Feds Punish Companies That Don’t Use Federal Copyright

by Stephan Kinsella on July 12, 2014

As discussed in the most recent This Week in Law, the IRS has issued a ruling that makes it more difficult for open-source software groups to claim non-profit status—because if you develop and release software using an open-source license, then, you know, other people might use it for commercial or other purposes. As one of the posts about this (IRS policy that targeted political groups also aimed at open source projects) summarizes:

… We’re all familiar with the ongoing controversy of the IRS targeting of non-profit organizations that are (potentially) affiliated with a political movement – most notably conservative ones. But one thing that has, until now, simply not gotten enough attention is the IRS targeting of Open Source non-profit organizations.

That’s right. The IRS has, in essence, waged war against not-for-profit groups that make Free and Open Source software.

This week, it was announced that the IRS has officially denied Yorba‘s – an organization that focuses on Free Software such as Shotwell and Geary – request to be a 501(c)(3) non-profit. (You can read the full text of from the IRS here.) This could possibly be a one-time, specific case, one that may not even have any relevance to other organizations.

But the wording that the IRS chose to use in denying their status is deeply troubling.

“You have a substantial nonexempt purpose because you develop software published under open source compatible licenses that authorize use by any person for any purpose, including nonexempt purposes such as commercial, recreational, or personal purposes, including campaign intervention and lobbying.”

See also The IRS wages war on open source nonprofits.

So not only does the fedgov foist copyright on people automatically; not only does it make it almost impossible to get rid of it (Copyright is very sticky!); but, now, if you try not to use copyright, e.g. as the open source software movement has very successfully done, the feds will punish you by imposing more taxes on you.

It’s almost as if … they really, really want you to use their copyright system, and become more dependent on it. Hunh.

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I just came across a 1995 article by Brian Martin, “Against Intellectual Property,” with the exact same title as my own 2001 JLS article,  “Against Intellectual Property.” Martin’s piece was first published in  Philosophy and Social Action, Vol. 21, No. 3, July-September 1995, pp. 7-22. I was unaware of this article when I write my own, and have just now heard of this. My first anti-IP writing also appeared around 1995, coincidentally—Letter on Intellectual Property RightsIOS Journal 5, no. 2 (June 1995), pp. 12-13 (as did that of Roderick Long).1 Martin is still writing on this topic—see, for example, his 2012 article Unleashing Creativity and his 2011 The wrongs of copyright.

As Martin wrote me, his special interest is in strategies to challenge injustice; see his page Backfire materials, which states: “The backfire model is a framework for understanding tactics used by perpetrators of injustice and how to oppose them.” See also his article Sharing music files: tactics of a challenge to the industry, which provides an analysis of tactics for anti-IP struggles.

I haven’t read the main paper or the others all closely yet, but from an initial skim, it seems like a fairly unsystematic and positivistic presentation, but motivated by the right intuitions, more or less. Ultimately, in my view, the only way to get the IP issue fully right is to be radical (i.e. not merely advocating tepid reform, but getting to the root of the issue, normative and principled (not merely empirical and utilitarian), and libertarian (based on sound economics and libertarian-propertarian principles).

  1. See, e.g., Roderick Long: Bye-Bye for IPMy IP OdysseyRoderick Long Finally Realizes IP is Unjustified. Also: The Four Historical Phases of IP Abolitionism and The Origins of Libertarian IP Abolitionism.  []
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Tom Bell on Copyright and Intellectual Privilege

May 2, 2014

Nice new short video from Tom Bell about why copyright should be radically scaled back. I would eliminate it, but hey, this proposal is radical and would be a good start.

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Improve the Copyright System by Adding Patent-like Maintenance Fees

April 17, 2014

I’ve discussed in the past various ways the patent and copyright (and trademark) systems could be improved.1 These suggestions include drastically reducing the patent and copyright terms, getting rid of patent injunctions, make the losing copyright/patent plaintiff pay the defendant’s costs, and, for copyright, “Require active registration and periodic re-registration (for a modest fee) and copyright […]

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Molinari on IP

April 8, 2014

I’ve discussed before The Origins of Libertarian IP Abolitionism (see also The Four Historical Phases of IP Abolitionism). Not until fairly recently did liberal and libertarian thinkers start really getting the case against IP right. An exception is Benjamin Tucker, who was anti-IP even back in the late 1800s.1 But as I noted in a Facebook thread, even […]

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Wenzel on patents in developing countries

February 18, 2014

Readers of this site may be aware I have tangled in the past with pro-IP libertarian Robert Wenzel (or whatever his real name is), who has been threatening for years to unbosom onto us his libertarian justification for intellectual property. See, e.g., KOL 038 | Debate with Robert Wenzel on Intellectual Property; Kinsella vs. Wenzel […]

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“Happy Birthday” copyright defense: Those “words” and “text” are ours

February 13, 2014

From ArsTechnica:   “Happy Birthday” copyright defense: Those “words” and “text” are ours Even if the owner wasn’t first, “Copyright law requires originality, not novelty.” by Joe Mullin - Feb 11 2014, 10:15pm CST COPYRIGHT 135 Friedman / flickr There may be no song more widely sung in America than “Happy Birthday,” but it isn’t free to sing. […]

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Slashdot: Open Source — the Last Patent Defense?

February 13, 2014

From Slashdot. For related commentary, see: The Patent Defense League and Defensive Patent Pooling “Defensive Patent License” created to protect innovators from trolls; probably won’t work Taiwan’s Defensive “Patent Bank”     Open Source — the Last Patent Defense? Soulskill posted yesterday | from dp619 51 dp619 writes “A developer might fly under the patent troll radar until […]

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Techdirt: Steven Tyler, Don Henley And Others Join Forces To Fight A Compulsory License For Remixes

February 13, 2014

From Mike Masnick at Techdirt: Steven Tyler, Don Henley And Others Join Forces To Fight A Compulsory License For Remixes from the legacy-artists-attempt-to-control-how-culture-works dept The US Dept. of Commerce has been collecting input on IP issues through its Internet Policy Task Force (the commenting period wrapped up Dec. 5, 2013). One of the suggestions it sought input […]

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Knapp: The Problem Isn’t “Patent Trolls”

February 7, 2014

Finally, a solid piece on patents. Tom Knapp writing at Counterpunch. Most IP critics are not against patent or copyright as such, and focus on its “abuses” or “excesses,” and on the need for “reform.” Knapp goes right for the jugular. It’s sad that more libertarians nowadays do not have a principled opposition to IP. […]

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Blackberry, victim of patent trolls, asks for more pain

February 5, 2014

Ayn Rand thought that the producers should not voluntarily subsidize the parasites who attack them for their virtues. So she has the men of ability go on strike against the state and the parasitical class in her famous novel Atlas. Some mock Atlas and Rand’s other fictional themes as being caricatures and unrealistic. Yet here […]

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Writer Naomi Novik explains copyright to Congress

February 3, 2014

From Boing Boing. This proposal to expand fair use would reduce the damage done by copyright. And for this reason I can’t see Congress doing it. We have the horrible copyright system that is in place now precisely because of the lobbying pressure by Big Content and they will not stand for an improvement in […]

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Cato vs. Public Citizen on IP and the TPP

January 20, 2014

Adapted from a FB post: I’ve mentioned before that Cato scholars have inexplicably come out in FAVOR of the horrendous, fascist, IP-pushing TPP, in an article by Daniel Ikenson. People have told me that just because Cato has one scholar in favor of something does not mean it’s an institutional position. MMhhmm. Check out this Democracy Now […]

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Lessig on the Anniversary of Aaron’s Swartz Death

January 10, 2014

Law professor Lawrence Lessig just penned this little note about Aaron Swartz on Huffington Post: Aaron’s Walk: The New Hampshire Rebellion:   A friend of Social and Internet Activist Aaron Swartz describes the movement his life has inspired: A year ago tomorrow, Aaron Swartz left. He had wound us all up, pointed us in a million directions, we were […]

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Copyright Kills “Men at Work” Flautist, Greg Ham

January 8, 2014

I’ve noted before that “There are No Good Arguments for Intellectual Property”. In “Absurd Arguments for IP” I collect some of the more ridiculous ones I’ve come across. Try this one, from Independent Institute (!) scholar Willliam Shughart: “It is true that other means exist for creative people to profit from their effort. In the case of […]

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How Copyright Distorted Douglas Adams’s Hitchhikers Guide to the Galaxy

December 30, 2013

I’ve mentioned before how patent and copyright distort innovation, technology, the market, culture, and the like (e.g., The Effects of Patent and Copyright on Hollywood Movies; Leveraging IP; Amazingly, Spider-Man Pirates Himself; How Copyright Killed Superboy and Captain Marvel). Last night I was at my brother-in-law’s house and was browsing through his omnibus edition of Douglas Adams’s Hitchhikers […]

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“Six strikes” Copyright Alert System may violate antitrust law

December 20, 2013

Antitrust law is as thoroughly unlibertarian as IP law is, though my guess is patent and copyright do more damage to property rights, freedom, the free market, and the economy.1 The perverse thing is that the state helps to create monopolies by its various policies (patent, copyright, FDA regulations) and then it turns around and […]

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Generation–C: creative consumers in a world of intellectual property rights

December 17, 2013

One of the authors of this recently-published paper, “Generation–C: creative consumers in a world of intellectual property rights,” sent me a copy (by Jan H. Kietzmann & Ian Angell, International Journal of Technology Marketing, December 09, 2013), which has an interesting thesis. From the Abstract: Generation–C is a generational movement consisting of creative consumers, those who […]

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Study: Most Important Innovations Are Not Patented

November 30, 2013

Patents are often used as indicators for economic and innovative progress.1 The assumption is that many patents represent innovation, and also that many innovations are patented. Patent records thus correlate with innovation. A fascinating new paper, “Reassessing patent propensity: evidence from a data-set of R&D awards 1977-2004,” by Roberto Fontana, Alessandro Nuvolari, Hiroshi Shimizu, and Andrea […]

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Intellectual Property Is “Evil”-And Businesspeople Should Oppose It

November 20, 2013

My article Intellectual Property Is “Evil”-And Businesspeople Should Oppose It was published today in BAMSouth.com, my good friend Jack Criss’s new publication. This was a Q&A conducted by Jack. A Q&A with Houston Attorney Stephan Kinsella (Stephan Kinsella, a patent attorney in Houston, Texas, is Executive Editor of Libertarian Papers and Director of the Center for the Study of Innovative Freedom (C4SIF). […]

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The Fountainhead and IP Terrorism

November 5, 2013

A friend wrote me recently to ask my thoughts about Ayn Rand’s The Fountainhead—in particular about Roark’s implicit invocation of intellectual property when he defends himself in the courtroom scene for his actions in dynamiting Cortlandt Homes. As a refresher: Roark had made a side-deal with Peter Keating to be Keating’s ghost-architect, since Keating had little […]

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The Story of the Human Genome Project is a Libertarian Greek Tragedy

November 5, 2013

Interesting article on LRC by Kevin McKernan noting that “The genome sequence has initiated a new economic frontier and it is as impactful as the potential for alternative or competitive crypto currencies like Bitcoin.” Why is this as profound as Bitcoin?  Since money is half of every transaction in human experience, Bitcoin has the potential to […]

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Bad Quaker Interview with Wendy McElroy

October 24, 2013

A Conversation Wendy McElroy Posted on October 22, 2013 by Bad Quaker With Ben Stone Today Ben talks to Wendy McElroy about the evolution of our movement, IP law, Benjamin Tucker, Murray Rothbard, voting, Feminism, and revolution. For more by Wendy, see: The Last Gasp of Copyright Dies Within Me On the Subject of Intellectual Property Copyright and […]

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The Curve: How Smart Companies use Freeloaders to find Superfans

October 16, 2013

In the latest episode of the BBC podcast Start the Week (14 Oct. 2013; go to about 31:30 to start) there is an interesting discussion with Nicholas Lovell, author of The Curve: How Smart Companies Find High-Value Customers Hardcover, about how authors and others can and must adapt to the digital generation to find ways to profit in the […]

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Longer copyright terms, stiffer copyright penalties coming, thanks to TPP and ACTA…

October 13, 2013

Libertarians and Internet-freedom advocates cheered when we defeated SOPA and PIPA—the attempt by the US government to limit Internet freedom in the name of protecting the insidious, false property right known as “copyright”.1 But did we really defeat it? Soon after, similar provisions popped up in other international agreements being negotiated like the Anti-Counterfeiting Trade […]

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Musopen: Set music free!

October 12, 2013

Very cool projetc: Musopen, whose goal is to re-record public domain classical music and putting the recordings in the public domain, among other things. As the site explains its goal is to: improv[e] access and exposure to music by creating free resources and educational materials. We provide recordings, sheet music, and textbooks to the public for […]

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The Abolition of Man Through Intellectual Property

October 12, 2013

Interesting new paper by Kevin Rahbar, “The Abolition of Man Through Intellectual Property,” which argues that ideas are not goods and cannot be property, that IP is incompatible with Christianity and the free market.

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Chernikov: The Oddness of Copyright

October 9, 2013

  The Oddness of Copyright Posted on October 8, 2013 by Dmitry Chernikov| Leave a comment Brown has copyrighted his book, On X. Green, in buying, signs an agreement not to copy it. So far so good. Then Black reads Green’s copy of On X book which he left lying on the table. Rothbard’s position on Black’s rights is as follows. For […]

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Yet another type of IP: NSA “Trademark” Rights

October 2, 2013

From the National Security Agency Act of 1959: “Sec. 15. (a) No person may, except with the written permission of the Director of the National Security Agency, knowingly use the words ‘National Security Agency’, the initials ‘NSA’, the seal of the National Security Agency, or any colorable imitation of such words, initials, or seal in connection with any merchandise, impersonation, […]

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Böhm-Bawerk on Patent and Copyright

October 2, 2013

Says Eugen von Böhm-Bawerk: “In order to avoid leaving an obvious gap in my treatment I wish to add here a few words by way of mention of the legally compulsive relationships of patronage which are based on a vendor’s exclusive right of sale. This group includes, besides others, such rights as patent rights and authors’ copyrights. Of these the latter have […]

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The Wealth of Ideas: New anti-IP book from Joren De Wachter

October 1, 2013

Joren De Wachter, a European software lawyer and IP strategist, sent me a link to his new book The Wealth of Ideas, subtitled “why we need free trade in ideas, rather than the mercantilist tax on innovation we call ‘intellectual property rights’”. It can be downloaded for free from his site; hard copy and kindle […]

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Canada’s “Free Market” Fraser Institute Urges: Strengthen Intellectual Property Law

September 11, 2013

I don’t know much about Canada’s Fraser Institute, but have long assumed it is generally pro-free market and private property rights. After all, it’s published articles by leading libertarian and free market economist thinker Walter Block, it publishes an annual report ranking countries on their level of economic freedom (I think Block used to be […]

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Dyson Sucks

September 11, 2013

Because it is using patents to try to keep competitors, like Samsung, from … competing with it. Here, Samsung is being “accused” of “copying.” Or, as free market advocates would call it, “competing.” Dyson is the latest company to pick a fight with the South Korean giant By Carmel Lobello | September 10, 2013 It could just be […]

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Bastiat on Value, Scarcity, Property

September 7, 2013

From Economic Harmonies, ch. 5, “On Value”: If the reader so desires, he can easily think up for himself other examples of this kind that will convince him that value is not necessarily commensurate with the amount of effort expended. This is a remark that I throw out here in anticipation of later discussion, for […]

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Anti-patent-troll ads launch on radio and in print in 15 states: miss the big picture

September 1, 2013

My comments on a Facebook post about this ars technica article, Anti-patent-troll ads launch on radio and in print in 15 states: Sigh. The problem is never addressed, even by these people. Even if Congress were to somehow get rid of “bad patents” (which is impossible, as the patentability standards are inherently vague and administered by […]

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Fetz: My Journey in the World of Copyrights

August 26, 2013

From Joe Fetz’s blog: My Journey in the World of Copyrights The issue of Intellectual Property (IP) is a very contentious one in libertarian circles and indeed between differing political philosophies, not all parties seem to agree on whether such a system could exist in a free society or whether such a system is just in […]

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Of Dice And Men: IP, Open Source and Dungeons and Dragons

August 23, 2013

In this interesting interview on KERA Think, with the author of a new book on Dungeons and Dragons, the author observes that in the early years of D&D, the publisher was aggressive in suing fans who published modified versions of the D&D rules (presumably using either copyright or trademark law as the weapon of choice), […]

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Lionel Robbins on the Patent Monopoly

August 13, 2013

The following passage on patents, by Lionel Robbins, was called to my attention by Jeff Tucker. This is from Robbins’s 1939 book The Economic Basis of Class Conflict and Other Essays in Political Economy, Part I, “The Interests of Groups and the Interest of Society,” chapter III, “The ‘Inevitability’ of Monopoly,” Section (4), “The Causes of […]

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