“Let us stand on each other’s shoulders, instead of each other’s feet!”
From: Are “Intellectual Property Rights” Justified? (2000), by Markus Krummenacker
“Let us stand on each other’s shoulders, instead of each other’s feet!”
From: Are “Intellectual Property Rights” Justified? (2000), by Markus Krummenacker
A Thesis, from Brent Franklin, Philosophy Dept., Central European University, “The Case Against a Moral Right to Intellectual Property” (Budapest, 2013).
So some Randian, Gary “McGath,” who had published a weak semi-anti-IP article previously, “Patenting Software Threatens Innovation” (his utterly confused and totally useless article pontificates, “Software patents aren’t a necessity. Without patents, code can still be under copyright, protecting its authors from copying without compensation.” Brilliant, Gary, brilliant)—well, he submitted a pro-copyright article to FEE recently, his article “Is Copyright a Right?” As with all pro-IP arguments, it is confused and incoherent.1 As he wrote in his email begging FEE to publish him, “This article’s thesis is that copyright is a legitimate form of property, based on the same principles as the right to tangible creations. The libertarian case for copyright hasn’t had enough representation lately, and I’m hoping FEE will help to balance the debate by publishing this article.”
Obviously this guy is just another confused Randian who wants to find some way to justify some type of IP protection for his pet interest, software, sort of how Rand searched for a way to find animal rights because she loved her pet cat, Fluffball, or whatever she “Objectively” called it. (But at least, in the end, she had the grace to admit she couldn’t justify animal rights—yet, like most libertarian novelists, she twisted her theories to defend copyright. Because, you know, that’s how you live, man! You got to have protection from competition from the state, man!”)
This amateur, pro-IP, statist submission was rejected by FEE (no surprise, as the founder of FEE, Leonard Read, was naturally against IP) but, I figure, hey, I’ll have a conversation, a discussion, with anyone. So I email him to offer this. I say:
“Tucker told me you wanted to publish an article defending copyright (surprising to me since I believe you opposed software patents in the past). Would you like to have a discussion about it via Skype or phone—not a debate, just a discussion. If it’s not a trainwreck I could post it on my podcast. If you are not aware, I’m a leading libertarian legal theorist and the world’s leading IP policy theorist, and a practicing patent lawyer (also opposed strongly to all forms of IP). Also a semi-/former Randian.
If you’re talking about offering some money (writing is what I do for a living), sure, I’d be interested in talking about it. My cell number is __. I’ll be around this afternoon from 1 to 6 PM Eastern time.
My views on software patents and on copyrights are two very different things; I believe that copyright is the appropriate level of legal protection for software. My view on copyright is that it stems from the same principles as property rights in tangible objects, coming from a more or less Randian position.
So it’s amazing to me. This is how these Randroid morons think. If you don’t “pay me” I won’t “produce” “values.” They are so… predictable. When I am offering to give him free services valued in the hundreds per hour, plus free publicity. Typical Randroid. You just can’t make this shit up. They really think this way. Unbelievable.
If you’re talking about offering some money (writing is what I do for a living), sure, I’d be interested in talking about it.”
Oh, not at all. I was offering to give you maybe an hour of my time, which is valued at $600 by the market, to help tutor you and educate you, and also give you a bit of free PR, since I’m well known and have a popular podcast. I would never pay you–if anything you could pay me, but I would waive the fee, as a pro bono type gesture, as part of my libertarian activism.
“My cell number is __. I’ll be around this afternoon from 1 to 6 PM Eastern time.
“My views on software patents and on copyrights are two very different things; I believe that copyright is the appropriate level of legal protection for software. My view on copyright is that it stems from the same principles as property rights in tangible objects, coming from a more or less Randian position.”
Yes, I gather you are a Randian. Her views on IP are utterly confused and flawed—her worst mistake, worse even than her mistake on anarchy. I thought you might want to have a conversation about it, but apparently you think you need to be paid for this, so again, let’s forget it. It’s just that I’m always willing to take time pro bono to try to expose errors people have in thinking about IP—either for the benefit of the person I am talking to, or for the audience.
You do realize, by the way that FEE doesn’t pay for articles, so you were willing to have them publish your piece for free (if they would have accepted it, which they didn’t—maybe some indication of the value of strained defenses of the fascist idea of copyright in the name of “liberty”).
Please do not call me.
Um. As if I had offered (“threatened”?) to “call him”. I offered him my tutoring.
Sorry, Gary, you sad sack. My reply to this … upstanding citizen: “Ditto.” Hey, your loss, Randroid. Your loss.
Update: see also discussion on Facebook.
Property must be distinguished from monopoly. They are often conflated because they both involve exclusive rights. But they are importantly different. Property is an exclusive right to use a particular means. Monopoly is the exclusive right to use any means in a certain way.
Property is the exclusive right to use this boat, this paper, this trap, these speakers, thiscomputer, this plastic, or this aluminum.
Monopoly is the exclusive right to use any boat to trade with India, to use any paper to make playing cards in 17th century England, to use any trap to catch beavers in North America, to use any speakers to play “Happy Birthday,” to use any computer to deliver a podcast or download “Happy Birthday,” to use any plastic and aluminum to build a certain kind of washing machine.
Since it is an exclusive right to use any means in a certain way, intellectual “property” is not property at all, but monopoly. Intellectual “property” is therefore a misnomer, euphemistically used by state-privileged monopolists to drape their monopolies in the mantle of property.
The Innovation Argument
But doesn’t IP stimulate innovation by rewarding it? One hint that something is fundamentally wrong with the “rewarding innovation” argument for IP is that it could be used by any other monopolist. The prospect of a royal monopoly in trade with India may be said to stimulate a merchant company to open up trade with that country. Why do some economists favor IP monopolies, yet oppose mercantilist monopolies? Why stop with artistic, literary, and engineering innovators and their intellectual innovations?
The proprietor must ever be at war with the monopolist.
Indeed, why, in the modern era, do we not offer monopolies in business models and strategies to innovators? Why shouldn’t monopolies have been granted for just-in-time manufacturing or big box retailing? Sure, it would have impeded emulation, obstructed widespread adoption of these efficacious innovations, and kept them from benefiting consumers as much as possible. But, as monopolists might argue using the same line of reasoning as IP defenders, they might have been developed a little sooner if people thought that by developing such innovations, they could get a legal lock on them, and enjoy a long stream of monopoly profits.
Also, keep in mind that the “rewarding innovation” argument has been used by the biggest monopolist of them all, which itself begets all other monopolies: the State. It is often along this line of reasoning: “I was the first to clear this land of bandits and this sea of pirates. I am the first to fully provide defense with force to this land, and therefore I should henceforth have a monopoly of force.” Read, for example, Plutarch. Didn’t Theseus, by clearing the roads of highwaymen and monsters, demonstrate why he and his heirs deserve to rule Athens?
It is true that any prospective monopoly, including IP, might stimulate or accelerate the development of a certain innovation. But for every innovation a monopoly artificially boosts, it precludes, deters, and delays several more innovations: including (1) further innovations that the monopolist would have developed if he hadn’t been able to rest on his laurels, passively collecting his royalties or patent fees; (2) innovations that other creative people would have developed if they had been free to adopt and build off of the monopolized innovation; (3) any innovations that might have built off of innovations in categories (1) and (2); (4) any innovations that might have built off of innovations in categories (1), (2), and (3); and so on. Any institution that eliminates several good things for every one good thing it induces is a bad institution. [click to continue…]
See this interesting thesis by Mark Lemley, “IP in a World Without Scarcity” (abstract below).
In a recent Cato Podcast, Trademarks and Derby-Pie®, host Caleb Brown interviews Walter Olson about trademark law, with reference to a recent controversy where the Kentucky Derby was threatening restaurants from selling a “Derby Pie” (see NPR, What’s Inside A ‘Derby Pie’? Maybe A Lawsuit Waiting To Happen), and similar absurd situations such as the NFL using trademark law to coerce companies not to use the term “Super Bowl.”
Unlike many other libertarian groups, which are willing to condemn intellectual property as unlibertarian or at least feature thinkers who argue against IP, Cato routinely hosts panels, speeches, and publications that promote IP and rarely, if ever, features the anti-IP position,1 which is ironic given that former Cato scholar Tom Palmer was one of the early libertarian IP abolitionists.2
I was hoping this short podcast would condemn trademark law in general, as I have done,3 or at least condemn these uses of trademark as clear examples of abuse and injustice and as obviously incompatible with libertarian principles, as I have also done.4 But Olson nowhere clearly does either. Instead, he insinuates trademark law is an ostensible sensible policy (it’s not), and tries to explain some basic aspects of trademark law. Which is odd, for a libertarian institute; you would think it would make some comments about the policy aspects of IP. And not give a legal commentary on how the law works. Especially when the commentary is not especially illuminating or correct. Indeed, the comments about trademark and IP law are confused, perhaps not surprising as Olson doesn’t appear to be a trademark or IP law specialist.
First, Olson indicates that trademark holders can’t really be blamed for aggressively enforcing their trademarks (e.g. by sending out cease and desist letters to potential infringers, filing suit, etc.), since the way trademark law works, it “presses” them to be aggressive—since, if they do not enforce their trademarks, they might lose their trademark protection, for example by allowing it to become generic (as aspirin has become). However, if you hold a trademark and it becomes generic, you are still able to use it. It just means that others can too; you can’t stop them from doing so. So it makes no sense to say that you are forced by trademark law to threaten to sue people, merely to retain your right to sue them.
Second, Olson implies that it was clear to the Founders that unlike copyright, trademarks originally were limited geographically; it’s not clear why the Founders are invoked here, since they had nothing to do with trademark law. The Founders authorized Congress to enact patent and copyright law in the Constitution—but not trademark law. At the time of the ratification of the Constitution, trademark was protected in the common law by the states. Congress did not even attempt to enact the first federal trademark law until 1870. (I’d argue federal trademark law is unconstitutional precisely because there is no authorization for it; but courts rely on a broad reading of the Interstate Commerce clause to validate the law, since it purports to regulate trademarks for goods sold in interstate commerce—which is why state trademark law still exists, alongside federal trademark law.)
Third, Olson implies that copyright prevents an infringer from selling the work of someone else, “as your own.” I.e., that it merely is meant to stop some form of “plagiarism”—for example, if I were to try to sell John Grisham’s novel The Firm under my own name, as Stephan Kinsella’s The Firm, say. But copyright has nothing to do with plagiarism.5 For one, even if you accurately represent the name of the author—give credit, or attribution—copying another’s work is still copyright infringement. If I try to re-sell copies of Grisham’s The Firm under his name, you can be sure I’ll get sued. Plagiarism is irrelevant to copyright, and stopping plagiarism is not the purpose of copyright law. Stopping copying is, regardless of whether the real author’s name is used or not.
Olson characterizes trademark law as being aimed at stopping someone from confusing consumers by selling goods under the original manufacturer’s name. He indicates this is a type of “quasi-fraud.” Well either’s it’s fraudulent, or it’s not. If it is, then the guy selling fake goods to consumers is already covered by fraud law; there is no need for trademark law. It’s only redundant with fraud law. Further, in such as case, the consumer would be the one with the right to sue the knockoff provider, not the original manufacturer. But trademark law gives that right to the trademark holder, not to the allegedly defrauded consumers. Further, trademark law does not even require that a consumer be defrauded for the trademark holder to have a case against the infringer: “likelihood of confusion” is all that needs to be shown, not actual confusion (and not actual fraud or even likely fraud). So, even when the consumer is aware of the “fake” nature of the goods he is purchasing, and wants the fake goods (for example if you buy a fake Chanel purse for $20 to save money), and thus is clearly not defrauded or even confused, the trademark holder can still sue and have the knockoff items seized and destroyed, even though there are no victims of confusion or fraud, or even “quasi-fraud,” whatever that is. And finally, trademark law now doesn’t even require likelihood of confusion—in the US, the Federal Trademark Antidilution Act of 1995 “protects famous trademarks from uses that dilute their distinctiveness, even in the absence of any likelihood of confusion or competition.”
Thus, trademark law is totally unlibertarian, just as patent and copyright are—and for the same reasons that all reputation rights (defamation law, libel and slander) are illegitimate, as Rothbard long ago definitively showed.6 It would have been nice of Olson had realized and mentioned this.7
In this short and well-done video, libertarian and photographer Patrick Smith provides an argument against IP, explaining how he finally “saw the light” and realized that patent and copyright law are unjust and incompatible with property rights. Whereas he would previously become angry when people “took” his photographs and “used” them—especially, gasp, for profit!—he realized his arguments justifying his reaction were just emotional and finally came to see that there can be no just “intellectual property” rights; there can be no ownership of information.1
Smith rightly observes that all owned things are “media”—i.e. scarce resources. If you own a CD with musical data on it, the data is just the impatterning of the owned media. Likewise, if you own a plot of land (dirt), the farm you build on it is just the impatterning of that media. To give someone ownership of the pattern apart from the medium is to give them partial ownership rights in others’ media (scarce resources). I’ve made similar arguments myself before, as has Roderick Long. As I’ve noted: an object may be owned, and the object may have various features, characteristics, or properties, such as its weight, color, age, size, shape, and how it’s impatterned, but ownership of the object and whatever features it has does not imply that the owner independently or separately owns the features of the object. Information is always stored on and embedded in some ownable medium. The medium may be owned (like a piece of paper or a thumb drive or a machine configured in a certain way), but the properties of the medium may not. As Roderick Long has explained,2 owning the properties of objects that you own would be ownership of a universal, which would result in ownership of parts of everyone else’s already owned physical objects. Ownership of a red balloon would imply you own its “redness,” meaning you now own everything in the universe that has that redness, for example. (I discuss this in various recent lectures and interviews, but I can’t remember which ones precisely, offhand.)3 [click to continue…]
As an increasing number of libertarians nowadays are aware or sense, intellectual property is utterly incompatible with private property rights and libertarian principles. In fact, it is one of the most insidious and harmful of statist policies.1 Ever since the advent of the Internet, which has magnified the costs of IP and made them more apparent, causing libertarians to turn their attention thereto, more and more libertarians are coming to oppose IP. Virtually all anarchist-libertarians, left-libertarians, and Austrian libertarians, and a growing number of minarchists, oppose IP, and in increasing numbers.2
Yet there remain stubborn holdouts: primarily Randians, older generation minarchists, novelists and other authors who think their livelihood depends on copyright, and a few others financially dependent on IP who want to preserve their gravy train. Some libertarian think tanks, like the Mises Institute or FEE, are anti-IP or at least feature anti-IP writers. But other libertarian think tanks continue to cling to IP in one form or another, either defending it, or having endless panels and conferences about how to “reform” IP, but never to abolish it. For example, see the recent Cato event Intellectual Property and First Principles, featuring four panelists, two strongly in favor of IP and none calling for IP abolition (despite the fact that IP abolition pioneer Tom Palmer is a former Cato guy). The Independent Institute is another libertarian think tank that seems to never feature anti-IP writers, only defenders of IP. For example, as I’ve noted before, Independent Institute senior fellow William Shughart, in “Ideas Need Protection: Abolishing Intellectual-property Patents Would Hurt Innovation: A Middle Ground Is Needed,” has embarrassingly argued:
Granting a temporary monopoly to the rare breakthrough is necessary, therefore, to provide its inventor with an opportunity to earn a return on the investment that led to the new idea – and to encourage additional such investments. Such protection is especially important in the pharmaceutical industry, where, in its absence, new drugs could be duplicated by competitors, and the incentive to invest would disappear, stifling the discovery process.
To paraphrase the late economist Joan Robinson, patents and copyrights slow down the diffusion of new ideas for a reason: to ensure there will be more new ideas to diffuse.
And in the Winter 2015 issue of the Institute’s journal, Independent Review, we have a pro-patent article, Seeking the Patent Truth: Patents Can Provide Justice and Funding for Inventors, by Arthur M. Diamond Jr.
And now we have yet another pro-IP piece from II, “The Benefits of Intellectual Property Protection,” by John R. Graham (Feb. 15, 2016). Graham writes:
If there is one thing about which libertarians are never likely to agree, it is whether intellectual property—patents, copyrights, trademarks, and trade secrets—should receive the same legal protection as physical property.
This is simply a false assertion. As noted above, libertarians are now predominately anti-IP and more and more of us move in this direction. This in fact seems to be one issue that we are in fact likely to agree on, unlike, say, abortion or minarchy. In my own libertarian lifetime I can hardly recall seeing such progress on a previously murky or contested issue.
Without wading too deep into the philosophical debate, but showing my colors as an IP advocate, let me share some new research published by the U.S. Chamber of Commerce’s Global Intellectual Property Center (GIPC) on the benefits of legal protection of intellectual property.
In just one sentence, there are least three things to comment on. First: how can one comment on a supposedly contested libertarian normative issue, while explicitly refraining from engaging in “the philosophical debate”? Sounds like trying to have one’s cake and eat it too—or an abdication of responsibility. One should not weigh in on such an important issue, taking a normative position, without taking or having an argument for a normative or philosophical stance. Second, the author admits he is an IP advocate—though he doesn’t say why (perhaps because of his connections to medical/pharmaceutical industries, which are typically strongly anti-competition, I mean, pro-patent). One can only imagine he thinks his bread is buttered somehow by the IP system. That may be well and good, but it is not an argument. I’m an IP lawyer but I oppose IP, so it is possible to have some integrity. Third: he just launches into “research” as if this is how this issue is to be decided. Not everyone is a utilitarian or empiricist, nor do all of us trust data from advocacy groups.
Graham then launches into a discussion of the U.S. Chamber of Commerce’s “research.” This reminds a bit of the utterly bogus US Commerce Department report “Showing Intellectual Property-Intensive Industries Contribute $5 Trillion, 40 Million Jobs to US Economy”.3 This argument, of course, 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.
Regarding the U.S. Chamber of Commerce study, Graham says:
Published on February 10, Infinite Possibilities ranks 38 countries by 30 indicators of strength of IP protection. The indicators measure both law and enforcement: Countries which do not enforce IP rights, despite the letter lf the law, are marked down. Most of the indicators are straight forward: Longer patent, copyright, or trademark terms are better; strong enforcement mechanisms are better; and treaty obligations protecting intellectual property invented in other countries are better.
The report does not attempt to determine causality between strong IP protection and social or economic outcomes. Indeed, 30 indicators are likely far too many to use for such an analysis. Nevertheless, the report does determine a number of positive correlations between strong IP protection and a number of other beneficial indicators. For example, the correlation between countries’ scores and
- access to venture capital is 0.81;
- number of researchers in research and development is 0.80;
- access to the latest technologies is 0.83;
- access to video-on-demand and streaming TV is 0.64;
- private sector spending on research and development is 0.75;
- share of workforce in high-value, knowledge-intensive services.
I could go on, but I am sure you get the drift. Some libertarian critics complain that IP protection is the result of innovation, not its cause; and the legal framework is a consequence of rent-seeking rather than the government’s desire to promote innovation.
This chicken-and-egg question may be beside the point: It is very difficult to envision innovation continuing at the current rate if innovative industries lose the protections for which they advocate. Infinite Possibilities shows there are no innovative and prosperous countries today that do not have strong IP protections.
One’s jaw has to drop at how bad this argument is. Graham admits that the “report does not attempt to determine causality between strong IP protection and social or economic outcomes.” But, it “does determine a number of positive correlations between strong IP protection and a number of other beneficial indicators.” In other words, he admits that the report does not attempt to show causality, that it only shows correlation. Yet then he simply asserts, “It is very difficult to envision innovation continuing at the current rate if innovative industries lose the protections for which they advocate.” Um. But this is the pro-IP premise, which is simply not supported by the study, since it does not even purport to demonstrate causation.
As for this being a “chicken-and-egg” question: not so. As I have noted, the empiricist-utilitarian approach is unprincipled and bankrupt. But, given the available evidence, anyone who accepts utilitarianism should be opposed to patent and copyright.4
In any case, what do these weird “arguments” for IP have to do with liberty, human freedom, private property rights, and the rule of law? So what if a certain government policy might “promote innovation”? Since when was that the purpose of law, justice, and property rights? Utilitarian libertarians just launch into discussions about empirical benefits of various state policies, as if that is relevant to justice. These libertarians have lost their mooring, and their principles.
The Independent Institute should be ashamed for repeatedly promoting the evil, statist idea of intellectual property—especially in the name of liberty and free markets.
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.