More defenses of IP by the Federalist Society

by Stephan Kinsella on July 29, 2013

Economists and legal scholars have long been skeptical of IP,1 and libertarians in recent decades have become even more skeptical; most nowadays are in favor of abolishing IP altogether.2 So it is passing strange that the Federalist Society, allegedly a group of conservative and libertarian lawyers, is completely dominated by pro-IP discourse. You would never know that anyone opposes IP in principles. Its events, teleforums, articles, never bring up the anti-IP position. It’s always a pro-IP guy (often a federal “judge”) against some “reformer”. The reformer wants to fix the system, but not abolish it. After all, it’s in the Constitution, and that’s sacrosanct! (Nevermind that the Constitution was an illegal coup d’etat,3 which centralized the state, authorized taxation, conscription, eminent domain, slavery, and war, the central bank, inflation, fiat money, the business cycle, and apparently minimum wage laws, regulation of narcotics and firearms and immigration, and the like.)

For recent examples of Federalist Society IP discussions which never include the anti-IP side, but, at most, some “reformist” viewpoints:

These talks often include pro-IP advocate Objectivist law professor Adam Mossoff, federal judges, pro-IP Richard Epstein (whose arguments for IP are glaringly weak, compared to the corpus of his work), or “reformers” who think the copyright term should perhaps be reduced by a few years or the fair use defense expanded or “clarified.” The talk is almost always unprincipled and utilitarian. Or else it is just a positive discussion of the existing law, regardless of its legitimacy or morality. Why no principled libertarian, propertarian, or economist opponents or deep skeptics of IP, such as, off the top of my head: Wendy McElroy, Tom Palmer, Timothy Sandefur, me, David Levine and Michele Boldrin, Mike Masnick, David Koepsell, Tom Bell, Jacob Huebert, Terence Kealey, Roderick Long, Sheldon Richman, Jeff Tucker, Karl Fogel, Nina Paley, and other scholarly and libertarian luminaries? (Many of these thinkers’ works are linked at my C4sIF.org resources page.)

The Federalist Society’s conservative and libertarian bibliography is also lacking in this respect; as I noted previously:

The Intellectual Property section was last updated recently (December 2010, repixeled below) but  it unfortunately seems to have a decidedly pro-IP, utilitarian, and mainstream bias. The material listed is dominated by law and economic analysis (Posner); positivist legal analysis by fairly mainstream scholars; and  technical legal analysis (Chisum) of interest mainly to patent practitioners, not to libertarians and conservatives.

As far as I can tell the material listed contains little explicitly libertarian analysis, other than pieces by utilitarian libertarian law professor Richard Epstein and Objectivist law professor Adam Mossoff—both of whom are pro-IP. The bibliography is missing a wealth of important anti-IP work by libertarians and economists, including many economic and empirical studies that conservatives and libertarians interested in the IP issue should be familiar with. It even omits classic studies by Plant and Machlup (see below). [See Anti-IP Material Needed in the IP Section of the Federalist Society’s “Conservative & Libertarian Legal Scholarship: Annotated Bibliography”.]

To be sure, on occasional local Federalist Society chapters host anti-IP speakers. I’ve done this a couple of times, in Houston and other chapters like Ohio (Federalist Society IP Debate (Ohio State)), but the national group is completely dominated by pro-IP and utilitarian thinking.

The latest example of the Federalist Society’s pro-IP bias is the publication of libertarian lawyer Russell Hasan’s pro-IP article Winning the Copyright War: Copyright’s Merger Doctrine and Natural Rights Theory as Solutions to the Problem of Reconciling Copyright and Free Speech, in its journal Engage (Volume 14, Issue 1 February 2013). This article simply tries to reconcile free speech rights with copyright; it makes no positive much less principled much less libertarian case for patent or copyright. In this, it is similar to arguments by Mossoff and Epstein that try to defend IP on the grounds that it “can” be integrated into a conventional property rights legal framework.4 Well—so what? So what if human beings can be considered property and bought and sold and mortgaged? So what if conventional legal principles “can” be twisted to include various positive legal rights like taxes, welfare benefits, chattel slavery, and IP? What kind of defense or justification is this supposed to be? So what if there is a way to twist and contort constitutional free speech doctrine to make it more compatible with the aims of patent and copyright? After all, free speech is not a primary or fundamental right in the first place; all rights are property rights, and the only just rights are the rights to control certain scarce resources in accordance with the Lockean homesteading rule combined with a few ancillary rules such as contract and tort.5 And it is clear that IP is an infringement of such natural property rights, amounting to a taking, an expropriation, which amounts to a negative servitude.6

Further, as I have previously argued, copyrights and free speech/property rights are utterly incompatible, and for this reason, copyright is clearly unconstitutional (see my podcast KOL067 | Patent and Copyright are Unconstitutional! and notes and links in my post Copyright is Unconstitutional).

The tide is turning against IP. It is increasingly seen, especially by principled libertarians and propertarians, as a clear and dangerous infringement of liberty and life.7

As a side note, even Cato seems to have a similar problem, which is even more striking as it was the home of Tom Palmer, one of the early pioneers of the principled case against IP.  (See Does Cato’s New Objectivist CEO John Allison Presage Retrogression on IP?) “Reformers” like Jerry Brito8 don’t cut it.

Update: For libertarians who think IP/copyright is “compatible” with free speech/1st Amendment: More Copyright Censorship: ‘Straight Pride’ Group Uses DMCA To Take Down Their Own Responses To ReporterWhy Yes, Copyright Can Be Used To Censor, And ‘Fair Use Creep’ Is Also Called ‘Free Speech’.

 

  1.  Legal Scholars: Thumbs Down on Patent and CopyrightThe Overwhelming Empirical Case Against Patent and Copyright. []
  2.  The Death Throes of Pro-IP LibertarianismThe Four Historical Phases of IP AbolitionismThe Origins of Libertarian IP Abolitionism. []
  3. See also Black Armbands for “Constitution Day”Thumbs Down on the Fourth of JulyHappy We-Should-Restore-The-Monarchy-And-Rejoin-Britain Day!. []
  4. See Classifying Patent and Copyright Law as “Property”: So What?Mossoff: Patent Law Really Is as Straightforward as Real Estate Law. []
  5. See my What Libertarianism Is; also Rothbard, “Human Rights” As Property Rights. []
  6.  Intellectual Property Rights as Negative Servitudes. []
  7. See Where does IP Rank Among the Worst State Laws?  []
  8. Brito: What’s Wrong With a Copyright Alert System?Republicans More Radical than Libertarian Copyright Moderates. []
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