Mark Skousen on Patents and IP

As I mention in Classical Liberals, Libertarians, Anarchists and Others on Intellectual Property, Mark Skousen is bad on the topic of intellectual property. I know this from private correspondence with him in the wake of my Soho Forum debate (KOL364 | Soho Forum Debate vs. Richard Epstein: Patent and Copyright Law Should Be Abolished).

Now he doubles down. In a recent article for the Cobden Centre, “This Little-Known Section of the Constitution Made America the World’s #1 SuperPower,” where he rightly points out the advantages of free trade in the American “common market” stemming from language in the US Constitution, he unfortunately adds this unnecessary comment to the end:

“In my talk last week, I mentioned four other factors that contributed to America’s dominance into the 20th and 21st centuries, in addition to the “dormant commerce clause”:

1. Constitutional support for patents and copyrights”

Here is my comment (lightly edited) posted on the Cobden Centre site:

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It is a shame that Skousen ruins his analysis with this comment:

“In my talk last week, I mentioned four other factors that contributed to America’s dominance into the 20th and 21st centuries, in addition to the “dormant commerce clause”:

1. Constitutional support for patents and copyrights”

Skousen is completely wrong and illiberal on IP, and unfortunately this mistake contaminates his analysis. It is odd and gratuitous–not to mention incorrect–to mention US IP law in a discussion of free trade. It is ironic and even perverse, since patents are contrary to free trade and property rights and free markets, as the free market economists of the 1800s recognized. In fact, as I explain in The Anti-IP Reader: Free Market Critiques of Intellectual Property:

“Free market economists began to object to the patent system in the mid-1800s, leading some countries to repeal or delay adopting patent laws. The primary criticism was that protectionist patent grants are incompatible with free trade. However, the “Long Depression” starting in 1873 turned public opinion against free trade, leading the anti-patent movement to collapse and for modern patent systems to eventually become dominant world-wide.”

Patent law distorts and impedes innovation and slows down innovation and reduces human wealth. See my book You Can’t Own Ideas: Essays on Intellectual Property and Legal Foundations of a Free Society, Part IV. Many others recognize this as well, including commentators from the Cobden Center. Toby Baxendale has pointed this out, for example, in this post and the IP problem has been recognized by others at the Cobden Centre, e.g, here and in this post by Andy Duncan.

It is shame Skousen is unaware of this and is confused on IP and taints his analysis of free trade by perversely supporting state-granted monopoly privileges that distort and impede innovation. In this he reminds of pro-patent Cato Institute scholars who, faced with the choice of either supporting patent law and the monopoly prices and restrictions on competition that it gives rise to, or free trade—sadly and embarrassingly chose to abandon free trade for the sake of supporting local patent-cased monopoly prices. On this, see Cato on Drug Reimportation; Cato Tugs Stray Back Onto the Reservation; and Other Posts.

Skousen is wrong in thinking patent law is just, or that it is necessary for, or gives rise to, innovation. He is wrong in thinking that patent and other IP rights are property rights, he is wrong in thinking they are compatible with free markets and freedom and property rights. There are many old-school libertarians who are confused and wrong about IP. They should have the decency to bow out of these matters since they obviously do not understand how to mount a principled case for property rights; if they did, they would not support socialistic and statist schemes like the patent system that grants anti-competitive monopoly privileges. If Skousen is so bad on such a fundamental issue, it makes one wonder what else he gets wrong in his economic and political analyses.

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Update: Last year I and several others, including Skousen, were invited contribute chapters to the forthcoming book Palgrave Handbook of Misesian Austrian Economics (Palgrave, forthcoming 2025). On an email thread discussing this book, Skousen asked Howden how much Palgrave would charge for the book. Howden pointed out as it’s an academic book, the hardcover will have a pretty steep price. Ironically, given Skousen’s support of patent and copyright, he bemoaned the fact that academic publishers charge such high prices, meaning that only libraries and institutions buy copies and our works remain largely buried and unread because they are so inaccessible. He seems oblivious to harm that copyright actually does. As I responded,

This is all because of copyright combined with the academic racket where professors have to publish to make tenure and the journals and books are priced high and paid for by taxpayer subsidies to the university libraries. …

Would that more academic authors were aware of this problem and at least made an effort to get an affordable copy of their work out to the public. Most often they are clueless or think it’s impossible. Yet ironically Michelle Boldrin & David Levine, authors of Against Intellectual Monopoly, when they published it with Cambridge, negotiated the right to post a free HTML/PDF version of their book online. So it can be done. In articles or book chapters that I publish I usually try to insert a notice such as “I hereby grant a CC BY Attribution 4.0 International license in this chapter” or “Published under a Creative Commons Zero (CC0) 1.0 License — No Rights Reserved.” That way, even if the book is paywalled or has a high price, I at least have the freedom to copy and post my own chapter and others are free to copy it as well.