From the great Nina Paley, speaking at TEDxMaastricht.
From the great Nina Paley, speaking at TEDxMaastricht.
Reason and a group called “R Street” did some a panel discussing IP. The panel consisted mainly of tech/libertarian pundits who do not take a principled propertarian stance on IP, and talking a lot about areas most of them are not specialized specialized in. The panelists bat around various ideas about IP but never oppose it in principle, and never adduce good arguments for it, either. This kind of discussion only confirms my view that There are No Good Arguments for Intellectual Property. Here we have a situation where most libertarians are turning against IP and seeing how monstrous it is:1 Austrians, anarchists, Rothbardians, left-libertarians, tech-libertarians—and we a panel of mostly timid policy wonks.2 It’s good that most of them are skeptical of IP and want to rein it in, but none of them are IP abolitionists. They basically think IP has “gone too far”. Missed opportunity.
And it’s not impossible for mainstreamish/popular-format libertarian programs to do a good job—see, e.g., my Stossel show appearance from earlier this year, which at least features two hard-core, principled, libertarian opponents of IP (me and David Koepsell). At least on Stossel there were two people who know the law and have a principled, and libertarian, take on IP. Not so on the Reason/R-Street discussion. It’s a bit surprising, since in the past, there have been a couple of IP pieces at Reason that were pretty solid in opposing IP.
Libertarians have long been divided on the subject of intellectual property such as patents and copyright. Does natural law extend to intellectual property rights, just like “real property” rights? Or is IP just another government-granted monopoly that limits freedom?
The Progress Clause of the U.S. Constitution grants Congress authority to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” During the Constitutional Convention, this provision was adopted by an overwhelming vote and with little debate. But IP was much more limited at the nation’s founding than it is today.
In fact, copyright terms are now 580 percent longer than at the start of the 19th century and patents are now granted for software, designs, and business methods that don’t look anything like the traditional definition of “inventions.”
How should libertarians regard the current legal and regulatory framework and does it help or hinder progress in the digital age? And when considering reform, how can policymakers balance the interests of creators while limiting the potential for regulatory capture and industry-driven cronyism?
On October 8, 2015, R Street and Reason co-hosted a discussion on the pitfalls and merits of intellectual property at Reason’s DC offices. Joining the panel was Brink Lindsey of the Cato Institute, Wayne Brough of FreedomWorks, Eli Dourado of the Mercatus Center, and Sasha Moss of R Street Institute. The discussion was moderated by Reason’s Nick Gillespie.
Related: Check out Nick Gillespie and Matt Welch’s take on IP during “What’s Your Take on IP & Net Neutrality?” during Ask a Libertarian day.
Edited by Joshua Swain. Cameras by Swain and Todd Krainin.
About 26 minutes.
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I’ve discussed before the IP stances of various older libertarians, classical liberal, and anarchist thinkers on IP (see The Four Historical Phases of IP Abolitionism, The Origins of Libertarian IP Abolitionism, The Death Throes of Pro-IP Libertarianism). I keep trying to add to this list. I’ll supplement this post from time to time, but here is some of what I’ve collected.1 I’m omitting more recent libertarians such as Rand and Galambos. These are sorted chronologically (by date of birth). Good guys in blue (lighter blue for the ones that are semi-good). Bad in red.
The August 8–14 2015 issue of The Economist has a great couple of pieces basically calling for abolition—or at least radical reform—of the patent system. The first is the leader, “Time to fix patents“; the second is the longer piece, “A question of utility.” The leader notes that “in 19th-century Britain,” The Economist sided with free-traders in calling for the complete abolition of the patent system. As the longer article explains:
THE Great Exhibition, staged in London in 1851, was intended to show off the inventive genius of Victorian Britain. In doing so it sparked a hardfought debate on intellectual property. On one side were public figures horrified at the thought of inviting the whole world to see the nation’s best ideas, only to have most of it go straight home and copy them. They called for the patent system to be made cheaper and easier to navigate, and for the rights it conferred to be more forcefully upheld. These demands, though, were met with a backlash. Supported by economic liberals who had successfully fought for the repeal of the protectionist Corn Laws a few years earlier, this side of the debate argued that free trade and competition were good for the economy; that patents were a restraint on both; and that therefore patents should be not reformed, but done away with.
The Economist, founded by opponents of the Corn Laws, was an enthusiastic promoter of this abolitionist movement. A leader in our July 26th issue that year thundered that the granting of patents “excites fraud, stimulates men to run after schemes that may enable them to levy a tax on the public, begets disputes and quarrels betwixt inventors, provokes endless lawsuits [and] bestows rewards on the wrong persons.” In perhaps our first reference to what are now called “patent trolls”, we fretted that “Comprehensive patents are taken out by some parties, for the purpose of stopping inventions, or appropriating the fruits of the inventions of others.”
Arguing that patents “rarely give security to really good inventions” and fail at their job of encouraging innovation by rewarding inventors for their efforts, we backed the abolitionists in a debate over patent reforms then in Parliament. Our knockout argument: most of the wonders of the modern age, from mule-spinning to railways, steamships to gas lamps, seemed to have emerged without the help of patents. If the Industrial Revolution didn’t need them, why have them at all?
Today’s Economist cannot quite, clearly, explicitly, unambiguously call for abolition, despite framing some of the arguments for it, and even though its arguments for mere partial reform are confused and fall flat. Anyone reading these pieces will at first be nodding, “Yes, yes, I see—maybe they are right—time to do away with these government monstrosities”, only to be confronted near the end with a confusing and unpersuasive series of blacksliding arguments to the effect that “despite all these problems with patents, of course we need them in a few areas these two pieces indicate growing hostility to the idea of intellectual property and growing recognition that patents and IP are incompatible with the free market and property rights.
The “Austrian Economics Center,” which claims to advocate “the ideas of the Austrian School of Economics” and to promote “a free, responsible and prosperous society,” “has joined the Property Rights Alliance (PRA) in an open letter to WIPO Director Dr. Francis Gurry in support of strong protections for all types of IP”.
A letter from Barbara Kolm, the Center’s Director, announcing this, stated:
As we consider free markets and economic growth in Europe we must reflect on the importance of Intellectual Property (IP) rights. We strongly feel IP is key to fostering global innovation, creativity and competitiveness, particularly in today’s knowledge-based economy.
Risk is the lifeblood of creative and innovative economies. IP rights encourage entrepreneurs and creators to push for new advances and contemplate new creations in the face of adversity. Intellectual property is the engine of economic growth and competitiveness, and helps generate breakthrough solutions to global challenges.
In both the United States and European Union, IP-intensive industries support tens of millions of jobs and contribute trillions of dollars to annual GDP. For example, in the EU alone, IP-intensive jobs contribute to 26% of employment and 39% of GDP. Numerous studies have found that countries with strong IP protection programs have up to 13 times higher GDP than those that do not.
That is why we joined 85 think tanks and institutions globally in signing a letter to global leaders that articulates a framework and guidelines regarding intellectual property. As these issues are discussed in various forums around the world, these guidelines will be a helpful resource.
Advanced societies have long understood that by protecting the proprietary rights of artists, authors, entrepreneurs, innovators, and inventors, they are promoting greater public welfare. The continued protection of these fundamental rights is essential to global innovation, creativity and competitiveness.
The comment that “IP-intensive industries support tens of millions of jobs and contribute trillions of dollars to annual GDP” appears to be lifted from a ridiculous “study” by the Commerce Department that is transparently false and flawed—see USPTO/Commerce Dept. Distortions: “IP Contributes $5 Trillion and 40 Million Jobs to Economy”. As for her comment, “Numerous studies have found that countries with strong IP protection programs have up to 13 times higher GDP than those that do not.”—this makes the obvious error of confusing correlation with causation. (See Intellectual Property as a cause of American Prosperity?)
Also signing the letter are other supposed libertarian, free market, liberal, or Austrian groups, such as the F.A. v. Hayek Institute, Austria; Hayek Institute Romania; Ayn Rand Institute Europe (unsurprisingly); Libertarian Club Libek, Serbia; Liberty Forum of Greece; Italian Students for Individual Liberty; The Liberty Institute, India; Digital Liberty, USA; and many others.
To their credit, none of the Mises Institutes that are part of the Mises Global network, nor the Cato Institute, nor the Cobden Centre, signed this letter. Indeed, American groups seem under-represented on this list, perhaps because this letter concerns IP in Europe, and also perhaps because of the growing awareness over here among free market libertarians that IP is monstrous and utterly incompatible with liberal principles.
But it is especially distressing that the soi-disant Austrian groups (the Austrian Economics Center and the two aforementioned Hayek Institutes) are coming out explicitly in favor of IP, despite the fact that many prominent Austrians, such as Bohm-Bahwerk, Mises, Hayek, Rothbard, Kirzner, and Hoppe have expressed extreme skepticism or outright hostility to IP (or to the empirical/utilitarian approach implicitly being advanced here), plus a number of fellow travelers such as Plant, Machlup and Leonard Read. For example, see:
Intellectual Property is completely contrary to private property rights, free markets, competition, and liberal principles. All Austrian and free market/libertarian groups should strongly oppose IP, not promote it. If these institutions choose to be wertfrei that is fine, but then they should take no policy positions. Once they enter the field of making policy pronouncements they open themselves up to criticism in this arena. (On a slight tangent: as I concluded in New Rationalist Directions in Libertarian Rights Theory:
Under the three theories outlined above—argumentation ethics, estoppel theory, and the self-contradictions of rights-skeptics—we can see that the relevant participant in discourse cannot deny the validity of individual rights. These rationalist-oriented theories offer, in my opinion, very good defenses of individual rights, defenses that are more powerful, in a sense, than many other approaches, because they show that the opponent of individual rights, whether criminal, skeptic, or socialist, presupposes that they are true. Critics must enter the cathedral of libertarianism even to deny that it exists. This makes criticism of libertarian beliefs hollow: for if someone asks why we believe in individual rights, we can tell them to look in the mirror, and find the answer there.
“For Intellectual Property: The Property Ideas of Andrew J. Galambos,” by Richard Boren, was recently published in The Voluntaryist.
Many IP advocates get upset when you accuse them of holding the view that ideas are property—that they think there should be property rights in “ideas”. Nonsense, they say—they are only in favor of property rights in “logos” or “instantiated ideas” or “inventions” or “works of authorship” but the notion that they favor property rights in ideas is ridiculous, a straw man.
Not according to the Galambosian. He frankly admits: “I am in favor of treating ideas as property.”
A few comments. In Boren’s piece, he says: [click to continue…]
Nice article in The Freeman (from 2001) illustrating the pernicious effects of patents. Here, a patent on an early automobile design was used by the Association of Licensed Automobile Manufacturers (ALAM) to restrict competition in the auto industry. For a related episode, see Boldrin & Levine’s discussion of “how the Wright brothers used their patents to try to block the emergence of a US aircraft industry. Interestingly, this pattern of behavior continued. In 1972 the US government charged the aircraft industry with an antitrust violation, basically because they kept using their patent pool and cross licensing to prevent entry. IP-inefficiency at its best.” (ch. 4, Against Intellectual Monopoly).
Melvin Barger is a retired corporate public relations representative and writer who lives in Toledo, Ohio.
More books have been written about auto pioneer Henry Ford than any other person in the car business. Though he had critics, the judgment of history is that he put the world on wheels with his famous Model T. But less well known is the fierce independent streak that led him to wage a lone and heroic battle for the right to run his own business. It was a struggle against the kind of people who think they should have the power to determine what’s best for the rest of us. They were private businessmen, but they were also smug social planners who counted on the assistance of the state.
One of the persistent delusions nourished by social planners everywhere is that elitists in high places can divine who will be the winners and losers in any developing industry. Sometimes called “industrial policy,” this was touted as the secret of Japan’s economic success until that country’s fortunes went sour in recent years. Whether done by government officials or private firms with policing powers, any such planning is a bad idea.
But we don’t have to go to present-day Japan for proof of such failure. [click to continue…]
To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a Creative Commons Attribution 3.0 License is hereby granted.