I just came across this talk by Brian Gladish, “Andrew J., Galambos’s Ideas and the Future of Private Protection for Intellectual Property” from the 2012 Austrian Scholars Conference. Jesus, what insipid nonsense. Why the hell this would be welcome at the ASC is beyond me. Totally incoherent, crankish shit. Statist, illiberal. Galambos is worthless. It is good he is so insane on IP that he has persuaded his idiotic, cultish followers to agree not to spread his wrong-headed ideas.

Gladish’s fumbling mutterings here are embarrassing and have no place at the ASC, at the institute which previously awarded me the O.P. Alford III Prize for Against Intellectual Property.

Gladish says Galambos makes a good case for Paine being the author of the Declaration of Independence. No. He does not. He was a total crank and loon, on IP as well as this insane theory. See Galambos on Paine. Here (Why Objectivists Hate Anarchy (Hint: IP)), Gladish whines that we are piling on Galambos. He should be piled on. He is one of the worst thinkers I have ever come across. He is worthless. At least Gladish had the sense not to mention retard Galambos in his more recent Mises.org article.

William C. Robinson, The Law of Patents for Useful Inventions, vol. 1 (Boston: Little, Brown, and Co., 1890) (Amazon; google books; HathiTrust), §24 (first footnote omitted):

In pursuing this investigation the relations of an inventor and the public to an unpatented invention first demand attention. In its earliest stage this invention is a mere addition to the stock of ideas possessed by the inventor. He has imagined or discovered something which to himself, and presumably to all the world, is new, and has conceived a method by which his idea may be so applied as to produce a tangible and valuable result. In this stage he has a natural exclusive right to his invention. No one can compel him to disclose his secret. He may reduce it to actual practice, or preserve it as a matter of subjective contemplation. The law can take no other notice of it than it does of his moral sentiments or his personal recollections. If, however, he endeavors to avail himself of this idea in his exterior life, his position in regard to it is somewhat changed. The material forms in which he then empbodies it are his, but the idea itself is not to be imprisoned within their narrow bounds. Every one who examines and can understand them immediately conceives the same idea, whether he will or not, and thenceforward that idea remains as much a part of the observer’s fund of knowledge as it ever was of that of the inventor. In order, therefore, to retain exclusive ownership of his idea, he must withhold its material embodiment from observation; and as long as he can do this, the invention is as truly his by natural right as if it never had been thus externally expressed. But with his submission of the tangible result of his idea to the inspection of others, in such a manner that the idea itself become apparent, its control over it is gone. An idea once communicated can no longer be exclusively appropriated and enjoyed. Every one who receives it possesses it in the same degree as if he alone had apprehended it, and its inventor has no power to restrain him from its practical and useful application. Under the laws of nature the exclusive public use of an invention is thus impossible, and hence there is no natural right to such a use. The inventor, who voluntarily discloses his invention to the public, necessarily and freely dedicates it to the public; and that which formerly was his alone by virtue of his sole possession becomes by universal possession the common property of all mankind.²

2. Coryton:¹ (45) “So far as natural right is concerned, the application of a law of nature, a philosophical or abstract principle, is capable of exclusive appropriation only so long as the secret of such application is within the inventor’s breast. Once passed, it becomes the property of all mankind.”

Norman:² (2) “Independently of an express restriction by the sovereign authority in a state, there is no such thing as exclusive property in an invention. The subject-matters of human inquiry are free to all men. An addition once made to the stock of knowledge is common property forever, nor is it less the property of the discoverer because others possess it as well as himself. It is in its nature infinite and incapable of appropriation. The first builder of a house could claim as his own the substantial and tangible materials, the logs and wood of which he constructed it; but the idea of wuch an erection became instantly the property of all mankind. The abstract natural right of the inventor is only to exercise his own invention freely.”

In The Attorney-General ex rel. Hecker v. The Rumford Chemical Works (1876), 9 O.G. 1062, Shepley, J.: (1064) “So long as such writings and discoveries were not communicated to the public, authors and inventors had a possession of, which was equivalent to a property in, their writings and discoveries. When communicated to the public, by the common law that property was lost.”

[continue reading…]

1. Apparently this is a reference to Coryton on Patents (1855).  [↩]
2. Apparently: John Paxton Norman, A Treatise on the Law and Practice Relating to Letters Patent for Inventions (1853; Amazon).  [↩]

Whenever there is “bipartisan” legislation in Congress, hold to your wallets, for they are coming after it.¹ Or, in this case, they are going to make the patent system worse, i.e. “improve” it. Don’t you know, it’s “broken.”

IP law almost never gets better. It always gets worse. The copyright terms keep getting extended—from 14 years extendable once, to life of the author plus fifty years, now life of the author plus seventy years.² There is  constant agitation to make the copyright fair use defense harder to invoke, constant calls to expand copyright to cover links, newspaper story headlines, and so on. Patent law almost never gets better, except as the random happenstance of court interpretations of its nonobjective and vague standards, e.g. in eBay Inc. v. MercExchange, L.L.C., the 2006 case that mercifully made it somewhat more difficult for patentees to get injunctions against their victims. Something patent terrorists continually whine about.³ The only meaningful improvement in the entire history of US patent law—from 1790 to now—that I am aware of was an expansion of prior user rights in Obama’s 2011 America Invents Act.⁴ But this was pretty minor. Okay there was one other minor one too, that I mention below. The other changes were all window dressing, though you would not know it from the caterwauling of patent shills who freak out about every tiny change to avoid real change ever being considered. They want to keep that Overton window small.

[continue reading…]

1. See also: “Run for your life from any man who tells you that money is evil. That sentence is the leper’s bell of an approaching looter.” —Ayn Rand, “Francisco’s Money Speech” and: “Is there a need to reform taxes? Most certainly. Always and everywhere. You can always make a strong case against all forms of taxation and all tax codes and all mechanisms by which a privileged elite attempts to extract wealth from the population. And this is always the first step in any tax reform: get the public seething about the tax code, and do it by way of preparation for step two, which is the proposed replacement system. Of course, this is the stage at which you need to hold onto your wallet.” —Lew Rockwell [↩]
2.  As I sarcastically observed here, the rules for determining the term of a copyright are clearly the product of natural law. See KOL012 | “The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism,” Austrian Scholars Conference 2008. [↩]
3. Adam Mossoff & Eric Claeys, “Patent Injunctions, Economics, and Rights“; Christopher B. Seaman, “Permanent Injunctions in Patent Litigation After eBay: An Empirical Study“. These support finite terms for patents, even though the number is totally arbitrary: “the exclusionary rights secured by a patent should account for “how long it would have taken, in the absence of knowledge of the invention, for independent discovery” resulting from the productive labors of others.43 This concern is addressed by duration limits.44″ (P. 7) It’s hard to believe they seriously believe that Congress knows and had determined what the “right patent term should be. 17 years? Why? Why should it be the same for all types of patents? Why shouldn’t the courts or the PTO figure it out? Jesus Christ, how can they bear to repeat such utter nonsense! This was the same stupid shit Neil Schulman proposed, as I noted elsewhere: “which is what J. Neil Schulman proposes in his logorights idea–just have some panel of “experts” use “information theory” to figure out how long each patent should last–1.3 years for this one. 26 years for that one. and so on.” See Optimal Patent and Copyright Term Length. As Schulman writes: “Taking the “lowering entropy” argument too far into the area of physical thermodynamics runs one quickly into problems of both fact and theory; the comparative “entropy levels” of a car, a piece of junk, and a chunk of ore are incalculable. Nevertheless, I believe the “entropic” paradigm of regarding creation as a “calculable increase in improbability” is sound within the context of information theory, where one discusses the “entropy” of a signal; and, in fact, I’m told there are existing formulas, used by the Search for Extra-Terrestrial Intelligence (SETI), to calculate the “improbabilities” of a signal being a “natural” occurrence as opposed to being artificially generated “information.” J. Neil Schulman, Origitent: Why Original Content is Property (Steve Heller Publishing, 2018), p. 40. And now you have these guys buying into this. What’s their authority? Nozick’s dilettantish remarks in his anarchy book; he didn’t know anything about IP law, or even how to justify rights! Oh, and Ayn Rand, who made up some makeweight argument. And of course the Congress and the US Code that “says” what the patent term is. Oh, that’s some proof! See also Yaron Brook on the Appropriate Copyright Term; Hawley Introduces Bill to Reduce the Copyright Term; Reason: Copyright Should Last Half A Century; and see the remarks on copyright term and related matters by Tom Bell and Jerry Brito in Tom Bell on copyright reform; the Hayekian knowledge problem and copyright terms. [↩]
4. “Obama’s Patent Reform: Improvement or Continuing Calamity? [↩]

X:

[I’m a law student in a foreign country]

I’ve found many interesting subjects regarding Intellectual Property, especially this debate inside the libertarian community, with Austrian economists’ and anarcho-capitalists postures being the ones I’m the most curious about. This is where I found your articles and your contact information.

Before, while doing some personal investigation about ways to achieve more liquidity from copyrights and their use as assets I found out that decentralization through the use of blockchain and DLTs in creative works markets and the participation of artists and authors in such tends to provide more efficiency and effectiveness for this purpose, of artists and authors getting paid for their works, I’m also a musician so that’s why I was trying to learn about this subject. [continue reading…]

Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before.

Judge Alex Kozinski, in White v. Samsung Elecs. Am. Inc., 989 F.2d 1512, 1513 (9th Cir. 1993) (Kozinski, J., dissenting from denial of rehearing en banc)

As I noted here:

I published Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023) last September, in hardcover, soft cover, and Kindle formats. A free pdf was released at the time of publication as well and the book was published under at CC0 (no rights reserved) license. Read more >>

As I explain at the AIP landing page,

For a compilation of my more recent writing on IP, see You Can’t Own Ideas: Essays on Intellectual Property (Papinian Press, 2023). And see also Stephan Kinsella, ed., The Anti-IP Reader: Free Market Critiques of Intellectual Property (Papinian Press, 2023). I stand by AIP but You Can’t Own Ideas contains a streamlined and updated version of the arguments in AIP, “Law and Intellectual Property in a Stateless Society” (ch. 6) followed by Against Intellectual Property After Twenty Years: Looking Back and Looking Forward (ch. 7) (these are also included in Part IV of Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023)). Together, these two chapters my main arguments against IP. AIP and other chapters in You Can’t Own Ideas thus contain the bulk of my anti-IP ideas and will have to suffice until I tackle writing Copy This Book: The Case for Abolishing Intellectual Property (probably in 2026 or so).

The purpose of property rights is to reduce conflict in the use of scarce means by assigning owners based on objective and just criteria, namely original appropriation (ownership, property) and contractual title transfer (contract), plus ancillary rules for tort (rectification).¹ [continue reading…]

1. Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023) (LFFS), ch. 2, text at n.11 et pass., ch. 11, text at n.15 et pass.; also chs. 4, 5, 14, et pass.; Kinsella, “Aggression and Property Rights Plank in the Libertarian Party Platform,” StephanKinsella.com (May 30, 2022); idem, “KOL259 | “How To Think About Property”, New Hampshire Liberty Forum 2019, Kinsella on Liberty Podcast (Feb. 9, 2019). [↩]