An Argument for Ending Patent Monopolies

Google’s market power traces back to patents. Google has allegedly levered this economic power into politics by slanting its algorithms of search toward Hillary Clinton and away from Donald Trump. Google influences the presentation of political information. Among social media platforms, shadowbanning is another way to influence political discourse. A third way is the outright banning of platforms such as that of Alex Jones.

Reporter Allum Bokhari writes “Facebook claims to have boosted voter turnout by 3 percent in 2016 by making small tweaks to their Against Intellectual P... Stephan N. Kinsella Best Price: $3.21 Buy New $4.99 (as of 12:05 EST - Details) algorithm. And studies have shown that if search engines like Google manipulated their results to favor particular candidates, they could sway up to 40 percent of undecided voters. The author of the same studies estimates that biased search results shifted between 2 and 3 million votes towards Hillary Clinton in 2016. How much more could they shift in 2020?”

Although this quote from Bokhari is convenient for me to cite, I do not accept most of what he says in understanding the problem or as solutions. No Place to Hide: Edwa... Greenwald, Glenn Best Price: $2.00 Buy New $10.79 (as of 12:25 EST - Details)

Bokhari favors government regulation of social media giants. I strongly oppose it, because it means the government will control political speech, a horrible totalitarian outcome.

Bokhari uses the common carrier rationale, for one rationale. This certainly does not apply, because entry is in many ways open (within the patent limitations noted below). He suggests that “alternative distribution channels” do not “help people who are just starting now, at a time when exclusion from social media is increasingly tantamount to exclusion from the public square.” I think Bokhari vastly under-estimates the capacity of start-ups to gain acceptance, and he implicitly fails entirely to grasp the vitality of the venture capital market to finance such start-ups. He also doesn’t realize that if a media giant, such as Facebook, exhibits enough bias such that it loses customers and loses market value, shareholder efforts will arise to alter the company’s leadership and take it over. Boards of Directors and outside holders of the voting shares are not passive.

I do not accept the Supreme Court’s idea that social media are the “modern public square”, which Bokhari also accepts. That notion confuses private and public. That concept treats discourse as a static entity produced by existing institutions. We need not accept that assumption. There are all sorts of dynamics to make political discourse wide open. New social media companies can enter the market. Voters can learn what platforms are biased and act accordingly to adjust what they think and how they vote. Platforms are open to criticism by candidates and others. Furthermore, votes are influenced in ways beyond calculation.

Data and Goliath: The ... Bruce Schneier Best Price: $3.33 Buy New $11.03 (as of 06:05 EST - Details) Bokhari makes a big thing out of the fact that Facebook is not a Christian bakery: “Most will find it obvious that the vast concentration of power in Silicon Valley is a little different from a small-town baker.” That power, he tells us, has caused a number of businesses to fail when Facebook “tweaked its algorithm” in January. What of these failures? Most unfortunate for the people involved, but that’s business. Those companies took a risk by relying on Facebook’s older algorithm and by working within a world in which Facebook and others have secure patent positions. This is a profit-and-loss economy, and there are bound to be losses when expectations fail to pan out. Would Bokhari force Facebook not to make changes that it deems in its own interest if they damage the business of others? That kind of policy is deadly to free markets and partially-free markets such as we have.

It’s true that Facebook is not a bakery. It’s also true that an elephant is not a flea. The latter two animals are both alive and share the essentials that give life. The bakery and Facebook share the essential that the initiation of violence is wrong. This is where the analysis needs to focus. By what means do the business decisions of the social media and tech giants initiate violence? One key area is that of patents. Patents make entry more difficult, sometimes impossible. Instead of regulating the giants, as Bokhari suggests, what we need is to de-regulate them, by removing patent protection. It’s wrong to grant government-enforced monopolies that prevent others from using their property as they see fit.

Many companies are now giants and many rely on patent protections. Many lobby Congress. Many make political contributions. They are levering their patent protections into undue political influence on top of their undue economic influence. To help mitigate these influences, ending patent protection will help. This is an argument in addition to other arguments about intellectual property. The suggestion here is that certain costs have been under-recognized or left out of consideration. First are the costs of further government regulation that limit speech. Second are the costs of political corruption.