Stephanie Meyer's best selling Twilight Series has become "the first social networking best seller."

Her readers have created a new Twilight world on the web, which has served as an alternative marketing tool for her books. Sales of other books such as Freakonomics and The Last Lecture have benefitted the same way.

Unlike the billionaire fiction writer J.K. Rowling, who sued a young French writer of a Harry Potter Lexicon for copyright "infringement," Stephanie Meyer has basked in the glow of the Twilight Lexicon, created by her fan Lori Joffs. Ms. Meyer's main problem now is that she's too busy to keep up with all the Twilight-related stuff, and too busy (and grateful) to sue anyone.

Fan fiction continues to spawn new genres. So it's not surprising that the copyright lawyer Rebecca Tushnet wants to bring it out of the shadows and make it part of "fair use." Ms. Tushnet, although I'm sure you're well intentioned, please don't do it. If you want to do something useful, join the abolitionists and argue against copyright.

And note that Star Trek creator Gene Roddenberry ignored fan fiction, and the Star Trek fan base (and his income) grew by leaps and bounds.

An Open Letter to Leftist Opponents of Intellectual Property: On IP and the Support of the State

We libertarian opponents of IP sometimes perplex IP advocates and leftists. There's an analogy here to the way libertarians, and especially anarcho-libertarians, are treated by mainstreamers. The press does not know what to do with libertarians, for example. They typically use "libertarian" to denote civil-libertarian ACLU types; while libertarian thinkers and institutions are often described as "conservative." And "anarchy" is usually associated with chaos, bomb-throwing, or leftist anarchists--rather than with anarcho-libertarianism, which is the only genuine form of anarchism. (See my What It Means To Be an Anarcho-Capitalist.)

There is a common assumption in society that "intellectual property" is a legitimate type of private property right. Thus socialists and leftists oppose IP because of their hostility to private property rights, capitalism, corporatism, and industrialism. Thus, many IP opponents are leftist, anti-capitalist types (for example, Richard Stallman and Eben Moglen are, IIRC, at least somewhat leftist [if I am mistaken in this, I stand corrected; in any event I would welcome email providing backup of this, or examples of other leftist anti-IP arguments).

Likewise, many libertarians accept the fallacious notion that IP is a type of property, and thus support IP because they support property (and because many well-known libertarians, such as Ayn Rand, were strong advocates of IP).

Conversely, those who innately or independently oppose IP, are often classified as leftists, or even believe themselves to be leftists (I believe a similar phenomenon explains why the press tend to be left; they naturally tend to be pro-freedom of speech and freedom of press, but accept the mainstream dichotomy that if you are for personal liberties, you are against economic liberties, and vice-versa; they do not understand that economic and personal liberties are essential and complement each other).

The truth is that the only principled case against IP is the libertarian one, as I've argued in my Against Intellectual Property. The problem with IP is that it undermines and infringes on private property rights: it lets some person gain rights of control over the property already owned and acquired by others (for example, a patent or copyright gives the holder a veto right over certain uses others might put their own property (their bodies, paper, raw materials) to). To oppose IP is to uphold private property rights--libertarian rights. To oppose IP while also supporting socialism is a confusion.

And more than this. IP is not possible without legislation; legislation is not possible without the state. And conversely: with a state, you always get legislation; and legislation always leads to a proliferation of bad laws (see my Legislation and the Discovery of Law in a Free Society).

What this means is that not only is your case against IP weakened if you do not adopt libertarian principles and reasoning to undergird it. But if you support the state at all--if you are not an anarcho-libertarian--then you do not really oppose IP. If the state exists, it will legislate, and it will probably enact IP laws, along with plenty of other bad laws. So, if you support the state, you really can't complain about IP laws. As Ludwig von Mises pointed out, "No socialist author ever gave a thought to the possibility that the abstract entity which he wants to vest with unlimited power—whether it is called humanity, society, nation, state, or government—could act in a way of which he himself disapproves."

IP opponents must not oppose only the "worst excesses" of IP. They must oppose all IP, root and branch, on principled, pro-private property, grounds; and more than this: they must oppose the state itself, and legislation as a means of making law.

So shape up, non-libertarian IP opponents. If you want to make a real case against IP, you must ground it in sound political principles. For some suggested reading, see:

• Hans-Hermann Hoppe, Anarcho-Capitalism: An Annotated Bibliography, LewRockwell.com, Dec. 31, 2001
• David Gordon, Books on Liberty, LewRockwell.com, March 15, 2001
• Llewellyn H. Rockwell, Jr., Reading for Liberty, LewRockwell.com, June 9, 2003
• Stephan Kinsella, The Greatest Libertarian Books, LewRockwell.com, August 7, 2006

(Cross-posted at Mises Blog)

As reported by copyright lawyer William Patry in a comment on his blog:

"... I would like to ... point[] to an amazing new UK historical resource. ... the project in the UK House of Commons to digitize (or as they say digitise) Hansard, the official record of the House of Commons, for the period 1803 to 2005. I have already used it and found great discussions of copyright issues, including the term of protection, as early as 1803.

In Against the artificial scarcity of IP law, Michel Bauwens has a nice summary of some of my own arguments against IP.

William Patry has ended The Patry Copyright Blog, and detailed his reasons for doing so.

His blog will be missed by all his readers, both copyright professionals and us amateurs. His copyright legal acumen, learning, and scholarship were second to none, and on full display in his seven-volume treatise Patry on Copyright, as well as in his blog.

In the last statement at his blog, he notes the depressing nature of the current state of copyright law. Of course it is depressing, but not just because of the reasons he sets forth.

Copyright law, in common with all "intellectual property[,] is a cancer," as Michele Boldrin and David K. Levine put it in Against Intellectual Monopoly, p. 264. Like all cancers, it has a tendency to metastasize and grow. It ultimately threatens the life of its host. Even short of killing, it can make life unpleasant, as it did for a young Chinese computer scientist, who was jailed for "infringing" a copyright last year. I don't recall William Patry speaking out against the violation of his liberty, but this blog did. Boldrin and Levine also discuss this issue at length. I can't recall one defender of the monopoly formerly known as intellectual property (or copyright) ever even taking note of the contradiction between liberty and "IP."

He notes that:

Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately.

Although his point about copyright's preservation of failed business models and technologies is correct, I must respectfully dissent from his view that its reason for being is "to encourage learning and the creation of new works." Copyright, like its older sibling patent, was born in an unholy alliance of kings and rent seekers, and is all about statism and rent-seeking, not creation and innovation. (N.B. William Patry disagrees with this and wrote about it at his blog.) Unfortunately, he has removed his archives, so it's impossible to read his blog on this subject.

Finally, his statement that

In order to encourage open discussion I permitted not only comments but anonymous and pseudonymous comments. I did that because I wanted to encourage the largest number of people to participate, and after four years I believe that was the right decision

is a bit disingenuous, as Crosbie Fitch and I would both attest to, having both had (non-crazy) comments he disagreed with removed.

The legal arcana was a bit heavy going, and of more interest to copyright lawyers. I will miss his blog more for its historical scholarship and erudition, as well as its occasional bursts of humor. I might not have discovered authors such as Ronan Deazley otherwise, to name one.

My 2001 article is now out in book form: Against Intellectual Property (Mises Institute, 2008). Of course, the Mises Institute offers a free PDF version online as well. And there is also a Scribd version.

Those interested in this might also find my article "There's No Such Thing as a Free Patent" of interest, plus my Austrian Scholars Conference 2008 Rothbard Memorial Lecture, "The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism" (originally titled "Rethinking IP Completely"), which is online. Here's the audio, the video, and the accompanying Powerpoint presentation (PPT, 32 MB; PDF version, 51 MB). The Google Video version is now available; embedded version below.

These and other material are available on my website.

The August 1 edition of the Wall Street Journal reports that organizers of competitions involving animals, robots, and even body parts have been changing their names to avoid "infringing" the trademarked name "Olympics."

The Ferret Olympics is now the Ferret Agility Trials; the Raw Olympics and Rawlympics are now the Raw Games.

America's only native criminal class (i.e., Congress) passed a statute in 1978 giving the U.S. Olympic Committee a monopoly on the word "Olympic" and a few other words. This was buttressed by a 1987 SCOTUS ruling.

The USOC is trying to prevent "ambush marketing." Its lawyers think that people organizing races by ferrets and such will undermine its profitability. If ever there were an example of what Ludwig von Mises called the Montaigne fallacy (seeing the market as a zero-sum game with someone's profits causing someone else's losses), this is it.

From time to time word has leaked out about the negotiations on ACTA, the European, US, and Japanese joint proposal on an international copyright and patent agreement. If you think agreement is a great idea, that makes sense. The problem is that its terms will apparently extend the reach of restrictions in ways that reflect special interests and totally ignore the development of technology's effect on business models in ways which foster innovation--the whole point of patents and copyright.

Till now, our government has been cosy about the terms of its draft agreement. But somebody squealed and the terms are spelled out at Wikileaks link here. Go read. Fortunately, nothing is likely to happen till after the new administration has taken over.

Techdirt notes in CAFC Judge Regrets Decisions That Resulted In Software Patents that one of the federal judges on the Court of Appeals for the Federal Circuit admits that he was "troubled by the unintended consequences" of the earlier decisions that resulted in the proliferation of software and business model patents. Well at least he regrets it!

Now libertarian proponents of state legal systems are for some reason optimistic about the ability of state legislature and courts to promulgate just laws. Objectivist attorney Murray Franck , for example, wrote:

Just as the common law evolved to recognize "trespass by barbecue smoke," it would have evolved to recognize property in the airwaves and in intellectual creations. But even if it could be established somehow that the common law would never have recognized intellectual property rights, this would not be an argument against such rights. The common law often requires legislation to correct it (for example, in recognizing the rights of women). Indeed it is a myth that the common law evolves to reflect, and that legislation always is in conflict with, the requirements of human nature. The same minds that employ induction and deduction to decide a particular case, making common law, can employ those methods to legislate universal laws.

Hayek also believed that case-law might need occasional "correction" by the legislature (see my Legislation and the Discovery of Law in a Free Society, p. 171). Both Franck and Hayek here express confidence that it is possible for the state--via its courts and legislatures--to issue "just" law. Well, I don't know about that. Here we have a "bad" judicial interpretation of a "bad" legislated statute. Oh, well, I guess they can at least "regret" it.

(Cross-posted at Mises blog.)

There is an interesting op-ed in today's New York Times by Tim Wu warning of the dangers of allowing one or two large telecoms to control the bandwidth of the internet. He then goes on to argue that reforming the rules for allocating spectrum could enhance the competition the wire-based telecoms face by allowing competitive innovation in the provision of wi-fi service.

While the point about the need for regulatory reform in the way the spectrum is allocated is well-taken, what the piece fails to address is the whole debate over net neutrality and whether the large telecoms should be declared common carriers subject to the fair access rules that govern how truck lines and freight trains operate in the market.

Wu's analogy of the telecom monopoly/duopoly to OPEC is reasonable, but OPEC is an international cartel that is beyond the reach of any particular nation's antitrust laws. AT&T, Verizon and Comcast aren't, and I would hope that with the passing of the Bush administration, our government would get serious about the need to regulate these monopolies. Enhanced competition is obviously a good thing, but given that the telecoms have been successful in preventing cities (Philadelphia comes to mind) from putting up their own public wi-fi services, the playing field would hardly be level even if the FCC managed to come up with a good set of policies for allocating the spectrum. And, given the lobbying clout of the telecoms, my guess is that good publicly-oriented policies won't have much of a chance unless the Justice Department is standing behind the FCC waving the big antitrust stick.