Steptoe Patent Litigator Suarez: Musk and Dorsey’s Call to ‘Delete All IP Law’ Ignores Reality

by Stephan Kinsella on April 19, 2025

In the wake of Jack Dorsey’s and Elon Musk’s recent criticism of intellectual property (IP) law,¹ it’s no surprise the usual suspects—vested interests, IP attorneys—are pushing back. Case in point is a Bloomberg Law article by Christopher Suarez, an IP litigator with Steptoe, “Musk and Dorsey’s Call to ‘Delete All IP Law’ Ignores Reality,” Bloomberg Law (April 18, 2025). But it’s of the same old confusions and myths and provides no coherent argument in favor of IP law, especially its two most harmful forms, patent and copyright.

Doing a complete fisking would merely illustrate Brandolini’s Law, so I’ll just mention a few things.

Forced Teaming

He starts out defending patent, and then copyright, then eventually trademark and trade secret. I’m quite sure that Dorsey, and Must, primarily had patent and copyright in mind in their criticisms, probably not all of IP law. After all both tried to limit their own companies’ use of patents,² and likely both, esp. Musk, with his involvement in AI, are concerned about how copyright, as well as patent, might hamper the development of AI.³

But then he slides into a defense not only of patent and copyright, the two worst and most destructive forms of IP,⁴ but also trademark and trade secret. But this is the tactic the defenders of monopoly privilege have used since monopoly privilege grants like patents came under attack by free market economists in the mid 1800s.⁵ As noted by Fritz Machlup and Edith Penrose in 1950,

Those who started using the word property in connection with inventions had a very definite purpose in mind: they wanted to substitute a word with a respectable connotation, “property”, for a word that had an unpleasant ring, “privilege”.⁶

By lumping artificial, legislatively created patent and copyright⁷ with more traditional rights that developed on the common law—trademark and trade secret—the IP proponent is able to have patent and copyright “force team” with trademark and trade secret.⁸ As I wrote elsewhere, “trademark and trade secret law are lumped in with patent and copyright law to shore up the latter two.”⁹

True, all forms of IP should be abolished, including trademark and trade secret, but let’s keep our eye on the two worst offenders.

It’s In the Constitution

I can’t the the only one sick of hearing this one. Not everything the Constitution permits is good, you know. Anyway, Suarez writes:

The Constitution’s Progress Clause—Article I, Section 8, Clause 8—gives Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The Progress Clause was grounded in the Federalist Papers. In the Federalist No. 43, James Madison noted that “the utility of this power” to provide IP rights “will scarcely be questioned,” as copyright had been a right in Great Britain at common law, and that the public good coincided with both copyright and patent rights.

A few comments here. First, it could be argued that the copyright law is unconstitutional since it violates the First Amendment, in that it abridges freedom of the press.¹⁰ Second, copyright was not a common law right, despite Madison’s comment; it emerged from censorship and thought control, monopolies over printing, and finally the Statute of Anne of 1710. Get it? Statute. It required federal legislation in the US: the Copyright Act. Just as patent law required the Patent Act. This is not common law.

Third, well it is not true that the wisdom of establishing IP law is “scarcely … questioned”. As Suarez notes in the opening of his piece:

When Twitter Inc. (now X Corp.) co-founder Jack Dorsey recently proclaimed that we should “delete all IP law” and Elon Musk replied “I agree,” they likely weren’t the first to wish for the end of intellectual property law. And they likely won’t be the last.

In any case, many people are questioning it here. I am questioning it.

And finally, after praising patent and copyright law because they are authorized by the Constitution, our author writes:

Congress, since the nation’s founding, has provided for copyright and patent protection, and has expanded IP protection at the federal level through trademark and trade secret laws.¹¹

Well if the “Progress Clause” authorized patent and copyright law, how can federal trade secret and trademark law be constitutional? Answer: It’s not. It’s based on a ridiculous interpretation of the commerce clause.

IP and Innovation & Creation

Suarez goes on:

These IP rights from Congress have been vital to America’s leading role in the global innovation economy.

Oh, have they now? Hmm, let’s see … as I noted in a recent talk, (( KOL458 | Patent and Copyright versus Innovation, Competition, and Property Rights (APEE 2025), citing studies collected in “The Overwhelming Empirical Case Against Patent and Copyright” (Oct. 23, 2012); see also “Legal Scholars: Thumbs Down on Patent and Copyright” (Oct. 23, 2012). ))

Congress finally commissioned Mises’s student Fritz Machlup to conduct a comprehensive study of the US patent system (1958): (( “Legal Scholars: Thumbs Down on Patent and Copyright” (Oct. 23, 2012); “The Overwhelming Empirical Case Against Patent and Copyright” (Oct. 23, 2012). ))
- He concluded: “No economist, on the basis of present knowledge, could possibly state with certainty that the patent system, as it now operates, confers a net benefit or a net loss upon society. … If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one.”
- George Priest, 1986: “[I]n the current state of knowledge, economists know almost nothing about the effect on social welfare of the patent system or of other systems of intellectual property.”
- Wesley M. Cohen & Stephen A. Merrill, 2003: “There are theoretical as well as empirical reasons to question whether patent rights advance innovation in a substantial way in most industries. … The literature on the impact of patents on innovation must be considered emergent.”
- François Lévêque & Yann Ménière, of the Ecole des mines de Paris, 2004: “The abolition or preservation of intellectual property protection is … not just a purely theoretical question. To decide on it from an economic viewpoint, we must be able to assess all the consequences of protection and determine whether the total favorable effects for society outweigh the total negative effects. Unfortunately, this exercise [an economic analysis of the cost and benefits of intellectual property] is no more within our reach today than it was in Machlup’s day [1950s].
- Boston University Law School Professors (and economists) Michael Meurer and Jim Bessen, 2008: “it seems unlikely that patents today are an effective policy instrument to encourage innovation overall”; instead, “patents place a drag on innovation” and “the patent system fails on its own terms ….”
- Andrew Torrance, 2009: “little empirical evidence exists to support” the assumption that the patent system spurs innovation
- Boldrin & Levine, 2013: “The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity”
- Heidi L. Williams, 2017: “To summarize, evidence from patent law changes has provided little evidence that stronger patent rights encourage research investments….

Miscellaneous

The US has issued more than 12 million patents (and counting).

Not something to be cheered. And patents are not an indicator of innovation anyway.¹²

If IP rights covering these emerging technologies are abused or exploited, or our IP laws fail to account for emerging technologies, there is perhaps a risk that IP law might stifle innovation. And certainly, one can see how navigating the complex thicket of patents, copyrights, trade secrets, and other IP protections might be seen as a nuisance to people such as Dorsey and Musk. But those aren’t reasons to “delete” IP law.

Perhaps not. It was a tweet, after all. But the burden proof is on IP advocates to defend IP rights, which are legislative intrusions into the free market and private property rights. They have not and cannot meet it. And there are reasons to delete IP law. I have given plenty: Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), Part IV; Against Intellectual Property (2008); You Can’t Own Ideas: Essays on Intellectual Property (Houston, Texas: Papinian Press, 2023); The Anti-IP Reader: Free Market Critiques of Intellectual Property (Papinian Press, 2023).

Dorsey, Musk, and similar-minded people ignore that patent rights provide a valuable disclosure function to the public, helping to build the body of knowledge that advances progress and ideas.

The disclosure function is a myth, or mostly exaggerated. As Judge Easterbrook writes:

The idea that a patent represents an exchange of protection for disclosure makes no sense, except perhaps with respect to process patents. The product itself, not the patent papers, usually discloses things. Inventors want and need patents only when disclosure is inevitable in the absence of protection. When the product can be sold without disclosure, the manufacturer can use trade secret law to protect its contribution, getting even better protection—not only perpetual, but also guarding by secrecy against infringement. Infringement is difficult to detect and penalize; why disclose anything in exchange for what is at best a limit on the duration of your returns? Lawyers use the utmost skill to draft patent applications so that they do not disclose enough to practice the invention, and the omitted details frequently are vital. Patents thus are valuable when the product itself, not the papers filed in the Patent Office, discloses the invention. (( Frank H. Easterbrook, “Intellectual Property Is Still Property,” Harv. J.L. & Pub. Pol’y 13, no. 1 (Winter 1990): 108–118, pp. 109–110; see also Mark Lemley: The Very Basis Of Our Patent System… Is A Myth. ))

As for copyright:

Likewise, copyright law encourages authors and creators to generate new forms of expression. Without copyright, creators would have little incentive to create new works, and they wouldn’t be compensated for their original creations.

Nonsense. Copyright is mostly dead already, thanks to torrenting, encryption, and the Internet. CD sales are dead; MP3 purchases are dead; now people use youtube or streaming services. Yet there is more music and artistic creation than ever. Even though revenues have gone down.¹³

Copyright’s fair use doctrine seeks to balance the rights of creators and the public interest—consistent with the Progress Clause—to provide certain carveouts from compensation in particular contexts.

For example, the US Supreme Court has found that recording TV shows to watch them later using a tape is acceptable fair use,

And the copyright lobby howled and screamed. And that case was decided by only one vote. It could easily have gone the other way and radically transformed the entire industry.

Delete IP law!

Musk and Dorsey: “delete all IP law” [↩]
Twitter Heroically Promises Not to Use Patents Offensively; Planet Money: The Case Against Patents. [↩]
Libertarian and IP Answer Man: Artificial Intelligence and IP; Whereupon Grok admits it (and AI) is severely gimped by copyright law; “AI Suffers Setback As Judge Trims Case“; “The Times Sues OpenAI and Microsoft Over A.I. Use of Copyrighted Work” (“Millions of articles from The New York Times were used to train chatbots that now compete with it, the lawsuit said”); Artists release silent album in protest against AI using their work; Hundreds of actors and Hollywood insiders sign open letter urging government not to loosen copyright laws for AI. [↩]
“Patent vs. Copyright: Which is Worse?” [↩]
“the ability of the English crown to grant protectionist monopoly privileges, in the form of patents, was reined in by Parliament in the Statute of Monopolies of 1623, but the act still allowed the crown to grant patents for inventions. Later, more general patent laws were enacted, the first in South Carolina in 1691, and then in the US in 1790, shortly after the Constitution was ratified in 1789. 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.” Stephan Kinsella, ed., The Anti-IP Reader: Free Market Critiques of Intellectual Property (Papinian Press, 2023). [↩]
“Intellectual Properganda”; Fritz Machlup & Edith Penrose, “The Patent Controversy in the Nineteenth Century,” Journal of Economic History 10 (1950), p. 1, 16 (shamefully, and ironically, not online). [↩]
Patent originated with the Statute of Monopolies of 1623; copyright with the Statute of Anne 1710. See Adam D. Moore & Kenneth Einar Himma, History of Intellectual Property (2011), Fritz Machlup, Historical Survey [Patent Law] (1958), and Karl Fogel, The Surprising History of Copyright and The Promise of a Post-Copyright World (2006), all in Kinsella, ed., The Anti-IP Reader. [↩]
A tactic also used by transgender activists, e.g. lumping together transgender, which is about gender identify, with LGB, which is about sexual preference. See Forced Teaming, Feminism, LGB and ‘Trans Rights’. [↩]
Kinsella, “Defamation as a Type of Intellectual Property,” in A Life in Liberty: Liber Amicorum in Honor of Hans-Hermann Hoppe, edited by Jörg Guido Hülsmann & Stephan Kinsella (Houston, Texas: Papinian Press, 2024): “So why did the defenders of patent and copyright, and the modern supporters of IP, not see a need to include defamation in this category? Again, the concept was cobbled together for propaganda purposes. As noted above, there was some resistance to including trademark in the grouping. And in Europe, the analogous concept of “industrial property” includes trademark, but not copyright. So some wanted to include patent, copyright, and trade secret in the IP heading, but not trademark; and industrial property in Europe does not always include copyright. Clearly these are not really objective legal classifications. It is true that all forms of IP share in common that they are unjust, but there are many other state laws and policies that are unjust that are not considered types of IP, such as the drug war, conscription, central banking, government roads, state schools, or taxation.” [↩]
“Copyright is Unconstitutional”. [↩]
And others. “The Mountain of IP Legislation” [↩]
See, e.g., Pierre Desrochers, “On the Abuse of Patents as Economic Indicators,” Q. J. Austrian Econ. 1, no. 4 (Winter 1998): 51–74. [↩]
See Julio Cole’s forthcoming paper, “Copyright versus Innovation in the Market for Recorded Music,” presented at KOL458 | Patent and Copyright versus Innovation, Competition, and Property Rights (APEE 2025). [↩]