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Fortune's Don't ice me, bro! When memes meet the marketplace relates the battle by Vodka peddler Smirnoff against fans of its Smirnoff Ice beverage. Apparently it had become popular with "Bros"--"a college-age person ... They like to hang out. A lot of them drink beer and wear backwards baseball caps. A lot of them drive SUVs and listen to Dave Matthews Band"--well, until Smirnoff sued them, I guess. Some frat-boy antics arose where these kids of privilege and no rhythm would "ice" each other--basically daring or challenging or pranking each other to drink a Smirnoff Ice. Then someone set up fan site brosicingbros.com, with pictures etc. of people "Icing" each other.
Good PR for Smirnoff, right? Well apparently Smirnoff didn't think so, so they threatened the site with a copyright and trademark lawsuit, so it was taken down. The case by Smirnoff is taken apart in Bros Icing Bros - A Case for Copyright Bullying by Overreacting Smirnoff Lawyers by legal non-profit called NewMediaRights, which heroically provides "free legal assistance to bloggers, journalists, and filmmakers getting bullied by companies into taking down their websites."
Over the last 20 years, the United States Patent and Trademark Office has been issuing patents to universities and private companies on raw human genes. One company or university is given a legal monopoly over a molecule that is inside every human being and many other animals. This documentary explores the legal, ethical, and clinical ramifications of human gene patenting.
And, in the words of Groundhog Day's Ned Ryerson, "It's a doosy".
As noted previously (see Stop the ACTA (Anti-Counterfeiting Trade Agreement)), this treaty was being negotiated in secret and is an attempt to extend the reach of the west's horrible and draconian IP (patent and copyright) regimes to other countries. As I noted, the
ACTA is also similar to another arcane law, the Digital Millennium Copyright Act (DMCA), which, under the guise of protecting "property rights," snuck in provisions that criminalize even the mere possession of technology that can be used to circumvent digital protection systems (see, e.g., my post TI Uses Copyright Law to Attack TI Calculator Enthusiasts). Likewise, under the guise or protecting property rights in inventions and artistic works (patent and copyright), it "seeks to provide legal authority for the surveillance of Internet file transfers and searches of personal property". As one group notes, "ACTA goes way, way beyond the TRIPS (the copyright/patent/trademark stuff in the World Trade Organization agreement), creating an entirely new realm of liability for people who provide services on the net". More invasion of personal liberty and property rights in the name of false, artificial property rights.
The draft text has now been released, under pressure from the European Parliament (see Declan McCullagh's post, ACTA treaty aims to deputize ISPs on copyrights; see aslo Michael Geist's analysis of the draft text). As I suspected, the text (available here) reveals, as McCullagh notes, that ACTA "seek[s] to export controversial chunks of U.S. copyright law to the rest of the world," such as the DMCA's "'anti-circumvention' section, which makes it illegal to bypass copy protection even to back up a Blu-Ray disc" (see, e.g., my post TI Uses Copyright Law to Attack TI Calculator Enthusiasts). This is a horrible US law that was snuck in the DMCA that may now become part of other countries' laws. It prohibits not only copyright infringement but also makes it illegal to sell devices that could be used to circumvent encryption of DRM'd information.
Now, the DMCA also contained a "safe harbor" for ISPs that probably would not pass now (since it gave ISPs an exemption for liability that turned out to be broader than initially realized when the DMCA was enacted in the 1990s). I was concerned that ACTA would contain the anti-circumvention provisions but not the ISP safe-harbor rules--but some version of this does, at least, seem to be contemplated in the ACTA text (see pp. 20-21).
In any case, this horrible treaty needs to be stopped.
This is an amazing animation by Nina Paley, "America's Best-Loved Unknown Cartoonist" (and creator of the amazing animated (and free online) film Sita Sings the Blues, given rave reviews including 4 stars by Roger Ebert). Entitled "All Creative Work Is Derivative" (and blogged here on her blog), and concluding "All creative work builds on what came before," the video is built from images of of statues and paintings at the Metropolitan Museum of Art in New York. As she explains on All Creative Work Is Derivative (Minute Meme #2),
The whole history of human culture evolves through copying, making tiny transformations (sometimes called "errors") with each replication. Copying is the engine of cultural progress. It is not "stealing." It is, in fact, quite beautiful, and leads to a cultural diversity that inspires awe.
I learned of Nina's work when she sent me a nice email, an edited version of which follows:
I especially enjoyed your unique twist on Trademark, that trademark suits should be brought by consumers against frauds, rather than by trademark "owners." I haven't thought it all through to form my own solid opinion yet, but I like the novel approach.
As noted here, "Ayn Rand's newsletters used to end with a "Horror File" of monstrous but true quotations."
Along those lines, it's time to collect some choice trademark horror stories in one place. The main post will be here, on the Mises Blog, but I'll cross-post the initial post here too. But look there for updates (or to add suggestions in the comments). (Update: I have modified this post to also include outrageous examples from patent, copyright, and trade secret law. See below.)
But even if federal trademark law were abolished, as well as modern extensions such as rights against trademark dilution, even common law trademark is problematic, for three primary reasons. First, it is enforced by the state, which gets everything wrong. Second (see First), the test of "consumer confusion" is usually applied ridiculously, treating consumers like indiscriminating idiots. Third, and worst of all, the right at issue is the right of the defrauded consumer, not the competitor. Trademark law ought to be reformed by abolishing the right of trademark "owners" to sue "infringers" (except perhaps as proxy for customers, when consent can be presumed or proved--as I discuss in this interview: Free Talk Live Interview on Reducing IP Costs (Jan. 20, 2010)), and treating this as a case of the customer's right to sue a vendor who defrauds him as to the nature of the good purchased. Some might argue that this is only a minor change, but it is not: such a change would make it clear that "knockoffs" are usually not a violation of anyone's rights: the buyer of a $10 "Rolex" is almost never defrauded--he knows what he's getting. Yet by giving an enforceable trademark right to the user of a mark, he can sue knockoff companies even though their customers are not defrauded and in fact are perfectly happy to buy the knockoff products.
The other fallacy is the view at work here that there is no such thing as reputation, or even identity, absent trademark law. But this is incorrect. Of course people and firms can have reputations even if trademark law is nonexistent. All that is required is that people be able to identify other people and firms, and communicate. Pro-trademark arguments often implicitly assume that this is not possible, absent state-enforced trademark law, which is ridiculous.
In any event, on to a collection of trademark outrages for the horror files (some of these are also listed in Reducing the Cost of IP Law):
The attempt of Dustin Stamper, Bush's Top Economist, to secure a patent regarding an application for a System And Method For Multi-State Tax Analysis, which claims "a method, comprising: creating one or more alternate entity structures based on a base entity structure, the base entity structure comprising one or more entities; determining a tax liability for each alternate entity structure and the base entity structure; and generating a result based on comparing each of the determined tax liabilities";
Compton's (now Encyclopedia Britannica's) patent that "broadly cover[s] any multimedia database allowing users to simultaneously search for text, graphics, and sounds basic features found in virtually every multimedia product on the market";
Carfax's patent on a "method for perusing selected vehicles having a clean title history";
The Supreme Court, in the 1882 case Atlantic Works v. Brady, 107 US 192, itself lists examples of patents issued to "gadgets that obviously have had no place in the constitutional scheme of advancing scientific knowledge the simplest of devices." These included
a particular doorknob made of clay rather than metal or wood, where differently shaped doorknobs had previously been made of clay;
making collars of parchment paper where linen paper and linen had previously been used;
a method for preserving fish by freezing them in a container that operates in the same manner as an ice-cream freezer.
rubber caps put on wood pencils to serve as erasers;
inserting a piece of rubber in a slot in the end of a wood pencil to serve as an eraser;
a stamp for impressing initials in the side of a plug of tobacco;
a hose reel of large diameter so that water may flow through the hose while it is wound on the reel;
putting rollers on a machine to make it movable;
using flat cord instead of round cord for the loop at the end of suspenders;
placing rubber hand grips on bicycle handlebars;
an oval rather than cylindrical toilet paper roll, to facilitate tearing off strips.
Below are a few notable or recent examples of large, significant, troubling, or apparently outrageous injunctions, damages awards, and the like:
Texas-Sized Patent Win, Texas Lawyer (Feb. 21, 2008). A New Jersey doctor was awarded $432 Million as a "reasonable royalty" against Boston Scientific for infringing his "Method and Apparatus for Managing Macromolecular Distribution."
Apple, Starbucks Sued over Custom Music Gift Cards, AppleInsider (Feb. 20, 2008) A Utah couple sue Apple and Starbucks over their "'Song of the Day' promotion, which offers Starbucks customers a iTunes gift card for a complimentary, pre-selected song download." The suit is based on a patent on a "retail point of sale for online merchandising" which allows customers to buy a gift card from a brick-and-mortar store and then go home and redeem the card online.
SanDisk Sues 25 Companies for Patent Infringement: "Suits have been filed against 25 companies by the SanDisk corporation this week, as the company looks to stop businesses from shipping products it alleges are infringing on its work. SanDisk has filed suits against everyone from MP3 player manufacturers to USB hard drive creators. The list of defendants is staggering, and MacWorld notes if Sandisk succeeds it could have repercussions outside of the courtroom. The court complaints could affect the prices and availability of products made by companies targeted in the suit if SanDisk wins and the companies are barred from importing products into the U.S."
The International Trade Commission (ITC) may ban imports of many popular hard drives that "are alleged to infringe on patents owned by California residents Steven and Mary Reiber related to a 'Dissipative ceramic bonding tool tip.'" Jacqui Cheng, Hard Times for Hard Drives: US May Ban Popular Imports, ars technica (Oct. 11, 2007).
The VoIP phone service Vonage may be put out of business by patents. Sprint recently won a patent case against Vonage in which $69.5 million was awarded in damages. Sprint had planned "to ask the court to permanently ban Vonage from using its patented technology," but the case was subsequently settled for $80 million. However, in a separate patent lawsuit between Verizon and Vonage, the jury found that Vonage had violated three Verizon patents, and awarded Verizon $58 million in damages plus ongoing royalties. Vonage claims it has developed workarounds for two of the patents. See Kim Hart, Sprint Wins Patent Case Against Vonage: Reston Firm Awarded $69.5 Million in Second Blow to Internet Phone Company, Washington Post (Sept. 26, 2007); Peter Svensson, Vonage Settles Patent Suit with Sprint,BusinessWeek (Oct. 8, 2007). Latest: Vonage Settles with Verizon, Owes Up to $117.5 Million; Vonage, Nortel Call a Truce No Cash Changing Hands, engadget (Dec. 31, 2007).
BlackBerry's manufacturer, RIM, was forced to cough up $612.5 million after NTP used patent law to threaten to shut RIM down.
Microsoft was on the receiving end of a $1.5 billion jury verdict for infringing an MP3 patent held by Alcatel-Lucent (which was recently overturned).
After Kodak sought more than $1 billion in damages from Sun Microsystems for patent infringement, Kodak finally settled for $92 million. (And according to one colleague, the verdict resulted "in the immediate shutdown of Kodak's entire instant photography division, with the immediate loss of 800 jobs. And, some say, the eventual failure of Polaroid due to lack of any real competition to keep them on their toes!")
In another recent case, Freedom Wireless obtained a $150 million damages award against Boston Communications Group, Inc., which at the time had revenues of only about $100 million. In this case, the judge also refused to stay the injunction issues against BCGI (and by extension, its customers) pending appeal.
Smith International was forced to pay Hughes Tool Company $204.8 million for infringement upon Hughes's patent for an "O-ring seal" rock bit, which led to Smith filing for chapter 11 bankruptcy protection (this was in 1986, when $200 million was considered a large patent verdict).
As of March 2003, the top 5 patent infringement damage awards ranged from $873 million (Polaroid v. Kodak, 1991) to $204.8 million (Hughes Tool v. Smith International, 1986). The top 5 patent settlements ranged from $1 billion to $300 million. Damage Awards and Settlements, IP Today (March 2003); see also Gregory Aharonian, Patent/Copyright Infringement Lawsuits/Licensing Awards. Sadly, a $200 million verdict seems normal nowadays. The recent $156 million patent-infringement verdict against AT&T, for example which could possibly be trebled by the judge now looks like small potatoes.
Internet pirates could be banned from web, Telegraph (Feb. 12, 2008) (British proposal to punish individuals who illegally download music by banning them from the Internet); John Tehranian, Infringement Nation: Copyright Reform and the Law/Norm Gap, Utah L. Rev. (forthcoming; SSRN);
by Invention Submission Corporation (dba Invent Help) in the United States Federal District Court for the Northern District of New York. The complaint ... alleges that I have engaged in false and misleading advertising that has cost Invent Help business. They apparently do not like the fact that I have written about invention submission scams and have recounted the many stories that I have heard from inventors who feel they have been taken advantage of by Invent Help.
Quinn is a notorious (but inarticulate and inept) defender of the patent system; see Gene Quinn: Patent Twit of the Week; Koepsell - Quinn "Debate" on Gene Patents; Gene Quinn the Patent Watchdog; Patent Lawyers Who Don't Toe the Line Should Be Punished!. Still, it's sad to see him victimized by someone using an unjust law--these laws are basically types of IP laws, in that they are in effect based on rights in reputations. Reputation rights are not usually classified as IP rights, but they are similarly unjust, and similarly based on the idea that if you "create" "something" "of value," then you should own it--patents cover created inventions, copyright covers created works of art, and a variety of laws (trademark, defamation, misleading advertising) protect rights in one's reputation, which one is said to have "created" as well. Quinn favors people having the right to use the state courts to sue and damage people based on artificial intellectual "rights." And that's what's being done to him now.
The South Butt is the local case of a Missouri teeanager, Jimmy Winkelmann, frustrated with his classmates' sheep-like following of a popular clothing line. Jimmy came up with his own parody apparel and now faces a lawsuit for trademark infringement.
The North Face filed the lawsuit, claiming that The South Butt is confusingly similar to The North Face, in violation of North Face's trademark rights.
Now Jimmy has filed a biting and hilarious response. In the response, he mocks The North Face, its products and customers (para. 23, II.5-7), its hypocrisy (North Face's owner, VF corporation, "formerly known as Vanity Fair Corporation, not to be confused with the Conde Naste publication of the same name), and its contentions that the public can't tell a butt from a face, calls them "socialist" (para. 37) and bully-like (para. III.2), trumpets "freedom of speech," "the American Way," and the "pursuit of the American Dream" (para. III.2), thanks The North Face for the free publicity (para. 50), and he mentions that he "has initiated an Internet challenge through Facebook designed to hone the skills of the general purchasing public to discern the difference between a face and a butt" (see North Face Lawsuit Against South Butt Going Viral With Facebook App).
Good for Jimmy, and here's hoping he triumphs--though, unfortunately, the trademark cause of action known as "dilution" does not require a showing of consumer confusion, as noted on the Patently-O blog. This is yet another reason why not only patent and copyright law have to go: trademark law is flawed too. As I discuss in Against Intellectual Property (pp. 58-59), the only sound basis for trademark law is fraud. But this would mean that it is the defrauded consumer who has the cause of action, not the trademark holder. Even if you say that the trademark holder has implicit consent of the class of defrauded consumers to sue on their behalf, (a) this would cover only cases of true consumer fraud, not knockoffs where the consumer knows full well she is buying a fake rolex or purse; and (b) it would not include antidilution rights. If Jimmy loses here, it will probably be because of the antidilution cause of action; this is one reason I recommend abolishing it in my list of IP reforms in Reducing the Cost of IP Law.
As I note in my article "Radical Patent Reform Is Not on the Way," Mises Daily (Oct. 1, 2009), there is a growing clamor for reform of patent (and copyright) law, due to the increasingly obvious injustices resulting from these intellectual property (IP) laws. However, the various recent proposals for reform merely tinker with details and leave the essential features of the patent system intact. Patent scope, terms, and penalties would still be essentially the same. In the second article of this two-part series, "Reducing the Cost of IP Law," Mises Daily (Jan. 20, 2010), I propose various reforms to the existing patent system--short of abolition--that would significantly reduce the costs and harm imposed by the patent system while not appreciably, or as significantly, reducing the innovation incentives and other purported benefits of the patent system. I list these changes below in generally descending order of importance, without elaboration, as they are discussed further in "Reducing the Cost of IP Law":
Provide for Prior-Use and Independent-Inventor Defenses
Instantly Publish All Patent Applications
Eliminate Enhanced Damages
Add a Working/Reduction to Practice Requirement
Provide for Advisory Opinion Panels
Losing Patentee Pays
Expand Right to Seek Declaratory Judgments
Exclude IP from Trade Negotiations
Increase the threshold for obtaining a patent
Increase patent filing fees to make it more difficult to obtain a patent
Make it easier to challenge a patent's validity at all stages
Require patent applicants to specify exactly what part of their claimed invention is new and what part is "old" (e.g., by the use of European-style "characterized in that "claims)
Require patent applicants to do a search and provide an analysis showing why their claimed invention is new and nonobvious (patent attorneys really hate this one)
Limit the number of claims
Limit the number of continuation applications
Remove the presumption of validity that issued patents enjoy
Apportion damages to be proportional to the value of the patent
Radically reduce the term, from life plus 70 years to, say, 10 years
Remove software from copyright coverage (it's functional, not expressive)
Require active registration and periodic re-registration (for a modest fee) and copyright notice to maintain copyright (today it is automatic, and it is often impossible to determine, much less locate, the owner), or otherwise make it easier to use "orphaned works"
Provide an easy way to dedicate works to the public domain to abandon the copyright the state grants authors
Eliminate manifestly unjust provisions of the Digital Millennium Copyright Act (DMCA), such as its criminalization of technology that can be used to circumvent digital protection systems
Expand the "fair use" defense and clarify it to remove ambiguity
Provide that incidental use (e.g., buildings or sculptures appearing in the background of films) is fair use
Reduce statutory damages
Raise the bar for proving "consumer confusion"
Abolish "antidilution" protection
In fact, abolish the entire federal trademark law, as it is unconstitutional (the Constitution authorizes Congress to enact copyright and patent laws, but not trademark law)
In a previous post, I noted the arbitrariness of copyright law in prohibiting editing a DVD to take out objectionable scenes, when presumably it would be legal to accomplish the same thing by other means-e.g., as I pointed out in a legal forum, by providing instructions to users to use to program a special DVD player that edits out the bad scenes "on the fly" in the user's home.
Turns out there is such a service: Clear Play (thanks to Tom Woods for the link). You buy one of their DVD players, and load into it "filters" which you can download from the web with a subscription to their service. Amazingly, there was apparently some doubt about the right of consumers to do this, even for private use, so the Family Entertainment and Copyright Act of 2005 was passed last year to amend the Copyright Act to make it clear that it is not a copyright infringement to use technological means (such as ClearPlay's DVD player and filter service) to skip objectionable material, such as profanity, violence, or other adult material, in the audio/video works that they legally purchased.
Gee, Congress, we're so grateful, so very grateful, that you are permitting us to fast forward and skip nudity, gore, and profanity, or other scenes we don't want to show, in our own homes, using our own DVD players. How generous of you. Is it okay if I skip commercials too, please? (Apparently, an earlier version of this bill contained "language that might make users and manufacturers of ad-skipping technology automatically liable for copyright infringement".)
Tom, I too (as an IP attorney) find the copyright decision to be somewhat bizarre. In Clean Flicks v. Steven Soderbergh, a "federal district court in Utah held that companies that "sanitize" motion pictures by removing sex, profanity, and violence, violate the motion picture studios' copyright."
The court thought it was an easy case, apparently. So does this law professor, who said "This case was about as straightforward a copyright case as there can be, and the court's determination is plainly correct".
As the court wrote:
CleanFlicks first obtains an original copy of the movie from its customer or by its own purchase from an authorized retailer. It then makes a digital copy of the entire movie onto the hard drive of a computer, overcoming such technology as a digital content scrambling protection system in the acquired DVD, that is designed to prevent copying. After using software to make the edits, the company downloads from the computer an edited master copy which is then used to create a new recordable DVDR to be sold to the public, directly or indirectly through a retailer. Thus, the content of the authorized DVD has been changed and the encryption removed. The DVDR bears the CleanFlicks trademark. CleanFlicks makes direct sales and rentals to consumers online through its website requiring the purchaser to buy both the authorized and edited copies. CleanFlicks purchases an authorized copy of each edited copy it rents. CleanFlicks stops selling to any retailer that makes unauthorized copies of an edited movie. CleanFilms maintains an inventory of the unedited versions of the copies it rents or sells to its members in a one-to-one ratio. [italics added]
Note that CleanFilms buys one copy for every edited (sanitized) copy they rent. It seems to me, therefore, that this is just the digital version of physically removing parts of an analog movie on videotape. For example, suppose CleanFilms bought 1000 VHS tape versions of a movie, and physically removed lengths of tape that had nudity, then spliced it back together. Or, what if they just put white tape over the nudity-section of the film, or "erased" those lenghts of tape, then re-sold the VHS tape. Or what if technology were developed that let them shoot a laser into the DVD and basically just blot out the sections of video that contained nudity? Could it be argued that any of this is is copying or reproducing the movie? If not, why is the digital version of this any different? The fact that copyright law treats them differently shows how arbitrary and unjust it is.
It is clear to anyone who pays attention that IP is under assault--both institutionally, as digital copying, encryption, distributed information, the Internet, and the inherent impotence of IP policing make attempts to monopolize information patterns increasingly futile; and intellectually, as more and more people, especially libertarians--and especially younger libertarians--see the injustice of IP made manifest and obvious. There is a growing body of work that explodes the myths--moral and utilitarian, principled and empirical--of the IP proponents (see the works listed at the final section of "The Case Against IP: A Concise Guide"). There has been a noticeable and growing migration of libertarians toward the anti-IP position. I have lost count of the number of people who have personally told me they have seen the light on the IP cause in recent years. Among the radical and principled libertarians I know, there is a lot of debate about a lot of things--abortion, federalism, activism, "thickism," left- vs. right-, etc.--but on two issues there is a striking degree of agreement: these are anarchy, and intellectual property. That the state, and IP, are unjust, seem obvious to them after a little reflection. More and more libertarians are realizing that the case for IP being part of legitimate property rights is a hollow one that never needed to be accepted (see Have You Changed Your Mind About Intellectual Property?).
So it is no surprise that Objectivists would be distressed by this phenomenon. Not only are they among the most ardent modern advocates of intellectual property (in addition to Andrew J. Galambos [see Against Intellectual Property], and perhaps J. Neil Schulman), but Rand in a sense built her entire philosophical edifice on IP: to-wit, Rand incredibly said that "patents are the heart and core of property rights" and Objectivist law professor Adam Mossoff explicitly claims that "All Property is Intellectual Property" (see Objectivists: "All Property is Intellectual Property"). And so, realizing Rand's arguments for IP are deeply flawed, and that fewer and fewer people are buying it, they are starting to fight back.
(Aside: Long's comments are really superb and insightful. A few comments. Discussing the IP comments of another author, Long writes, "a strong case can be made for thinking that Lockean principles must be substantially distorted in order to press them into service on behalf of IP". Long backs this up very ably. In the same article he makes an illuminating distinction between three conceptions of "capitalism" that helps to dispel the confusion among both right and left in addressing this issue.)
The Objectivist approach is mired in a number of problems. It anchors property rights to the idea of "creation"; it requires legislation, and the state; it believes in some intrinsic value and some property right in value; it advocates utterly arbitrary and/or unprincipled, utilitarian finite lengths for IP; it rests on an arbitrary distinction between discovery and innovation. In a world where we took the ideas of the IP advocates seriously patent and copyright would have to have infinite duration. And the gaps in coverage would be fixed, and the state's arbitrary exceptions fixed, such as the "fair use defense" to copyright. At present patent and copyright cover a statutory class of "inventions" and artistic works, respectively. Many logos, idea-patterns, "creations," values are not protected at present. These include: perfume smells, the fashion industry, food recipes, certain business methods, databases (unoriginal but useful collections of information), abstract ideas such as mathematical algorithms, proofs, and techniques and physical laws. Under the ideas of the IP fanatics, there is no reason not to grant state-monopolies to these patterns too. And the term should not expire in 20 or 100 years--does your property to your house expire after some time limit? And why the utilitarian fair use exception? No principled case for IP could tolerate it.
I would love to see libertarian IP advocates have to live in a world that truly implemented their IP views fully, consistently--it would be like a communist USSR stripped of its power to ape Western price structures, to ameliorate the effects of communism. They would either die out, as the material world was strangled by an impossible nettle of ghostly IP-rights tendrils, or they would cry uncle. Even today, one imagines the cognitive dissonance of Objectivists living in our digital age--cutting and pasting, linking, learning and reworking ideas of others--all the while maintaining that all the things they themselves cannot but help engage in are "immoral" or some such tedious nonsense. I think of modern do-gooder environmentalists--they must feel pangs of guilt while flying on a jumbo jet to a friend's wedding 2000 miles away, or to attend UN conference or job posting on another continent. They must wring their hangs in agonized guilt and indecision about whether to use styrofoam, paper, or a washable coffee cup. They must feel tremendous guilt whenever they discard a scrap of soiled napkin instead of recycling it. Environmentalist parents must feel terrible pangs of guilt at using disposable diapers (or they suffer by using cloth ones: either way, I am pleased by the thought of their discomfort). Likewise, when an Objectivist emails a vandalized picture of an apostate like Alan Greenspan to a friend they must be conflicted--wait, no, there's a fair use exception! Thank Rand for the State and its wise laws!
One striking feature of Objectivism is it outspoken support of intellectual property. A key scene in Atlas Shrugged is where metallurgist genius Hank Rearden is compelled by the government to hand over his intellectual rights to his innovative metal alloy, and Ayn Rand acted in kind. She passionately used the copyright on her works to bar people from forming "John Galt Societies", citing that the name John Galt is her creation and her intellectual property.
For a person bent on propagating her ideas to the maximum extent possible, this would seem eerily counterproductive. Stealing an object from someone is obviously depriving the original owner of his property, but copying it isn't. It may or may not be harmful to potential income, but that income remains potential, in the realm of the unprovable. This is a debate that incites extreme passion.
While Objectivists, libertarians and conservatives strongly agree on the principle of physical property rights, the picture is much more divided when it comes to 'intellectual property', a catch-all phrase for several different items, including patents, copyright and trademarks. In a landmark essay by Stephan Kinsella, Against Intellectual Property, argues that 'Intellectual property' is not only meaningless and harmful, it is in direct violation of the general principle of private property, and primarily constitutes a state-sanctioned creation of artificial scarcity, leading ultimately to poverty, not job creation and wealth.
The wider libertarian movement accepted the argument, put it into action (see www.mises.org/books) and moved on. Objectivists, on the other hand, maintain that what Ayn Rand spoke and practiced on the subject remains the unalterable truth.