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It’s the wrong question to ask, the wrong way to frame it, and of course, wrong and pro-IP as usual. It’s sad the Federalist Society keeps pushing this.

Oh well, at least they allowed a sane voice at least one time: KOL235 | Intellectual Property: A First Principles Debate (Federalist Society POLICYbrief). But as noted there,

overall the Federalist Society has presented basically the pro-IP side (More defenses of IP by the Federalist SocietyFederalist Society Panel: Undermining or Preserving Property Rights? The New Administrative Patents). I pestered them over years to include more balanced treatment in their bibliography, to no avail (Anti-IP Material Needed in the IP Section of the Federalist Society’s “Conservative & Libertarian Legal Scholarship: Annotated Bibliography”).

 

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The moronic shills at IPWatchdog, including the oafish Gene Quinn, who writes like a 9th grader and used to illiterately list his master’s degree as an L.L.M. (it’s an LL.M, genius) (see here and here), won’t stop their senseless cheerleading for IP:

How the History of Patents Can Teach Us What a World Without Them Might Be Like

Despite its longevity, the patent system is often criticized. During the pandemic, accusing eyes quickly turned to patents and voices were raised demanding that patents related to COVID-19 be “waived”. This is not an isolated event: some have argued that we would be better off without patents for various reasons in other crises of the past as well. This raises the question of what a world without patents – as we know them today – would be like. As is often the case, history gives us some valuable insight. In this article, we will look specifically at three risks posed by a world without patents in light of real examples from the past.

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“Is Intellectual Property Legitimate?” (1998)

One of my first published anti-IP pieces: “Is Intellectual Property Legitimate?” (local copyarchived copy), Pennsylvania Bar Association Intellectual Property Newsletter 1 (Winter 1998): 3; republished in the Federalist Society’s Intellectual Property Practice Group Newsletter, vol. 3, Issue 3 (Winter 2000). See also James Stern: Is Intellectual Property Actually Property? [Federalist Society No. 86 LECTURE]

[continue reading…]

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Stephan Kinsella, “Letter on Intellectual Property Rights,” IOS Journal 5, no. 2 (June 1995), pp. 12-13. This issue also contains 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.

This was the journal of David Kelley’s Institute for Objectivist Studies, or IOS, which is now The Atlas Society. The letter was a response to Murray I. Franck, “Intellectual Property Rights: Are Intangibles True Property?“, IOS Journal (April 1995). Franck, and later Kelley, argued for IP; I argued against it.

See also a subsequent response from The Atlas Society to my IP criticisms in Marilyn Moore, “Ayn Rand’s ‘Patents and Copyrights,'” AtlasSociety.org (May 28, 2019).

N.b.: some back issues of IOS Journal are archived here.

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Radu Uszkai, “Are Copyrights Compatible with Human Rights?,” The Romanian Journal of Analytic Philosophy 8 (2014), pp. 5–20.

Abstract:

The purpose of the following study is that of providing a critical analysis of Intellectual Property (IP), with a closer look on copyright, in the context of human rights. My main conjecture is the following : the legal infrastructure stemming from the implications of copyrights which states created has negative consequences if we have a closer look at some human rights specified by The Universal Declaration of Human Rights (UDHR). For example, copyrights are, in my view, incompatible with the human rights which specify that (1) human beings have a right to freely take part in the cultural and scientific life of the communities which they inhabit and (2) human beings have a right to own property. My main hypothesis is the following : if copyrights are, in fact, more difficult to ground from a moral perspective, then this considerations must trump the provision of the 27th article of the UDHR, which states that creators, be they artists or researchers, have a human right to have their moral and mate‑ rial interests protected with regard to their intellectual products, if this amounts to a justification for a copyright.

This paper is also relevant to the points made in Intellectual Property Rights as Negative Servitudes.

See also idem, “The Use of Torrents in Society,” Libertarian Papers vol. 10 (2018).

Abstract:

This paper explores whether the case against intellectual property can be strengthened by appealing to the work of F.A. Hayek. It strives first to establish a Hayekian research agenda on copyright by providing a unified reading of Hayek’s scattered remarks and positioning them within a broader picture of the contemporary philosophy, politics, and economics of IP. Secondly, exploring peer-to-peer (P2P) file sharing and copyright infringement through a Hayekian lens suggests what might be a useful analogy between the ability of torrent downloads and prices to convey information. Last but not least, the paper ends on a skeptical note concerning the moral and economic foundations of copyright by presenting what I consider a more Hayekian alternative: crowdfunding platforms.

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The hapless patent attorney/shill Russ Krajec,1 of “BlueIron,” an IP consulting thing, or something, in a recent ineptly written piece, tries to criticize the extortion that lies behind patent trolling, and to distinguish it from “legitimate” “investment grade patents.” He writes:

Investment Grade Patents are not for Patent Trolling
They are for business negotiations.
Patent trolling is the business of extortion. Generally, patent trolling is when someone sues for patent infringement but is willing to settle for less than the cost of litigation. It is extortion, pure and simple.

This reminds me of my post Patent trolls as mafioso (and that’s a compliment), quoting The Godfather II:

Don Fanucci: Young man, I hear you and your friends are stealing goods. But you don’t even send a dress to my house. No respect! You know I’ve got three daughters. This is my neighborhood. You and your friends should show me some respect. You should let me wet my beak a little. I hear you and your friends cleared $600 each. Give me $200 each, for your own protection. And I’ll forget the insult. You young punks have to learn to respect a man like me! Otherwise the cops will come to your house. And your family will be ruined. Of course, if I’m wrong about how much you stole, I’ll take a little less. And by less, I only mean – a hundred bucks less. Now don’t refuse me. Understand, paisan? Understand, paisan?… Tell your friends I don’t want a lot. Just enough to wet my beak. Don’t be afraid to tell them!

Or see Hsieh and Mossoff on IP and Sewing Machines, quoting Objectivist law professor Adam Mossoff:

the fact remains that [patent] lawsuits are often no more than an invitation to negotiation. “Oftentimes the way a party signals to another party in one’s industry, ‘I’m serious about this–you need to speak with me,’ is by filing a lawsuit,” says Mossoff.

Hey, Krajec, I got news for you–the license fees extorted by your “investment grade patents” are still extortion. One could even argue patent trolls–so-called “non-practicing entities”–and “junk patents” are the not as bad as “good” or “investment grade” patents held by “practicing entities,” since patent trolls don’t want to kill the infringer, they just want “a taste”.

  1. See KOL284 | Talking IP and Patent Policy with Patent Attorney Russ Krajec. []
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Hettinger v. Paine: Justifying Intellectual Property Rights

After Edwin C. Hettinger’s paper “Justifying Intellectual Property,” Philosophy & Public Affairs, Vol. 18, No. 1 (Winter, 1989), pp. 31–52,1 critical of IP, Lynn Sharp Paine responded in “Trade Secrets and the Justification of Intellectual Property: A Comment on Hettinger,” Philosophy & Public Affairs, Vol. 20, No. 3 (Summer, 1991), pp. 247–63 (text). 2

The debate is summarized in “Hettinger v. Paine: Justifying Intellectual Property Rights” by Professor Adam D. Moore.3 Moore’s overview of Hettinger’s critique of IP rights:
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  1. Online at https://booksc dot org/book/30425512/307448 . []
  2. Online at https://booksc dot org/book/59831754/494f96 . []
  3. Moore is author of Intellectual Property and Information Control: Philosophic Foundations and Contemporary Issues (Routledge, 2001; pdf), Intellectual Property: Moral, Legal, and International Dilemmas, ed. (Lanham, Md.: Rowman & Littlefield, 1997; pdf; Introduction), and the forthcoming Intellectual Property: Moral and Legal Foundations. []
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Wojciech Gamrot, “The type individuation problem”

Maybe a better, more comprehensible title, would have been “fuck IP”.

Wojciech Gamrot, “The type individuation problem,” Studia Philosophica Wratislaviensia, vol. XVI, fasc. 4 (2021); DOI: https://doi.org/10.19195/1895-8001.16.4.3 [pdf]

Abstract: Lockean justifications of intellectual property postulate the appropriation of immaterial entities, in various contexts called types, patterns, designs, or technologies. It is widely believed that the ownership of such entities gives the owner a right to control their physical embodiments and prohibit imitation. For the prohibition to be meaningful, a condition identifying forbidden objects must be formulated. It must cover not only objects which are identical to some original artifact or its exact, ideal description, but also those which are only similar. This requires systematic answers to three questions: (1) which material structures and which of their subsets should be compared? (2) which of their characteristics should be compared? (3) how to combine these characteristics into a decision rule for token identification? There is no underlying empirical reality that could be independently consulted by individuals in order to incontestably answer these questions. Meanwhile constant evolution in technology and arts requires addressing them repeatedly. Consequently, intellectual property regimes must rely on political institutions incessantly dictating the scope of prohibition, and hence they cannot originate or exist in a prelegal state of nature.

Update: See also Wojciech Gamrot, “On Type Creation and Ownership”

[continue reading…]

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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.