Where does IP Rank Among the Worst State Laws?

by Stephan Kinsella on January 20, 2012

[Update: see related discussion in “Libertarianism After Fifty Years: What Have We Learned?” (ch. 25 in Legal Foundations of a Free Society), p. 681.]

In Masnick on the Horrible PROTECT IP Act: The Coming IPolice State, I noted some insane excesses of patent and copyright (like the precursor to SOPA), and wrote:

I believe in days past, say, before the Internet, IP was bad but it was not even in the top 20 or 30 of harmful state policies. But nowadays I believe it is in the top six most evil and harmful state laws, institutions, and policies:

war;

the Fed/central banking/fiat money;

government schools;

taxation;

the drug war;

intellectual property.

IP is extremely insidious because, unlike the drug war, tax, or war, it is held out as a type of property right. Thus, in its name, the state can spy, fine, and jail, or even enlist private citizens to enforce these laws on their own behalf, as mini-state agents. Truly, we are becoming an IPolice State.

And if we divide them out, copyright, I am now convinced, if significantly worse than patent, for reasons given in Patent vs. Copyright: Which is Worse?:

Over the years I have vacillated on this issue. But I am becoming convinced that copyright is worse than patent, for the following reasons:

Length. The patent term is about 17 years, while copyright usually lasts over 100 years (life of author plus 70 years).

Trends. Copyright law keeps getting worse,¹ while patent law has been basically the same for a while now, and in fact has slightly improved–in recent years it’s more difficult to get injunctions; and the recent patent reform law, the America Invents Act, actually added a general prior commercial user defense, the first significant legislative improvement to patent law … ever.²

Taxation versus Censorship, the Police State, and Regulation of the Internet. The patent system imposes costs of at least $100 billion a year, by reducing innovation and competition.³ So it basically acts like a tax. It’s bad, it impoverishes us, it slows things down. But it’s just another tax.

The copyright system, by contrast, besides imposing untold billions of cost on the economy, consumers, and artistic creation, and distorting the entire domain of creative works, is also being used as an excuse by the state to increase its surveillance, warrantless searches and seizures, punitive bans of people from the Internet without due process, censorship, cutting off websites accused of piracy, and control and regulation of the Internet and related technologies. As the Internet is one of the most significant tools ever to emerge to help people battle the state and communicate and learn and spread ideas, this is very chilling. In the name of stopping copyright piracy, the state is trying to squash mankind’s greatest anti-state weapon.⁴ Taxes are bad, but killing or restricting the Internet is just horrible. Copyright is worse.