Dislike: Facebook Sued for Patent Infringement

"Like" button

You can bet Mark Zuckerberg won’t “like” this.

According to BBC, Facebook is being sued for its use of the “Like” button.

It seems that Joannes Jozef Everardus van Der Meer—a quintessential Dutch name if there ever was one—patented a “Like” button for his primitive social networking site Surfbook in 1998.

Van Der Meer passed away in 2004, leaving his patents in the hands of Rembrandt Social Media.

Tom Melsheimer, an attorney for the patent holder, said the following:

We believe Rembrandt’s patents represent an important foundation of social media as we know it, and we expect a judge and jury to reach the same conclusion based on the evidence.

This case highlights the gross absurdities of the idea and system of intellectual “property,” a topic that has come under increased scrutiny as of late, what with the SOPA and PIPA uproar and the infamous battle between Apple and Samsung, in which millions upon millions of dollars were spent on arguments over objects that looked alike.

Even if Facebook got the idea for the “Like” button from Mr. van Der Meer, and even if that were the sole reason for its success (which, of course, is not the case), why must Facebook be forced to get permission or to purchase a license from someone in order to duplicate a concept that was and is a) public knowledge, b) non-scarce, and therefore, c) infinitely replicable?

And if the “Like” button is so foundational, as the aforementioned lawyer claims, then why has nobody ever heard of Surfbook? And more importantly, why has Rembrandt waited so long to file this lawsuit?

The answer to the second question highlights a historical trend that defies a common misconception: Intellectual property does not spur innovation; rather, it is used as a last-ditch effort by companies and industries whose creative energies have shriveled up like an elderly Floridian sunbather. Their final attempt at profit is by using the legal system to gain government-granted privilege—namely, a monopoly.

Situations like this underscore what I like to refer to as “IP association fallacy”—the false the belief that the person who is best suited to create X is also best suited to efficiently produce X.

To be sure, throughout the world, there exist correlations between innovation, economic growth, and the number of patents and copyrights issued. Making an argument for more stringent IP protection on these grounds alone is erroneous, however; as Stephan Kinsella writes:

The argument…assumes that innovation is critical to prosperity and economic development—true enough—and then correlates patents with innovation. But not only is this correlation problematic—not all patents are innovative and not all innovation is patented—but even if patents are correlated with innovation, correlation does not prove causation. It is equally as plausible, in fact more plausible, that innovation persists despite, not because of, a patent system.

Economists Michele Boldrin and David Levine devoted an entire book to discussing myriad cases that exemplify the detrimental effects of IP on consumers, producers, and the economy as whole. In Against Intellectual Monopoly, the duo concludes that “creators’ property rights can be well protected in the absence of ‘intellectual property,’ and that the latter does not increase either innovation or creation. They are an unnecessary evil.”

Neither van Der Meer nor Rembrandt had anything stolen from them or any wrong committed against them. Ideas are infinite and cannot be stolen.

Facebook merely used an idea that was freely accessible to the public and did so in a much grander way. Rembrant was and still is free to use the “Like” button. Everyone should be able to do so.

The propitious effect of the free exchange of ideas—including the copying of them at will—is something we should all “like.”

[The preceding originally appeared in my column, “The Business of Living,” in the Washington Times Communities.]

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