I noted before that There are No Good Arguments for Intellectual Property. A couple of anecdotal factoids confirming this. I’m invited to speak on IP a lot, on occasion to debate; for debates I’m asked to suggest a good opponent. And I am just stumped. I tell you. I don’t know who to suggest.

Also: I was recently invited to contribute the anti-IP chapter, which I have entitled “The Case Against Intellectual Property,” in Handbook of the Philosophical Foundations of Business Ethics (Prof. Dr. Christoph Lütge, ed.; Springer, 2013) (chapter 68, in Part 18, “Property Rights: Material and Intellectual,” Robert McGee, section ed.). I was asked to help identify someone to write the pro-IP chapter. I was scratching my head, but scraped the bottom of the barrel and came up with a couple of the only names I could think of … and even they did not work out. So there may be no pro-IP chapter. Hahaha. silly Intellectual Properteers.

Since Patent Reform is in the air, here is an older exchange with patent attorney Lawrence Ebert at the IPBiz blog that I just came across while binging. I mean, googling:

***

Kinsella way off on patent reform

Friday, December 14, 2007

NYTimes article, The New Grave Robbers, details increasing attempts to expand yet another type of IP right, the obscure “identity right” associated with the “right of publicity.” As the article observes:

CAN a wild wig and a bushy mustache be packaged and called an Albert Einstein costume? According to Hebrew University of Jerusalem and its American marketing agent, the answer is no — at least not without permission. The university says that when it inherited Einstein’s estate, the bequest included ownership of Einstein’s very identity, giving it exclusive legal control over who could use Einstein’s name and image, and at what cost.

Einstein is not the only example. While we might think of people like the Rev. Dr. Martin Luther King Jr., George Patton, Rosa Parks, Frank Lloyd Wright and Babe Ruth as part of our cultural heritage, available for all to use, the identities of each of them, and thousands more, are claimed as private property, usable only with permission and for a fee.

This phenomenon is fairly recent — and it’s getting out of control.

In the US, the right of publicity even lasts past the subject’s death, in some states. And it’s increasingly used to censor speech–“say you wanted to write a play about a chance meeting between these two historic figures. Could you? While the play itself may be protected by the First Amendment, that doesn’t mean that the companies that manage Parks and Einstein might not attempt to assert control.” (For more examples, and discussion, see Types of Intellectual Property; Recent IP Horror Stories and Outrages: Tolkien, Greens, Photographers; The Rise Of A New Intellectual Property Category, Ripe For Trolling: Publicity Rights.)

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I’ve noted before (see Hoppe on Intellectual Property) Professor Hoppe’s anti-IP views. In fact, it is Hoppe’s clear Austro-libertarian views on the nature and origin and purpose of property rights that clearly imply IP is illegitimate, and helped lead me to my own IP abolitionist views. In an excllent recent interview at The Daily Bell, with Anthony Wille, “Dr. Hans-Hermann Hoppe on the Impracticality of One-World Government and the Failure of Western-style Democracy” (LRC version), Professor Hoppe makes his opposition to IP crystal clear (no doubt, much to the chagrin of Hoppeans who are still clinging to IP, such as Dave Narby here, and Stranger on this thread):¹

Daily Bell: Where do you stand on copyright? Do you believe that intellectual property doesn’t exist as Kinsella has proposed?

Dr. Hans-Hermann Hoppe: I agree with my friend Kinsella, that the idea of intellectual property rights is not just wrong and confused but dangerous. And I have already touched upon why this is so. Ideas – recipes, formulas, statements, arguments, algorithms, theorems, melodies, patterns, rhythms, images, etc. – are certainly goods (insofar as they are good, not bad, recipes, etc.), but they are not scarce goods. Once thought and expressed, they are free, inexhaustible goods. I whistle a melody or write down a poem, you hear the melody or read the poem and reproduce or copy it. In doing so you have not taken anything away from me. I can whistle and write as before. In fact, the entire world can copy me and yet nothing is taken from me. (If I didn’t want anyone to copy my ideas I only have to keep them to myself and never express them.)

Now imagine I had been granted a property right in my melody or poem such that I could prohibit you from copying it or demanding a royalty from you if you do. First: Doesn’t that imply, absurdly, that I, in turn, must pay royalties to the person (or his heirs) who invented whistling and writing, and further on to those, who invented sound-making and language, and so on? Second: In preventing you from or making you pay for whistling my melody or reciting my poem, I am actually made a (partial) owner of you: of your physical body, your vocal chords, your paper, your pencil, etc. because you did not use anything but your own property when you copied me. If you can no longer copy me, then, this means that I, the intellectual property owner, have expropriated you and your “real” property. Which shows: intellectual property rights and real property rights are incompatible, and the promotion of intellectual property must be seen as a most dangerous attack on the idea of “real” property (in scarce goods).

Daily Bell: We have suggested that if people want to enforce generational copyright that they do so on their own, taking on the expense and attempting through various means to confront copyright violators with their own resources. This would put the onus of enforcement on the pocket book of the individual. Is this a viable solution – to let the market itself decide these issues?

Dr. Hans-Hermann Hoppe: That would go a long way in the right direction. Better still: more and more courts in more and more countries, especially countries outside the orbit of the US dominated Western government cartel, would make it clear that they don’t hear cases of copyright and patent violations any longer and regard such complaints as a ruse of big Western government-connected firms, such as pharmaceutical companies, for instance, to enrich themselves at the expense of other people.

Update: See also Hoppe on Intellectual Property.

1. A forum discussing Onar Åm, “The Moral Basis for Intellectual Property Rights“; e.g. my comments here; Stranger’s comments, e.g. this one. [↩]

Mises blog post by Jeremiah Dyke:

Against Owning Information Video

March 27, 2011 by Jeremiah Dyke

This is a great video on intellectual property rights and information ownership.

 

Mises blog post by Per Bylund:

Recent IP Cartel Advances

January 19, 2010 by Per Bylund

It has been well known for a while that the advocates of stronger enforcement of intellectual property “rights” are pushing forward. The effect is widespread surveillance of communication of the Internet as well as other communication channels throughout the European Union.

On a national level, the corporate owners of movie and music rights have gained increased power. The country of Sweden, the home of the world [in]famous The Pirate Bay, is an example of this; here the EU directive has been passed in its “local” form, which allows copyright organizations protecting Hollywood corporations’ privilege to gain court orders to get personal information of suspected file sharers. With this information they can contact the file sharer and demand that they stop what they are doing, and otherwise sue them using whatever information they have collected through that person’s ISP. Such power is not even granted the police, who need much more than vague suspicion to monitor people’s communication.

More recently, a law is proposed in Italy that requires Internet users to apply for and receive authorization from the Communications Ministry to upload video to Internet sites. The authorization required to upload your homemade video to YouTube is basically the same as what is required by television broadcasters.

The same type of law is rumored to soon be proposed in the French parliament as well. It is likely this issue will be raised on the super-national level as well with France and Italy calling for a European Union directive.

Classic piece by Mises, Innovation Requires Economic Freedom.

Two IP presentations at the “Science, Knowledge, and Democracy” conference:

Justin Biddle, Georgia Institute of Technology
“Intellectual Property and the Public Benefits of Biomedical Research” (Session 2)
In a much-discussed essay in the journal Science, Michael Heller and Rebecca Eisenberg argue that the proliferation of patenting and licensing in biomedical research is leading to a “tragedy of the anticommons” that is both epistemically and socially detrimental because it inhibits the sharing of information. Their paper has generated much discussion, and there are many who argue that the worries expressed in it are highly exaggerated. This paper examines this debate and concludes that we still have strong reasons to worry about a tragedy of the anticommons.

Jonathan Trerise, Coastal Carolina University
“Patents and the Openness of Science” (Session 2)
I argue for a prima facie case against patents because of their uncertain benefits and the possible harms they may cause to science. The case is only prima facie as we lack sufficient empirical evidence to demonstrate one way or another whether patents, on the whole, positively or negatively influence scientific research. However, the burden of proof lies with the defender of patents because of the various concerns I raise, including, importantly, evidence which shows their lackluster effectiveness as incentives to innovate. Assuming our democratic society values relatively open science, there is prima facie reason to be against patents.

(h/t Koen Swinkels)

The Great Language Land Grab (New York Times) details the recent use of trademark law by tech companies to try to monopolize the use of words and terms. For example,

Microsoft is suing Apple, and Apple is suing Amazon, all over the right to use a simple two-word phrase: “app store.” Apple got there first, introducing its App Store in July 2008 as a marketplace for mobile applications. In January, Microsoft disputed Apple’s trademark claim, arguing that “app store” had already become a generic expression. And last week, Amazon announced its own “Appstore” for Google’s Android devices, prompting an infringement suit from Apple.

It’s not the first time the tech industry has claimed commonplace language as its own.

Facebook has been notorious in this regard, filing trademarks on an array of common four-letter words: “like,” “wall,” “poke” and, naturally, “face” and “book.” Last year, two small Internet start-ups, the travel site Placebook and the educational site Teachbook, learned the danger of using “book” for online services when Facebook’s lawyers came calling. (Placebook renamed itself, while Teachbook continues to fight it out.)

Microsoft, of course, has long been playing this game by fiercely upholding prosaic brand names like Windows, Office and Word. The Linux-based operating system Lindows, for instance, agreed to change its name (to Linspire) in 2004 after years of wrangling over whether “Windows” was generic. Now, in the “app store” dispute, the shoe is on the other foot, with Microsoft taking the role of language loosener.

According to Christopher Johnson, a branding expert who runs the Web site the Name Inspector, “there’s a land grab going on” in the information economy, as “companies are trying to snatch up pieces of our cultural commons.” He lays much of the blame on the increasing scarcity of available names, whether for trademarks, domain names or Twitter handles.

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From Cory Doctorow on Boing Boing:

White paper on 3D printing and the law: the coming copyfight

Cory Doctorow at 11:37 AM Wednesday, Nov 10, 2010

Public Knowledge’s Michael Weinberg has a new white paper: “It Will Be Awesome if They Don’t Screw it Up: 3D Printing, Intellectual Property, and the Fight Over the Next Great Disruptive Technology” — the title says it all, really.

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Update: See also The next Napster? Copyright questions as 3D printing comes of age (ars technica).

As reported in US Won’t Trademark Band’s ‘Racist’ Name (Newser), a Portland-based Asian-American band with a large Asian-American fan base, The Slants, has had their application for a federal trademark rejected by the U.S. Patent and Trademark Office, on the grounds that it is “racist.” The USPTO can refuse a trademark if it “consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage”. But as the band’s manager and bassist notes, “minorities should have the right to label themselves.”

Drat. So much for my plans to start up a band called The Coonasses.

Oh, wait. Maybe not.

But my guess is Fat Ho Burgers might face similar difficulties…

[H/t Wendy McElroy, Vijay Boyapati]

As reported in Arstechnica, “Copyright troll Righthaven achieves spectacular “fair use” loss“:

Righthaven has achieved national notoriety for its business model, which involves scouring the Web—including tiny blogs and nonprofits—for Las Vegas Review Journal and other newspaper stories. When it finds a match, Righthaven licenses the copyright from the cooperating newspaper and sues the article poster without warning for statutory damages of up to $150,000. In addition, it routinely demands that the poster’s domain name be transferred to Righthaven.

The company’s most controversial cases have involved posters who only used a small percentage of the original article, or instances where Righthaven sued the very sources who had provided the basic information for an article, then posted the result to their own website.

In the current case, Righthaven sued “the Oregon-based Center for Intercultural Organizing (CIO), … after the group posted a Review-Journal newspaper article on the deportation of illegal immigrants on its own website.” CIO had posted the complete text of the article instead of just a snipped. Usually it’s hard to argue this is fair use. (To show fair use, the court has to consider and balance “four factors“.) But:

At a hearing last week, the judge decided that CIO’s use of the full article text was, in fact, a fair use under the “four-factor test” enshrined in law.

…  Judge Mahan told both sides that the purpose of copyright law was to encourage creativity and to disseminate public access to information, so long as that did not unfairly hinder the market for the original story. In this case, Mahan said that the tiny Oregon nonprofit had essentially zero overlap between the readers of its website and the readers of the Review-Journal. In addition, the effect on the “market” for the work is unclear, since Righthaven is solely using the copyright to prosecute a lawsuit, not to defend its news operations (it has none).

The reposted article also fit within CIO’s nonprofit educational mission, and the judge said that it was largely informational in nature, rather than creative.

This is a good result, of course. But one ruling by one court in a particular case based on particular facts does not establish any kind of clear right to copy newspaper articles nor does it clarify the ambiguous copyright statute. It won’t stop Righthaven from trolling. This is just a predictable result of the copyright statute itself, which survived the judge’s ruling unscathed.

[H/t Wendy McElroy]

[Update: see also:

• Do Business Without Intellectual Property (Liberty.me, 2014)
• “The Patent Defense League and Defensive Patent Pooling” (Aug. 18, 2011)
• Defensive Patent Publishing]

From a letter by Thomas Jefferson to a friend describing one of Jefferson’s inventions, an improved method for “the braking and beating [of] hemp”:

Something of this kind has been so long wanted by the cultivators of hemp, that as soon as I can speak of its effect with certainty I shall probably describe it anonymously in the public papers, in order to forestall the prevention of its use by some interloping patentee.

–Lewis Hyde, Frames from the Framers: How American’s Revolutionaries Imagined Intellectual Property
(H/t Bruce Hobbs, via Kevin Carson)

(See also my post Defensive Patent Publishing)