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Rob Nielsen: So-Called Intellectual Property

Nice, concise overview of various libertarian arguments against IP by Rob Nielsen on the Living Voluntary blog:

So-Called Intellectual Property


“He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.” – Thomas Jefferson

Property ownership is central to liberty and civilization. Property rights prevent conflict over the use of scarce resources. Ironically, the term “intellectual property” (aka “IP”) represents a hodgepodge of concepts that generally introduce artificial scarcity and needless conflict.

The term “intellectual property” is a biased overgeneralization that prevents clear thinking. The first step in untangling the conflated IP mess is to identify the distinct concepts that it represents. There are three main things commonly considered to be covered by the IP umbrella: copyright, patent, and trademark.

Copyright: A copyright is said to exist when a “work” is “fixed” in a “tangible medium of expression”. The creator of said “work” is granted exclusive rights of “distribution” of their “original expression”.

Patent: Patents are granted to exclude people from making, using, selling, importing, or distributing an “invention”.

Trademark: A trademark is a recognizable symbol that identifies the brand owner of a particular product or service.
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“Patents are bulls–t,” says Newegg Chief Legal Officer Lee Cheng
At Ars Live 6, we talked to the attorney who fought patent trolls and won.

As I wrote in a Facebook thread:

“It’s all confusion and nonsense. He has no principled position at all. “When Cheng put it that way to his employers, they decided the money was worth it. If Cheng’s strategy worked, they would never have to deal with patent trolls again. “It was obvious there was a scam going on, and someone needed to say no,” he recalled.”

No, this is wrong. Patent trolls are not necessarily “scammers”–sometimes their patents are valid–i.e. will be upheld by a court, and the defendant will LOSE. You can’t just assume you will win if you fight–because there IS PATENT LAW. This guy doesn’t get that the problem with the system is not “scams” and “bullshit patents” but GOOD patents. That’s the real threat to innovation and progress.”


By Steve Lolyouwish:

The Rise of 3D Printing pushes the State closer to the Absurd Logical Conclusions of Intellectual Property and Copyright

The UK has just changed its copyright-and-patent monopoly law to extend copyright to furniture and to extend the term of that copyright on furniture with about a century. This follows a decision in the European Union, where member states are required to adhere to such an order. This change means that people will be prohibited from using 3D printing and other maker technologies to manufacture such objects, and that for a full century.

The people selling these copies are not necessarily “scam merchants”. Everybody knows they’re copies and not Vitra or Herman Miller originals. […] But – is there really £6800+ worth of value in the Vitraproduct? Or are they just charging that because they can? Who’s the scam merchant?
A relevant question indeed. Where’s the real scam when something designed 50 years ago is suddenly off limits to 3D printing and home manufacturing, requiring people to buy it at a 2000% markup instead?
Read the full article by the good folks over at Private Internet Access (a great and important kind of company) covering this issue, here.
Looks like yet another reason to finally abolish copyright and intellectual property, if you ask me. The only ones who will really win out in the grand scheme of things with laws in place for IP and copyright are the state, lawyers, and special interests.
The concept of private property was created and evolved to more easily minimize, manage and settle disputes regarding who had just control over some resource(s) — be it land, real estate, raw materials, capital — or any other kind of actuallyeconomically scarce resource. Desperately needed information systems regarding the supply, demand, their meeting place of ‘price’, profit and loss (which reward or punish you for management or mismanagement of these valuable, scarce resources according to the demand of society) evolved further out of that concept.
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“Let us stand on each other’s shoulders, instead of each other’s feet!”

From: Are “Intellectual Property Rights” Justified? (2000), by Markus Krummenacker


A Thesis, from Brent Franklin, Philosophy Dept., Central European University, “The Case Against a Moral Right to Intellectual Property” (Budapest, 2013).


IP Conversation with a Randian

So some Randian, Gary “McGath,” who had published a weak semi-anti-IP article previously, “Patenting Software Threatens Innovation” (his utterly confused and totally useless article pontificates, “Software patents aren’t a necessity. Without patents, code can still be under copyright, protecting its authors from copying without compensation.” Brilliant, Gary, brilliant)—well, he submitted a pro-copyright article to FEE recently, his article “Is Copyright a Right?” As with all pro-IP arguments, it is confused and incoherent.1  As he wrote in his email begging FEE to  publish him, “This article’s thesis is that copyright is a legitimate form of property, based on the same principles as the right to tangible creations. The libertarian case for copyright hasn’t had enough representation lately, and I’m hoping FEE will help to balance the debate by publishing this article.”

Obviously this guy is just another confused Randian who wants to find some way to justify some type of IP protection for his pet interest, software, sort of how Rand searched for a way to find animal rights because she loved her pet cat, Fluffball, or whatever she “Objectively” called it. (But at least, in the end, she had the grace to admit she couldn’t justify animal rights—yet, like most libertarian novelists, she twisted her theories to defend copyright. Because, you know, that’s how you live, man! You got to have protection from competition from the state, man!”)

This amateur, pro-IP, statist submission was rejected by FEE (no surprise, as the founder of FEE, Leonard Read, was naturally against IP) but, I figure, hey, I’ll have a conversation, a discussion, with anyone. So I email him to offer this. I say:

“Tucker told me you wanted to publish an article defending copyright (surprising to me since I believe you opposed software patents in the past). Would you like to have a discussion about it via Skype or phone—not a debate, just a discussion. If it’s not a trainwreck I could post it on my podcast. If you are not aware, I’m a leading libertarian legal theorist and the world’s leading IP policy theorist, and a practicing patent lawyer (also opposed strongly to all forms of IP). Also a semi-/former Randian.

Lemme know.”

His reply:


If you’re talking about offering some money (writing is what I do for a living), sure, I’d be interested in talking about it. My cell number is __. I’ll be around this afternoon from 1 to 6 PM Eastern time.

My views on software patents and on copyrights are two very different things; I believe that copyright is the appropriate level of legal protection for software. My view on copyright is that it stems from the same principles as property rights in tangible objects, coming from a more or less Randian position.

So it’s amazing to me. This is how these Randroid morons think. If you don’t “pay me” I won’t “produce” “values.” They are so… predictable. When I am offering to give him free services valued in the hundreds per hour, plus free publicity. Typical Randroid. You just can’t make this shit up. They really think this way. Unbelievable.

My reply:


If you’re talking about offering some money (writing is what I do for a living), sure, I’d be interested in talking about it.”

Oh, not at all. I was offering to give you maybe an hour of my time, which is valued at $600 by the market, to help tutor you and educate you, and also give you a bit of free PR, since I’m well known and have a popular podcast. I would never pay you–if anything you could pay me, but I would waive the fee, as a pro bono type gesture, as part of my libertarian activism.

“My cell number is __. I’ll be around this afternoon from 1 to 6 PM Eastern time.

“My views on software patents and on copyrights are two very different things; I believe that copyright is the appropriate level of legal protection for software. My view on copyright is that it stems from the same principles as property rights in tangible objects, coming from a more or less Randian position.”

Yes, I gather you are a Randian. Her views on IP are utterly confused and flawed—her worst mistake, worse even than her mistake on anarchy. I thought you might want to have a conversation about it, but apparently you think you need to be paid for this, so again, let’s forget it. It’s just that I’m always willing to take time pro bono to try to expose errors people have in thinking about IP—either for the benefit of the person I am talking to, or for the audience.

You do realize, by the way that FEE doesn’t pay for articles, so you were willing to have them publish your piece for free (if they would have accepted it, which they didn’t—maybe some indication of the value of strained defenses of the fascist idea of copyright in the name of “liberty”).

His reply:

Please do not call me.

Um. As if I had offered (“threatened”?) to “call him”. I offered him my tutoring.

Sorry, Gary, you sad sack. My reply to this … upstanding citizen: “Ditto.” Hey, your loss, Randroid. Your loss.

  1. See“There are No Good Arguments for Intellectual Property.”   []

Sanchez: Intellectual Property Is Theft

Update: see also discussion on Facebook.

Intellectual Property Is Theft

Dan Sanchez

Dan Sanchez
Thursday, June 30, 2016

Property must be distinguished from monopoly. They are often conflated because they both involve exclusive rights. But they are importantly different. Property is an exclusive right to use a particular means. Monopoly is the exclusive right to use any means in a certain way.

Property is the exclusive right to use this boat, this paper, this trap, these speakers, thiscomputer, this plastic, or this aluminum.

Monopoly is the exclusive right to use any boat to trade with India, to use any paper to make playing cards in 17th century England, to use any trap to catch beavers in North America, to use any speakers to play “Happy Birthday,” to use any computer to deliver a podcast or download “Happy Birthday,” to use any plastic and aluminum to build a certain kind of washing machine.

Since it is an exclusive right to use any means in a certain way, intellectual “property” is not property at all, but monopoly. Intellectual “property” is therefore a misnomer, euphemistically used by state-privileged monopolists to drape their monopolies in the mantle of property.

The Innovation Argument

But doesn’t IP stimulate innovation by rewarding it? One hint that something is fundamentally wrong with the “rewarding innovation” argument for IP is that it could be used by any other monopolist. The prospect of a royal monopoly in trade with India may be said to stimulate a merchant company to open up trade with that country. Why do some economists favor IP monopolies, yet oppose mercantilist monopolies? Why stop with artistic, literary, and engineering innovators and their intellectual innovations?

The proprietor must ever be at war with the monopolist.

Indeed, why, in the modern era, do we not offer monopolies in business models and strategies to innovators? Why shouldn’t monopolies have been granted for just-in-time manufacturing or big box retailing? Sure, it would have impeded emulation, obstructed widespread adoption of these efficacious innovations, and kept them from benefiting consumers as much as possible. But, as monopolists might argue using the same line of reasoning as IP defenders, they might have been developed a little sooner if people thought that by developing such innovations, they could get a legal lock on them, and enjoy a long stream of monopoly profits.

Also, keep in mind that the “rewarding innovation” argument has been used by the biggest monopolist of them all, which itself begets all other monopolies: the State. It is often along this line of reasoning: “I was the first to clear this land of bandits and this sea of pirates. I am the first to fully provide defense with force to this land, and therefore I should henceforth have a monopoly of force.” Read, for example, Plutarch. Didn’t Theseus, by clearing the roads of highwaymen and monsters, demonstrate why he and his heirs deserve to rule Athens?

It is true that any prospective monopoly, including IP, might stimulate or accelerate the development of a certain innovation. But for every innovation a monopoly artificially boosts, it precludes, deters, and delays several more innovations: including (1) further innovations that the monopolist would have developed if he hadn’t been able to rest on his laurels, passively collecting his royalties or patent fees; (2) innovations that other creative people would have developed if they had been free to adopt and build off of the monopolized innovation; (3) any innovations that might have built off of innovations in categories (1) and (2); (4) any innovations that might have built off of innovations in categories (1), (2), and (3); and so on. Any institution that eliminates several good things for every one good thing it induces is a bad institution. [click to continue…]


IP in a World Without Scarcity

See this interesting thesis by Mark Lemley, “IP in a World Without Scarcity” (abstract below).



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To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.