Center for the Study of Innovative Freedom

My reply to: “4 Ways Intellectual Property Drives our Economy”

Stephan Kinsella — Thu, 17 May 2012 04:33:49 +0000

My reply to this (ridiculous) post, 4 Ways Intellectual Property Drives our Economy:

I am a patent attorney. The patent system (and copyright system) are abominations. They are antithetical to the free market. They should be abolished.

This study is utter nonsense. The study does not prove IP generates any innovation or wealth. It just says that industries that are subject to IP generate wealth. So what? Every industry that generate wealth is subject to regulations, taxes, etc. Might as well say that taxes cause production, which is obvious nonsense. There is innovation and wealth production despite taxes and patent law, not because of it.

The Economist: Copyright Is An Antiquated Relic That Has No Place In The Digital Ages

Stephan Kinsella — Thu, 17 May 2012 03:31:55 +0000

As noted in a recent Techdirt post by Mike Masnick, economist Dean Baker, in his latest column about how The Pirate Party has got it right on copyright, argues:

Near the top of the list of the Pirate Party’s demons is copyright protection, and rightly so. Copyright protection is an antiquated relic of the late Middle Ages that has no place in the digital era. It is debatable whether such government-granted monopolies were ever the best way to finance the production of creative and artistic work, but now that the internet will allow this material to be instantly transferred at zero cost anywhere in the world, copyrights are clearly a counter-productive restraint on technology.

Problem is, Baker “goes on to suggest some alternative means to fund such creative works in a world without copyright, including ideas like ‘artistic freedom vouchers’ that would give people a refundable tax credit on supporting creativity, on the condition that any of the creativity funded by such money would not be able to protect it with copyright for a period of time.” So despite Baker’s pose that he is some radical supporter of pirate party ideas or an opponent of statist copyright grants—he is not. He supports these statist, ridiculous “artistic freedom vouchers.” This is pure theft: from taxpayer to state-favored “artist”. And he is not even against copyright. In my post Economist: Copyright Is An Antiquated Relic That Has No Place In The Digital Age, I noted that Baker, like Alex Tabarrok in the field of inventions, recommends taxpayer funded multibillion-dollar “artistic freedom vouchers” to promote artistic creation. See also William Patry on How to Fix Copyright and The “Artistic Freedom Voucher” [sic], where I note that Roderick Long here quotes Timothy Lee: “I can’t agree with Baker that all copyright and patent monopolies are illegitimate.” Baker poses as some maverick radical IP reformer, even though he does not oppose getting rid of these monopolies, and indeed favors adding to this abominable program tens or hundreds of billions of dollars of taxpayer funded state-directed subsidies to the arts and innovation. With radical reformers like these, who needs socialists?

C4SS: The IP Wars as “Competition”

Stephan Kinsella — Tue, 15 May 2012 17:58:25 +0000

From C4SS:

The IP Wars as “Competition”

Posted by David S. D’Amato on May 15, 2012

On Monday (May 14, 2012), the Wall Street Journal published two stories on some of the major players in corporate patent wrangling.

The first story, featuring tech firms Nvidia and Intellectual Ventures, highlights the defensive role of patents as a strategic investment. Nvidia’s general counsel, David Shannon, remarks in the article that “[t]he acquisition of IP is a strategy every company is using right now.”

Elsewhere, in the litigation theater of the intellectual property wars Shannon cites, Apple and Samsung skirmished in a federal appellate court over whether Samsung could market its Galaxy tablet in the U.S. The case is just one in the constant and frenzied volley of IP-related lawsuits within the technology industries, whose most important assets are no longer physical goods, but special legal protections.

These stories and many more just like them hint at something at the core of the way that the economic ruling class employs the power of the modern state.

The role of the state in the economy is and always has been to allow a small elite to create gates and tolls around wealth and natural resources, to monopolize them and the products of labor. As a particular medium for this operating principle, the modern state is somewhat unique, built upon quite specific thinking as to roles and capabilities of bureaucrats working within centralized, hierarchical organizations.

It is in that way very similar, in both its philosophical assumptions and in its functioning, to the modern corporation. Narratives that position business and government as rivals ignore not only the similarities of the two, but their mutual interdependence. Indeed it would be practically impossible to neatly separate the two from one another in the history of the modern, total state.

Technology represents the proverbial double-edged sword within such a paradigm. On the one hand, in its relation to the do-it-yourself realm, technology has thrown wide potentialities of self-sufficiency and independence that few could have imagined, new ways to live and to thrive in a world outside of the state-corporate economic and social structure.

At the same time, the emergence of new industries and new technologies must be regarded as central in the evolution of the kind of state we know today, the reach and scope of authority seeming to lengthen and expand daily.

Discussing the international law framework around “intellectual property,” specifically the TRIPS agreement, economist Donald G. Richards notes the ways that international IP rules “reflect the real and perceived interests of cross-national classes.” Richards argues, as do market anarchists, that worldwide protection of patents and copyrights “facilitates the expansion of global capitalism while reinforcing the currently prevailing hierarchy of production and power relations.”

On a fundamental level, patents and copyrights dictate the ways in which people are allowed to use their own tangible property, from pens and paper to scrap metal and computer chips. They thus represent the kinds of coercive, monopoly privileges that genuine free markets stand against in principle. Using the restrictive power of the state to limit competition raises the prices of our computers, automobiles, food and clothing — virtually all of the good and services we buy.

“Competition” today is no more than a clash between rich, monolithic global corporate titans who would rather use the legal system to ban competitors than actually compete. Competition between Samsung and Apple may be fierce enough in the courtroom, but what would happen in a real free market, one where no one was entitled to special privileges through IP?

Then the consumer might not be merely a consumer; she might just be an autonomous individual with more capacity for self-sufficiency than we can imagine in a today shackled to millions of pieces of paper housing corporate patents.

Judge.me, Private Arbitration and Intellectual Property

Stephan Kinsella — Mon, 14 May 2012 22:03:57 +0000

Tom Woods blogs about an intriguing new service, in I Love People Who Actually Do Things I Only Talk About:

Check out Judge.me, a new Internet-based dispute resolution website, being touted as an equitable and affordable alternative to government courts. The creator sent me a note alerting me to it, and I’m very interested. He also did an AMA (“Ask Me Anything”) at Reddit. Here’s how it works.

Jeff Tucker also wrote about it in Small Claims for the Digital Age:

Judge.me seems like an amazing idea. It’s a arbitration system for the digital age. It is especially useful for international disputes, resolved in days. The site owner answers detailed questions on Reddit. It raises an intriguing possibility that the real long-term results of the Ron Paul campaign won’t be political in the way people think of it but rather entrepreneurial. Many people have been inspired to start new businesses based on the idea of a pure voluntary order.

See the video below. This kind of simple, technology-based private arbitration should be of especial interest to anarcho-libertarians, who have long argued that private arbitration would play a significant role in justice in a stateless society.¹ In fact, its founder is a self-proclaimed anarcho-capitalist, as noted in his Reddit AMA.

One interesting thing is their choice of law, which matters given that many of the disputes might involve parties from different countries:

For court litigation, which law to apply (called “choice of law”) becomes an issue as soon as the dispute crosses jurisdictional borders. Even when the parties specified their choice of law in the contract, good lawyers find ways to challenge this which leads to choice of law becoming a trial on its own. To avoid this issue, smart arbitration service providers such as judge.me specify that rather than applying a certain local law, the arbitration will be resolved based on common law and [equity principles]. The concept of basing dispute resolution on “fairness and equity” is known under its latin name ["ex aequo et bono"].

I.e., disputes are resolved by common sense principles of justice—the general rules developed over time in common law and equity courts. (This is similar in a way to international law’s appeal to “the general principles of law recognized by civilized nations”. See my post, The UN, International Law, and Nuclear Weapons.)

But if you stick to justice, common sense, and basic property and libertarian rights, then statutory law is out. You don’t appeal to it when making a determination—unless both parties have agreed to this artificial legal standard. (See my Legislation and Law in a Free Society.) Now this brings to mind the case of so-called “intellectual property”—primarily patent and copyright. Both are the explicit results of massive state legislative schemes–the Copyright Act and the Patent Act. Some anarcho-libertarians who are nonetheless pro-IP, such as J. Neil Schulman and L. Neil Smith, are clear that they do not favor state-enforced IP. As I wrote elsewhere, Schulman, “as an anarchist, to his credit admits that if it could be shown that his version of IP could be enforced only by state law, he would abandon it…” In fact, if they are anarchists, they cannot support any legislation since legislation is a creature of the state. But then they turn around and say that they think private arbitration in a free society would be resorted to, to resolve IP and “plagiarism” disputes. Let’s forget for a second that plagiarism has nothing to do with copyright, patent, or market competition. Let’s forget that if you could sue someone for “copying” you unfairly, then this would open up a whole new realm of anti-competitive protectionism—anyone who competes with you, especially “unfairly”, is “stealing” your customers and unfairly “harming” you.

Let’s just assume we have a private legal system largely based on arbitration, which itself relies on general principles of justice, not on legislation. To sue someone you need to allege they have harmed you—invaded your property rights. Some contract breach, tort, trespass, or even crime. Now if you make the text of a novel or the digital file of a song or movie public (for whatever reason), and someone else copies and uses it and redistributes it (for free; or for monetary consideration); or if someone imitates your product and sells a competing ones—what possible common law claim could you have? None. You could make a copyright or patent claim, but only relying on the legistatist quo. You could not appeal to any organic legal principle developed in a decentralized free market legal order. It is not wrong to learn. To compete. To emulate. To copy. To steal customers. To “deprive” a competitor of profit. To do “something similar.” To use information that is publicly available.

My point? If we had a free society with a decentralized, non-legislated legal order, it is impossible to imagine there being patent or copyright law or claims, any more than someone could make a minimum wage or Americans with Disabilities Act claim absent those federal statutory schemes.

[TLS]

See, e.g., Linda & Morris Tannehill, The Market for Liberty; David Friedman’s The Machinery of Freedom: Guide to a Radical Capitalism; and “Imagining a Polycentric Constitutional Order: A Short Fable,” chapter 14 of Randy Barnett‘s The Structure of Liberty.

Hacking’s a snap in Legoland

Stephan Kinsella — Sat, 12 May 2012 16:56:20 +0000

Hacking’s a snap in Legoland

By Daniel Terdiman
Staff Writer, CNET News

When Lego executives recently discovered that adult fans of the iconic plastic bricks had hacked one of the company’s new development tools for digital designers, they did a surprising thing: They cheered.

Unlike executives at so many corporations, who would be loath to let their customers anywhere near the inner workings of their software tools, the Lego honchos saw an opportunity to lean on the collective thinking of an Internet community to improve their own product while bolstering relations with committed customers.

All it took was being open-minded enough to see that their biggest fans weren’t trying to rip them off; they were trying to improve Lego’s products in a way that, just maybe, the company’s own designers hadn’t thought of.

“I was a little concerned at the beginning because I know there are companies that don’t respond favorably to this kind of thing,” said Dan Malec, a software engineer from Stow, Mass. Malec is an active member of the adult Lego community, a group of passionate Lego aficionados who build models far more elaborate and sophisticated than the kids’ versions most people are used to seeing.

To one toy-industry observer, Lego’s positive reaction to the hack is more than unusual.

“I can’t think of another instance in toys where it’s been basically ‘Do whatever you want,’” said Anita Frazier, an entertainment industry analyst at The NPD Group. “If it doesn’t ultimately hurt the intellectual property, and (the users) aren’t modifying the trademark or the core property at all, (Lego is) looking at it as it doesn’t hurt.”

Last month, Lego launched Lego Factory, a service through which users can create their own unique and customized Lego models–a cat, the Statue of Liberty, a tree or whatever else users choose.

Once the designs are created and uploaded through Lego Factory, the company manufactures the bricks necessary for the model and ships them to users so they can assemble their models. Customers can also buy the bricks necessary to build from other people’s designs, which are posted on the site.

h/t Redmond Weissenberger

Washington Post on Patent Trolls, Software Patents, and Patent Reform

Stephan Kinsella — Wed, 09 May 2012 02:11:45 +0000

From the Washington Post:

Where are the jobs? Ask the patent trolls.

By Vivek Wadhwa, Published: May 7

President Obama has been touting patents as a way to create jobs and increase U.S. competitiveness. “These are jobs and businesses of the future just waiting to be created,” he said of patent applications last September, “somewhere in that stack of applications could be the next technological breakthrough, the next miracle drug, the next idea that will launch the next Fortune 500 company.”The President is mistaken—at least when it comes to the patent system as it relates to software patents. These patents—and the patent system—aren’t creating innovation, they are inhibiting it and, by extension, job creation. Why? Because the breakthroughs aren’t in the patents, they are in the way ideas are commercialized and marketed. Because of flaws in the patent system and government leaders’ misunderstandings, there is an arms race of sorts happening in the tech industry that is sapping billions out of the economy and crushing technology startups. This system is enriching patent trolls—companies that buy patents in order to extort money from innovators. These trolls are like a modern day mafia. Given this, I argue software patents need to be eliminated or curtailed.

(h/t Gary Chartier)

Unfortunately, but unsurprisingly, the author misdiagnoses the problem, given his mainstream but non-principled, non-radical, utilitarian approach. The problem is not software patents, or patent trolls, or even “bad” or low-quality patents. The solution is not patent reform, or reducing the term of or even getting rid of “software patents.” The problem is the good patents—”legitimate,” hiqh-quality, unassailable patents granted not to patent trolls (“non-practicing entities”) but to practicing entities who use these patents and the force of law to squelch competition.

Kinsella Austrian AV Club Interview—Mises Institute Canada

Stephan Kinsella — Fri, 04 May 2012 13:28:51 +0000

I was interviewed yesterday by Redmond Weissenberger, Director of the Ludwig von Mises Institute of Canada. We had a long-ranging discussion of intellectual property and libertarian theory, including a discussion about exactly how Ayn Rand and other libertarians got off track on this issue, in part because of flaws regarding “labor” and “creationism” in Locke’s original homesteading argument; inconsistencies between Rand’s support for IP and her recognition that production means rearranging existing property; and also the different roles of scarce means and knowledge in the praxeological structure of human action. (For more on these issues, see my blog posts Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging’, Hume on Intellectual Property and the Problematic “Labor” Metaphor, Rand on IP, Owning “Values”, and ‘Rearrangement Rights’, and The Patent Defense League and Defensive Patent Pooling, and my article “Intellectual Freedom and Learning Versus Patent and Copyright.”)

The video is below; audio file is here (69MB). (Trivia: I used my iPad, running the Skype app, for this interview. More stable and better camera than a MacBook.)

[TLS]

Patent Trolls Are Preferable to “Practicing Entities”

Stephan Kinsella — Wed, 02 May 2012 21:21:36 +0000

I don’t know anyone who says we don’t need patent reform. We need to address various problems, they say–junk or low-quality patents, patent trolls, and the like. But as I noted in Gigaom: Can big data fix a broken system for software patents?,

The problem is not trolls, overbroad patents, junk patents, inept patent examiners, software patents, etc. The problem is the very idea of patents.

Or as I observe in Slate’s Farhad Manjoo: Use Crowdsourcing to Improve Patents and Kill Patent Trolls:

bad patents versus good patents has nothing to do with the patent troll “problem”. This alleged “problem” is a result of the fact that there is no requirement to use the invention your patent covers, or even to produce a working model of it. There is no working, use, or reduction to practice requirement. The patent statute requires that the claimed invention be novel, and non-obvious, and also have “utility”–i.e., that it function. But the latter is just assumed, except in rare cases where it appears to the Examiner that something impossible like a perpetual motion machine is being claimed. Filing a written description of an invention substitutes for the requirement to reduce the invention to practice–it’s called a “constructive reduction to practice.” Given this: improving patent quality has nothing whatsoever to do with the “troll” problem. Even if you get rid of the 58% crap patents, the remaining 42% “high quality” patents will still be granted to patentees, some of which are not using the claimed invention. There is no reason a patent troll cannot own and use a “high quality” patent! So what is Manjoo talking about?

Or in The Patent Defense League and Defensive Patent Pooling:

patent trolls usually just want money. So they just serve as a kind of tax. But competitors often want to get an injunction to shut down the product lines of their competitors. Having to pay a “tax” to a troll is usually less of an existential threat to a company than is the patent injunction threat from a competitor.

In other words, the problem is not low-quality patents, or “bad” patents, or patents enforced by trolls–so-called non-practicing entities (NPEs). The real problem is good patents enforced by practicing entities. Even if you get rid of all “bad” patents, all software patents, all trolls, all business method patents–the fundamental problem remains: companies can acquire patents that they can use to squelch competition.

Yes, patent trolls (NPEs) are in several respects better than “practicing entities.” As noted in CE-Oh no he didn’t!: Tony Fadell calls Honeywell out on patent claims:

Smart thermostats might not be the cut-throat world of litigation like, say, mobile phones, but that doesn’t mean the odd feather doesn’t get ruffled from time to time. Nest CEO, Tony Fadell, is understandably protective of his company’s product, so when competitor Honeywell laid a stack of patent infringement claims at his door, unsurprisingly he was none too pleased. How displeased? Well, enough for him to drop this clanger: “Honeywell is worse than a patent troll.” Then going on to quantify with “They’re trying to strangle us, and we’re not going to allow that to happen.” We think that makes his feelings on the matter pretty clear. Well, when you’ve been SVP of Apple’s iPod division, it’s easy to see how patience with such things might wear thin.

A patent troll would merely ask Nest for a fee–like a polite mafia extorter, or Lysander Spooner’s highwayman, who does not pretend he is helping you and, after taking his cut, largely leaves you alone. But Honeywell, a Nest competitor, will do what they can to obliterate the competition posed by Nest. We see examples of this kind of patent-extortion every day. (And copyright too: Stupidity Of Licensing Demands Means The Wrecking Crew Can’t Help Sell More Music With Documentary.) So: Trolls are not the problem. ((See my Patent Trolls and Empirical Thinking; Patent Law, State Courts, and Free Speech: The Case of Troll Tracker.)) Complaints about trolls¹ are confused. The problem is the patent system itself.

Andy Kessler, WSJ, Patent Trolls vs. Progress.

Destructive Creation

Stephan Kinsella — Sat, 28 Apr 2012 19:07:47 +0000

In my post Leveraging IP, I noted how various technology, markets, and products are made needlessly complex in order to take advantage of various IP law–copyright, patent, trademark–so that the seller can use state law to quash competition. For example, Omega puts a copyright-protected logo on the back of a watch to prevent arbitrage (when it’s bought by Costco for a lower price in Paraguay and then imported into the US to be sold at a lower price than the much higher US retail price, it’s copyright infringement since a quirk in the law says that due to the import from another country the standard copyright “first sale doctrine” doesn’t apply); clothes and purses and luggage have trademarked symbols made part of the design itself to prevent what would otherwise be legal “knockoffs” (i.e. competition); and laser printer manufacturers build in complicated mating but patentable circuits into the printer cartridges to prevent generics from making laser printer cartridges that can be used with a name-brand laser printer. This reduces the natural standardization and interoperability tendencies that would normally prevail on the market, and increases cost and complexity unnecessarily. A more recent example is found in How Intellectual Property Destroyed Men’s Shaving.

So, one thing IP does is to push companies to engage in needless innovation and product complexity just so they can take advantage of anti-competitive IP monopolies. In a sense, in a reverse of the idea of Marxist notion of “creative destruction,” what IP leads to is destructive creation.

The problem is that if you point out that IP is leading to unnecessary “innovation” many people will think you are admitting that IP does give rise to more innovation and that you are crazy for opposing improved products. But what is happening is that IP imposes huge net costs on the economy, and reducing overall innovation. IP distorts and skews innovation; it gives rise to trivial innovations or monopolies on innovations that would have arisen even without IP; it causes companies to needlessly complicate and add cost to products just so they can impose an even higher monopoly price on them.¹

Software Industry Needs 2 Million Patent Attorneys and $2.7 trillion per year to avoid infringing software patents; Costs of the Patent System Revisited.

Daniel Ravicher’s Google Techtalk: The Patent Pollution Problem: Its Causes, Effects and Solutions

Stephan Kinsella — Sat, 28 Apr 2012 13:56:00 +0000

In my post Patent Lawyers Who Oppose Patent Law, I include in my list “Daniel Ravicher, Executive Director of the Public Patent Foundation (PUBPAT) and Legal Director of Software Freedom Law Center, and also a registered patent attorney, appears to be opposed to patents or at the very least has serious reservations.”

Here is a recent Google tech talk on problems with patents and some solutions, followed by an older talk. I would disagree with Ravicher that the problem with the patent system is low quality patents. The problem is high quality patents–patents that are not obtained by trolls, patents that are perfectly valid over the prior art, and that the patentee can use to stop competitors from competing with them. Still, it’s an illuminating talk with a lot of good information on the way the patent system (doesn’t) work.

How Intellectual Property Destroyed Men’s Shaving

Stephan Kinsella — Thu, 26 Apr 2012 22:50:53 +0000

h/t Jeff Tucker:

How Intellectual Property Destroyed Men’s Shaving | Callum Makkai

Well over a century ago, a salesman named King Gillette patented the design for his safety razor and went on to found the Gillette Safety Razor Company. His invention made him wealthy as American men rushed to buy his razor blades.

Update: See Mike Masnick’s post Do You Owe Your Crappy Shave To Patents?

See also my discussion, in Leveraging IP, of how manufacturers intentionally complicate products (such as laser printer or inkjet cartridges) just so that they can patent them so they can prevent competition; or Omega’s adding of a copyrighted logo to a watch back on purpose just to prevent import-arbitrage.

Forbes: Apple (Mostly) Isn’t to Blame for the Patent Mess

Stephan Kinsella — Thu, 26 Apr 2012 14:10:50 +0000

From Tim Lee writing at Forbes:

Apple (Mostly) Isn’t to Blame for the Patent Mess

Way back in October, I wrote a post for Forbes arguing that it’s a good thing that Google“stole” some key user-interface concepts from the iPhone and incorporated them into Android. Users benefit from this kind of copying because without it it would be impossible to buy a smartphone that incorporated the best features from across the industry.I was planning to do a follow-up post exploring the flip-side of this question: whether Apple “stole” ideas from previous innovators. That wound up being a much bigger project that I ultimately pitched to Ars Technica and finally published here on Thursday. I encourage you to read the whole piece, but to sum up: many of the key innovations we associate with Apple—capacitive multi-touch screens, gestures like “pinch to zoom,” touchscreen-only phones—were pioneered by other companies or researchers long before Apple brought them to the commercial market.

The story sparked a lot of discussion among Ars readers. We’re already over 500 comments with no signs of slowing down. I’ve been fairly disappointed with the response. A lot of Apple fans seem to be interpreting the piece as an anti-Apple hit piece, which wasn’t the point of the piece at all. The iPhone was indisputably a major advance over the mobile devices that existed previously, and I didn’t mean to minimize the accomplishments of those who created it.

Rather, the point of the piece was to point out the degree to which even for a revolutionary product like the iPhone, the process of innovation is incremental and cumulative. For many consumers (including me) the iPhone interface Steve Jobs showed off in January 2007 was unlike anything we’d ever seen. It’s not hard to imagine that the US Patent Office could grant Apple a patent on “the iPhone” and demand that competitors get permission before copying it.

The problem is that once you have the full context, it’s surprisingly difficult to draw a line between ideas Apple “invented” and already-existing ideas that Apple merely put to use in a new context. For example, NYU’s Jeff Han demonstrated a set of sophisticated multi-touch applications at a 2006 TED Talk. Apple’s genius was largely to recognize that these same multi-touch gestures could be usefully translated to the form-factor of a cell phone. So was Apple’s application of Han’s techniques to the cell phone context a new invention or just a relatively obvious translation of Han’s work to a new form factor?

For more on Apple, including its hypocrisy:

Apple years ago: Steve Jobs: “We have always been shameless about stealing great ideas”

Apple now: Tim Cook: “We just want people to invent their own stuff.”

Americans for Tax Reform Uses Correlation Between Physical Property Rights and GDP to Argue for IP

Stephan Kinsella — Thu, 26 Apr 2012 12:31:47 +0000

In the post A Picture Is Worth A 1000 Words, Americans for Tax Reform posts the graph at right, which shows a positive relationship between physical property rights and GDP per capita. That is: the stronger are property rights in scarce resources, the more prosperity there is. Basic free market economics. ATR writes:

The picture on the [right] proves it [the importance of private property rights] once and for all.

The Property Rights Alliance, an affiliate of Americans for Tax Reform, annually releases the International Property Rights Index (IPRI), an annual report sponsored by 54 organizations that tracks property rights around the world. It has found that that countries that protect their physical and intellectual property enjoy a GDP per capita up to nine times greater than those without legal protection.

Private property rights really are the only way forward.

Note how ATR combines physical property and IP together even though the very graph they use to illustrate this contention has the word “physical” right there in the very title.

As for the Property Rights Alliance, it no doubt does maintain that both physical and IP rights are important–it labels itself as “The Advocate for Physical and Intellectual Property Rights Around the World.” And it does have an annual index that ranks countries based on how strongly they protect both physical and IP rights. But so what? Correlation is not causation. PRA on its site has a post up “New Study Confirms IP’s Importance“–but as I discussed previously, in USPTO/Commerce Dept. Distortions: “IP Contributes $5 Trillion and 40 Million Jobs to Economy”, this study does not establish this at all. It only shows that industries that use IP generate jobs and wealth. It is equally true that industries that are subject to federal and state taxes and regulations generate jobs and wealth, but it would be wrong to attribute this to the taxes and regulations. Rather, these companies generate wealth despite state taxes, regulations, and IP.

The assumption that stronger or more IP rights generates wealth is just wrong; in fact IP imposes huge cost on the economy and reduces and distorts innovation and artistic creation. See, e.g., Yet Another Study Finds Patents Do Not Encourage Innovation; Software Industry Needs 2 Million Patent Attorneys and $2.7 trillion per year to avoid infringing software patents; Costs of the Patent System Revisited.

Copyright Continues to Crumble; Ebooks Libertated from DRM; Gatekeepers Quake

Stephan Kinsella — Wed, 25 Apr 2012 14:44:15 +0000

From Reason:

Science Fiction Publisher Liberates Its E-Books

Katherine Mangu-Ward | April 24, 2012

Tor/Forge, the rather libertarian science fiction publishing house I profiled in “Tor’s World Without Death or Taxes,” has decided to eliminate digital rights management from their e-books: [...]

Other recent news:

Science Fiction Publisher Liberates Its E-Books

See also The wealthiest university on Earth can’t afford its academic journal subscriptions:

Yes, you read that right. According to a memorandum issued last week by Harvard Library’s Faculty Advisory Council, the cost of its peer-reviewed journal subscriptions has become prohibitively expensive.

What does it say about the world of academic publishing, the accessibility of knowledge, and the flow of information when the richest academic institution on the planet cannot afford to continue paying for its peer-reviewed journal subscriptions?

And see Glyn Moody’s Techdirt post: Open Access And The Art Of Contract Hacking:

Open Access continues to gain momentum, as more and more researchers seek to make their work freely available online. One way of doing that is by modifying the contract that academic publishers routinely send to potential authors, inserting a clause that allows digital copies to be distributed.

That’s been working quite well, but some publishers are starting to object, as Freedom To Tinker blogger Andrew Appel discovered recently (link found via BoingBoing.) The Association of Computing Machinery, which claims to be “the world’s largest educational and scientific computing society“, sent him an email that stated it “does not accept copyright Addenda that exceed the liberal rights retained by authors under ACM’s Copyright Policy and the exclusive grant of copyright to ACM as publisher”.

But Appel has come up with a neat idea for getting round this block: [...]

Update: See Duke Scholars Join Boycott Against Elsevier; Even Harvard Can’t Afford Subscriptions To Academic Journals; Pushes For Open Access.

Copyright Monopoly Lobby Sues Reputable Professor For Saying They’re A Monopoly

Stephan Kinsella — Tue, 24 Apr 2012 14:55:17 +0000

More outrageous copyright censorship. From Falkvinge.net. For more on the issue of patent and copyright being monopolies, see my post Are Patents “Monopolies”?

Copyright Monopoly Lobby Sues Reputable Professor For Saying They’re A Monopoly

The Spanish copyright monopoly lobby Promusicae has filed lawsuit against the reputable Spanish professor Enrique Dans for “soiling their honor”, and demand €20,000 in damages.

They are filing lawsuit against Professor Dans for pointing out in passing that the copyright monopoly lobby is just that – a monopoly, using monopolistic practices, something that is well established in dictionaries and even in legislation.

This is so outrageous, I don’t know where to begin. Every time you think the copyright monopoly lobby has sunk as morally low as humanly possible, they come up with new ways to surprise you. They’re actually filing a lawsuit against a professor for stating that they’re using monopolistic practices – when they’re a legislated monopoly? They’re filing a lawsuit with the obvious purpose of inciting fear of criticizing them? This goes right into the list of “worst of the copyright industry”, along with how the copyright industry uses child pornography to induce censorship laws.

The matter concerns this blog post (in Spanish), point six, where Professor Dans points out that the copyright industry is using illegal monopolistic practices to control the music we hear on the radio (something the copyright industry has indeed been convicted of doing as a regular practice, along with illegal price fixing). Professor Dans writes more about the lawsuit on his own blog (also in Spanish). This completely infuriates me.

First, to introduce Enrique Dans, he’s one of the good guys in Spain and was instrumental in the uprising against Ley Sinde. That piece of U.S. mail-order legislation eventually passed, but far from as silently as the copyright monopoly lobby would have liked.

Second, Promusicae, the antagonist here, has sued ISPs to get access to subscriber data behind IP addresses that not even the Police may access. Yes, you read that right: this private monopoly lobby is so full of entitlement that they think they should have greater powers to violate citizens’ privacy than a country’s police force. (They lost, in a landmark precedent ruling, but not before having appealed all the way to the European Court of Justice, Europe’s highest court.)

Third, this is so obviously a lawsuit intended to chill criticism, to stifle free speech, and to scare the public from speaking out against corporate bullies, that anti-SLAPP legislation may need to come to Europe along with the U.S. mail-order monopoly legislation and its deceptive copyright lobby. (When U.S. lobbies act like this on their own soil, they are struck down in bolts of lightning, and deservedly so.)

Fourth, how can these morons at Promusicae possibly fail to understand that the inevitable effect of this abusive lawsuit would be not only the world’s spotlight on the monopolistic practices that Professor Dans points out, but also on their abusive and repulsive behavior?

Enrique Dans has over 150,000 followers on Twitter. How could these nutcases possibly believe they would have the privilege of interpretation here?

Every time you think the copyright monopoly lobby must have run out of ammo shooting itself in the feet, they reload.

Fifth, from a legal standpoint, I can’t say where Professor Dans stands: being right and prevailing in court are two different things. Money speaks and it is quite possible to out-lawyer somebody even if you don’t have a shred of legal ground in civil proceedings like these. If I were judging, the case would be easy – obviously, Professor Dans hasn’t soiled the honor of Promusicae, as they don’t have any to begin with.

But regardless, he will now have to spend time and resources defending himself in court against one of the most filthy, shameless, honorless lobby that roams. Promusicae and their ilk need to be shut down: it’s not just that they don’t have any honor, but they’re a monopolistic parasite on the productive and creative elements of society. Now, they’ve added the fact that they don’t pull any punches when it comes to trading free speech for bottom lines. There’s no end to my total despise for these corporate bullies. Seeing news like this, my reaction is something like “fuck them hard with a ten-foot chainsaw, preferably from parliament”.

Sixth, perhaps what amazes me most is that the public backlash to this kind of behavior is as predictable as a grandfather clock. How can the copyright monopoly lobby’s lawyers live in so completely disconnected an ivory tower, that they thought it was a good idea to file lawsuit against a reputable professor for claiming they’re a monopoly, using monopolistic practices – when this fact is not only well-established to the point of being in dictionaries, but even legislated? What kind of survivability would such a parasitic misantropic business have in the wild, if it were not protected by obsolete laws?

I really don’t know what to say.

After seeing this shockingly disgusting behavior, I’m very happy I didn’t end up in the copyright monopoly lobby. On the other hand, I probably wouldn’t have been a good fit for a place like Promusicae anyway. My parents weren’t siblings.

Free Pirate Party Book: The Case for Copyright Reform

Stephan Kinsella — Tue, 24 Apr 2012 14:48:10 +0000

The book The Case for Copyright Reform, by By Pirate MEP Christian Engström & Rick Falkvinge, is now online. Falkvinge is great and the book has some good arguments against the current copyright system. The case it makes is marred by lack of coherent principle, however:

“The Pirate Party does not want to abolish copyright; we want to reform it. We want to keep copyright for commercial purposes, but we want to set all non-commercial copying and use free.”

Of course copyright needs to be completely abolished. And there is nothing wrong with commercial use, money, or profit, as American left-copyright abolitionist Nina Paley notes. Still, this book is pushing in the right direction: less copyright.

USPTO/Commerce Dept. Distortions: “IP Contributes $5 Trillion and 40 Million Jobs to Economy”

Stephan Kinsella — Fri, 20 Apr 2012 15:04:08 +0000

The website of the USPTO this morning is triumphantly proclaiming that “IP Contributes $5 Trillion and 40 Million Jobs to Economy.” This is pure Intellectual Properganda. The link is to a US Commerce Department report “Showing Intellectual Property-Intensive Industries Contribute $5 Trillion, 40 Million Jobs to US Economy”. The USPTO says “A new report demonstrates intellectual property is widely used in the economy and the industries that use it most intensively account for a large share of economic activity for jobs, new products and services, and the prospect of longer and better lives.”

Got that? Not IP–but IP-intensive industries. That is, the private companies in certain industries generate $5 trillion and 40 million jobs–and yes, they happen to use IP since the state inflicts this system on them. How bad is this logic? Sure, IP is widely used. Companies have no choice but to waste billions of dollars acquiring patents to use for defensive reasons, which helps them form oligopolies that reduce competition, innovation, consumer welfare, and prosperity.¹

Yes, they “use” IP. And they also pay taxes and are subject to a host of unconstitutional federal regulations. Just because an industry subject to and regulated by IP (and other regulations) generates $5T does not show that IP itself contributes $5T to the economy. This is such obvious propaganda. In fact, IP imposes huge costs on the economy and these industries–likely on the order of hundreds of billions of dollars a year, or more,² plus the devastating financial costs of copyright, not to mention the police state being foisted on us in the name of copyright.³

This argument makes the mistake of equating correlation with causation, just as similar arguments for IP do, such as: Postwar Japan prospered because it had a patent system; countries with the most IP are the most prosperous; America’s prosperity and growth since its inception is due to its patent and copyright systems.

If the USPTO and Commerce Dept. are stooping to such strained arguments in favor of IP, maybe it’s a sign that they know they are on the ropes–and also of how desperate they are, how little real ammunition they really have.

Add this to the list of Absurd Arguments for IP.

Reason.TV: Too Much Copyright

Stephan Kinsella — Fri, 20 Apr 2012 01:57:37 +0000

Reason.tv has a nice 9-minute video with Tom Bell (one of the handful of IP attorneys to publicly oppose IP¹ ) and Ben Huh, both skeptical of copyright, and an MPAA flunky, discussing the merits of copyright. My main disagreement is the background presumption that copyright was “intended to” and “used to” promote the creation of creative works: “Copyright exists to “promote the useful arts” according to the Constitution. But is it still doing that?” That is not its purpose, and it certainly was never its effect. But Huh and especially Bell are very good here, as is Reason.TV for highlighting this.

For more on the great work of Tom Bell in opposition to IP:

his draft book, Intellectual Privilege: Copyright, Common Law, and the Common Good
The Great Debate on Intellectual Property, in Cato Policy Report (January/February 2002)
Tom Bell: Copyright Erodes Property?
Tom W. Bell on Intellectual Property
other copyright writing by Bell

See Patent Lawyers Who Oppose Patent Law.

Doug French: From Innovation to Rent Seeking

Stephan Kinsella — Thu, 19 Apr 2012 11:59:37 +0000

Good article from Doug French at Mises Daily:

From Innovation to Rent Seeking

Mises Daily: Wednesday, April 18, 2012 by Doug French

It’s often thought that the technology sector is the least regulated and therefore has been the most productive during the past couple of decades. Famously, Bill Gates had no interest in politics. “In the beginning, Microsoft tried to ignore the powerful political forces arrayed against it, hunkering down in Redmond, Washington, to focus on its core businesses,” William F. Shugart wrote in the Freeman. Of course, the Department of Justice snapped Mr. Gates to attention.

And while Mark Zuckerberg says he doesn’t like to vote, since hiring Sheryl Sandberg, who served in the Clinton administration, Facebook’s DC presence has increased, and President Obama himself stopped by the FB office.

The news of AOL’s patent sale to Microsoft reminds us that there is plenty of government force channeling money toward the coffers of the big tech companies. It’s not all warm and fuzzy corporate slogans, cool workplaces, and upscale company cafeterias in Silicon Valley.

Battalions of intellectual-property (IP) lawyers keep constant watch over the government-erected barriers and monopoly privileges that lock up ideas and create corporate value out of thin air.

AOL is considered so old school, kids snicker if they see someone with an aol.com email address. In 2001, old-school media giant Time Warner consolidated with American Online (AOL), the Internet and email provider of the people, for a whopping $111 billion. However, eight years later, the CEO of Time Warner, Jeff Bewkes, announced that the marriage of AOL and Time Warner was dissolved.

Last year, AOL bought the Huffington Post for $315 million or reportedly five times revenues: the multiple to profits being unknown, as there were none.

But Microsoft had $1 billion burning a hole in its pocket, and AOL had 800 patents it didn’t need; a deal was made, and AOL shareholders loved it. However, this is no aberration. Steve Lohr writes for the New York Times,

The lofty price — $1.3 million a patent — reflects the crucial role that patents are increasingly playing in the business and legal strategies of the world’s major technology companies, including Microsoft, Apple, Google, Samsung and HTC.

Patents that can be applied to both smartphones and tablet computers, which use much the same technology, are valued assets and feared weapons, as the market for those devices booms. Companies are battling in the marketplace and in courtrooms around the world, where patent claims and counterclaims are filed almost daily.

The AOL-Microsoft deal is just a continuation of the red-hot patent market. Last April, Novell sold 880 patents to a consortium of companies, including Microsoft and Apple, for $450 million.

Two months later Apple, RIM, Sony, and others bought 6,000 patents from Nortel Networks for $4.5 billion.

Last August, Google paid $12.5 billion for Motorola Mobility and its 17,000 patents.

Software Industry Needs 2 Million Patent Attorneys and $2.7 trillion per year to avoid infringing software patents

Stephan Kinsella — Thu, 19 Apr 2012 07:02:32 +0000

A new paper by Yale law professor Christina Mulligan and Timothy B. Lee, Scaling the Patent System, conservatively estimates that if US software industry companies wanted to stay abreast of US software patents to avoid infringing them, it would take roughly 2 million patent attorneys working full time to examine all the software patents. And this assumes these patent attorneys would only need 10 minutes per patent, which “is an unrealistically low amount of time.” And at $100 per hour, this would be $400 billion per year. In an industry that is valued at about $224 billion. (See pp. 15-16 of their paper.) And in a country where there are only about 40,000 patent attorneys. Not two million. Given that $100 is way too low—it’s more like $300 or more; and that 10 minutes is way too low—let’s say, 30 minutes at a minimum. That means it would really cost at least about 9 times more, or $2.7 trillion per year, and maybe about 6 million patent attorneys. That is about 18% of the entire $15 trillion US economy. Just for the software industry alone. And note: spending this money does not give a company freedom to operate. It only allows it to be aware of patents it needs to avoid infringing—by refraining from using certain techniques, even ones the company independently invented on its own.¹

I guess I see why patent shills say that if we made the patent system even stronger it would be a jobs program and “stimulate” the economy.² We’d have a lot more lawyers employed, that’s for sure!

In any case, keep in mind that this multi-trillion dollar annual cost would be on top of the hundred billion dollars-plus the patent system already imposes on the economy every year (Costs of the Patent System Revisited).

And all this is still a conservative estimate since it takes more than 30 minutes to review a patent, and because this is only for the software industry and software patents. If all companies in all industries had to review all relevant patents, the cost would likely be in the hundreds of trillions of dollars per year—multiples of the annual US GDP. Hmm. Maybe I’m wrong. Maybe patent is worse than copyright after all. (Patent vs. Copyright: Which is Worse?)

See also “Patent lawsuits aimed at big and small operators threaten web freedoms,” Charles Arthur, The Guardian (18 April 2012), which discusses Mulligan’s paper:

“Patents definitely threaten the open web,” [Mulligan] said. “Patent owners have sued other companies for such banalities as using jpeg files and transmitting data typed into websites. By locking up the basic building blocks of the internet and obvious software processes, patents hamper the free flow of information and increase the financial risks associated with simple activities, such as having a website. As we discuss in our paper Scaling the Patent System, software writers and web developers couldn’t discover all the patents relevant to their projects if they tried, so they are left at risk of crippling patent lawsuits for any project they do.”

The money spent on patents – either acquiring them or litigating them – distracts from more productive effort, she says. “Resources that could have gone into research and development go into purchasing patents. Google acquired Motorola Mobility for $12.5bn, after Microsoft and Apple spent $4.5bn to purchase 6,000 patents from Nortel Networks. These billions could have been used to develop new products and inventions.”

Mulligan also discusses her paper with Jerry Brito on the Surprisingly Free podcast:

Christina Mulligan on patent scalability

Christina Mulligan, Visiting Fellow at the Information Society Project at Yale Law School, discusses Her new paper, co-authored with Tim Lee, entitled, Scaling the Patent System. Mulligan begins by describing the policy behind patents: to give temporary exclusive rights to inventors so they can benefit monetarily for their inventions. She then explains the thesis of the paper, which argues that the patent system is failing because it is too large to scale. Mulligan claims that some industries are ignoring patents when they develop new products because it is nearly impossible to discover whether a new product will infringe on an existing patent. She then highlights industries where patents are effective, like the pharmaceutical and chemical industries. According to Mulligan, these industries rarely infringe on patents because existing patents are “indexable,” meaning they are easy to look up. The discussion concludes with Mulligan offering solutions for the current problem, which includes restricting the subject matter of patents to indexable matters.

Listen to and discuss this episode →

Twitter Heroically Promises Not to Use Patents Offensively

Stephan Kinsella — Wed, 18 Apr 2012 15:52:55 +0000

This is quite an amazing development. As noted by the Huffington Post (see excerpt below), “Twitter said on Tuesday that it would structure its patents so they could not be used for offensive litigation purposes without permission from the people who developed them.” Twitter wants to “ensure its patents are not used to ‘impede the innovation of others.’”Heroic!! I have, by the way, suggested something similar before: see my post A Patent “Don’t Be Evil” Policy (also Taiwan’s Defensive “Patent Bank”; The Patent Defense League and Defensive Patent Pooling). Maybe Twitter follows the C4SIF blog?

If only other companies would do this–such as Google, in keeping with its Don’t Be Evil pledge, which it seems likely to break soon, with its acquisition of Motorola patents and ongoing offensive patent lawsuits (see A Patent “Don’t Be Evil” Policy; If Google Is Serious About Reforming Patent Mess, It Should Make A Bold Statement And Stop Using Motorola Patents To Demand Cash; also Not Being Evil? Google patents Google Doodles).

From my quick review: the draft agreement is brilliantly written. Perhaps this approach could be combined by companies in a given industry with some kind of defensive patent pooling or defense league, as I suggest in the post linked above. Update: Isaac Bergmann calls to my attention a discussion between Jason Calacanis and David Sacks in a recent This Week in Startups (at 34:00, or, for more background, 25:50, to about 38:00), discussing something similar to the defensive patent league idea I mentioned above.

Of course, if more companies were to adopt this approach, you would have a situation where companies are spending millions of dollars just to have defensive patent shields that are never used. It would be clear that companies are expending valuable resources just so they don’t sue each other. And then people might start to wonder: why don’t we just stop granting patents in the first place so that we reach the same situation–no one suing anyone–without spending millions of dollars on patent attorney salaries?

As I wrote in a comment to Mike Masnick’s post, Twitter’s Revolutionary Agreement Lets Original Inventors Stop Patent Trolls: I think this is a brilliant approach. It is not perfect, but here is what I think is going on. If they just issue a policy statement that they will never use them defensively, they can change their minds later (just like legislatures cannot do this-they have parliamentary or legislative sovereignty and can repeal earlier laws–as I discuss here). They can’t tie their own hands. So they have to give a right to someone else in some way. The inventor is the safest best. Short of forming some trust or other organization (which might be a better solution, but it’s more complicated and not as easily replicable by other companies; this one just requires you modify your standard inventor assignment agreement).

So to tie its own hands to prevent itself from suing someone aggressively–they are doing it by contractually giving a veto right to inventors, and assuming they would not want to do this. (Note also the agreement says the inventor will not be coerced or threatened into permitting it.) That also means that it runs with the patent if someone else ever acquires the patent from twitter.

Also, I think it protects the management/board of Twitter from complaints by shareholders–otherwise they might be sued for not acting in the shareholders’ best interest if they refuse to sue someone they could extort a billion dollars from, for some “principle” that some managers prefer. This way they can say “well we have no contractual right to–we gave it up previously to the employee-inventors, for purpose of attracting better talent or getting more invention disclosures, a decision protected by the business judgment rule.”

Update: In a comment on Mike Masnick’s post, Twitter’s Revolutionary Agreement Lets Original Inventors Stop Patent Trolls, I had written:

Further, the more companies that adopt this approach, the more their own patents become “poisoned” for future trolls, who often just buy their patents from other companies, e.g. those that go bankrupt. The patents from Twitter-type companies would never be able to be used by trolls.

A perfect example of this is explained in VC Fred Wilson’s post The Twitter “Patent Hack”:

Many years ago now, my prior venture capital firm, Flatiron Partners, invested in a company called Thinking Media. It was an early Internet company. They developed some browser based javascript tracking technology. The company ulimately failed but was sold in a fire sale including the patents. Those patents eventually made their way to an incumbent, the big marketing research company Nielsen. Fast forward ten years or so and Nielsen sued two of my portfolio companies, comScore and TACODA, and a bunch of other companies too, on the basis of the Thinking Media patents. So IP that was partially funded by our firm was used to sue other portfolio companies. It is so galling to have this kind of thing happen and it is one of the many reasons why I have come to believe that software and business method patents are an enemy of innovation in the tech sector.

If Thinking Media had the patent hack in their documents, the story I just told would not have happened. And thanks to Twitter’s leadership, I hope that all future USV portfolio companies will have the patent hack in their documents and stories like that one will be a thing of the past.

However, Wilson’s comment that it “would not have happened”, and my own comment that “The patents from Twitter-type companies would never be able to be used by trolls” are both a bit overconfident. Perhaps Nielsen, in this example, could have found the original inventors and offered them enough cash to get them to grant permission for Nielsen to use the patents offensively. This is another reason that it might be better to establish some kind of agency, a Patent Defense Trust or League, and make the contract with this agency. The agency’s core mission would be to refuse to ever grant permission, so it could not be bribed.

From the Huffington Post:

Twitter Announces Innovator’s Patent Agreement To Limit Patent Use Lawsuits

First Posted: 04/17/2012 5:09 pm Updated: 04/17/2012 7:30 pm

By Alexei Oreskovic

SAN FRANCISCO (Reuters) – Twitter said on Tuesday that it would structure its patents so they could not be used for offensive litigation purposes without permission from the people who developed them.

Twitter said the move would give inventors more control over their creations and ensure its patents are not used to “impede the innovation of others,” the company said in a post on its official blog.

“It is a commitment from Twitter to our employees that patents can only be used for defensive purposes. We will not use the patents from employees’ inventions in offensive litigation without their permission,” Twitter said on the blog.

…

Twitter said that the limits on the use of its patents, which it dubbed the Innovator’s Patent Agreement, will apply to patents even after they are sold.

Eric Goldman, an associate professor at Santa Clara University School of Law, said Twitter’s announcement will burnish the company’s standing among software engineers, some of whom have grumbled at seeing their patents used to sue other companies.

“Unquestionably, it’s an effort to define Twitter’s brand in the marketplace and to signal that its perhaps more engineering-friendly than companies that wouldn’t make such a promise,” said Goldman.

From Twitter’s blog:

Introducing the Innovator’s Patent Agreement

Tuesday, April 17, 2012

Cross-posted on the Twitter Engineering blog.One of the great things about Twitter is working with so many talented folks who dream up and build incredible products day in and day out. Like many companies, we apply for patents on a bunch of these inventions. However, we also think a lot about how those patents may be used in the future; we sometimes worry that they may be used to impede the innovation of others. For that reason, we are publishing a draft of the Innovator’s Patent Agreement, which we informally call the “IPA”.The IPA is a new way to do patent assignment that keeps control in the hands of engineers and designers. It is a commitment from Twitter to our employees that patents can only be used for defensive purposes. We will not use the patents from employees’ inventions in offensive litigation without their permission. What’s more, this control flows with the patents, so if we sold them to others, they could only use them as the inventor intended.This is a significant departure from the current state of affairs in the industry. Typically, engineers and designers sign an agreement with their company that irrevocably gives that company any patents filed related to the employee’s work. The company then has control over the patents and can use them however they want, which may include selling them to others who can also use them however they want. With the IPA, employees can be assured that their patents will be used only as a shield rather than as a weapon.We will implement the IPA later this year, and it will apply to all patents issued to our engineers, both past and present. We are still in early stages, and have just started to reach out to other companies to discuss the IPA and whether it might make sense for them too. In the meantime, we’ve posted the IPA on GitHub with the hope that you will take a look, share your feedback and discuss with your companies. And, of course, you can #jointheflockand have the IPA apply to you.Today is the second day of our quarterly Hack Week, which means employees – engineers, designers, and folks all across the company – are working on projects and tools outside their regular day-to-day work. The goal of this week is to give rise to the most audacious and creative ideas. These ideas will have the greatest impact in a world that fosters innovation, rather than dampening it, and we hope the IPA will play an important part in making that vision a reality.- Adam Messinger, VP of Engineering (@adam_messinger)

HuffPo: Patent Trolls Are Killing People — Literally

Stephan Kinsella — Wed, 18 Apr 2012 15:37:03 +0000

From a Huffington Post blogpost by Drew Curtis, Founder and Administrator, Fark.com:

Patent Trolls Are Killing People — Literally

Posted: 04/17/2012 2:50 pm

Since I gave this talk at TED in Long Beach back in the first week of March, a few new items have come to my attention.

My buddy Ray Fisman (badass Columbia professor) wrote a Slate article about the costs to innovation due to patent trolling. Short version: it brings innovation to a complete halt.

But wait, there’s more…

I’ve recently talked with several folks in the high-tech industry who informed me that part of the reason large companies have been stocking up on patents lately is because they view them like nuclear weapons — they’re a deterrent. No one ever plans to use them. The idea is that you hold them in reserve to prevent patent trolls from suing you.

[...]Billions of dollars are being wasted on this bullshit. People are actually dying as a result.

Web of Tech Patent Lawsuits [INFOGRAPHIC]

Stephan Kinsella — Wed, 18 Apr 2012 15:22:52 +0000

From Droid Life (via PCMag):

Web of Tech Patent Lawsuits [Infographic]

by: Tim-o-tato | posted 01.24.12 | News

It seems every other day that we hear Company A is suing Company B over patent infringement. Thanks to PCMag, we can keep track of them all through a set of infographics. These graphs give us a solid representation of the amount of firepower each company holds with their number of patents. As we can see, a lot of these companies have in the tens of thousands of patents – how they keep track of them all, don’t ask us. In the above chart, there are the major filings along with their dates, but we sort of wish they also had the outcome. We love a good Fortune 500 drama, but can’t we all just get along?

Via: PCMag

Other charts and graphics at Intellectual Property Charts, Graphs, Graphics, Diagrams.

LibertariaNation [Italy] Interview with Kinsella on IP and Libertarianism

Stephan Kinsella — Sun, 15 Apr 2012 13:10:22 +0000

I was interviewed Feb. 23, 2012, by Fabrizio Sitzia of the Italian libertarian group LibertariaNation.org. It was posted today on YouTube. We discussed intellectual property and related issues such as SOPA, plagiarism, IP-by-contract, and other libertarian issues such as prospects for liberty in the future; the importance of technology, the Internet, and globalism; Ron Paul and electoral politics; and libertarian sentiments and receptiveness among today’s young people. The audio file is here, and streamed below. (See also Italian Libertarian IP Debate.)

More info at the LibertariaNation post Intervista a Stephan Kinsella (English translation from Google translate).

[TLS]

The Use of Free Software as Anti-Copyright Libertarian Activism

Stephan Kinsella — Thu, 12 Apr 2012 14:45:30 +0000

Nice post:

The Use of Free Software as Anti-Copyright Libertarian Activism

By PATRICK MCEWEN | Published: MARCH 29, 2012

For the sake of the simplicity of this blog post, I am going to assume all of my readers have at least a basic familiarity with both the ideas of free software advocates like Richard Stallman and Eben Moglen (though I try to link extensively to references within the post). For most of my libertarian readers, understanding the free software movement is very likely going to require a bit of reading unless you are a GNU/Linux geek. The page on the philosophy of the GNU project and Richard Stallman’s Wikipedia page are good places to start. Note that while free software and open source software have significant overlaps, they are not the same thing. For now, I’m going to focus on free software rather than open source to avoid further complicating this post.

I am also going to take as an assumption of my argument that the libertarian position is to be opposed to the existence of copyright. For some background on that argument see just aboutany of the work by Stephan Kinsella on the subject or for a more utilitarian approach seeAgainst Intellectual Monopoly by Boldrine and Levine.

Libertarian activist strategies range from on the most extreme, the idea of practicing full scale rejecting the system agorism as advocated by Samuel Konkin to the within the system political activism that ranges from full scale anarcho-capitalism a la Murray Rothbard to the stringently principled minarchism of those like Ron Paul to the steps in the right direction coming from more moderate or pragmatic libertarians. Efforts can range from education to campaigning to the actual act of voting.

Outside of the political system, there are few things other than education – which is usually just the means to a political ends – that a libertarian can do to create a more libertarian world. However, I believe that one relatively easy, and becoming easier by the day, thing that nearly everyone with some basic computer knowledge and a couple hours to spend can do to actively curtail the influence of copyright law is to start using free software.

Drawing on Stephan Kinsella’s ideas on the best copyright license for written work, the best software license is one that places as few restrictions on the end user as possible. The problems associated with removing all requirements or dedicated it the public domain means that only requiring acknowledgement of the author is the best solution. I don’t think it is a far stretch from his arguments the criteria that makes the fewest restrictions the best license can also be used to argue that fewer restrictions make a better license. In the context of discussing which license to issue your own work under, only determining the best license is necessary, however picking which software written by others to use doesn’t offer the same freedom and thus better rather than best will often have to suffice.

Starting with the assumption that everyone needs to use a computer with basic capabilities such as web browsing, word processing and the occasional game that they can operate without needing a computer science degree, there are really only 3 operating systems that are viable options, Windows, Mac OS X and Linux (well really GNU/Linux). With either Windows or OS X, using them merely consists of paying for the ability to use the software on one computer for your own personal use and not much more. They both leverage the full weight of copyright law to prevent you from doing basically anything beyond the bare minimum. It’s essentially the all rights reserved of the software world.

In contrast, Linux is licensed (mostly) under the GNU General Public License (GNU is a recursive acronym that stands for GNU’s Not Unix) is designed around preserving the four essential freedoms for software user (being computer geeks their numbering of course starts at 0):

(0) to run the program,
(1) to study and change the program in source code form,
(2) to redistribute exact copies, and
(3) to distribute modified versions.

In order to enable any user to do these things clearly this license is much less restrictive than the licenses under which you are permitted to run Microsoft or Apple software. The GNU GPL is not however a libertarian license and from a libertarian perspective is more restrictive than the software equivalent of the CC-BY license recommended by Kinsella for written work in two important ways through the power of copyright law.

First, that under certain it requires the release of the source code for software if an executable version is released which is a requirement of all free software. Secondly, that it is a copyleft license, which means that it requires programs that modify the code to also license those programs under the GNU GPL and is therefore less libertarian. In order to qualify as free software according to the Free Software Foundation, copyleft licenses are not necessary, but are encouraged.

There are examples of non-copyleft free software licenses that are more libertarian than the GNU GPL, such as the BSD license, and there are operating systems that largely use such licenses, I believe the most popular is FreeBSD. However, the community of Linux users is much more widespread and as a result the online support and information is much better. Plus, Canonical has spent millions of dollars working on a Linux distribution, Ubuntu, targeted specifically at non-technical users and from all accounts the next release, 12.04 due out next month, includes a much better version of the new Unity interface aimed at those users.

Shifting gears to discuss the implications of using Linux on copyright, there are impacts that switching to Linux has on the entire software market. First, the less that you use proprietary software, the less money that ends up in the pockets of proprietary software developers. Secondly, using free software creates a user base for that software which in turn makes that software more widely used for a number of reasons. For example, more users means that more software will be supported and developed for GNU/Linux operating systems allowing users who need or want access to certain critical programs like Adobe software or Netflix streaming to make a complete switch. A wer user base also facilitates the development of the documentation and help resources necessary for less advanced users.

As a closing point, it is important to note that while free software is more libertarian than proprietary software, for the bulk of free software advocates such as Richard Stallman and Eben Moglen are most definitely not libertarians. Their approach to copyright and politics in general is based much more in a leftist ideology than a libertarian one. See Stephan Kinsella on the topic here and here and Moglen on the subject here.

I realize this post inadequately covers a huge range of issues, but when I first thought of the idea for this post and began to research it, I realized that some of this is starting to break new ground from a libertarian perspective. As can be seen from many of the links above, Kinsella’s works which constitute by far the most numerous and in depth writings on the subject, focus mostly on the foundation of libertarian opposition to intellectual property and doesn’t get very far into applying it to software beyond basic discussions of the free software movement and the copyleft nature of the GNU GPL.

My hope is that this blog post will be the starting point for some feedback, more blog posts and hopefully eventually a longer more thought out essay, like the one I wrote on Ron Paul and libertarian history.

Patent Lawyers Who Don’t Toe the Line Should Be Punished!

Stephan Kinsella — Thu, 12 Apr 2012 14:35:35 +0000

A few older posts:

Patent Lawyers Who Don’t Toe the Line Should Be Punished!

In his post Reality Check: Anti-Patent Patent Musings Simply Bizarre, patent attorney Gene Quinn is baffled that any patent attorney would openly oppose the patent system–or be hired by anyone. He writes, in part:

But what has me really wondering is how and why a patent attorney who is openly hostile to the patent system can get any work in the industry? Why would any inventor or company want an anti-patent patent attorney like Stephan Kinsella, who seems to be the genesis of this story, and so many other anti-patent patent stories.

Why would anyone hire me? I’ve prosecuted hundreds of patents. I’ve taught computer law as an adjunct law professor, I’ve published a great deal of legal scholarship including IP law, such as the Oxford University Press legal treatise Trademark Practice and Forms. I believe that given the patent system, tech companies have no choice but to arm themselves with patents, if only for defensive purposes. If someone went after one of my clients for patent infringement, I’d pull out all the stops to defend them from this state-backed threat. Maybe some clients like a patent attorney looking out for their interests.Apparently Quinn thinks ideological conformity is a requirement for job competence. If you have the wrong politics, you’re out. (I just hope I don’t have the wrong religion, gender, or race.) But think about it: would you hire only oncologists who were pro-cancer? Is it outlandish to think of hiring a tax attorney to defend you from the IRS who thinks the income tax is immoral and should be abolished? Is it required of a patent attorney to be in favor of the patent system? Yes, we patent attorneys learn the patent law and how to navigate the system. Does that mean we receive special education–or is it propaganda–as to the justifiability of IP? If so, where is it? Sure, we are taught in law school that the stated purpose of the patent system is to encourage innovation, and public disclosure of inventions. Okay. So what? How does knowing the state’s line for a given law prove that it is justified?

The truth is most patent attorneys are in favor of patent law. Why is this? They have no special knowledge about its normative validity. Rather, they are self-interested, and have been subjected to positivist, statist, empiricist propaganda in law school. Quinn tries to turn this defect into an advantage by hogging to the biased patent profession the right to pronounce on these matters–and then ejecting from the profession anyone who bucks the union line. The patent bar of course lobbies for the system that butters their bread. They claim special knowledge to pronounce that the system is “necessary” for innovation, even though they have no proof of this. (See below.) They marginalize non-lawyers as not having enough expertise to weigh in. And anyone who does have expertise is ostracized if they point out that the emperor is wearing no clothes. They remind of leftists who will not tolerate an African American who opposes affirmative action–they impose their supposed “benefit” on him by force, which is bad enough, and then use this imposed “benefit” to silence his criticisms of it. Terrible. (See An Anti-Patent Patent Attorney? Oh my Gawd!.)

But though patent practitioners have an interest in promoting the system that supports them–just as FDA bureaucrats support the FDA, just as government school teachers tend to be in favor of government schooling, just as policemen and state judges are in favor of the state’s monopoly over justice–not all are won over by the propanda. Some just chug along, earning a living, while ignoring the cheerleading about how great our patent system is. In fact, I am not the only patent attorney who opposes the patent system. My friend Tony Diehl, a registered patent attorney, is opposed to it, and knows what a state boondoggle it is. As I noted in The Morality of Acquiring and Enforcing Patents, law professor Michael Davis, also a registered patent attorney, opposes the patent system (for leftist reasons, I believe, unlike my own pro-property, libertarian reasons–but still); and Daniel Ravicher, Executive Director of the Public Patent Foundation (PUBPAT) and Legal Director of Software Freedom Law Center, and also a registered patent attorney, appears to be opposed to patents or at the very least has serious reservations. And no doubt many patent attorneys know the standard justifications given for the system are nonsense, but they don’t speak out because there is nothing to be gained from this except denunciations from cheerleaders like Quinn who will try to harm their livelihoods by telling clients not to hire them. So many are anonymous. As I wrote in Miracle–An Honest Patent Attorney!, I received at one point an email from a respected patent attorney, a senior partner in the patent department of a major national law firm. He/she insisted on anonymity–gee, I wonder why? He/she is not a libertarian. These are just his/her honest observations based on his/her long experience in the field:

Stephan, Your letter responding to Joe Hosteny’s comments on Patent Trolls nicely states what I came to realize several years ago, namely, it is unclear that the U.S. Patent System, as currently implemented, necessarily benefits society as a whole. Certainly, it has benefited [Hostey] and his [partners] and several of their prominent clients, and has put Marshall, Texas on the map; but you really have to wonder if the “tax” placed on industry by the System (and its use of juries or lay judges to make the call on often highly complex technical issues that the parties’ technical experts cannot agree on) is really worth it. Of course, anyone can point to a few start-up companies that, arguably, owe their successes to their patent portfolios; but over the last 35 years, I have observed what would appear to be an ever increasing number of meritless patents, issued by an understaffed and talent-challenged PTO examining group, being used to extract tribute from whole industries. I have had this discussion with a number of clients, including Asian clients, who have been forced to accept our Patent System and the “taxes” it imposes on them as the cost of doing business in the USA. I wish I had the “answer”. I don’t. But going to real opposition proceedings, special patent courts with trained patent judges, “loser pays attorney fees” trials, retired engineers/scientists or other experienced engineers/scientists being used to examine applications in their fields of expertise by telecommuting from their homes or local offices throughout the Country, litigating patent attorneys providing regular lectures to the PTO examiners on problems encountered in patent infringement cases due to ineffective or careless examination of patent applications, and the appointment of actually qualified patent judges to the CAFC, may be steps in the right direction.

Now this is an honest patent attorney. As I told him/her,

What is worse, to me, is when patent attorneys pretend to know, but of course, do not–and they know they do not, and they do not care. It is just dishonest. I don’t mind a patent attorney being in favor of the system for the honest reason that it benefits him and his clients. Just like retired people benefit from social security even if it’s an inefficient or unethical system. Or if patent attorneys just did their job and shut up about the “benefit” of the system. I will say that my point (not really in the letter, but expressed elsewhere — e.g., There’s No Such Thing As A Free Patent) is not only that is the system now probably “not worth it,” but that due to the subjective nature of value, it would never be possible to demonstrate that it is “worth it”. But that is a methodological point beyond most patent attorneys, who are utterly imbued with scientism and positivism.

And I have other patent attorney friends who skeptical as well. I’ve had dozens of conversations with patent attorneys, many of whom are mouthing the standard pro-patent line. I simply ask them, how do you know we need a patent system? How do you know the benefits accruing from it are greater than the costs of the system? What are these benefits, in dollar terms, what are the costs, and what is the net? I am always met with blank stares.But let’s return now to Quinn’s screed:

My intention is not to get into a back and forth joust with those who believe the patent system does not spur innovation. In my experience there is simply no talking to people who hold those beliefs. They will hold those beliefs forever despite any and all evidence to the contrary, despite the laws of economics, the sensibilities and demands of investors and with total disregard for history itself.

It is in fact quite the reverse. Patent lawyers repeat over and over the state’s propaganda that IP is necessary for innovation. They believe that we are made overall better off by the patent system. This means that the value of the extra innovation spurred by having a patent system far outweighs the undeniable costs of the system. Okay–then what are these numbers? What is the net benefit of the patent system? Is it a billion dollars? A trillion? How does Quinn know it’s not negative? If he knows it’s a positive number, what is his evidence for this? I don’t know the costs. I don’t know the value of the benefits. (My educated guess is that the net cost is over $41 billion per year. But who knows?) I do know that every study that comes out concludes otherwise (see my post Yet Another Study Finds Patents Do Not Encourage Innovation). They are the ones in favor of the granting of state monopolies. The burden is on them, not on opponents. So where is theirevidence?They don’t pretend to know. They don’t take this seriously. They don’t have any idea of the costs, or the benefits, or the net. They don’t care about the costs–costs (patent lawyers’ salaries, say) are benefits to them, you see. They most they will do is trot out some off-the-cuff, non-serious remark that western countries are more prosperous and have patent systems; or we have had economic growth in America, coinciding with the patent system’s implementation. Wow. How rigorous. Never heard of the idea that correlation is not causation? Maybe the pro-property industrialized countries tend to tax and war and regulate and impose patent systems because they can afford it. (See Interactive Graphic Pretends to Illustrate How U.S. Patent System Has Driven American Economy; Prove that would have been invented without patents!.)

Back to Quinn:

Yet, I have to confess at being extremely interested in knowing how a patent attorney could come to such beliefs. Kinsella is used as a propaganda tool by anti-patent folks everyone who point out “even a patent attorney knows patents stifle innovation.” How is it possible that a patent attorney could believe that innovation would occur faster without patents?

The truth is we anti-IP libertarians have sincere, serious, good reasons to believe patent rights are false rights that do harm. See, e.g., my The Libertarian Case Against Intellectual Property: A Concise Guide; and other libertarian IP publications. If anything, my experience in the patent field shows me how much waste there is. It shows me what a threat to free enterprise patents are. It shows me that larger companies are just using this latest state monopoly grant as a tool to bludgeon smaller companies.Quinn then disingenuously argues that if you are against patents, you are against technology:

The truth is that every civilization that dominated had advanced technology and innovation when compared with competing civilizations. Whether there were patents or not, advanced technology and innovation is something to be aspired to. Rather than choosing to tax the people and require free labor by unfortunate classes of people our nation has evolved to tap into one of the most fundamental and powerful motivation forces greed! Because of greed individuals, investors and companies will devote substantial amounts of time, energy and funding to come up with whatever is next, whatever is better and whatever will make them money. If we don’t want a patent system and we still want the jobs innovation creates, the lifestyle advances that innovation creates and the life-saving drugs and treatments that innovation creates we need to dig deep into the greed gene and exploit it.

Yes, “greedy,” self-interested behavior is fine and good. I’m in favor. I’m a libertarian, after all. The problem with patents is not that they are too capitalistic: it’s that they are state privileges that intrude on the free market. I oppose patents because they undercut private property rights, not because they areprivate property rights.And of course, technology and innovation is good. The mistake here is thinking there is market failure: that without the state’s interventions, there won’t be enough innovation. How anyone can honestly think the state can intervene and make things better is beyond me.

… I find it flat out bizarre that anyone could be of the opinion that patents stifle innovation. The truth is patents stifle innovation by the lazy, who would have never innovated anyway. Innovating is not for the faint of heart, and certainly not for the lazy, so why do we at all care what the anti-patent zealots think would happen in an unrealistic fantasy world where everyone simply works hard for the betterment of mankind and to assist others without regard to their own well-being or financial interest.

If Quinn does not understand why people can believe patents stifle innovation, he can do a bit of reading. He can start with the list of study after study concluding otherwise, collected in Yet Another Study Finds Patents Do Not Encourage Innovation; then he can read my The Libertarian Case Against Intellectual Property: A Concise Guide; and for a detailed examination of the utilitarian aspects of patents and why they discourage innovation, he can see Boldrin and Levine’s magisterial Against Intellectual Monopoly (free version online).As for lazy–was RIM lazy when it heroically innovated and provided the magnificent Blackberry to tens of millions of customers, only to have over $600M extorted from it by a patent thug? Is the ever-innovating young company Facebook “lazy”–if they don’t pony us hundreds of millions of hush money to the patent predator nipping at it? Or is it rather than larger companies can rest on their laurels, protected from competition from smaller, hungrier startups, because their arsenal of patents allows them to achieve detente by thread of MAD with other, large, patent-hoarding companies, but to threaten startups who don’t usually have strong patent portfolios?

Update: I and others posted several good comments to the thread Reality Check: Anti-Patent Patent Musings Simply Bizarre. Quinn has posted a followup: Responding to Critics: My View on Patents & Innovation. His post makes it clear that it’s not worth responding to him any more.

Update 2: Good post by Mike Masnick on Techdirt: Is It So Crazy For A Patent Attorney To Think Patents Harm Innovation?

[SK cross-post; Mises cross-post]

Are anti-IP patent attorneys hypocrites?

Over the years I’ve been accused of being a hypocrite for practicing patent law while opposing its legitimacy, or similar charges–such as the charge that I must not or cannot be a very good patent attorney if I don’t believe in the system, or why do I “copyright” my own books if I don’t believe in copyright. Below is a collection of posts addressing these and related arguments.

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The Most Libertarian Patent Work

by Stephan Kinsella on July 14, 2009

in AgainstMonopoly.org Blog Posts,Intellectual Property

Following up on An Anti-Patent Patent Attorney? Oh my Gawd!, I was chatting with a friend about the following. I’ve argued that merely filing for patents is not inherently unlibertarian since patents, like guns, have both legitimate and illegitimate uses. The former being defensive use to ward off patent infringement suits or to countersue someone who sues you first. Still, there’s an … icky … feeling involved in getting a patent. The following may be a bit inside baseball for patent lawyers but I thought revealing some of the innards of how the process works may be of interest to some readers.

Laymen may not be aware of this but patent “prosecution” work (as filing the patent and interacting with the patent office to get it allowed, is called) is fairly fungible, low-dollar work, compared to other types of IP. To prepare and file a patent application, the patent attorney might charge anywhere from $7k to $15k or more. But patent litigation is much more lucrative (or can be), since the lawyers can get a cut of, or be paid based on the hopes of, multil-million or billion dollar judgments.

Patent lawyers also are often called on to prepare patent opinions. The good thing about these is they are more lucrative than patent prosecution–the attorney can often charge a good $25k or more to prepare one–and they can be completely libertarian. The typical usage is this. Company A is minding its own business and then becomes aware of a patent owned by company B that they are accused of, or otherwise concerned that they might be, infringing by selling a certain product that. Quite often the issue is not clear cut–the patent language is ambiguous and there are a variety of possible legal defenses one might have, that might or might not succeed at trial. If the risk seems high and the product is not important, the company may (a) design around the patent–that is, modify the product’s design so that it doesn’t infringe the patent; (b) stop making the product; (c) approach the patentee for a possible license. If the risk is low or the product is essential, sometimes there is option (d): keep making the product and pray that you are not sued. Option (c), designing around, sometimes employs an opinion of an attorney that the new design doesn’t infringe, or relies on input from patent attorneys as to how to increase the chance that the new design doesn’t infringe.

But when option (d) is invoked, then here is the dilemma companies face. If you go to trial, and lose, you may have to pay damages for past infringement–some kind of “reasonable royalty”; and the patentee may be able to get an injunction to force you to stop making the product going forward (which may result in a license with a royalty provision). However, the patent statute also provides for enhanced damages–”the court may increase the damages up to three times the amount found or assessed”, in certain cases–which the courts have found to be cases of “willful infringement”.

Now, the courts hold that if you get an unbiased opinion from a professional that says you do not infringe the patent, and you rely on this, then even if you lose at trial (and the attorney turns out to have been wrong), then you have a good argument that, although (it turns out) you were infringing, it was not willful since you “sincerely” believed (hoped) that you were not infringing, because you were “relying” on an attorney’s opinion.

Thus, when patent litigation is threatened or a possibility, the potential infringer will often pay patent attorneys tens of thousands of dollars to exhaustively research the problem patent(s), and to prepare an opinion that “concludes that the patent is invalid, unenforceable, and/or not infringed.” (One of the most recent cases on this is the Seagate case (discussed here), which reduces but does not eliminate the need for such opinions.)

In other words, potential patent victims are so desperate to keep selling their product, that they in effect pay tens of thousands of dollars to get a patent opinion that buys them “insurance”–it basically reduces the risk of treble damages being awarded in the event they lose at trial.

Anyway–I can’t see any possible libertarian argument that preparing such a purely defensive opinion is unlibertarian. Indeed, it’s heroic, much like income tax defense or criminal defense work.

[Against Monopoly cross-post]

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An Anti-Patent Patent Attorney? Oh my Gawd!

by Stephan Kinsella on July 12, 2009

in AgainstMonopoly.org Blog Posts,Intellectual Property

A friend of mine was asked by a patent attorney he knows how I can be a patent attorney and against IP. The assumptions behind the question are odd; here was my reply.

First, when there are tax laws, there is a need for tax lawyers. When there is cancer, we need cancer doctors. There is nothing wrong with advising people or companies as to how to navigate the positive law in society.

Second, just as having a gun is not a crime since the gun can be used for good or evil, so having a patent is not in an of itself evil–there are both legitimate and illegitimate uses of them. For example if I am sued for patent infringement I will use my patents in a countersuit. In fact most patents are held for defensive purposes–to ward off suits.

Third, it could be that being a patent lawyer has helped me to see why patent law is unjustified.

Fourth, this kind of assumption reminds me of what annoys me about criticisms by liberals and blacks of any black such as Clarence Thomas who opposes the standard liberal crap on affirmative action etc. It’s as if they think the unwilling “beneficiary” of their liberal policies should also shut up about it and toe the line. Do the advocates of IP want those most able to oppose it to be muzzled? Can only those ignorant of how IP works complain about it?

Fifth, I have yet to see a sincere or informed pro-patent opinion by a single patent attorney. The few I know who are cynics like me are resigned to it; the patent lawyers who promote the system invariably repeat the tired and pathetic arguments in favor of it. I have yet to find a single patent lawyer who promotes IP who has a sincere or serious argument in favor of it. (For more on this see There’s No Such Thing as a Free Patent, Yet Another Study Finds Patents Do Not Encourage Innovation, Patent Attorney Admission, Miracle–An Honest Patent Attorney!) I don’t mind patent attorneys doing their jobs, to put bread on the table. But when they start trying to justify their profession by repeating the bankrupt arguments of utilitarians and statists, they open themselves to criticism.

Finally, these pieces of mine might be of interest (available also here): The Morality of Acquiring and Enforcing Patents and Letter to an Anonymous Patent Attorney.

Update: See my post, The Most Libertarian IP Work.

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Is It So Crazy For A Patent Attorney To Think Patents Harm Innovation?

by Stephan Kinsella on October 1, 2009

in Intellectual Property

Good post by Mike Masnick on Techdirt: Is It So Crazy For A Patent Attorney To Think Patents Harm Innovation?

from the not-at-all dept

I know a fair number of patent lawyers and copyright lawyers who are quite skeptical of what’s become of patent and copyright law — and who readily admit that the law has gone way beyond what is reasonable or what the law was designed to do (i.e., “promote the progress…”). And yet there are some in the patent or copyright legal business who somehow seem to think that it’s traitorous for a patent or copyright lawyer to ever dare question the idea that patents and copyrights work. I had a patent lawyer argue with me the other day that of course patents encourage innovation, because the Constitution says they do. This sort of logical blunder blows my mind. How can otherwise intelligent people assign such backwards logic to things? Do these same people also believe that when Congress passes any law, it automatically achieves its goals?

I have a good friend, who has recently made it through law school. Since he spent over a decade as a computer scientist, the law firm he went to work for made sure he did a rotation in the patent group (but of course). He was telling him how sick the experience made him feel. He said the stuff he was working on was disgusting. Helping companies patent blatantly obvious ideas, and using those patents to sue other companies who were innovating. Even worse, he said that many of the partners in the group seemed gleeful at how they were abusing the system, solely because of the amount of money such projects bring in. None of them bothered to consider that the overall impact of what they were doing wasn’t “promoting the progress” but was harmful to society as a whole.

So, I can understand how lawyers can be on both sides of the equation (though, it says something to me about how they view the world). And, yet, there are still some IP attorneys who seem to think that it’s somehow ridiculous that a patent attorney could ever find patents a net negative on society (leaving aside the many, many recent studies done by lawyers who have shown exactly that). Stephen Kinsella, a patent attorney who is against patents has responded to one such claim by a patent attorney, explaining why of course a patent attorney can disagree with the patent system, and still do his job. He notes plenty of patent attorneys who have become skeptical of the patent system.

But what’s really stunning are the claims of the patent lawyer, Gene Quinn, who prompted Kinsella’s claim. He was actually writing in response to a Techdirt post, where he makes numerous odd claims that don’t make much sense. He assumes that it’s factual that patents must promote innovation based on “the basic laws of economics.” This makes me wonder which laws of economics Quinn is talking about, seeing as the laws of economics I know say that monopolies almost always lead to suboptimal societal benefit. He claims that “all the evidence” say that patents increase innovation. Except that’s not true at all. We can start listing off all the studies that have shown the contrary, but I’ve yet to see one that actually supports Quinn’s position. In response to that, Quinn amazingly claims that the studies that prove him wrong don’t matter:

Would you please stop reading studies and look at history! Studies are done by academics with an agenda, are based on thought experiments, do not take into consideration important factors and are preconceived in order to come out with a particular answer.

That’s a neat trick to dismiss the actual evidence (after insisting all the evidence was on his side), but it’s flat-out, almost 100% wrong. And provably so. Because most of the studies I was talking about aren’t “based on thought experiments” but are “looking at history.” And, among those “biased academics” are at least two Nobel prize winning economists (Maskin and Stiglitz) and someone who was a very successful entrepreneur before moving to academia (Bessen). Besides, most of the academic studies that Quinn dismisses as irrelevant was peer reviewed. There are problems with peer review, of course, but to claim that these are far out ideas, while insisting that “the basic laws of economics” supports patents is simply not supported.

There are plenty of reasons why people might believe patents increase innovation — but they’re the same theories of the mercantilists in the 18th century, who believed that monopolies on other products spurred more development in those businesses. That theory was debunked and is considered laughable by pretty much any economist today. And yet, when it comes to patents, why do people automatically reject what economists realized two hundred years ago? Monopolies may temporarily benefit the monopolist, but at the expense of society as a whole. And, if Quinn wants to look at history, let’s take a look at people who did actually look at the history, from Eric Schiff (showing rapid innovation and industrialization of the Netherlands and Switzerland without the use of patents) to Petra Moser (showing no less innovation in comparable countries with no patent laws to those with patent laws) to Lerner’s work (comparing various countries before and after they changed patent systems, showing that stronger patent laws do not lead to greater innovation) to Qian’s research (patent system changes across countries in the pharma industry, showing stronger patent laws did not lead to greater innovation, and, in fact, that weakening IP enforcement often led companies to become more innovative to stand out from the competition) and onward (there are a lot more where that came from). Hell, even the World Intellectual Property Organization (which usually is pretty damn supportive of IP) has noted that there’s been no real evidence that IP protection leads to any economic payoff.

Quinn says to ignore the studies and look at the history, but the history says exactly what he claims it doesn’t.

Those who insist that patents must lead to innovation fallback on a few, rather basic, logical fallacies. They point out that countries with strong patent laws tend to see much greater innovation. This is what Quinn means by “look at the history.” But they are mixing up correlation with causation — not recognizing that the stronger patent laws almost always post-date a period of much greater innovation, and then the patent system gets strengthened, not to promote more innovation, but to limit competition from those who innovated in the past (and, in fact, research by Park and Gigante found evidence of this very thing in looking at “history”). Or, they claim that since we still see some innovation, then clearly patents don’t hold innovation back. But compared to what? The argument we’re making has never been that patents stop all innovation cold. Of course innovation still occurs. But the question is at what rate? As we’ve seen in countries without patents or with much weaker patent systems, you tend to have much greater competition among smaller, more nimble firms. Since competition is a great driver of innovation, it’s no surprise that there would still be great innovation in such societies. Separately, the fact that there may be fewer major innovations coming from societies with weaker patent laws today is again, not evidence that patents work. There are numerous factors that influence innovation — and picking a country with poor infrastructure or widespread poverty, isn’t exactly an apples to apples match with someplace like the US.

But just thinking logically, you can realize why the argument that, without patents, there would be no innovation, is provably false. When it’s easy to copy someone copying losing all value by itself. Just being a copycat is pretty useless, because anyone else can do it. So, the real value is not in copying, but in leapfrogging. And that leapfrogging is (*gasp*) innovation. It’s only in a world with patents where copying has value. That’s because those patents create monopoly rents — and thus, there’s an artificial profit bubble, that others want access to. That creates a societal net loss.

Given all of this, it makes plenty of sense why patent attorneys could certainly recognize the harm that patents can cause. In fact, I would think such individuals are a lot more trustworthy on patent issues, since you know their position is not influenced by the fact that they make money off of the system. So, no, there’s nothing odd about patent attorneys who find problems with the patent system. They’re people who recognize the simple fact that just because a system is set up to do one thing, it doesn’t mean that it automatically occurs. They’re people who recognize that innovation is not synonymous with patents, and are able to take a step back and say what is truly best for innovation.

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Patent Lawyers Who Don’t Toe the Line Should Be Punished!

September 29, 2009 by Stephan Kinsella

But what has me really wondering is how and why a patent attorney who is openly hostile to the patent system can get any work in the industry? Why would any inventor or company want an anti-patent patent attorney like Stephan Kinsella, who seems to be the genesis of this story, and so many other anti-patent patent stories.

Apparently Quinn thinks ideological conformity is a requirement for job competence. If you have the wrong politics, you’re out. (I just hope I don’t have the wrong religion, gender, or race.) But think about it: would you hire only oncologists who were pro-cancer? Is it outlandish to think of hiring a tax attorney to defend you from the IRS who thinks the income tax is immoral and should be abolished? Is it required of a patent attorney to be in favor of the patent system? Yes, we patent attorneys learn the patent law and how to navigate the system. Does that mean we receive special education–or is it propaganda–as to the justifiability of IP? If so, where is it? Sure, we are taught in law school that the stated purpose of the patent system is to encourage innovation, and public disclosure of inventions. Okay. So what? How does knowing the state’s line for a given law prove that it is justified?

But though patent practitioners have an interest in promoting the system that supports them–just as FDA bureaucrats support the FDA, just as government school teachers tend to be in favor of government schooling, just as policemen and state judges are in favor of the state’s monopoly over justice–not all are won over by the propanda. Some just chug along, earning a living, while ignoring the cheerleading about how great our patent system is. In fact, I am not the only patent attorney who opposes the patent system. My friend Tony Diehl, registered patent attorney, is opposed to it, and knows what a state boondoggle it is. As I noted in The Morality of Acquiring and Enforcing Patents, law professor Michael Davis, also a registered patent attorney, opposes the patent system (for leftist reasons, I believe, unlike my own pro-property, libertarian reasons–but still); and Daniel Ravicher, Executive Director of the Public Patent Foundation (PUBPAT) and Legal Director of Software Freedom Law Center, and also a registered patent attorney, appears to be opposed to patents or at the very least has serious reservations. And no doubt many patent attorneys know the standard justifications given for the system are nonsense, but they don’t speak out because there is nothing to be gained from this except denunciations from cheerleaders like Quinn who will try to harm their livelihoods by telling clients not to hire them. So many are anonymous. As I wrote in Miracle–An Honest Patent Attorney!, I received at one point an email from a respected patent attorney, a senior partner in the patent department of a major national law firm. He/she insisted on anonymity–gee, I wonder why? He/she is not a libertarian. These are just his/her honest observations based on his/her long experience in the field:

Stephan, Your letter responding to Joe Hosteny’s comments on Patent Trolls nicely states what I came to realize several years ago, namely, it is unclear that the U.S. Patent System, as currently implemented, necessarily benefits society as a whole. Certainly, it has benefited [Hostey] and his [partners] and several of their prominent clients, and has put Marshall, Texas on the map; but you really have to wonder if the “tax” placed on industry by the System (and its use of juries or lay judges to make the call on often highly complex technical issues that the parties’ technical experts cannot agree on) is really worth it. Of course, anyone can point to a few start-up companies that, arguably, owe their successes to their patent portfolios; but over the last 35 years, I have observed what would appear to be an ever increasing number of meritless patents, issued by an understaffed and talent-challenged PTO examining group, being used to extract tribute from whole industries. I have had this discussion with a number of clients, including Asian clients, who have been forced to accept our Patent System and the “taxes” it imposes on them as the cost of doing business in the USA. I wish I had the “answer”. I don’t. But going to real opposition proceedings, special patent courts with trained patent judges, “loser pays attorney fees” trials, retired engineers/scientists or other experienced engineers/scientists being used to examine applications in their fields of expertise by telecommuting from their homes or local offices throughout the Country, litigating patent attorneys providing regular lectures to the PTO examiners on problems encountered in patent infringement cases due to ineffective or careless examination of patent applications, and the appointment of actually qualified patent judges to the CAFC, may be steps in the right direction.

Now this is an honest patent attorney. As I told him/her,

What is worse, to me, is when patent attorneys pretend to know, but of course, do not–and they know they do not, and they do not care. It is just dishonest. I don’t mind a patent attorney being in favor of the system for the honest reason that it benefits him and his clients. Just like retired people benefit from social security even if it’s an inefficient or unethical system. Or if patent attorneys just did their job and shut up about the “benefit” of the system. I will say that my point (not really in the letter, but expressed elsewhere — e.g., There’s No Such Thing As A Free Patent) is not only that is the system now probably “not worth it,” but that due to the subjective nature of value, it would never be possible to demonstrate that it is “worth it”. But that is a methodological point beyond most patent attorneys, who are utterly imbued with scientism and positivism.

But let’s return now to Quinn’s screed:

My intention is not to get into a back and forth joust with those who believe the patent system does not spur innovation. In my experience there is simply no talking to people who hold those beliefs. They will hold those beliefs forever despite any and all evidence to the contrary, despite the laws of economics, the sensibilities and demands of investors and with total disregard for history itself.

They don’t pretend to know. They don’t take this seriously. They don’t have any idea of the costs, or the benefits, or the net. They don’t care about the costs–costs (patent lawyers’ salaries, say) are benefits to them, you see. They most they will do is trot out some off-the-cuff, non-serious remark that western countries are more prosperous and have patent systems; or we have had economic growth in America, coinciding with the patent system’s implementation. Wow. How rigorous. Never heard of the idea that correlation is not causation? Maybe the pro-property industrialized countries tend to tax and war and regulate and impose patent systems because they can afford it. (See Interactive Graphic Pretends to Illustrate How U.S. Patent System Has Driven American Economy; Prove that would have been invented without patents!.)

Back to Quinn:

Yet, I have to confess at being extremely interested in knowing how a patent attorney could come to such beliefs. Kinsella is used as a propaganda tool by anti-patent folks everyone who point out “even a patent attorney knows patents stifle innovation.” How is it possible that a patent attorney could believe that innovation would occur faster without patents?

Quinn then disingenuously argues that if you are against patents, you are against technology:

The truth is that every civilization that dominated had advanced technology and innovation when compared with competing civilizations. Whether there were patents or not, advanced technology and innovation is something to be aspired to. Rather than choosing to tax the people and require free labor by unfortunate classes of people our nation has evolved to tap into one of the most fundamental and powerful motivation forces — greed! Because of greed individuals, investors and companies will devote substantial amounts of time, energy and funding to come up with whatever is next, whatever is better and whatever will make them money. If we don’t want a patent system and we still want the jobs innovation creates, the lifestyle advances that innovation creates and the life-saving drugs and treatments that innovation creates we need to dig deep into the greed gene and exploit it.

And of course, technology and innovation is good. The mistake here is thinking there is market failure: that without the state’s interventions, there won’t be enough innovation. How anyone can honestly think the state can intervene and make things better is beyond me.

… I find it flat out bizarre that anyone could be of the opinion that patents stifle innovation. The truth is patents stifle innovation by the lazy, who would have never innovated anyway. Innovating is not for the faint of heart, and certainly not for the lazy, so why do we at all care what the anti-patent zealots think would happen in an unrealistic fantasy world where everyone simply works hard for the betterment of mankind and to assist others without regard to their own well-being or financial interest.

As for lazy–was RIM lazy when it heroically innovated and provided the magnificent Blackberry to tens of millions of customers, only to have over $600M extorted from it by a patent thug? Is the ever-innovating young company Facebook “lazy”–if they don’t pony us hundreds of millions of hush money to the patent predator nipping at it? Or is it rather than larger companies can rest on their laurels, protected from competition from smaller, hungrier startups, because their arsenal of patents allows them to achieve detente by thread of MAD with other, large, patent-hoarding companies, but to threaten startups who don’t usually have strong patent portfolios?

Update 2: Good post by Mike Masnick on Techdirt: Is It So Crazy For A Patent Attorney To Think Patents Harm Innovation?

***

“Patent Professionals” and Patent Policy

by Stephan Kinsella on November 12, 2009

in AgainstMonopoly.org Blog Posts,Intellectual Property

In Survey of the Disruptive Impact of a First-to-File Switch, and on his facebook page, patent attorney and law professor Dennis Crouch asks “patent professionals” to “Please Respond to my Survey on Switching US Law to a First-to-File System.”

I’m trying to figure out why we should care what patent attorneys, of all people, think about patent policy. Why is there an assumption that their opinions on patent policy are especially relevant? If anything, patent professional are biased because of built-in incentives to favor maintaining a patent system. They are not objective at all. And training in engineering and law school in no way provides one with any special knowledge of policy or ethics issues. By analogy, do we care what an IRS agent thinks the tax rates should be?

***

The Morality of Acquiring and Enforcing Patents

by Stephan Kinsella on October 1, 2003

in Intellectual Property,LewRockwell.com Blog Posts

As one of the few registered patent attorneys who oppose patents –and on principled, pro-private property, grounds, not for utilitarian or anti-industrialist reasons (in fact, the only other anti-patent registered patent attorney I know of is law professor Michael Davis, who, if memory serves, is a leftist) — I get my share of the “hypocrisy” charge. How can I help companies acquire patents, if I know the patent system is unlibertarian. Is it “immoral” or unlibertarian to patent your invention?A few comments. First, even if I’m hypocritical, it does not mean my argument against IP is wrong. It’s ad hominem.

Second, consider how patents are used. First, one invents something. Then, a patent application describing the invention is prepared and filed with the US Patent Office. Then, two to three years later, the patent office might issue a patent to the inventor. Once he has a patent, it gives the inventor the right to prevent others from making, using, or selling whatever invention is claimed–by filing a lawsuit to stop this, if necessary.

Often, a company–say, a small laser company–will obtain a bunch of patents in this manner. What for? Well, quite often, they sit in the company’s vault. If the company gets sued by a competitor for infringing one of the competitor’s patents, the laser company sifts thru its stack of patents, and if it finds one or two that its competitor might be violating, it countersues. If both the claim and counterclaim have merit, the plaintiff might back down; maybe they’ll settle by cross-licensing to each other. Even if it is immoral to sue someone with your patent, it is not immoral to use patent defensively.

Consider guns–they can be be used both defensively and offensively. Because they have both a legitimate, and illicit, use, it is not per se a threat to own–to have– a gun. Its the same with patents. Merely having a patent is like having a gun: you can use it for a legitimate (e.g., defensive) purpose, or against an innocent defendant.

So is it immoral, or hypocritical, to be a patent attorney, if it is true that the patent system is unlibertarian? It is not immoral to give clients advice about the actual system they exist in. It is not immoral to obtain patents. It is not immoral to give opinions on the whether your client’s products infringe a given patent. It is not immoral to negotiate a license agreement giving your client permission to make its products without being sued for patent infringement.

But what about actually suing another company, without provocation, for infringing one of your client’s patents? It may well be immoral, from the libertarian point of view, to aid and abet a company in suing another company for patent infringement — although I would argue that in most cases, the defendant company’s management and shareholders by and large support the existence of the patent system as well as the federal system that generated it, and that the defendants in effect consented to, or waived their right to complain about, patent infringement lawsuits. (Likewise, I have no problem with taxes in general–taxing Democrats is fine by me. They asked for it. Only problem with it from my perspective is it is giving funds to a dangerous group, but I don’t feel too sorry for the “victims.”)

Incidentally, it is similar for copyright–except that you have a copyright in things you write automatically, by virtue of federal law–there is NO need to register a copyright, or to stamp a copyright notice, on your works, in order to have a copyriht. As soon as you put pen to paper, you have a copyright in your work, whether you register it or not, whether you mark it “©” or not. (Registering it is necessary before you file a lawsuit; and using the notice gives you some damages advantages, but it’s not necessary.) Copyright is a noun, not a verb–you can’t “copyright” something; rather, federal law gives you a copyright in some things. That means all of us already own copyrights, that is have a right to sue others. It is analogous to having a patent–a right to sue. Whether or not, or how, you exercise this right, has libertarian implications; but merely having the right to sue is not a rights violation.

From: The Morality of Acquiring and Enforcing Patents, posted on the LRC blog.

Reality Check: Anti-Patent Patent Musings Simply Bizarre.

Responding to Critics: My View on Patents & Innovation.

Is It So Crazy For A Patent Attorney To Think Patents Harm Innovation?

The Most Visited Libertarian Websites

Stephan Kinsella — Wed, 11 Apr 2012 13:08:05 +0000

The Capital Free Press has compiled a list of the top ranked “libertarian websites based on the number of unique visitors in the most recent month according to the data compiled by Compete.” The post is pasted below. Not surprisingly, LewRockwell.com is the most visited libertarian site. Four of my own sites made the list: StephanKinsella.com (#84), Libertarian Papers (#100), The Libertarian Standard (#75), and Center for the Study of Innovative Freedom (C4SIF, #78).

The Most Visited Libertarian Websites

This is a ranking of the top libertarian websites based on the number of unique visitors in the most recent month according to the data compiled by Compete. They only compile data for domains and subdomains, so perhaps this list is more accurately described as the most visited libertarian domains rather than websites. It is compiled through calls to Compete’s API, so it will automatically update when they release new data each month. For more information on this list, see the blog post introducing it.

Automating everything means that adding a new website is as simple as plugging a new url into my list, so you have any suggestions for a website to add, please email me at patrick@capitalfreepress.com.

Due to the restrictions on the free use of the Compete API, there is a chance that I could run out of API calls in a 24 hour period (resets at midnight EST). The way that I compile this list and the terms and conditions on the use of their API prevent me from displaying the number of unique visitors for each website in the chart, though that information and more can be accessed via the link I have provided.

Rank	Name	Website
1	LewRockwell.com	lewrockwell.com	Compete Site Profile
2	Electronic Frontier Foundation	eff.org	Compete Site Profile
3	Ron Paul 2012 Official Campaign Website	ronpaul2012.com	Compete Site Profile
4	Reason Magazine	reason.com	Compete Site Profile
5	Daily Paul	dailypaul.com	Compete Site Profile
6	The Cato Institute	cato.org	Compete Site Profile
7	Ludwig von Mises Institute	mises.org	Compete Site Profile
8	AntiWar.com	antiwar.com	Compete Site Profile
9	RonPaul.com	ronpaul.com	Compete Site Profile
10	Outside the Beltway	outsidethebeltway.com	Compete Site Profile
11	Economic Policy Journal	economicpolicyjournal.com	Compete Site Profile
12	Library of Economics and Liberty	econlib.org	Compete Site Profile
13	The Daily Bell	thedailybell.com	Compete Site Profile
14	Ron Paul Forums	ronpaulforums.com	Compete Site Profile
15	Endorse Liberty PAC	endorseliberty.com	Compete Site Profile
16	Tenth Amendment Center	tenthamendmentcenter.com	Compete Site Profile
17	Cato-at-Liberty Blog	cato-at-liberty.org	Compete Site Profile
18	The Freeman	thefreemanonline.org	Compete Site Profile
19	Future of Freedom Foundation	fff.org	Compete Site Profile
20	Campaign For Liberty	campaignforliberty.com	Compete Site Profile
21	The Independent Institute	independent.org	Compete Site Profile
22	Advocates for Self Government	theadvocates.org	Compete Site Profile
23	Marginal Revolution	marginalrevolution.com	Compete Site Profile
24	The Agitator – Radley Balko	theagitator.com	Compete Site Profile
25	Carpe Diem – Mark J. Perry	mjperry.blogspot.com	Compete Site Profile
26	Libertarian Party	lp.org	Compete Site Profile
27	Tom Woods	tomwoods.com	Compete Site Profile
28	Whiskey and Gunpowder	whiskeyandgunpowder.com	Compete Site Profile
29	Revolution PAC	revolutionpac.com	Compete Site Profile
30	Run Ron Paul	runronpaul.com	Compete Site Profile
31	The Ayn Rand Institute	aynrand.org	Compete Site Profile
32	Cop Block	copblock.org	Compete Site Profile
33	Acton Institute	acton.org	Compete Site Profile
34	Free State Project	freestateproject.org	Compete Site Profile
35	Adam Vs The Man	adamvstheman.com	Compete Site Profile
36	United Liberty	unitedliberty.org	Compete Site Profile
37	Reason Foundation	reason.org	Compete Site Profile
38	Moment of Clarity – Tim Nerenz	timnerenz.com	Compete Site Profile
39	Cafe Hayek	cafehayek.com	Compete Site Profile
40	Downsize DC	downsizedc.org	Compete Site Profile
41	Free Keene	freekeene.com	Compete Site Profile
42	The Humble Libertarian	humblelibertarian.com	Compete Site Profile
43	Laissez-Faire Books	lfb.org	Compete Site Profile
44	Strike-The-Root	strike-the-root.com	Compete Site Profile
45	Foundation for Economic Education	fee.org	Compete Site Profile
46	John Locke Foundation	johnlocke.org	Compete Site Profile
47	Break The Matrix	breakthematrix.com	Compete Site Profile
48	BuildFreedom.com	buildfreedom.com	Compete Site Profile
49	Competitive Enterprise Institute	cei.org	Compete Site Profile
50	Libertarianism.org	libertarianism.org	Compete Site Profile
51	Vox Popoli	voxday.blogspot.com	Compete Site Profile
52	The Institute for Justice	ij.org	Compete Site Profile
53	OpenMarket.org – The Blog of the CEI	openmarket.org	Compete Site Profile
54	Freedomain Radio	freedomainradio.com	Compete Site Profile
55	Institute for Humane Studies	theihs.org	Compete Site Profile
56	Peter Schiff Show	schiffradio.com	Compete Site Profile
57	Center for a Stateless Society	c4ss.org	Compete Site Profile
58	Learn Liberty	learnliberty.org	Compete Site Profile
59	Young Americans for Liberty	yaliberty.org	Compete Site Profile
60	Young Americans for Liberty	yaliberty.org	Compete Site Profile
61	Reason.tv	reason.tv	Compete Site Profile
62	Free Talk Live	freetalklive.com	Compete Site Profile
63	The Future of Capitalism	futureofcapitalism.com	Compete Site Profile
64	Doug Wead The Blog	dougwead.wordpress.com	Compete Site Profile
65	Libertarian Republican	libertarianrepublican.net	Compete Site Profile
66	Adam Smith Institute	adamsmith.org	Compete Site Profile
67	The Capital Free Press	capitalfreepress.com	Compete Site Profile
68	Bleeding Heart Libertarians	bleedingheartlibertarians.com	Compete Site Profile
69	Militant Libertarian	militantlibertarian.org	Compete Site Profile
70	Students for Liberty	studentsforliberty.org	Compete Site Profile
71	Coyote Blog	coyoteblog.com	Compete Site Profile
72	Ron Paul News	ronpaulnews.net	Compete Site Profile
73	Republican Liberty Caucus	rlc.org	Compete Site Profile
74	Bastiat Institute	bastiatinstitute.org	Compete Site Profile
75	The Libertarian Standard	libertarianstandard.com	Compete Site Profile
76	AgainstCronyCapitalism.org	againstcronycapitalism.org	Compete Site Profile
77	Coordination Problem	coordinationproblem.org	Compete Site Profile
78	Center for the Study of Innovative Freedom	c4sif.org	Compete Site Profile
79	realfreemarket.org	realfreemarket.org	Compete Site Profile
80	Goldwater Institute	goldwaterinstitute.org	Compete Site Profile
81	Liberty Radio Network	lrn.fm	Compete Site Profile
82	Ideas – David Friedman	daviddfriedman.blogspot.com	Compete Site Profile
83	Daily Anarchist	dailyanarchist.com	Compete Site Profile
84	Stephan Kinsella	stephankinsella.com	Compete Site Profile
85	NeverTakeaPlea.org	nevertakeaplea.org	Compete Site Profile
86	Liberty Underground	1787network.com	Compete Site Profile
87	Liberty Pulse	libertypulse.com	Compete Site Profile
88	Peace, Freedom & Prosperity	peacefreedomprosperity.com	Compete Site Profile
89	Free Advice – Robert Murphy	consultingbyrpm.com	Compete Site Profile
90	Libertarian Leanings	libertarianleanings.com	Compete Site Profile
91	Americans for Limited Government	getliberty.org	Compete Site Profile
92	Liberty Documentaries	libertydocumentaries.com	Compete Site Profile
93	Liberty PAC	libertypac.net	Compete Site Profile
94	Taking Hayek Seriously	hayekcenter.org	Compete Site Profile
95	Liberty Maven	libertymaven.com	Compete Site Profile
96	Congress Shall Make No Law: IJ’s Free Speech Blog	makenolaw.org	Compete Site Profile
97	Ron Paul Radio	ronpaulradio.com	Compete Site Profile
98	LacrosseWatchDog	lacrossewatchdog.org	Compete Site Profile
99	Bad Quaker	badquaker.com	Compete Site Profile
100	Libertarian Papers	libertarianpapers.org	Compete Site Profile
101	Porcupine Freedom Festival	porcfest.com	Compete Site Profile
102	The Libertarian Patriot	thelibertarianpatriot.com	Compete Site Profile
103	The Southern Libertarian	thesouthernlibertarian.com	Compete Site Profile
104	The Tireless Agorist	tirelessagorist.blogspot.com	Compete Site Profile
105	Liberty Classroom	libertyclassroom.com	Compete Site Profile
106	Government by Contract	governmentbycontract.com	Compete Site Profile
107	Freespace – Timothy Sandefur	sandefur.typepad.com	Compete Site Profile
108	Austrian Dad	austriandad.blogspot.com	Compete Site Profile
109	JasonPye.com	jasonpye.com	Compete Site Profile
110	Libertarian Advocate	libertarianadvocate.blogspot.com	Compete Site Profile
111	Liberty Web Alliance	libertyweballiance.com	Compete Site Profile
112	Liberty On Tour	libertyontour.com	Compete Site Profile
113	Libertarian Book Club	libertarianbookclub.com	Compete Site Profile
114	Run Rand Run	runrandrun.com	Compete Site Profile

[Crossposts: StephanKinsella.com; Libertarian Papers; TLS]

How much is that patent lawsuit going to cost you?

Stephan Kinsella — Sun, 08 Apr 2012 14:39:48 +0000

From Cnet:

How much is that patent lawsuit going to cost you?

While the tech industry’s elite are fighting it out with their whopper patent portfolios, a recent survey shows just how scary one lawsuit can be for a small company.

by Jim Kerstetter April 5, 2012 10:00 AM PDT

So you’re facing a patent lawsuit. Or maybe you want to sue someone. Get out your checkbook, because this isn’t going to be cheap.

The Organization for Transformative Work

Stephan Kinsella — Sun, 08 Apr 2012 12:53:55 +0000

Geoff Plauche called to my attention a groups called the Organization for Transformative Work, “a nonprofit organization run by and for fans to provide access to and preserve the history of fanworks and fan cultures”. See its “beliefs” statement below, which “envision[s] a future in which all fannish works are recognized as legal and transformative and are accepted as a legitimate creative activity.” This laudable goal would require modifying copyright law’s “derivative work” provision.

What We Believe

Our Mission

The Organization for Transformative Works (OTW) is a nonprofit organization established by fans to serve the interests of fans by providing access to and preserving the history of fanworks and fan culture in its myriad forms. We believe that fanworks are transformative and that transformative works are legitimate.

The OTW represents a practice of transformative fanwork historically rooted in a primarily female culture. The OTW will preserve the record of that history as we pursue our mission while encouraging new and non-mainstream expressions of cultural identity within fandom.

Our Vision

We envision a future in which all fannish works are recognized as legal and transformative and are accepted as a legitimate creative activity. We are proactive and innovative in protecting and defending our work from commercial exploitation and legal challenge. We preserve our fannish economy, values, and creative expression by protecting and nurturing our fellow fans, our work, our commentary, our history, and our identity while providing the broadest possible access to fannish activity for all fans.

Our Values

We value transformative fanworks and the innovative communities from which they have arisen, including media, real person fiction, anime, comics, music, and vidding.

We value our identity as a predominantly female community with a rich history of creativity and commentary.

We value our volunteer-based infrastructure and the fannish gift economy that recognizes and celebrates worth in myriad and diverse activities.

We value making fannish activities as accessible as possible to all those who wish to participate.

We value infinite diversity in infinite combinations. We value all fans engaged in transformative work: fans of any race, gender, culture, sexual identity, or ability. We value the unhindered cross-pollination and exchange of fannish ideas and cultures while seeking to avoid the homogenization or centralization of fandom.

Our Goals

During our first two years, the OTW has laid the groundwork for a vibrant and creative organization by:

Establishing the OTW as an IRS-recognized nonprofit organization.

Creating infrastructure for OTW by establishing a board and creating committees, soliciting membership and donations, forming alliances, and holding elections.

Encouraging community interaction and input via the OTW’s Web site and across the online and offline spaces where fans congregate.

Designing, programming, and launching the Archive of Our Own, a Web archive to host transformative fanworks.

Exploring ways to make fanworks as accessible as possible.

Establishing a legal advocacy project and forming alliances to defend fanworks from legal challenge.

Creating a fan wiki to preserve the history of transformative fanworks and the fandoms from which they have arisen.

Establishing a refereed academic journal to promote scholarship on fanworks and fan practices.

Developing a long-term plan for the organization.

Undertaking additional projects relevant to transformative fandom, such as the preservation of fan history and fanworks, building and maintaining infrastructure for use by fans, and sponsoring academic scholarship on fandom.

Italian Libertarian IP Debate

Stephan Kinsella — Thu, 05 Apr 2012 02:19:59 +0000

My Interview on IP and libertarianism (with Fabrizio Sitzia) is forthcoming at LibertariaNation.org (Italy) (recorded Feb. 23, 2012). In the meantime the group has a post up about the IP issue with a vigorous series of pro- and con-comments in the thread. Italian libertarians are arguing about this just like Americans are.

The original post is Non proprietà intellettuale?; the automatic Google translation, Not Intellectual Property?, is surprisingly good.

Writing Without Copyright

Christopher Gronland — Wed, 04 Apr 2012 01:25:29 +0000

In the 22 years I’ve been writing seriously, I’ve never registered a copyright with the US Copyright Office. In the beginning, I thought it was wonderful that once I wrote something, it was protected. Somewhere in that first year of writing, though, I learned that I didn’t stand much of a chance in winning a copyright case in court without registering a copyright with the US Copyright Office.

In my first year of serious writing, I made what averaged out to a couple hundred dollars a month writing independent (i.e., creator owned) comic books, short stories, and the occasional article. The $20 fee to register copyright for each substantial work — when I was producing, in some months, close to a dozen substantial works — was more than I could afford. So I took my chances and never registered a copyright.

I never really thought about it until a friend asked me how I’d view a world without copyright as a writer. My first thought was a knee-jerk reaction: “That would be terrible — we need copyright protection!” But when I thought about how I’ve never had to enforce a copyright in all my years writing, I came to this conclusion: copyright really benefits those who use it to coerce writers, artists, musicians, consumers, and others.

In the News

In much the same way that if somebody tells me to look for purple things throughout my day I will notice purple more than usual, I started noticing articles about copyright abuse: musicians producing original work being accused of stealing sounds; writers receiving cease and desist letters for writing parodies; independent filmmakers willing to offer what they were doing for free via bit torrents seeing their means of distribution shut down because some people used the same services to share movies. Just a few weeks ago, my wife loaded a video on YouTube that was flagged because she used a Creative Commons Haydn piano sonata. And just yesterday, I came home and read this on BoingBoing.net.

Add to that how it seems a handful of years can’t pass by when one doesn’t read about Disney — a company that largely exists from creating derivative works — claiming others are creating derivative works of their derivative works. If it weren’t so stifling, it would almost be humorous.

Fortunately, innovation often outpaces coercion, and there are now other ways for musicians and filmmakers to get their work out there. But at the time of Napster and the beginning of bit torrents, there were people offering their art and having their means of distribution shut down by corporations, organizations, and the government — all in the name of copyright protection.

The Writer’s Turn

Just as musicians and filmmakers have had to deal with the suppression of their rights to create and distribute their work by non-traditional means in recent years, writers are now getting their turn. Books weren’t the easiest thing to copy in the past; it was easier to just buy or borrow a book than to copy War and Peace one page at a time on a Xerox machine. Because of this (and many other reasons), publishing has always been a slow industry with gatekeepers deciding who got in…and who stayed out.

With the rise of e-books, novels are now like albums — something that can be copied, shared, and read on computers, tablets, and smart phones. Even with early demand, publishers were slow to catch on. At a 2009 South by Southwest panel called “New Think for Old Publishers,” publishers walked away looking like a lonely middle aged guy desperately trying to convince a bunch of 20-year-olds that he’s still hip. It wasn’t until Amazon pushed for e-books that people really paid attention.

The Big River (Apparently Full of Piranha)

Amazon quickly made the e-book a viable thing through the innovation of the Kindle and the means by which they were able to distribute e-books. While other e-readers existed, it’s safe to say it took Amazon to make the e-book an everyday thing. And with that quick success (Amazon making the market and then claiming 90%), came the cries that Amazon wasn’t playing fair. They were a monopoly with aggressive tactics — that was the claim by some companies angry that they didn’t think of it all first!

It’s hard to feel bad for Barnes and Noble — a company that aggressively targeted small booksellers in an effort to drive them out of business — crying foul when they are on the receiving end of similar tactics they once used. It’s kind of like seeing a playground bully bested in battle by a crafty, tough nerd.

I’ve heard people say “Amazon is a monopoly! They own the market share of e-books!” Why shouldn’t Amazon have the biggest share when they were the ones who thought, “Let’s make publishing easy and give indie publishers a 35% royalty on anything between $.99 – $1.99, and a 70% royalty on anything more than $1.99.”?

A seventy percent royalty is unheard of! Why wouldn’t writers consider self-publishing e-books when traditional royalties on hardbacks are considerably less than Amazon’s low end of 35%. When I self published comic books back in the 90s and got 40% for each book sold through the direct market, I thought it was the greatest deal in the world! And now I can do that with novels that cost next to nothing to produce.

The “Evils” of Amazon’s “Monopoly”

Amazon no longer has a 90% share of the e-book market; in large part because their aggressive tactics and “stranglehold” on the industry opened the door for other booksellers, publishers, and e-reader/tablet manufacturers. The Nook, in part, owes its life to the Kindle — and Barnes and Noble followed Amazon’s lead with an online store and e-book sales. Barnes and Noble and other companies are all benefiting from Amazon’s innovation.

But there are still those who think otherwise. My favorite Internet battle in recent weeks has been J.A. Konrath and Barry Eisler’s challenge to Author’s Guild president, Scott Turow. (More about that here and here.) The quick version: Scott Turow came out in support of the agency pricing model in publishing, and in the process, attacked the way Amazon does business. Instead of siding with the interests of the writers he’s supposed to support, he sided with the pricing model used by major publishers that puts a smaller percent of royalties in writers’ pockets.

If you’re not familiar with Konrath and Eisler, they are midlist writers who broke away from traditional publishing and did it on their own, using e-books as their main product. Konrath was unsuccessful at convincing his then publisher to re-release his out-of-print books. He was told it wasn’t worth it. He fought for the rights, released them as e-books, and they’ve pulled in decent 6-figure totals. Eisler, seeing Konrath’s success, walked away from a 2-book, $500,000 publishing deal to do it himself. (He says it was more than worth it.)

When the same friend who challenged me to imagine a world without copyright sent me the graph featured by Stephan here last Saturday, I was not at all surprised to see Amazon moving more books in the public domain — and then since the rise of print-on-demand technology and e-books. The dip in the numbers of books released during times of industry coercion through copyright claims says it all.

The Traditional Way

I’m lucky enough to be friends with a handful of writers much more successful than me. A few of those writers — and a couple writers I follow online — have made no secret that they would love to see fewer writers being published. Fewer writers being published means more for them. In some ways, I find it hard to totally fault them; they are writers who came up in a time of gatekeepers. Once invited to that side of the wall, they want to cling to what they have — even if they are the same writers who once complained about gatekeepers holding them back.

Should one believe I’m bitter because I’m not on that side of the wall, I am not opposed to going the traditional publishing route. While genre fiction has seen e-book successes like Amanda Hocking and John Locke, upmarket and literary fiction doesn’t have a similar kind of e-book success story. Despite getting rejections letters that amount to, “Loved this–you’re a talented writer, but…it’s too quirky and I don’t know how I’d market this,” I still try to find success the traditional way with some stories. But I’m also a fan of e-books. I’m an even bigger fan of having so many options!

Where I Stand

I offer some of my writing for free, and some for $.99 – $2.99 in the hope that people will buy it instead of copying and distributing it themselves. But if people want to copy and share my writing (everything I offer is DRM-free), I’m fine with that. While I want nothing more than to write full time, I am not owed a career as a writer.

There seems to be a belief that if one works hard at a creative pursuit that it’s somehow more noble than the person making a widget or other product. (And having to fight patent law like some writers fight copyright law.) I love what I do, but it’s no more special or requiring extra protection than a guy who loves making bars of soap.

To those who say we need at least some kind of IP law to protect me, since the night a friend challenged me to imagine a world without copyright, I’ve realized that if I’m doing my job right, you know who I am. If you don’t know who I am (and most people don’t), I need to work harder to generate excitement about what I do so people come to me for my writing — not go to others. But even if others released my writing, I find it hard to lay claim to your interpretation of the stories I write as you see them in your heads.

In addition to being paid to write, I’ve been paid for photographs accompanying travel articles I’ve written. I have a hard time believing that I should be extended copyright for those photos, when all I’ve done is capture what’s already there. If I do my job as a writer — like a photograph — I’m simply capturing what’s already there around me. And I find it quite arrogant — even bordering on hostile — to lay claim to my surroundings.

* * *

About Christopher Gronlund

Christopher Gronlund is a writer living in Texas. His first novel, Hell Comes with Wood Paneled Doors, can easily be seen as a derivative of National Lampoon’s Vacation, Stephen King’s Christine, and TV’s Wonder Years. He blogs at thejugglingwriter.com.

Indie Singer Uses Google+ Hangout to Give a Concert to Audience of 200,000

Stephan Kinsella — Mon, 02 Apr 2012 16:36:55 +0000

From the notes to this Youtube video Singer/Songwriter

Daria Musk knew her global audience was out there, somewhere — and she found it on Google+. google.com/+/business

Before joining Google+, Daria was, as she likes to say, “singing for the trees.” She’d played gigs but hadn’t been able to build her following. Now, with her entrepreneurial streak and global-sized heart, she’s utilizing Google+ to put her career in fast-forward.

As the post from Google’s blog below notes, she used a Google+ Hangout to do a live concert, and drew an astounding audience of 200,000. Wow!

Put your business in fast forward with Google+

Wednesday, March 28, 2012 | 9:50 AM

Today, we’re thrilled to share with you the story of musician and Google+ breakout star Daria Musk.

We often get asked for examples of how to use Google+ to engage with users. Lighting up Google+ with live concerts, as Daria’s done, can seem a song apart from selling wares such as designer laptop cases, hotel rooms or even car insurance — but the principles of building an engaged Google+ community ring true across industries. Daria’s story is a shining example of what working with an active audience can look like.

Be authentic and committed

On March 13, Daria crossed the amazing milestone of having more than one million followers. That means more than one million Google+ users have added Daria to their circles, all in the space of about eight months.

Daria was looking for those listeners when she joined Google+. “I was dreaming maybe there’s this wider world that I can sing for,” she said. “Maybe my people are out there somewhere.”

Through posts and Hangouts, Daria has kept her fans engaged. Keys to success, Daria said, include starting with enthusiasm and authenticity. “Right now if you get on Google+ and you show that you’re doing something remarkable, they’ll notice you,” she said.

Being remarkable, Daria coached, includes being yourself and avoiding canned-message posts. Users can tell if you’re trying to make a real connection. Be genuinely excited to connect with them and they’ll connect back.

When users do notice you, make sure you commit enough time to connect back. Taking just 10 to 15 minutes to respond to comments can keep the conversation going.

Read more>>

How Copyright Seems to Keep Books Unavailable and Unexploited: A Graph

Stephan Kinsella — Sat, 31 Mar 2012 15:21:24 +0000

This is amazing, and sad and tragic. This is a little recap by Brian Doherty on Reason’s Hit & Run. (One wonders how the heroic Doherty still waffles on IP despite all this.)

How Copyright Seems to Keep Books Unavailable and Unexploited: A Graph

Brian Doherty | March 30, 2012

Via the “Offsetting Behavior” blog from Eric Crampton:

Crampton explains:

Recall that books published through 1922 are in the public domain in the US; those published since then are covered by copyright…..

So any arguments about underexploitation of unprotected works seem untenable.

If this were a moving wall, maybe it wouldn’t be so bad: eventually, books would come out of copyright and be released in new editions. But Disney does keep going back and insisting that nothing can ever be returned to the Commons from which they so liberally drew, and Congress loves Disney; we might reasonably expect another copyright term extension act to keep the wall fairly rigid.

I do not, by the way, blog this as a confirmed anti-IP libertarian, but as data about how copyright contributes to the actual access to and use of old books, I found it interesting.

Jesse Walker wrote on how IP enforcement can hobble cultural production in his March 2000 Reason classic “Copy Catfight.”

Kinsella on The Corbett Report

Stephan Kinsella — Thu, 29 Mar 2012 05:31:26 +0000

I was a guest tonight (Mar. 28, 2012, Houston time; Mar. 29 Japan time) on The Corbett Report, with host James Corbett (from Japan), discussing IP. Here’s the audio (local MP3).

Corbett Report Radio 099 – Against Intellectual Property with Stephan Kinsella

Posted by Corbett

Writer, thinker, lawyer and Austro-anarchist libertarian legal theorist Stephan Kinsella joins us to discuss his writing on intellectual property. We discuss the philosophical roots of property rights, how IP differs from those concepts, and how alternative models of making money from creative work are being pioneered in the age of the internet.

Kinsella on Liberty Conspiracy

Stephan Kinsella — Thu, 29 Mar 2012 00:39:23 +0000

I was a guest on Mar. 26 on Liberty Conspiracy, with host Gardner Goldsmith, discussing IP and related libertarian matters. Here’s the audio (local MP3).

Patents Threaten To Silence A Little Girl, Literally

Stephan Kinsella — Wed, 28 Mar 2012 17:03:25 +0000

By Leigh Beadon on Techdirt, a horrible story. It’s another example of how patents can lead to censorship. It’s not only copyrights that censor, as I note in Copyright and Free Trade; Patents and Censorship.

Patents Threaten To Silence A Little Girl, Literally

from the profit-motives dept

Slashdot points us to a sad story from blogger Dana Nieder, providing yet more evidence of how patent monopolies can hold back innovation and do very real damage to people’s lives in the process—and how people are interested in progress, not patents. As Dana says in her post, she understandably doesn’t give a damn about legal details when something as important as her daughter’s ability to communicate is at stake:

My daughter, Maya, will turn four in May and she can’t speak. The only word that she can consistently say with 100% clarity is “done”—which, while helpful, isn’t really enough to functionally communicate. When Maya was two and a half we introduced her to the iPad, and we’ve danced with AAC (augmentative and alternative communication) ever since. We experimented with a few communication apps, but nothing was a perfect fit. After an extensive search for the perfect app, we found it: Speak for Yourself. Simple and brilliant, we saw that it had the potential to serve Maya into adulthood, but was also simple enough for her to start using immediately.

And she liked it. And it worked. And I started to have little flashes of the future, in which she could rapidly tap out phrases and ideas and tell me more and more of the secret thoughts that fill her head—the ones that I’m hungry to hear and she’s dying to share but her uncooperative mouth just can’t get out.

My kid is learning how to “talk.” It’s breathtaking.

But now Speak for Yourself in under fire, and from a surprising (to an AAC outsider) or not-so-surprising (to an AAC insider) source. They’re being sued by Semantic Compaction Systems and Prentke Romich Company, big names in the AAC world. SCS and PRC allege that Speak for Yourself is infringing on their patents. I’m going to be honest: I don’t know about patents and infringement, and I’m not going to get into debates about the legal merits of the case, because that’s a conversation in which I would quickly drown.

Dana explains that her defense of the app isn’t arbitrary. Before discovering Speak For Yourself, she explored dedicated speech devices from the big AAC companies, including Prentke Romich. None of their options were suited to her daughter, and they all carried hefty price tags—as in $7,000+ hefty. She began asking around to see if PRC or any of the other big companies were planning on releasing an iPad app, and learned that although many customers were clamoring for one, the companies had no intention of meeting their demands. They didn’t want an affordable option out there reducing sales of their expensive systems.

Whenever the incumbents of any industry are ignoring the demands of their customers, you can bet that someone else is paying attention. In this case, it was speech-language pathologists Heidi LoStracco and Renee Collender, the pair behind Speak For Yourself. The app’s website explainshow it came about:

Mrs. LoStracco and Mrs. Collender began to see a shift in the field when the iPad was released. Mrs. Collender says, “Districts and parents were buying an iPad with an ‘AAC’ app on it and saying, ‘Make this work.’ We would try to reprogram the applications with the language that the children needed, but it took forever and it was never really ‘right.’” Heidi and Renee say that it got to the point that someone was asking them about iPad applications for AAC every day, and they decided that they needed a better answer. Heidi says, “We would tell them, there’s not really an effective AAC app out there yet, but when there, is, we’ll be the first to tell you about it.” Then we started thinking that we could create something that followed motor learning principles and gave individuals access to the language they needed to communicate effectively, and that’s when we designed Speak for Yourself.” Renee says, “We’ve always believed that communication is a basic human right, and the only AAC pre-requisite skill that a nonverbal person needs is a pulse.”

Dana points out that PRC’s mission statement begins “We Believe Everyone Deserves A Voice” and that their refusal to create an affordable iPad app, and now their attempts to crush a competitor who did, clearly runs counter to that mission. For her, that’s basically where the discussion ends: a company is trying to take away the only thing that has been able to give her daughter a voice, and she couldn’t care less whether or not they have the legal right to do so.

It’s hard not to sympathize with her position, even though the lawsuit and the patent in question, #5,920,303, both appear to be solid. As Dana’s story gains traction, we can only hope that it will increase social pressure on PRC and possibly shame them into allowing Speak For Yourself to survive by offering them an affordable license, or at least releasing their own iPad app at a similar price point—but as we’ve seen with pharmaceutical companies, the holders of life-saving and life-changing patents often don’t seem too bothered about withholding them no matter what it does to their public image.

Ultimately, this is more evidence that in today’s world of rapid innovation, tech monopolies are increasingly untenable. Big companies that have dominated niche markets for years—and have long since paid off their R&D costs by charging monopoly rates—are being disrupted by nimbler competitors. As we’ve seen with media and software piracy, this happens whether or not the competitors are “legitimate” under intellectual property law. Can there be any doubt that, if Speak For Yourself is shut down and the app eliminated, Dana will seek out a way to keep it running on her daughter’s iPad? Since her story is running on Slashdot, she’s already received comments with advice on how to do so, and suggestions that she contact Speak For Yourself and convince them to release their source code on github. At the moment, it looks like she just plans on turning off all connectivity on the iPad so that it will no longer sync and the app will remain even if it is removed from the iTunes store. Can anyone blame her? The simple fact is that markets always eventually find a way to meet demands—and if companies (especially those in industries that seriously affect people’s lives) use their intellectual property to block powerful market forces, that control will eventually be wrested from them, one way or another.

DHS Raids Home To Seize Deadly Hair Straighteners [Trademark]

Stephan Kinsella — Mon, 26 Mar 2012 20:40:43 +0000

Yet another example of how trademark law is incompatible with property rights and free markets:

DHS Raids Home To Seize Deadly Hair Straighteners

Federal agency founded to fight terrorism continues war on grooming appliancesPaul Joseph Watson
Infowars.com
Monday, March 26, 2012

The Department of Homeland Security, a federal agency created in the aftermath of 9/11 to fight terrorism, has continued its war on potentially deadly grooming appliances by raiding a home in the affluent Orange County city of Laguna Niguel to seize allegedly counterfeit hair straighteners.

“About 10 investigators with the Orange County District Attorney’s Office and special ICE Homeland Security Investigations agents combed through the garage and the single-story house in the 29500 block of Pelican Way near Niguel Road and Alicia Parkway,” reports the Orange County Register.

According to the feds, the American people need to be protected from the threat of counterfeit hair straighteners because they could pose a safety hazard to consumers.

Guest on the Corbett Report

Stephan Kinsella — Mon, 26 Mar 2012 19:37:30 +0000

I’ll be a guest on The Corbett Report this Wed. night, Mar. 28, 2012, discussing IP and other matters. I was a guest last night on Liberty Conspiracy last night, with host Gardner Goldsmith, discussing IP and other matters; it should be podcast soon.

Doug French: Freedom Through Technology

Stephan Kinsella — Sat, 24 Mar 2012 15:54:19 +0000

From Andy Duncan at The God That Failed. Great talk by Doug French. His story about how he had to copy Rothbard’s The Mystery of Banking by hand on a library photocopy machine, feeding dimes into it. In the old days. The dark ages. In 1991 I lived in London. I had at that time read a lot of libertarian books but for the past couple years I had gotten more interested in Rothbard and Mises and Austro-libertarianism. I had read For A New Liberty but The Ethics of Liberty was out of print. I found a copy in the University of London library and spent an hour or so making my own photocopy by hand. I spiral bound it with a clear plastic cover since it was my only copy. I had it for years, dog-eared and annotated, until it was re-published in 1998.

Doug ends his inspiring talk with a great quote from Mises’s Liberalism:

No sect and no political party has believed that it could afford to forgo advancing its cause by appealing to men’s senses. Rhetorical bombast, music and song resound, banners wave, flowers and colors serve as symbols, and the leaders seek to attach their followers to their own person. Liberalism has nothing to do with all this. It has no party flower and no party color, no party song and no party idols, no symbols and no slogans. It has the substance and the arguments. These must lead it to victory.

Here’s Andy Duncan’s post:

Doug French: Freedom Through Technology
Posted on March 23, 2012
Doug French discusses how things have changed in the last thirty years, and perhaps his insights explain why the nascent world government is so desperate to shut down the Internet, via the mechanism of ‘Intellectual Property’, or as they knew it in Elizabethan England, Royalty-granted monopoly:

A Defiant Dude: “Eat More Kale” T-Shirt Designer Fighting Back Against Chick-fil-A’s Trademark Bullying

Stephan Kinsella — Thu, 22 Mar 2012 12:28:13 +0000

As I noted in Folk Artist’s “Eat More Kale” versus Chick-Fil-A’s “Eat More Chikin” [Trademark],

In another example of trademark insanity and corporate bullying, Chick-fil-A is demanding that a folk artist stop using the phrase “Eat More Kale” and turn over his website, on the grounds that it “is likely to cause confusion of the public and dilutes the distinctiveness of Chick-fil-A’s intellectual property [in its phrase "Eat Mor Chikin"] and diminishes its value.¹

Now the victim, Bo Muller-Moore, is fighting back–he’s using Kickstarter to try to raise at least $75k to fund a documentary that will follow his fight against Chick-fil-A. As of now he has about $60k pledged, with only 3 days go to… let’s hope he makes it.

For other examples, see Hobbit pub in Southampton threatened with legal action; Michael Jordan claims ownership of number 23; Can you trademark a color?; LSU Football, Trademark, and “Honey Badger”; Disney to use Trademark against Canadian Pixar Oil, Ltd.; Is Getty Guilty Of Trademark Infringement For Every Photo It Has That Shows A Trademark?; Insanity(TM): Apple Claims Ownership of Leaf Shape; Boise State Warns High School with Blue Turf not to Call it Blue Turf; In-N-Out Sues Grab-N-Go; The Great Dr. Pepper Feud (Trademark);Thank goodness you are still free to make a shoe with red soles; others here.

The Patent Religion suffers a blow: reading tea leaves on AMP v Myriad in the Mayo v. Prometheus decision by SCOTUS

David Koepsell — Thu, 22 Mar 2012 07:49:56 +0000

Reposted from http://http://whoownsyou-drkoepsell.blogspot.com/

The Patent Religion’s believers think that “anything under the sun made by man” is patent-eligible, even where nature made it first. This is the liturgy to which they appeal when challenged about patenting “isolated” or “synthesized” natural products. They think it means that even scientific discoveries, if properly couched in some “transformative” phrasing, are sometimes man-made. This was the case in the Mayo v. Prometheus case in which the patented claims included the correlations between, on the one hand, thiopurine drug metabolite levels and, on the other hand, efficacy and toxicity. These correlations were discovered through empirical research, they were not created. But the unfortunate wording of the Patent Act in the US, which makes patentable any new invention or “discovery” has enabled the patent lawyers to continue to argue that there is essentially no boundary between science and technology. Fortunately, the Supreme Court just burst their bubble. The Court’s decision can be found here and should be read by one and all. Justice Breyer, a long-time skeptic of IP-lawyers’ rhetorical tricks, pokes through the claims to look at the underlying subject matter. He does an ontologist proud.

While the unanimous decision makes worthy policy arguments about the negative effects on innovation of granting monopolies too far upstream, it also goes a fair way in describing the distinction between laws of nature, and something inventive and patent-eligible. From the decision’s syllabus, the following language says it all:

“Because the laws of nature recited by Prometheus’ patent claims—the relationships between concentrations of certain metabolites in the blood and the likelihood that a thiopurine drug dosage will prove ineffective or cause harm—are not themselves patentable,the claimed processes are not patentable unless they have additional features that provide practical assurance that the processes are genuine applications of those laws rather than drafting efforts designed to monopolize the correlations. The three additional steps in the claimed processes here are not themselves natural laws but neither are they sufficient to transform the nature of the claims. The ‘administering’ step simply identifies a group of people who will be interested in the correlations, namely, doctors who used thiopurine drugs to treat patients suffering from autoimmune disorders. Doctors had been using these drugs for this purpose long before these patents existed … The ‘wherein’ clauses simply tell a doctor about the relevant natural laws, adding, at most, a suggestion that they should consider the test results when making their treatment decisions … The ‘determining’ step tells a doctor to measure patients’ metabolite levels, through whatever process the doctor wishes to use.”

Patenting is not a game. Simply trying to squeeze square pegs into round holes using magical phrases will not do. There is a reality that must be observed, and rhetorical tricks aside, the claimed “inventions” were merely scientific discoveries about facts of nature. In this case, the Supreme Court has made both a logical and ontologically-grounded decision, recognizing that even where a claimed invention might be “man-made” it is not created by humans. Where a claim encompasses something that nature created, it cannot be eligible for patent, and fails under section 101.

Already, the patent lawyers have gone apoplectic, claiming that the Supreme Court is not qualified to make such decisions. The wailing and gnashing of teeth is certain to grow before it fades. Industry will not come to a halt, but science can flourish a little less hesitantly, secure in exploring nature and her truths without impinging upon some governmentally-created monopoly.

So what does this mean for gene patents, and the much anticipated AMP v. Myriad, Supreme Court showdown? Notably, Myriad had submitted an amicus brief in the case for the losing side. They know the implications of this decision for their practices and patents. Of course, I think the writing is on the wall. Breyer’s language is sufficiently broad and suggestive in the Mayo v. Prometheus decision to indicate that they will be very skeptical of claims by Myriad that “isolated” sequences, not created by man, but identified as existing in nature, are patent-eligible. Procedurally, the case is interesting because in late February everyone expected SCOTUS to either accept the appeal on certiorari, and reconsider the case, or reject the cert petition and let the CAFC decision stand. But nothing happened. Some speculated that they were booting it over to the Solicitor General, who had put in an amicus brief opposing Myriad, to change his mind. But perhaps there is a clue here as to what’s going on from the procedural history of Mayo. After the Bilski decision, SCOTUS kicked Prometheus back to the appellate court to reconsider the case in light of Bilski. They did that, and did so wrongly, upholding their previous decision, only to get overturned by a unanimous Supreme Court. Could SCOTUS now do the same with the Myriad case, and if they do, will the Federal Circuit once again ignore SCOTUS, make the wrong decision, only to get overturned, or will they actually try to apply the law of the land? Time will tell.

** UPDATE **

The Supreme Court has scheduled a meeting on the Myriad case for Friday, Mar 23. It seems likely, based on the Mayo v. Prometheus ruling that they will remand to the appellate court, or take the case up on cert. It seems highly unlikely that they would refuse cert outright. We should know by Monday.

How Hunger Games Benefited From Online Piracy

Jeffrey Tucker — Wed, 21 Mar 2012 00:40:53 +0000

So you want to see Hunger Games when it comes out on Thursday at midnight? It’s not likely that you will get the chance. Tickets in my community have been sold out for weeks. In fact, the first 10 showings of the film are sold out. This disappoints me greatly because it is one of the few teen flicks I’ve really wanted to see.

The whole phenomenon seems set to make the Harry Potter hysteria and the Twilight mania seem like warm-up acts. Ask around among teens, and you will hear this confirmed. This is a true example of mass frenzy. Actually, the whole thing seems like a modern “madness of crowds.” It’s “pandemonium,” as People magazine put it.

Both the plot line and the marketing genius have lessons for our time.

Based on a book by Suzanne Collins that came out in 2008, the film tells the story of an impoverished, totalitarian society in which rebellion among the subjects is punished by the creation of a killing game for mass entertainment. A teenage girl is put in the position to kill or be killed, but she cleverly plots to stand up to the regime by cooperating with her opponent. Together, they win the hearts of the crowd and bring the regime to its knees.

In other words, it is a story about personal freedom against a powerful state, a tale of courage and defiance in the face of power. The reviews by actual readers (versus professional critics) are over the top. It’s Amazon’s No. 1, and it has 4,000 reviews and counting. This is a phenom.

Aside from the plot line, there is something contemporary about the theme of sheer deprivation and survival. It sums up the way young people are looking at the opportunities they are being presented in these times. We aren’t playing hunger games yet, but when an entire generation is pretty sure that it will not fare as well as its parents’ generation, that’s not good. Life seems like the zero-sum game posited in the film.

The marketing guru behind the push — and don’t kid yourself, for everything needs marketing — is Tim Palen. He began his work three years ago. He used social media to the max. He had video and smartphone app games created. He tweeted constantly. He made puzzles based on finding pieces within Twitter. He worked on amazing posters and pushes of every sort. Not one day went by when he and his staff weren’t pushing some button. (He is also likely to lose his job after this but that’s another story.)

But here’s another thing to know about this. There is no point in marketing — and it certainly doesn’t work over the long haul — if the essential product isn’t good. You have to have both: good selling technique and something good to sell. Only then does the magic happen.

A number of media outlets have examined his strategy, and it is fascinating to see how it all unfolded, all based on the idea that this movie would work only if users themselves were empowered to spread the word. The experts and insiders were kept at bay. The kids were the targets, and they were the ones that the producers relied upon to make this happen. Such is the way stuff works in the digital age. The guys in the boardroom matter only once they figure out that they need to reach the kid on the street.

But in all the marketing roundups I’ve seen, I’ve seen no mention of what might in fact be the central thing that made this book and movie take flight. It came to me in talking to teens themselves. I asked many: Where did you read the book? The answer comes immediately: online. Online? How is that possible? I thought we were living in times when piracy was punished by death or something close to it.

Well, try this for yourself. I searched for “Hunger Games free online.” In about one second, I had access to the full text for all the books, in every format: PDF, doc, txt, rtf, html, and epub. Even audio. It is amazing. And following all these links I see search engines posting notes about how they have taken down many links based on the Digital Millennium Copyright Act. What this means is that there is at least some perfunctory effort to keep these books offline.

It’s not working. And thank goodness. These kids have become wild for this book and therefore dedicated to seeing the move, buying the shirts, and otherwise doing the whole teen-mania thing. True, the books are selling but, let’s face it, not every parent is willing to shell out money for their young teens to buy books about kids killing kids in a dark, dystopian world.

I’m speculating here but I suspect that a major reason for the insane success of these books and movies — easily the most spectacular teen freak out of our time — is that dread thing called piracy. That’s right, piracy. Except that it is not stealing to read something online. It takes nothing away from anyone. No physical property is stolen. Intellectual property is being shared, copied, duplicated, multiplied.

But wait just a minute. Isn’t the whole energy of the leviathan state swinging in to gear to stop this very thing, all in the name of saving private enterprise, even though the most successful book of our time is universally pirated like few things I’ve ever seen? That’s exactly right. And therein rests the amazing perversity of all this anti-piracy mania. The state is seeking to shut down the sharing of information, the very source that has given life to so much enterprise in our time.

Some authors are figuring this out. The remarkably successful writer Paulo Coelho writes on his blog: “As an author, I should be defending ‘intellectual property’, but I’m not. Pirates of the world, unite and pirate everything I’ve ever written! The good old days, when each idea had an owner, are gone forever.” You see, as a writer, he believes in ideas and he believes in his work and wants it to achieve a universal destination. He has also noticed that the more people read him, the more money he makes.

So get with it, writers and producers and publishers. Look at this case as just another one among thousands. Piracy is your friend. Only second-rate writers and publishers are hip to enlist the state to crack down on people’s desire to know more. You can’t succeed through blackmailing people to buy infinitely copyable products. Successful enterprise comes from giving people want they want, enticing the imagination, and finding ways to profit from people’s desires. You can’t achieve that by stringing people up.

Hunger Games has so much to teach the world: the power of the individual, the evil of the state, the wickedness of the zero-sum game. Maybe it can also teach us that a major initiative by the state today to end Internet piracy is also rooted in fallacy. Sharing information is not a zero-sum game; it is a market process, a joyful area of play in which everyone can win.

Mayo v. Prometheus: Natural Process + Known Elements = Normally No Patent

Stephan Kinsella — Tue, 20 Mar 2012 16:00:58 +0000

The US Supreme Court [sic] today held that the correlation between blood test results and patient health is not patentable (see Mayo Collaborative Services v. Prometheus Laboratories, Inc.). From the unanimous opinion (by Breyer) (h/t Skip Oliva):

We find that the process claims at issue here do not satisfy these conditions. In particular, the steps in the claimed processes (apart from the natural laws themselves) involve well-understood, routine, conventional activity previously engaged in by researchers in the field. At the same time, upholding the patents would risk disproportionately tying up the use of the underlying natural laws, inhibiting their use in the making of further discoveries.

Also discussed at Patently-O, in the post Mayo v. Prometheus: Natural Process + Known Elements = Normally No Patent. I continue to be amazed that Objectivists and other pro-patent libertarians think this can even possibly be squared with natural rights.

Copyright Math and the $8 Billion iPod

Stephan Kinsella — Mon, 19 Mar 2012 19:54:56 +0000

Insightful TED Talk: “Comic author Rob Reid unveils Copyright Math (TM), a remarkable new field of study based on actual numbers from entertainment industry lawyers and lobbyists.” (h/t John J from LA)

With humor and wit he mocks the ridiculous claims of Big Copyright.

The $8 billion iPod

Daily Bell Interview: Stephan Kinsella on the Logic of Libertarianism and Why Intellectual Property Doesn’t Exist

Stephan Kinsella — Sun, 18 Mar 2012 14:29:43 +0000

From The Daily Bell:

Stephan Kinsella on the Logic of Libertarianism and Why Intellectual Property Doesn’t Exist

Sunday, March 18, 2012 – with Anthony Wile

The Daily Bell is pleased to present this exclusive interview with Stephen Kinsella (left).

Introduction: Stephan Kinsella is a libertarian scholar and attorney in Houston. The Executive Editor of Libertarian Papers and Director of the Center for the Study of Innovative Freedom (C4SIF), he is Counsel/Treasurer of the Property and Freedom Society, serves on the Advisory Panel of the Center for a Stateless Society and is also a member of the Editorial Board of Reason Papers and of The Journal of Peace, Prosperity & Freedom [Australia]. He was formerly a partner with Duane Morris LLP, General Counsel for Applied Optoelectronics, Inc. and adjunct law professor at South Texas College of Law. Stephan has published many libertarian articles and books including Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe (co-editor, Mises Institute, 2009), Against Intellectual Property (Mises Institute, 2008; Laissez Faire Books edition forthcoming) and the forthcoming Law in a Libertarian World: Legal Foundations of a Free Society and Copy This Book (both Laissez Faire Books). Stephan’s legal publications include International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (co-author, Oxford University Press, 2005), Louisiana Civil Law Dictionary (co-author, Quid Pro Books, 2011) and several other legal treatises published by Oxford University Press, Oceana Publications and West/Thompson Reuters.

Daily Bell: Give us some background on yourself. Where did you go to school? How did you become a lawyer?

Stephan Kinsella: I was from a young age interested in science, philosophy, justice, fairness and “the big questions.” I ended up majoring in electrical engineering at Louisiana State University (LSU). This was the mid-1980s. I liked engineering but over time became more and more interested in political philosophy.

In the late ’80s I started publishing columns in the LSU student newspaper, The Daily Reveille, from an explicitly libertarian perspective. As my interests became more sharply political and philosophical, my girlfriend (later wife) and friends urged me to consider law school. After all, I liked to argue. I might as well get paid for it! I was by this time in engineering grad school. Unlike many attorneys I know, I had not always wanted to be a lawyer. In fact, it had never occurred to me until my girlfriend suggested it over dinner, when I was wondering what degree I could pursue next—partly in order to avoid having to enter the workforce just yet. And also to make more money. At the time I naively thought one had to have a pre-law degree and many prerequisite courses that engineers would lack; and I feared law school would be too difficult. I remember my girlfriend’s chemical engineer father laughing out loud at my concern that law school might be more difficult than engineering.

So I walked across the LSU campus one day and talked to the vice chancellor about all this. He tried to dissuade me, saying that engineering undergrads tended to find law school difficult. But he conceded that a pre-law degree is not needed; all one needs is a BS or BA in something. I took the LSAT and did well enough to get accepted at LSU Law Center. (In the US, law is a graduate degree, the Juris Doctor, which requires an initial B.A. or B.S. degree. Because of ABA protectionism. But I digress.)

I discuss some of this in my article “How I Became A Libertarian,” LewRockwell.com (December 18, 2002), also published as “Being a Libertarian” in I Chose Liberty: Autobiographies of Contemporary Libertarians (compiled by Walter Block; Mises Institute 2010).)

I actually greatly enjoyed law school. Unlike many of my fellow law students, apparently, who seemed in agony. I was free to talk about laws, rules, human action and interaction. Norms and opinions were relevant. I enjoyed the Socratic discussion method. In one sense, it was unlike electrical engineering, which studies the impersonal behavior of subatomic particles. In law, the subject matter is acting humans and the legal norms that pertain to human action. On the other hand, I found it similar to engineering in that it was analytical and focused on solving problems. It is less mechanistic and deterministic than is engineering but it is still analytical. So if you are the type of engineer who can shift modes of thought and who is able to write and speak coherently (not all engineers are), then law school is fairly easy. By contrast, many liberal arts majors are not used to thinking analytically. The first year of law school is meant to break their spirit and remold them into the analytical, lawyer-thinking, problem-solving mold.

In any case, I became a lawyer and do not regret it. It can be lucrative and mentally stimulating. In my own case, my legal career has complemented my libertarian and scholarly interests. As Gary North has pointed out, for most people there is a difference between career and calling. Your career or occupation is what puts food on the table. Your calling is what you are passionate about – “the most important thing you can do with your life in which you are most difficult to replace.” Occasionally they are the same, but often not; but there is no reason not to arrange your life so as to have both. In my case, my various scholarly publications and networks helped my legal career if only by adding publications to my CV. And my legal knowledge and expertise, I believe, has helped to inform my libertarian theorizing.

Daily Bell: You founded your own firm. Tell us how that came about.

Reading Books to Kids Violates IP, Obviously

Jeffrey Tucker — Sun, 18 Mar 2012 00:44:44 +0000

So says this Belgian rightsholder group.

The Lorax: Allegory on IP

Jeffrey Tucker — Sat, 17 Mar 2012 17:07:37 +0000

Anyone who read Dr. Suess’s “The Lorax” as a kid might dread the movie version. No one really needs another moralizing, hectoring lecture from environmentalists on the need to save the trees from extinction, especially since that once-fashionable cause seems ridiculously overwrought today. There is no shortage of trees and this is due not to nationalization so much as the privatization and cultivation of forest land.

And yet, even so, the movie is stunning and beautiful in every way, with a message that taps into something important, something with economic and political relevance for us today. In fact, the movie improves on the book with the important addition of “Thneed-Ville,” a community of people who live in a completely artificial world lorded over by a mayor who also owns the monopoly on oxygen.

This complicates the relatively simple narrative of the book, which offers a story of a depleted environment that doesn’t actually make much sense. The original posits an entrepreneur who discovers that he can make a “Thneed” — a kind of all-purpose cloth — out of the tufts of the “Truffula Tree,” and that this product is highly marketable.

Now, in real life, any capitalist in this setting would know exactly what to do: immediately get to work planting and cultivating more Truffula trees. This is essential capital that makes the business possible and sustainable through time. You want more rather than less capital. An egg producer doesn’t kill his chickens; he breeds more. But in the book (and the movie), the capitalist does the opposite. He cuts down all the trees and, surprise, his business goes bust.

The book ends with the aging capitalist regretting his life and passing on the last Truffula seed to the next generation. The end. However, the movie introduces us to the town that is founded after this depletion occurs. It is shielded off from the poisoned and depleted world outside, and oxygen is pumped in by the mayor who holds the monopoly on air and builds Lenin-like statues to himself. The people eventually rise up when they discover that “air is free” and thereby overthrow the despot, chopping off the statue’s head.

It was this line about how air is free that clued me in to the movie’s possible subtext. You only need to add one metaphor to see how this movie can be the most important and relevant political-economic drama of the season.

The metaphorical substitution is this: The Trees are Ideas.

Now, the action really begins. You can even see that the dazzling tufts of the trees look like how we might imagine that an idea looks. It is puffy, colorful, silky, and has the scent of “butterfly milk.” And of course the tufts are the essential capital that makes the business possible. The Thneed from which the tufts/ideas are made is useful for anything from wearing as a hat to functioning as a hammock. It’s sheer flexibility adds to the allegorical flavor.

Of course the trees are renewable just like ideas. You can draw from them but you dare not forcibly prevent access to them, much less kill them. And yet every time the axe slices through the trunk, the ideas are rendered non-renewable. The axes represent the state’s laws that introduce artificial scarcity into the non-scarce realm of ideas. Do this enough — and private businesses use the government’s laws to do this all the time these days — and you kill what gave rise to the business in the first place.

And in this case, the cooperation of the capitalists makes total sense. When a business uses “intellectual property” law to forcibly monopolize an idea — Apple’s touch screen, big pharma’s medicine formulas, a tune recorded by an industry mogul, a story printed by a big publisher — it is killing that idea for others to learn from and use. The idea is made non-renewable for a period of time dictated by the government. This introduces a propensity toward economic stagnation and decline. It might seem to make sense in the short run but in the long run, everyone suffers.

This is exactly what we see in the real world. Industries that are not cutting down the trees of ideas are flourishing. Fashion is innovative and dynamic. The cooking world shares recipes and techniques. The open-source software movement is innovating every day. In contrast, industries where IP is dominant are have a tendency toward monopolization and stagnation: pharmaceuticals, proprietary software, old-line publishers, for example. It is especially interesting to remember that one of the most controversial and hated monopolies of our time happens to be Monsanto’s patents on seeds.

In the movie, the results are put on display in the most compelling way. The town of Thneed-ville is stagnant. Nothing is growing, nothing is changing, nothing is truly alive. It is frozen and fixed, cartelized by a single mogul who provides everyone that essential thing: air. It is also a police state with inescapable surveillance. Tellingly, there is total unity between the owner of air and the state. It is the ultimate corporate state, and it has bamboozled everyone into thinking that this is just the way the world is supposed to work. They know of no better way.

This situation changes when a young boy discovers the truth about what happened to ideas. He finds out that they were once plentiful and provided all the life and energy that society needs to thrive and grow. He is given a single seed to a Truffula tree – and it represents the hope that the world of ideas could again come to exist and inspire the recreation of a thriving, dynamic, progressive, growing society.

So of course the mayor has to steal the seed that represents hope for ideas again. A massive chase ensues, and, in the course of it, the boy breaks down the wall between Thneedville and the darkness outside. It is enough for people to discover that air is not scarce but rather belongs to everyone. They begin to turn on the mayor and sing a great song and dance a dance in complete defiance.

As in real life, once the ruler has lost the confidence of his subjects, his rule is over. The seed is planted right in the middle of town, and the air monopoly is ended. Eventually the beauty and life of the world is restored.

There are wonderful lessons to this movie if rendered in this metaphorical way. Look at what we are doing to ourselves with the imposition and enforcement of the gigantic thicket of “intellectual property” that is taking over the world. It is like a huge thicket of thorns, and we can hardly move without getting stuck and stabbed. It is transforming the nature of the market, which needs ideas as we need oxygen, from a world of free exploration into one with billions of invisible cages. This is slowing down progress, killing creativity, monopolizing production in the hands of the rich and powerful, and even threatening the digital age itself.

The lesson is summed up in the incredibly inspiring anthem at the end:

We say let it grow
Let it grow
Let it grow
You can’t reap what you don’t sow
It’s just one tiny seed
But it’s all we really need
It’s time to banish all your greed
Imagine Thneedville flowered and treed
Let this be our solemn creed
We say let it grow

American ISPs to launch massive copyright spying scheme on July 12

Stephan Kinsella — Thu, 15 Mar 2012 20:20:21 +0000

From The Raw Story:

American ISPs to launch massive copyright spying scheme on July 12

By Stephen C. Webster
Thursday, March 15, 2012 11:14 EDT

If you download potentially copyrighted software, videos or music, your Internet service provider (ISP) has been watching, and they’re coming for you.

Specifically, they’re coming for you on Thursday, July 12.

That’s the date when the nation’s largest ISPs will all voluntarily implement a new anti-piracy plan that will engage network operators in the largest digital spying scheme in history, and see some users’ bandwidth completely cut off until they sign an agreement saying they will not download copyrighted materials.

Word of the start date has been largely kept secret since ISPs announced their plans last June. The deal was brokered by the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA), and coordinated by the Obama Administration. The same groups have weighed in heavily on controversial Internet policies around the world, with similar facilitation by the Obama’s Administration’s State Department.

The July 12 date was revealed by the RIAA’s CEO and top lobbyist, Cary Sherman, during a publishers’ conference on Wednesday in New York, according to technology publication CNet.

Using Patents to Thwart Competitors’ IPOs

Stephan Kinsella — Wed, 14 Mar 2012 04:42:20 +0000

Wired‘s Andy Baio reports that Yahoo has filed “a lawsuit against Facebook for allegedly infringing on 10 patents from their 1,000+ patent warehouse.” As Baio writes:

I’m no fan of Facebook, but this is a deplorable move. It’s nothing less than extortion, expertly timed during the SEC-mandated quiet period before Facebook’s IPO. It’s an attack on invention and the hacker ethic.

Read more>>

Of course, this is nothing new. It’s a typical strategy used by patent wielders. As I wrote in Ideas Are Free: The Case Against Intellectual Property:

[Patent lawsuits are] also used in connection with IPOs (initial private offerings) of companies. Quite often one competitor will hold on to its patent, wait until their competitor files their S-1 to go public, and then they’ll hit them with a patent lawsuit because this has to be disclosed in the IPO, and it can damage or scuttle the IPO.

For example, a company called Optium went public in late 2006 and the company Emcore sued them for patent infringement as soon as they filed their S-1.¹

In another very recent case, which is ongoing now, a company called Neophotonics, which has recently filed its S-1 — they’re not public yet — has been sued along with three other defendants by Finisar for patent infringement. What’s interesting about this is that one of the patent claims — I’ve reviewed these — that is being asserted covers “a system and method for protecting eye safety during operation of a fiber optic transceiver.” So, in other words, so that the engineers working on the lasers don’t get their eyes burned, there’s an alarm set if you have too much power going to it. It’s something that has been used for years; it’s a common idea. Patents are supposed to be “nonobvious,” by the way. This is not.

And, of course, each of these defendants has countersued Finisar with their own patents. Now you have literally millions of dollars being spent by these five companies on legal fees because of this patent suit.

Patents are nothing but anti-competitive invasions of property rights.²

Update: now Yahoo is asserting patents against Facebook to f*ck with its IPO.

Hobbit pub in Southampton threatened with legal action

Stephan Kinsella — Wed, 14 Mar 2012 04:08:48 +0000

According to a Facebook friend, “The same guy who sued John Fogerty for sounding too much like John Fogerty is now going after a 20-year-old pub in England.”:

Hobbit pub in Southampton threatened with legal action

Student Heather Cartwright: “Part of the wonder of this place is that you can come in and order a Gandalf”

Continue reading the main story

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A popular pub and music venue called The Hobbit has been threatened with legal action by US movie lawyers.

The Southampton pub has been accused of copyright infringement by lawyers representing the Saul Zaentz Company (SZC) in California.

The company owns the worldwide rights to several brands associated with author JRR Tolkien, including The Hobbit and The Lord of The Rings.

Landlady Stella Mary Roberts said: “I can’t fight Hollywood.”

The pub in Portswood, which is popular with students, has traded with the name for more than 20 years.

It features characters from Tolkien’s stories on its signs, has “Frodo” and “Gandalf” cocktails on the menu, and the face of Lord of the Rings film star Elijah Wood on its loyalty card.

A letter from SZC asked it to remove all references to the characters.

The company asserts it has “exclusive worldwide rights to motion picture, merchandising, stage and other rights in certain literary works of JRR Tolkien including The Lord of the Rings and The Hobbit”.

‘Absolutely stunned’

The Lord of The Rings films and the forthcoming adaptation of The Hobbit, made by New Line Cinema, have been licensed from SZC.

Read More>>

Center for the Study of Innovative Freedom

My reply to: “4 Ways Intellectual Property Drives our Economy”

The Economist: Copyright Is An Antiquated Relic That Has No Place In The Digital Ages

C4SS: The IP Wars as “Competition”

Judge.me, Private Arbitration and Intellectual Property

Hacking’s a snap in Legoland

Hacking’s a snap in Legoland

Washington Post on Patent Trolls, Software Patents, and Patent Reform

Where are the jobs? Ask the patent trolls.

By Vivek Wadhwa, Published: May 7

Kinsella Austrian AV Club Interview—Mises Institute Canada

Patent Trolls Are Preferable to “Practicing Entities”

Destructive Creation

Daniel Ravicher’s Google Techtalk: The Patent Pollution Problem: Its Causes, Effects and Solutions

How Intellectual Property Destroyed Men’s Shaving

Forbes: Apple (Mostly) Isn’t to Blame for the Patent Mess

Apple (Mostly) Isn’t to Blame for the Patent Mess

Americans for Tax Reform Uses Correlation Between Physical Property Rights and GDP to Argue for IP

Copyright Continues to Crumble; Ebooks Libertated from DRM; Gatekeepers Quake

Copyright Monopoly Lobby Sues Reputable Professor For Saying They’re A Monopoly

Free Pirate Party Book: The Case for Copyright Reform

USPTO/Commerce Dept. Distortions: “IP Contributes $5 Trillion and 40 Million Jobs to Economy”

Reason.TV: Too Much Copyright

Doug French: From Innovation to Rent Seeking

From Innovation to Rent Seeking

Software Industry Needs 2 Million Patent Attorneys and $2.7 trillion per year to avoid infringing software patents

Twitter Heroically Promises Not to Use Patents Offensively

Twitter Announces Innovator’s Patent Agreement To Limit Patent Use Lawsuits

Introducing the Innovator’s Patent Agreement

Tuesday, April 17, 2012

HuffPo: Patent Trolls Are Killing People — Literally

Web of Tech Patent Lawsuits [INFOGRAPHIC]

LibertariaNation [Italy] Interview with Kinsella on IP and Libertarianism

The Use of Free Software as Anti-Copyright Libertarian Activism

Patent Lawyers Who Don’t Toe the Line Should Be Punished!

from the not-at-all dept

The Most Visited Libertarian Websites

How much is that patent lawsuit going to cost you?

How much is that patent lawsuit going to cost you?

The Organization for Transformative Work

Our Mission

Our Vision

Our Values

Our Goals

Italian Libertarian IP Debate

Writing Without Copyright

In the News

The Writer’s Turn

The Big River (Apparently Full of Piranha)

The “Evils” of Amazon’s “Monopoly”

The Traditional Way

Where I Stand

About Christopher Gronlund

Indie Singer Uses Google+ Hangout to Give a Concert to Audience of 200,000

How Copyright Seems to Keep Books Unavailable and Unexploited: A Graph

Kinsella on The Corbett Report

Kinsella on Liberty Conspiracy

Patents Threaten To Silence A Little Girl, Literally

from the profit-motives dept

DHS Raids Home To Seize Deadly Hair Straighteners [Trademark]

Guest on the Corbett Report

Doug French: Freedom Through Technology

A Defiant Dude: “Eat More Kale” T-Shirt Designer Fighting Back Against Chick-fil-A’s Trademark Bullying

The Patent Religion suffers a blow: reading tea leaves on AMP v Myriad in the Mayo v. Prometheus decision by SCOTUS

How Hunger Games Benefited From Online Piracy

Mayo v. Prometheus: Natural Process + Known Elements = Normally No Patent

Copyright Math and the $8 Billion iPod

Daily Bell Interview: Stephan Kinsella on the Logic of Libertarianism and Why Intellectual Property Doesn’t Exist

Reading Books to Kids Violates IP, Obviously

The Lorax: Allegory on IP

American ISPs to launch massive copyright spying scheme on July 12

American ISPs to launch massive copyright spying scheme on July 12

Using Patents to Thwart Competitors’ IPOs

Hobbit pub in Southampton threatened with legal action

Hobbit pub in Southampton threatened with legal action

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