From Karl Hess and Robert Anton Wilson Discuss Everything, a Q&A session at a 1987 Libertarian Party convention, an audience member asks them about their opinion on “so-called intellectual property rights,” and Apple’s assertion of IP claims over its computer systems (at 1:13:53).

Hess first replies that he thinks IP rights are “difficult to enforce” and Wilson adds that “they’ll become impossible to enforce very shortly.”

There is then this interchange between Hess and the audience member:

Hess: “They’ve always been sort of crazy, they protect the person who gets there first. … It’s been my understanding all along that libertarians were glorified … by the fact that they very early on had attacked the copyright laws.”

Audience member: “But you’re both authors.”

Hess: “Yeah, sure, … maybe [the copyright laws] protect us in some technical sense, but I’d be happy to sell things in a free market.”

Audience member: ”Would you mind if I took Death of Politics and sold it to make a profit without cutting you in?”

Hess: “People are doing it all the time. Look, I made money off that. I mean I figure, somebody bought it, it’s not mine anymore. … And people do it. People do it constantly. And I think it’s fine …  If I were asked to do it again today, I’d say I’ll do it on the condition that a lot of people read it. And this … may help it.”

Interesting article at Strike-the-Root by Lawrence Ludlow, Dante’s Divine Comedy and the Divine Origins of the Free Market, which makes some interesting connections between Dante’s Divine Comedy, the free market, and (anti) intellectual property theory. An excerpt:

In short, Virgil asks Dante to abandon his outmoded economic paradigm of command-and-control economics, where the Diktat of economic viziers can only derail the spontaneous order of things and undermine the natural benefits of a free market. Virgil is telling Dante that the wealth created by the free and spontaneous order is as abundant as the divine light emanating from the sun. One person’s enjoyment of it does not subtract from the enjoyment of another. And please, let’s not over-extend the metaphor by talking about shadows cast by individuals positioned more closely to the sun! We must assume that Dante is referring to a divine sunlight that probably does not cause cancer either! In an analogous way, Stephan Kinsella’s path-breaking work “Against Intellectual Property,” demonstrated that the concept of intellectual property (IP) is inappropriate for a similar reason.

Divine Sunlight, Intellectual Property, and Love

The shared understanding of a concept among more than one person merely expands with the number of people who share that concept. When greater numbers of people appreciate the concept of a wheel and the advantages that a wheel brings to the art of transportation, the sharing of this concept among many minds does not dislodge it from the mind of the person who originally conceived it. One person’s grasp of a concept does not subtract from another’s. In other words, there is no scarcity in the realm of understanding just as there is no scarcity in the availability of divine sunlight to all who are illuminated by it. That is why the concept of IP is an anti-concept and quite destructive. As Kinsella has shown, the concept of property rights was developed to resolve conflicts of ownership that apply to real, or physical, property – not intellectual concepts. Only physical property is afflicted by the burden of scarcity because the limitations of its physical nature imply that it cannot be simultaneously employed by more than one person. In other words, one cannot have one’s cake and eat it, too. But this concept does not apply to intellectual knowledge – which like the sunlight described by Virgil, shares a quality in which “the blaze of Love is spread more widely, the greater the Eternal Glory grows.”

As much light as it finds there, it bestows; (Verse 70)
thus, as the blaze of Love is spread more widely,
the greater the Eternal Glory grows.
As mirror reflects mirror, so, above, (Verse 73)
the more there are who join their souls, the more
Love learns perfection, and the more they love.

In addition, we can perceive here the overwhelming importance of love in Dante’s exposition. Just as the divine sunlight described by Dante’s Virgil is not diminished by its ability to illuminate many darkened minds, and just as Kinsella’s rejection of intellectual property and replacement of that anti-concept by the concept of shared knowledge demonstrates the undiminished capacity of a shared idea to transform countless lives for the better, love itself does not diminish in proportion to its being shared. Instead, it increases and grows tremendously in its impact. This is a powerful message, and it is one we should all consider deeply. From an anarcho-libertarian perspective, the writer Glen Allport has explored the importance of love as a means of emotional connection in his many valuable essays at Strike The Root – most particularly in The Doctrine of Love and Freedom. While I frequently fail in my attempts to incorporate Glen Allport’s approach in my sometimes-snarky essays, these failures cannot diminish the intrinsic value of the important message of free markets or the equally valuable message of love. I hope that this essay does much to make up for the deficit – shortening my own future journey through Purgatory.

From Jeff Tucker at Laissez Faire Today:

Does Innovation Require the Patent Office?

Jeffrey Tucker · May 10, 2013

 Two years ago, I spoke to a gentlemen who had started and sold four companies. He was currently working on a new project that sounded very promising (for all I know, he has already sold that one too). We had just heard a talk in which the speaker told people that the whole key to business success in our time is patent ownership. Without it, no business can really succeed.

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From the Insurance Journal, more depressing evidence about the baleful effects of the anti-competitive, anti-property rights fascist patent system:

Patent Claims Causing Firms to Exit Business Lines: Study

May 6, 2013

Patent demands are taking a big toll on technology companies, with results that range from forcing companies to tweak their products to exiting their business altogether, according to a study from the Santa Clara University School of Law.

The study underscores the increasing difficulty of dealing with patent claims. Patents have become a major part of business strategy, with companies like Apple and Samsung battling each other in courts around the world in cases that could result in hundreds of millions of dollars in damages.

The SCU report, “Best Practices in Patent Litigation Survey,” focuses on patent demands from companies that do not themselves make anything. The report calls them “patent assertion entities.”

Many detractors call them “patent trolls.”

While PAEs have a bad reputation among technology firms, many patent litigants who do not make products or develop technology think of themselves in a better light. Many of them represent inventors, sometimes university researchers, who cannot afford to defend patents on their own.

Colleen Chien, an assistant professor of law at SCU, surveyed 116 in-house counsels, largely representing technology companies with more than $100 million in annual revenue.

More than 90 percent reported that patent claims from PAEs had affected them financially or distracted from their core businesses.

More than 80 percent said their customers had received PAE demands because the customers used or implemented products that were accused of violating a patent, and almost 40 percent said the claim had resulted in a change to the product.

About one-quarter of the companies surveyed said claims from PAEs lost them revenue or customers, or caused a delay reaching an operational milestone. About 12 percent said they had to tweak their business strategy as a result of a claim.

Around 8 percent said claims had caused them to delay hiring, or to exit a business line or business altogether.

From MacRumours:

EU Antitrust Ruling Says Google Abusing Patent Position in German Lawsuit Against Apple

Monday May 6, 2013 7:01 am PDT by Eric Slivka

The New York Times reports that Google and its Motorola Mobility unit have been found to be abusing their patent dominance in 3G wireless networking technology by the European Commission. The ruling, which comes in the form of a preliminary finding that could lead to formal antitrust charges but has yet to do so, addresses Motorola’s efforts to bar European sales of Apple’s 3G mobile devices over infringement of “standards essential” patents that Motorola is required to license under reasonable terms. Apple did briefly pull a number of devices from its German online store in February 2012, but they quickly returned after an injunction was lifted and Apple later won long-term protection from sales bans while its appeal in the case is heard. The European Commission’s report today calls Motorola’s efforts to enforce a sales ban based on these standards essential patents “an abuse of a dominant position prohibited by E.U. antitrust rules.”

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As I’ve noted in previous threads, this is an example of the insane, mutually conflicting policies of national governments. On the one hand, they enact antitrust statutes to penalize private “monopolies,” even though the only real monopolies that are possible are those created by the state. Then, they create these monopolies by way of patent grants. They thus set up a “tension” between competing government “policies,” and this has to be “balanced.” Hey, I’ve got an idea—get rid of both patent law and antitrust law.

For more, see:

• Government Gives Samsung and Motorola Monopoly Patent Grants; then Probes them for “Patent Abuse”
•  Pro-IP Libertarians Upset about FTC Poaching Patent Turf
• When Antitrust and Patents Collide (Rambus v. FTC)
• The Schizo Feds: Patent Monopolies and the FTC
• IP vs. Antitrust

This type of schizophrenic behavior by the state is not limited to patents vs. antitrust law. It manifests itself in myriad was, e.g. the “tension” between copyright (and patent) and the first amendment (Blackmail, Copyright, Libel and Free Speech; Copyright Censorship versus Free Speech and Human Rights; Excessive Fines and the Eighth Amendment; Copyright is Unconstitutional), and other cases, e.g. Patents and Pot: Feds’ patents say medical marijuana is good, drug war disagrees.

Great find by David Koepsell: A book published in 1869, Recent Discussions on the Abolition of Patents for Inventions in the United Kingdom, France, Germany, and the Netherlands: Evidence, Speeches, and Papers in Its Favour: With Suggestions as to International Arrangements Regarding Inventions and Copyright, ed. by Robert Andrew Macfie (London: Longmans, Green, Reader and Dwyer, 1869; free epub and pdf download).

Too bad they didn’t win the day. And too bad none of the modern statesmen or mainstream scholars will even consider patent abolition, as opposed to tepid reform.

Interesting post from NPR about CERN’s decision in 1993 not to patent the basic protocol of the world-wide web. If they had not done this who knows what would have happened. (It is odd that they contacted law professor Mark Lemley to ask him whether the web could have been patented, as Lemley was never a practicing patent attorney. It’s like asking a podiatrist a detailed question about brain surgery. But what-evs.) CERN might have had a patent, but on what—on a moribund, unused protocol.

This is illustrative of the fact that many current technologies and practices would have been  retarded, more severely distorted, or even obliterated altogether, had IP been enforced as it is “supposed to be.” For a case in point, consider Microsoft’s OS (see Bill Gates’ 1991 Comments on Patents) and other technologies like laser printers and fashion (see Leveraging IP). And future technologies like 3D printing are of course imperiled even now by IP (see The IP War on 3D Printing Begins; Masnick, Don’t Let Patents Kill 3D Printing).

Pro-IP “libertarians” should consider this. The Internet (and the www) is possibly the single greatest tool for freedom in human history, and it has only been around for about 17 years; its existence was for a while tenuous, and could have been retarded, severely distorted, or even extinguished, by a fluke of IP law. This is yet another demonstration that  IP is a blight on humanity, progress, technology, and liberty. (h/t Shayne Wissler)

‘The Single Most Valuable Document In The History Of The World Wide Web’

by JACOB GOLDSTEIN

May 01, 2013 1:00 PM

Twenty years ago this week, researchers renounced the right to patent the World Wide Web. Officials at CERN, the European research center where the Web was invented, wrote:

CERN relinquishes all intellectual property to this code, both source and binary form and permission is granted for anyone to use, duplicate, modify and redistribute it.

It’s a dull sentence from a dull document. But that document marks the moment when the World Wide Web entered the public domain — a moment that was central to creating the Web as we know it today.

I emailed Mark Lemley, an intellectual property expert at Stanford, to ask him about the counterfactual. Could the Web have been patented? And how would the world have been different if it had?

Here’s an excerpt from his reply:

It is entirely possible that the Web could have been patented. A strong patent right would have driven innovation along a different path.

Even in 1993, as the Web was being introduced, scholars and the government interested in data communications were talking about the “information superhighway,” a proposed centralized, government-sponsored broadband network that would have delivered video from TV stations and other approved content. [It is this, and not the Internet, that Al Gore "invented"].

The Web is what happened from the bottom up while government and the telecommunications companies were still figuring out how to build something from the top down. But a patent right could have changed the course of innovation from the decentralized Internet model to a centralized information superhighway model. And we would all have been the poorer for it.

This week, a CERN spokesman called the document ”the single most valuable document in the history of the World Wide Web.” There might be a bit of hyperbole in that statement. (It came from a guy sometimes called the half-spin doctor.)

Still, at a moment when the technology world is swamped in patent lawsuits, it does seem worth pausing to appreciate the moment when a group of researchers renounced their intellectual property rights to patent and gave the World Wide Web to the world.

As reported by ars technica, Fox is using federal copyright law and the DMCA process to bully author Cory Doctorow. His novel Homeland has the same title as the Fox television series, but otherwise has nothing to do with it. Having the same title is not a copyright violation as titles are too short to receive copyright protection:

Not that Homeland: Fox sends bogus takedowns for copyright reformer’s book

DMCA takedowns hit a surprising target: writer and activist Cory Doctorow.

by Timothy B. Lee - Apr 22 2013, 5:50pm CDT

Homeland is a television show produced by Fox that debuted in 2011. It’s also the title of an unrelated novel written by author and copyright reform activist Cory Doctorow. And evidently, the system Fox uses to send takedown notices under the Digital Millennium Copyright Act can’t tell the difference between the two.

TorrentFreak first broke the news that Fox has been sending Google takedown notices for URLs like “http://tpb.piraten.lu/tag/Homeland-Doctorow” and “http://torrentreactor.net/torrents/6214335/Homeland-by-Cory-Doctorow.” Not only does Fox not own the copyright for these works, but because Doctorow published his novel under a Creative Commons license, distributing his work on BitTorrent is completely legal. This means that Fox’s carelessness may be causing legitimate content to be removed from search engine results.

“I have made inquiries about the possible legal avenues for addressing this with Fox, but I’m not optimistic,” Doctorow wrote on his blog. ”The DMCA makes it easy to carelessly censor the Internet, and it makes it hard to get redress for this kind of perjurious, depraved indifference.”

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See also Doctorow’s post Fox sends fraudulent takedown notices for my novel Homeland, and the discussion of this topic on the latest episode of This Week in Law around the 40-45 minute or so mark.

Fox probably did this automatically without reviewing the claim closely, but this just goes to show how federal IP law turns companies into legal bullies who can harm individuals without liability: Doctorow probably has little  redress for any damage caused by the DMCA takedown here, since the statute doesn’t provide one. Fox can just say “oops” and move on. (Though I suppose it is possible Doctorow-as-author may, in the end, benefit from the increased exposure and attention.)

Some people say examples like this just show that the DMCA should be “tweaked” or copyright “reformed.” But given that the pro-copyright movie and music pressure groups despise the DMCA safe harbor that somehow snuck past their radar when it was inserted in 1998, it would be positively scary if Congress were to consider amendments to it, since, if anything, the DMCA safe harbor (which has permitted companies like YouTube to flourish)¹ would be scaled back or eliminated. So: almost nothing positive can be done. We are stuck with an ossified copyright system and its DMCA take down system that permits censorship and legal bullying.

(If we are to have any “improvement” to copyright, it would be: radically reduce the term; get rid of statutory damages and criminal penalties; make the losing copyright plaintiff pay.) ²

Copyright is an abomination and should, of course, be completely abolished. It’s frustrating to have fellow libertarians and civil libertarians who say they are all in favor of patent and copyright “reform” (which never comes—or always comes as a copyright term extension or addition of a DMCA, always making it worse), while saying they are against abolition of copyright because they don’t want to throw the baby out with the bathwater. I saw we do want to throw the baby out with the bathwater, if it’s Rosemary’s Baby.

Case in point is the author of this very ars technica piece, Tim Lee, who poses as a copyright reformer but is not opposed to copyright.³ And the same is true even of the victim in this case: Doctorow. See, e.g., copyright abolitionist Nina Paley‘s post Paley & Doctorow argue over Non-Commercial licenses, where Doctorow makes it clear is not in favor of abolishing the state’s power to grant copyright (which he calls “exclusive rights”). As he writes:

I support regulating the entertainment industry’s supply chain. Copyright as presently or traditionally construed might be a suboptimal rule-set for that industry (I think it’s historically tilted to the favor of capital against the interests of labor), but that’s not to say that there shouldn’t or can’t be a set of rules that govern that industry to ensure fair dealing and to redress inherent power and negotiation differences.

…  lots of policy questions are hard to get right; that shouldn’t disqualify them from consideration for regulation (other rules that are hard to get right include finance, building codes, zoning laws, child protection, etc — I’m OK with the state having a go at them, though, because I’ve seen that in the absence of rules, many of the outcomes are very bad indeed).⁴

Copyright permits bullying, distorts culture, leads to literal censorship of books and movies, imposes hideous costs on artists like documentary filmmakers, and is being used by the state to slowly strangle internet freedom in a web of anti-piracy polices and laws. There is not a single good thing about copyright law; it is rotten to the core and totally incompatible with private property rights, freedom, and the free market.⁵

Pro-freedom, pro-technology copyright reformers should come out with guns blaring against the injustice of copyright itself. It’s time to end it, not mend it.

1. See Veoh Wins Important Case Against Universal Music Over DMCA Safe Harbors Again; But Is Still Dead Due To Legal Fees. 
2. See, e.g.,  How to Improve Patent, Copyright, and Trademark Law; The SHIELD Act doesn’t go far enough: protect victims of all patent aggressors, not just “trolls”; Proposed bill to make losing patent trolls to pay legal fees of victims does not go far enough.
3.  Tim Lee and Lawrence Lessig: “some punishment” of Swartz was “appropriate”;  Reason‘s Tim Lee on Two Decades of Attempts to Enforce Copyright.
4. See also Doctorow: What do we want copyright to do?; Libertarian Sci-Fi Authors and Copyright versus Libertarian IP Abolitionists.
5. See my posts Death by Copyright-IP Fascist Police State Acronym; SOPA is the Symptom, Copyright is the Disease: The SOPA Wakeup Call to Abolish Copyright; Where does IP Rank Among the Worst State Laws?; Should Copyright Be Allowed to Override Speech Rights?; Copyright is Unconstitutional. 

From QuestionCopyright.org, a great interview with Nina Paley. For some background on problems Paley alludes to re CC0, see my post Copyright is very sticky!.

Make Art, Not Law.

Submitted by admin on Fri, 2013-04-19 15:56

QCO Artist-in-Residence Nina Paley’s interview with at Baixa Cultura, conducted by email with journalist and photographer André Solnik. The English below is the original; Baixa Cultura translated Nina’s answers.

1. When your interest on free culture has begun?

For a long time I thought copyright terms were too long and the law could use reform, but I didn’t really understand Free Culture until October 2008, after months on the film festival circuit with my then-illegal feature Sita Sings the Blues. Free Culture was too audacious a concept for me to think about clearly until then. One morning I finally got it — freeing my work would be better for the work — and I spent the next half-year preparing for a Free, legal release of SSTB. That finally happened in March 2009, when I finally cleared all the necessary (and bullshit) licenses at a cost of about $70,000 to myself.

2. Tell me in short why artists should free their work. Is it a good choice for both renowned and new artists?

From my article How To Free Your Work:

Why should you Free your work? To make it as easy as possible for people to share your work — as easy as possible for your work to reach eyeballs and ears and minds — to reach an audience. And to make it as easy as possible for audience support — including money — to reach you…. Copy restrictionsplace a barrier between you, the artist, and most forms of support. By removing the barriers of copyright, you make it possible to receive money and other kinds of support from your audience, both directly and through distributors, thereby increasing your chances of success.

3. Creative Commons has recently released the final draft of the version 4.0 of its licenses. What changes would you like to see? Do you think CC should keep on supporting the nonfree licenses?

Yes, CC should stop supporting the non-free licenses. What kind of “commons” is that?

4. Although they are probably the most known alternatives to more restrictive ones, they still remain unpopular compared to the “all rights reserved“. Why is that? Do you reckon people get confused by the many possibilities given by the CC licenses?

Most people who use CC licenses don’t understand what the different licenses mean; they just call all of them “Creative Commons” as if that means anything. CC’s modular system was a good idea, I see it as an experiment that was worth doing. But the results are in: it didn’t work. What we have now are a mess of incompatible licenses, most of which fail to contribute to any real “commons,” and an increase of confusion and misinformation.

You can’t really blame Creative Commons though — the problem is copyright law. Nothing can fix it at this point. Even CC-0, a valorous attempt to opt out of copyright, doesn’t work in practice, as my experience with the Film Board of Canada showed — even after placing SSTB under CC-0, their lawyers refused to accept it was really Public Domain, and made me sign a release anyway, just to allow one of their filmmakers to refer to it. I will be saddled forever with permissions paperwork even with CC-0. I’ll probably keep using CC-0, of course, but I have no expectation it will work as it’s supposed to.

5. The BY-NC-SA license, although nonfree, it’s pretty popular. Why do you think so? What are the main issues about licensing a work using it?

People are high-minded when they choose the -NC restriction, but it accomplishes exactly the opposite of their ideals. They want to “protect” their works from abusive exploitation from big corporate players. They don’t realize those big corporate players LOVE the -NC clause, because it’s a commercial monopoly. Big corporate players are all set up to deal with commercial monopolies: they have licensing departments and lawyers. It’s the big corporate players who can afford to license your -NC works. It’s your peers, small players with no legal departments and limited resources, who can’t. The -NC clause screws over your fellow artists and small players, while favoring big corporations.

The way to avoid abusive exploitation is to use CC-BY-SA, a Share-Alike license without the -NC restriction. This allows your peers to use the work without fear, as long as they keep it Free-as-in-Freedom. Big corporate monopoly players, however, are unwilling to release anything Freely: if they want to use your work, they’ll have to negotiate a waiver of the -SA clause. For this they will pay money. It works like a regular licensing deal: for $X you waive the -SA restriction and allow them to re-use the work without contributing to the community. I have had many corporate licensors offer me such contracts, although I didn’t sign any because I was such a Free license booster.

The only reason BY-NC-SA is popular is because people really haven’t thought it through.

6. Money seems to be one of the main worries artists have when they hear someone saying “free your work“. Is this “fear“ justified? Have you recovered all the money spent in the making of Sita Sings the Blues?

No, this fear is not justified. But your question sure is biased: “Have you recovered all the money spent in the making of Sita Sings the Blues?” As if with copyright I would have! I have made more money with Freeing my work than I ever did with copyright restrictions. Period. Where do people get this idea that putting a © on something will magically generate money? It doesn’t. If it did, I would fully support copyright, and be rich. Copyright is a “right to exclude,” not a right to make money. You are free to make money without copyright, and you stand a better chance to as well.

7. You have recently announced that SSTB is now in the public domain. Although now you are finally free of burocracy envolving copyright stuff and this action could help your movie to have more visibility, on the other side it could favour restricted modifications of your work (e.g.: a book inspired by SSTB released under “all rights reserved“). How do you weigh these two sides?

Eh, honestly I just don’t care any more. Let’s just put it out there and see what happens. If something terrible happens because I shared freely, I’ll learn from that. But I think it’s stupid to worry about what other people do, and try to control it, especially with broken laws. Even Free Share-Alike licenses require copyright law to be enforced, and copyright law is hopelessly broken. I don’t want to validate or support it in any way.

Licenses are not going to fix our problems. What is fixing our problems is increasing numbers of people simply ignoring copyright altogether. Instead of trying to get people to pay more attention to the law, as CC does, I’d rather encourage them to ignore the law in favor of focusing on the art. Licenses are the wrong solution. Art is the solution. Make art not law.

8. Are you keen on the free software movement as well? Any of your works was made using free softwares?

I’m attending the 2013 Libre Graphics Meeting in Madrid this year, to discuss building a good Free vector animation tool I can actually use. More in this article, It’s 2013. Do You Know Where My Free Vector Animation Software Is?

 

 

Good news, but of course, it misses the fundamental problem which is the patent itself. The problem is not low quality patents or software patents or “abuse” of patents. Even if you get rid of these problems, the fundamental problem remains: the state is granting anti-competitive monopoly privileges that entrenched market players can use to stop competition and enhance their oligopolies.

German Parliament says: Stop Granting Software Patents

on: 2013-04-22

The German Parliament, the Bundestag, has voted on a joint motion against software patents. The resolution urges the German government to take steps to limit the granting of patents on computer programs.

In the resolution, the Parliament says that patents on software restrict developers from exercising their copyright privileges, including the right to distribute their programs as Free Software. They promote the creation of monopolies in the software market, and hurt innovation and job creation. [Correction 2013-04-24: Parliament did not yet adopt the motion, but rather decided to pass it to the parliament committees for further consideration.]

“Software patents are harmful in every way, and are useless at promoting innovation”, says Karsten Gerloff, President of the Free Software Foundation Europe. “We urge the German government to act on this resolution as soon as possible, and relieve software developers from the needless patent-related costs and risks under which they are currently suffering.”

Software patents are illegal under the European Patent Convention. Nevertheless, the European Patent Office has granted tens of thousands of patents covering software. As a result, software developers constantly risk being accused of patent infringement. This causes legal uncertainty which is costly for large companies, and potentially deadly for small ones.

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From Freedom to Tinker, on the “liberal” IP fascist Scott Turow:

Copyrights, Fundamental Rights, and the Constitution

APRIL 22, 2013 BY ANNEMARIE BRIDY 9 COMMENTS

There was a lot to take issue with in Scott Turow’s recent op-ed in The New York Times. Turow, who is currently President of the Authors Guild, took to The Times to criticize the Supreme Court’s decision inKirtsaeng v. John Wiley & Sons, which brought physical books manufactured and sold abroad within the protective scope of copyright’s first sale doctrine. Turow cast the Court’s decision as another blow to authors’ rights, which, by his account, are being pitilessly washed away by the digital tides. He blames the usual suspects: e-books, Amazon.com, pirates, Google, and—this last one may surprise you—libraries. The coup de grace, he asserted, will be the extension of first sale rights to digital copies of books. (It may comfort him to know that the possibility of that happening is more remote following Redigi’s recent defeat in federal district court.)
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My monograph Against Intellectual Property is now available in a French translation, as Contre la propriété intellectuelle Écrit (PDF). It was translated by Xavier Gillard. My work has now been translated into fourteen other languages.

Sad, especially given that Asia was traditionally better on copyright than the West has been (well, at least in China: “To Steal a Book is an Elegant Offense” —Chinese saying).

From Crunchyroll.com:

Tokyo Man Arrested for Uploading “Accel World” Anime Episode

The battle between the Japanese police and illegal uploaders continues

Mikikazu Komatsu

April 18, 2013 12:07am CDT (13 hours ago)

As we have reported, the Japanese police have no mercy for illegal anime uploaders. On April 15th, Kanagawa Prefectural Police’s Cyber Crime Control Office and Minami Station arrested a 34-year-old male temporary dispatch worker who lived in Toshima-ward, Tokyo, on suspicion of using the file-sharing software Share to upload three anime programs including the 8th episode of Accel World to the internet without copyright holders’ permission between June to December in 2012.

My comment on Thoughts on the Great IP Debate:

“The argument against IP does not rest on being anarchist or even anti-legislation. It simply rests on the assumption that property rights in scarce resources are a good thing. Once you accept this, IP becomes impossible to justify. You cannot have both: property rights in scarce resources and IP. Rather, you can have property rights in scarce resources, but not allocated according to Lockean-libertarian principles (first-appropriation and contract). You have to introduce a new ownership rule to implement any form of IP, one that takes property rights in already-owned scarce resources from the libertarian owner and transfers it to a third party, just like any other socialistic welfare redistribution scheme.

This issue is clear. There is a reason libertarians have flocked to it; once they turned their attention to it, the answer is obvious–to those who are honest and have libertarian principles. And it was seen, very very clearly, long ago: by Benjamin Tucker over a century ago, and then in revived form by Sam Konkin, and Wendy McElroy, and then (partially) by Rothbard, and then by Tom Palmer, and, then, starting in the internet age, 1995-, when the issue gained renewed importance, by the bulk of libertarians: Austrians, anarchists, left-libertarians. Even honest utilitarians should oppose IP but… they don’t, making you wonder if they are really utilitarian (reminds of Sowell’s Vision of the Anointed: Self-Congratulation as a Basis for Social Policy: the liberals pretend to favor the poor but ignore evidence that their policies are counter productive; same with utilitarians who pretend to favor IP “because” it stimulates net innovation, and who turn their eyes aside when all the evidence points the other way).”

This is a transcription of my speech Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory. I have cleaned up a few things and added a few links and notes.

From the site for the C4SIF’s journal Libertarian Papers:

Libertarian Papers Ranked “A” by Excellence in Research for Australia (ERA)/Australian Research Council (ARC)

I was informed recently by that Libertarian Papers has received a quite good ranking from the Australian Research Council’s (ARC) Excellence in Research for Australia (ERA), an Australian Government body that deals with academic matters,  provides systematic evaluation of a large number of scholarly journals in different disciplines and generates a database and a variety of reports ranking the journals.  These ratings are often used by Australian universities to evaluate the contribution of their academics to various fields.

The ERA Journal Ranking List for all law and legal studies journals is appended below. The order of the rankings is A*, A, B, C and then not ranked.  Libertarian Papers  is highlighted in the list.  It is ranked at level A, which is the second best ranking on the list, which is considered quite good.

Needless to say, we are very pleased with this recognition of the excellence the journal strives for.

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Maria Fredenslund, the CEO of the Danish CopyrightAlliance, in a debate in which she argues for increased control of the Internet in the name of copyright, proclaims that “control is freedom.” She lauds the “highly controlled and regulated society we live in” and insists that “control gives us freedom.” You see, “Control and regulation creates innovation … and personal liberty.” She criticizes the Internet as being “undemocratic” because there is not enough “control” of it.

And people say I am exaggerating when I use the term “fascism” to describe IP.

Obviously the copyright advocates want copyright enforced online by turning the Internet into a highly-regulated and controlled zone similar to the way socialist democratic Denmark regulates its citizens’ lives. Can we still take seriously anymore the claims of pro-IP “libertarians” that copyright is just a type of free market property right?

(h/t Erik Lau Kelner)

As I note in my What Libertarianism Is, a property right is simply the legally recognized exclusive right to control a scarce resource. The question is always: who owns a particular, potentially contestable, scarce (rivalrous) resource?¹

The way the great legal systems of the world—e.g. the common law and civil law (Roman law, continental law)—deal with this issue is consonant with this perspective. As civil-law Professor Yiannopoulos explains:

Property may be defined as an exclusive right to control an economic good …; it is the name of a concept that refers to the rights and obligations, privileges and restrictions that govern the relations of man with respect to things of value. People everywhere and at all times desire the possession of things that are necessary for survival or valuable by cultural definition and which, as a result of the demand placed upon them, become scarce. Laws enforced by organized society control the competition for, and guarantee the enjoyment of, these desired things. What is guaranteed to be one’s own is property… [Property rights] confer a direct and immediate authority over a thing. ( (A.N. Yiannopoulos, Louisiana Civil Law Treatise, Property (West Group, 4th ed. 2001), §§ 1, 2 (first emphasis in original; remaining emphasis added). ))

The Louisiana Civil Code, at Art. 477, provides that “Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law.”

The practical nature of the law results in its rules dovetailing with libertarian/propertarian rules of justice. But the common law and civil law are not perfectly libertarian.² They have to deal with arbitrary and unjust legislated (statutory) schemes: rights decreed by the legislature out of whole cloth. This leads to complications and absurdities. For example, in the civil law, as I explain in Against Intellectual Property,  the term “things” is a broad civil-law concept that refers to all types of items, whether corporeal or incorporeal, movable or immovable. As specified in the Louisiana Civil Code, Art. 448: “Things are divided into common, public, and private; corporeals and incorporeals; and movables and immovables.” So every “thing” has to be classified as either a movable, or an immovable. The concepts of immovable and movable arose because economic goods are either land (immovables; see Art. 462), or some more “movable” scarce resource (Arts. 471, 475). It makes practical sense to analytically separate these types of economic goods, since legal rules naturally treat them somewhat differently, because land has a unique and “non-fungible” aspect (e.g. its location)  that movable items do not share.

But the positive law arbitrarily introduces property rights in things that are not economics (scarce, rivalrous) goods, and the legal system must account for and classify this. So the distinction between “corporeal” and “incorporeal” “things” arises:

Corporeals are things that have a body, whether animate or inanimate, and can be felt or touched.

Incorporeals are things that have no body, but are comprehended by the understanding, such as the rights of inheritance, servitudes, obligations, and right of intellectual property. [Art. 461; see also Arts. 471, 473, 475]³

So the fundamental purpose of law is the same as that of property rights: to allocate scarce resources to some identifiable owner so that these scarce resources may be employed peacefully and productively (by the owner) as a means of action. When the legislature starts arbitrarily decreeing special positive rights, like patent and copyright, the law must not only have a concept for “corporeal” and “incorporeal”—it must now specify whether these incorporeal rights are movable or immovable. Of course this makes no sense whatsoever; knowledge, ideas, patterns of information, inventions, etc., even legal rights in these things like patents and copyrights, have no location; they have no body; they are incorporeal. So how can they be immovable or movable? How can an idea be considered movable? Or immovable? The notion is nonsense. The reason it is nonsense is because the law is trying to use conflict-avoidance mechanisms (property rights) whose natural purposes is to assign rights in scarce resources, for nonscarce resources like patterns of information. This creates a disconnect, an absurdity in the law.

Nonetheless, the law must have its answer.  It has to answer the question of whether incorporeal “things” are immovable, or movable.

The answer is arbitrary, but found in the way the code defines immovables and movables. Immovables are “Tracts of land, with their component parts.” (Art. 462). IP rights are not tracts or land or components thereof, so they cannot be immovables. And Art. 475 specifies: “All things, corporeal or incorporeal, that the law does not consider as immovables, are movables.” So if it’s a “thing,” and not an immovable, it has to be a movable. Ergo, IP rights—patent rights in inventions, copyright in original creative works—are “incorporeal movables.” Ideas, it turns out, are movable.

Isn’t this good to know? Whew!

And who really thinks the idea of property rights in nonscarce goods is coherent?

1. See KOL 037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory. Also Hans-Hermann Hoppe, “Of Private, Common, and Public Property and the Rationale for Total Privatization”, sec. I, A Theory of Socialism and Capitalism, ch. 2, and The Great Fiction, chs. 2–4 et pass.
2. See my “Legislation and Law in a Free Society,” Mises Daily (Feb. 25, 2010) .
3. See also my Louisiana Civil Law Dictionary .

I received a query about IP from Aaron Easler, a student at Grove City College who had taken a recent course “Economics of Intellectual Property,” taught by my friend Jeff Herbener and covering my Against Intellectual Property. His message to me is reprinted below, with permission, as is my reply.

Hi Stephan, I don’t know how familiar you are with Grove City College and their economics department, but it’s very Austrian and at least Dr. Herberner, the header of the department and senior fellow of the Mises institute is an Anarchist.

Anyways, a few students were really interested in the IP topic and talked him into starting a 1 credit course in IP, which primary consisted of dissecting the various parts of your book and case studies through class-led discussion and debate.

I’ve come to have two main questions/points of contention with your argument. The first is more minor and concerns your criticism of Rothbard and his conception of Copyright though contracts and the other involves your definition of how property is established.

Your main concern with Rothbard’s copyright argument is that a third party who gets ahold of the work cannot reasonably be subject to same contract and had no way of knowing which of two identical works, one with copyright enforced and one without, was copyright protected. Isn’t it fairly reasonable to assume that the copyright-protected one would simply have “copyright” written in it on the opening couple of pages, as they do today? In that environment, why wouldn’t someone who finds a book and accepts the copyright as legally-recognized proceed as he does when finding someone else’s physical property in much the same way?

The second, and more consequential, argument I found unclear was your assertion that ownership of property is established through homesteading. First of all, what is homesteading other than claiming ownership of something that previously hasn’t been claimed? Under that definition alone, couldn’t someone, seeking to legitimatize IP, make that same claim to new thoughts?

More importantly, you reject the notion that establishing ownership requires mixing your labor with something and give the example of someone cutting a neighbor’s shrubs and deeming them his own. However, this obviously wouldn’t be legitimate because it is already owned by someone and can’t be taken through coercion..but how do you define homesteading? It’s just as preposterous to say that by going to some spot and saying your presence in some arbitrarily-defined boundary is yours, too. Presumably, the act of homesteading itself requires DOING something to the land or object that you’re acquiring. Where colonization occurred naturally, via homesteading, the amount of land they acquired surely involved working the land in some sort. So a short version of this question would be: How do you define homesteading and its process?

I know you’re busy and spend a lot of time making your case to much bigger fish than me, but I tried to to at least pose questions that you likely don’t answer every day. Thanks for your time and your (not sloppy) contribution to the IP discussion

My reply:

Yes, I know Jeff well, have known him for years, via Mises Institute functions.

If you guys need some suggestions for more or updated or additional readings, let me know.

Re Rothbard I am working on a long post now about some of this; stay tuned.

Before going into your points in detail, consider this. A sells a mousetrap with some innovative features. There are thousands of copies of it on store shelves. The packaging prominently mentions its innovations to help sell the thing. It has “a new and improved X” or whatever. It becomes popular and starts selling. A makes a profit. Competitors C notice and start adopting similar innovations. They learn from A’s product, they emulate it, they compete with it. A has no legitimate complaint.

Now consider that A first sells the mousetrap to B, but makes B agree not to copy the mousetrap or to use the innovations in any other mousetrap B might make. How does this agreement change the above situation? If A or even B now sell the mousetrap and C observes these features, why can’t C still copy the innovative feature and compete as before?

Consider also that “work” is ambiguous. In copyright law it refers to the pattern of information itself, fixed in a tangible medium of expression. If I buy a copy of Harry Potter—a physical book—the “work” is not really that physical object but the pattern instantiated therein. So if I write a novel there are two ways I can “give” or “convey” the “work” to you: I can sell you a physical book containing the work, in which case (under current law) I am not selling the work to you but only the physical object. I am only giving you a license to use the work for limited purposes. You own the whole book and can resell it, but b/c you do not own the “work” you cannot print copies of the work–that is the exclusive right of the author. I can also give you the work electronically or digitally—without selling you any physical object—e.g. an epub or kindle download. I make this distinction because A “selling” the “work” to B does not necessarily mean that B owns some object that A retains some rights in, that C might handle and use; for C to somehow observe or gain access to the “work”—the pattern of information—does not require him to use any physical object that A sold to B. That is why third parties C are not necessarily bound by any contract or limitation of rights between A and B. It’s just a private contract. Just as C is able to compete wiht A in the mouse trap case because C observed things in the world and learned from it (without violating any contract of A and B, and without committing any act of trespass against any object owned by A), same here: suppose B posts the kindle file on the pirate bay. It’s a file, a pattern of information on some computer server owned by some third party, not A and not B. C downloads the file and thus can print it or whatever, as he has never agreed to any contract with A and did not commit any act of trespass by downloading the information.

Now:

“Your main concern with Rothbard’s copyright argument is that a third party who gets ahold of the work cannot reasonably be subject to same contract and had no way of knowing which of two identical works, one with copyright enforced and one without, was copyright protected. Isn’t it fairly reasonable to assume that the copyright-protected one would simply have “copyright” written in it on the opening couple of pages, as they do today?”

See above: the work need not be a physical object that some third party C has to find and handle and use. Even if you say there is a paper book that A still partly “owns” and that C has no right to “use” unless he agrees to A’s copyright conditions, C can find a way to get the “work”—the pattern of information—without handling any phyhsical book or object still partially owned by A. There can be electronic copies, for example. Or perhaps B has removed the copyright notice. Or perhaps B has printed a brand new copy of the original book, without a copyright notice–and C finds this copy. Sure, B should not have done these things but what if he does? Finally, even if C finds a book owned by A with a copyright notice, I am not convinced that this suffices to form a contract. (See The Libertarian View on Fine Print, Shrinkwrap, Clickwrap and Enforceability of Browsewrap vs. Clickwrap). Was there consent by C? Was there a meeting of the minds?

Suppose I write a book and on the inside cover I write: “By using this book you agree to pay me a million dollars.” C finds the book on a park bench and starts flipping through it. He sees the ransom term and freaks out, drops the book and runs screaming from the park, now worried he owes me a million dollars. Implausible, right? At most, if C finds a book that has a copyright notice and that is still owned by A, then I would say once he realizes the book is not abandoned and is still owned by A, he has to stop using the book in ways that A does not consent to and/or return the book if A asks. But suppose C has read the book in the meantime—does he have to forget the information? I say no.

“In that environment, why wouldn’t someone who finds a book and accepts the copyright as legally-recognized proceed as he does when finding someone else’s physical property in much the same way?”

See above. And realize that there is a difference between the owner of an object granting permission to others to use it, and the formation of a binding contract. For example I can prevent you from driving my car or entering my house without my permission, or I can grant permission that is limited in some ways—I grant you permission to drive my car for a day and only within city limits and only for noncommercial purposes, and in a safe manner. If you use the car in other ways you are committing a type of trespass. I suppose you are incurring an obligation to pay me some kind of restitutive damages—either for contract breach or trespass, something like this. But when I grant you permission to use my car the terms of the permission are a “contract” in this sense, but I can’t make you agree to pay me money based on random or arbitrary conditions without coming to an actual agreement with you on it. I can’t just put a notice on the seat saying “as soon as you sit down you agree to pay me a million dollars; that is the condition I am setting on use of my car”.

“The second, and more consequential, argument I found unclear was your assertion that ownership of property is established through homesteading. First of all, what is homesteading other than claiming ownership of something that previously hasn’t been claimed?”

Something ownable. We are talking about ownable things only. That means things over which there can be conflict. That is the purpose of property: to allocate ownership to things that otherwise would be subject to conflict, so that they can be used peacefully and productively. I discuss this in detail in my recent speech on Locke (Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory). Also see
Hans-Hermann Hoppe, “Of Private, Common, and Public Property and the Rationale for Total Privatization”, sec. I, A Theory of Socialism and Capitalism, ch. 2, and The Great Fiction, chs. 2–4 et pass., and my How We come to Own Ourselves, and What Libertarianism Is.

Given that we accept that ownership of a particular scarce resource ought to be settled by use of the Lockean homesteading rule combined with contract (that is: for a given scarce resource in dispute, we determine who owns it be asking: which of the claimants has a better claim based on earlier use and possession, or by contract from a previous owner?)—then assigning rights in non-scarce “things” like patterns of information, ideas, recipes, etc., always has to be enforced against already-owned scarce resources and thus it sets up a new ownership rule: the owner of the paper and printer in your office is not you (normally it would be: since you acquired these resources by contract from previous owners), but it is some third party who came up with and made public some pattern of information, giving them a negative servitude in your own property. The problem is you never contractualy agreed to grant this negative servitude, nor did you commit any act of tresass or tort against this third party what would justify them seizing some of your property rights. I discuss this in Intellectual Property Rights as Negative Servitudes.

” Under that definition alone, couldn’t someone, seeking to legitimatize IP, make that same claim to new thoughts?”

No, because thoughts are not ownable things, and we can see this as noted above. Please realize that it is literally impossible to own a nonscarce resource. To own means to have the legally recognized right to exclude. That literally can only apply to scarce resources. Ideas can be copied to infinity and used and possessed by a billion people at once. It is literally impossible to have a property right in such things. So what the law does is transfer property rights in scarce resources owned by peaceful people, to the IP “owners”—property rights in other people’s bodies, cars, factories, paper, ink, printers, bank accounts.

“More importantly, you reject the notion that establishing ownership requires mixing your labor with something and give the example of someone cutting a neighbor’s shrubs and deeming them his own.”

No, I do think you have to mix labor. I just don’t think you need to say that the labor is owned, to make this argument. It’s an unnecessary step. See the Locke speech mentioned above and “Hume on Intellectual Property and the Problematic “Labor” Metaphor”.

What I do believe is that “mixing labor” is not SUFFICIENT. You have to mix labor with an UNOWNED SCARCE RESOURCE to homestead it. You can’t mix labor with an owned resource and own it–that is actually trespass, or it is done by permission of the owner, in neither case of which do you own the resulting transformed product (unless the owner has agreed contractually to let you have it). I also think you have to “mix labor” in such as way as to establish some kind of publicly visible borders, so that people can see the nature and scope of the resource and that you are claiming it as owner and they know how to avoid trespassing, they know what to ask permission for and to whom to ask it. The more general idea is embordering as Hoppe explains in ch. 2 of TSC—I suggest you take a look. Embordering is of course a type of action: action that an actor performs to set up borders around or in some previously unowned scarce resource. There is no reason to call this “labor mixing” but I suppose it is a useful metaphor—but only that. Labor just means a subset of action—action that is not leisure. Why not call it action-mixing? Etc. You do not own your thoughts or your love or your memories or your desire or your time or your actions or your labor. Action is what you do with your owned property (your body and other resources at your command).

” However, this obviously wouldn’t be legitimate because it is already owned by someone and can’t be taken through coercion..but how do you define homesteading? It’s just as preposterous to say that by going to some spot and saying your presence in some arbitrarily-defined boundary is yours, too.”

Depends on what you are doing. I agree that mere verbal decree is insuffiicent, as hoppe explains. The reason is it does not set up an objective borders, and it also does not serve the purpose that property rights are for: to reduce conflict: because any number of people could make verbal claims to some resource, leading to conflict and no objective way to resovle it. It has to be someone doing something with it that sets up borders. The extent of it is determined in accordance with what Rothbard calls the relevant technological unit (see his air pollution piece). But notice that if I do go to an unowned spot and somehow use and appropriate and transform it thus establishing borders, no one else can complain about this–if they do complain about it, and assert that i had no right to homestead it, THEY are claiming to be the owner (because only the owner of a resource has the right to prevent me from using it!). But that is contrary to the assumption that the resource was unowned. Plus, their decree is merely verbal.

” Presumably, the act of homesteading itself requires DOING something to the land or object that you’re acquiring.”

Yes. I don’t think I have ever denied this. Maybe you are getting confused since I denied that we own labor. I never said you don’t need to mix labor with a resource to appropriate it. (Though I recognize this is a potentially misleading metaphor and, as I noted above, could be worded differently: embordering, appropriating, “using,” “transforming” and so on.)

“Where colonization occurred naturally, via homesteading, the amount of land they acquired surely involved working the land in some sort. So a short version of this question would be: How do you define homesteading and its process?”

Same way other libertarians and Locke do. And Rothbard: the relevant technological unit idea. How much is actually used.

Update:

Here is another recent reply to another query from a reader:

From the reader, “G”:

Hi Stephan, I don’t think we know each other, but I’ve been enjoying “Against Intellectual Property” and “Law and Intellectual Property in a Stateless Society”, and I have a question and an example on the subject of copyright to which I’d love to hear your reply.

It seems to me that a copyright notice could be interpreted, where appropriate, in a stateless society or otherwise, as conditions of use attached to certain works equivalent to the statement “by accessing or using this, you agree to be bound by the following standard copyright Terms and Conditions”.

If that is true, it seems to me that this could be interpreted to bind all users of the work, whether or not they had entered into an explicit contract with the original producer. Reading a book, second-hand or not, would be analogous to browsing a website which has terms and conditions of use (as most websites do). It would be a contract implied in access or usage, even without an explicit agreement on the part of the consumer. Do you think that this interpretation would be fundamentally incompatible with libertarianism?

Additionally, I have thought of an extreme example which might test whether IP should ever be protected. I don’t know much about American football, but I understand that Fox will be broadcasting Super Bowl 2014. Do you think that it would be compatible with libertarianism for NBC or some other TV network, acting as a third party, to use a legitimate Fox viewer’s TV feed to broadcast the Super Bowl simultaneously or with a slight delay? If not, is this for IP or for other reasons?

Thanks for reading, and for all your interesting work on this subject,

Regards

[G]

See: http://archive.mises.org/9923/the-libertarian-view-on-fine-print-shrinkwrap-clickwrap/

The Libertarian View on Fine Print, Shrinkwrap, Clickwrap

and

http://www.stephankinsella.com/2012/11/enforceability-of-browsewrap-vs-clickwrap/

I have some skepticism about the validity or enforceability of contracts where there is no meeting of the minds. You can view the notice on a book as more like a “no trespassing” sign someone hangs on their fence at their yard or pasteur–it is announcing that the object is owned and that the owner is NOT granting permissions to use it. But at most, this would mean that the person picking up the book (and how did this happen? was it lost? sitting on a park bench? Or on the coffee table at a friend’s house–in which case, does this mean the friend only co-owns the book with the original author?) and knowing there is a copyright warning knows that he can’t use the book in certain ways. for example if it says “you may not read this” then it could be trespass to read it. BUt if it has more complicated terms like “you may read this but only on the condition that you agree to pay me a million dollars IF you ever copy the information you glean” — then I have doubts as to that contract’s validity, any more than if it said “if you read this book you agree to give me your first born child.”

Further, even if the persona handling the book were somehow bound, others who obtained the book-info in other ways would not be. For example suppose he posts a scan of the book online. Now additional parties who download this file are never handling an object owned by the author, so they cannot possibly be bound.

“If that is true, it seems to me that this could be interpreted to bind all users of the work, whether or not they had entered into an explicit contract with the original producer. Reading a book, second-hand or not, would be analogous to browsing a website which has terms and conditions of use (as most websites do). It would be a contract implied in access or usage, even without an explicit agreement on the part of the consumer. Do you think that this interpretation would be fundamentally incompatible with libertarianism?”

“work” here refers under copyright law to the pattern in the novel, not to a physical copy. For such things I do not think the conditional contract works at all since information is not ownable in the first place. The contract works by placing conditions on use of some thing you have no right to use without permission of the author. so a physical book is an owned thing. If I own it i can deny you the right to use it; you need my permission to use it because it is an owned thing. So then I can use this to bargain wiht you–”I will withhold permission for you to open this book unless you agree not to copy it (and to pay me lots of money if you do)”.

But this cannot work for things the reader needs no permission to do. So if you build a house that is in public view you cannot prevent me from observing it–that is not a “use” of your property. It is not a trespass. If you play your music on your lawn and I record it, I am not using your property or trespassing. If you show your home movie on an outdoor screen at night, I am free to record that. You cannot stop me, so you cannot use the right to grant me permission as a way to induce me to enter into any non-copy contract. You have no right to withhold permission. It’s the same for copies of your book that get uploaded to the internet–that is just a pattern of info residing on some else’s property, not the author’s. You simply do not trespass against his property when you download the file, so he has nothing to say about it.

“Additionally, I have thought of an extreme example which might test whether IP should ever be protected. I don’t know much about American football, but I understand that Fox will be broadcasting Super Bowl 2014. Do you think that it would be compatible with libertarianism for NBC or some other TV network, acting as a third party, to use a legitimate Fox viewer’s TV feed to broadcast the Super Bowl simultaneously or with a slight delay? If not, is this for IP or for other reasons?”

this would be prohibited under today’s law but I see nothing wrong with it in a libertarian world. If you broadcast information, it is free. (I think Rothbard would agree too — see http://c4sif.org/2013/04/rothbards-high-tech-crime-a-call-for-papers-1983/ . However if you have some large broadcasters perhaps they would be in a cartel or multi-party agreement where they all agree not to do this with each others’ broadcasts — if state antitrust law would allow them to do this, that is.

From the Washington Times:

Monsanto, steaks, and chefs: Intellectual property and foodSunday, April 7, 2013 - The Business of Living by Joseph S. Diedrich

RELATED COLUMNS

• Even libertarians wrong on Monsanto Protection Act
• Dislike: Facebook Sued for Patent Infringement

MADISON, Wisc., April 7, 2013 ― With all the current controversy over agricultural biotechnology company Monsanto, many are missing the biggest problem: reliance on patents and monopoly protection.

Last week, President Obama signed into law the infamous “Monsanto Protection Act” as part of an Agricultural Appropriations Bill. The law, which essentially protects the agricultural giant against litigation, has caused opponents of Monsanto and genetically modified organisms (GMOs) to erupt in a firestorm.

The opponents rally against Monsanto for numerous reasons.

GMOs are unsafe for human consumption; Monsanto should be required to extensively label all of its food products; the environment suffers from the widespread use of genetically modified crops; Monsanto is a big, scary, evil corporation bent on controlling and destroying the world. And so the list goes on.

These charges are largely hokum. There exists substantial scientific evidence debunking the claims of activists who suggest that GMOs are unsafe for humans or the environment. The call for mandated labeling is a call for increased government regulation, something at which everyone should shudder.

The big problem with Monsanto is its reliance on intellectual property. Rather than on innovation, the company’s entire business model is based primarily on patent protection and the monopoly power the patents have bestowed upon it.

---

SEE RELATED: Even libertarians wrong on Monsanto Protection Act

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While all intellectual property protection is economically and ethically backward (see here, here, and here), a particularly malignant trend is its ever-increasing prevalence in agriculture and food. In 2011 alone, the U.S. Patent and Trademark Office approved nearly 1,200 patents on or related to food.

Read more>>

Note: The complete Libertarian Forum (1969-85) is available in epub and PDF.

A great piece by Rothbard: “High Tech ‘Crime’: A Call for Papers,” from the July–August, 1983 issue. My previous version has typos; I have replaced it with the superior epub/html version here.

THE LIBERTARIAN FORUM
Murray N. Rothbard, Editor
A MONTHLY NEWSLETTER Vol. XVII, No. 7-8
July–August, 1983

High Tech ‘Crime’: A Call for Papers
pages 8–10

The other day an old friend of mine, a libertarian and a veteran New Yorker who like myself is determinedly low-tech, was lamenting the crime problem. “Somehow,” he grinned, “the one thing I can’t work up any worry about is ‘computer crime.’” We laughed heartily. But later I began to ruminate on the new areas of alleged crime opened by our new “high tech” technologies. The press is full of mounting hysteria about the alleged need for new laws to cope with new high-tech crimes. Young lads in Milwaukee, inspired by the marvelous and exciting film War Games, use their home computers and modems to enter secret computer information networks. The New York Times headline (Sept. 18) proclaims: “Prosecutors Find Laws Inadequate to Fight New Computer Crimes”. Meanwhile, senders of cable-TV programs fight to prosecute enterprising folk who build antennae on their roofs to catch signals without paying, or others who purchase satellite dishes to trap every possible TV frequency. And the Supreme Court is gravely hearing a case that might allow producers of video films to prohibit (or at best tax) people from using their own VCRs to tape TV programs or movie cassettes which they rent from entrepreneurs.

But wait a minute! Before we rush to pass new laws making criminals out of large groups of people, surely we should pause and think—and surely, too, our a priori presumption must be that whatever anyone is doing is legitimate, unless someone can prove otherwise. The burden of proof is on those who would make criminals out of previously peaceful and productive citizens. At first blush, it seems that, yes, we must pass new laws adapting the concept of crime to new technological realms. But then we must stop and consider: Why can’t the common law, which has always applied principles to new technological situations, be applied without creating new statute law—always a dubious instrument at best?

Take, for example, alleged “computer crimes.” We learn that, for what all of us would recognize as theft, such as the computer bank theft committed years ago in a lovely British film by Peter Ustinov, there is really no need for new laws. Thus, the New York Times (Sept. 18): “Prosecutors distinguish between two types of computer criminals. On the one hand, they said, are those who use computers as a tool to defraud banks or other businesses, often using modern technology to cover their tracks. Prosecutors and private computer security consultants said such cases were still the most commonand the laws dealing with them were adequate.” (Italics mine.) In short, the regular laws against fraud and theft are sufficient; for such deeds which everyone would recognize as criminal there is no need for new laws.

What worries prosecutors, then, where their hands are now tied, are situations where young computer mavens or “hackers”, using their own computer, their own modem hooking them up legitimately to a telephone line, can extract information from other computers also hooked up to the same line. When, typically, a password is needed to hook into the other computer, the hacker can often discover the passwork by guesswork or by randomizing sequences of numbers.

Well, before we rush to laws, let us ponder the problem. Why should it be illegal for a young hacker, using his own computer and modem, to hook into a modem of another

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computer? It seems to me that libertarianism decrees that every person should have the right to do whatever he wants with his own property. Only the hacker’s own property, and phone lines for which he has bought access, is involved in this “computer crime.” So how can it be a crime at all?

But how then can copyright be justified at all? If I buy a book from a bookstore, by what right does the word “copyright” stamped on the book prohibit me from reprinting and reselling it? The answer there—and the reason why copyright is a common-law action—is that I contracted with the bookstore (who in turn contracted with the publisher and author), when I bought the book not to reprint and resell it. In short, my contract decreed that I do not own the book outright; I own every aspect of the book exceptthe right to print and sell it, which the publisher or author reserves to himself. Therefore, violation of copyright should indeed be illegal.

But the problem has been raised: What of third parties? Can they be said to violate copyright? Someone else, Zeke, sees the book in my house, or I lend it to him. He then copies it and reprints and sells the book. Since he didn’t sign any such contract, how can Zeke be violating copyright or doing anything illegal? My reply here is that whether Zeke signed any contract is immaterial. The important point is that my own title to the book was obtained with the right to copy reserved to the author/publisher; and that Zeke’s title cannot be any wider than my own. The point here is akin to a tort problem. Suppose that I had stolen rather than purchased the book. And suppose, too, that Zeke had bought the book from me in good faith, thinking that I had purchased it legitimately. Doesn’t he then really own the book, and can’t we then say that when Zeke is apprehended with the stolen book, that the injured bookseller can’t deprive him of it? Surely not, for a contract cannot convey a greater title than the one originally held. I stole the book, and therefore the book is stolen property, and Zeke must disgorge it if apprehended. He can then try to take damages out of my hide, for defrauding him. But the book properly belongs to the bookstore alone. Similarly, my title to any copyrighted book is not mine fully; I don’t have the right to copy, and therefore Zeke can’t have the right to copy either.

So while I defend the common law of copyright, I contend that there is nothing analogous to a copyright contract in the case of “theft of information” from a computer and its modem. The young hacker has not contracted anything with the other computer-owner; his only contractual status is with the phone company, whom he pays for access to its lines. And I can’t see that the hacker has committed any tort either. His “entry” into the other computer is only metaphoric. In actual fact, he was only able to get information through a phone line to which both owners have voluntarily hooked their computers.

I conclude, then, that there is here no computer crime at all. And that if the computer owner wants to safeguard his information from free-loaders, it is up to him to install security safeguards so as to make entry into his system impossible for those not paying a fee. The burden is on him to keep his own phone line free of unwanted persons. I conclude further that no new computer crime laws should be passed and that libertarians should oppose them as interfering with the property rights of hackers.

Why, in fact, do the owners keep their modems hooked into general telephone lines, despite the unchecked “theft of information”? Because of the great convenience in having a large number of computers hooked into each other to constitute a vast, nationwide data network. All right then; if the owners calculate their benefits and costs, and figure that the benefits to them of plugging into the information network outweigh the costs of hackers being able to use it for free, then so be it. If not, let the owners get out of the networks, or else tighten their security systems. Let them take their cue from the Defense Department, which has now decided to “build a fence” around their networks, especially their military computer networks, with “virtually uncrackable” coded messages and special passwords required for entry. (New York Times, Oct. 5).

Let us now turn from computer “crimes” to TV frequencies. The situation, I submit, is analogous. If a TV station, whether regular or cable, emits frequencies on a certain channel at a certain place, then it should have the

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private “ownership” of the right to transmit signals on such frequencies. Anyone else trying to broadcast on the same channel at the same place should be dubbed an aggressor against the property right of the pre-existing TV station. Indeed, that is precisely how the federal courts were beginning to apply the common law to the new technology of radio transmission (Tribune Co. v. Oak Leaves Broadcasting Station, Circuit Court, Cook County, Illinois, 1926), when the federal government, in panic that each radio station might obtain private property rights, rushed through laws to prevent it and to nationalize the airwaves (The Radio Act of 1927).

But even though every station should have the unimpeded right to transmit signals on any given channel or frequency, it should not be able to interfere with anyone’s right to receive signals. The station does not and cannot own the signal itself, only the right to transmit the signals. Why should Tex, a man with his own satellite dish or antennae on his own property, not have the right to receive any signals he darn pleases with his own equipment? Cable-TV stations, of course, can and do scramble their signals so that TV set owners who don’t pay cannot receive a clear signal. And that’s fine. Let Home Box Office scramble its signals, then, and good luck to it. But I find it monstrous that Home Box Office can and does send out the gendarmes to harass people ingenious enough to build antennae on their roofs in Brooklyn and Queens and point them toward the World Trade Center, thus picking up HBO signals without payment. If HBO doesn’t like it, let it set up a better scrambling system. If it can’t do so or it finds that alternative too costly, then it should jolly well have to put up with ingenious freebies, with satellite dishes or pointed antennae.

Finally, there is the almost incredible harassment of VCR owners. If I buy a VCR and a blank tape, I should be able to tape a movie or other program off my own TV set. If the TV or movie people don’t like it, they should jolly well have to lump it. It is grotesque that movie producers might get the Supreme Court to agree to outlaw use of the VCR. Worse yet is that the movie producers are harassing poor SONY, who only manufactures and doesn’t use VCRs. Obviously, SONY has the deep pockets to enjoin and sue, which most home owners do not. Obviously, too, the government would have a great deal of difficulty mobilizing an enormous Gestapo, armed to the teeth, to break in on and confiscate or destroy the VCRs in many million American homes. Defend your VCRs to the death, fellow Americans! In practice, then, the movie people are not going to outlaw VCRs. They will just force SONY and the other manufacturers to pay a tax to the movie people, a tax which will be passed on to every VCR buyer. But the unfortunate principle—and the higher cost—might well be enshrined in the books.

The problem in all these cases is not whether “property rights” should or should not be upheld. The problem in each of these cases is: Who should have the property right? The computer hacker to do what he wants with his own computer and his access to the telephone lines, or the other computer owner? The signal sender or the signal receiver in the latter’s own equipment? The VCR owner or movie producers? In all of these cases I believe that the concept of copyright has been illegitimately extended to become invasive, and that the fact that the common law cannot combat these “crimes” is already an indication that they are not crimes at all.

But I am in an odd position here. Of all the people in the libertarian movement, I probably know the least about computer technology. There are few movement people lower tech than myself. And yet among all the computer mavens in the movement, I have seen no discussion of these thorny issues. But it is important to apply libertarian property rights theory, i.e. judgments in various areas on who is a criminal and who is a victim, to advancing technology. So on these matters I still have a relativelyopen mind. Before the Iron Door closes, I cheerfully invite libertarian theorists and high-tech mavens to submit papers, on any or all sides of this problem, for possible publication in the Libertarian Forum. Is there computer crime? Are VCR and satellite dish owners criminals? Please send in your discussions, and help advance libertarian theory.

From my Kinsella on Liberty podcast:

KOL 038 | Debate with Robert Wenzel on Intellectual Property

by STEPHAN KINSELLA on APRIL 1, 2013

in INTELLECTUAL PROPERTY,KINSELLA ON LIBERTY PODCAST,LIBERTARIANISM

Read more>>

This is a nice, concise piece by Predrag Rajsic, posted at Mises.ca. More and more libertarians are getting it. (See The Origins of Libertarian IP Abolitionism, The Four Historical Phases of IP Abolitionism, The Death Throes of Pro-IP Libertarianism,  Have You Changed Your Mind About Intellectual Property?, Yet another Randian recants on IP.)

Monday, April 1st, 2013

by Predrag Rajsic

posted in Intellectual Property, Law,Philosophy, Regulation.

Many contemporary theorists and commentators frame the question of intellectual property as a question of ownership over ideas. In this framework, a new product is seen as an embodiment of a new idea. Producing multiple copies of a new product is then seen as a materialization of the same idea. Some conclude that ascribing ownership over a new idea to its original creator in the same way we ascribe ownership over material objects is inconsistent with either classical liberal or libertarian theory of rights. This inconsistency has led some to conclude that a creator of a new product has no right whatsoever in limiting the future replication of that object by others. This, however, is an erroneous conclusion.

The purpose of this article is two-fold. First I will elaborate why the concept of intellectual property is inconsistent with the classical liberal and libertarian theories of rights. In short, the root of this inconsistency is in the incoherent and ultimately subjective criteria for conflict resolution created by the concept of intellectual property. Second, I will argue that this inconsistency does not imply all replication of a new object is illegitimate. Classical liberalism and libertarianism contain clear principles for evaluating the legitimacy of copying in different situations. Both of these points bear heavily on the distinction between an idea and physical objects and on the nature of ownership under the classical liberal and libertarian theories of rights.

The Distinction between an Idea and Physical Objects

In its most general form, an idea has been defined throughout history as that which is not matter. For example, I may have an idea of a circle in my mind, but as far as we know, this circle does not exist anywhere as a physical object. It takes physical objects, say, pen and paper, to translate my idea into a material form. However, this translation is only provisional. I can imagine a circle that can never exist in reality. The equation x² + y² = r²defines an infinite number of dimensionless points in the x-y space, all at an equal distance, r, from one, central point. In other words, this is an equation of an ideal circular line in the Descartes’ two-dimensional coordinate system. This line, however, has no thickness or mass. No one can draw a line that has a thickness and a mass of zero.

This exercise has illustrated that, while ideas are not physical objects, they take shape through specific relationships of physical objects. In other words, an idea describes a relationship among physical objects. The idea of a circle describes a relationship of dots on a piece of paper or iron molecules in a steel rim, or polyvinyl molecules in my car radio knob or any other material particles in countless other circular objects.

We communicate our ideas to others by the use of physical objects. I am now using black shapes on a white surface to convey this idea. Some computer programs can translate these shapes into vibrations of oxygen, carbon dioxide and nitrogen molecules (i.e., audio waves) that you can hear. Maybe, someday, we will be able to communicate by the use of electromagnetic waves emitted directly from our brains. Even this form of communication of ideas requires material objects—electromagnetic waves. It takes a specific arrangement of physical objects to convey an idea. But it is important to maintain the distinction between the idea and the object. The idea is not the object. The idea is non-material. The object is material.

Since ideas are non-material phenomena, they have some attributes that physical objects don’t have. For example, the same idea can exist in two different places at the same time. The idea contained in the previous sentence now exists in your mind as well as in my mind. It did not disappear from my mind after I gave it to you. Therefore, we cannot speak of “theft” of ideas in the same way we speak of theft of physical objects. Your future use of my idea does not remove my ability to use the same idea. This is not the case with physical objects. If you take my car and decide to use it, that car will not be available to me anymore.

However, there are even more troublesome implications of the distinction between ideas and physical objects. To appreciate the importance of these implications for a proper assessment of the concept of intellectual property within the classical liberal and libertarian frameworks, we need to provide a brief summary of classical liberalism and libertarianism.

Classical Liberal and Libertarian Theories of Ownership

Classical liberalism rests on the concepts of self-ownership, homesteading, and non-aggression. According to this theory, each person has the right to be the master of his or her own body. This right stems from the belief that each person has free will as a gift from God.

The next step in the logic of the classical liberal theory of rights is mixing one’s labour with nature—homesteading. One acquires legitimate ownership over the products of his or her own labour when these products are created by using resources that were not previously owned by anyone. In other words, natural resources belong to the one who finds them first. In cases when a resource is already owned by someone, another person can legitimately acquire this resource only through a voluntary exchange. The key feature of a voluntary exchange is that the exchange is performed in the absence of physical aggression or a threat of physical aggression.

Modern libertarianism has much in common with classical liberalism. Like classical liberalism, modern libertarianism is based on the concept of self-ownership, homesteading, and non-aggression. Unlike classical liberals, libertarians generally do not seek a religious justifications for the origin of rights. The existence of free will is understood as an axiom—a self-evident truth that cannot be proven or disproven. Aside from the potential disagreement on the origin of free will and self-ownership, classical liberals and libertarians derive similar conclusions when it comes to the legitimate ownership over resources.

Within the classical liberal and libertarian theories of rights, ownership is defined as one’s jurisdiction over physical objects within a defined space and time. For example, I own this computer, but I don’t own the room in which I am sitting and typing this text. The room is owned by the real estate company that rents apartments to tenants. This spatial delineation of ownership performs a specific function—it defines the terms for resolving conflicts among individuals.

If I wanted to sell this apartment to someone, my landlord would probably object to this transaction. The fact that the landlord owns the apartment provides a clear rule for resolving this conflict. I don’t have the right to sell something I don’t own. On the other hand, if I wanted to sell this computer, my landlord could not object because the physical matter that makes up my computer is not under his jurisdiction. Therefore, the classical liberal and libertarian theories of rights provide a clear prescription on how to resolve our conflict. This is the ultimate practical function that any moral rule has to satisfy—to provide unambiguous criteria for conflict resolution.

In that sense, a rule that creates contradictory or conflicting prescriptions for action does not qualify as a universal moral principle. If an action can be right and wrong under the same rule, then this rule does not contain a clear demarcation principle between right and wrong and thus cannot be used as a moral principle. Intellectual property is one such rule that creates ambiguous and conflicting recommendations for action.

Conflict Creation through Intellectual Property

Let us now extend the concept of ownership from physical objects to ideas and let us go back to my circle example. Suppose I was the first person to come up with an idea of a circle, and I use this as an argument that I own the idea of a circle. Since ideas are non-material phenomena that materialize through relationships among material objects, my claim that I own the idea of a circle implies a claim of owning a relationship among physical objects. I claim that I own a relationship in which physical objects are arranged in a circular shape. This, in turn, implies a claim of ownership over physical resources—I claim that only I have the right to arrange physical objects in a circle.

This creates a problem. If I claim I own the idea of a circle and, say, my neighbor claims he owns his pen and paper, there is a conflict. My claim that I own the idea of a circle interferes with his jurisdiction over that pen and paper. He now does not have complete jurisdiction over that pen and paper. According to me, only I have the authority to leave a circular trace on that paper with that pen. According to him, however, that pen and paper are his and he may use them to draw whatever he pleases, including a circle.

Now we need an additional rule to resolve this conflict. We need to determine whose ownership has priority and why. But, whichever way we decide to solve this conflict, the result is that, after introducing the concept of intellectual property, neither the traditional classical liberal theory of ownership nor the intellectual property theory alone were initially sufficient to resolve the conflict.

The second problem is the arbitrary nature of the intellectual property rule. All arrangements of matter differ from each other to some degree. One circular arrangement may be one millimetre wider than the other in some areas. But, why stop at one millimetre, or at one micrometre, or at one nanometre, or at any order of magnitude?

So, we have to decide how similar two objects have to be to be considered identical. Like any choice, this choice is ultimately subjective in nature. One individual may think that if any two circular shapes, when superimposed, do not deviate from each other by more than 1 millimetre, they are similar enough to be considered identical. Another person may think this is too big of a difference and he or she may ask for a stricter standard, maybe one tenth of a millimetre. Yet some other people may think that even this standard is way too loose, and they may ask for a one micrometre cut-off point. Whichever the cut-off point, it is always subjective. Now my neighbor’s freedom to use his pen and paper depends on the whims of whoever decides which shapes are similar enough to my circle and which are not.

Thus, by introducing the concept of intellectual property, we have added a degree of subjectivity into the criterion delineating the distinction between right and wrong. In contrast to physical invasion of property, where the limits of one’s property have objective attributes in space and time, the limits of intellectual property are subjective in nature and they exist only in the mind of the individual that judges which objects are similar enough to be considered identical.

This leads to situations where it is humanly impossible not to violate someone else’s intellectual property. If the decision on what is similar enough to be considered identical is indeed subjective, and it is, then someone could expand the limits of intellectual property depending on his or her preferences. I may think that a hexagon is similar enough to a circle to be considered a special case of a circle. After all, if we follow the geometrical logic of a circle, a circle is a polygon with an infinite number of sides. Why not then include all polygons?

We don’t have to stop there. We could include an ellipse as well. If an ellipse that deviates one micrometre from the shape of my circle is similar enough to it to be considered identical, why not an ellipse that deviates one milimetre or one centimetre or five centimetres. Using this logic, almost any shape can be produced from our original shape if we simply expand small deviations from the original shape. There is no objective criterion when these small deviations begin to be too large.

This means that our criterion for separating right from wrong is not only subjective but it can change at any instant depending on someone’s preferences.  This is a far cry from the classical liberal and libertarian theories that seek universal principles that apply equally over space and time to everyone (i.e., non-aggression) where our adherence to these principles can be verified using objective demarcation criteria (i.e., physical intrusion into a space owned by someone).

However, this incompatibility between the concept of intellectual property and physical property does not automatically mean that the creator of a new product cannot put any restrictions on its future use by others. The concept of voluntary exchange of property sets clear rules how this is to be done within the classical liberal and libertarian frameworks.

Applying Classical Liberalism and Libertarianism to a New Product

Let us go back to my circle example. Let us imagine that I designed a new product and let’s call this product the wheel. I used my own materials to produce a number of wheels and now I am considering selling or renting some of them to others.

First, I want to make sure no one sees my wheels before I sell or rent them. If someone sees them, he or she can use this information to produce their own wheel. Their acquisition of this knowledge would not violate any of the libertarian principles if, for example, they saw my wheels while visiting my neighbour for a cup of coffee. They did not intrude into my property whatsoever, and if they want to use their own resources to replicate what they saw in my yard, that would be a perfectly legitimate use of their own resources.

Second, I may want to make sure that the users of my wheels follow certain practices. This also implies that I would prefer renting the wheels over selling them. Renting would allow me to have some control over the renters’ use of the wheels. I can put different conditions in a contract, which the potential renter can either accept or reject. For example, I can ask that the renter does not produce any wheels in the future. I can specify how different any potential product produced by this person would have to be for me not to consider it a copy of my wheel.

I could even specify areas where the wheel can be used. Alternatively, I could simplify the contract and just require my renter to prevent any replication of my wheel. This would compel the renter to use the wheel only in spaces where the owner of the space can offer guarantees that no such replication would occur.

Critics may say that it would be nearly impossible for the renter to prevent any replication by third parties. This, however, may or may not be true. If it was true, I would take this into account and design a contract that I think would be acceptable to a potential renter. While I would like to prevent any replication of my wheel by third parties, if it is practically impossible to prevent legitimate replication (i.e., replication that occurs in the absence of violation of anyone’s property), then, let it be so.

The point here is not that the classical liberal and libertarian principles can ensure all my desires regarding the potential replication of my wheel are met. It simply means that these principles provide a mechanism by which a creator of a new product can have some control over its future use by others.

Conclusion

The concept of intellectual property is flawed. It is flawed because it does not have clear, objective limits, and it is in contradiction with the concept of ownership over physical objects. This is why this concept can only result in arbitrary standards that are based on the subjective judgement of whoever determines the limits of intellectual property. However, it is not true that if we abandon the idea of intellectual property, we also must accept all forms of copying and replication of new products. Classical liberalism and libertarianism contain clear principles for separating legitimate kinds of copying from the illegitimate ones.

Predrag Rajsic is a postdoctoral fellow in the Department of Food, Agricultural, and Resource Economics at the University of Guelph in Ontario, Canada. Friend him on Facebook.

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Tags: classical liberal, copyright, intellectual property, law, libertarianism, Natural Law,Natural rights

Another nice presentation from  learnliberty.org and Dr. Stephen Davies, a Historian with the Institute of Economics Affairs (see aslo SOPA and 3 Ways to think about Intellectual Property).

Great piece by Wendy McElroy, published today at The Daily Anarchist:

***

In the historical “Retrospective” section of Wendy McElroy’s 2011 Libertarian Papers article “Contra Copyright, Again,” she discusses the beginnings of the modern libertarian anti-IP movement in the 1980s, spearheaded primarily by her and Samuel Konkin III (“SEK3″). This resulted in a 1983 debate on IP between McElroy and J. Neil Schulman (“The Great IP Debate of 1983“), each of whom later published papers based on their presentation at that debate (McElroy’s is reprinted in “Contra Copyright, Again,” and first published in 1985; Schulman’s  “Informational Property — Logorights,” in 1990, in  Journal of Social and Biological Structures, 13 no. 2, pp. 93–117). I discuss some of this in “The Origins of Libertarian IP Abolitionism,” “The Four Historical Phases of IP Abolitionism,” and “The Death Throes of Pro-IP Libertarianism.”

I had previously thought McElroy’s 1985 “Contra Copyright” was the earliest published work by a modern libertarian mounting a comprehensive and explicit attack on IP as such (even SEK3′s “Copywrongs” was not published until 1986). There was earlier writing skeptical of IP by Hayek, Rothbard, and Leonard Read, but these pieces were either not completely anti-IP (Hayek, Rothbard) or were not comprehensive and sustained (Read) (“The Four Historical Phases of IP Abolitionism”).

However, in a recent Facebook thread, Less Antman informed me that when he was publisher of Caliber, the California LP’s newsletter, it published McElroy’s article “On the Subject of Intellectual Property” in its Dec. 1981-Jan. 1982 issue.  He sent the PDF and a text version to me, an edited version of which appears below (PDF version; thanks to Ganine Van Alst for copyediting assistance). The article is a precursor to “Copyright and Patent in Benjamin Tucker’s periodical Liberty,” which appeared as a chapter in McElroy’s excellent 2003 book, The Debates of Liberty: An Overview of Individualist Anarchism, 1881-1908.  This appears to be McElroy’s first published work on the topic of IP and, thus, the first comprehensive and explicitly anti-IP piece by a modern libertarian ever published.

McElroy sent me this email concerning her reflections about this piece and her current thinking on IP:

As a matter of preserving an accurate record, I do not like to rewrite articles from earlier years and, so, I did no editing. Nevertheless, my views on IP have changed in significant ways since 1981 and a few prefacing notes are required.

First and foremost, I no longer believe that patent or copyright by virtue of contract is either feasible or desirable. In fact, I think it would be incompatible with a libertarian legal system. I credit Stephan Kinsella with prompting this gradual drift in my position.

Originally, I took a vaguely Rothbardian view of IP; namely, I argued that a copyright claim could properly exist only as the result of an explicit contract and it would be binding only upon the agreeing parties. Huge logistical problems are immediately obvious. For example, how do you maintain a copyright on a book that is left lying around for others to read? I was not comfortable with the assurance “the market will evolve an answer” but I accepted it as the best I had.

I no longer do so. There are simply too many contradictions in “copyright by contract.” Consider the person who buys a physical book. Even diehard IP advocates agree that a purchaser owns the book itself and is merely constrained from reproducing it. But the only way to maintain a copyright by contract would be to deny the purchaser has any property in the book at all. Otherwise he could sell it to a secondhand store and the material within would be immediately and utterly unprotected. In order to maintain the protection, the copyright holder must deny that even the physical book can be owned by anyone else but him. Inserting a clause that bans resale into the original contract would not resolve the issue. Ownership means the “use and control” of a good, including disposing of it. If the copyright holder controls the terms on which the physical book can be sold, then he is asserting an ownership claim to the object itself and one that is superior to the purchaser’s.

Another reason I came to reject copyright by contract is that its enforcement would lead to an unjust and unlibertarian system of law. The purpose of a libertarian legal system is to provide reasonable restitution to victims. There are compatibility problems with copyright and restitution. Consider the case of a person who downloads a song. The purpose of restitution is to make the victim whole, perhaps with some additional compensation, perhaps not. (Disagreement exists on the justice of additional compensation but not on whether the overall compensation should be reasonable; otherwise, it is not just.) Yet the music industry and the courts have penalized people hundreds of thousands of dollars for a handful of downloads. To maintain IP, they must do so. If the courts assessed a download in terms of quadruple damages or some other reasonable sum, then there would be no incentive for people to eschew downloads. The chances of being caught are negligible, as would be the cost of being caught. One of the only ways left to minimize the number of downloaders is to make the laws draconian and severely punish a scattering of offenders as a cautionary tale to others. This moves the legal system away from justice and from restitution.

Yet another aspect of IP and libertarianism are incompatible: the incredible policing of individuals which would be necessary to prevent the ‘crime’. The immense free flow of information over the Internet means that more and more invasive methods are being used to monitor peaceful behavior. Now the advent of 3D printers has the potential to make the downloading and creation of duplicate goods as convenient as the downloading of music. This potential would devastate patents, of course. The only way to protect patents would be to monitor, restrict or ban people’s use of 3D printers. At every turn, as technology brings greater freedom and prosperity, IP is there to try and seize control … if not of the technology itself, then of individuals.

The race is on between freedom and IP, with government standing solidly and with both fists on the side of IP. And this is yet another change in my attitude from 1981. I now fully understand the vital importance of opposing copyright and patent.

 

ON THE SUBJECT OF INTELLECTUAL PROPERTY

By Wendy McElroy

(Published in Caliber December 1981 Edition)

The question of what can be the proper subject of ownership — what is property? — is an important theme of libertarianism.  It arises in discussion of such diverse topics as slavery, pollution, animal rights and intellectual property.  It is with intellectual property (by which is commonly meant, copyright and patent) that the question becomes unusually difficult, for what is being claimed is the ownership of intangibles, of ideas.  The title of a recent book, Who Owns What Is In Your Mind?, concretizes a commonsense objection to intellectual property; most people would loudly declare, “no one owns what is in my mind!”  Yet, if the information you have is a chemical formula which you accidentally glimpsed, do you have the right to market it as your own over the protests of the chemist who worked a lifetime to perfect it?  Do you have the right to publish a book with characters named John Galt and Dagney Taggart?  And if not, why not?

Intellectual property was the subject of intensive and unsurpassed debate within the pages of Benjamin Tucker’s libertarian periodical Liberty (1881-1908).  Because of this, the best presentation of this question is an overview of the debate.  The citations which appear directly after quotations refer to the appropriate issue and page of Liberty.

Although it is usually contended that the intellectual property debate was over the ownership of ideas, this is not quite accurate.  James Walker — who wrote under the pseudonym of Tak Kak — was a leading opponent of copyright and patent; he stated, “My thoughts are my property as the air in my lungs is my property…” (March 21, 1891, 4)  Both sides of the debate agreed that each man owns his own thoughts which he is free to express or not, as he pleases.

Nor did the debate center around an individual’s right to use and dispose of his property, of his own ideas.  On this, Walker wrote: “If any person wishes to live by imparting his ideas in exchange for labor, I have nothing to say against his doing so and getting cooperative protection without invading the persons and property of myself and my allies…whatever he  can do by contract, cooperation, and boycotting…let him do at his pleasure.”  (March 21, 1891, 4)

So long as the monopoly of ideas was contractual, the opponents of intellectual property were content.

The point of contention was the claim that intellectual property was based on natural rights and, therefore, should be protected by law in the same manner that other property, such as land, was protected.  Just as you did not require a contract in order to “monopolize” land you had homesteaded, neither did you need a contract to give you just claim to an idea.  Both were products of labor and, by natural law principles, the property of their producer.  It was the assertion and denial of this claim that formed the backbone of the debate.

The advocates of intellectual property believed that because a man was the first to discover an idea, he was entitled not only to the use of the specific instance of that idea, but also was entitled to prohibit others from similarly using it.  Ownership extended from one’s own instance of an idea to all instances of the idea.  Spooner (the leading proponent of intellectual property) based this claim of extended ownership on the contention that ideas were the product of labor and that a man justly owns what his labor produces.  In The Law of Intellectual Property, Spooner explains: “…the principle of individual property…says that each man has an absolute dominion, as against all other men, over the products and acquisitions of his own labor…”  To Walker and Tucker, however, the reward of the labor was the specific idea.  More than this could not be claimed because, in the words of Henry George: “No man can justly claim ownership in natural laws, nor in any of the relations which may be perceived by the human mind, nor in any of the  potentialities which nature holds for it…” (July 7, 1888, 4)  Whether ownership of ideas extended beyond one’s own  body was the key question and, because of this, it is more  accurate to label the opposing forces as “extensionists” and “anti-extensionists” than  as pro and anti-intellectual property.

Ultimately, the debate over non-contractual copyright and patents revolved around three core issues: What is property? What are the essential characteristics which enable something to be subject to ownership?  What is an idea?

[There were also a number of interesting side squabbles which are interesting enough to mention.  The anti-extensionists (Tucker, Walker, J. B. Robinson, and Wm. Hanson) attacked the Spencerian notion that such ownership, if it did exist, should have a time limit as embodied in the law.  The extensionists (Yarros, Simpson, Wm. Lloyd), though greatly influenced by Spencer, agreed that property rights should not expire.  There was some debate on utilitarian grounds with extensionists claiming that, without a legal copyright, no one would write great literature.  Tucker responded that Shakespeare had penned all his works a century prior to the first copyright law.  He quoted George Bernard Shaw: “...the cry for copyright is the cry of men who are not satisfied with being paid for their work once, but insist upon being paid twice, thrice, and a dozen times over.” (January 10, 1891, 6)]

“What is property?” remained the central issue.  The extensionists maintained that property was simply “wealth that has an owner” which ownership was acquired through discovery or labor.  Tucker, however, asked the question in more fundamental terms; he asked why the concept of property existed at all.  What was there in the nature of man and of reality that made such a concept necessary?  He postulated that property arose as a means of solving conflicts caused by scarcity.  Since all goods are scarce, there is competition for their use.  Since the same chair cannot be used at the same time and in the same manner by two people, it becomes necessary to determine who should use the chair.  Property arose as an answer to this question.  “If it were possible,” Tucker wrote, “and if it has always been possible, for an unlimited number of individuals to use to an unlimited extent and in an unlimited number of places the same concrete thing at the same time, there would never have been any such thing as the institution of property.”

Ideas, however, could be used at the same time and in the same manner by an infinite number of people.  If one man discovers the principle of electricity and builds a generator on his own land, it in no way impedes another man’s ability to discover electricity and build his own generator as well.  Extended ownership, therefore, runs counter to the purpose of property, to the problem that the concept was meant to solve.

Furthermore, argued the anti-extensionists, copyright and patents contradict the essential characteristics of property, one of these characteristics being that the property be transferable, that it be alienable.  “He who conceives an idea has it in his own right,” explained Wm. Hanson.  “It is his property; but it is non-transferrable.  No conceiver of an idea can transfer it bodily from his own brain to that of another, and thus deprive him of it.” (June 13, 1891, 6).  Walker added: “The giver or seller parts with it [property] in conveying it.  This characteristic distinguishes property from skill and information.” (May 30, 1891, 3)  The anti-extensionists considered transferrability to be a defining characteristic of property.

In response to the question “what is an idea?” the extensionists replied that it was a form of wealth and the product of labor.  The egoist J.B. Robinson had a different approach.  “What is an ‘idea’?” he asked.  “Is it made of wood, or iron, or stone? … the idea is nothing objective … that is to say, the idea is not part of the product; it is part of the producer…” (May 16, 1891, 5) Robinson argued that ideas cannot be owned because they are part of a human being. They are the result of labor in the same sense that the muscles on an arm are the result of exercise.  It was absurd, however, to say that either the muscle or the idea was a product independent from the producer.  As part of the producer, they were not subject to ownership.

Although copyrights and patents are derivative issues from the question of ownership of ideas in general, most of  Liberty’s debate revolved around them.  The debate concerning patents and copyrights began seriously in July, 1888 when Tucker reprinted excerpts from an article by Henry George published in George’s periodical The Standard.  “It cannot come from discovery.” (July 7, 1888, 4)  This distinction between discovery and production was crucial.  The extensionists claimed that when a man discovered the law of electricity and mixed his labor with raw materials to express this natural law in the form of a generator, he had performed the labor of production and, thus, had title to the generator.  The anti-extensionists, however, would counter that the act of discovery alone gave the man no more right to the principle of electricity than simply discovering a valley would give him the right to that land.  The discoverer, therefore, cannot prevent someone else from discovering — five minutes or five years later — the same principle of nature and from using that principle for his own benefit.  To claim otherwise would be to say that the initial discoverer had ownership rights over an aspect of nature, of a physical relationship.  Tucker believed that patents violated the libertarian theory of equal liberty.  “From the moment a patent or copyright is granted,” he wrote, “no man is free to acquire the same fact — to elaborate from it, if he can, the same new ideas — and in a similar manner employ those new ideas for his private advantage.”  (February 7, 1891, 4)

When Victor Yarros offered the Spencerian contention that one would have the right to prove before a jury that one’s instance of the idea was independently discovered, Tucker responded that such a reversal of proof — the defendant would be guilty until proven innocent — ran counter to all established methods of fair trial.  He suggested that Spencer advocated this method because “to go to a jury on a question of independence of invention or authorship, with the burden of proof on the complainant…would be sure victory for the defendant…” (Feb 7, 1891, 4)

Copyrights were handled somewhat differently than patents, which were generally viewed as discoveries of natural law or of physical relationships.  The 1888 excerpts from Henry George which sparked the debate were criticized by Tucker due to George’s acceptance of copyright.  Tucker stated:  “The same argument that demolishes the right of the inventor demolishes the right of the author.” (July 7, 1888, 4).  Tucker, however, set the stage for the perceived difference between the two forms of extended ideas when he wrote:

The central injustice of…patent laws is that it compels the race to pay an individual through a long term of years a monopoly price for knowledge that he has discovered today although some other man…in many cases very probably would have discovered it tomorrow. [Dec. 27, 1890, 4]

The issue that separated patents from copyrights in many people’s minds was probability.  Simultaneous inventions are not uncommon and there are many instances of several people “originating” the same theory independently.  A commonly cited example is that of Menger, Walras and Jevons, who independently conceived of marginal utility at about the same time.  Extensionists like Yarros, however, did not think it probable that two men would independently originate Hamlet or A School for Scandal.  He claimed that copyright protected not an idea, such as marginal utility, but the particular form of expressing that idea, the actual pattern of words.  He wrote: “Copyright would not prevent anyone’s writing a book to express the same ideas that Spencer has expressed; it would simply prevent the appropriation of the fruits of his toil.” (Dec. 27, 1890, 4)

Tucker addressed both points.  He agreed that it was extremely improbably that two men would write the same poem, but insisted that it was not impossible.  Simply throwing letters randomly up in the air, he insisted, would eventually render a piece that began “Shall I compare thee to a summer’s day…”  As to the extreme improbability of this, he wrote:

To discuss the degrees of probability…is to shoot wide of the mark.  Such questions as this are not  to be decided by rule of thumb or by the law of  chances, but in accordance with some general principle…among the things not logically impossible, I know of few nearer the limit of possibility than that I should ever desire to publish Liberty in the middle of the desert of Sahara;  nevertheless, this would scarcely justify any great political power in giving Stanley a right to stake out a claim comprising that entire region and forbid me to set up a printing press. [Dec. 27, 1890, 4]

As to the ownership of a form of expression, of a pattern of combining words, Tucker commented: “…the particular combination of words belongs to neither of us…the method of expressing an idea is itself an idea, and therefore not appropriable.” (July 7, 1888, 4) Walker added: “If the  printer  may not copy new books, of course the shoemaker may not copy new shoes…” (March 21, 1891, 5) Here, Walker pointed out that all ideas (whether of shoes, poems, chairs, hairstyles, or clothing) have distinctive forms of expression, but only in the case of literary expression does the question of granting a legal monopoly arise.  The consistent extensionist would have to admit that since speech is a product of labor and a form of expression, everyone should be entitled to legal protection for every sentence they spoke to that no one thereafter could speak that sentence without consent.  Spooner does, in fact, come very close to this position.

Another argument used by the anti-extensionists was that to publish and sell a work without a contract to protect its contents was, in effect, to abandon it.  This was counter to Spooner’s contention that the law  must presume a man wishes to retain control over his property so long as it has  any value to him.  Thus, if an idea is valuable, to publish it does not decrease its value, and it remains legally protected property.  Needless to say, Tucker analyzed it differently.  He wrote:

If a man scatters money in the street, he does not thereby formally relinquish title to it…but those who pick it up are thereafter considered the rightful owners…Similarly a man who reproduces his writings by thousands and spreads them everywhere voluntarily abandons his right of privacy and those who read them…no more put themselves by the act under any obligations in regard to the author than those who pick up scattered money put themselves under obligations to the scatterer. [April 18, 1891, 5]

Tucker expressed the core of this argument and of his position on intellectual property when he exclaimed: “You want your invention to yourself? Then keep it to yourself.” (Feb 21, 1891, 5)

That copyright and patent are useful social devices to achieve desirable ends was never questioned.  It was the basis of copyright and patent that was questioned.  The extensionists claimed that they were derived from natural law.  The anti-extensionists argued that they could be justly enforced only through contract.  Perhaps the most important aspect of the debate was its emphasis upon the question so fundamental to libertarianism — what is property?

This debate has not been resolved in libertarianism.  To the extent that such “gray” areas are discussed and dissected, we will come closer and closer to fully defining what is ‘property’, what is a ‘right’. In doing so, we will once again be standing on the shoulders of giants.

Wendy McElroy, one of Caliber’s contributing editors, is a libertarian scholar currently doing research work for the Center for Libertarian Studies.

Cory Doctorow seems to keep inching more and more from IP reform to IP abolitionism. Jump on in, Cory–the water’s warm!

Copyright shouldn’t take away real property rights

Cory Doctorow at 4:02 pm Mon, Mar 18

iFixit’s Kyle Wiens has a must-read op-ed in Wired on the insane way that copyright is being used to take away your property rights in tools as diverse as tractors and cars and cellphones and phone switches. The manufacturers use a variety of copyright claims (especially anti-circumvention claims under the 1998 Digital Millennium Copyright Act/DMCA) to make it illegal to understand how your stuff works, to improve on it, or to repair it. Wiens makes the good point that it’s nuts to use metaphorical property (copyright) to end real property rights in things that you buy and pay for.

Meanwhile, progress is being made to legalize cellphone unlocking. With grassroots groups leading the charge, the Obama administration announced its support for overturning the ban last week. Since then, members of Congress have authored no fewer than four bills to legalize unlocking.This is a step in the right direction, but it’s not enough. Let’s make one thing clear: Fixing our cars, tractors, and cellphones should have nothing to do with copyright.

As long as Congress focuses on just unlocking cellphones, they’re missing the larger point. Senators could pass a hundred unlocking bills; five years from now large companies will find some other copyright claim to limit consumer choice. To really solve the problem, Congress must enact meaningful copyright reform. The potential economic benefits are significant, as free information creates jobs. Service information is freely available online for many smartphones from iFixit (my organization) and other websites. Not coincidentally, thousands of cellphone repair businesses have sprung up in recent years, using the repair knowledge to keep broken cellphones out of landfills.

As long as we’re limited in our ability to modify and repair things, copyright — for all objects — will discourage creativity. It will cost us money. It will cost us jobs. And it’s already costing us our freedom.

Forget the Cellphone Fight — We Should Be Allowed to Unlock Everything We Own (via /.)

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Here is a very nice, short video arguing against patent and copyright from learnliberty.org, by Dr. Stephen Davies, a Historian with the Institute of Economics Affairs.

Update: see also LearnLiberty: Can Artists Make Money Without Copyrights? (Video)

There are a few legal inaccuracies in the video, but they don’t affect the overall argument. But for example the video implies there are 3 types of IP rights—patent, copyright, and trademark—and omits others like trade secret and modern legislative innovation. It says that IP rights are limited in time, and gives as an example a 28-year patent and a trademark (the Coca-Cola mark). But patents last 20 years from issuance, not 28; and trademarks can be renewed indefinitely and trade secrets theoretically maintained forever. Still, this is a minor quibble.

From StephanKinsella.com:

KOL 033 | Free Talk Live Interview on Reducing IP Costs (2010)

by STEPHAN KINSELLA on MARCH 17, 2013

in INTELLECTUAL PROPERTY,KINSELLA ON LIBERTY PODCAST

Kinsella on Liberty Podcast, Episode 033.

I was interviewed back on Jan. 20, 2010 by Mark Edge, as part of his “Edgington Post Interview Series,” for his Free Talk Live radio show, about my Mises Daily article, “Reducing the Cost of IP Law.” The interview is lasts about 35 minutes, and starts at 2:02:36 in the original Jan. 20, 2010 show, which I have trimmed here. Edge conducted an excellent interview–very informed and interesting. And, like many others, he’s come around to the anti-IP position. (See, on this, Have You Changed Your Mind About Intellectual Property?, Yet another Randian recants on IP, The Death Throes of Pro-IP Libertarianism, The Origins of Libertarian IP Abolitionism.)

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Nelson Loftin has produced a print version of my recent Libertarian Papers article “Law and Intellectual Property in a Stateless Society” at Lulu.com (Paperback, 44 Pages).

Thanks, Nelson! Or, as IP-libertarians might say, STOP, THIEF!

From C4SS, based on my interview (KOL 031 | Smash Walls Radio Podcast: Episode 9: Patent Shenanigans). N.b.: I did not say trolls cost $500B a year; but it’s possible the patent system itself does (it’s impossible to know for sure). (“Patent Trolls” Cost Productive Companies $29 Billion in 2011, Stall Innovation, and Hurt Small Businesses; Patent Trolls Cost The Economy Half A Trillion Dollars since 1990; Costs of the Patent System Revisited.)

Patent “Trolls” are Bad. Patents are Worse.

Posted by Trevor Hultner on Mar 11, 2013 in Commentary • Comments (5)

While global biotechnology firm Monsanto battled a farmer over soybean patents in the US Supreme Court, a District Court in eastern Texas heard a similar case: Personal Audio, an alleged “patent troll,” filed suit against Adam Carolla’s Ace Broadcasting network for patent infringement.

The patent allegedly infringed? “System For Disseminating Media Content Representing Episodes In A Serialized Sequence.” In other words, podcasting.

Personal Audio has been around since the mid-1990s, and credits itself with inventing the “Personal Audio Player,” a device similar to the iPod and the source of many of the company’s patents, including this one.

“[Personal Audio CEO James Logan] is a small businessman, an entrepreneur, who invested a ton of his money into a startup, who still owns the patent, and is just trying to get compensation for his hard work as an inventor,”the company’s vice president of licensing, Richard Baker, said. “This is what the patent system is for.” According to Baker, Personal Audio is also trying to sell its podcast license to several major and influential podcasts and providers.

“I will say that we’re certainly looking to license this patent beyond those three (companies they’re suing),” he said. “We’ve sent letters to a number of companies that we hope will come to a license with us amicably, without having to resort to litigation.”

The prospect of this licensing scheme spreading across the entire medium has spooked many podcasters, including WTF Show host Marc Maron and Majority Report host Sam Seder. Both have received letters fromPersonal Audio “inviting” them to purchase licenses, and both have used their voices to back a recently introduced piece of legislation called the SHIELD Act.

Supported by the Electronic Frontier Foundation, SHIELD aims to make it prohibitively risky for alleged patent trolls to sue; according to the act, if a patent troll loses, they have to pay the other side’s legal fees and costs.

While this bill might be a minute step in a better direction, it isn’t even a bandage on the problem of corporation-favoring patent law. The SHIELD Act, if passed, might prevent companies like Personal Audio from shaking people down, but it won’t prevent companies like Monsanto, with “legitimate” patents on genetically modified and enhanced seeds, from suing farmers and forcing them to burn their crops when they find their seeds on the latter’s land or Apple from making the smartphone and tablet markets expensively litigious.

Libertarian intellectual property lawyer and self-described IP abolitionist Stephan Kinsella brought up an interesting point in a recent interview that seems to get lost in the general discussion surrounding patent trolls, patent law and intellectual property more broadly: as bad as patent trolls are — according to Kinsella they cost the US economy somewhere around $500 billion — legitimate patent holders, companies like Monsanto andApple, can be — and often are — worse.

Speaking of Apple, imagine a scenario where the company going after Adam Carolla and the rest of the podcasting world wasn’t some tiny dot-com-era relic in Texas, but the multi-billion dollar corporation from Cupertino, Calif.

In this hypothetical situation, who would have the money or power to fight against Apple? How could a DIY podcast held together with string and some spit defend against Apple if it held the “podcasting patent” and wanted money for its license?

Millions of people subscribe and listen to podcasts through Apple‘s distribution and cataloging software, iTunes. Currently, it costs nothing to add your own podcast to the iTunes directory; all that is necessary to do so is being able to link to a podcast RSS feed. If Apple owned the patent on podcasting and forced all new podcasts to purchase this license, it might, as EFF activist Adi Kamdar suggested in reference to Personal Audio, create a “chilling effect” on the medium.

It’s possible, if the cost was high enough, that podcasting would meet the same fate as other forms of media and find itself subject to a “walled garden” model of organization. Only people with the means to do so would podcast. Vital voices and perspectives would be cut off.

Patent legitimacy as it is currently presented seems to be based more on perception than any objective standards of law. With Personal Audio, we question the legitimacy of their podcasting patent in a way we may not have done if another company with more buying power had reached it first. Therefore, the solution to the problem of patent trolling is not to “regulate” it with faulty measures and half-steps in the “right direction.”

The patent system itself must be abolished.

***

Trevor Hultner is an independent journalist and Internet content creator. He is the host and producer of Smash Walls Radio, a weekly news and politics podcast, as well as the host of a YouTube series aimed at spreading Absurdist philosophy. Follow him on Twitter: @SmashWalls.

From StephanKinsella.com:

KOL 031 | Smash Walls Radio Podcast: Episode 9: Patent Shenanigans

by STEPHAN KINSELLA on MARCH 10, 2013

in KINSELLA ON LIBERTY PODCAST

Yet more patent madness: German Court “Inclined” to Ban Google Maps. ‘Nuff said.

From StephanKinsella.com:

KOL 030 | Interview with Derek Khanna

by STEPHAN KINSELLA on MARCH 8, 2013

in INTELLECTUAL PROPERTY,KINSELLA ON LIBERTY PODCAST

Kinsella on Liberty Podcast, Episode 030.

This is an interview of Derek Khanna, a conservative/libertarian pro-innovation and pro-free market activist. Khanna was the Congressional staffer who authored a copyright reform brief for the Republican Study Committee (the conservative caucus of House Republicans). The brief was entitled Three Myths about Copyright Law and Where to Start to Fix it, and attacked current copyright law and proposed sweeping, significant changes—reducing statutory damages, expanding fair use, punishing false copyright claims, and significantly limiting copyright terms. The brief was immediately taken down, and Khanna no longer works on Capitol Hill.

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The other day I had my A/V guys over to make some adjustments to one of my systems. While there were there I asked them if they could take a look at a problem I’d been having for a while with my family room media system. I have an Anthem two-zone receiver. The first zone drives the TV and the speakers in the family room. Zone 2 drives speakers around the house through a speaker selector box. I often play music via the Apple TV on both zones 1 and 2, all around the house, say, on a Saturday. But I notice an odd echo effect between the sound coming from zone 1 speakers and that coming from zone 2: there is a slight delay, giving it a disconcerting feeling, if you are standing sort of between rooms.

I asked the media guys if there was maybe a polarity problem or an adjustable delay. They said that’s not it. Instead, all the big manufacturers of receivers have gimped their own systems due to copyright enforcement pressure from content companies: zone 1 is digital, but zone 2 has to be analog. What this means is that there is a delay in zone 1 because the DSP takes some time. So the sound coming out of zone 2 is slightly ahead of that coming out of zone 1. I said can I just buy a receiver with two digital zones? Nope, they said–the copyright enforcers don’t want you to be able to just duplicate that signal. So even if I am playing my own CD’s or streaming radio or spotify perfectly legally, I can’t have a device that digitally “splits” the signal to permit me to play it simultaneously on two zones. Instead, I can tap into the inferior analog signal and play it on zone 2, but then there are timing delays between the zones.

The media guys told me there are workarounds but they are complicated and not even guaranteed to work. I could buy some kind of add-on digital delay for zone 2, but the problem is you might never make it match up exactly, and further, the delay from zone 1 DSP varies by the type of music; it’s not necessarily a fixed delay, so there is no easy way to guarantee adding a delay to zone 2 will match it up to zone 1. I suppose I could buy two separate one-zone receivers, have all kinda signal-splitters at the output of my source devices like the Apple TV, but that’s kinda stupid.

Another example of how paying, law-abiding users are harmed by the copyright fascists.

From the Library of Economics and Liberty blog, a post by David R. Henderson. Henderson is joining thousands of other libertarians who have become IP abolitionists (“The Death Throes of Pro-IP Libertarianism,” “The Origins of Libertarian IP Abolitionism”). For more on the Arnold Plant material he mentions, see Arnold Plant, “The Economic Theory Concerning Patents for Inventions,” Economica, New Series, 1, no. 1 (Feb., 1934).

PERMANENT LINK | JANUARY 21, 2012

Jeff Tucker on Intellectual Property

Jeff Tucker gives a concise explanation of why IP is a bad idea to two French gentlemen from ContrepointsOrg, including a discussion of how Ayn Rand went astray on this issue (see also De la propriété intellectuelle (1)).

My article ”Law and Intellectual Property in a Stateless Society,” has just been published in Libertarian Papers vol. 5 (1) (2013), pp 1-44. This is my first publication in the journal I started in 2009. It is also the most comprehensive piece I’ve done on IP since Against Intellectual Property. It incorporates a lot of the material from AIP and integrates a lot of things I’ve written in the 12 or so years since that piece was published.

This article was originally going to be part of a symposium in the Griffith Law Review (Australia), edited by Gary Chartier, on “Law and Anarchy: Legal Order and the Idea of a Stateless Society.” Among the other authors were to be Tom Bell, Walter Block, Peter Leeson, Roderick Long, Ed Stringham, Charles Johnson, and Bruce Benson. Amazing that Chartier was able to get a mainstream law review to consider such a radical subject, and to include such radical authors.

But my participation was not to be.

The journal first insisted that we assign our copyright to it. Bell and I both refused. I insisted on a CC-BY license, and the GLR agreed to accept this option.

Next, however, came a barrage of reports from referees who  seemed baffled by my principled IP-abolitionist stance. Both wanted me to make pointless changes, to water my thesis down, or to adopt an essentially utilitarian-empirical approach. I refused to do this; my paper was out. I am sorry that, like me, several other potential authors encountered problems related to the symposium. But I appreciate Chartier’s hard work in putting this together. I’m glad that pieces by such authors as Bell, Long, and Benson will still be appearing.

The Abstract is below.

Abstract: An ethic of self-ownership combined with Lockean homesteading of external resources provides a plausible grounding both for anarchist opposition to the state and for an attractive anarchist legal order. Such an ethic can be understood as specifying that each person prima facie has the right to control his or her own body; and that Lockean homesteading, under which the owner of any scarce resource is its first user (or his contractual transferee), should provide the basis for property rights in such previously unowned goods. Given these rules, monopoly privileges like patent and copyright (intellectual property, or IP) cannot be justified, as they infringe on self-ownership-based body-rights and/or property rights in external resources. In this article, I explain why IP rights are inconsistent with the moral grounds for a stateless society’s legal order, and speculate about the practices or laws that might prevail in the absence of IP in such a system.

Update: Print version available from Lulu.com.

Patent and other forms of IP law, like the state itself from which they emanate, are subject to the “ratchet effect” described years ago by Robert Higgs: there is a tendency for the laws to expand and get worse and worse. Thus  we see the expansion of patent scope to cover software; and the gradual increase in copyright scope (software, boat hull designs, maybe fashion designs coming up) and terms, and the elimination of formalities like copyright notice and the requirement to register copyright; the addition of “antidilution” to trademark law and private [sic] domain-name dispute rules that allow private parties to take others domain names using trademark law; the federal criminalization of trade secret law. We now have a private [sic] six-strikes and you’re out regulations and SOPA-type laws attempted and reintroduced over and over.

Any rolling back or improvement in any of these laws is a rare thing. The only significant in any form of IP in all of American history that I can think of is the provision of a broader “Prior Commercial User Defense” for patent infringement in the 2011 America Invents Act (see  The American Invents Act and Patent Reform: The Good, the Meh, and the Ugly). Of course, even this defense makes exceptions if the patent plaintiff is a US university (35 USC § 273(c)(2)), and it provides no defense for the independent inventor. But it’s at least an improvement. And of course the AIA made things worse too: it watered down the best mode defense and penalties for false marking. And it wasted an opportunity to make overhaul the patent system.

Every now and then some significant form is introduced. But most of it is trivial, or goes in the wrong direction. (Radical Patent Reform Is Not on the Way; The American Invents Act and Patent Reform: The Good, the Meh, and the Ugly.) Some proposals have more meat in them: proposals to reduce the term of or even eliminate software patents, or to clamp down on patent trolls. Even though software patent and trolls are not the fundamental problem with the patent system, such reforms would still be a move in the right direction.

As Mike Masnick notes, in SHIELD Act Targeting Patent Trolls Re-Introduced; It’s A Step In The Right Direction, But Just A Small One, there is a new proposal which would also improve matters, at least slightly. This is “the SHIELD Act, which would allow those sued by patent trolls over bogus patents to seek legal fees, has been reintroduced in Congress.” The EFF is also supporting this bill.

But why should only patent trolls—so-called non-practicing entities (NPEs)—have to pay the legal costs of defendants, when they lose? Under current patent law, there is no “use” or “working” requirement; there is no real “reduction to practice” requirement. This is why patent trolls can exist: there is no requirement to make and sell a product covered by your patent. In fact, it is hard to imagine how there could be such a requirement, since a patent is only a right to exclude, not a right to make the invention described; for example, if I have a patent on an improved smartphone, making the smartphone might still infringe Apple’s patents, so I would be unable to make my improved device. A working requirement would make no sense in such case since it basically means it’s impossible to obtain or enforce a patent if it is an improvement on previously patented technology, which is contrary to the entire purpose of patent law. Still, I’d be in favor of it, as it would reduce the overall amount of patenting and patent assertion, and throw a monkey wrench into the workings of patent law (this is why I proposed it in Reducing the Cost of IP Law).

But the point is that permitting patent trolls to exist (by not having a “use” or “working” requirement) and then singling them out for special treatment when it comes to payment of the winning defendant’s legal fees makes no sense whatsoever. “Practicing entities” like Apple can do as much or even more harm than patent trolls when they swing their weight around.

The assumption in the criticism of patent trolls is that so long as you use a patent that covers one of your products, against your competitors, this is okay. But why? This is even worse than what patent trolls do. Patent trolls just want a small fee. They want to “wet their beak,” like a mafia guy. They don’t want to kill the businesses they are trying to parasite off of. By contrast, Apple would love to get injunctions against and totally demolish any competitor making a smart phone “too similar” to their own product. (See Patent trolls as mafioso (and that’s a compliment).)

Yes, patent trolls impose significant costs on the economy and probably on innovation. (“Patent Trolls” Cost Productive Companies $29 Billion in 2011, Stall Innovation, and Hurt Small Businesses; Patent Trolls Cost The Economy Half A Trillion Dollars since 1990.) But as bad as trolls are, they are not as bad as “practicing entities”—companies whose patents do cover their products. That is why patents in general impose multiples of the amount of damages that trolls do——at least $100B a year, and probably far more (my guess would be $400B or more) (Costs of the Patent System Revisited.)

It is a good idea to make a losing patent troll pay the winning defendant’s legal fees. But it makes no sense not to extent this to all patentee-plaintiffs. Yes, Samsung can afford to pay millions to defend against a suit from Apple, and if it wins the suit, it is still out the millions; but it can afford this loss, and it can also use its own patents to countersue Apple. So then some kind of settlement might result. The result is a small number of large companies sitting on large patent warchests, all having “settlements” with each other, resulting in reduced competition, higher prices for consumers, reduced innovation, and increased barriers to competition. Why? Because smaller companies, startups, etc., have no resources to defend against these suits and no large patent warchests to hit back with. So they are as helpless when sued by an Apple as you podcasters are when sued by the troll. (The Microsoft-Apple Gesture Oligopoly, Controls breed controls, Monopolies breed monopolies; Nortel Patents Sold for $4.5 Billion to Consortium Which Includes Apple; Apple vs. Microsoft: Which Benefits more from Intellectual Property?; Patent Cross-Licensing Creates Barriers to Entry.)

It only makes sense that companies like Apple ought to have to reimburse the victim of its attempt to use patent law to quash competition if it loses the suit, for whatever reason. The SHIELD Act should extent to all patentees, not just “non-practicing entities.” (Which I proposed  previously  in Reducing the Cost of IP Law.)

If we can’t end it, we should at least mend it. Losing patent plaintiff pays: period.

Podcast episode from Australian podcast The Voluntary Life (which I appeared on previously in 2010; see Author Interview: Stephan Kinsella on Against Intellectual Property; see also Against Intellectual Property: A Follow Up Discussion):

11 FEBRUARY 2013

96 Entrepreneurship Part 13: IP Is Bad For Business

An episode about the problems with Intellectual Property, from the perspective of an entrepreneur. I started off thinking that IP is an integral and necessary part of entrepreneurship. I thought that it would be very important for my business.  I have now come to see IP law as something that:

• prevents innovation,
• is immoral,
• promotes conflict,
• diverts resources to unproductive uses
• and is ultimately unnecessary for making money from ideas.

Show Notes:
Against Intellectual Monopoly by Boldrin and Levine
Article about the Shopping Cart case
Against Intellectual Property by Kinsella

Podcast Episode

In a recent Techdirt post discussing a Reason TV video called How Patent Trolls Kill Innovation (see below), Masnick notes:

Nothing in the story or the video will really be all that new to regular Techdirt readers, but it’s great to see more attention being given to the problems of patent trolls and how they harm innovation. It’s also great to see it come from Reason.TV, a part of the libertarian Reason Foundation — as there is still some dispute among the wider “libertarian” crowd as to whether or not the patent system is good or bad. It’s felt like there’s been a growing recognition that the answer is “bad,” and hopefully videos like this represent a recognition that the scale is tipping.

Yes, Masnick is right that libertarians are increasingly IP abolitionists, see “The Death Throes of Pro-IP Libertarianism” (discussed previously at Reason.com by Brian Doherty in Intellectual Property: Dying Among Libertarians?), The Four Historical Phases of IP Abolitionism, and The Origins of Libertarian IP Abolitionism.

For my explanation that focusing on the patent troll problem misses the fundamental problem of the patent system itself, see Patent trolls as mafioso (and that’s a compliment).

From the Kinsella on Liberty Podcast, Episode 025:

KOL 025 | Triple-V: Voluntary Virtues Vodcast, with Michael Shanklin: Intellectual Property, Ron Paul vs RonPaul.Com, Aaron Swartz, Corporatism

by STEPHAN KINSELLA on FEBRUARY 27, 2013

in INTELLECTUAL PROPERTY,KINSELLA ON LIBERTY PODCAST

Kinsella on Liberty Podcast, Episode 025.

This is my appearance on Michael Shanklin’s Triple-V: Voluntary Virtues Vodcast with Michael Shanklin (Feb. 26, 2013; originally recorded Feb. 25, 2013). We discussed intellectual property and a few other matters, such as the Ron Paul vs RonPaul.Com dispute, Aaron Swartz, Corporatism, and the like. For the initial discussion of IP and what is wrong with it, I relied on the type of explanation I provide in Intellectual Property Rights as Negative Servitudes.

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As I noted in Kinsella vs. Wenzel on IP, Bob Wenzel and I agreed last month to have a joint podcast debate-discussion about IP. I thought we would have done it by now, but Wenzel said at the time that he needs until April, so the lastest plan is to do it April 1, for podcast release by April 7 or so. In the meantime, there’s been a bit of controversy/drama about this.

First, I appeared on a few shows and discussed the Ron Paul vs. RonPaul.com case where Paul is using ICANN’s UDRP process (via a UN agency, WIPO), to seek the ronpaul.com domain name, primarily on trademark grounds. The relevance? Trademark is illegitimate and unlibertarian; this case provides a nice illustration of why trademark law should go. And how ICANN is not totally private and was coerced by states into adopting a trademark-law enforcement mechanism, the UDRP.

In an interview I said it was my prediction that RP would probably lose. Wenzel noted this in Kinsella: Ron Paul Likely to Lose RonPaul.com Suit. He wrote: “So I guess the Ron Paul suit is going to also provide insight into how good an IP rulings handicapper Kinsella is.” It seemed to me he was implying that if I am wrong this weakens my credibility (as an IP lawyer?) and thus weakens the case against IP. I posted a reply but it was not yet approved, so on Facebook I wrote:

My reply .. not yet approved, and I failed to copy it. but my response was basically that this is weird that the focus is on my “guess” about the future. As if a false prediction of the future by stephan kinsella is the final proof that IP is legitimate. I mean what is the relevance?

What a clown. Another prediction: he will not debate me. He will find a way ot weasel out of it, like a worm.

People on his site are in a tizzy, calling my words “inappropriate” and bemoaning my failure to “apologize,” and darkly hinting this is contrary to my offer to have a sincere and civil debate with him: see his post Stephan Kinsella Taking the High Road. The offer is still on. My opinions expressed above are not contrary to that. I did at the time predict he would find a way to weasel out of the debate, because for years he has been making underhanded comments about me, Jeff Tucker, and other IP opponents and threatening to unbosom his pro-IP and libertarian theory to the world, yet has not done so; and he has delayed the debate already what seems to me to be an inordinate time. Maybe he wants time to prepare.

On the comments he wondered why I would challenge his promise to write books on libertarianism and IP. As he wrote:

And what is not credible about my announcing a plan to write a book on liberty and IP?

As I wrote back: what’s credible about it? I have no reason to believe Wenzel will come out with any systematic case for IP, much less a book on libertarianism. Who really believes Wenzel has a book coming out on IP? Of course he does not.

As for saying “what a clown”—as any functioning modern English speaker will know, this is an informal way of scoffing at the implicit argument he seemed to be making: that my predictions about the Ronpaul.com dispute have some kind of bearing on the IP debate we are allegedly going to have. Later, he approved my comment, which was:

But what is the possible relevance of whether my “guess” turns out to be wrong or right? Let’s say it’s wrong. Paul wins. what does this prove? That IP is legitimate? That Kinsella is an incompetent attorney? Which proves… what? That IP is justified? I can see it now on HuffPo: ‘Final Proof that IP is Legitimate: Libertarian Lawyer Was Unable to Predict The Future’.

He replied:

You are reading much too much into the post. I had no intention of linking your lawyerly skills and your skill on IP theory. I have no understanding of your skills as a lawyer. As you know, I have questions about your views on IP theory.

I merely presented the post as a tiny bit of human drama. Nothing more. You stepped up and gave your opinion on the likely outcome of Ron Paul’s suit, if it goes to court. I just found it interesting. No linkage to your IP theory, that is an incorrect jump on your part. Nothing in my post indicates I am attempting to do that.

I thanked him for this “clarification” (which he tries to make hay of in his own comments there). As for whether we agree on his “clarification”, that’s another issue.  I will give him the benefit of the doubt. Whether my “jump” was justified or not—reasonable people can disagree. All that matters in this context is whether IP  is justified, and whether Wenzel can somehow do what no one else has ever been able to do: present a convincing, libertarian justification for IP, or even provide a coherent description of what he thinks IP is, or should be.

Will the IP debate take place? Probably so, at this point, given Wenzel’s public comments on it. But who knows. If my predictions about whether the debate takes place, or whether Ron Paul will win his UN suit against his fans at ronpaul.com, are wrong, does this mean IP is justified? Nope. Stephan Kinsella’s predictive powers or even legal skills are not relevant to this normative question.

IP is utterly evil. Wenzel cannot justify what cannot be justified. Every time I hear of some free market type who is finally going to justify IP, it never materialize; we hear hypothetical utilitarian arguments from Richard Epstein, we hear promises to finally salvage Ayn Rand’s IP wreckage from Adam Mossoff, we hear J. Neil Schulman and L. Neil Smith go on about it, but it’s all vaporware. (See The Death Throes of Pro-IP Libertarianism, The Origins of Libertarian IP Abolitionism.)

The bottom line is Wenzel is wrong on IP, and even his legions of fans mostly realize this.  They are mostly Austrian-interested libertarians who know that IP is a huge statist mistake. Wenzel may be a nice guy and some type of Austro-libertarian (albeit utilitarian, apparently; and whether anarchist or not, I don’t know), but I have little doubt that he, like others, has no ability whatsoever to  justify IP law.  It will be interesting to see him try. I hope.

But I don’t blame him for being unable to justify IP. I tried, too, and failed. But in failing, I realized why I was wrong, and it deepened my understanding of property rights and justice. I was able to admit I had been wrong, even though I was at the time a practicing patent lawyer with a vested interest in viewing my profession as a legitimate one. Will Wenzel, when he finally realizes he has reached a dead end in the vain attempt to justify anti-competitive state-granted monopoly privilege? Time will tell, and I will not even dare to make a prediction on this one ….

The Daily Bell gets it basically right in their take on this in Two Mighty Libertarian Brains to Debate Copyright and IP?

For previous posts about all this, see:

• Wenzel, The Economic Recovery: Washington’s Big Lie (Part 2)
• Wenzel, A “Bullshit” Response from Jeffrey Tucker
• Wenzel, Mises Institute: Do As They Say, Not As They Do?
• Kinsella, Wenzel on Copyright and Patent.
• Kinsella, “Oh yeah? How would like it if I copy and publish your book under my name?!”: On IP Hypocrisy and Calling the Smartasses’ Bluffs
• Wenzel, Examining Jeff Tucker Intellectual Property Theory
• Wenzel, Mises Institute: Do As They Say, Not As They Do?
• Wenzel, Jeff Tucker Declines to be Interviewed on the Robert Wenzel Show
• Wenzel, Naked Trademark Battle
• Wenzel, Examining Jeff Tucker Intellectual Property Theory
• Wenzel, Stephan Kinsella versus Barack Obama On Copyright Protection

Nice piece on a recent patent absurdity by a Facebook friend of mine, Joseph S. Diedrich, “Dislike: Facebook Sued for Patent Infringement,” about a lawsuit against Facebook for using the “Like” button by one Joannes Jozef Everardus van Der Meer, who “patented a ‘Like’ button for his primitive social networking site Surfbook in 1998.”

The article condemns this ridiculous situation and concludes: “The propitious effect of the free exchange of ideas ‒ including the copying of them at will ‒ is something we should all ‘like.’”

But I won’t repixel the whole piece, since it ironically concludes with this ominous warning:

This article is the copyrighted property of the writer and Communities @ WashingtonTimes.com. Written permission must be obtained before reprint in online or print media. REPRINTING TWTC CONTENT WITHOUT PERMISSION AND/OR PAYMENT IS THEFT AND PUNISHABLE BY LAW.

Well it’s doubly ironic since the piece quotes me at length. Just sayin’.

The heroic EFF is battling the efforts of the Sheet Metal and Air Conditioning Contractors (SMACNA) to use copyright law to prevent the online publication of its 1985 standard on air-duct leakage, even though the standard is federally-mandated and ”an integral part of model codes, such as the International Energy Conservation Code.” As EFF notes:

“The public has a right to meaningful access to the laws that govern their lives,” said Carl Malamud, the president and founder of Public Resource. “Technical standards like the ones in this document have the force of law, and people need to know them in order to comply with regulatory obligations, keep the public safe, and avoid costly penalties. The right of citizens to read and speak the law is fundamental to an informed citizenry in the United States and throughout the world. Ignorance of the law is no excuse, which means we have to be able to read the law.”

To impose laws and regulations on people and then to impose copyright rules that make it harder for people to even be aware of the regulations they are subject is perverse.

Free Speech Battle Over Publication of Federal Law

Wrongheaded Copyright Claim Blocks Online Posting of Important Technical Standards

San Francisco – The Electronic Frontier Foundation (EFF) asked a federal judge today to protect the free speech rights of an online archive of laws and legal standards after a wrongheaded copyright claim forced the removal of a document detailing important technical standards required by the federal government and several states.

EFF and co-counsel David Halperin represent Public.Resource.Org, Inc., a non-profit organization that improves the public’s access to laws and codes that affect their lives. As part of its work, Public Resource acquires and makes available public safety documents such as fire safety codes, food safety standards, and other regulations that have been incorporated into U.S. and international laws. But last month, the association of Sheet Metal and Air Conditioning Contractors (SMACNA) claimed an online post of a federally-mandated 1985 standard on air-duct leakage violated its copyright and demanded the post be removed. The standards are a crucial element of U.S. federal energy conservation efforts and an integral part of model codes, such as the International Energy Conservation Code. After a threat of legal action from SMACNA, Public Resource took down the document until a court could affirm its right to publish the information.

“The public has a right to meaningful access to the laws that govern their lives,” said Carl Malamud, the president and founder of Public Resource. “Technical standards like the ones in this document have the force of law, and people need to know them in order to comply with regulatory obligations, keep the public safe, and avoid costly penalties. The right of citizens to read and speak the law is fundamental to an informed citizenry in the United States and throughout the world. Ignorance of the law is no excuse, which means we have to be able to read the law.”

In a petition for declaratory and injunctive relief filed today, EFF and Public Resource asked the court to rule that posting the standards does not infringe any copyright.

“Building codes and other technical specifications touch our lives every day, and Public Resource is helping to make it easier for us to access and understand how they affect us,” said EFF Intellectual Property Director Corynne McSherry. “We’re asking the judge today to let Public Resource continue its important work in increasing the public’s access to the laws and regulations that govern us.”

For the full petition:
https://www.eff.org/node/73298

From boingboing; for more on Khanna see Heroic and Radical Republican Study Committee Copyright Reform Proposal Retracted under Pressure from MPAA and RIAA:

Taking on real reform in a post-SOPA world – let’s start with cellphone unlocking

Derek Khanna at 11:30 am Fri, Feb 22

Yale Law Fellow, columnist and policy expert Derek Khanna authored the controversial House Republican Study Committee memo “Three Myths about Copyright Law.” The memo was widely lauded through the tech community. He has spoken at the Consumer Electronics Show as a technology expert and will be speaking at Freedom to Connect and the Conservative Political Action Conference. Derek was referred to as a “rising star” in the party by David Brooks in the New York Times. Mr. Khanna continues to be a major thought leader on technology issues and disruptive innovation.

When I wrote the copyright report for the House Republican Study Committee, I had no idea the outpouring of support I would receive from the digital generation that I belong to. I wrote it solely to start a conversation amongst our Congressional Members, but instead I have seen it engage thousands of average people. The report was published on November 16, 2012. Two weeks later, on December 7, 2012, I was informed that I would not be retained as a staffer.

Despite the personal consequences, I am not giving up. I’m just getting started, and I’m not scared by a temporary setback. I’m emboldened by it. And I don’t think I’m the only one, or that I’m one of a few.

The conversation that the copyright report started is inspirational, in the face of a political establishment (on both sides of the aisle) which often refuses to acknowledge that we are paying attention. It is up to us, the public, to be engaged. If we are not satisfied with our policy-makers and the policies that they enact, we can change the policies by challenging them.

• We have the ideas, we have the tools, and we have the organization.

President Obama and the Tea Party show that an energized and engaged citizenry can elect candidates in grassroots movements. And we have seen them stop legislation in its tracks. SOPA’s opposition proved that a united digital movement can stop legislation that is expected to pass despite overwhelming odds, special interest’ cronies, and powerful politicians.

Working on Capitol Hill during SOPA was humbling.

For weeks many of the technology-savvy staffers saw the storm clouds of opposition against SOPA building, but we had no idea how massive or sudden the storm surge would be. Many of us were strongly against what we saw as internet censorship from the beginning, working behind the scenes to try and get our bosses on the right side of the issue. Many of us were brushed aside.

But, on January 18, the effect of the movement was deafening. Voters crashed congressional circuit boards and websites, tweeting and facebooking at Representatives and Senators in record numbers. Most of us had never seen anything like this before, and for many it was an abrupt, sobering reminder of what democracy really is. Members’ sudden, vocal opposition of legislation that they were co-sponsoring was a watershed moment&mdsah;thought I would argue that it was also proof of concept for something even bigger.

SOPA awoke the sleeping giant.

A digital generation is ready to change politics and policies, and they will succeed. They will do this by rallying behind new ideas, coalescing around legislation, and by leading campaigns for passage. The show of force during SOPA was impressive. But getting legislation on the table for consideration requires another level of activism. It’s a challenge that we will soon rise to.

Politics is not exclusive to the intellectual, elected, or rich. Politics starts at kitchen tables, water coolers, gyms, bars, and churches. But how does it manifest itself as real change? Put simply: Idea + Movement + Effort = Legislation

I am confident that we can do this, even the special interests expect us to give up. To them, politics is about vested interests, donations and who has the biggest hired guns. Their cronies are counting on us being overwhelmed. They are banking on us fearing failure, on our failing to try in the first place.

I invite you to join us and continue this fight for future battles.

How do we start?

This fight is going to take a generation. It’s going to take a movement. But let me suggest, for what it’s worth, a few pointers.

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More trademark nonsense. I guess you could also just go to the UN for help. Ahem.

From Westword. For related posts, see:

• Budweiser trademark dispute (see also Chip Wood, A Bully-Boy Beer Brewer, Straight Talk (Oct. 16, 2007))
• 9th Circuit Appeals Court Says Its Ok To Criticize Trademarks After All, Against Monopoly (Sept. 26, 2007)
• Kinsella, Trademarks and Free Speech, Mises Blog (Aug. 8, 2007)
• idem, Beemer must be next… (BMW, Trademarks, and the letter “M”), Mises Blog (Mar. 20, 2007)
• idem, Hypocritical Apple (Trademark), Mises Blog (Jan. 11, 2007)
• ECJ: “Parmesian” Infringes PDO for “Parmigiano Reggiano,” I/P Updates (Feb. 27, 2008)
• Mike Masnick, Engadget Mobile Threatened For Using T-Mobile’s Trademarked Magenta, Techdirt (Mar. 31, 2008)

.

Renegade changes the name of Ryeteous IPA after legal threat from Brooklyn’s Sixpoint Brewery

By Jonathan Shikes Thu., Feb. 21 2013 at 9:52 AM

9 Comments

Categories: Beer Man

 

Add Renegade Brewing to the list of Colorado breweries who have had to change the name of one of their beers in response to a legal threat from another beer maker. (This story has been updated below.)

The company’s flagship brew, Ryeteous Rye IPA is now called — wait for it — Redacted Rye India Pale Ale, and a line has been drawn on the label through its previous name.

What a treat; here we have three smart, young libertarian ladies (“Team Brittany”) debating intellectual property in a quite sound and sophisticated way. Good stuff.

See also Anarchast Ep. 58 with Brittany of “Team Brittany”.

From the Kinsella on Liberty Podcast: Episode 022.

This is lecture 5 (of 6) of my 2011 Mises Academy course “Libertarian Legal Theory: Property, Conflict, and Society.” I’ll release the remaining lectures here in the podcast in upcoming days.

This lecture’s topic is “Intellectual Property and Related,” and discusses:

• Overview of types of IP
• Origins of IP
• The nature of property rights, role of scarcity, and the function of the market.
• Pro-IP arguments: utilitarian and deontological
• Defamation
• Free Speech and Property Rights (Rothbard)
• Proposed Reforms
• Imagining a post-IP world

For slides for all six lectures, plus extensive hyperlinked suggested reading material, see this Libertarian Standard post. For a listing of the syllabus and topics covered in each lecture, see this Mises blog post.

For more information, see my Mises Daily article “Introduction to Libertarian Legal Theory,” and Danny Sanchez’s post Study Libertarian Legal Theory Online with Stephan Kinsella.

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