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More defenses of IP by the Federalist Society

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’.

Update: from Facebook:

The Federalist Society pretends to be a group for conservatives and libertarians but it is invariably horrible on IP, always taking the pro-IP side. In debates, it’s always about how to “reform” or “improve” the IP (patent/copyright) systems, never whether these systems are just or even constitutional. They routinely feature pro-IP lawyers, judges, and law professors–never a real libertarian who opposes IP law. See e.g. the pro-IP slant of the IP section of their bibliography: http://old.fed-soc.org/…/conservative-libertarian-legal-sch…

E.g. they often feature Adam Mossoff, an Objectivist, not even a conservative or libertarian, of the “Center for the Protection of Intellectual Property”.http://cpip.gmu.edu/about/people/adam-mossoff/ Note: Not for the *study* of IP–but for its *protection*. Hmm, wonder if they have an agenda? yep. Wonder if it is compatible with libertarianism at all? Nope.

Case in point: the latest podcast, which features Mark F. Schultz–who is with the CPIP — and law professor Gregory Dolin, a “doctor” and “lawyer” who has written a paper for the CPIP, and lawyer Robert Sterne, who is also pro-IP (surprise, surprise).

I find it pathetic that the Federalist Society poses as a free market/conservative organization while pushing only the statist message in IP. In this talk, it is really disgusting to hear the commentators whining about a very minor change in the law from Obama’s America Invents Act (which I dissected already at http://www.stephankinsella.com/…/kol164-obamas-patent-refo…/). They literally whine and complain that a patent owner has to defend his patent from challengers in some adminstrative proceeding. They even accuse people who threaten to bring such a proceeding as “extortionists.” for example one of them gives the case of a patent troll who sued Apple for patent infringement and won a $300M judgement, and some “reverse troll” (my language) asked for 10% or $30M or they would challenge the patent’s validity in the administrative proceeding–one of the lawyers calls this “extortion”!! That’s rich.

The Federalist Society is pathetic and worthless. It has nothing to do with liberty.

Property rights in patented inventions are being struck down at an unprecedented rate in a new administrative forum. This new post-grant review procedure (PGR),…
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I sent this email to 3 of the participants:

Dear X:
I’m a patent attorney and libertarian. I’ve long been an opponent of the IP system. I  heard your recent Federalist Society discussion (https://www.fed-soc.org/multimedia/detail/administrative-death-squads-for-patents-assessing-the-new-administrative-procedures-for-challenging-patents-podcast) —
I am curious if you are aware of any good, conclusive study that unambiguously demonstrates that the patent system causes extra innovation the value of which is greater than the cost of the patent system, or even any study that shows that the patent system increases innovation at all. I ask because the empirical and related studies I’m aware of seem to conclude either that the patent system imposes net costs on society, retards innovation, or that the empirics are not possible to obtain or have not yet been measured. E.g., see the quotes below. If you happen to be aware of any published study that contradicts these conclusions, I’d be grateful to know it.
Best, Stephan Kinsella

Fritz Machlup, 1958 (https://mises.org/library/economic-review-patent-system):

No economist, on the basis of present knowledge, could possibly state with certainty that the patent system, as it now operates, confers a net benefit or a net loss upon society. The best he can do is to state assumptions and make guesses about the extent to which reality corresponds to these assumptions. … If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one.

François Lévêque and Yann Ménière (Ecole des mines de Paris, 2004) http://services.bepress.com/leveque/art1/ :

The abolition or preservation of intellectual property protection is … not just a purely theoretical question. To decide on it from an economic viewpoint, we must be able to assess all the consequences of protection and determine whether the total favorable effects for society outweigh the total negative effects. Unfortunately, this exercise [an economic analysis of the cost and benefits of intellectual property] is no more within our reach today than it was in Machlup’s day [1950s]. 

Boston University Law School Professors (and economists) Michael Meurer and Jim Bessen concluded (2008) that on average, the patent system discourages innovation. As they write: “it seems unlikely that patents today are an effective policy instrument to encourage innovation overall” (p. 216). To the contrary, it seems clear that nowadays “patents place a drag on innovation” (p. 146). In short, “the patent system fails on its own terms” (p. 145).

Economists Michele Boldrin and David Levine (2012, http://levine.sscnet.ucla.edu/archive/refs4786969000000000465.pdf):

The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity, unless the latter is identified with the number of patents awarded—which, as evidence shows, has no correlation with measured productivity. This is at the root of the “patent puzzle”: in spite of the [enormous] increase in the number of patents and in the strength of their legal protection we have neither seen a dramatic acceleration in the rate of technological progress nor a major increase in the levels of R&D expenditurein addition to the discussion in this paper, see Lerner [2009] and literature therein. As we shall see, there is strong evidence, instead, that patents have many negative consequences.

  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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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.