≡ Menu

IP in a World Without Scarcity

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

More:

 

[click to continue…]

Share
{ 0 comments }

In a recent Cato Podcast, Trademarks and Derby-Pie®, host Caleb Brown interviews Walter Olson about trademark law, with reference to a recent controversy where the Kentucky Derby was threatening restaurants from selling a “Derby Pie” (see NPR, What’s Inside A ‘Derby Pie’? Maybe A Lawsuit Waiting To Happen), and similar absurd situations such as the NFL using trademark law to coerce companies not to use the term “Super Bowl.”

Unlike many other libertarian groups, which are willing to condemn intellectual property as unlibertarian or at least feature thinkers who argue against IP, Cato routinely hosts panels, speeches, and publications that promote IP and rarely, if ever, features the anti-IP position,1 which is ironic given that former Cato scholar Tom Palmer was one of the early libertarian IP abolitionists.2

I was hoping this short podcast would condemn trademark law in general, as I have done,3 or at least condemn these uses of trademark as clear examples of abuse and injustice and as obviously incompatible with libertarian principles, as I have also done.4 But Olson nowhere clearly does either. Instead, he insinuates trademark law is an ostensible sensible policy (it’s not), and tries to explain some basic aspects of trademark law. Which is odd, for a libertarian institute; you would think it would make some comments about the policy aspects of IP. And not give a legal commentary on how the law works. Especially when the commentary is not especially illuminating or correct. Indeed, the comments about trademark and IP law are confused, perhaps not surprising as Olson doesn’t appear to be a trademark or IP law specialist.

First, Olson indicates that trademark holders can’t really be blamed for aggressively enforcing their trademarks (e.g. by sending out cease and desist letters to potential infringers, filing suit, etc.), since the way trademark law works, it “presses” them to be aggressive—since, if they do not enforce their trademarks, they might lose their trademark protection, for example by allowing it to become generic (as aspirin has become). However, if you hold a trademark and it becomes generic, you are still able to use it. It just means that others can too; you can’t stop them from doing so. So it makes no sense to say that you are forced by trademark law to threaten to sue people, merely to retain your right to sue them.

Second, Olson implies that it was clear to the Founders that unlike copyright, trademarks originally were limited geographically; it’s not clear why the Founders are invoked here, since they had nothing to do with trademark law. The Founders authorized Congress to enact patent and copyright law in the Constitution—but not trademark law. At the time of the ratification of the Constitution, trademark was protected in the common law by the states. Congress did not even attempt to enact the first federal trademark law until 1870. (I’d argue federal trademark law is unconstitutional precisely because there is no authorization for it; but courts rely on a broad reading of the Interstate Commerce clause to validate the law, since it purports to regulate trademarks for goods sold in interstate commerce—which is why state trademark law still exists, alongside federal trademark law.)

Third, Olson implies that copyright prevents an infringer from selling the work of someone else, “as your own.” I.e., that it merely is meant to stop some form of “plagiarism”—for example, if I were to try to sell John Grisham’s novel The Firm under my own name, as Stephan Kinsella’s The Firm, say. But copyright has nothing to do with plagiarism.5 For one, even if you accurately represent the name of the author—give credit, or attribution—copying another’s work is still copyright infringement. If I try to re-sell copies of Grisham’s The Firm under his name, you can be sure I’ll get sued. Plagiarism is irrelevant to copyright, and stopping plagiarism is not the purpose of copyright law. Stopping copying is, regardless of whether the real author’s name is used or not.

Olson characterizes trademark law as being aimed at stopping someone from confusing consumers by selling goods under the original manufacturer’s name. He indicates this is a type of “quasi-fraud.” Well either’s it’s fraudulent, or it’s not. If it is, then the guy selling fake goods to consumers is already covered by fraud law; there is no need for trademark law. It’s only redundant with fraud law. Further, in such as case, the consumer would be the one with the right to sue the knockoff provider, not the original manufacturer. But trademark law gives that right to the trademark holder, not to the allegedly defrauded consumers. Further, trademark law does not even require that a consumer be defrauded for the trademark holder to have a case against the infringer: “likelihood of confusion” is all that needs to be shown, not actual confusion (and not actual fraud or even likely fraud). So, even when the consumer is aware of the “fake” nature of the goods he is purchasing, and wants the fake goods (for example if you buy a fake Chanel purse for $20 to save money), and thus is clearly not defrauded or even confused, the trademark holder can still sue and have the knockoff items seized and destroyed, even though there are no victims of confusion or fraud, or even “quasi-fraud,” whatever that is. And finally, trademark law now doesn’t even require likelihood of confusion—in the US, the Federal Trademark Antidilution Act of 1995 “protects famous trademarks from uses that dilute their distinctiveness, even in the absence of any likelihood of confusion or competition.”

Thus, trademark law is totally unlibertarian, just as patent and copyright are—and for the same reasons that all reputation rights (defamation law, libel and slander) are illegitimate, as Rothbard long ago definitively showed.6 It would have been nice of Olson had realized and mentioned this.7

  1. See Independent Institute on The “Benefits” of Intellectual Property Protection; Richard Epstein, Challenges of Intellectual Property. The only exception I’m aware of is this talk given by Dan D’Amico. []
  2.  See The Four Historical Phases of IP Abolitionism. Although it appears Palmer’s anti-IP views softened a bit years later, at least with respect to pharmaceutical patents. See Cato vs. Public Citizen on IP and the TPPPilon on Patents (archived comments). []
  3.  Trademark versus Copyright and Patent, or: Is All IP Evil?Trademark and Fraud, also this comment . []
  4.  The Velvet Elvis and Other Trademark AbsurditiesHow to Improve Patent, Copyright, and Trademark LawThe Patent, Copyright, Trademark, and Trade Secret Horror Files.  []
  5. See Balancing Intellectual Property Rights and Civil Liberties: A Libertarian Perspective [Transcript]“Oh yeah? How would like it if I copy and publish your book under my name?!”: On IP Hypocrisy and Calling the Smartasses’ BluffsCommon Misconceptions about Plagiarism and Patents: A Call for an Independent Inventor Defense. []
  6. See Rothbard, Knowledge, True and False, in The Ethics of Liberty. []
  7. Trademark versus Copyright and Patent, or: Is All IP Evil?Trademark and Fraud, also this comment.   []
Share
{ 2 comments }

Patrick Smith: Un-Intellectual Property

In this short and well-done video, libertarian and photographer Patrick Smith provides an argument against IP, explaining how he finally “saw the light” and realized that patent and copyright law are unjust and incompatible with property rights. Whereas he would previously become angry when people “took” his photographs and “used” them—especially, gasp, for profit!—he realized his arguments justifying his reaction were  just emotional and finally came to see that there can be no just “intellectual property” rights; there can be no ownership of information.1

Smith rightly observes that all owned things are “media”—i.e. scarce resources. If you own a CD with musical data on it, the data is just the impatterning of the owned media. Likewise, if you own a plot of land (dirt), the farm you build on it is just the impatterning of that media. To give someone ownership of the pattern apart from the medium is to give them partial ownership rights in others’ media (scarce resources). I’ve made similar arguments myself before, as has Roderick Long. As I’ve noted: an object may be owned, and the object may have various features, characteristics, or properties, such as its weight, color, age, size, shape, and how it’s impatterned, but ownership of the object and whatever features it has does not imply that the owner independently or separately owns the features of the object. Information is always stored on and embedded in some ownable medium. The medium may be owned (like a piece of paper or a thumb drive or a machine configured in a certain way), but the properties of the medium may not. As Roderick Long has explained,2 owning the properties of objects that you own would be ownership of a universal, which would result in ownership of parts of everyone else’s already owned physical objects. Ownership of a red balloon would imply you own its “redness,” meaning you now own everything in the universe that has that redness, for example. (I discuss this in various recent lectures and interviews, but I can’t remember which ones precisely, offhand.)3 [click to continue…]

  1.  More and more libertarians have come out against IP in recent years: “The Death Throes of Pro-IP Libertarianism,”; “The Four Historical Phases of IP Abolitionism”; “The Origins of Libertarian IP Abolitionism” . []
  2.  The Libertarian Case Against Intellectual Property Rights; see also Owning Ideas Means Owning People . []
  3. See A Selection of my Best Articles and Speeches on IP.  []
Share
{ 0 comments }

As an increasing number of libertarians nowadays are aware or sense, intellectual property is utterly incompatible with private property rights and libertarian principles. In fact, it is one of the most insidious and harmful of statist policies.1 Ever since the advent of the Internet, which has magnified the costs of IP and made them more apparent, causing libertarians to turn their attention thereto, more and more libertarians are coming to oppose IP. Virtually all anarchist-libertarians, left-libertarians, and Austrian libertarians, and a growing number of minarchists, oppose IP, and in increasing numbers.2

Yet there remain stubborn holdouts: primarily Randians, older generation minarchists, novelists and other authors who think their livelihood depends on copyright, and a few others financially dependent on IP who want to preserve their gravy train. Some libertarian think tanks, like the Mises Institute or FEE, are anti-IP or at least feature anti-IP writers. But other libertarian think tanks continue to cling to IP in one form or another, either defending it, or having endless panels and conferences about how to “reform” IP, but never to abolish it. For example, see the recent Cato event Intellectual Property and First Principles, featuring four panelists, two strongly in favor of IP and none calling for IP abolition (despite the fact that IP abolition pioneer Tom Palmer is a former Cato guy). The Independent Institute is another libertarian think tank that seems to never feature anti-IP writers, only defenders of IP. For example, as I’ve noted before, Independent Institute senior fellow William Shughart, in “Ideas Need Protection: Abolishing Intellectual-property Patents Would Hurt Innovation: A Middle Ground Is Needed,” has embarrassingly argued:

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.

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.

And in the Winter 2015 issue of the Institute’s journal, Independent Review, we have a pro-patent article, Seeking the Patent Truth: Patents Can Provide Justice and Funding for Inventorsby Arthur M. Diamond Jr.

And now we have yet another pro-IP piece from II, “The Benefits of Intellectual Property Protection,” b

If there is one thing about which libertarians are never likely to agree, it is whether intellectual property—patents, copyrights, trademarks, and trade secrets—should receive the same legal protection as physical property.

This is simply a false assertion. As noted above, libertarians are now predominately anti-IP and more and more of us move in this direction. This in fact seems to be one issue that we are in fact likely to agree on, unlike, say, abortion or minarchy. In my own libertarian lifetime I can hardly recall seeing such progress on a previously murky or contested issue.

Without wading too deep into the philosophical debate, but showing my colors as an IP advocate, let me share some new research published by the U.S. Chamber of Commerce’s Global Intellectual Property Center (GIPC) on the benefits of legal protection of intellectual property.

In just one sentence, there are least three things to comment on. First: how can one comment on a supposedly contested libertarian normative issue, while explicitly refraining from engaging in “the philosophical debate”? Sounds like trying to have one’s cake and eat it too—or an abdication of responsibility. One should not weigh in on such an important issue, taking a normative position, without taking or having an argument for a normative or philosophical stance. Second, the author admits he is an IP advocate—though he doesn’t say why (perhaps because of his connections to medical/pharmaceutical industries, which are typically strongly anti-competition, I mean, pro-patent). One can only imagine he thinks his bread is buttered somehow by the IP system. That may be well and good, but it is not an argument. I’m an IP lawyer but I oppose IP, so it is possible to have some integrity. Third: he just launches into “research” as if this is how this issue is to be decided. Not everyone is a utilitarian or empiricist, nor do all of us trust data from advocacy  groups.

Graham then launches into a discussion of the U.S. Chamber of Commerce’s “research.” This reminds a bit of the utterly bogus US Commerce Department report “Showing Intellectual Property-Intensive Industries Contribute $5 Trillion, 40 Million Jobs to US Economy”.3 This argument, of course, makes the mistake of equating correlation with causation, just as similar arguments for IP do, such as: Postwar Japan prospered because it had a patent system; countries with the most IP are the most prosperous; America’s prosperity and growth since its inception is due to its patent and copyright systems.

Regarding the U.S. Chamber of Commerce study, Graham says:

Published on February 10, Infinite Possibilities ranks 38 countries by 30 indicators of strength of IP protection. The indicators measure both law and enforcement: Countries which do not enforce IP rights, despite the letter lf the law, are marked down. Most of the indicators are straight forward: Longer patent, copyright, or trademark terms are better; strong enforcement mechanisms are better; and treaty obligations protecting intellectual property invented in other countries are better.

The report does not attempt to determine causality between strong IP protection and social or economic outcomes. Indeed, 30 indicators are likely far too many to use for such an analysis. Nevertheless, the report does determine a number of positive correlations between strong IP protection and a number of other beneficial indicators. For example, the correlation between countries’ scores and

  • access to venture capital is 0.81;
  • number of researchers in research and development is 0.80;
  • access to the latest technologies is 0.83;
  • access to video-on-demand and streaming TV is 0.64;
  • private sector spending on research and development is 0.75;
  • share of workforce in high-value, knowledge-intensive services.

I could go on, but I am sure you get the drift. Some libertarian critics complain that IP protection is the result of innovation, not its cause; and the legal framework is a consequence of rent-seeking rather than the government’s desire to promote innovation.

This chicken-and-egg question may be beside the point: It is very difficult to envision innovation continuing at the current rate if innovative industries lose the protections for which they advocate. Infinite Possibilities shows there are no innovative and prosperous countries today that do not have strong IP protections.

One’s jaw has to drop at how bad this argument is. Graham admits that the “report does not attempt to determine causality between strong IP protection and social or economic outcomes.” But, it “does determine a number of positive correlations between strong IP protection and a number of other beneficial indicators.” In other words, he admits that the report does not attempt to show causality, that it only shows correlation. Yet then he simply asserts, “It is very difficult to envision innovation continuing at the current rate if innovative industries lose the protections for which they advocate.” Um. But this is the pro-IP premise, which is simply not supported by the study, since it does not even purport to demonstrate causation. 

As for this being a “chicken-and-egg” question: not so. As I have noted, the empiricist-utilitarian approach is unprincipled and bankrupt. But, given the available evidence, anyone who accepts utilitarianism should be opposed to patent and copyright.4

In any case, what do these weird “arguments” for IP have to do with liberty, human freedom, private property rights, and the rule of law? So what if a certain government policy might “promote innovation”? Since when was that the purpose of law, justice, and property rights? Utilitarian libertarians just launch into discussions about empirical benefits of various state policies, as if that is relevant to justice. These libertarians have lost their mooring, and their principles.

The Independent Institute should be ashamed for repeatedly promoting the evil, statist idea of intellectual property—especially in the name of liberty and free markets.

  1. Where does IP Rank Among the Worst State Laws?”; “Masnick on the Horrible PROTECT IP Act: The Coming IPolice State”; “Copyright and the End of Internet Freedom”; “Death by Copyright-IP Fascist Police State Acronym”; “SOPA is the Symptom, Copyright is the Disease: The SOPA Wakeup Call to Abolish Copyright“. []
  2. See “The Death Throes of Pro-IP Libertarianism,” “The Four Historical Phases of IP Abolitionism”, “The Origins of Libertarian IP Abolitionism”. []
  3. See USPTO, “IP Contributes $5 Trillion and 40 Million Jobs to Economy”; USPTO/Commerce Dept. Distortions: “IP Contributes $5 Trillion and 40 Million Jobs to Economy” . []
  4. Legal Scholars: Thumbs Down on Patent and Copyright”; “The Overwhelming Empirical Case Against Patent and Copyright“. []
Share
{ 3 comments }

A Selection of my Best Articles and Speeches on IP

I’ve spoken and published on IP theory so much, even I have trouble figuring out which of my various presentations is the best. I still agree with my Against Intellectual Property (published originally 2001) but it has some extraneous information I would now delete, is slightly dated, and I have in the meantime tightened up the language used in the argument and found a few additional arguments. Plus it’s fairly long.

I did a 2009 piece The Case Against IP: A Concise Guide, but it is really too concise to present the argument—it’s more of a guide to the literature on this topic.

In a way I think the best case against IP is encapsulated in this short post: Intellectual Property Rights as Negative Servitudes.

 

Among my longer recent articles, the best pieces are:

1. “Law and Intellectual Property in a Stateless Society,” Libertarian Papers 5 (1) (2013): 1-44

2. “The Case Against Intellectual Property,” in Handbook of the Philosophical Foundations of Business Ethics (Prof. Dr. Christoph Lütge, ed.; Springer, 2013) (chapter 68, in Part 18, “Property Rights: Material and Intellectual,” Robert McGee, section ed.)

3. “Intellectual Freedom and Learning Versus Patent and Copyright,” Economic Notes No. 113 (Libertarian Alliance, Jan. 18, 2011) (also published as “Intellectual Freedom and Learning Versus Patent and Copyright,” The Libertarian Standard, Jan. 19, 2011)

(all available here http://www.stephankinsella.com/publications/)

Among my talks—I don’t know. I have too many for me to sort out. Probably the best is the latest—e.g. my 2015 PorcFest talk, and other recent ones:

Until I write a new book from scratch—tentatively titled Copy This Book—this will have to do.

Share
{ 1 comment }

Huemer vs. Epstein on Intellectual Property

Interesting recent discussion/debate between minarchist Richard Epstein and anarchist libertarian Michael Huemer at Victor Niederhoffer’s “Junto” meeting in New York. Go to around 1:07:22 or so. Some guy asks a question about patent law in a free society.

Huemer seems to oppose patent law, though in a fairly tepid and unprincipled fashion. Epstein has respectable arguments for minarchy over anarchy, but his arguments for patent law are completely hollow: his case is basically empirical and utilitarian, but he offers no empirical evidence to back up his pro-patent contentions (no one else has either, that I am aware of).

A few minutes later, Epstein argues for a muscular US government to keep order, etc.

Share
{ 0 comments }

Henry George on Intellectual Property and Copyright

Henry George (1839–97): bad on property and rights (e.g. his nutty single-tax ideas, ably dissected by Rothbard here); and bad on IP too. He makes an artificial (and unsustainable) distinction between patent and copyright (like many political thinkers who pontificate on IP, he doesn’t seem to really understand the legal systems of patent and copyright that he feels compelled to weigh in on); he bases his critique of patent on ridiculous notions about the role of labor in the acquisition of property rights (like many thinkers, he relies on a labor theory of property, a cousin of the pernicious labor theory of value); and his defense of copyright is horrific and illiberal, as Benjamin Tucker (who also disagreed with Spooner’s similar views)1 noted.

For more, see: Classical Liberals and Anarchists on Intellectual Property.

From Wendy McElroy: “Copyright and Patent in Benjamin Tucker’s Periodical

The Debate Debuts: The Question of Patent

In the July 7, 1888, issue of Liberty, Tucker critiqued an article by Henry George that had appeared in the June 23 issue of the Standard. George claimed that ownership came from production, not discovery. This led him to reject patents, describing them as ideas that manipulated the laws of nature through machinery. He wrote, “No man can justly claim ownership in natural laws, nor in any of the potentialities which nature hold for it.” To those who protested that only the machine, not the natural law, was being claimed as property, George replied that the principles upon which the machines operated were intrinsic to nature. For example, a windmill was nothing more than an expression of how the force of wind pushing against a surface could produce power. Thus, every patent reduced to an ownership claim over an expression of nature.

George distinguished between two forms of labor that went into producing an invention. The first form was the mental labor of working out the operating principles of the machine — this was the labor of discovery. But since the principles existed in nature — e.g., how X amps of electricity reacts to Y ohms of resistance — they were available for discovery by anyone and could not be claimed by one man. The second form of labor was the actual construction of a specific machine from raw materials — this was the labor of production. Thus, the specific machine a man produced, such as a wheelbarrow, could be claimed as his property but he could not prevent another man from producing his own wheelbarrow.

George then proceeded to distinguish between patents and copyright, and to argue that the latter was a defensible form of intellectual property. That is, he claimed that the labor of production expended on how to say something gave a man an ownership right to that arrangement of words and not merely to one specific instance of the arrangement.

In a response that bordered on an ad hominem attack, Tucker called George “one of the most dangerous men among all of those now posing as public teachers.” It was George’s defense of copyright that elicited Tucker’s scorn. Henceforth, the topic of intellectual property would have two well-defined threads in which patent and copyright were addressed as separate issues.

Concerning patents, Tucker agreed that the act of discovery gave a man no more right to a principle, such as electricity, than simply stepping upon a continent gave him a right to that landmass. Only the labor of production endowed ownership. And, since “the work of production is required afresh in the case of each particular thing,” no particular thing can be claimed by anyone other than the individual who manufactured it.

Tucker then raised controversy by contending that the act of discovering the principle anew was not even required for someone to claim equal ownership to a specific machine for the simple reason that such independent invention might not be possible. For example, Tucker disputed whether any man living in civilization had the ability to independently invent the steam engine; if a man had seen this machine, he was thereby deprived of the ability to conceive it anew. That is, a man who had seen a steam engine could not be totally original in inventing one even if he honestly attempted to be so. “This being the case,” concluded Tucker, “a patent given to him [the inventor] puts the entire world at his mercy.”

  1. See Tucker on Spooner’s One Flaw. Also, on Tucker’s confused argument against IP, see Molinari on IP. []
Share
{ 0 comments }

Nina Paley: Copyright is Brain Damage

From the great Nina Paley, speaking at TEDxMaastricht.

 

Share
{ 0 comments }

CC0
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.