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Madison Lied about Patent and Copyright

To try to get the Constitution ratified, Madison and his two cronies Hamilton and Jay engaged propaganda via the Federalist Papers to try to sell the new central state they were proposing.1 Regarding the provision authorizing patent and copyright law, he wrote in Federalist No. 43 (2):

THE FOURTH class comprises the following miscellaneous powers:1. A power “to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries. “The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors.

This is a flat-out lie. Copyright was the result of state censorship followed by the codifying Statute of Anne of 1710—that is, by legislation, not by common law.2 It was not a natural right, a property right, a common law right at all.3 It’s an artificial grant of monopoly privilege by the state.4

I mean Jefferson had written to him in 1789, during the drafting of the Bill of Rights, suggesting the Bill of Rights rein in the patent and copyright clause grants already made in the 1789 Constitution, by (a) explicitly recognizing these grants as monopolies (not “common law” or natural rights), and (b) limiting them to a maximum term. His proposal was to include this in the Bill of Rights:

Art. 9. Monopolies may be allowed to persons for their own productions in literature [copyright] and their own inventions in the arts [patents] for a term not exceeding — years but for no longer term and no other purpose.5

See also Terry Hart, James Madison on copyrighting Thomas Jefferson’s memoirs.

  1. See Rockwell on Hoppe on the Constitution as Expansion of Government Power (Aug. 3, 2009) . []
  2. See Karl Fogel, The Surprising History of Copyright and The Promise of a Post-Copyright World; related talk by Fogel. Re legislation, see Another Problem with Legislation: James Carter v. the Field Codes (Oct. 14, 2009). []
  3. Intellectual Poverty (Jan. 6, 2011). []
  4. Are Patents and Copyrights “Monopolies”? (Aug. 13, 2013). []
  5. Thomas Jefferson’s Proposal to Limit the Length of Patent and Copyright in the Bill of Rights. []
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Kinsella was right all along…

Tweet from Monica Perez about plant and seed patents:

oh yeah…they own their sterile yet rapacious genes now…so they put the gmo out there, it contaminates heirloom seeds then they can say you’re not allowed to reuse their gmos without paying again…this all comes from effing patents & copyright @NSKinsella was right all along

Related posts.

 

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The Feminism-Patent Alliance

And now for the stupidest argument I have heard in quite some time: Miriam Marcowitz-Bitton, Yotam Kaplan, and Emily Michiko Morris, “Unregistered Patents & Gender Equality,” Harvard Journal of Law & Gender, Vol. 43 (2020): 47–89. They say women don’t get their “fair share” of patent rights because you have to apply for a patent, and that is costly; so they want to create a new regime of “unregistered patent rights,” which makes no sense at all if you understand how existing patent law works. From the Abstract:

Women do not get a fair share when it comes to patenting and are far less likely to own patents. This disparity is in part because of not only the inherent biases in science and technology and in the patent system itself, but also because of the high costs of even applying for patents. This article therefore proposes an unconventional new regime of unregistered patent rights to relieve women and other disadvantaged inventors of the costs of applying for registered patent rights and to help them gain greater access to patent protections. Patents are a glaring exception to the unregistered protections provided in other areas of intellectual property, which are more egalitarian in design. By providing automatic patent rights, our proposed regime would allow for greater protection for disadvantaged innovators, in much the same way that copyright, trademark, and other forms of intellectual property currently do.

First, it’s not a problem that women are “under-represented” in patents, that they don’t get their “fair share”. For one, patents are totally unjust. For another, not everything in society has to be totally equal in outcome. Women and men are not equally represented in lots of fields in life. There are more male coal-miners than women, probably. Women can’t be drafted; that’s not a “problem.” Who cares. So this is a non-problem.

And second, their “solution” is dumb. These cats are obviously not patent practitioners and have no understanding of the patent system. There is a reason you only get a patent if you apply for one: you have to disclose it to enable it and explain it; you have to provide a claim in writing so people know what you are claiming; it has to be examined to make sure it’s novel and non-obvious, and so on. An “unregistered” patent system would be a disaster even worse than our current system, it would undermine and conflict with it. One of the few good things about our current patent system is that you must register, and that it costs money. This reduces the overall number of patents issued, which is good. If it was even harder and more expensive to get a patent, this would be good; it’s one reason I’ve argued we should re-impose a registration requirement for copyright, so that it’s not automatic.1

They are basically proposing an unworkable, unjust, non-solution to a non-problem. This pretends to be actual scholarship. Breathtaking. I guess this is what you get from “scholars” at the “Bar-Ilan” University “Factory of Law” [sic]. Jesus.

  1. How to Improve Patent, Copyright, and Trademark Law.” []
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IP Law and “Market Failure”

As I have argued, one argument for intellectual property, sometimes implicit, often explicit, is that on the free market there is an underproduction of intellectual goods such as technical innovations and artistic works, because it is so easy for would-be customers and competitors to copy the good that it is not profitable to create it in the first place. I.e., there is a “market failure” that can be fixed by granting temporary monopoly privileges (patent and copyright, mislabeled as “intellectual property”)1 to technical innovators and artistic creators.2

This type of “market failure” reasoning, implicit or explicit, is common in the literature. For example, this type of reasoning is at least implicitly relied on by Tabarrok; see “Tabarrok: Patent Policy on the Back of a Napkin“.  For another, as I point out in “IP Needs A World of Scarcity: Comment to New Book: Innovation, Intellectual Property, and Economic Growth“: [continue reading…]

  1. See “Intellectual Properganda.” []
  2. See various posts and talks where I mention IP being a response to so-called “market failure”: “KOL364 | Soho Forum Debate vs. Richard Epstein: Patent and Copyright Law Should Be Abolished“; “KOL365 | Guest Lecture on IP for Walter Block’s Law and Economics Class“; “Federalist Society Panel: Undermining or Preserving Property Rights? The New Administrative Patents“; also “KOL375 | Mentally Unscripted Ep55 – Why IP Laws Destroy Innovation and How Creatives Can Profit Without Them“; “Patent Lawyers Who Don’t Toe the Line Should Be Punished!“; “KOL289 | Scottish Liberty Podcast: Discussing the Mossoff-Sammeroff IP Debate, Take 2: A Sober Conversation…“; “KOL320 | Stephan Livera Podcast # 249–Bitcoin Patents & Open Crypto Alliance“. See also “David Friedman on Intellectual Property (and Market Failure),” though I am not sure Friedman explicitly argues for IP based on the “market failure” type reasoning many of his Chicagoite law & economics colleagues do. []
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Anti-IP Youtube Videos: A Selection

By people other than me (mostly). Listed first; embedded below.

Nina Paley, Copying Is Not Theft

[continue reading…]

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Libertarian views on intellectual property law: An analysis of laissez-faire theories applied on the modern day IP system” (pdf), by Mick Soepboer, a Dissertation in Commercial Law, the University of Cape Town School for Advanced Legal Studies Master (July 2009).

Abstract: During the elections for the European Parliament in June 2009, an unknown party in Sweden turned out to be very successful. The Pirate Party, campaigning for patents to be scrapped and copyright to last just five years instead of 70, received 7% of the votes in the Scandinavian country, giving the party the right to a seat in the Parliament in Brussels. These modern day pirates are most successful in Sweden, but similar parties exist in the United States and a number of European countries as well. In modern society, copyrights, patents, and other forms of intellectual property play a bigger role in normal life than they did one or two decades ago. This development makes people more aware of all the effects of intellectual property theory and policy cause. It also brings up the discussion concerning whether the original goals of the policies are still being pursued properly. Is the chosen path in IP law still a valid one in this digital age or is it time to rethink the structure?

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Capitalism, Power and Innovation: Intellectual Monopoly Capitalism Uncovered, by Cecilia Rikap (online at https://b-ok dot cc/book/21447578/9fc152)

From Amazon:

In contemporary global capitalism, the most powerful corporations are innovation or intellectual monopolies. The book’s unique perspective focuses on how private ownership and control of knowledge and data have become a major source of rent and power. The author explains how at the one pole, these corporations concentrate income, property and power in the United States, China, and in a handful of intellectual monopolies, particularly from digital and pharmaceutical industries, while at the other pole developing countries are left further behind. [continue reading…]

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Wojciech Gamrot, “On Type Creation and Ownership”

Excellent recent paper, “On Type Creation and Ownership,” by Wojciech Gamrot [PDF], arguing against libertarian creationism. From Political Dialogues (30/2021), DOI: http://dx.doi.org/10.12775/DP.2021.010.

Abstract:

The subject matter of intellectual property rights is an intangible entity. It is identified as an immaterial type which may be embodied in multiple material tokens. A prominent acquisition principle postulates that creators are entitled to a property right in their creation. Combined with a widespread belief that innovators and artists bring to existence not only tokens, but also types, this leads to the acceptance of property rights in these types. In order to avoid conflicts of claims and deadlocks under propertarian framework, the acquisition of equivalent types must be restricted. This may be achieved by assuming that types are unique. However, when the uniqueness property holds, the belief in type creation is untenable. If unique immaterial types exist at all, then they do so regardless of any human activities and may eventually be identified or recognized, but not created. Hence the creationist principle cannot justify owning them.

Related:

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To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.