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Various IP advocates sometimes argue IP is an even purer or stronger form of property than property rights in material resources, because with those, you just find them and they already exist, and you come to own them by adding some of your own labor or transformation to them (this is also similar to the criticism of property rights in land by moronic Georgists),1 but with ideas, they come purely from the intellect so are 100% the product of the creator.

This is all nonsense of course. For one, all ideas are also incremental and build on previous knowledge developed, publicized, and advanced by others. But the fundamental mistake is in the assumption that creation is a source of ownership. See, e.g., my post Owning Thoughts and Labor; also Against Intellectual Property After Twenty Years: Looking Back and Looking Forward, the “Lockean Creationism” section here; and KOL037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory.

In the end, this “IP is more important/justified than others types of property rights” is the end result of Lockean Creationism—the deeply confused and flawed idea that property rights come from creation. Once you accept that, then it seems to follow that if you create a poem or invention, you own that too. But then, you realize that perpetual patent and copyright terms would be a problem, so you arbitrarily limit these “rights.” It’s a mess. And it highlights why we need to demolish and bury Lockean/Libertarian Creationism.

But for some examples I’ve collected (I will add more over time as I stumble across them): [continue reading…]

  1. See my post Egads, I hate Georgism. []
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See also Benjamin Tucker and the Great Nineteenth Century IP Debates in Liberty Magazine.
Title:The Question of Copyright
Author: James L. Walker

Date: 1891
Source: http://fair-use.org/tak-kak/the-question-of-copyright/
An amazingly perceptive work for something written so long ago. For example, here is Walker skewering and anticipating the practice of Monsanto and others with their ridiculous seed patents:

Profit is gain by monopoly. What Spencer seeks from copyright is gain; and he wishes to be protected against others doing the same acts as himself and his assigns. But equal liberty permits him to do merely such acts as he can do without interfering with the equal liberty of others. Since Spencer remains at liberty to copy, we do not invade his liberty by copying. He, however, wishes to be the sole copyist or to sell the privilege as regards his compositions. But thus he would mingle a certain amount of labor with natural elements which he did not create, and that universally. He would exercise ownership and receive pay where he knows not. Like one who discovers and first cultivates a new variety of wheat and lays claim to a share of the increase of all fields where it is sown, he is a monopolist.

I grant that it is allowable for Mr. Yarros and others to voluntarily submit to such royalties, but suppose that one who has bought a bushel of the new wheat, grown more, and so far paid the demand of the discoverer from his crop, sells the rest. The burden of proof in the question of ethics is, I think, decidedly on the other side, on a claim that royalty attaches to the culture by any hands and intelligence.

And here he eviscerates the ridiculous “bundle of rights”/contract argument for IP, which Rothbard himself later advanced:1

If one can sell his liberty to copy his writings, can he not sell his liberty to build a second house after the pattern of the first? Can he not sell his liberty to follow a trade? Can he not bargain for a conjugal privilege that he will not have other conjugal relations? And if one of these transactions receives the social sanction, why not the others?

If, however, I have an inalienable right to rebuild according to my own plans have I not a right to engage others to help me? And have not others a right to do for themselves on their own land what they have a right to do for me for hire on my land? Let the answers be given by reference directly to liberty,—to the maximum of equal liberty, may I say? If, then, the inquiry via the corollary seems to some persons to show an infringement upon a gain which has an appearance of being a proprietary result, it will be well for them to examine all the factors, to discover where there has been a false principle admitted. In these articles I have anticipated this position. Perhaps I need only add now that it is not incumbent upon society to guarantee the individual a certain gain for his labor. Equal liberty being admitted, he must be content with whatever gain follows.

  1. See Rothbard, “Knowledge, True and False” and Against Intellectual Property, the section “Contract vs. Reserved Rights.” []
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Louis Rouanet, “Michel Chevalier’s Forgotten Case Against the Patent System,” Libertarian Papers 7 (1) (2015): 73–94.

Abstract: Although Michel Chevalier was an influential economist during the second half of the nineteenth century, and is well-known as an architect of the Cobden-Chevalier Treaty, his work in economics has been largely forgotten. In particular, Chevalier is notable for being one of the only French liberals opposed to patents. Unfortunately, his original and compelling critique of the patent system has been neglected. This paper rediscovers Chevalier’s arguments against patents, shows why they are still relevant today, and explains why they have been mostly ignored by historians of economic thought.

See also Michel Chevalier and patents: Ownership or privilege, by Louis Rouanet, Institut Coppet.

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From 2016. For more by Carson.

“Intellectual Property” Just Keeps Getting Deadlier

You may be familiar with the role of proprietary automobile diagnostic software in enforcing a repair cartel of the Big Auto manufacturers, dealership mechanics, and auto repair chains and big garages that can afford to license the software. By using closed software that makes it impossible for an independent party to access it, or open it up and modify it, the effect is to lock low-cost, independent mechanics (“shade tree mechanics”) out of a major share of repair work. Similarly, closed, proprietary software in electronic voting machines makes the process of counting votes completely non-transparent so that voters and independent investigators have no way to verify whether the machines have been hacked — a repeated concern in election years ever since the internal emails of the Diebold company were leaked in 2004. But at least you don’t depend on such software to keep your heart beating. Well, actually you do — as Cory Doctorow points out, pacemakers also run on proprietary software (“Pacemakers and Piracy: The Unintended Consequences of the DMCA for Medical Implants,” Electronic Frontier Foundation, April 19). [continue reading…]

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Jay Mukherjee & Walter E. Block, “Libertarians and the Catholic Church on Intellectual Property Laws/Libertarios y la Iglesia Católica en las leyes de propiedad intelectual,” Las Torres de Lucca: Revista Internacional de Filosofía Política Nº 1 (julio-diciembre 2012): 83-99

Abstract:

Catholics and libertarians make strange bedfellows. They sharply disagree on many issues. However, when it comes to intellectual property rights, they are surprisingly congruent, albeit for different reasons. The present paper traces out the agreement on patents between these two very different philosophies.

See also:

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The Economist on Owning Ideas (1850)

From Alexander Zaitchik, Owning the Sun (online at https://b-ok dot cc/book/21083878/f3fb12):

“Long before medicines entered the monopoly debate, many countries were hesitant to accept the general Anglo-American concept of “owning ideas.” A debate over the legitimacy and value of monopolies as awards for invention was a tempest across Europe throughout the nineteenth century and into the twentieth. The Netherlands proudly maintained what it called a “free trade in inventions” until 1912. During this long argument, the fiercest denunciations of intellectual property were found not in left-wing journals but in the pages of The Economist, whose editors advocated for the abolishment of the English patent system. The magazine asserted in 1850 that for inventors to “establish a right of property in their inventions,” they first would have “to give up all the knowledge and assistance they have derived from the knowledge and inventions of others . . . That is impossible, and the impossibility shows that their minds and their inventions are, in fact, parts of the great mental whole of society, and that they have no right of property in their inventions.”

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The recently-published Routledge Companion to Libertarianism (Matt Zwolinski & Benjamin Ferguson, eds., 2022) includes a chapter on “Intellectual Property,” written by Objectivist law professor Adam Mossoff. I was initially dismayed that Mossoff was included in the book since he is pro-IP.1 However, according to the Introduction, his chapter “surveys the surprisingly wide range of libertarian opinion on the issue of intellectual property rights.” As Mossoff states, “This chapter does not argue for any position in this longstanding IP debate, but rather describes the various positions on IP rights among libertarians and classical liberals.”

To my pleasant surprise, it’s a pretty decent and even-handed overview. I would quibble here and there, but it’s pretty good. As for some quibbles— [continue reading…]

  1. See “Mossoff: Patent Law Really Is as Straightforward as Real Estate Law“; “Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors“; “Hsieh and Mossoff on IP and Sewing Machines“; “Mossoff: Why Should Business Leaders Care About Intellectual Property (Objectivism)“; “Pledge for a Webcast on Intellectual Property by Adam Mossoff“. []
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Dean Baker: Patents Cost Almost $1 Trillion A Year

Dean Baker is sometimes skeptical of IP excesses,1 though he’s no abolitionist.2

But as I said, sometimes he has a decent point when criticizing IP. For example, see his “Working Paper: Is Intellectual Property the Root of All Evil? Patents, Copyrights, and Inequality” (2018), which persuasively argues that abolishing patents would save about $827 billion annually, with some products becoming more than 90% cheaper. [continue reading…]

  1. Dean Baker, Getting Ready for the Next Pandemic: Can We Get Patent Monopolies on the Table? (“We are still seeing no real debate as to whether we want to rely on these monopolies as a primary mechanism for financing medical innovation in the future.”); The Economist: Copyright Is An Antiquated Relic That Has No Place In The Digital Ages. []
  2. On Dean Baker’s inconsistent and confused views on IP policy, see: “$30 Billion Taxfunded Innovation Contracts: The ‘Progressive-Libertarian’ Solution”; Libertarian Favors $80 Billion Annual Tax-Funded “Medical Innovation Prize Fund”. As I noted in The Economist: Copyright Is An Antiquated Relic That Has No Place In The Digital Ages, Baker is not opposed to state-granted intellectual property, though he does toy with the idea of using taxpayer funded multibillion-dollar “artistic freedom vouchers” to promote artistic creation as some kind of improvement on copyright, and $30 billion/year in taxpayer funded subsidies for medical innovation. He’s also bad on §230 reform. Re The “Artistic Freedom Voucher” [sic]:

    As noted by Roderick Long here, “Timothy Lee writes:  ‘I can’t agree with Baker that all copyright and patent monopolies are illegitimate.’ I’m actually not sure that’s Baker’s view (in his original response Baker remarks in passing, ‘there may be areas in which patents are an effective policy for promoting innovation’).” In that exchange, Long rightly criticizes Baker’s proposal for “a system in which the government allocates a pot of money (@$30 billion a year – approximately equal to private R&D in the pharmaceutical sector) that would be awarded in long-term contracts to a relatively small number of master contractors”. I criticize this and related proposals in $30 Billion Taxfunded Innovation Contracts: The “Progressive-Libertarian” Solution. []

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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.