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Bastiat on Value, Scarcity, Property

From Economic Harmonies, ch. 5, “On Value”:

If the reader so desires, he can easily think up for himself other examples of this kind that will convince him that value is not necessarily commensurate with the amount of effort expended. This is a remark that I throw out here in anticipation of later discussion, for I expect to prove that value no more resides in labor than it does in utility.


Nature has seen fit to make me in such a way that I should die if I did not quench my thirst from time to time; and the spring to which I must go for water is two miles from my village. Therefore, every morning I must take the trouble of going after my little supply of water, for I find in water those useful qualities that have the power to assuage that type of suffering known as thirst. Want, effort, satisfaction—they are all there. I am familiar with the utility I derive from this act; I do not yet know its value.


However, suppose my neighbor also goes to the spring, and I say to him, “Spare me the trouble of making this trip; do me the service of bringing me some water. While you are so engaged, I will do something for you; I will teach your child to spell.” It happens that this suits both of us. This is the exchange of two services, and we can say that the one is equal to the other. Note that what is compared here are the two efforts, not the two wants or the two satisfactions; for on what basis can we compare the relative merits of having a drink of water and learning how to spell?


Soon I say to my neighbor, “Teaching your child is becoming a bore; I prefer to do something else for you. You will continue to bring me water, and I will give you five sous.” If the offer is accepted, the economist may say without fear of error: The service is worth five sous.


After a while my neighbor no longer waits for me to ask him. He knows, by experience, that I need to drink every day. He anticipates my want. And while he is at it, he provides water for other villagers. In a word, he becomes a water-seller. Then we begin to put it this way: Water is worth five sous.


But has the water really changed? Has the value, which so recently was in the service, now become a material thing, a new chemical element added to the water? Has a slight change that my neighbor and I made in our arrangements been powerful enough to upset the principle of value and alter its nature? I am not so pedantic as to object to saying that water is worth five sous, any more than to saying that the sun sets. But we must realize that both are examples of metonymy; that metaphors do not alter facts; that scientifically, since, after all, we are dealing with a science, it is no more true that value is contained in water than that the sun sets in the sea.

What’s the relevance? Well IP advocates implicitly or sometimes explicitly claim that human action “creates value”—value, as some disembodied thing, an “ontologically” existent substance or ownable thing, which can have an “owner.” They implicitly accept variants of the Marxian labor theory of value because of the error of accepting the labor theory of property. They conceive of labor as an ownable substance, like jam, which, when spread on unowned bread, makes the bread the property of the jam-owner (nevermind that the bread before having jam spread on it is not unowned; this is analogous to the fact that the production of valuable goods simply involves rearranging them to make them more valuable. Production means rearrangement, not creation ex nihilo; rearrangement requires prior ownership of the raw materials that are transformed; they are owned because they were owned already, prior to the labor and transformation. That is, creation is not a source of ownership, contra the confused views of the labor theory of property proponents).




My comments on a Facebook post about this ars technica article, Anti-patent-troll ads launch on radio and in print in 15 states:

Sigh. The problem is never addressed, even by these people. Even if Congress were to somehow get rid of “bad patents” (which is impossible, as the patentability standards are inherently vague and administered by a necessarily imperfect bureaucracy) and to get rid of “trolls” by requiring all patent law suits to be asserted by a patentee who is actually “working” his patent (making an actual product that his own patent claims), and even if Congress were to eliminate software patents (which is difficult to do)—and there is zero chance Congress will do any of these things—it still would hardly put a dent in the real problem.

Here’s why. First, even though it’s expensive to defend against patent lawsuits even if it’s a “bad patent,” at least there is a good chance of winning in such cases. But not all lawsuits from trolls are based on “bad patents”. Many patents asserted by trolls are perfectly valid, under PTO rules. For such patents, there is no defense. However, at least the troll only wants money. If a non-troll—like, a competitor—asserts the patent against poor mom and pop, often they want to seek an injunction to prevent mom/pop from continuing to sell the offending item.

Nor are all “bad patents” asserted by trolls. As noted, often they are asserted by a competitor or a company selling the patented product and keen to protect its monopoly turf.

And even if we got rid of all bad patents, and required all patent lawsuits to be asserted by so-called “practicing entities”: still, mom & pop would face the threat of harsh lawsuits from competitors or other practicing entitied, based on strong patents, i.e. those that cannot be invalidated in a lawsuit. Here, the problem is an existential one faced by the patent victim; it is not a mere royalty that the predator wants, they want to shut down their competition. It is not mere legal fees that is the problem: the problem is that even if you spend a billion dollars on the best lawyers, you’ll still lose—just like some kid caught red-handed selling cocaine is likely going to prison, no matter how much money mommy and daddy pay to white shoe defense attorneys. The problem is not that it’s hard to find good defense attorneys; the problem is the law itself is unjust.

If we reduce the trolling problem and the “patent quality” problem, and even if we reduce software patents, we do nothing to stop the real problem: “good” patents, asserted by non-trolls.

ALL THAT SAID: I am not opposed to incremental reform (see How to Improve Patent, Copyright, and Trademark Law). I just think we should be honest about its significance and not lose sight of the real meat of the issue. I would be in favor of some limitations as proposed by these groups, futile and minor as it might be. To my mind, this would be analogous to the feds announcing that henceforth all midnight drug raids would be double-checked by a second secret federal court to minimize the change of busting into the wrong residence in a drug raid. It would be analogous to a “taxpayer bill of rights” that does not lower the tax rates, but that gives the accused tax evader another layer or two of procedural wrangling the state has to go through before jailing him. It would be analogous to civil asset forfeiture reform that says the state can keep assets it seizes for no more than 10 years without a hearing. Etc. A slight improvement, maybe, but … thin gruel. Meh.

For related posts, see:


Fetz: My Journey in the World of Copyrights

From Joe Fetz’s blog:

My Journey in the World of Copyrights

The issue of Intellectual Property (IP) is a very contentious one in libertarian circles and indeed between differing political philosophies, not all parties seem to agree on whether such a system could exist in a free society or whether such a system is just in the first place. Admittedly, it wasn’t an issue that I had put much thought into until I began reading some of Stephan Kinsella’s work, which eventually converted me to being an anti-IP advocate. While it is great to study and to understand the theoretical positions for or against IP, it is quite another thing to actually experience such a system first hand in the practical sense. Fortunately or unfortunately, I recently had the privilege of that experience.

I am a multi-instrumentalist who also has a love and knack for production. My idea was simple: I’m going to produce something. So I decided that I would perform and record a full cover of a song and also produce an original video to accompany it, and then I would post the whole thing on the internet. Since I am not planning on monetizing this project I figured that I wouldn’t need to worry about copyright or licensing, but I soon realized that I was being quite naive.

Read more>>


Of Dice And Men: IP, Open Source and Dungeons and Dragons

In this interesting interview on KERA Think, with the author of a new book on Dungeons and Dragons, the author observes that in the early years of D&D, the publisher was aggressive in suing fans who published modified versions of the D&D rules (presumably using either copyright or trademark law as the weapon of choice), but that in the early 1990s, under new ownership, following the lead of the open software movement, D&D made the rules “open source” and permitted fans to publish variations, which ended up making the game flourish and spread, and helped sustain and keep it alive (approx. 27:30-29:40). Yet another example of how the open approach (and lack of IP enforcement) is better even for the creator.

Of Dice And Men

August 21, 2013

Hour 2:           Where did Dungeons and Dragons come from, and how did it spawn a generation of gamers? We’ll track the rise of fantasy role-playing this hour with Forbes writer and D&D player David Ewalt, who explains why people love the game in his new book “Of Dice and Men: The Story of Dungeons & Dragons and The People Who Play It” (Scribner, 2013).

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Lionel Robbins on the Patent Monopoly

The following passage on patents, by Lionel Robbins, was called to my attention by Jeff Tucker. This is from Robbins’s 1939 book The Economic Basis of Class Conflict and Other Essays in Political Economy, Part I, “The Interests of Groups and the Interest of Society,” chapter III, “The ‘Inevitability’ of Monopoly,” Section (4), “The Causes of ‘Spontaneous’ Monopoly.” Bold added:


It is now time to dig rather deeper. So far our analysis has been confined to asking whether, in the absence of direct authoritarian restriction of competition, the sphere of monopoly is ubiquitous; and it has appeared that this is certainly not the case. In surveying the various types of production, we have found areas of competition and areas of monopoly; but there can be little doubt that on any quantitative test, such as proportion of world population employed or value of output produced, the competitive area would be considerably the larger. We have, however, found much monopoly which, directly at any rate, has not been deliberately imposed by state action, and if we are properly to appreciate its significance and to assess propositions concerning its inevitability, it is necessary to enquire further concerning its origin. We must enquire concerning the causes of monopoly.

Now the desire for monopoly is more or less general. Monopoly means higher gains, less effort, more security than competition. There are few men who do not covet such a position or who, if they see a chance of achieving it, deliberately refrain from making the attempt. “People of the same trade”, said Adam Smith, “seldom meet together, even for merriment and diversion but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.”1  The representatives of the modern trade associations may say that they have changed all that. But the reasons they adduce are slender; and their actions belie their claims.

But it is one thing to want monopoly. It is quite another thing to be able to achieve it. If producers are able to induce governments deliberately to prohibit competition, well and good. But if this fortunate event does not occur, it is only under certain conditions that the attempt to secure monopoly is likely to be successful. The world is a wide place. The gains of monopoly are tempting to outsiders. Fortunately for the rest of humanity, there is usually a plentiful supply of would-be interlopers and blacklegs. Combinations which are not enforced by the sanction of the state are in danger of breaking down. To understand the continuance of monopoly, therefore, we have to enquire what are the conditions which conduce to its survival. We have to ask to what extent these conditions can be regarded as natural, to what extent they are the indirect result of policy.

(i) We may start with conditions which are obviously “natural”. If the supplies of any natural resource are concentrated in one place, or in a small number of places, it is easy for them to gravitate into the hands of one control or of a very limited number; and there is a strong incentive to action which will bring this about. We have seen already that this is the case in certain extractive industries. One can easily conceive of worlds in which the physical constitution of the planet would give rise to widespread monopoly of this type. But in our own, while such conditions are important in certain narrow lines, in modern times, they have not been responsible for any but a small fraction of the area of “spontaneous” monopoly.

(ii) Somewhat similar, and probably quantitatively much more important, is the influence of costs of transport. We have seen that position in space may, in certain circumstances, be regarded as constituting a unique source of supply. Even where exact position is not of great importance, in areas where demand is small, single units of supply — local shops or brickworks for example — may have positions of monopolistic power. It is important to observe that the extent of this power will depend essentially upon costs of transport from other areas. The middle ages must have been honeycombed with this kind of monopoly; and the deliberate restriction of transport development on the roads in our own time must be regarded as a factor tending to sustain it where it still persists. The lower the cost of transport, the less the danger of local monopoly. [click to continue…]

  1.  Wealth of Nations (Cannan’s Edition), vol. i, p. 158.  [Note: the next two sentences rarely accompany a quotation of the first: Smith goes on to say: "It is impossible indeed to prevent such meetings, by any law which either could be executed, or would be consistent with liberty and justice. But though the law cannot hinder people of the same trade from sometimes assembling together, it ought to do nothing to facilitate such assemblies; much less to render them necessary". —SK]  []

Are Patents and Copyrights “Monopolies”?

From my Mises blog post from 2009, with some updates:

Are Patents “Monopolies”?

JULY 13, 2009 by 

On occasion you get some defender of patents who is upset when we use the m-word to describe these artificial state-granted monopoly rights. For example here one Dale Halling, a patent attorney (surprise!) posts about “The Myth that Patents are a Monopoly” and writes, ” People who suggest a patent is a monopoly are not being intellectually honest and perpetuating a myth to advance a political agenda.”

Well, let’s see. First, see my post Epstein and Patents, noting that the pro-patent Epstein writes:

Patented goods are subject to a lawful monopoly created by the state in order to induce their creation. No one thinks that new pharmaceutical drugs will be invented by private firms that cannot receive a rate of return sufficient to recover [various costs]. … The legal monopoly granted by the patent is the only mechanism that allows the producer to recover those fixed costs….

Is the pro-patent Epstein being dishonest?

And see my comments (12) on The Three Stages of Invention post, excerpted below:First, as to whether patents are monopoly grants–hell, even the feds admit this: “Section 154 and related provisions [e.g. Sec. 271] obviously are intended to grant a patentee a monopoly only over the United States market….” U.S. Supreme Court, Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518 (1972). See also: King Instr. v. Perego, by the Court of Appeals for the Federal Circuit (“Congress made the policy choice that the “carrot” of an exclusive market for the patented goods would encourage patentees to commercialize the protected inventions so that the public would enjoy the benefits of the new technology during the patent term in exchange for granting a limited patent monopoly. In other words, the public expected benefits during “‘the embarrassment of an exclusive patent as Jefferson put it.’” Graham v. John Deere Co., 383 U.S. 1, 10-11 (1966).)

See also Engel Ind. v. Lockformer Co. (“We hold that the disputed royalties provisions do not inappropriately extend the patent monopoly to unpatented parts of the patented system”); Carborundum Co. v. Molten Metal Eq. Co. (“A patentee, in demanding and receiving full compensation for the wrongful use of his invention in devices made and sold by a manufacturer adopts the sales as though made by himself, and therefore, necessarily licenses the use of the devices, and frees them from the monopoly of the patent.”)

And: Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947):

The Florida statute is aimed directly at the promotion of intellectual creation by substantially restricting the public’s ability to exploit ideas that the patent system mandates shall be free for all to use. Like the interpretation of Illinois unfair competition law in Sears and Compco, the Florida statute represents a break with the tradition of peaceful coexistence between state market regulation and federal patent policy. The Florida law substantially restricts the public’s ability to exploit an unpatented design in general circulation, raising the specter of state-created monopolies in a host of useful shapes and processes for which patent protection has been denied or is otherwise unobtainable. It thus enters a field of regulation which the patent laws have reserved to Congress. The patent statute’s careful balance between public right and private monopoly to promote certain creative activity is a “scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.”

Brenner v. Manson, 383 U.S. 519 (1966):

Whatever weight is attached to the value of encouraging disclosure and of inhibiting secrecy, we believe a more compelling consideration is that a process patent in the chemical field, which has not been developed and pointed to the degree of specific utility, creates a monopoly of knowledge which should be granted only if clearly commanded by the statute. Until the process claim has been reduced to production of a product shown to be useful, the metes and bounds of that monopoly are not capable of precise delineation. It may engross a vast, unknown, and perhaps unknowable area. Such a patent may confer power to block off whole areas of scientific development, without compensating benefit to the public. The basic quid pro quo contemplated by the Constitution and the Congress for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility. Unless and until a process is refined and developed to this point — where specific benefit exists in currently available form – there is insufficient justification for permitting an applicant to engross what may prove to be a broad field.

Diamond v. Chakrabarty, S.Ct. (1980), Brennan’s dissent:

I agree with the Court that the question before us is a narrow one. Neither the future of scientific research, nor even the ability of respondent Chakrabarty to reap some monopoly profits from his pioneering work, is at stake. Patents on the processes by which he has produced and employed the new living organism are not contested. The only question we need decide is whether Congress, exercising its authority under Art. I, 8, of the Constitution, intended that he be able to secure a monopoly on the living organism itself, no matter how produced or how used.

Now you can argue that patent holders do not necessarily have “monopoly power” (see The Importance of Patents for Economic Development – 1999, by Prof. William Hennessey), but as Rothbard et al. have pointed out, the government’s concept of monopoly is flawed; the only issue that matters is whether there is a legal monopoly granted. See, e.g., Hoppe, A Theory of Socialism and Capitalism, ch. 9, pp. 185-86:

The monopoly problem as a special problem of markets requiring state action to be resolved does not exist. In fact, only when the state enters the scene does a real, nonillusory problem of monopoly and monopoly prices emerge. The state is the only enterprise whose prices and business practices can be conceptually distinguished from all other prices and practices, and whose prices and practices can be called “too high” or “exploitative” in a completely objective, nonarbitrary way. These are prices and practices which consumers are not voluntarily willing to pay and accept, but which instead are forced upon them through threats of violence.

See also Rothbard, Man, Economy, and State (with Power and Market): “The only viable definition of monopoly is a grant of privilege from the government.”

Now it is, indeed, clear that a patent is a monopoly grant to someone that permits them to charge above-market prices; this is exactly the goal of the patent law: to provide this monopoly profit to inventors so as to incentivize them to innovate and file for patents. And it is why, for example, Blackberry paid over $600 million to NTP in a recent patent suit; and it is why consumers will have to pay more for Blackberry services than they otherwise would, etc. Did NTP have “monopoly power” as defined by the government’s antitrust scheme? I don’t know. Probably not. But did they extort RIM/Blackberry by use of the government-granted patent monopoly? Of course.

See also Arnold Plant, The Economic Theory Concerning Patents for Inventions, sections 16, 19, 20, 24:

The patent system may, on the one hand, be expected to affect the making of inventions in two ways. The first is to divert inventive activity into those fields in which the monopoly grant will be expected to prove most remunerative. It may, secondly, affect the total amount of inventive activity.

… the utilitarians assumed that the patent system was responsible for the greater part of inventing activity. The question which they one and all failed to ask themselves, however, is what these people would otherwise be doing if the patent system were not diverting their attention by the offer of monopolistic profits to the task of inventing. By what system of economic calculus were they enabled to conclude so definitely that the gain of any inventions that they might make would not be offset by the loss of other output? By no stretch of the imagination can the inventing class be assumed to be otherwise unemployable. Other product which is foregone when scarce factors are diverted in this way completely escaped their attention.

… at the beginning of this century Professor J. B. Clark was still writing: “If the patented article is something which society without a patent system would not have secured at all – the inventor’s monopoly hurts nobody… His gains consist in something which no one loses, even while he enjoys them.”? No inkling here that the patent inducement to invent diverts scarce human effort from other production, and that the subsequent exploitation of patents again interferes with the disposition of scarce factors which would obtain under competitive conditions.

… It seems unquestionable not only that a very considerable volume of inventive activity must definitely be induced by price conditions, but also that that activity is diverted by price movements from other types of endeavour as well as from other fields of invention. Entrepreneurs faced with new difficulties or with new opportunities will divert not only their own attention, but that of every technician who can be spared, from the business of routine production to that of urgent innovation. They will not rely exclusively upon those types of professional inventors whose autonomous output pours out in a stream of unvarying size, and some of whom may be prepared, in return for the inducements which the entrepreneurs can offer, to transfer their spontaneous activity to their service. It cannot be assumed that all who are capable of innovation spend their whole lives in inventing. Many of them are also able administrators and production controllers; some in the past have been clergymen and barbers, and in our own time there is a steady flow of technicians from the research laboratories of pure science into those of industrial invention and out again. … The patent system … enables those who “have the monopoly of the right to use a patented invention to raise the price of using it … and in that way to derive a larger profit from the invention than they could otherwise obtain. The effect must surely be to induce a considerable volume of activity to be diverted from other spheres to the attempt to make inventions of a patentable type. [emphasis added]

See also Rothbard, Man, Economy, and State, ch. 10, sec. 7:

It is by no means self-evident that patents encourage an increased absolute quantity of research expenditures. But certainly patents distort the type of research expenditure being conducted. . . . Research expenditures are therefore overstimulated in the early stages before anyone has a patent, and they are unduly restricted in the period after the patent is received. In addition, some inventions are considered patentable, while others are not. The patent system then has the further effect of artificially stimulating research expenditures in the patentableareas, while artificially restricting research in the nonpatentable areas.

Update: See “Ideas Need Protection: Abolishing Intellectual-property Patents Would Hurt Innovation: A Middle Ground Is Needed,” by William F. Shughart II, a senior fellow with the Independent Institute, The Baltimore Sun (Dec. 21, 2009):

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.

Update: It is interesting to note that one of the first patent statutes was England’s Statute of Monopolies of 1623.

Update: New York Law School professor Beth Noveck, quoted in an article on improving the U.S. patent system, admits: “A patent is a pretty significant monopoly, so we want to make sure we are giving it to the right people.”

Update: See my post IP Rights as Monopolistic Grants to Overcome the Public Goods Problem.

Update: As I note in Canada’s Founders Debated Justification for Patents, Canadian Sen. Jean-Charles Chapais, the agriculture minister, in introducing legislation for a Canadian patent law in 1869, readily admitted the monopoly nature of patents:

It must be remembered that a patent is a kind of monopoly, though he did not mean to say that the word monopoly should be taken in its fullest sense, but nevertheless it is a monopoly, because it gives to a man the right of manufacturing or vending alone, an article useful to the public; certainly there was great reason for granting this monopoly.

Update: In Thomas Jefferson’s Letter to James Madison, August 28, 1789 (On the liberty to write, speak, and publish and its limits), he proposes to James Madison, then in the process of drafting the Bill of Rights, that the following be incorporated into the Bill of Rights:

Art. 9. Monopolies may be allowed to persons for their own productions in literature and their own inventions in the arts for a term not exceeding — years but for no longer term and no other purpose.

This was written just shortly before the Constitution itself was to be ratified. It appears to be aimed at adding a limit on how many years Congress could grant patent and copyright monopolies for. The copyright and patent clause in the then-pending Constitution had no outside limit on how long the patent and copyright monopoly grants could be, providing: “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.” Jefferson apparently wanted the “limited time” to be capped at some maximum number of years (probably 14 or 21 years or so). If he had got his way, (a) it would be clearer to everyone that patent and copyright are monopolies, and (b) Big Media and Mickey Mouse would not have been able to extend the copyright term to its current 100+ years.

See also Alex Tabarrok, Launching the Innovation Renaissance (which I discuss here):

Innovators need time to recoup their sunk costs, but why should every useful, non-obvious and novel idea be granted a 20-year patent? Maximizing innovation requires treating different industries differently. The idea for one-click shopping does not have the same sunk costs of research and development as a new pharmaceutical, and the former does not need and should not be given the same monopoly rights as the latter. [Tabarrok, Alex (2011-11-21). Launching The Innovation Renaissance: A New Path to Bring Smart Ideas to Market Fast (Kindle Locations 241-243). TED Books. Kindle Edition.]


Update: “A patent is an obvious monopoly; the patentee has exclusive rights and, where patented processes are involved, conditions are necessarily monopolistic. This influence has many ramifications. Not merely does it directly protect the manufacturer of patented articles; it also permits the creation of a whole network of tying contracts, forced joint supply, resale price maintenance and other trade practices, not particularly conspicuous in themselves but cumulatively highly conducive to the consolidation of monopolistic conditions. Indeed it is so important an influence that it is no exaggeration to say that special lines of expertise exist, not to forward the progress of invention but merely to devise variations in productive processes permitting the continuation of this form of monopoly power.” ~ Lionel Robbins (1939)


Techdirt: Copyright Lawyers vs Patent Lawyers Smackdown

What can one say…?

Copyright Lawyers vs Patent Lawyers Smackdown: And The Winner Is…

from the when’s-the-rematch? dept

You may remember a rather wonderful court case from 2012 that pitted copyright lawyers against patent lawyers over the issue of whether submitting journal articles as part of the patenting process was fair use. Well, we now have the judge’s decision, as GigaOm reports:

US Magistrate Judge Jeffrey Keyes sided with the patent lawyers, ruling that the reason they made unlicensed copies of the articles was to comply with the law for submitting applications to the patent office — and not to compete within the market for scientific journals.

As we noted last year, in a surprising move, the USPTO had already thrown its weight behind the idea that copies of scientific articles submitted as part of the patent application were indeed fair use. That left the separate question of whether the patent lawyers’ copies used internally were similarly covered:

“These are not the acts of a ‘chiseler,'” Keyes ruled at the conclusion of a four-part fair-use analysis, noting that the patent lawyers’ use of the work was transformative and did not impinge on the original market for scholarly journals.

The GigaOm story points out that this is good news for fans of fair use, which means it probably won’t go down too well with those who think it’s a solution in search of a problem. Doubtless, that group will be hoping for an appeal…. 

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Rozeff: Contents of Private E-Mails Are Private Property

Michael Rozeff has a provocative post on LRC about property rights in the content of email. Here’s the post:

Contents of Private E-Mails Are Private Property

Suppose that I own a safe and it is empty. Someone breaks into it and finds nothing. They have trespassed at a minimum. Maybe more, maybe breaking and entering, maybe attempted burglary.

Suppose now that I invent a new soft drink and I keep the formula in this safe. No one can chemically analyze the soft drink and replicate the formula. Someone breaks into the safe and steals the formula. Is the crime worse? I say it is. The harm to me is greater. One cannot assume that the formula, as an idea, is not a scarce good or a free good. It is my private property. It can be copied without disturbing the original, but that is not relevant in this case because I’ve placed a boundary around it. We shouldn’t go off on a confusing tangent about it using a concept of intellectual property because of the copying factor.

A private e-mail, like a letter, could physically be intercepted, accessed and copied without taking anything physical away from the sender or owner. Are the contents then not property, and is copying them therefore not a theft? I say it is theft. The “good” that is an e-mail and a letter is not purely physical. The subjective utility of it depends on its personal, private and psychological content as a communication. The thief who accesses it has, in general, undermined this utility. He has harmed the sender.

I see this case as being the same as the thief who steals the soft drink formula. There is a trespass followed by a theft.

NOTE: A comment by Nick Badalamenti with a second from Robert Wenzel has induced me to alter this post although not in the direction they suggested. All remaining errors are solely mine.

This post provides a good opportunity to explore some issues related to libertarian property theory. I repeat the post and provide some comments inline:

Suppose that I own a safe and it is empty. Someone breaks into it and finds nothing. They have trespassed at a minimum. Maybe more, maybe breaking and entering, maybe attempted burglary.

Suppose now that I invent a new soft drink and I keep the formula in this safe. No one can chemically analyze the soft drink and replicate the formula.

It’s odd to simply assert that it’s impossible to analyze the soft drink and replicate the formula. It’s just a soft drink, after all. But let this pass.

Someone breaks into the safe and steals the formula. Is the crime worse? I say it is. The harm to me is greater. One cannot assume that the formula, as an idea, is not a scarce good or a free good. It is my private property. It can be copied without disturbing the original, but that is not relevant in this case because I’ve placed a boundary around it. We shouldn’t go off on a confusing tangent about it using a concept of intellectual property because of the copying factor.

Rozeff is correct that the harm is worse. But this issue goes to the damages (restitution) appropriate in response to an act of trespass. If I steal from you a hunk of marble worth $100 then I owe you something on the order of $100; if I steal from you a hunk of marble you bought from some sculptor for $100,000, then I owe you more money. The things stolen were different. But objects x and y being different does not mean that the “difference” is an ownable thing. [click to continue…]

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Freakonomics: Does Copyright Make Books Disappear?

On the Freakonomics blog, Kaul Raustiala and Chris Sprigman (the latter mentioned here previously) discuss the phenomenon copyright suppression of some older works because of a combination of the orphan works problem and long copyright terms. This has been discussed here before at How long copyright terms make art disappear. The post is repixeled below.

Good for them for recognizing and publicizing this harm, but it is truly maddening to see one repeated unprincipled argument after another by pragmatists and utilitarians and economists. They simply seem unable to think in principled terms. They see the damage done by copyright law, and even highlight it, but never oppose it root and branch. They never want to abolish it. At most, it must be “reformed.” Bah.

Copyright law is poison, one of the worst travesties foisted on society by the fascist state; see:

For some real reform, abolish patent and copyright, or at least do something significant: see “How to Improve Patent, Copyright, and Trademark Law” (Feb. 1, 2011).

Here’s the post.

Does Copyright Make Books Disappear?

08/09/2013 | 10:32 am

In a fascinating new paper (available on SSRN) by Paul Heald analyzes this second claim. Here is a snippet from the introduction. We’ve bolded the most striking part of the study:

Influential copyright lobbyists presently circle the globe advocating ever longer terms of copyright protection based on this under-exploitation hypothesis–that bad things happen when a copyright expires, the work loses its owner, and it falls into the public domain. By analyzing present distribution patterns of books and music, this article tests the assumption that works will be under-exploited unless they are owned and therefore questions the validity of arguments in favor of copyright term extension…

[Our research] collects data from a random selection of new editions for sale on www.amazon.com (“Amazon”) and music found on new movie DVD’s for sale on Amazon. By examining what is for sale “on the shelf,” the analysis of this data reveals a striking finding that directly contradicts the under-exploitation theory of copyright:Copyright correlates significantly with the disappearance of works rather than with their availability. Shortly after works are created and proprietized, they tend to disappear from public view only to reappear in significantly increased numbers when they fall into the public domain and lose their owners. For example, more than twice as many new books originally published in the 1890’s are for sale by Amazon than books from the 1950’s, despite the fact that many fewer books were published in the 1890’s.

For the average consumer, 19th century books are far easier to acquire than 20th century books. That’s compelling evidence against the claim that long copyright terms are necessary to ensure adequate distribution; in fact, Heald argues the opposite is true.

Heald’s findings speak to a disconnect between politics and economics in copyright law. There are clearly some 20th century works that are quite old (think Mickey Mouse), that have enduring commercial value, and for which their owners (think Disney) carefully study how best to exploit them in a 21st century market. But for the typical older work, no one is paying any attention because demand for the work in the market is low. Books from the 1940s, for instance, are very often out of print and while they may be available in some libraries and in the occasional well-stocked used book store; you or I would have a very hard time tracking one down for purchase.

An economically-rational copyright policy would balance these sorts of works against the very rare works that maintain high demand over long periods of time. Instead, our copyright policy in Congress is driven by the interests of copyright owners such as Disney, for whom longer terms are better and the best copyright term (for their own works, at least) is infinite. At their behest, copyright terms have grown longer and longer—now life of the author plus 70 years. Yet, as Heald suggests, availability to consumers has diminished.

Changing this dynamic is going to be hard. But what makes Heald’s study notable is that adds to the body of evidence suggesting that our intuitions about copyright—that it is essential for both creation and distribution—may have surprisingly weak empirical foundations. Whether this will change anything in Congress is another matter entirely. As one friend who worked in the Obama administration once said, “in Washington, logic is for losers.”


Hayek’s Views on Intellectual Property

Some of Hayek’s views on patent and copyright have already been collected in previous blogposts (see below). Steve Horwitz just called to Jeff Tucker’s attention another provocative comment of Hayek’s on this topic, in his Constitution of Liberty. This is from chapter 3 (which is reprinted here) (emphasis added):

3. The rapid economic advance that we have come to expect seems in large measure to be the result of this inequality and to be impossible without it. Progress at such a fast rate cannot proceed on a uniform front but must take place in echelon fashion, with some far ahead of the rest. The reason for this is concealed by our habit of regarding economic progress chiefly as an accumulation of ever greater quantities of goods and equipment. But the rise of our standard of life is due at least as much to an increase in knowledge which enables us not merely to consume more of the same things but to use different things, and often things we did not even know before. And though the growth of income depends in part on the accumulation of capital, more probably depends on our learning to use our resources more effectively and for new purposes.

The growth of knowledge is of such special importance because, while the material resources will always remain scarce and will have to be reserved for limited purposes, the users of new knowledge (where we do not make them artificially scarce by patents of monopoly) are unrestricted. Knowledge, once achieved, becomes gratuitously available for the benefit of all. It is through this free gift of the knowledge acquired by the experiments of some members of society that general progress is made possible, that the achievements of those who have gone before facilitate the advance of those who follow.

Here Hayek correctly identifies a key aspect of human progress and production: the reproduction and spread of knowledge which, unlike material resources, is nonscarce and can be duplicated and copied without limit or exhaustion.

See also further quotes from that chapter (emphasis added):

Although the fact that the peo­ple of the West are today so far ahead of the others in wealth is in part the consequence of a greater accumulation of capital, it is mainly the result of their more effective utilization of knowledge. There can be little doubt that the prospect of the poorer, “undevel­oped” countries reaching the pres­ent level of the West is very much better than it would have been, had the West not pulled so far ahead. Furthermore, it is better than it would have been, had some world authority, in the course of the rise of modern civilization, seen to it that no part pulled too far ahead of the rest and made sure at each step that the material benefits were distributed evenly throughout the world. If today some nations can in a few decades acquire a level of material comfort that took the West hundreds or thousands of years to achieve, is it not evident that their path has been made easier by the fact that the West was not forced to share its material achievements with the rest—that it was not held back but was able to move far in advance of the others?

Not only are the countries of the West richer because they have more advanced technological knowledge but they have more advanced technological knowledge because they are richer. And the free gift of the knowledge that has cost those in the lead much to achieve enables those who fol­low to reach the same level at a much smaller cost. Indeed, so long as some countries lead, all the others can follow, although the conditions for spontaneous prog­ress may be absent in them. That even countries or groups which do not possess freedom can profit from many of its fruits is one of the reasons why the importance of freedom is not better understood.

Civilization Can Be Copied [n.b.: this header was not present in the original chapter; it was inserted in the Freeman reprint. —SK]

For many parts of the world the advance of civilization has long been a derived affair, and, with modern communications, such countries need not lag very far be­hind, though most of the innova­tions may originate elsewhere.

How long has Soviet Russia or Japan been living on an attempt to imitate American technology! So long as somebody else provides most of the new knowledge and does most of the experimenting, it may even be possible to apply all this knowledge deliberately in such a manner as to benefit most of the members of a given group at about the same time and to the same de­gree. But, though an egalitarian society could advance in this sense, its progress would be essentially parasitical, borrowed from those who have paid the cost.

Jeff Tucker wrote on this today too:

Hayek: Spread of Non-Scarce Knowledge is the Key to Progress


For years I’ve looked for a passage from the Austrian tradition that clearly explains the nature of knowledge as a non-scarce good and its high value in pushing social and economic progress. Stephan Kinsella and I have found enough material to provide hints and suggestions, small examples and first thoughts, but never anything that really made the point super clear.

In all my speaking and writing for the past three years, I’ve gone to great lengths to spell out the difference between the physical world of scarcity and the world of ideas in which non-scarcity prevails, and suggested that this is a major reason for the great migration to the digital world. I’ve longed for a passage from some Austrian thinker who seemed fully to grasp the idea — not just in hints and suggestions but worked out and precise.

Well, last night, Steven Horwitz came across a passage from F.A. Hayek that is just gold. It is from the Constitution of Liberty (Chicago, 1960, 1978, p. 43). He puts it as plainly as one can possibly hope given that he was writing before the digital age.

The growth of knowledge is of such special importance because, while the material resources will always remain scarce and will have to be reserved for limited purposes, the uses of new knowledge (where we do not make them artificially scarce by patents of monopoly) are unrestricted. Knowledge, once achieved, becomes gratuitously available for the benefit of all. It is through this free gift of the knowledge acquired by the experiments of some members of society that general progress is made possible, that the achievements of those who have gone before facilitate the advance of those who follow.

Hayek goes on. He uses the fantastic phrase “fund of experience” — an analogy to capital theory in the physical world — as a way of explaining how the whole world and the whole of history can benefit from the success of one single firm or one innovator. “The free gift of the knowledge that has cost those in the lead much to achieve enables those who follow to reach the same level at a much smaller cost.”

This free gift is what I’ve called the socialistic side of capitalism. Every private producer, in order to market its wares, must necessarily give away that most precious thing, the evidence of its own success. That evidence, that knowledge, becomes part of the commons. That thereby inspires competitors to emulate the success. The profitable producer must, in turn, stay on the path of change and progress and never rest, generate ever newer and better knowledge.

So we see here how Hayek anticipated the great trend of our time, the steady and inexorable move of more and more of life from the realm of scarce to non-scarce: words, images, movies, physical objects with 3d printing, and now even money. This is all about the scalability, malleability, indestructibility, and immortality of ideas as non-scarce good. It is gratuitously available for the benefit of all — and this of course is what the markets “desires” in effect: the inclusion of the whole of the world’s population and resources in the great process of improving our lives in this world in which scarcity will always and forever be a feature — a feature to deal with realistically (and humanely) and also to overcome insofar as we are able.

See also:


Yaron Brook on the Appropriate Copyright Term

Objectivist Yaron Brook on the Leonard Peikoff podcast answers a question about how long the duration of copyright should be. Well, I should say, he attempts to answer the question. No, he doesn’t even quite do that. He just “punts”; says he doesn’t know and that this is the domain of legal philosophy. He says it’s like any other property rights; if someone creates something, it’s “theirs”; but because it’s digital, it “has a certain lifespan.” But what that lifespan is is just a “technical question.” Then he recommends the work of Adam Mossoff, who is the “best thinker on these issues of intellectual property rights.” As I have noted before, the Objectivists have no coherent argument for IP.1

Objectivists insanely claim that IP is the most important type of law. Ayn Rand actually said that “patents are the heart and core of property rights“;   Objectivist IP attorney Murray Franck said: “intellectual property is after all the only absolute possession in the world.” Ayn Rand said that “Intellectual property is the most important field of law.”2 So you would think they would, you know, have a theory of how long IP rights are supposed to last. They are the most important property rights of all! Objectivists say that patent and copyright are “just like” other property rights (except: they are more important), but, unlike other property rights, they cannot (for some unfathomable reason) last forever; and they cannot just have a zero term; so it has to be somewhere in between. How principled! What should this term be? Well, …. well …  legal experts can figure this out! (Except: they can’t: Legal Scholars: Thumbs Down on Patent and CopyrightThe Overwhelming Empirical Case Against Patent and Copyright.) And hint: something that has a limited term is not a natural right, as Tom Bell and others have argued: it’s a temporary state-granted monopoly privilege.3

The idea of an optimal copyright term is pure nonsense. There is nothing natural or objective about the number of years the criminal state decides to grant its monopoly privileges for. What’s the right term? A million years? Forever? Fourteen? Twenty-eight? Life-plus-fifty? Life-plus-seventy? Who knows?4 That Objectivists would refer to IP rights as the “most important” type of property, and have no coherent theory of how long they should last, is pathetic.

  1. See Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory: Transcript; Yet more disanalogies between copyright and real property; Mossoff: “Convincing the Intellectual Property Skeptic”; Mossoff: Patent Law Really Is as Straightforward as Real Estate Law; Classifying Patent and Copyright Law as “Property”: So What?; Objectivists: “All Property is Intellectual Property”Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging’Locke, Smith, Marx and the Labor Theory of ValueHume on Intellectual Property and the Problematic “Labor” Metaphor”. []
  2. See Inventors are Like Unto …. GODS…..Ideas Are Free: The Case Against Intellectual PropertyRand on IP, Owning “Values”, and “Rearrangement Rights”. []
  3. See Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging”, where I note that Tom Bell and Ronan Deazley have shown that neither the Founders nor Locke thought that IP was a natural right–that is, they only favored IP as a policy tool. []
  4. See  Tom Bell on copyright reform; the Hayekian knowledge problem and copyright termsOptimal Patent and Copyright Term LengthWhere did the patent term come from?; Masnick, Copyright Length And The Life Of Mickey Mouse.  []

More defenses of IP by the Federalist Society

Economists and legal scholars have long been skeptical of IP,1 and libertarians in recent decades have become even more skeptical; most nowadays are in favor of abolishing IP altogether.2 So it is passing strange that the Federalist Society, allegedly a group of conservative and libertarian lawyers, is completely dominated by pro-IP discourse. You would never know that anyone opposes IP in principles. Its events, teleforums, articles, never bring up the anti-IP position. It’s always a pro-IP guy (often a federal “judge”) against some “reformer”. The reformer wants to fix the system, but not abolish it. After all, it’s in the Constitution, and that’s sacrosanct! (Nevermind that the Constitution was an illegal coup d’etat,3 which centralized the state, authorized taxation, conscription, eminent domain, slavery, and war, the central bank, inflation, fiat money, the business cycle, and apparently minimum wage laws, regulation of narcotics and firearms and immigration, and the like.)

For recent examples of Federalist Society IP discussions which never include the anti-IP side, but, at most, some “reformist” viewpoints:

These talks often include pro-IP advocate Objectivist law professor Adam Mossoff, federal judges, pro-IP Richard Epstein (whose arguments for IP are glaringly weak, compared to the corpus of his work), or “reformers” who think the copyright term should perhaps be reduced by a few years or the fair use defense expanded or “clarified.” The talk is almost always unprincipled and utilitarian. Or else it is just a positive discussion of the existing law, regardless of its legitimacy or morality. Why no principled libertarian, propertarian, or economist opponents or deep skeptics of IP, such as, off the top of my head: Wendy McElroy, Tom Palmer, Timothy Sandefur, me, David Levine and Michele Boldrin, Mike Masnick, David Koepsell, Tom Bell, Jacob Huebert, Terence Kealey, Roderick Long, Sheldon Richman, Jeff Tucker, Karl Fogel, Nina Paley, and other scholarly and libertarian luminaries? (Many of these thinkers’ works are linked at my C4sIF.org resources page.)

The Federalist Society’s conservative and libertarian bibliography is also lacking in this respect; as I noted previously:

The Intellectual Property section was last updated recently (December 2010, repixeled below) but  it unfortunately seems to have a decidedly pro-IP, utilitarian, and mainstream bias. The material listed is dominated by law and economic analysis (Posner); positivist legal analysis by fairly mainstream scholars; and  technical legal analysis (Chisum) of interest mainly to patent practitioners, not to libertarians and conservatives.

As far as I can tell the material listed contains little explicitly libertarian analysis, other than pieces by utilitarian libertarian law professor Richard Epstein and Objectivist law professor Adam Mossoff—both of whom are pro-IP. The bibliography is missing a wealth of important anti-IP work by libertarians and economists, including many economic and empirical studies that conservatives and libertarians interested in the IP issue should be familiar with. It even omits classic studies by Plant and Machlup (see below). [See Anti-IP Material Needed in the IP Section of the Federalist Society’s “Conservative & Libertarian Legal Scholarship: Annotated Bibliography”.]

To be sure, on occasional local Federalist Society chapters host anti-IP speakers. I’ve done this a couple of times, in Houston and other chapters like Ohio (Federalist Society IP Debate (Ohio State)), but the national group is completely dominated by pro-IP and utilitarian thinking.

The latest example of the Federalist Society’s pro-IP bias is the publication of libertarian lawyer Russell Hasan’s pro-IP article Winning the Copyright War: Copyright’s Merger Doctrine and Natural Rights Theory as Solutions to the Problem of Reconciling Copyright and Free Speech, in its journal Engage (Volume 14, Issue 1 February 2013). This article simply tries to reconcile free speech rights with copyright; it makes no positive much less principled much less libertarian case for patent or copyright. In this, it is similar to arguments by Mossoff and Epstein that try to defend IP on the grounds that it “can” be integrated into a conventional property rights legal framework.4 Well—so what? So what if human beings can be considered property and bought and sold and mortgaged? So what if conventional legal principles “can” be twisted to include various positive legal rights like taxes, welfare benefits, chattel slavery, and IP? What kind of defense or justification is this supposed to be? So what if there is a way to twist and contort constitutional free speech doctrine to make it more compatible with the aims of patent and copyright? After all, free speech is not a primary or fundamental right in the first place; all rights are property rights, and the only just rights are the rights to control certain scarce resources in accordance with the Lockean homesteading rule combined with a few ancillary rules such as contract and tort.5 And it is clear that IP is an infringement of such natural property rights, amounting to a taking, an expropriation, which amounts to a negative servitude.6

Further, as I have previously argued, copyrights and free speech/property rights are utterly incompatible, and for this reason, copyright is clearly unconstitutional (see my podcast KOL067 | Patent and Copyright are Unconstitutional! and notes and links in my post Copyright is Unconstitutional).

The tide is turning against IP. It is increasingly seen, especially by principled libertarians and propertarians, as a clear and dangerous infringement of liberty and life.7

As a side note, even Cato seems to have a similar problem, which is even more striking as it was the home of Tom Palmer, one of the early pioneers of the principled case against IP.  (See Does Cato’s New Objectivist CEO John Allison Presage Retrogression on IP?) “Reformers” like Jerry Brito8 don’t cut it.

Update: For libertarians who think IP/copyright is “compatible” with free speech/1st Amendment: More Copyright Censorship: ‘Straight Pride’ Group Uses DMCA To Take Down Their Own Responses To ReporterWhy Yes, Copyright Can Be Used To Censor, And ‘Fair Use Creep’ Is Also Called ‘Free Speech’.


  1.  Legal Scholars: Thumbs Down on Patent and CopyrightThe Overwhelming Empirical Case Against Patent and Copyright. []
  2.  The Death Throes of Pro-IP LibertarianismThe Four Historical Phases of IP AbolitionismThe Origins of Libertarian IP Abolitionism. []
  3. See also Black Armbands for “Constitution Day”Thumbs Down on the Fourth of JulyHappy We-Should-Restore-The-Monarchy-And-Rejoin-Britain Day!. []
  4. See Classifying Patent and Copyright Law as “Property”: So What?Mossoff: Patent Law Really Is as Straightforward as Real Estate Law. []
  5. See my What Libertarianism Is; also Rothbard, “Human Rights” As Property Rights. []
  6.  Intellectual Property Rights as Negative Servitudes. []
  7. See Where does IP Rank Among the Worst State Laws?  []
  8. Brito: What’s Wrong With a Copyright Alert System?Republicans More Radical than Libertarian Copyright Moderates. []
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Joseph Diedrich: Intellectual Property Cannot Be Property

From the MacIver Institute, a Wisconsin free market group:

Intellectual Property Cannot Be Property

July 16, 2013

by Joseph Diedrich
Special Guest Perspective for the MacIver Institute

What is property?

More specifically, at its essential theoretical core, beyond the artifice of legal fiat, what is property?

Somewhat broadly, property is anything that satisfies each of the following requirements: property is scarce; property possesses objective (intersubjectively ascertainable) borders; and property has a determinable temporal genesis.

The theory of intellectual property (IP) posits that two distinct genera of proprietary resources exist–tangible and ideal–and that, while formally differentiable, they are fully compatible within a logically constructed theory of property. In essence, both tangible and ideal resources are property.

For the sake of argument, assume the truth and tenability of the IP theory–that ideal resources are, in fact, property. Assume that every idea, pattern, design, and conception meets all three of the aforementioned necessary requirements to be classified as such. Ultimately, assume that the theory of intellectual property is legitimate and fits harmoniously within a broader theory of property rights.

What, then, are the logical implications of such an assumption?

To begin, all property can be owned–i.e., fully and exclusively controlled. As economist Ludwig von Mises writes, “Ownership means full control of the services that can be derived from a good.” The process by which an individual acquires exclusive control over a proprietary resource can be either legitimate (peaceful and just) or illegitimate (aggressive and unjust). Legitimate means of acquiring ownership involve voluntary title transfer by contract, including by sale, rent, or gift. In contradistinction, theft is the prime example of illegitimate ownership acquisition.

Thus, if indeed property, ideal resources can be sold, rented (licensed), given away, or stolen, contingencies all of which are incorporated into IP law. Patent and copyright holders regularly sell, license, and give away (often by virtue of conscious ambivalence toward IP law) their patents and copyrights; moreover, they can seek legal resource if another party steals their patent or copyright. [click to continue…]


Bill Gates: Flip-Flopping IP Hypocrite

A couple decades ago, Bill Gates seemed to have some appreciation of the damage wrought by patent law:

If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today. I feel certain that some large company will patent some obvious thing related to interface, object orientation, algorithm, application extension or other crucial technique. If we assume this company has no need of any of our patents then [they] have a 17-year right to take as much of our profits as they want. The solution to this is patent exchanges with large companies and patenting as much as we can. Amazingly we havn’t done any patent exchanges tha I am aware of. Amazingly we havn’t found a way to use our licensing position to avoid having our own customers cause patent problems for us. I know these aren’t simply problems but they deserve more effort by both Legal and other groups. For example we need to do a patent exchange with HP as part of our new relationship. In many application categories straightforward thinking ahead allows you to come up with patentable ideas. A recent paper from the League for Programming Freedom (available from the Legal department) explains some problems with the way patents are applied to software. [See Bill Gates’ 1991 Comments on Patents; emphasis added.]

Yet over the years Microsoft relied on the other major form of intellectual property—copyright—to dominate aspects of the software industry, and then to use the monopoly profits to accumulate thousands of patents. These two forms of IP are then used together to squelch competition. (See Controls breed controls, Monopolies breed monopoliesMicrosoft Copyrights —> Patent DominancePrice Controls, Antitrust, and PatentsThe Schizo Feds: Patent Monopolies and the FTC.)

Now that Gates has used state-granted IP monopolies to acquire billions of dollars that he can then use to be a bigshot philanthropist, he is all for patents (as my friend Rob Wicks says, Gates is “America’s wealthiest welfare queen”). For example, in a recent Microsoft Summit, he had this to say about patents:

On the greatness of patent law

“Thank god for commercial software,” Gates told an audience member who asked about the disconnect between Microsoft’s historically proprietary nature and all the charitable work Gates now does.

Intellecual property in developed countries pays salaries and lets software companies, pharmaceutical companies and others actually be able to invest in the innovation that helps improve our world, he explained. Then, when organizations like the Gates Foundation are doing work in undeveloped countries, pharmaceutical, IT and agri-business companies can afford to give away their work for free. (A skeptic might say that’s like robbing from the not-so-rich to give to the poor.)

“Anybody who thinks getting rid of [patent law] would be better … I can tell you, that’s crazy,” Gates said. “My view is it’s working very well.”

How the heck does Gates know it’s “working” well? Does he know the costs and the benefits of this system? No. (See The Overwhelming Empirical Case Against Patent and Copyright.) This sounds like welfare-socialists who say that medicare or social security “work well”. Yes, if you ignore the victims forced to pay for it, maybe.

And now he is involved with a company spun off from uber patent troll Intellectual Ventures (see Patent Trolling in Action: Big Patent Firm Sues Nine Tech Firms), as noted in Bill Gates’ nuclear company explores molten salt reactors, thorium:

“We’re thinking about it and trying to work on it and we have a few proprietary ideas that we’re cooking up,” Gilleland said in relation to MSRs. He did provide details of the “proprietary” ideas, noting that, “We like to work on an idea for a while before we run out and tell about it – so we have some ideas which we’re trying to ferret out how good they are.”

Director of innovation Latkowski declined to say whether or not TerraPower has filed any MSR patents. In addition to running innovation and related partnerships, Latkowski also “oversees the development, maintenance and protection of TerraPower’s intellectual property portfolio” according to his company bio. TerraPower is a spin out of Intellectual Ventures, an innovation and venture capital firm that makes a business out of patents and is known as a keen collector and protector of intellectual property. It is headed by Nathan Myhrvold, a former Microsoft chief strategist and technology officer who serves as TerraPower’s vice chairman.


Patently speaking. TerraPower vice chairman Nathan Myhrvold is CEO of Intellectual Ventures, a company whose business is intellectual property. TerraPower is an Intellectual Ventures spin out.

Imagine some other company comes up with a good way to make affordable, cheap, clean, safe thorium or other nuclear energy systems. They could well be sued into the ground by TerraPower by virtue of its patents, setting human progress and welfare back decades.

It’s no surprise Gates is in favor of the statist institution of IP; here he is gushing over the great things state violence gives us:

You write about the violence in traditional societies. It made me think of Steven Pinker’s The Better Angels of Our Nature, which shows how and why the world has become a less violent place over the centuries. One factor is the growth of centralized governments that have a monopoly on punishing people. You’ve seen examples where police come in to an area for the first time. As soon as they make it clear that the first guy to take revenge will go to prison, the levels of violence drop very quickly. [From Gates's blog: A Discussion with Jared Diamond.]

This is all a shame, given that Gates elsewhere seems to have some glimmer of understanding of the importance of capitalist property rights:

The incredible economic transition in China over the last three-plus decades occurred because the leadership embraced capitalistic economics, including private property, markets, and investing in infrastructure and education.
This points to the most obvious theory about growth, which is that it is strongly correlated with embracing capitalistic economics—independent of the political system. When a country focuses on getting infrastructure built and education improved, and it uses market pricing to determine how resources should be allocated, then it moves towards growth. This test has a lot more clarity than the one proposed by the authors, and seems to me fits the facts of what has happened over time far better.

From the great Rick Falkvinge. For related see Intellectual PovertyAre Patents “Monopolies”? and Intellectual Properganda.

Language Matters: Framing The Copyright Monopoly So We Can Keep Our Liberties

George Orwell was scaringly right in many ways, but one of his most overlooked points is one of the most important. The language we use defines our reality and what problems we perceive, communicate, and solve. From theft of intellectual property to sharing culture and knowledge, it’s a war of words.

“1984″ by George Orwell is a book that seems to increasingly define our society, mixed in with a dash of Aldous Huxley’s Brave New World. One central theme to 1984 is the concept of Newspeak – but the language Newspeak never takes center stage in the book, it is just pervasive throughout the storyline.

copyright-brandedThe concept of Newspeak was simple. By taking away the expressions for free thinking and challenging authority from the language, the people in power would remove other people’s ability to conceptualize those thoughts, and thus ensure obedience.

In one passage in the book, translators of Oldspeak into Newspeak say they have a trouble with translating the Declaration of Independence into Newspeak – there is simply no way to express what it says in Newspeak. Orwell comments on this in an appendix: as long as the language has words for rebellion, freedom of thought, and dissent, then society will eventually throw off any tyrant.

This matters, because the words we use define the society we live in. That definition of society, in turn, decides what problems need to be solved and how. We are nerds and geeks; we tend to not bother with subtleties and nuances of communication, except to be technically precise in what we express. But all words have values to them. Some are negative, some are positive. Some have double meanings. Some evoke feelings of happiness, others of discomfort. Being aware of this as you discuss net liberty and culture today is paramount to the discussion – the side that wins the definitions, wins the long-term war.

It is not a coincidence that the deceptive term “Intellectual Property” has been relentlessly used by the copyright industry. They are trying to get others to use it. They are trying to make it define the copyright monopoly; to make people think of their monopoly in terms of property. Property is a positive word, and it follow-up-defines any violation of those monopolies as stealing (as violation of property rights is stealing). Don’t ever fall for using this term. Not once, not ever.

The way to spread your own framing of the world is not necessarily to correct others in their use of language – that would only seem rude. Rather, we use our own language consistently, persistently, and tenaciously. We use our language that defines the world of the net generation the way we see it, and in a way that doesn’t give influence to the copyright industry.

Every time you repeat a term of the adversary’s worldview, you help them take away your rights. Every time you use one of the terms that define our worldview, you help the net generation retain their civil liberties. People will copy your terms subconsciously. Be happy when they do, but don’t point it out. Again, that would be rude.

Here’s a sample of words to be conscious of:

Copyright industry – use this consistently instead of record industry and/or film industry. It highlights how the middlemen incumbents are monopolistic parasites that aren’t necessary for the cultural ecosystem, having industrialized lobbying for their monopolies and cashing in on them, and the term sticks very well.

Sharing knowledge and culture – use this instead of “file-sharing”. The “file-sharing” term tends to be too technical, and doesn’t appropriately convey the usefulness of the act. Also, “sharing knowledge and culture” is fundamentally positive to anybody who hears it – plus, it is technically correct. People who share knowledge and culture should never be punished, they should be rewarded.

Copyright monopoly – don’t ever use “copyright” alone. When you do, you will reinforce that it is a right of some kind, like the right to freedom of speech. In reality, it is a monopoly. While a somewhat clumsy term, it is necessary at this stage to communicate that the copyright monopoly is just that, a monopoly. Use language to tie the concept together with its nature to people who haven’t seen it as such yet.

Patent monopoly – Same thing there.

Industrial Protectionism – don’t ever use the IP term that reads out as some kind of “property”. That’s self-defeating. If you cannot escape using the IP term (which you should, as it lumps completely unrelated laws together) then take care to read it out as “Industrial Protectionism”. It’s what it is, and the value of the word protectionism is sharply negative.

Manufacturing copies – try avoiding “downloading” copies of something. That implies “taking”, and leads down the wrong line of thought. What people are doing aremanufacturing copies using their own raw materials, and it highlights how the copyright monopoly is trying to restrain a legitimate activity. Say “when people are manufacturing their own copies of knowledge and culture”, if you can’t highlight the process of “sharing knowledge and culture”.

Digital Restriction Mechanisms – DRM. No comment necessary. Read it out as Digital Restriction Mechanisms. (Some have used “Management” for M. That is a positive word that dilutes the negative “Restriction”; I prefer Digital Restriction Mechanisms.)

There are many more examples, but these are a starter. Remember that the side that wins the language wins the definition, and take time to judge the subtleties of how language defines and shapes the problem we discuss.

About The Author

Rick Falkvinge is a regular columnist on TorrentFreak, sharing his thoughts every other week. He is the founder of the Swedish and first Pirate Party, a whisky aficionado, and a low-altitude motorcycle pilot. His blog at falkvinge.net focuses on information policy.


Evangelization vs. Copyright

Thought-provoking piece by Jeff Tucker:

Evangelization vs. Copyright

by Jeffrey Tucker

Brandon Vogt really liked the new papal encyclical but noted that the Vatican only made it available in HTML. So he worked to convert it to PDF, epub, Mobi, and more, and then he gave away these formats on his website.

Perhaps he was inspired by the message: “The transmission of the faith not only brings light to men and women in every place; it travels through time, passing from one generation to another. Because faith is born of an encounter which takes place in history and lights up our journey through time, it must be passed on in every age.”

Whoops. Both the Vatican and the USCCB wrote to demand a takedown. Clearly, Vogt was “stealing from the Pope” (really? I don’t think making other formats available causes the text to be mystically removed from the Vatican website). Also, he was accused of “violating the civil law.” Perhaps, but the Church does not need to take recourse to civil law — a law that restricts information flow by assigning legal right of ownership to the expression of ideas. The Church can easily publish into the commons, as millions of others do today as a way of avoiding restrictive state laws.

Multinational copyright enforcement is a legal invention of the late 19th century. It serves to block the light of truth. This is a great example of that. Thousands, maybe millions, who would be able to obtain the encyclical on their ereaders will now not be able to — at least not until it is published by the state-protected monopoly agent. That’s just a very strange way to go about distributing light and truth.

When faced with the question of whether to impose and enforce copyright over core Catholic texts, one might ask the question that was popular among the teen set a few years ago: What Would Jesus Do?


How long copyright terms make art disappear

Good post by Cory Doctorow illustrating how copyright is a type of censorship—in this case, it suppresses the dissemination of books caught in the copyright “black hole” as a result of the combination of copyright terms, the orphan works problem (which is a result in part of the lack of a requirement for copyright registration formalities and renewal requirements). But notice that Doctorow—who does not oppose copyright per se1  —blames this on “long copyright terms” instead of copyright itself. This is akin to people who favor a “modest” minimum wage of say $10/hour but who would not favor a $100 minimum wage because they know that it would cause severe unemployment; a small amount of unemployment is tolerable, however. Likewise, even if copyright terms were shortened, the damage done by copyright would be reduced, but would still be real. The problem is not long copyright terms; it is copyright itself.

How long copyright terms make art disappear

 at 10:57 am Fri, Jul 5, 2013

Jill sez, “Exciting study samples new books for sale by Amazon and asks: Why are there three times more books initially published in the 1850’s than books from the 1950’s? The chart on page 15 is eye-popping, showing graphically decade-by-decade how many more new books initially published before 1923 are currently available than those published after 1923 [the magic public domain date]. The music and YouTube data are also compelling!”

How Copyright Makes Books and Music Disappear (and How Secondary Liability Rules Help Resurrect Old Songs)

Jeff Tucker, by the way, discussed this over a year ago, in Market Failure? The Case of Copyright, in which he observed that:

There was a brief moment in the early days of Google when the company naively imagined that it could do the right thing and make all of this literature available for instant viewing and printing. They had the technology to rescue it all and bring it to the whole world. Publishers, backed by regulations that favor them, went bonkers. Google tried a profit-sharing agreement. Didn’t work. Finally, Google bailed and cooperated with the prevailing system.

The results you see in this graph. There is an 80-year black hole in which literature is being buried. In some ways, a whole century of ideas is being forced under a rock by government in league with large publishers. And it is getting worse by the day. Publishers are going through their back catalogs and threatening anyone who puts even a scrap online. Not that they plan new editions; they are just claiming what they think of as their assets.

This is a case of incredibly tragic loss. As you can see from the above chart, the literature of 1850 is more available than the literature of 1970. How preposterous is that? This is all a direct result of unprecedented, outrageous regulations that have effectively put a censorship veil over history’s most-productive period of literary creation. This entire world is trapped in libraries that no one visits or is being put on remainder racks so that libraries can create more space for coffee bars.

There is a more general lesson that pertains to all government regulations. Even one line can be impossibly damaging to industry and to social advancement. It is extremely difficult to quantify the losses. This is just one case, but it is an important one because it deals with the most important thing any civilization possesses: its treasury of ideas. That treasury has been thrown to the bottom of the sea. Someday, explorers will discover it and wonder how any society could have let this happen even though it had the means to do otherwise.

  1. See Cory Doctorow, Victim of Fox Copyright Legal Bullying, Should Take A Stand Against Copyright;  Paley & Doctorow argue over Non-Commercial licenses.  []
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From Rick Falkvinge at Torrent Freak:

The Copyright Monopoly Was Always Intended To Prevent Freedom Of Expression

As I was explaining the need for copyright monopoly reform in Dublin this week, an elderly gentleman red-faced with rage exclaimed in the Q&A session that the copyright monopoly was absolutely crucial for freedom of expression. It surprises me that some monopolists still have things this backwards: the monopoly was always a gag on freedoms of speech and expression. copyright-branded

When Queen Mary I created the copyright monopoly onMay 4, 1557, it was a purebred censorship mechanism: in exchange for a lucrative monopoly on printing, the London Company of Stationers agreed to let anything printed first pass by the royal censors.

This was the norm for a long time in England, and the monopoly has been used to prevent freedom of speech since, with the exception of 1695-1710, as the monopoly did not exist during those fifteen years.

The examples are plenty of how the copyright monopoly has been used as a bludgeon against freedoms of speech and expression. From the landmark court case in 1765, when the Entick vs. Carrington case determined that authorities had no right to quell free speech unless the method used is specifically enabled by law, right up until modern times when the Finnish oil company Neste Oil disgracefully used the copyright monopoly to kill a legitimate Greenpeace protest site against the oil company (by threatening to sue the Internet Service Provider, to boot, and not Greenpeace directly).

The fact that the copyright monopoly is a limitation on freedom of expression, and therefore an interference with fundamental human rights, has even been confirmed recentlyby the European Court of Human Rights.

And yet, when you outline this very clear picture, some dinosaurs will insist that the freedom of expression only covers “your own” expressions, and not “other people’s” expressions, in an attempt to defend the legitimacy of the copyright monopoly. This is hogwash of the lowest conceivable quality. There is no such thing as “other people’s expressions” that aren’t covered by freedom of expression when I repeat them in a message of my own.

When I sing “Happy Birthday” to somebody, that is quite obviously a message of my own aimed at somebody having a birthday, despite my singing that song being an illegal violation of the copyright monopoly. It is therefore trivial to see how the copyright monopoly is an illegitimate limitation on freedom of expression.

Oh by the way, the Q&A session in Dublin ended well: after the elderly enraged gentleman had tried to “correct” my highlight of the need for copyright monopoly reform by reciting the entire arsenal of commonly-debunked arguments of the copyright industry, a younger professional took the microphone and calmly explained how pretty much every view I had expressed was perfectly in tune with his generation’s values. Everybody in the room took careful note.

About The Author
Rick Falkvinge is a regular columnist on TorrentFreak, sharing his thoughts every other week. He is the founder of the Swedish and first Pirate Party, a whisky aficionado, and a low-altitude motorcycle pilot. His blog at falkvinge.net focuses on information policy.

Book Falkvinge as speaker?

On This Week in Law #213, the hosts were discussing DRM and the upcoming X-Box One, and speculation, based on a Microsoft patent, about whether that system might move away from standard DRM to  “visual DRM“—an Orwellian system where the Kinect looks around the room with its camera, counts the number of people watching a movie being played, and asks for greater fees if it determines there are “too many” people in the room for a standard consumer/home license (go to around 1:05:13 for the beginning). Peter Biddle of Intel then mentions an experience he had years ago with secure digital music industry (SDMI)  people  trying to implement some kind of DRM for music similar to that used for DVDs and movies. He got frustrated and sarcastically suggested that the group lobby Congress to enact a law requiring every citizen to have a neural shunt embedded into the base of their neck to shut off the person’s eyes and ears when the device detects that they are observing watermarked content that they don’t have a license to watch or listen to. Instead of laughing at the absurd joke, or expressing dismay at the utter evil of this proposal, it generates a buzz of excitement among the music executives, and one of them asks, “can you do that?”


My IP Odyssey

I became libertarian in 1982, as a junior in high school, after reading Ayn Rand’s novels and nonfiction books.

A few years later I was in law school and a nascent anarchist and Rothbardian, having by this time rejected Rand’s attacks on libertarianism and anarchism. And I had always had qualms about her pro-IP arguments.1

And then in 1992 I started practicing law and soon started specializing in intellectual property and patent law. Hey, that’s where the money was. At the same time, I was starting to publish on various libertarian legal theory issues, such as rights theory. Naturally, given my chosen specialty and my interest in libertarian theory, my interest turned to the IP issue. I had tried for years to find some way to justify patent and copyright law, but by the time I finally started practicing and had passed the patent bar (1994), I had pretty much become a total IP skeptic. I started publishing articles critical of IP around that time, such as my Letter on Intellectual Property Rights, IOS Journal 5, no. 2 (June 1995), pp. 12-13,2 and my “Is Intellectual Property Legitimate?Federalist Society IP Practice Group Newsletter (Winter 2000),3 and then In Defense of Napster and Against the Second Homesteading Rule, LewRockwell.com (September 4, 2000) and “Against Intellectual Property,” Journal of Libertarian Studies (Spring 2001), which won the Mises Institute’s Alford Prize.4

At first I was leery of admitting, as a “respectable” big-firm and IP lawyer, my growing libertarian and anti-IP radicalism. I was worried clients or bosses or partners would not like it. But I gradually realized: none of them care. They just want lawyers who are competent; they don’t care about your personal politics. You want your airplane pilot and your brain surgeon to be competent, not of the same political persuasion as you. So gradually I shed my initial reluctance to reveal my views. In fact I still get contacted by people who want me to help them with patent law or other IP law issues—they don’t care that I hate patents and want the law changed; they seem to assume that I must know my stuff if I am so passionate about it. Odd (but rational, I think).

As I have often mentioned, IP was never my primary interest, either as a lawyer or libertarian theorist. As a lawyer, I enjoyed other types of law more—oil and gas law, international law, even family law (wills, adoptions, name changes, etc.)—but went into IP because in the mid-90s as a young electrical engineer-background lawyer, there was an intense and growing demand in patent law for such highly specialized and technically trained attorneys. Plus, patent law  is a national rather that state-based field of practice, which provides more interstate mobility; you are not locked into one state’s legal system, as you might be in fields like family law, oil and gas law, tort law, and so on. And in terms of libertarian theory, I focused on IP only because the issue nagged at me and I felt I had to figure that issue out and get it out of the way; but I was always more interested in other topics, like philosophy in general, epistemology, rights theory, contract theory, aspects of property theory, Austrian economics, and the like. But of course, as one of the few libertarians with a deep knowledge of IP law, over the years, ever since 2005 or so, whenever I am asked to give a speech or interview or contribute an article, the most requested topic is IP.

I initially felt a tug of annoyance at this pigeon-holing, but finally got over it, for a couple reasons. First, I’ve become convinced that IP is not a marginal issue; that is is one of the top 5 or 6 evils the state foists on us, and crucially important to get this right and to help libertarians, at least, to understand this.5 Second, I’ve discovered that sorting all this out requires one to carefully think about and refine one’s thought on a host of related issues, from the nature and purpose of property rights to issues like fraud, defamation, anarchy vs. minarchy, legislation vs. common law, and contract theory.

So, I guess the IP issue is here to stay—until we can abolish it, that is.

  1. Some of this is detailed in “How I Became A Libertarian,” December 18, 2002, LewRockwell.com, published as “Being a Libertarian” in I Chose Liberty: Autobiographies of Contemporary Libertarians. Some people reading this may also be interested in my posts New Publisher, Co-Editor for my Legal Treatise, and how I got started with legal publishing and Advice for Prospective Libertarian Law Students.  []
  2. including: David Kelley, “Response to Kinsella,” IOS Journal 5, no. 2 (June 1995), p. 13; and Murray I. Franck, “Intellectual and Personality Property,” IOS Journal 5, no. 3 September 1995, p. 7 []
  3. This article was based on a version previously published in the Pennsylvania Bar Association Intellectual Property Newsletter 1 (Winter 1998): 3, a newsletter I founded in 1997 []
  4. See also Roderick Long Finally Realizes IP is Unjustified. []
  5.  “Where does IP Rank Among the Worst State Laws?” []

“Around this time I met the Galambosian.”

A great anecdote from Jerome Tuccille’s hilarious It Usually Begins with Ayn Rand, about one of the stranger kooks in the libertarian movement, Andrew Galambos.1 I quoted this way back in the Summer 1998 issue of the Pennsylvania Bar Association IP Law Newsletter (which I founded in 1997):

 Around this time I met the Galambosian.

“I am a Galambosian,” he said.

A what? I was beginning to feel like a right-wing Yossarian. All these mothers were out to destroy every principle I believed in! If it wasn’t squarejawed Southwesterners with mixed premises, or Ivy League intellectuals who mouthed off in public like truck drivers, or shifty-eyed carny barkers from the Middlewest, it was an S. J. Perelman character with a pipe and an ascot, telling me he was a Galambosian.

“What the hell is a Galambosian?”

There was this individual, it seems, named Joseph Andrew Galambos who evolved a theory of “primary property rights.” Apparently, as soon as someone came up with a new idea—whether an invention or an original philosophical concept—the prototype belonged irrevocably to him and was to be regarded forevermore as his primary properly. Somewhere along the line Galambos picked up the notion that Thomas Paine had invented the word “liberty,” whereupon he established the Thomas Paine Royalty Fund, and every time he gave a lecture and used the word “liberty” he dropped a nickel into his fund box as a royalty payment to Tom. How he determined that a nickel was the proper measure of homage to Mr. Paine, I have no idea. Legend even had it that Galambos was still diligently searching for Thomas Paine’s descendants so he could turn over moneys due their famous ancestor.

Sometime in the early or middle 1960s, Galambos decided that his name, Joseph Andrew, was actually the primary property of his father. In order to avoid giving his father a royalty payment every time he spoke the name, Galambos reversed the order and sent out notices to all his friends that henceforth his name was Andrew Joseph, and that he was to be addressed as Andy, instead of Joe.

“There are five legitimate functions of government,” said the Galambosian.

“No kidding. What are they?”

“I am not at liberty to say. The theory was originated by Andy Galambos and it is his primary property.”

The Galambosian also informed me that Andy had been introduced to Ayn Rand several years before, and that after five minutes of conversation they had pronounced each other insane.

“Of course, it is Miss Rand who is really insane,” said the Galambosian.

“Why is that?”

“I’m afraid I cannot tell you. The reasoning behind that theory belongs to Andy.”

The most peculiar thing about the whole Galambosian concept was the impossibility of finding out anything about it. Galambos’ disciples were not at liberty to disseminate his philosophy without paying a royalty to their leader—who could not even waive payment, since primary property was an absolute good and could not be given away. You were stuck with it whether you wanted it or not, throughout eternity. Consequently, all the converts were those proselytized by Galambos himself—a time-consuming and self-restricting process, it being physically impossible to convert more than a handful of people at a time.

“If the rest of us were free to discuss his ideas,” said the Galambosian, “there is no question in my mind that Galambosianism would spread throughout the world like wildfire.

  1. For more on Galambos, see Galambos and Other NutsGalambosian IP RecursionShades of GalambosAgainst Intellectual Property, p. 27). []

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

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

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

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

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

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

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

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


Dante’s Divine Comedy and Intellectual Property

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

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

Divine Sunlight, Intellectual Property, and Love

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

As much light as it finds there, it bestows; (Verse 70)
thus, as the blaze of Love is spread more widely,
the greater the Eternal Glory grows.

As mirror reflects mirror, so, above, (Verse 73)
the more there are who join their souls, the more
Love learns perfection, and the more they love.

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


Does Innovation Require the Patent Office?

From Jeff Tucker at Laissez Faire Today:

Does Innovation Require the Patent Office?


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

So I asked this gentleman what he thought of the talk. His response was quick (I paraphrase here):

“I’ve never once bothered with patents. They are expensive and pointless. They produce no revenue on their own. They sell no product or service. And they harm development by hemming in a company on a preset track. I need to be able to customize offerings and change what we do day to day. Patents bias a company toward old solutions even when they don’t work anymore.”

That’s an interesting perspective. And it raises the question: How much do patents have to do with innovation in the real world?

As much as we hear about patents, we might suppose there is some sort of direct link between them and the innovations we enjoy in our lives. Someone invents something and shows the plan to a bureaucrat. The exclusive license is issued, and away we go.

Economic historians have usually assumed a direct link between patents and innovation, basing much of their chronicle of history on records at the Patent Office. Much of what we think we know — that Eli Whitney invented the cotton gin, that the Wright Brothers were first in flight, that Thomas Edison holds the record for inventions because he has the most patents — comes from these records.

But is it true? Most patent holders assume so. They cling to them as a source of life and defend them against all encroachment. Some businesses build up their war chests with patents as purely defensive measures. The more you own, the more you can intimidate your competitors to stay out of your territory.

So how important are patents in generating innovation? The answer is not much, according to four economists from the Technical University of Lisbon. They are circulating their research on a platform sponsored by the St. Louis Federal Reserve. They looked at the best innovations between 1977-2004, as listed by the R&D awards in the journal Research and Development. They matched 3,000 innovations against patent records to establish the relationship.

Their findings are remarkable: Nine in 10 of the innovations were never patented. They were just created and marketed, and changed the world. In other words, it’s the market, not the bureaucracy, that innovates. The authors grant that there might have been downstream versions of the same innovations that were patented. But that fact actually doesn’t change the implications of the study, namely that there is no relationship between the existence of the Patent Office and direction and pace of innovation.

As you dig through their citations, you find other nuggets of information. It turns out that other researchers have found the same thing in early parts of the 20th century and even all the way back to the middle of the 19th. The results keep coming up the same way: There are patents and there are innovations, but they have little or nothing to do with each other.

Read more>>


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

Patent Claims Causing Firms to Exit Business Lines: Study

May 6, 2013

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

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

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

Many detractors call them “patent trolls.”patented stamp

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

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

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

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

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

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


From MacRumours:

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

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

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

Read more>>

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

For more, see:

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


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

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


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

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

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

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


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

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

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

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

Here’s an excerpt from his reply:

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

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

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

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

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



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

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

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

by  – Apr 22 2013, 5:50pm CDT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nina Paley: Make Art, Not Law

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

Make Art, Not Law.

Submitted by admin on 

Nina Paley looking jazzy

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

1. When your interest on free culture has begun?

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

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

From my article How To Free Your Work:

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

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

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

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

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

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

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

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

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

The only reason BY-NC-SA is popular is because people really haven’t thought it through. [click to continue…]


German Parliament says: Stop Granting Software Patents

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

German Parliament says: Stop Granting Software Patents

on: 2013-04-22

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

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

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

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

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Copyrights, Fundamental Rights, and the Constitution

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

Copyrights, Fundamental Rights, and the Constitution


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

My monograph Against Intellectual Property is now available in a French translation, as Contre la propriété intellectuelle Écrit (PDF). It was translated by Xavier Gillard. My work has now been translated into fourteen other languages.



Japan even worse than US on copyright?

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

From Crunchyroll.com:

Tokyo Man Arrested for Uploading “Accel World” Anime Episode

The battle between the Japanese police and illegal uploaders continues

April 18, 2013 12:07am CDT (13 hours ago)
As we have reported, the Japanese police have no mercy for illegal anime uploaders. On April 15th, Kanagawa Prefectural Police’s Cyber Crime Control Office and Minami Station arrested a 34-year-old male temporary dispatch worker who lived in Toshima-ward, Tokyo, on suspicion of using the file-sharing software Share to upload three anime programs including the 8th episode of Accel World to the internet without copyright holders’ permission between June to December in 2012.

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The article lists a large number of arrest cases in Japan based on such uploads.


Thoughts on the Great IP Debate

My comment on Thoughts on the Great IP Debate:

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

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


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

[click to continue…]


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

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

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

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

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

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To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.