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 notice to maintain copyright.” (The problem with the latter is that it arguably violates US treaty obligations under the Berne Convention; so, of course, the US should withdraw from the Berne.)2

The copyright re-registration/fee suggestion is already in place for patents. The term of a normal utility patent is from the date of issuance, to 20 years from the date of original filing, or about 17 years if it takes about 3 years for the patent to issue. The patent expires at the end of this term, unless it is abandoned before that time. The patentee can expressly abandon it (unlike in the case of copyright, which is almost impossible to get rid of)3 But it will also be abandoned for failure to pay a periodic “maintenance fee.” Once the patent issues, a maintenance fee must be paid every 3.5 years; this fee rises exponentially, so that at 3.5 years, it’s $1600, then $3600 at 7 years, and $7400 at 11.5 years (the fees are half that for “small entities,” and one-fourth that amount for “micro-entities”). This helps to clear out some of the patents out there which are not being “used”. The abandoned patents are listed in a notice every week in the Official Gazette of the USPTO (example: Notice of Expiration of Patents Due to Failure to Pay Maintenance Fee).

Now it is true that the US patent system distorts the economy and technology, reduces innovation, and imposes costs north of $100 billion per year. But despite this ginormous cost, at least the patent term is only 17 or so years; maintenance fees are required; significant costs must be incurred to obtain a patent; and it must be actively applied for. Otherwise: no patent. And you can abandon a patent if you want to. Copyright protection lasts usually over 100 years; it is automatic (no active registration is required); no maintenance fees or re-registration is required; it cannot be gotten rid of even by the author; and in addition to economic costs and cultural distortion, it serves as the basis for an increase in police-state surveillance and control of the Internet.4

Did I say we should improve the copyright system by adding a registration and periodic renewal fee requirement? Sorry, I misspoke. I meant to say “abolish the evil copyright system.”

  1. How to Improve Patent, Copyright, and Trademark Law; Obama’s Patent Reform: Improvement or Continuing Calamity?; see also Tom Bell on copyright reform; the Hayekian knowledge problem and copyright terms. []
  2. Re Berne: see Longer copyright terms, stiffer copyright penalties coming, thanks to TPP and ACTA…Public Knowledge’s tepid proposals for copyright “reform”.   []
  3. See Copyright is very sticky! []
  4. SOPA is the Symptom, Copyright is the Disease: The SOPA Wakeup Call to Abolish Copyright;  Masnick on the Horrible PROTECT IP Act: The Coming IPolice State; Copyright and the End of Internet FreedomShould Copyright Be Allowed to Override Speech Rights?Patent vs. Copyright: Which is Worse?. []
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Molinari on IP

by Stephan Kinsella on 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 Tucker’s case against IP seems to have ultimately been somewhat confused. For example, he thought that Spooner’s mistakes on IP2 were connected with what Tucker saw as Spooner’s mistakes on land. That is, Tucker is good on IP, but almost be accident. He believes the argument for IP is based on the idea that you own the products of labor (“he who first takes possession of any material production of nature”), but this argument must be rejected, because this would imply you can own land too. And because he had problems with the ownership of land,3 therefore the principle behind IP must be flawed too.

Most people accept the confused Lockean labor metaphor, and this leads many of them to favor IP.4 Yet Tucker thinks that the problem with the labor metaphor is that it would also imply you can own land. Ugh. If Tucker had realized (as Hume did) that the labor metaphor is just a metaphor and is not even necessary to the Lockean original appropriation argument, he would not have been as able to object to land ownership (since it does not rest on labor ownership), but he could have still rejected IP based on the different nature of scarce resources like land (which are ownable) and nonscarce things like ideas and information (which is not).5

In any case, other, earlier libertarians and proto-libertarians have been confused and/or wrong on IP for a long time, such as Spooner, as noted above, and even  even Proudhon, who otherwise railed against “property” as “theft” (maybe);6 and, in the modern era, Ayn Rand, Andrew Galambos, J. Neil Schulman, Richard Epstein, and others.

I’ve mentioned a few standouts who were heroically anti-IP, beginning with Tucker, the first great anti-IP advocate that I’m aware of, but also including Leonard Read,7 Konkin, LeFevre,8 and McElroy.

Another that can be mentioned is Gustave de Molinari who unfortunately, it turns out, was also bad on IP, as can be seen in the “Second Evening” portion of his 1849 work Les Soirées de la rue Saint-Lazare: entretiens sur les lois économiques et défense de la propriété (Evenings on Saint Lazarus Street: Discussions on Economic Laws and the Defence of Property). As can be seen from the meandering discourse, and the conclusion, it appears Molinari, like the other confused socialists of the time—Spooner, Proudhon (maybe), et al., with the exception of Tucker and a few others—based on confused notions of property and utilitarianism, think that if you support property in material goods, you have to support property in IP. 

 

  1. Wendy McElroy, Copyright and Patent in Benjamin Tucker’s periodical Liberty. []
  2. Tucker on Spooner’s One Flaw []
  3. see Statist “Private Property” Is Theft []
  4. Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors []
  5. See Hume on Intellectual Property and the Problematic “Labor” Metaphor. []
  6.  Proudhon: For Intellectual Monopoly.  []
  7. Leonard Read on Copyright and the Role of Ideas []
  8.  LeFevre on Intellectual Property and the “Ownership of Intangibles”. []
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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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Are Patents and Copyrights “Monopolies”?

August 13, 2013

From my Mises blog post from 2009, with some updates: Are Patents “Monopolies”? JULY 13, 2009 by STEPHAN KINSELLA On occasion you get some defender of patents who is upset when we use the m-word to describe these artificial state-granted monopoly rights. For example here one Dale Halling, a patent attorney (surprise!) posts about “The Myth that Patents are […]

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Techdirt: Copyright Lawyers vs Patent Lawyers Smackdown

August 13, 2013

What can one say…? Copyright Lawyers vs Patent Lawyers Smackdown: And The Winner Is… from the when’s-the-rematch? dept You may remember a rather wonderful court case from 2012 that pitted copyright lawyers against patent lawyers over the issue of whether submitting journal articles as part of the patenting process was fair use. Well, we now have the judge’s decision, as […]

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Rozeff: Contents of Private E-Mails Are Private Property

August 9, 2013

Michael Rozeff has a provocative post on LRC about property rights in the content of email. Here’s the post: Contents of Private E-Mails Are Private Property Suppose that I own a safe and it is empty. Someone breaks into it and finds nothing. They have trespassed at a minimum. Maybe more, maybe breaking and entering, […]

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