The Final Convergence
Intellectual property (IP) was a noble experiment, and it may have been the cause of some of the growth and development we have enjoyed in the last century or two. But its days are now numbered. The end of IP is written into the structure of an ongoing technical and scientific revolution. Nanowares will be the final merger of numerous seemingly disparate technologies into a single, overarching technological infrastructure. This revolution, when fully realized, will alter our fundamental relations among each other, to the products of our creativity, and to the ‘natural’ world. No longer will many of the forces that have driven prices in markets function as they have. Scarcity, in the best version of the nanoware future, will cease. This future is being prepared for by many who are trying to develop it.
I have been trying to make a case, ever since I first examined the nature of cyberspatial goods, that IP regimes do not reflect reality well, and that they can and should be altered (or abolished) to serve our needs, and to better embody both logic and pragmatic ends. The technology is revealing that our preconceptions about the nature of our technical artifacts, as applied through existing IP regimes, are fundamentally flawed. The case is being made for us by both the inadequacy of current legal norms to deal with emerging technologies and the recognition of innovators, who now consciously skirt those regimes, and are instituting and embracing new means to promote and to protect innovation. If we are to pave the way for the full, beneficial, and equitable realization of nanowares, then we must finally declare IP as we know it to be dead, and move on. Let's review what our examination has revealed, and explain why the death of IP means opening a new door for the future of technological and scientific progress and economic prosperity if properly navigated.
Nanowares: What Are They, Really?
I have attempted to use a single word to connect several different paths of current technological approaches to the same goal. The sciences have been pushing technology inevitably toward a convergence, as the fundamental goals of science – better understanding, prediction, and control of nature – have been leading to the development of the technologies that underlie nanowares. The emergence of essentially programmable physical goods will complete the development of two major tracks of technological development. On the one hand, computerization and information and communication technologies (ICT) have involved ever-increasing abilities to manipulate information, and on the other hand, better, more precise, and miniaturized manipulation of the physical world (necessitated in many ways by the underlying technologies of ICT) has involved ever-increasing control over our manufactures or artifacts. The convergence of information technologies and manufacturing means fundamentally rethinking our connection to our artifacts, as discussed in the chapters above.
One exciting feature of these converging technologies is how they are finally converging. I have specifically included in the analysis of nanowares technologies that are clearly not nanotechnology. There are two reasons for including in discussions about nanotech and innovation the grassroots development of localized or microfabrication technologies. The first is that those who are behind the emergence of these technologies have their theoretical roots in nanotech. The second is that the tools and infrastructures that they are developing capture many of the same issues as those that will be presented by the full realization of molecular nanotechnology (MNT). The goals of enabling the complete accessibility of all potential means of production, and of liberating fully human creativity from the traditional demands of capital, are implicit in the Fab Lab, RepRap (and other) micro-manufacturing efforts, and will be the ultimate inevitable result of true MNT. Because I (and others) see both streams of development as meeting at some future point, and motivated by the same ultimate goals, a single term ‘nanowares’ has been used throughout this argument.
We should treat all of these emerging and converging technologies as a kind, and look for ways we can precipitate their smooth arrival and realize their full potential. Ultimately, I do not think there is any real danger that governments or others who foolishly seek to keep alive current IP paradigms, and extend them to nanowares, can succeed. In fact, it is encouraging that while some of us try to justify the theoretical underpinnings of a movement, the movement itself marches inexorably onward, propelled by the general acceptance of its tenets. IP has been breaking down for some time as a result of half of the two-track movement toward true MNT. Even as the patent profession (really, the patent industry, in which patent lawyers, courts, and other related professionals are assured of profits by the mere filing and litigation of patents) seeks to bolster their floundering field against the tide of radical change brought about by ICT, those who are innovating in software have learned how to work around the legal impediments to innovation, and work out among themselves a more just spectrum of rights and expectations. This is happening as well in nanowares. It is part of the nature of the technology that openness and free markets will drive innovation in the field, and it moves those working in it at least away from excessive upstream patenting, and at most, toward open source paradigms.
In both the grassroots nanowares approaches to microfabrication (including desktop fabrication) and in the realm of synthetic biology, where bio-bricks approaches ensure free and open access to the foundational research and components, researchers and innovators alike are taking matters into their own hands and preventing patents from impeding these emerging sciences. The same trend motivated both industry and individuals to disclose rather than enclose genes in the race to decode the human genome and thereafter. Nanowares are thus part of a spectrum, and the continuation of a trend. The patent industry will grow louder, and look to governments to secure their domains, even as those who are doing much of the work in both the science and innovation work steadily to keep this expanding domain open.
In many ways, this book is not a call for action, but rather an attempt to theoretically explain trends that will occur anyway. It is descriptive rather than normative. Nanowares will be open, eventually, and IP will continue to break down, with or without philosophers making the case that it should. But some remain unconvinced, and innovators and scientists are still at the mercy of states, as well as market forces, that sometimes work at cross-purposes, and that are often impelled by habit rather than reason to continue to support dying methods and ideologies. Even while I am certain that the seeds of revolutionary change in our thinking about the natures of artifacts are embedded in the technology itself, we should be mindful of the pernicious ability of those whose domains are threatened, even by the inevitable, to attempt to secure their monopolies.
I have argued throughout my informal IP trilogy that where institutions or norms conflict with grounded principles of justice, we must seek justice. This is an ethical argument, and suggests that the forces I describe, and which are moving technology and science, are good, and that attempts to impede that development are the opposite. You may well accept the trends I have described, their economic efficiency, their inevitability, and their benefits for innovation without accepting the ontological and ethical arguments that pervade this text, but I have tried to point out the shortcomings of mere utility as a foundation for action. Let's look briefly at why ethics and justice ought to finally motivate us to embrace nanoware without IP, and why ethical foundations ought to be part of our thinking in science and technology in general. There are sound historical reasons to believe that some things are better than others, not just instrumentally, but also fundamentally.
Ethics and Innovation
If science and technology never had any impact on rights or duties, and if IP law did not impede some of those rights and duties, then philosophers could avoid confronting the ethical issues raised by new technologies like nanowares. But each new technology presents us with a range of new considerations regarding the rights of scientists, innovators, and the public, and the proper role of states in ensuring justice. It is a modern trend to incorporate earlier in the development of new technologies ethical considerations that are anticipated to pose impediments or lead to harms. As discussed above, most of the discussion regarding nanowares has focused upon potential harms posed in the realm of safety, security, public risks, and environmental impacts. All of this inquiry is warranted, given the experiences of harmful technologies in the past, and we have delved into them briefly above. But the argument I have been making in this text focuses primarily on IP, and how the current IP regime threatens the development of the technology itself. While I am mindful of, and concerned about, potential physical harms arising from nanowares, and indeed support inquiry into the general ethical duties of researchers and innovators in avoiding those sorts of harms, I am most concerned with the implications for justice arising from the application of current IP norms to this and other technologies.
We are not, as individuals, entitled to the fruits of innovation. I do not think there is a duty, either, for anyone to innovate. Nor do I think that justice requires the free dissemination of physical goods that result from innovation to either the needy or the wealthy. But I do think that states ought not to impede either individual human creativity or markets for the fruits of that creativity. There may well be individual, moral duties to contribute to society, and to not harm others consistent with Mill's oft-spoken about (and incorporated herein) ‘harm principle.’ I would certainly encourage innovators to innovate, to share the fruits of their innovation openly, and to enable others to improve upon their own innovations. Doing so would certainly be what ethicists consider to be supererogatory goods, or praiseworthy (morally speaking). But this is not an argument for achieving some moral utopia through adopting socialist principles such as the famous maxim: ‘to each according to their needs, from each according to their ability.’ Instead, it is a call to let markets sort out prices, free from state interference, and to allow human creativity to thrive without creating artificial barriers in the form of state-sanctioned monopolies.
I do not mean to imply that an utterly free market in innovation will result universally in ‘the good,’ ethically speaking. Rather, it is clear from history that people will do bad things, intentionally or unintentionally, and that states have sometimes tried to step in to rectify harms in some cases, and succeeded sometimes. The law and the state have played roles in marshaling public resources to great good in the past, and have in fact helped us to achieve our current level of innovation and wealth through various means, including through the allocation of resources to both science and industry. It is not per se unethical that we should make such democratic choices about allocation, control, regulation, or preference where those choices are truly democratic, and where harms might be avoided with certainty. Neither is it per se necessary that states do any of these. Looking at past examples, as we have a bit throughout the above argument, there are clear instances of state failures, in both allowing for and in some cases precipitating harms. Moreover, there is an even clearer history of state error in its actions regarding markets. There is as yet no good evidence that attempts to influence markets, especially in the development and dissemination of new technologies, are necessarily successful. Such attempts are also arguably bad, in a moral sense, when they involve impediments of natural rights (to life, liberty, or property, for instance). I believe that nanotechnology presents us with an important choice, and that many who are involved in this nascent field have already made that choice. The choice is: Do we wish to adopt failed IP policies in nanowares, or pursue new paths to liberate both the science and its development through technology?
We have other choices to make as well. For instance, should we pursue informal policies, or create institutions that help us to track dangerous materials, precursors, or final products that enter the stream of commerce? Are there some sorts of technologies that need to incorporate limitations, for instance on the potential negative consequences of unhindered self-replication? Should scientists and innovators choose to abide by certain ethical principles in general? All of these choices have ethical implications. The common thread of everything I have tried to demonstrate, and the overarching thesis of this book, is that it is the nature of each of the above as choices that is most important.
Continue reading (Long Read) - The Final Convergence: Innovation and Nanotechnology: Converging Technologies and the End of Intellectual Property