. They still have their idea, and the sky is still blue.

    This is an uncomfortable truth, because it leads to another uncomfortable truth, which is that the only "rights" people have are those that they are given by others. "Basic human rights" sounds good but don't exist within reality. If, for example, "life" were a basic human right nobody could murder because they have a right to life. Reality disagrees.

    The funny part is you come uncomfortably close to arguing the exact point of most of the articles here on Techdirt while railing at exactly the wrong problem. The reason "The Rich" have the markets locked up is because they can use IP laws to leverage their dominance and compete at the market level using legislation and the judicial system. Since their competition can't afford the costs of lobbying and lawyers they get crushed and "The Rich" stay rich.

    If you want a fair market we need to remove IP, not make it stronger. Keep reading the stuff here...you're so close to the truth, and still so far away.

    Good luck.

     

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  26.  
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    John Fenderson (profile), Jul 12th, 2013 @ 3:12pm

    Re: Re: Re: Re: Re: Re: Post-innovation

    Then it wasn't transferred to the people, so that's not an argument against the notion.

     

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  27.  
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    John Fenderson (profile), Jul 12th, 2013 @ 3:20pm

    Re: Re: The take is set by the phrase: "adolescent years".

    Just a small nitpick...

    the only "rights" people have are those that they are given by others.


    I disagree. "Rights" which are given by others are not rights at all. Rights are inherent. That others may violate them, or that you may not exercise them, does not mean they aren't rights.

    But, outside of the theoretical, I would agree with a modified form of your statement: the only rights people have are those that they take, fight for, and use.

    Or, in other words, the oppressor can only persist with the inherent consent of the oppressed.

     

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    Anonymous Coward, Jul 12th, 2013 @ 5:31pm

    Re: Re: Re: Post-innovation

    tax the HELL out of The Rich

    Sorry, but Mike Masnick's paymasters over at Google are never gonna go along with that.

     

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    Anonymous Coward, Jul 12th, 2013 @ 5:33pm

    Re:

    Yup.

    Yet another example of why it's good to enforce IP laws.

     

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  30.  
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    NaBUru38 (profile), Jul 14th, 2013 @ 5:48pm

    In a "free-market capitalist system", you wouldn't have copyright or patent laws. These restrict some freedoms.

     

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  31.  
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    Anonymous Coward, Jul 16th, 2013 @ 1:58am

    Re: Re: Re: Re: Re: Re: Post-innovation

    yep. happens everyday.

     

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