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Intellectual Property is Common Property: Arguments for the Abolition of Private Intellectual Property Rights, by Andreas Von Gunten

by Stephan Kinsella on October 30, 2023

Andreas Von Gunten, Intellectual Property is Common Property: Arguments for the Abolition of Private Intellectual Property Rights (Zurich: buch & netz, 2015).

Abstract:

Defenders of intellectual property rights argue that these rights are justified because creators and inventors deserve compensation for their labour, because their ideas and expressions are their personal property and because the total amount of creative work and innovation increases when inventors and creators have a prospect of generating high income through the exploitation of their monopoly rights. This view is not only widely accepted by the general public, but also enforced through a very effective international legal framework. And it is endorsed by most academic researchers and commentators in this field. In this essay, I will show that the classical arguments for the justification of private intellectual property rights can be contested, and that there are many good reasons to abolish intellectual property rights completely in favour of an intellectual commons where every person is allowed to use every cultural expression and invention in whatever way he wishes. I will first give a short overview of the classical arguments for the justification of intellectual property as they are usually stated. We will then discuss the question of whether the creator or inventor deserves his de jure monopoly, by using John Christman’s categories of income and control rights to analyse property rights. The aim here is to show that it does not make sense to create control rights for abstract objects, as they are not scarce, and that there is no logical connection between the surplus which may be generated through income rights and the labour which has been put into a cultural artefact or an invention, and therefore it is not justified to grant monopoly rights on the basis of Lockean natural rights arguments for self-ownership and the just appropriation of worldly resources. As it is possible to reject Christman’s property rights categories, I will then go on to show on the basis of Richard Dawkins’ postulation of the ‘meme’ and Ludwik Fleck’s theory of the ‘thought collective’ that creative processes should be interpreted as interpersonal or collective processes, and therefore it is not justified to grant intellectual property rights to individuals on the basis of the idea that the individual who has put labour into the creative work or the invention should be the one to whom the contents of the work belong exclusively. As it is still possible to postulate the utilitarian argument that intellectual property rights are just because they increase the amount of creative works and inventions, I will argue in the last chapter that, from a libertarian as well as from an egalitarian point of view, the justification of intellectual monopoly rights on utilitarian grounds cannot be maintained. Therefore it is time to abolish the current global intellectual property law regime in favour of an intellectual commons for the good of all human beings and societies.

Have not read yet, but from the abstract, this book seems like it might have some promise. Oddly, the book it nowhere cites me though at least it cites Boldrin & Levine, and Tom Palmer.

That said, it refers to IP as “common property,” which it is not; there are no property rights at all in nonscarce things like information or ideas. The issue is not whether IP “is property” or not, or what kind of property it is¹ (which is exactly why IP proponents classify it as “intellectual” property—a type of property, but a unique one);² it is whether IP laws are justified or not. They are not. There are reasons why. It remains to be seen whether the author really understands why. Stay tuned…

See “What Libertarianism Is,” in Legal Foundations of a Free Society, at Appendix I; see also Legal Foundations of a Free Society, p. 421. [↩]
See Legal Foundations of a Free Society, p. 427–30 & 427 n.77; 444 at n.11. [↩]

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“Good Ideas is Pretty Scarce”

by Stephan Kinsella on October 18, 2023

I’ve bemoaned stupid arguments for IP for a long time,¹ one of which is, when I point out that property rights apply only to scarce (that is, rivalrous) resources,² you hear the retort, “Well, shucks, it seems to me that good ideas is pretty scarce!”³ Equivocating on different senses of scarce: to mean rivalrous, on the one hand, for economic and political discourse; or to mean not abundant, in colloquial terms. Thus, to counter this tedious disingenuous and semantical/equivocational argument, I tend to use the term rivalrous, or sometimes “conflictable,” to focus on the aspect of things that makes then subject to possible conflict, and thus, to property norms. Ideas, even “good ideas,” do not have this characteristic–or “property,” one might say. They are not conflictable.⁴

Of course, just as some IPtards go apeshit when we point out that ideas can’t be owned—we don’t claim you can own ideas!—they indignantly retort; meanwhile, half the other IPtards call us commies if we don’t respect property rights in ideas⁵ — the same here. IP advocates say ideas, or at least, good ideas, are “scarce” in the colloquial sense that doesn’t mean rivalrous, since they sense that ideas are not rivalrous, as all economists (even pro-IP economists) recognize. So they don’t want to be limited to a property theory limited to rivalrous resources; no, it extends to “scarce” things, even in the colloquial sense. After all, people have used the word “scarce” before to explain the problem with IP rights! So .. soo….. blah blah blah.

Yet others are a mite more honest. Case in point: “Property Rights in Non‐rival Goods,” by Bryan Cwik. It’s another flawed argument, but at least he recognizes that ideas are not scarce (in the sense of rivalrous) and thus, to justify IP, one must come up with some way to justify property rights in non-rival goods. No surprise, he elsewhere makes other bad arguments for IP, e.g. “Labor as the Basis for Intellectual Property Rights.” (Interestingly, another Cwik, Paul Cwik, also makes bad arguments in favor of IP. Unlike the other Cwik, Paul should know better, as he is an Austrian and libertarian. See Classical Liberals, Libertarians, Anarchists and Others on Intellectual Property.)

“Absurd Arguments for IP”; “There are No Good Arguments for Intellectual Property”; There Are No Good Arguments for IP-Redux. [↩]
See Kinsella, Legal Foundations of a Free Society, e.g. pp. 14–15, 26–27, 140-41, 206, 266, 402, 622, 628, 690; Hoppe, “Of Private, Common, and Public Property and the Rationale for Total Privatization”. [↩]
I lament this, e.g., in Legal Foundations of a Free Society, pp. 177 n.19, 265, 411. [↩]
On Conflictability and Conflictable Resources. [↩]
IP isn’t about owning ideas; those who oppose ownership of ideas are commies. [↩]

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Wojciech Gamrot, “Inconsistencies in Himma’s Intellectual Property Theory”

by Stephan Kinsella on October 18, 2023

I haven’t read this yet, but it looks interesting.

Wojciech Gamrot, “Inconsistencies in Himma’s Intellectual Property Theory,” Analiza i Egzystencja 63, 24 (2023): 109–132 [pdf]. ISSN: 1734-9923 eISSN: 2300-7621 OAI DOI: 10.18276/aie.2023.63-05

Abstract:

The intellectual property theory of Kenneth E. Himma aims to vindicate natural rights to the “intellectual content of creations”, which is believed to consist of abstract objects. Himma proposes a reformulation of John Locke’s well-known argument in terms of value. He maintains that even if abstract objects preexist their alleged creation, then they are not yet ready for consumption until the access to them is provided by the labor of innovators and artists. He declares that making them available is an act of value creation that justifies granting intellectual property rights. In this paper several assumptions on which Himma’s theory relies are identified and challenged. Against his claims, it is argued that no human labor can improve the availability of abstract objects. It is then demonstrated that “intellectual commons” cannot be “stocked” by human activities and that the alleged value creation cannot happen, because the concept of value is inapplicable to abstract objects. This derails Himma’s IP justification. Finally the meaning of rights envisaged by Himma is investigated. It is shown that they cannot be exercised with respect to causally inert entities.

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Rothbard on Copyright and DVRs

by Stephan Kinsella on October 11, 2023

From an old discussion thread on Ed Ucation, “Intellectual Property: As usual, Rothbard gets it right,” Economic Policy Journal. Comment by Conza (Michael Conaghan):

The latest Rothbard commentary on IP outdating all of the above. Note the intellectual honesty. Note the admission of seeking further commentary. Note the request for more information. Note the shattering of your position that Rothbard saw copyright in perpetuity. [continue reading…]

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Demented Cato “Doctor” Wants to Strengthen Patent Law

by Stephan Kinsella on October 9, 2023

This Term’s alignment of rights in trademarks and copyright with traditional rights in real property is a welcome baby step (indeed, two steps) forward for the Court, which in recent years has refused to put other intellectual property rights on par with real property. One can only hope that the Court will soon explicitly tie the intellectual property rights to the law of real property. One also hopes that while doing so, the Court will take a third step in the right direction by again treating patent rights on par with real property.

—Gregory Dolin, M.D., “Intellectual Property in OT 2022: Two Baby Steps in the Right Direction,” Cato Supreme Court Review 2022–2023 (hat tip Jeff Tucker)

Well, Taco is at it again. This is sad. This joker, or the editor of that review, seem oblivious to the fact that one of their former top scholars, Tom Palmer, was at the forefront of the battle against IP (before he softened his stance since many of Taco donors are Big Pharma, that is). No wonder they disinvited me from an IP panel discussion (Disinvited From Cato). (And I guess it’s further confirmation I was right back in 1999, when Cato approached me about heading up their Supreme Court Law Review, to immediately say “not interested, thanks.”)

Dolin also refers to copyright infringement as “stealing,”¹ which is sloppy and inaccurate, and typical of the emotivist and dishonest way IP proponents argue—by simply labeling copying as stealing, theft, piracy, “ripping off,” and other inaccurate terms. Even the Supreme Court has observed that IP infringement is not “theft.”²

E.g., in Dowling vs United States, the Court held that copies could not be regarded as stolen goods under the law:

Instead, “interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: ‘[…] an infringer of the copyright.’”

But Dolin and his socialistic comrades who favor abolition of private property rights in real resources in the name of the evil, murderous utilitarian bullshit of patent and other forms of IP law³ like to denigrate copying and free market emulation and competition and freedom of speech as “stealing.”
[continue reading…]

“Whether that’s true or not, it is certainly true that the painting (like Warhol’s soup cans) ‘is immediately recognizable as a “Warhol.”‘ … But as a matter of copyright law, the retort is ‘so what?’ For example, the movie No Country for Old Men may be ‘instantly recognizable’ as a ‘Coen Brothers,’ but it does not follow that the movie’s adaptation of the original No Country for Old Men novel is, ipso facto, ‘fair use.’ If that were so, as the Court majority correctly observed, it would give famous, recognizable artists license to steal from lesser-known ones.” [↩]
See Stop calling patent and copyright “property”; stop calling copying “theft” and “piracy”. [↩]
See, e.g., Patent vs. Copyright: Which is Worse?”; “Legal Scholars: Thumbs Down on Patent and Copyright”; “The Overwhelming Empirical Case Against Patent and Copyright”; “Costs of the Patent System Revisited”; patents kill (search). [↩]

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There Ain’t No Intellectual Property: The Personal Story of a Discovery (PFS 2023)

by Stephan Kinsella on September 24, 2023

From “KOL420 | There Ain’t No Intellectual Property: The Personal Story of a Discovery (PFS 2023)” (Sep. 24, 2023).

IP Chapters of Legal Foundations of a Free Society

by Stephan Kinsella on September 23, 2023

My book Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023) has just been published. It has several chapters dealing with IP, to wit:

PART IV: INTELLECTUAL PROPERTY [pdf]

PART VI: INTERVIEWS & SPEECHES

Stephan Kinsella on the Logic of Libertarianism and Why Intellectual Property Doesn’t Exist (2012) [pdf]

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Sue Donimus: Disproving Intellectual Property

by Stephan Kinsella on August 18, 2023

Good article: Sue Donimus, “Disproving Intellectual Property.” Text pasted below.

See also Sue Donimus, “How The Free Rider & Leaker Benefit The Author” and this quote from Rothbard:

“… the free-rider argument proves far too much. After all, civilization itself is a process of all of us ‘free-riding’ on the achievements of others. We all free-ride, every day, on the achievements of Edison, Beethoven, or Vermeer.”

Murray Rothbard, “The Myth of Neutral Taxation,” also in Economic Controversies, p. 478 et pass. Discussed in KOL415: Commentary on Larken Rose, “IP: The Wrong Question”: Part 1. [continue reading…]