defending the right to innovate
Monopoly corrupts. Absolute monopoly corrupts absolutely.
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An audiobook of my monograph Against Intellectual Property (Mises Institute, 2008; Mises Store; PDF; Scribd; HTML) has been prepared. The narrator is Jock Coats, who produced a very impressive, professional-quality product. The audiobook, about 1 hour, 54 minutes in length, is available in .mp3 format and in .m4b iTunes book format (each about 57M). The .m4b file has chapter breaks built in. It's also available in a Mises.org version and on iTunes U.
In Authors: Beware of Copyright, Jeff Tucker warns authors to be careful with their publication agreements not to alienate their books and other works. A good illustration of this peril is found in the case of Buddy Holly and his recording contract with Decca. As reported in Buddy Holly's secretly recorded contract negotiation with Decca,
Listening to Holly pleading with the masters he has alienated his rights to is heartbreaking. Decca had dropped him, apparently, but had the rights to sit on his recordings for 5 years. Although they had no intention of releasing the songs, they also would not give Holly permission to do so--the cigar-chomping executive kept saying "well, we got a lot of money tied up in them, Buddy!" But Holly offered to reimburse those costs; no dice.
Authors: do not let this happen to you. When you publish a book, consider publishing it yourself on Amazon/Kindle (or, soon, iBooks/iPad) or LuLu. Or persuade the publisher to let you post an online version for free. At least make sure the publisher will offer a kindle and ebook version. Negotiate, at the very least, the right to post the work online for free after, say, 3 or 4 years, when sales have petered out.
Free-market economist Professor William F. Shughart II attempts to defend the need for IP in "Ideas Need Protection," The Baltimore Sun (Dec. 21, 2009) (previously published in the Christian Science Monitor). Subtitled "Abolishing Intellectual-property, Patents Would Hurt Innovation: A Middle Ground Is Needed," the piece suffers from flaws found in others defenses of intellectual monopoly and pattern privilege. For example, Professor Shughart writes:
While it is true that copyright and patent are constitutional, this does not make these laws just. What the artificial law-writing coup-leaders wrote a document designed to help the state seize more power is simply not relevant to the normative question of whether there should be IP.
Pro-patent law arguments rest on the assumption that the patent system generates overall wealth--that its benefits are greater than its costs--without ever making this case. Instead, they point to ways that the patent system benefits some people, and never bother to even try to tally up the costs to make sure it's a net positive. In other words, they don't even take their own justifications seriously. Shughart makes the same mistake:
Developing and successfully commercializing new products and technologies typically requires large investments of time and treasure. Most research and development (R&D) investments end in failure.
Granting a temporary monopoly to the rare breakthrough is necessary, therefore, to provide its inventor with an opportunity to earn a return on the investment that led to the new idea--and to encourage additional such investments. Such protection is especially important in the pharmaceutical industry, where, in its absence, new drugs could be duplicated by competitors, and the incentive to invest would disappear, stifling the discovery process.The word "therefor" is unwarranted; this is a non sequitur. Later on in the piece, he writes:
Incentives matter. Although there may be a passionate few who don't require payment for contributing to the common pool of knowledge, technological advancement will be much more rapid if an explicit economic payoff is available.Much more rapid--? How much more? Who knows? The IP advocates don't. So how do they know it justifies the cost?
I found this to be an refreshing admission of the stifling effect mercantilist intellectual monopoly has on the spread of ideas:
To paraphrase the late economist Joan Robinson, patents and copyrights slow down the diffusion of new ideas for a reason: to ensure there will be more new ideas to diffuse ...Unfortunately, he supports these laws anyway. Shughart also candidly and explicitly admits the monopoly character of of patent and copyright:
Granting a temporary monopoly to the rare breakthrough is necessary...(Some IP advocates get very irked when patents are called monopolies. For example (as noted in Are Patents "Monopolies"?), patent attorney Dale Halling, in a piece entitled "The Myth that Patents are a Monopoly," writes, "People who suggest a patent is a monopoly are not being intellectually honest and perpetuating a myth to advance a political agenda." But it is common for IP advocates to acknowledge this. For example, Richard Epstein writes "Patented goods are subject to a lawful monopoly created by the state in order to induce their creation ... The legal monopoly granted by the patent is the only mechanism that allows the producer to recover those fixed costs...." And Objectivist IP attorney Murray Franck has argued that "if the creator's rights are not protected, his survival is jeopardized. If another can market his creation, the creator is deprived of the money he would otherwise earn." See also my comments here, noting that even the Supreme Court and other federal courts slip up and admit the monopoly character of IP on on a regular basis.)
Consider this argument our author makes:
It is true that other means exist for creative people to profit from their effort. In the case of copyright, authors can charge fees for reading their works to paying audiences. Charles Dickens did this, but his heavy schedule of public performances in the United States, where his works were not protected by copyright, arguably contributed to his untimely death.Can Shughart really be arguing that we need copyright, for otherwise another potential Charles Dickens might drop dead early? (This reminded me of a bizarre argument made by patent attorney Gene Quin, noted in this post. In an online discussion, IP opponent David Koepsell had mentioned "that in the 19th and early 20th centuries, two of the most innovative countries on earth (The Netherlands and Switzerland) had no patent systems at all." In response, Quinn says: "Thank goodness the Swiss did have a Patent Office. That is where Albert Einstein worked and during his time as a patent examiner came up with his theory of relativity." So ... we need a state-granted monopoly system ... so that Albert Einstein could have had a job in Switzerland. What does one even say in response to such an "argument"?)
Professor Shughart continues:
The hard questions are: What kinds of ideas should be eligible for patent and copyright protection, and how long should that protection last?"A 20-year patent monopoly on a method for speed-dating may not be appropriate?! How would Justice Sotomayor know, really?
As for there being "hard questions"--who can answer them? And if "we need a middle ground"--even though we have no evidence to know where the "optimum" is--how can we achieve this? Who can do it? Shughart's answer: Congress and the courts:
Rather than abolishing patent and copyright protection for some categories of intellectual property, Congress and the courts should consider varying the length for which exclusive monopoly privileges are granted, depending on the expected commercial vitality of the creative work. [emphasis added]The state is neither benevolent nor competent (well, they are good at two things: destruction, and propaganda). There is no reason to believe Congress or the courts want, or are equipped, to find the "right" answers to such questions. (As J.H. Huebert observes about government courts: "In general, judges and those who appoint them have no reason to want to limit government. … Have not judges been responsible for some of the most outrageous expansions of government power? And, after all, are judges not a product of the same political system that gives us legislators and presidents? What president would appoint judges who would tell him he cannot do anything he wants? What Senators would confirm a judicial candidate who tells them that everything they have ever done in office is unconstitutional? The whole enterprise of libertarian constitutional theory ignores all we have learned from public choice economics about the incentives of government actors.") There is no reason to trust state employees to determine the optimum length of patent and copyright monopolies for various types of inventions and artistic works, much less by using "the expected commercial vitality of the creative work" as a test.
N.B: My original draft was done in very sarcastic style. At the urging of some friends, I ultimately decided to rewrite it in more standard, serious, respectful, straight style. But for those who like a bit of humor, here's the original sarcastic post:
Shughart's IP Parody
In "Ideas Need Protection," subtitled "Abolishing Intellectual-property, Patents Would Hurt Innovation: A Middle Ground Is Needed," free-market economist William F. Shughart II has penned a wickedly funny parody of typical arguments in favor of IP. Brilliantly, he somehow managed to slip it by the editors of The Baltimore Sun as well the Christian Science Monitor, where it was first published, without either publication realizing it was a parody.
Ha ha! As if what the artificial law-writing coup-leaders wrote a document designed to help the state seize more power is relevant to the normative question of whether there should be IP. Good one, Professor.
He goes on, mercilessly lampooning the intellectual monopolists:
I like this. First, he demonstrates how pro-patent law arguments rest on the assumption that the patent system generates overall wealth--that its benefits are greater than its costs--without ever making this case. Instead, they point to ways that the patent system benefits some people, and never bother to even try to tally up the costs to make sure it's a net positive. In other words, they don't even take their own justifications seriously. The point is reinforced by the totally unwarranted word "therefore" inserted above, in a blatant example of non sequitur. Revisiting this theme later on in the piece, our author writes:
Much more rapid--? How much more? Who knows! The IP advocates don't! "What are they jabbering about? How do they know?", Shughart seems to be saying, if you read between the lines.
Professor Shughart has no doubt noted that although it gives IP advocates a case of the vapors if you call IP a "monopoly," too many hapless IP advocates just seem unable resist admitting this. Thus, he writes:
This is just a perfect impression of the typical blunder made by patent and copyright proponents when they inadvertently acknowledge the stifling effect mercantilist intellectual monopoly has on the spread of ideas. This is a very common faux pas of the monopolists, who forget to hide the fact that IP is, in fact, a monopoly. When IP'ers stray from the reservation like this, it really irks the organized pro-patent forces. For example (as noted in Are Patents "Monopolies"?), patent attorney Dale Halling, in a piece entitled "The Myth that Patents are a Monopoly," writes,
But, as Shughart demonstrates, all too often the pro-monopoly forces can't help themselves and inadvertently let the truth tumble out of their mouths. For example, we have pro-patent Richard Epstein (see Epstein and Patents), noting that
And here we have Objectivist IP attorney Murray Franck arguing that "if the creator's rights are not protected, his survival is jeopardized. If another can market his creation, the creator is deprived of the money he would otherwise earn."
And see my comments here, noting that even the Supreme Court and other federal courts slip up and admit the monopoly character of IP on on a regular basis:
Anyway, Shughart must have noticed this habit of inadvertently admitting the true nature of the patent grant--a habit that makes fellow IP advocates grimace and exclaim, "Damn! He admitted it too!"--and imitated it here to perfection. "Those crazy patent guys," Shughart seems to be saying, with a sly smile and a twinkle in his eye, "can't get their story straight."
Here's another patentism Professor Shughart tackles. Sometimes IP advocates trot out the most ridiculous arguments when they have no other response available, such as this bizarre argument by patent attorney Gene Quinn (noted in this post). In an online discussion, IP opponent David Koepsell had mentioned "that in the 19th and early 20th centuries, two of the most innovative countries on earth (The Netherlands and Switzerland) had no patent systems at all." In response, Quinn says:
You got that? We need a state-granted monopoly system ... so that Albert Einstein could have had a job in Switzerland. I mean, what does one even say in response to this, which is not even a pretense at serious argument? Our observant author must have noticed this and other such arguments, which he is clearly mocking here:
See? We better have copyright--you don't want another potential Charles Dickens to drop dead early, do you?
Professor Shughart continues:
The IP advocate is here portrayed as unable to even definitively object to a 20-year patent monopoly on a method for speed-dating--"it may not be appropriate"! And the part about "these are hard questions" ... who can answer them, oh who?-- and "we need a middle ground"--even though we have no evidence to know where the "optimum" is. But wait for it--Congress might know! --
Shughart is so right here: the proponents of intellectual monopoly, like all interventionists, do indeed have an utterly misplaced, naive faith in the state's benevolence and competence. Why, let's have Congress should figure this out! Oh, I'm in stitches. And the courts--yeahhhhh, they'll do a great job--the same courts witheringly described here by J.H. Huebert:
I will close by noting my favorite line of this sparklingly humorous essay: to determine the right length of patent and copyright monopolies for various types of inventions and artistic works, Congress should be not only trusted to want to do this, but should use "the expected commercial vitality of the creative work" as the test! Oh, man. I'm crying.
Patent lawyer Gene Quinn has been sued
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.
As Huebert notes in his post Fighting IP Absurdity: The South Butt Strikes Back, the saga of The North Face Apparel corp. vs. The South Butt continues. As noted on his attorneys' website,
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.
(For further discussion of problems with trademark law, see n. 46 to Reducing the Cost of IP Law; and Trademark versus Copyright and Patent, or: Is All IP Evil?. For further criticism or discussion of the North Face case, see Peter Klein, IP as a Joke: South Butt Edition; South Butt Creator Fires Back at North Face, law.com; Mike Masnick, North Face Didn't Get The Message; Sues South Butt, Techdirt.)
In response to my Reducing the Cost of IP Law, my friend and ex-colleague (and mentor) Steve Mendelsohn, a patent lawyer in Philadelphia, wrote me the following. N.B.: Steve is not a libertarian but is honest and smart, unlike patent shills (he's also an excellent patent attorney, if you need one). Here's an edited version of his comments, posted with his permission (for comments from another honest patent lawyer, see here):
I agree with much of what you say and don't necessarily disagree with most of the rest. For example, I agree with you that we don't know whether the patent system is doing what it says it's doing as far as adding more than it's subtracting. (You might know the answer to that question, but I agree that "we" don't know.) I do believe that the system can be significantly improved without getting rid of it completely. Again, it is possible that the world would be better off without a patent system, but I'd rather see it improved first. (I think that our federal government needs a lot of improvement, too, but that doesn't mean that no government is better. I can't help but look at Somalia as an example of a country with no centralized government. But perhaps you've got a better example to point to.) (For now, I'd better stick to patents per se and not use them as a metaphor for government in general.) To me, the biggest problem with the current U.S. patent system is the granting of patents for inventions that are not novel and non-obvious due to the incompetence of the U.S. patent office. Just last week I was advising a client that I didn't think that their invention was patentable. I had to qualify my advice by explaining that that did not mean that I didn't think we could get a patent for the invention, just that I thought we shouldn't be able to get a patent for the invention. I can't tell you, but I suspect you've experienced this yourself many times, how many patent applications I've prosecuted over the years where I get the U.S. patent issued only to have the European, Japanese, or Korean patent office subsequently find better prior art and apply that art with a more-accurate understanding and appreciation about what it takes for there to be a patentable improvement over that art. The result is either an issued foreign patent with claims of much-reduced scope or an abandoned foreign patent application. Either way, there remains an issued, presumptively valid U.S. patent of unknown value. The presumption of validity is legitimate only if the U.S. patent office is doing a good job. Since the U.S. patent office is not doing a good job, I agree with you that the presumption of validity should be eliminated.
No, not me. Michael F. Martin, a patent attorney with Drinker Biddle. The March 2010 issue of Liberty (which also features a letters exchange regarding my December 2009 Liberty article, Intellectual Property and Libertarianism) features the following guest reflection by Mr. Martin:
Sane and sound "The hallmark of sanity is to remain firmly tethered to reality," said the federal judge to the parties of a patent infringement litigation between a large Canadian computer company and a small, patent holding company (a.k.a. "patent troll") after a jury had found the computer company liable for infringement. The computer company in question? Research In Motion, makers of the Blackberry. The case finally settled for $612.5 million.Martin writes as if oblivious of the fact that libertarians are increasingly opposed to IP rights (see my Have You Changed Your Mind About Intellectual Property?; Against Intellectual Property; and other material here); as when he writes, "Vulpe's apparent victory should be an occasion for rejoicing by libertarians (most of them, anyway) and other believers in strong property rights..." Vas...? We should rejoice that i4i was able to use the state-granted patent monopoly to impose millions of dollars of cost on Microsoft? Why? This presupposes that IP rights are legitimate "property rights." (Not to excuplate Microsoft from charges of hypocrisy: see my post Microsoft Wants Galactic Patent. The recent case mentioned by Martin is i4i v. Microsoft.)
Let me go through Martin's post in a bit more detail. First, his post implies that patent trolls are problematic (a patent troll was behind the $612.5 million Blackberry settlement), while actual inventors who have "commercialized" their own patent are good guys (Vulpe, the i4i inventor in the Microsoft case) and are justified in using their state monopoly grants to (legally) extort money from others. But patent trolls are not the problem at all (see my posts Patent Trolls and Empirical Thinking; Facebook Threatened by a Non-Patent Troll). The patent system does not require the patent owner to practice the patented invention or even to make an actual working model (see my "Reducing the Cost of IP Law", where I recommend imposing working and reduction-to-practice requirements on patentees, which would reduce patent trolling; I don't see Martin recommending this). Martin implies it's good--and libertarian, supposedly--that "the recent decision may lead to more negotiation and less litigation". What is libertarian about this? If the legal system grants clear, strong rights to a patentee to allow him to (legally) extort money from his victims, of course that may lead to "more negotiation" and "less litigation." Why is this good? If the legal system makes it crystal clear that the victim will lose in court, thus reducing the need for wasted time in litigation, this is not good, if the victim's losing is unjust.
In fact, this is exactly what happened in the Blackberry (RIM) case that Martin holds out as an example of injustice. In that case (see my post Woops, sorry, Blackberry!; also The Age of Technocide: RIM Pays Out Again Over Patents), RIM coughed up $612.5 million because of the possibility an injunction issuing--even though the patents in question were being re-examined at the US Patent Office. But even though it appeared likely they might be declared invalid a few months later, the courts were then operating under pre-eBay caselaw which made an injunction easy to get. In other words, the court in the RIM case was about to issue and order shutting down the Blackberry itself, even though the underlying patents' validity was in question and being re-examined at the PTO. This would have ruined RIM. So it caved, paying a huge ransom to save the company. If there had not been a threat of injunction, RIM would certainly have just fought the case--instead of paying almost a billion dollars!--and maybe the patents would have been declared invalid, and they would have walked away $612.5 million richer. That's why eBay was a good decision--for libertarians, at least, since it made injunctions less automatic, harder to get (see Woops, sorry, Blackberry!; I also discuss the eBay case in Radical Patent Reform Is Not on the Way). And that's why in Reducing the Cost of IP Law I recommended the abolition of patent injunctions. Martin acts as if he opposes the Blackberry settlement, blaming it on patent trolls (but without advocating a working or reduction to practice requirement, which would limit trolling), while favoring the granting of injunctions which was the real cause of the outrageous injustice done to RIM. (For a discussion of the pro-patent approach of patent attorneys, see "The Silent Bar" section of Reducing the Cost of IP Law.)
I see here a libertarian patent lawyer who is taking it for granted that patents are legitimate property rights--presumably because he believes the law should grant a monopoly license to provide "the exclusivity needed to encourage investment in new technology." Patents are not legitimate property rights. They are mercantalist, monopolistic abominations. Libertarians, including libertarian patent attorneys, should oppose the patent system.
My article "Intellectual Property and Libertarianism" was published in the December, 2009 issue of Liberty; the March 2010 issue features the following exchange in the "Letters" section.
Thanks to Stephan Kinsella for questioning the justice of intellectual property ("Intellectual Property and Libertarianism," December 2009). Like many libertarians, he posits property rights as the foundation of libertarian political theory, and suggests that because it is a derivative concept, we stop calling the nonaggression principle an "axiom." So far so good. But Anthony de Jasay suggests that the concept of "property" itself should in turn be considered derivative, from the still more fundamental principle of liberty of contract. De Jasay also defines "rights" and "liberties" more carefully and usefully than most libertarians, who use these loaded words all too loosely Kinsella included. (See de Jasay's "Choice, Contract, Consent," or "Before Resorting to Politics," reprinted in "Against Politics.")
Kinsella's attempt to show that no well-formulated property rights can apply to pure information seems dubious. Yes, information can escape physical confines and reproduce in ways that physical objects can't, but so what? Perhaps the real question is not whether IP should be classified ontologically with other forms of "property," but whether voluntary agreements can be reached (without the help of legislatures) that would make revelation, or publication, or mishandling of information a tort. Clearly some can; what of contracts to protect trade secrets, and other nondisclosure agreements?
Never mind that the concept of "self-ownership" has philosophical problems that Kinsella does need to take more seriously. I've been suspicious of "property rights reductionism" ever since I noticed that it led Rothbard to believe in his own IP rights as an author of copyrighted writings, even as he disparaged the IP rights of professional inventors. At least Kinsella avoids this inconsistency (if that's what it is).
Kinsella is right to seek the philosophical foundations of the IP question; let's hope he keeps digging.
Lew Randall Freeland, WA
What Would Edison Do?
It was a pleasure reading Stephan Kinsella's piece "Intellectual Property and Libertarianism." I'm in agreement with its content as regards the nature and source of property rights. What I find impossible to accept is the view that there is no good utilitarian argument in support of legislated patent and copyright law. Would Thomas Edison and his financial backers have invested so much time, effort, and money just for the pleasure of exercising intellectual creativity? I certainly wouldn't, and I suspect I'm not alone. Having said this, in a free society, would it be a legitimate government function to establish rights where none "naturally" exist, even if the consequence of such legislation would foster an improvement in the quality of human existence? By establishing such rights, or should I say "privileges," wouldn't the freedom of action of others be curtailed? Formulated this way I opt for principle over utility, as the slippery slope comes to mind.
Howard Shafran Shelter Island, NY
The Property of the Mind
Before finally getting around to the topic of his article on intellectual property, Stephan Kinsella trumpets the proposition that each person "owns" his own body; he "inhabits" it; he is its "occupant" and Kinsella uses those very words. He dismisses as "silly wordplay" the objection that each person just is himself or his body. But who is perpetrating wordplay? Who is tainting sound political philosophy with dubious metaphysics?
Kinsella echoes the old mind-body dichotomy, the notion of the self as "the ghost in the machine" (Gilbert Ryle's derogatory description of Descartes' dualism). On the contrary, each person's mind and consciousness are functions, remarkable functions, of his body and specifically his brain. Does Kinsella really mean that the self is distinct from the body? Does the one survive dissolution of the other? (Does the self exist even before its body is born?) Does Kinsella believe in ghosts or angels? What evidence, beyond very dubious evidence, can he cite? If Kinsella does not really mean what he says, he should use more exact words.
The self-ownership slogan finds some resonance in libertarian circles. But libertarians should go beyond displaying their authenticity to each other; they should try to persuade nonlibertarians. They should avoid irrelevant metaphysics. They should put their best foot forward, not their worst. I do not mean that they should dilute their libertarianism; rather, they should present it attractively.
Perhaps Kinsella could find some (feeble) excuse for his metaphysics, but he would still be putting a worst foot forward.
Leland Yeager Auburn, AL
Stephan Kinsella's argument against IP is seriously flawed. For instance, he states that copyright is "received automatically, whether you want it or not, and is hard to get rid of." Copyright, that is, the right to make copies of your work, is inherent in the creation of the work. It is not "received" by law. You can waive your copyright easily by simply making copies and distributing them without the required copyright notice. Copyright law recognizes, defines, and controls to some extent your rights to control the copying and dissemination of your work.
He also states that "We libertarians already realize that . . . the right to a reputation protected by defamation law" is illegitimate. This libertarian does not realize such illegitimacy. The libertarian principle is that no person has the right to initiate aggression against another. Spreading lies or untruths to destroy the reputation of another person is clearly within the definition of aggression.
Kinsella makes a number of references to "homesteaders," mainly, I believe, to emphasize the difference between property that you can hold in your hand, i.e., the soil from your farmland, and the more ephemeral IP which is snatched out of thin air and dissipates in the wind, i.e., the sound of a melody. However, this comparison overlooks the intellectual content of real estate (property) improvement. A farmer who homesteads a parcel of land must decide what crop will be successful on that land. A pineapple ranch in North Dakota will not succeed. Once the crop is chosen, the farmer must implement a plan for the planting and harvesting of the crop. In the case of, say, music, running a melody over in your head or tinkering on a piano is just the beginning of the creative process. It must be transcribed and carefully inspected to make sure that each note is properly chosen and placed. Then you can make your copies, register the copyright and begin selling copies of your work. With a little luck, someone may make a successful recording.
Patents are similar. You come up with the idea, develop it into a saleable product, manufacture copies and sell them. When a buyer buys a copy of your work, either invention or literary work, what does he buy? Under the law, he buys that one copy of your invention. Defining what is embodied in that one copy can get messy because the human mind is messy, but the buyer does not buy anything other than that one copy. He cannot make copies and distribute them.
So what can you do with your copy of the work or invention? You can write a critique of the song or story, quoting reasonably from the work itself to illustrate your points of argument. You can read the story or sing the song to your friends for their enjoyment. You can take your copy of an invention and modify it to suit your needs. You can strip it of unnecessary decoration that does not make it work better. You can take it apart to see how it works, or to repair it or to improve the design so much that you feel justified in applying for a patent on your improvement. You can sell it to someone else. You cannot, however, begin manufacturing the item and selling it. That is true whether the item is a widget, a book, a sheet of music, or a recording.
David Kirkpatrick Klamath Falls, OR
Body of Work
Although Stephan Kinsella's article on intellectual property moves smoothly enough from premises to conclusions, those conclusions are (to me at least) so counterintuitive that the argument acts as a reductio ad absurdum, undercutting his premises rather than proving his conclusions.
Let us say that a given work exists only in the memory of the author's computer. At this time the work could not be more obviously the author's; in a keystroke he can change it in any way, or abolish it forever. Overnight a hacker invades the machine, copies the work, and reproduces it. This is theft, is it not? If so, then the author retains ownership of the work even after it has left his hard drive. Why, then, would his ownership suddenly be reduced to naught at the instant that he sends it off to a prospective publisher? Reportedly, a British firm offered to publish "Lolita" if Nabokov would consent to the removal of four sentences. Nabokov refused, and the book was not released in Britain until a year later, by a different publisher. Surely this was right.
Kinsella takes it as axiomatic that one's property rights begins with one's own body. I think that many authors would consider their ownership of their works as more intimate, and more obvious, than their ownership of their bodies.
Jamie McEwan Lakeville, CT
Kinsella responds: Mr. Randall asks whether trade secret and nondisclosure agreements could be used to construct a form of IP. I do not believe they can, because such agreements cannot bind third parties. Only by assuming that knowledge is a form of property can you bind third parties, but this assumes there is IP. I address this in further detail in the "Contract vs. Reserved Rights" section of "Against Intellectual Property," available at StephanKinsella.com. As for philosophical problems with the notion of "self-ownership" self-ownership just means that you have the right to decide who touches or uses your body, not some other person. What could be more libertarian, or less controversial or problematic?
Mr. Shafran is no doubt right that Edison or other patentees may have benefitted from the patent monopolies granted to them by the state. But the utilitarian case requires a benefit to the economy as a whole, not merely to particular beneficiaries of wealth redistribution. Studies almost universally conclude that there is no such gain that patents actually restrict innovation. See the post at tinyurl.com/pat-innov for more information on these studies.
Professor Yeager misunderstands my comments. I am, like him, nonreligious. Viewing the mind as distinct from (though not unrelated to or independent of) the brain, and the self as distinct from the body, does not imply a soul or ghosts or angels. It does not imply that there can be a self without the body, or a mind without the brain. It merely implies a distinction. One may think of the mind as an epiphenomenon of the brain, but it is not the brain itself. Likewise I can run and remember with my body but running and remembering are not the same as my body. The "silly wordplay" I referred to is the use of the trite observation that we "are" our bodies (in some real sense) to object to the idea of self-ownership. But atheism is not contrary to self-ownership. Self-ownership is the libertarian idea that you have the say-so over who uses your body that others need your permission. Self-ownership is the rejection of slavery and aggression. It is perfectly compatible with the idea that there is no soul; that you die when your body dies. In any event, Yeager's atheism does not prove there are intellectual property rights, or that we are not self-owners.
Mr. Kirkpatrick upbraids me for stating that copyright is received automatically. He asserts that copyright may be waived "by simply making copies and distributing them without the required copyright notice." Wrong. Copyright notice is not required at all, nor is copyright registration. See Sections 102 and 401 of the Copyright Act, or the "Copyright Basics" brochure at copyright.gov. Copyright notice has not been needed since 1989, when the law was amended per the Berne Convention.
As for reputation rights, Murray Rothbard explained in "The Ethics of Liberty" why there can be no reputation rights: your reputation is merely what third parties believe about you. You do not own their brains or what they think about you; they are entitled to change their minds about you. Kirkpatrick writes, "If I grow a potato in my back yard, it is my potato. If I write a song in my kitchen, it is my song. They are both my property." By such reasoning one could argue that you own your wife, your parents, and your country (note the possessive pronoun!); if you discover that the earth is round then "it is my discovery" and you could own that fact. The mistake here is in failing to realize that not every "thing" that one can conceptually identify is an ownable type of thing. Scarce resources are capable of being owned because of the possibility of conflict over use of such things. Other things, such as "songs," information, and patterns are not ownable things at all. In acting, humans select scarce means to achieve desired ends. Their choice of ends, and means, is guided by information. To successfully act, the scarce resources employed as means need to be owned, because by their nature as scarce resources only one person may use them; but the actor need not "own" the information that guides his choice of means, since he can use this information even if thousands of other people also use this information to guide their own actions.
Mr. McEwan is correct that the hacker is a thief, since he is using the author's property (his computer) without his permission. But this does not mean that the information he gains access to is property. If the author revealed some private fact say, that he had a glass eye and the hacker discovered this and revealed it to the world, the author would have no right to demand that everyone forget this fact or not act on it. Likewise if the information was a novel, musical composition, recipe for a nice soup, or schematic for an improved mousetrap.
From the comments to Reducing the Cost of IP Law (see also my post The Non-Aggression Principle as a Limit on Action, Not on Property Rights):
"...You are (in effect) assuming that only scarce (and hence physical) entities can be "property" in order to "prove" that ideas and patterns cannot be "property"."Kerem: "How is, "IP is not valid because it infringes on the property rights of others" is an independent argument when it depends on the never proven but often assumed assertion that only scarce things can be property?"
It does not assume that ONLY scarce things are property, but it assumes that scarce things ARE property--don't we all agree on this? The one that is up for debate is property in anything else. My contention is that assigning rights in non-scarce things necessarily undermines rights in scarce things. Since we all agree with rights in scarce things, we should oppose the type of rights-inflation that undermines this.
any theory of property restricts the way some people may act.Let's be precise here. It is the nature of scarcity that restricts how people may act. Consider Guido Hülsmann's comments in his 1997 article Knowledge, Judgment, and the Use of Property, p. 28:
There can be no doubt that the effect of the increased scarcity of tin will rapidly spread throughout the whole economic system and influence not only all the uses of tin but also those of its substitutes, etc. This process is, however, not best characterized by a coordinative function of prices.(I discuss this also at note 9 and accompanying text of my Knowledge, Calculation, Conflict, and Law.)
Now, the fact of scarcity is part of the world. It is this which limits how we can act. The fact is that if there is a scarce resource, A and B cannot both use it at the same time. If they can, there is no scarcity, and no conflict. Conflict can only arise when there is scarcity, and conflict can only be conflict over the use of scarce resources. People say there is conflict over religion, etc., say--nonsense. Religion is the reason why A wants to kill or control B's body, perhaps, but the conflict is over B's body--a scarce resource.
The only question is whether the use of scarce resources will be conflict-free or not. If there are no property rules then the use of scarce resources is precarious and people will waste time in violent struggle rather than in productive use of resources.
To avoid such conflict and permit peaceful, productive use of scarce resources, property rules can assign ownership to identifiable individuals. As I have explained in What Libertarianism Is, all political and legal systems assign property rights--someone is assigned the legal right to control each particular scarce resource. The libertarian approach is unique in that the assignment is based on a consistent desire to avoid conflict, and so we follow a Lockean type of property assignment rule--the first user of a resource has a better claim, ceteris paribus, than later claimants. Now this is not a complete argument for the libertarian case, and in a libertarian forum where we all agree with this one need not argue for it--but you can see that the very nature and purpose of any property system is to permit the conflict-free use of scarce resources, and that the libertarian approach is the one most consistent with this purpose and nature.
So: it is not a theory of property that restricts how people may act. It is the omnipresent, undeniable fact of scarcity. A theory of property permits peaceful use of resources, by prohibiting violent struggle over them, which is not productive. The only question is whether the property rules are just or not. If they are all assigned to Donald Trump or the State, then this would technically allow conflict to be avoided but at the cost of injustice. The libertarian thus favors a just rule: assigning property rights in a given scarce resource to the first appropriator thereof.
This is not a restriction on action. It permits the resource to be used peacefully, and justly.
Now even the advocates of IP, such as Silas, are too happy to admit that they don't really favor property rights in mere abstract "ideas". No, they readily admit it's only in physical instantiations of the idea. That is, they admit that what they want in their IP theories is to grant to A property rights in all the physical media (say) owned by B1, B2, ... Bn. So the real dispute is always about scarce resources. If B owns a piece of plastic (a blank DVD) then the IP advocate wants A to have some property rights in B's disk. He wants A to have a veto over B's use of B's own disk.
Now, there are many non-libertarian property rights theories--theories that undercut or are contrary to the libertarian-Lockean first-use-first-own rule. This is just one of them. It is not "circular" to point this out. It is not "circular" to be a libertarian, any more than it's "circular" to be a socialist, communist, theocrat, or IP advocate. They all advocate property assignment rules that differ from the libertarian's Lockean homesteading rule.
The attempt to analogize this to the gun shooting or murder prohibition example fails. If A is prohibited from murdering B, this is just a way of restating one application of the libertarian conception of rights: it is saying that B owns his body, and that A's actions of shooting bullets into it violate's B's rights in that scarce resource. To say A is limited in what he may do is to recognize property rights in scarce resources.
In other words, the libertarian idea is that we do not live by permission. We live by right. We may do anything we wish in life, perform any action, unless it is an unconsented-to use of another's property. In other words, unjustified interpersonal violence--conflict--is prohibited for the sake of establishing a regime where peaceful, productive use of scarce resources may occur. I can use my gun for anything one can think of: the possibilities are open ended--anything except narrow cases where it would be an act of aggression against others. But it is not as if there are 1,136 permissible things I can do with the gun, each one a "right," and 17 things I cannot do with the gun. Rather, it's as if there is an ocean of liberty--open-ended, infinite, with small islands of things that I may not do. The IP advocate has to view us as living by permission: you have those 1,136 things you may do with your gun, and only those things. It is a finite list, fixed at some moment in time. If B thinks of way number 1,137 to use a gun, then he owns this way-to-use-guns. That is to say, he owns all guns in the universe, to the extent they are used for method 1,137. And, they say, this does not harm owner A, since he never had that right in the first place. It doesn't take away his right to use his gun for method 1,137; he only had homesteaded the first, known, 1,136 ways to use it. In fact, the IP fascist says, A is now better off, since he can learn from 1,137, and get permission for a small fee from B to use his gun in a new way. Everyone wins!
Except this is the totalitarian way of looking at things. We do not live by permission. Rothbard has explained that there is no right to free speech; it's just one implication of property rights. In my Against Intellectual Property (p. 53), this is precisely why I pointed out that
We do not have to have a "right to copy" as part of a bundle of rights to have a right to impose a known pattern or form on an object we own. Rather, we have a right to do anything at all with and on our own property, provided only that we do not invade others' property borders. We must not lose sight of this crucial libertarian point. If I own a 100-acres of land, I can prance around naked on it, not because the land is imbued with some "right-to-prance-naked," but because I own the land and it does not (necessarily) violate the property rights of others for me to use my property in this fashion.I am restricted in my use of my gun to murder B only because of property rights in scarce resources. Unless you can point to such an act of aggression (trespass), I can use my gun as a means for any action whatsoever. I don't have to find an enumerated right #1,132 in my bag-of-rights, in my "permissions", to do it. I can do any action, so long as it is not a use of another person's property.
And this is precisely why this is not analogous to the IP case. Pointing out the above as an implication or explication of how libertarian property rights is not circular. It does not assume there are only property rights in scarce resources; rather, it unwinds a theory about allocating property rights in scarce resources. The nature of such a system is what implies that assigning rights in "ideal objects" is really simply a different way of assigning rights in scarce resources--an assignment rule that differs from the libertarian-Lockean one; this is exactly why in my 2000 LRC article on IP explicitly opposed "the Second Homesteading Rule."
The IP advocate's argument is dishonest. He says, well, my IP rule limits your property rights, but so do all property rights. So what's the big deal? The big deal is that the only limits we recognize are that you may not violate others' property rights! Murder or normal theft or trespass is obviously an instance of this. But using my own property peacefully is not! The IP advocate needs to show that my use of my own DVD somehow interferes with his own property in his own scarce resources. Obviously, it cannot. So, it fall back on IP itself: it says, well, it doesn't violate B's physical property, but it does violate his intellectual property. Hellooooo--THIS is the circularity. The circular reasoning is done by the IP advocates, NOT by the libertarian who is simply a consistent opponent of aggression.
Published: January 22, 2010 10:58 AM
I was interviewed yesterday by Mark Edge, as part of his "Edgington Post Interview Series," for his Free Talk Live radio show, about my Mises Daily article, "Reducing the Cost of IP Law." The interview is lasts about 35 minutes, and starts at 2:02:36 in the Jan. 20, 2010 show (MP3). Edge conducted an excellent interview--very informed and interesting. And, like many others, he's come around to the anti-IP position.
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