This is included as ch. 41 of Stephan Kinsella, ed., The Anti-IP Reader: Free Market Critiques of Intellectual Property (Papinian Press, 2023).
***
From my Mises blog post a year ago:
How to Improve Patent, Copyright, and Trademark Law
Archived comments (below)
January 13, 2010 by Stephan Kinsella
As I note in my article “Radical Patent Reform Is Not on the Way,” Mises Daily (Oct. 1, 2009), there is a growing clamor for reform of patent (and copyright) law, due to the increasingly obvious injustices resulting from these intellectual property (IP) laws. However, the various recent proposals for reform merely tinker with details and leave the essential features of the patent system intact. Patent scope, terms, and penalties would still be essentially the same. In the second article of this two-part series, “Reducing the Cost of IP Law,” Mises Daily, published today, I propose various reforms to the existing patent system–short of abolition–that would significantly reduce the costs and harm imposed by the patent system while not appreciably, or as significantly, reducing the innovation incentives and other purported benefits of the patent system. I list these changes below in generally descending order of importance, without elaboration, as they are discussed further in “Reducing the Cost of IP Law”:
Patent Law
- Reduce the Patent Term
- Remove Patent Injunctions/Provide Compulsory Royalties
- Add a Royalty Cap/Safe Harbor
- Reduce the Scope of Patentable Subject Matter
- Provide for Prior-Use and Independent-Inventor Defenses
- Instantly Publish All Patent Applications
- Eliminate Enhanced Damages
- Add a Working/Reduction to Practice Requirement
- Provide for Advisory Opinion Panels
- Losing Patentee Pays
- Expand Right to Seek Declaratory Judgments
- Exclude IP from Trade Negotiations
- [update: add a fair-use defense1
- reinvogorate the reverse doctrine of equivalents defense ]
- Other Changes
Increase the threshold for obtaining a patent- Increase patent filing fees to make it more difficult to obtain a patent
- Make it easier to challenge a patent’s validity at all stages
- Require patent applicants to specify exactly what part of their claimed invention is new and what part is “old” (e.g., by the use of European-style “characterized in that “claims)
- Require patent applicants to do a search and provide an analysis showing why their claimed invention is new and nonobvious (patent attorneys really hate this one)
- Limit the number of claims
- Limit the number of continuation applications
- Remove the presumption of validity that issued patents enjoy
- Apportion damages to be proportional to the value of the patent
Copyright
- Radically reduce the term, from life plus 70 years to, say, 10 years
- Remove software from copyright coverage (it’s functional, not expressive)
- Require active registration and periodic re-registration (for a modest fee) and copyright notice to maintain copyright (today it is automatic, and it is often impossible to determine, much less locate, the owner), or otherwise make it easier to use “orphaned works“
- Provide an easy way to dedicate works to the public domain — to abandon the copyright the state grants authors
- Eliminate manifestly unjust provisions of the Digital Millennium Copyright Act (DMCA), such as its criminalization of technology that can be used to circumvent digital protection systems
- Expand the “fair use” defense and clarify it to remove ambiguity
- Provide that incidental use (e.g., buildings or sculptures appearing in the background of films) is fair use
- Reduce statutory damages
- Note: Because some of these changes would violate the Berne Convention, the US should exit this and any other relevant treaty2
Trademark
- Raise the bar for proving “consumer confusion”
- Abolish “antidilution” protection
- In fact, abolish the entire federal trademark law, as it is unconstitutional (the Constitution authorizes Congress to enact copyright and patent laws, but not trademark law)
***
January 20, 2010 at 9:16 am-
Anyone seen the stories claming that China stole the plans for its bullet train?
January 20, 2010 at 9:38 am-
Check out “Make Polluters Pay”.
January 20, 2010 at 10:10 am-
Pure absurdity and whim from Stephan Kinsella, as usual.
January 20, 2010 at 10:20 am-
@Stranger
Care to elaborate on YOUR whimsy?
January 20, 2010 at 10:39 am-
I don’t see the point of this exercise. Whenever anyone does start to show any success in demonstrating that the costs of IP vastly exceed the benefits, Stephan_Kinsella will just turn right around and say, “Well, only unprincipled utilitarians care about that.”
January 20, 2010 at 11:27 am
January 20, 2010 at 12:43 pm-
@Deefburger, after having his keister roundly tanned on the blogs and in the community forum, all Stranger can muster is some incoherent appeal to positive property rights, and vague criticisms of Stephan Kinsella’s motives.
When people have to criticize your motives and not your argument (I’m guessing 50% of the content on TokyoTom’s blog) then they have lost.
January 20, 2010 at 2:13 pm-
Lakner, Bala, Kinsella.
Against the ‘IP fascists’, my final word on the anti-IP Collectivist Thief, and their attack on individual liberty:
http://www.solopassion.com/node/7285#comment-83631
January 20, 2010 at 3:07 pm-
-Provide for Prior-Use and Independent-Inventor Defenses – I hope that this allows for or will incorporate the concept of “reverse engineering”
Note: the graphic you used displays an actual device. Along those lines, all patents must have real plans for the device. “Cloud” boxes should be prohibited. The reason for this is to minimize (prohibit) patenting broad abstract concepts.
.
- January 20, 2010 at 3:14 pm
January 20, 2010 at 3:25 pm-
In the context of the arbitrariness of homesteading and “IP laws are to assist internalizing the external”, I think Kinsella’s proposal is a great start and compromise.
Some technicality though: how do you intend to
“Apportion damages to be proportional to the value of the patent”. What is the value of a patent? - January 20, 2010 at 4:22 pm
- January 20, 2010 at 5:35 pm
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Stephan,
It might be technicalities though I would say “Value through price is determined by the market and that is definitely left out by an infringment”. And here we talk about not one value but ratios of differences of values, that is even harder to determine.
Isn’t it simpler to limit patenting of the new invention only and not the whole device in your case and keep the patent system consistent? That should be covered by the novelty requirement. This way, at least one variant is eliminated. - January 20, 2010 at 5:43 pm
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I have a series of questions for anyone in favour of IP protection:
If the idea is in fact an objective object, where is it?
If the object is in a place that can be observed by others, then how is it that it can be claimed to be the exclusive domain of just one mind?
How can you and I work on the same Intellectual Property at the same time if it is not in fact existent within the same shared reality?
If the object is not in a place that can be observed by others, then what is the need for IP protection?
If it is the discovery of a previously unknown phenomenon or state of being, then is not discovery the revealing of something that was not visible before but already existent? (DNA, plant chemistry)
If it is the creation of a line of thought or reasoning that no one had expressed before, is the unique expression of that thought an observation of an object that already exists, or is it the creation of an object that before did not exist except as a possibility?
If it is the creation of a new object, where is it?
If the possibility of it’s existence existed prior to the creation of the expression, then the possibility also existed for someone else to observe and express the same observation. This would be so if the object exists in a place that any one could see if they looked and therfore in a shared reality. So are we to protect the “view” of one person over the “view” of another?
So how does one then claim exclusive access to a space that any one can reach by exercising their intent to see?
The only portion of observation that is unique, is the position of the observer and the observer’s Identity. So are we to protect our observations of non-physical objects, by first use of force, by punishing those who observe and find knowledge of observation useful, after we have seen the same object? Isn’t first use of force with intent against the natural laws of Liberty?
How are we to decide fairly, if there are no signs, fences, or barriers to trespass?
How can the properties of physical objects and the laws associated with them, be applied to non-physical objects that do not have the same physics?
The only thing that is unique about any discovery or invention is the time, place and person who discovers the IP and draws a map to it. After that, it is like a trail to the top of a mountain. Any one can go there if they so choose, and there is nothing anyone can do to prevent it. You can jail them afterwards, but you can not stop them beforehand. This lack of control of the Metaphysical space is the primary difference between Physical Object property law, and Metaphysical Object Properties. Physical Property law does not apply.
In order to apply law to Metaphysical Objects, you must understand the Natural law of those objects and their existence. To ignore this and proceed as though those objects are just fancy new physical objects is to go against natural law. Any law that bucks natural law eventually comes to failure.
Imagine a sphere of glass that is hollow and full of water. Imagine it has no openings and no pockets of gas. Do you see it? Can you make one?
All who read this can see this in their minds. But very few are able to imagine a physical process that could create such an object. In fact, there is no such thing, so far, on Earth.
Physical Natural Law is a derivative of Metaphysical Natural Law, not the other way around. The scarcity argument comes about as a Physical Limitation not a Metaphysical Limitation. Property in Metaphysics is not own able and not scarce. Metaphysical Reality has no limit on the number and nature of objects, and no barriers to access. It is only in Physical Reality that we encounter scarcity. It is only in Physical Reality that we are faced with choices of force or no force.
Initial use of force with intent is not justified in Metaphysics or Physics. Creation of positive rights laws that require initial use of force with intent are un justified under any circumstances. The negative results of such laws is evident in the actions of the RIAA and the high costs of Patent Litigation. These negatives have no rational justification when one examines the true nature of the realities these laws proclaim to protect.
- January 20, 2010 at 6:44 pm
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Deefburger, there are many homes that have front gardens that are not fenced in and have no visible barriers. This is not an invitation to pick the flowers. You are still a trespasser.
January 20, 2010 at 7:45 pm-
“Deefburger, there are many homes that have front gardens that are not fenced in and have no visible barriers. This is not an invitation to pick the flowers. You are still a trespasser.”
You are missing his point. You can see all those homes, those are are at physical locations. Locations that can be specified in addresses, XYZ co-ordinates, latitude and longtitude etc. They can be touched. Stuff like that.
- January 20, 2010 at 8:33 pm
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I’m still not seeing the point.
- January 20, 2010 at 8:33 pm
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@Stranger
How will you know? Will you see me there? Where is that? I just plucked a rose from your imaginary garden. What’s it worth to ya?
- January 20, 2010 at 8:43 pm
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Well if you pluck a rose from the garden perhaps you will get away with it, but that doesn’t make your act lawful, it just makes it sneaky. If you repeatedly pluck roses day after day I will get suspicious and watch closely over them, and it is likely that a witness will catch you in the act, and then it will be obvious that you are the guilty party. From then on, the full force of the law will fall upon you and you will have to compensate me for the entire damage caused by your trespass.
If the law did not protect my property, then not only could I not even consider putting roses there, everyone could invite themselves to drive right over the land and damage it at will, and I would have no recourse.
- January 20, 2010 at 8:46 pm
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@Stranger
You really don’t “get it” do you? Never mind.
- January 20, 2010 at 8:58 pm
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No, I don’t get communism. Sorry, my bad.
- January 20, 2010 at 9:18 pm
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@Stranger
Dude, what you call “Communism” is a result of Metaphysical Reality, not Human secular law or ideology. It just IS. You can make a secular law against it, but you will then be put in the unfortunate and un-Libertarian position of enforcement by first use of force with intent. Your bad indeed.
- January 20, 2010 at 9:40 pm
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Stranger gets it Deefburger. An attack on property rights is an attack on liberty. IP is property.
you can make a secular law against it, but you will then be put in the unfortunate and un-Libertarian position of enforcement by first use of force with intent.
Force is wholly proper in the protection of property, and the protection against those initiating force, such as the theft of property, including IP: indeed, there can be no free, Libertarian society without such protection.
It’s the difference between anarchists such as Kinsella – who is no Libertarian – and Libertarian minarchists who could actually run a free society because they keep the rule of law, and encapsulate the framework necessary for a capitalist economy to operate..
what you call “Communism” is a result of Metaphysical Reality, not Human secular law or ideology.
You’ll be interested in my definition of a computerhead – sort of a brainy airhead – on this link:
http://www.solopassion.com/node/7285#comment-83631
I’ve also noted on that post how Kinsella’s is not, again, a Libertarian view at all, it’s a Looters view.
- January 20, 2010 at 10:18 pm
- January 20, 2010 at 11:13 pm
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Thanks for the civility.That helps improve discourse and the atmosphere.
Would you be civil with someone burglarising your house, or sanctioning the burglar to do so and giving them the excuse?
These are amongst the life and death issues for liberty of the individual we are dealing with here and I hate what Mises.org is promoting with its anarchist anti-IP stance. It’s destroying the good being done alongside great men like Reisman and his economic analysis.
Have you read the SOLO thread on IP? I give my position there as to why IP is most certainly property, indeed, as one of the posts on SOLO says, the ‘I’ is immaterial, we are simply dealing with property no matter how you try and rationalise away from that position.
You do realize that capitalizing words is kind of crankish and the sign of ignorance, or an amateur or newb, right? Capital-L “Libertarian” refers to a member of the LP, not a “libertarian.”
Jeez. Again, I refer you to my definition of computerhead:
http://www.solopassion.com/node/7285#comment-83631
I’m not a LP member, true, but I am a libertarian. I oppose aggression consistently, which is why I oppose the state, which is the agency of institutionalized aggression. I can’t fathom why an Objectivist would favor aggression.
Aggression? How can a Libertarian minarchist government protecting the rights of the individual, including property rights as the a-priori of liberty and the pursuit of happiness, be responsible for aggression? It is simply serving its true function of protection of the individual from the initiation of force and fraud, including the plunder of and individual’s IP.
That definition you have given of yourself above: that’s an anarchist, a Libertarian is akin to a classical liberal who understands there is still need for a small minarchical state to protect the rights of the individual for there to be free society, with such small state being bound by a constitution such as the Constitution of New Freeland:
http://www.freeradical.co.nz/content/constitution/index.php
Do you hold with a minarchy?
Finally, a question for you which Jeffrey Tucker never answered:
Do you have an ethical/moral issue with buying a physical book from a bookshop, scanning to an electronic file, then uploading to a file sharing program to be plundered?
What would be your position for the same book that starts out as an e-book?
January 21, 2010 at 1:07 am-
Mark Hubbard,
You do realize the glaring contradiction in positing a state, however small you want it to be, to protect rights? You agree that the people manning the state are in privileged positions?
Legal privilege necessarily mean someone’s rights are being violated.
Minarchism does not seem to resolve the thousands-of-years old question: Quis custodiet ipsos custodes? (Who will guard the guards?)
In other words, minarchism gets the incentives wrong. Aprioristically speaking, minarchism’s inequality hinders further prospects for getting justice. - January 21, 2010 at 2:27 am
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This is not an attack on property rights. It is an illustration of the nature of physical property which has rights due to it’s nature as a physical thing, and the nature of intellectual property which does not obey the same natural laws.
The argument is not against you or any other author of original work. It is not a device to “rob” you of your rightful due. On the contrary, your creative work has value and you have a stake in that value. Your Identity as an author, or artist or any other form of creative work is of utmost importance to the market, if your work is to be marketable at all.
It is simply a matter of realities. Yes, your novel is valuable, but no you do not have the natural right to expect compensation for every copy of it. You simply can’t get it. Enforcement in and of itself is a chore and an EXPENCE, not a gain or a profit. Pushing all the cost down to your market is not exactly the best way to win friends and influence people. Look at the RIAA and how much we all love them.
What you can get is recognition. You are the focus of the work. You are the original source of the work. You are the one that people are going to want to continue producing. You are the one people will want to meet and interview.
In a world without IP protection, any work that is marketable is valuable. But any source of value, any artist, writer, etc. who has the ability to produce marketable content, is a source worth knowing and paying. Marketing requires contact with the purchaser. Marketing requires product to sell. Only you can provide both the content and the source. If your work is in demand, it makes no difference to the market if your work is free in some form. You can market your content in any way you choose and through what ever means you choose. Just because it can be copied doesn’t automatically make YOU worthless.
For me, as a publisher, if I am actually selling copies of your work, then people are actually interested in your work and I am going to want more and I am going to try to make sure you create it. I’m going to want to hire you to write. I’m evaluating your work as worthy of investment just by publishing a copy. If I’m going to invest in every other aspect of the production, why would I not invest in the source of the content? That would be YOU padre.
In the Pro IP protection world, it’s not so simple. You, even as the master source of the content have little say over the marketing and investment opportunities. By virtue of the existence of IP law, you were forced to contract the IP to the publisher as Property.
If the publisher fails to market it, oh well, too bad for you. He sells the first 10000 copies and poof! You are out of business. Your work, orphaned because you didn’t even make it to the top 1000.
This is only a problem because IP protectionism makes it so.
Ask the artist who was formerly called “Prince” and is now called “Prince” again what a pain in the butt that is! And he is a successful artist!
No, the argument is not against artists or inventors at all. It is simply the nature of the objects that they are difficult to apply physical property laws to, because they are not physical and they don’t behave like physical property. Frustrating concept to grok, but there it is. Forcing everyone else to treat them like they were physical is, well, force and against the nature of both the objects and the people.
The publisher has every right to print books. I understand that he has no right whatsoever to publish YOUR book under his name. That is definite fraud. But he does have physical property rights to utilize his resources in whatever way he can to profit from his production and marketing.
The main thrust of the argument is between the rights of the artist and the rights of the publisher.
The conflict only exists because of the intellectual property law. Without that law, the artist is of great importance to the publisher BECAUSE he can’t be owned. Think about that Mark Hubbard. Think about it real hard because how you choose to publish your work under these circumstances of law will affect your future success.
My advice to artists and other creators of unique expression is to utilize the realities of the metaphysics to reach your audience, and use your Identity to monetize your work. CWF + RTB = $$$
And don’t let go of your IP in the process. Use Creative Commons and actual production to make a buck.
Trade secrets and special processes are fine and natural outcomes of a lack of IP protection. No problem. Secrets are IP that has limited scope of observation. That is how a Libertarian protects a thought, by NOT sharing it with anybody. Not by forcing others to refrain from utilizing their own knowledge and physical means.
Write your book. Sell your IP to someone, and hope there is interest in the next release. Or Creative Commons your work, publish it physically yourself and market it by giving away limited content on the internet, whenever and with whomever you please.
One of these ways has a better future outlook for a new author. Can you guess which one? It’s working for the Mises Institute pretty well, even for authors who haven’t been read in years.
- January 21, 2010 at 2:44 am
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@Stephan Kinsella
“You do realize that capitalizing words is kind of crankish and the sign of ignorance, or an amateur or newb, right? Capital-L “Libertarian” refers to a member of the LP, not a “libertarian.”
“there can be no free, Libertarian society without such protection.”
capital L.”
I see, you mean Libertarian Party versus libertarian the way of thinking. Got it professor. My Bad! Chalk it up to an error of passion. I don’t think I’m being cranky, just grammatically incorrect. I did check my spelling though….
I meant small “L” libertarian as in classical liberalism, or is it Classical Liberalism? It’s 1:00am and I suck at caps.
- January 21, 2010 at 2:52 am
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You do realize the glaring contradiction in positing a state, however small you want it to be, to protect rights?
Then acknowledge you are an anarchist, Falloon, who could not posit the framework of a free society: you are not a libertarian?
Libertarians encompass the rule of law, the (humanist, classical liberal) small state simply as protector of individual rights (not trampler of them as modern democracies are), enforcer of the non-initiation of force, and a capitalist system. None of these things are available under anarchism, a system in which the biggest gun will rule.
Get yourself informed.
- January 21, 2010 at 7:31 am
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This morning I saw a news blurb on how Amazon will “let” software developers provide apps for the Kindle. This reminded me of another reform patent/copyright reform that should be considered. If you buy a piece of hardware such as a Kindle, cell phone, of game console, you should have the right to make any modifications to that device that you wish. (We need to put an end to the expansive concept that patent/copyright holders can extend their IP reach post sale. When physical property is sold the buyer acquires the property right to that piece of property.)
- January 21, 2010 at 9:08 am
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Mother Hubbard,
(hey, u asked 4 it)You may be more or less correct in your historical summation of “classic liberalism” and “Libertarianism”. However, that is not the question I put before you. It is ironic that you would have concerns over- leaving aside for the moment your unsupported certainty for how things would play out- the ‘biggest gun ruling’ under a non-Hubbardian system: your recipe for government includes installing ‘biggest gun rule’ from the get-go.
Alright, couldn’t help it:
Old Mark Hubbard,
Went to the blog board,
To give the poor state a bone,
When he came there,
His “logic†was contraire,
And so the poor state had none.In fun,
Dan
January 21, 2010 at 10:47 am-
Excellent article. As a person who believes that IP will never dissolve; these bulletin points are excellent ways to improve IP and hopefully reduce all these unnecessary complications with the system.
January 21, 2010 at 12:30 pm-
I really don’t get why Mark can’t get it. Or Stranger, for that matter. If I walk on your lawn and pluck a rose from your rosebush, I’ve trespassed on your yard and taken a physical object away from you–you no longer have the rose that I took.
However, If I copy your picture of a rose that you have on your website, I have not trespassed (unless your website is in a secure zone that I’m not supposed to have access to), and you still have your picture. If you didn’t want your picture to be downloaded (and presumably you took reasonable steps to prevent free downloads), then it could be said that I did something wrong (illegal copying), but it could not be called “theft”.
You can’t steal non-property, especially if the original owner isn’t being deprived of it (non-scarcity). Again, there may well be such a thing as improper and immoral copying, and as such, should be illegal; but it cannot be called theft or stealing. Failing to understand this distinction leads to errors about resolution and restitution in the legal system of such problems What restitution is to be provided where the originator hasn’t been deprived of anything? Asserting that abstract concepts are property, however original they may be, doesn’t make them property, and repeating the assertion over and over again doesn’t make for a stronger argument. 
January 21, 2010 at 1:59 pm-
I think Erik Joseffson’s comment and link are the best of the whole lot. (at the top there) A market solution to the IP cost issue seems like a great idea!
I side with the pro IP arguments. It’s at least about access to a market. That takes some time. Theft of an idea that is marketable (something can be created from it that has saleable value on the market) might as well be theft of the final product itself. You removed the individual’s ability to garner income. The IP thief could in fact wipe out any chance of profit for the original thinker.
Without IP you still would end up with a controlling governance (groups designed to get your product to market ASAP, at a cost) and a larger group of idea trolling big companies trying to control the market. At least that is my estimation of the eventual outcome. Not seeing much room for the individual and small business there. And it certainly is deprivation to the original thinker. Just because it is future deprivation, it does not mean it isn’t. The eventual outcome is loss of income, and that is real.
Also, if an idea isn’t property of the owner (combination of neurochemical and physical connections in their own brain), what is? That combination is absolutely unique. The notion an idea exists separately from someone’s brain is, well, absurd. Furthermore, the notion that an idea is abstract simply is not true for all ideas. Many ideas are about the physical — they are mental models. They are linked to the physical object which exists or will exist and the brain is hard at work modeling it. It is subjective, but not abstract. (The difference between having an idea for a specific car design and thinking you would like to design cars.)
I would argue that IP is in fact real property, unless it is a true abstract thought.
- January 21, 2010 at 2:53 pm
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Redshirt, they’ll start talking doublespeak on ‘patterns’ and such like now. But you have it in one: the anti-IP argument is an attack on the very identity of ‘the individual’ – it assumes an individual mind is not capable of unique thought (and that we are therefore all part of a Borg hive mind). Obviously that position is ignoble BS.
Worse, there is no path to individual liberty in that, quite the opposite.
But I prefer to this deal with this on the level of morality, including Objectivist morality, and I ask Michael Clem now a question that gets to the nub of what is truly at stake here (and note that to date, Jeffrey Tucker and Stephen Kinsella have both chosen to not answer it.
Michael:
Do you have an ethical/moral issue with buying a physical book from a bookshop, scanning to an electronic file, then uploading that author’s work to a file sharing program to be plundered?
What would be your position for the same book that starts out as an e-book?
[Falloon, I answered your question squarely. I believe in a minarchist libertarian state, the role of that small state being to protect the rights of the individual, including property rights, including IP. The anti-IP argument is an anarchist argument, and an anarchist society would be just that, anarchy, with freedom of the individual the loser. Libertarians, well at least in my neck of the woods (New Zealand), acknowledge a role for the state, unfortunately modern democracies have utterly usurped that role and become the main abuser of individual liberty. Unfortunately that is being used here as a wrong headed sanction to plunder I-property].
August 1, 2010 at 11:53 pm-
“Do you have an ethical/moral issue with buying a physical book from a bookshop, scanning to an electronic file, then uploading that author’s work to a file sharing program to be plundered?”
No. Do you have an ethical/moral issue with using a library
where you engage in “plunder” by reading books for free?
- January 21, 2010 at 3:33 pm
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I really don’t understand why Michael_A._Clem can’t get it. Or Stephan_Kinsella, for that matter. If I walk on your lawn and pluck a rose from your rosebush, I’ve trespassed on your yard and taken a physical object away from you — you no longer have the rose that I took.
However, if I copy your osciallations of EM waves interpretable as a description of a rose that you transmitted one day, I have not trespassed (unless your transmitter is in a secure zone that I’m not suppose to be able to access such that I can observe the EM oscillations), and you still have your transmitter. If you didn’t want your frequency of osciallation to be broadcast on (and presumably you took reasonable steps to prevent unauthorized broadcasting), then it could be said that I did something wrong (illegal broadcasting), but it could not be called “theft”.
You can’t steal non-property, especially if the original owner isn’t being deprived of it (non-scarcity). Again, there may well be such a thing as improper and immoral broadcasting, and as such, should be illegal; but it cannot be called theft or stealing. Failing to understand this distinction leads to errors about resolution and restitution in the legal system of such problems. What restitution is to be provided where the originator hasn’t been deprived of anything? Asserting that abstract frequencies are property, however original they may be, doesn’t make them property, and repeating the assertion over and over doesn’t make for a stronger argument.
- January 22, 2010 at 12:17 pm
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Do you have an ethical/moral issue with buying a physical book from a bookshop, scanning to an electronic file, then uploading that author’s work to a file sharing program to be plundered?
What would be your position for the same book that starts out as an e-book?
I think if you go back and read my posts in the other threads, I’ve already answered this. While I object to the use of the term “plundered”, I would have to say that yes, I would have a problem with uploading a book or e-book to a file-sharing program or site (with the possible exception of dead authors). If the creator wants payment for it, then I should abide by that. However, what’s happening is improper (immoral) file-sharing, not theft, for the reasons already mentioned: ideas aren’t property. This distinction between improper file sharing and theft may seem trivial, and Kinsella and others may be suggesting something larger and broader than I am, but I still say that understanding this simple but fundamental point is the first step towards any proper application of the law and restitution.
After all, if someone DID download your e-book without your permission, you haven’t lost access to your own e-book, making restitution pointless. And it’s not so cut-and-dried to say that the download cost you a sale, since it may not have, if the downloader wouldn’t have purchased it anyway, or if the downloader decides to purchase it after downloading it, or recommends it to others who decide to purchase it. If the punishment must fit the crime, then the heavy penalties the music industry is trying to lay on music file-sharers is too excessive and unfair, even if one admits that something wrong has been done.
Furthermore, while there can be improper and immoral file-sharing, I think we would all be better off if creators did engage in different business models that include free, downloadable content, along with purchaseable content. For example, check out the tons of online comic strips on the internet, like Sheldon ( http://www.sheldoncomics.com ). In spite of the fact that he has an extensive free archive of comic strips, he can still sell books and other merchandise based upon the strip. I think when consumers recognize that creators need to make a certain amount of money to keep producing, they will do what it takes to support those creators, especially if they recognize there is no corporate middleman getting a large share of the income, such as the newspaper syndicates or the large record companies.
Far from denying individual effort, online sharing has the ability of helping individual creators realize their potential without having to compromise their artistic and creative vision.
Furthermore, any copy protection plan or law must recognize certain limits. If the production of a book, song, computer program, or other creative work is a matter of putting pre-existing concepts into a unique configuration, then we must ask just how different a work must be from previous works to be considered unique and worthy of protection. How many different plots, character names, situations, chord progressions, color schemes, etc. really exist, and how many different ways can you truly exploit them? And from the other side, people like certain styles or genres (mystery novels, smooth jazz music, romance movies, etc.) so that a certain amount of similarity and repetition is not only expected, but demanded by the potential audience. Something excessively unique may have a harder time finding an appreciative audience.
I could say more, but this is getting pretty long already. - January 22, 2010 at 2:02 pm
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Gee, Silas, you really had to work on that one, didn’t you? While I’m open to the idea that frequencies are not property, the frequencies are, as mentioned before, the medium of information exchange, with physical properties, much as any other medium of exchange has phsyical properties (paperback book, vinyl record, compact disc, etc.). As such, the transmission itself is in no way comparable to IP, but to the media used to transmit IP, making your analogy moot.
Or should we say that the medium IS the message, and ignore the abstractions carried by the medium? - January 22, 2010 at 3:32 pm
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@Michael_A._Clem: I didn’t have to work hard on it because you didn’t think very hard in your own argument.
As Russ (correctly) emphasizes in the other threads, the EM spectrum does not have literal slots that you can use. Rather, by adhering to protocols, we can get information transfer out of the EM capacity of the air. The fact that it has some abstract physical properties you don’t quite understand and don’t really want to deal with, doesn’t make them the same as paperback books.
A while back I made an analogy that even you can understand: how do rights in the “vibratory spectrum” work? Let’s say someone wants to broadcast information by whether or not he hits a (subtle, non-obstructive, non-nuisance) gong at 8am. Other people can ruin this communication scheme by also hitting their own gongs, since that makes it so you can no longer tell whether the original guy is hitting his gong.
This is exactly what is going on with the EM spectrum: it *can* be used to transmit information, but only if people don’t violate the assumptions it’s predicated on. But it ultimately requires there to be rights in “pattern formation” for it to work.
Pattern formation rights — you know, IP.
So how about you make up your mind, Michael_A._Clem, and make it up soon. Because this is a pretty crucial distinction you need to be able to make on such an “easy” issue. And if you can’t figure out what you think about it … well, that sure doesn’t say much for you, does it?
January 22, 2010 at 3:55 pm-
Dear Silas,
why are you avoiding answering my objections? You’ve known them for several months already.
- January 22, 2010 at 4:02 pm
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As Russ (correctly) emphasizes in the other threads, the EM spectrum does not have literal slots that you can use. Rather, by adhering to protocols, we can get information transfer out of the EM capacity of the air. The fact that it has some abstract physical properties you don’t quite understand and don’t really want to deal with, doesn’t make them the same as paperback books.
Sure, there are not discrete “slots” in the spectrum, but while creating these slots arbitrary, based upon the technology in use, it is not abstract. The fact that there are any physical properties at all in the EM spectrum means we are talking about the medium, not IP.
Yes, it took conceptual work to develop the technology that creates and utilizes those arbitrary “slots” in the EM spectrum, but these are not unique conceptual, creative ideas of one person, but the scientific and engineering developments of many people, and an agreement of the use of standards by broadcasters and receivers. Hardly equivalent to a novel or song.
Homesteading land also involves arbitrariness–just how much land will one homestead? Where will you put down the fence or marker and say this is where it stops? But again, any conceptual process involved in determining this does not require unique or novel thinking, but some commonly accepted standard, quite out of place in copyright or patent law.
So, you ARE trying to make the medium the message, but you also forget the territorial limitations of the use of EM. IP law offers no such territorial limits, except for the limits of the reach of law enforcement officials. - January 22, 2010 at 5:09 pm
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@Michael_A._Clem: You misunderstand the analogy (in part due the lack of trying). It’s not that the “use of a frequency” is some creative invention like an intellectual work, it’s that there exists some *relevant* sense in which each one is scarce, despite the capability of everyone to copy each other’s actions.
The territorial limitation difference is irrelevant: EM rights would work essentially the same way, and be justified for the same reason, even if everyone’s broadcast reached all of civilization.
FIRST make sure you understand the analogy (which is from the greater usefulness of the EM spectrum when exclusive rights are assigned, to the greater usefulness of the ideasphere when exclusive rights are assigned, and the corresponding claimed scarcity; NOT, as you seem to think, from the creativity of using the EM spectrum in novel ways to the creativity of new intellectual works). THEN try to address it.
But that’s kind of hard when you don’t stand a chance of either, don’t you think?
@Peter_Surda: I’ve answered every one of your arguments against my position. Every last one. It’s just that I haven’t answered the latest few incarnations of the same points you’ve made before. I only have so much time in the day, so I save it for when there are genuinely new or useful opportunities to make a point.
I’m considering hosting an e-symposium so that we can all find out where we agree or disagree on each branch of the IP debate, and not have to rehash the same arguments in every new IP thread. Would you be interested in participating in this?
- January 23, 2010 at 4:21 am
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Dear Silas,
while I object to your claim of you dealing with every argument, I would be happy to participate in a discussion in a more formal manner, assuming I find the time.
- January 23, 2010 at 11:21 am
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@Silas Barta
I certainly would! 
January 23, 2010 at 4:07 pm-
@Silas Barta,
I wouldn’t mind an invite. Assuming I can also find the time.
- January 23, 2010 at 4:52 pm
- See Katherine Strandburg, “Patent Fair Use 2.0“; Maureen A. O’Rourke, “Toward a Doctrine of Fair Use in Patent Law,” 100 Colum. L. Rev. 1177 (2000). [↩]
- See Improve the Copyright System by Adding Patent-like Maintenance Fees; Longer copyright terms, stiffer copyright penalties coming, thanks to TPP and ACTA…; Tom Bell on copyright reform; the Hayekian knowledge problem and copyright terms; Public Knowledge’s tepid proposals for copyright “reform”. [↩]
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