Regarding Musk and Dorsey: “delete all IP law”
Chamath Palihapitiya tweeted about all this.
Jack: “delete all IP law”
Elon: “I agree”How could this work and where are they coming from? I don’t know exactly but here’s a guess:
In business you can view your knowledge in one of three buckets:
(A) common knowledge
(B) trade secrets
(C) IP (patents, copyrights etc)A…
— Chamath Palihapitiya (@chamath) April 15, 2025
In response, I wrote (lightly edited here):
“In business you can view your knowledge in one of three buckets: (A) common knowledge (B) trade secrets (C) IP (patents, copyrights etc)”
This is confused. Patent and copyright/IP are not knowledge. They are legal rights. What is in question is whether patent and copyright law, and the legal rights they grant (namely: patents and copyrights) are legitimate and good laws. They are not, for various reasons, as I have explained for decades — https://c4sif.org/aip/. (I am patent attorney but happen to understand and favor property rights, which IP rights run roughshod over.)
It is true that “in business,” entrepreneurs and businesses must be aware of and take the existence of IP laws into account–as must everyone else, for example consumers have avoid infringing copyright to avoid liability, and so on. The question is not whether these laws exist, and not whether businesses have to rely on them or take them into account (since they do exist), but whether these laws are justified and good laws.
Patent and copyright are authorized by the (1789) US Constitution, so are presumptively constitutional (you could argue copyright law violates the (1791) First Amendment so it is actually unconstitutional), although federal trademark law (the Lanham Act) and federal trade secret law (e.g. Economic Espionage Act of 1996) are clearly unconstitutional. But the question is not whether federal IP law is constitutional, it is whether is is justified. It is not, for the many reasons I’ve given for 30 years now.
This led to a couple more tweets:
Hi Stephen, my apologies for not being familiar with the arguments I am sure you have given many times elsewhere, but could you address briefly what seems obvious to laypeople like me: How does the map maker do the arduous work of making a map if anyone else can print the same…
— Kevin Frei (@thefreigerking) April 15, 2025
Factual data in maps is not covered now. I can take your map and make a new map based on that map’s data. https://t.co/UJvgPV59TN. Yet maps are still made, are they not?
Sometimes they put in copyright traps — false info like fake streets–which is original though false, so…— Stephan Kinsella (@NSKinsella) April 15, 2025
Then some nym tweeted:
“This is confused. Patent and copyright/IP are not knowledge.” Chamath didn’t assert that – he invited the reader to consider it a “bucket”. Seems a straightforward device – less clear is why you claim confusion over something that wasn’t stated.
My response (again, lightly edited):
You are missing my point. I was pretty clear. I actually took the time to provide links for people serious about understanding this complicated issued.
I am pointing out that “IP” is not knowledge at all: it is a legal right. I have found that the only way to think clearly about IP is to be precise with one’s concepts and terms. Otherwise it is too easy to fall prey to pro-IP arguments and confusions.
Every human action employs both scarce (conflictable) resource and knowledge: you need to use scarce resources to achieve your ends, but what you do and how you use them, what means you select and employ, is guided by knowledge. See my book, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), ch. 15, Against Intellectual Property After Twenty Years: Looking Back and Looking Forward, Part IV.E. The point is that knowledge is real and important but it is distinct from scarce means. There can be and should be property rights in the latter, because of the possibility of conflict thereover; but there literally cannot be property rights in knowledge. IP laws like patent and copyright are said to grant property rights in knowledge (or ideas or information) but this is incorrect. All property rights are legal rights to control scarce resources. So IP rights are really just reassignments of ownership rights in scarce resources—printing presses, factories, even human bodies—and thus IP law is really just a type of theft. I explain this here. Intellectual Property Rights as Negative Servitudes
There is also an important distinction between scarce resources, the means of action—physical things that be possessed by an actor—and between legal rights to these things—i.e., ownership, property rights. So I can have and use and possess a thing like a lathe, say, but I can also have property rights in the lathe. Possessing it gives me the ability to use it to achieve something in my action. Having a socially- and legally recognized property right helps make it less likely that others will interfere with my using it this way. Thus, property rights in material resources provide legal and normative support for my ability to possess/use them. But they are distinct. I discuss this in “The Title-Transfer Theory of Contract” and On Property Rights in Superabundant Bananas and Property Rights as Normative Support for Possession. But the point is that ownership of a thing, possession and use of a thing, and the thing itself are all different concepts.
Likewise ownership of knowledge is different than knowledge itself. This is why Chamath was confused. I already had al long and very clear post explaining this. He said “In business you can view your knowledge in one of three buckets: (A) common knowledge (B) trade secrets (C) IP (patents, copyrights etc)” The problem is not his imprecise and confused bucket metaphor. (Although, see On the Danger of Metaphors in Scientific Discourse) It is that he is treating unalike thinks alike.
Unlike with scarce resources, it is he is viewing IP as knowledge. It is not. IP is a legal right. At most, it is a legal right to knowledge, of different “types” or “buckets”, including common knowledge, trade secret, and patents and copyrights. He is lumping together dissimilar things. Common knowledge is indeed knowledge. Congrats. Trade secrets themselves are knowledge too but the legal rights of trade secret law are not knowledge, they are legal rights having to do with secrets. And patent and copyright have to do with types of information or knowledge but are not knowledge. That is the mistake. In a discussion about the legitimacy of IP law and the IP rights the law protects, we need to distinguish all this carefully. Patents attempt to protect one type of information or knowledge technical knowledge about how to arrange materials so as to achieve a given result. Copyright attempts to protect information about how to arrange matter in a certain artistic way. Both patent and copyright attempt to provide legal rights to information, patterns, knowledge, but since this is impossible all they really do is grant negative easements to physical things owned by other people, as already explained above.
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