The video for the panel (including Epstein’s preceding speech) has now been posted; see embedded version below. My own speech starts around the 56:00 mark. Near the end of Epstein’s speech (at 48:11) I asked him a question about federalism and the doctrine of selective incorporation; he gave a fair answer, but one I disagree with on the grounds the privileges and immunities clause did not unambiguously mean to incorporate a large set of “fundamental rights” into the Fourteenth Amendment, as Raoul Berger has argued. On the IP panel, a more general Q&A and interpanelist interchange session starts around 1:53:14, with me drawing a lot of the questions from fellow panelists and the audience. I was the only one who used a powerpoint; it cannot be seen from the posted video, so the file is here: The problem with IP, and also embedded also below.
For those interested in this topic, see my article Rethinking IP, which discussed my upcoming Mises Academy Course Rethinking Intellectual Property, a six-week course starting this Tuesday, March 22.
Declan McCullagh at CNET on the Obama White House’s latest proposals to expand tough enforcement of copyright law, including wiretaps. Details:
The White House today proposed sweeping revisions to U.S. copyright law, including making “illegal streaming” of audio or video a federal felony and allowing FBI agents to wiretap suspected infringers.
In a 20-page white paper (PDF), the Obama administration called on the U.S. Congress to fix “deficiencies that could hinder enforcement” of intellectual property laws….
Some of the highlights:
• The White House is concerned that “illegal streaming of content” may not be covered by criminal law, saying “questions have arisen about whether streaming constitutes the distribution of copyrighted works.” To resolve that ambiguity, it wants a new law to “clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances.”
• Under federal law, wiretaps may only be conducted in investigations of serious crimes, a list that was expanded by the 2001 Patriot Act to include offenses such as material support of terrorism and use of weapons of mass destruction. The administration is proposing to add copyright and trademark infringement, arguing that move “would assist U.S. law enforcement agencies to effectively investigate those offenses.”
• Under the 1998 Digital Millennium Copyright Act, it’s generally illegal to distribute hardware or software–such as the DVD-decoding software Handbrake available from a server in France–that can “circumvent” copy protection technology. The administration is proposing that if Homeland Security seizes circumvention devices, it be permitted to “inform rightholders,” “provide samples of such devices,” and assist “them in bringing civil actions.”
The term “fair use” does not appear anywhere in the report. But it does mention Web sites like The Pirate Bay, which is hosted in Sweden, when warning that “foreign-based and foreign-controlled Web sites and Web services raise particular concerns for U.S. enforcement efforts.” (See previous coverage of a congressional hearing on overseas sites.)
The usual copyright hawks, including the U.S. Chamber of Commerce, applauded the paper, which grew out of a so-called joint strategic plan that Vice President Biden and Espinel announced in June 2010.
The White House white paper in question. A link does not constitute copyright infringement. Jeez, I hope….
Jesse Walker from Reason magazine’s March 2000 issue on how intellectual property law can conflict with free culture.
Last week I participated in a debate on IP at the The Ohio State University Moritz College of Law Student Chapter of The Federalist Society (Moritz College of Law, Ohio State University, Columbus OH, March 3, 2011). This was part of the “John Templeton Foundation’s Big Questions Debate series on Intellectual Property and Wealth Creation”; I debated patent attorney and adjunct IP law professor Steve Grant, who represented the pro-IP side. I recorded it on my iPhone; audio file is here (32MB), though a video version with possibly better audio should be available soon. Professor Grant did his best, but didn’t have a solid argument for IP other than the standard “I think we should reform IP but not get rid of it.” My opening speech is about 15 minutes and has decent audio quality, and is a summary of a hard-hitting version of the basic libertarian case against IP law (here is the powerpoint presentation I used; embedded version below). Grant’s speech is audible but I was not very close to him; but his conventional and unsystematic, more empiricist and positivist than libertarian and principled remarks will be of only mild interest to libertarians. For my 10 or so minute rebuttal to him, I left my iPhone at the table but it’s still audible; for the Q&A period, it was in front of me so it’s decent again for that part. My host was Aman Sharma, a very staunch libertarian law student and head of the student chapter of the Federalist Society. When I was involved with the Federalist Society (lawyers chapters) in Philadelphia and Houston they were populated with mainly Newt Gingrich loving neocons; good to see some Austro-libertarians infiltrating their ranks. Sharma told me “I had a lot of fellow students approach me after the event with questions showing a new-found interest in the Mises/Austrian worldview.” That is cool and gratifying.
While in Ohio, I met my friend Jacob Huebert and other local libertarians/Federalist Society people–including Katelyn Horn and Maurice Thompson, of the 1851 Center, for dinner at Barrio Tapas. A fun trip, and great people.
An excellent parable about the ridiculousness of intellectual property, passed on to me by one of my Mises Academy students, Herb Roussel: a story from Sufism, regarding Nasreddin Hodja, a comical character in several stories.
The Smell of Soup and the Sound of Money
One day a poor and hungry visitor took a piece of bread from his pocket and hold it over a hot cauldron food at a open restaurant window. The dry bread became softer and he began to eat it but the restaurant keeper stopped him for fee of the food steam. The poor visitor had no money and they decided to go to judge.
Our Hodja was the judge of the town and listened carefully both men. Hodja took some golden coins from his purse and show them to the restaurant keeper.
– Come here, please! said to him.
When he came to receive coins, Hodja jingled the coins in the palm of his hands to the man’s ear.
– Now the fee was paid, said Hodja.
– What is that all about? the restaurant keeper wondered and asked.
– Justice! Hodja replied, the sound of money is a fair compensation for the smell of the food.
Update: From Paul Foley:
“Variation on a story reported by Herodotus. (IIRC some Egyptian dreamed of sleeping with a famous courtesan, reported the dream, and she sued him for non-payment; Pharaoh had him produce a pot of gold, held it in front of a candle, and returned it, saying the shadow it cast on the wall was her payment.)”
As noted in Library e-books to become too tatty to lend (h/t Wendy McElroy), publishers are now insisting that libraries have to pretend that ebooks deteriorate over time like paper books–even though they don’t. Ridiculous. Dinosaurs of the old age fighting the emergence of the new.
Digital copies must not outlast paper one, HarperCollins insists
Does an e-book wear out? If it’s from publisher HarperCollins and belongs to a library, then the answer is now ‘yes’ – and potentially in as short a time as one year.
New terms introduced by the publishing giant mean that instead of being sold with a perpetual licence, as they are now, e-books sold to libraries will be limited to just 26 loans.
With many libraries having a default lending period of two weeks, that means that a popular book could need replacing after just one year.
Libraries already work with e-books on the basis of one copy, one loan, leading to waiting lists for popular titles, which will mean that those will have the shortest life span before ‘wearing out’.
HarperCollins claimed in the Library Journal that the 26-loan figure reflected the average lifespan of a paper book, after which it is too tatty, torn or stained to offer for lending, forcing the library to buy a new, replacement copy.
If its e-books don’t disintegrate virtually, the publisher said, libraries will not replace them, costing it sales revenue.
Many librarians dispute this claimed lifespan, and some said they can now no longer afford to offer HarperCollins e-books. With many library services facing budget cuts, few will relish the prospect of having to replace e-books on an annual basis.
Perhaps in response to the outraged librarians, HarperCollins US’ President of Sales, Josh Marwell, wrote an open letter claiming that the new system will provide for cheap renewals of expired e-books, and should cost libraries less overall, though without figures, that can’t be verified.
“Intellectual property” is an umbrella term that includes many types of legal rights. Lumping them together and calling them IP is fairly recent and done for propagandistic reasons.1
It’s traditionally understood to include “the big four”:
patent
copyright
trademark
trade secret
It also includes more modern legal IP rights,2 including:
Reputation rights (protected by defamation (libel and slander) law) are not usually considered IP3 but I think they should be; similar motivations and argument and flaws.
The latest I’ve heard is the proposal by Hank Barry (in a recent appearance on TWiL), former CEO for Napster and now an IP lawyer, who wants to reform copyright law by adding “a right of community in works of authorship.” As he writes: “So, should an author whose work has generated substantial amounts of money as the object or locus for a community have a right to benefit from those economics, even if the economics are one step removed from the sale of a copy of the work?”
Summary of attempts to push for new IP protections:
Death Penalty for Pirating Fabric Designs in France (historical monopoly on fabric patterns plus the modern point that “the fashion industry is urging the re-imposition of a type of copyright in fashion design”)
Your original question was: “see transcript. Iancu near the end I think mentions various sui generis rights that work well, and some that don’t. Find that part of the discussion, summarize the sui generis rights they are talking about, and find links to discussions and explanations of these.”
Relevant section: Approximately 33:48 – 36:18 in the transcript
In this part of the conversation, former USPTO Director Andrei Iancu argues that the traditional one-size-fits-all U.S. patent system is struggling with 21st-century technologies (software, data, AI, etc.). He recommends considering new sui generis (specially tailored) IP rights and points to past U.S. examples — some very successful, one that did not work well.
Successful Examples Highlighted
1. FDA Regulatory Data Exclusivity (Hatch-Waxman & BPCIA)
Separate from patents, this gives market exclusivity based on regulatory data submitted to the FDA:
Small-molecule drugs (New Chemical Entities): 5 years
Biologics / large molecules: 12 years
It has successfully encouraged expensive R&D while allowing strong generic competition afterward. The U.S. now has ~90% generic prescription fill rate.
Mask Works – Semiconductor Chip Protection Act (SCPA, 1984)
Sui generis protection for the layout/topography of semiconductor integrated circuits. 10-year term, requires registration with the Copyright Office. Created to stop chip copying but has seen very limited use.
Iancu notes that the U.S. already has experience with tailored IP rights. Some (FDA data exclusivity, plant protections) work very well; others (mask works) do not. He urges a national conversation with industry to design appropriate new sui generis protections for data, AI, and other intangible innovations instead of forcing everything into the 18th-century utility patent framework.
Let me know if you would like any part expanded or additional resources.
See Jeffrey D. Dunn & Paul F. Seiler, “Trade Secrets and Non-Traditional Categories of Intellectual Property as Collateral,” UNCITRAL, Second International Colloquium on Secured Transactions: Security Interests in Intellectual Property Rights, Vienna, Austria (Jan. 18–19, 2007; https://perma.cc/W688-M4JT), p. 8: “Some jurisdictions, but not the United States, include moral rights as part of their copyright laws. The United States, with one exception, treats these kinds of rights as part of tort law (defamation and unfair competition).” [↩]
Their use of the phrase “cultural paywall” is loaded. They seem to want to imply, without doing the work to support the contention, that the culture (and by that I assume they mean the great poetry and drama that we inherited from the Elizabethans) was only possible because playgoers were forced to pay for content. The analogy, as far as it goes, asserts that the web is a kind of modern day playhouse that lacks a “cultural paywall”. Therefore, no modern day Shakespeare could possibly make a living or “survive the web”. Fair enough, but their argument is embarrassingly simplistic and glosses over a far more complex relationship among the poets themselves.
For instance, while they credit the very existence of Hamlet to the “cultural paywall”, they completely ignore or are collectively ignorant of the fact that Hamlet was probably a derivative work based on a play by Thomas Kyd. If the copyright laws had been enforced then, as they are today, Kyd would have sued Shakespeare for every nickel he was worth. Hamlet wouldn’t have been possible.
Why are medical devices protected by patent law while medical procedures are exempt? And what about the government’s use of compulsory licenses to force pharmaceutical companies to produce certain drugs like CIPRO. These are two medical-related examples in a long list of arcane exceptions and arbitrary details written in to intellectual property (IP) law. It is commonly believed that IP rights, such as patents, copyrights, and trademarks are necessary to foster innovation and protect the interests of the people and companies that create new products and ideas. Patent attorney Stephan Kinsella of the Mises Institute, holds an opposite view, and in this podcast with Michael Ostrolenk, discusses the growing movement that views IP law as not only anti-competitive and a barrier to innovation, but also as incompatible with true property rights. Michael and Stephan also talk about the evolution of IP from laws like the 1709 Statute of Queen Ann, an attempt by the monarchy to control the output of book printers, the influence of which carried into the copyright and patent provisions in the U.S. Constitution.
“Patent office administration would strike many a person as a dull topic” (p. xiv). This seems like an inauspicious opening sentence for a book on patent office administration, and the author is of course quite right. It is not a very exciting subject.
It is an important subject, nonetheless, and Peter Drahos does a very good job of explaining what it is, exactly, that these bureaucracies do, how they go about their day-to-day routines, and who their major clients are. Moreover, he describes how the different national patent offices have gradually become part of a globally integrated international patent system that, he argues, serves in practice to protect the interests of large multinational corporations. Given the strong monopoly provisions of the patent system, this is a matter of central importance that touches all aspects of business innovation. [continue reading…]
Say you don’t have the dough to add the fashions you see at Sunday’s Academy Awards ceremony to your closet. If you buy knockoffs instead, are you shopping smart or stealing?
Today it’s perfectly legal to copy whatever you see on the red carpet and sell it yourself. To some, such as Diane Von Furstenberg, this sounds a lot like theft. The former German princess is one of the world’s most successful fashion designers and she’s teaming up with Senator Chuck Schumer (D-NY) to push a bill that would give designers a three-year monopoly on new creations.
The whole point of intellectual property is to spur innovation, and that, according to supporters, is exactly why the fashion industry needs such a bill. Without tougher protections, they say designers will have less incentive to create new looks.
But is the fashion industry really hurting for innovation? And are top-tier designers like Von Furstenberg really getting ripped off by bargain hunters? And even if they were, who’s to say whose look is truly original?
Johanna Blakely of USC’s Norman Lear Center worries that the relentless push for more intellectual property protection could lead to a situation where big design houses lawyer up and sue young designers. Designer Galina Sobolov, head designer and owner of Single by Galina Sobolov, agrees.
“If this bill was in effect as we grew our company, we would have faced probably millions of lawsuits,” says Sobolov, whose designs have been worn by celebs such as Katy Perry and Rachel Hunter. “And we would have never actually had a company.”
Approximately 6.30 minutes.
Written and Produced by Ted Balaker. Field Producer: Paul Detrick; Camera: Hawk Jensen, Alex Manning, Zach Weissmueller; Additional Photography: Dan Hayes.
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I’m working on Guns, Germs, and Steel, by Jared Diamond. Good book so far, although I’ve ground almost to a halt halfway through. (I’d probably make better progress if it showed up in blog-sized chunks in my feed reader every day.) I like sweeping accounts of history, and this one presents many new ways to look at things. It also gets me thinking about the current sorry state of the patent system, with these excerpts:
All this is not to deny that Watt, Edison, the Wright brothers, Morse, and Whitney made big improvements and thereby increased or inaugurated commercial success. The form of the invention eventually adopted might have been somewhat different without the recognized inventor’s contribution. But the question for our purposes is whether the broad pattern of world history would have been altered significantly if some genius inventor had not been born at a particular place and time. The answer is clear: there has never been any such person. All recognized famous inventors had capable predecessors and successors and made their improvements at a time when society was capable of using their product. [continue reading…]
The New York Times finally takes notice of a website that has dramatically changed the fate of classical music.
The site is the Internet Music Score Library Project, founded only five years ago but now providing scores to every soloist, chamber group, choral group, ensemble, and symphony on the planet. Because of this resource, the fate of classical music has made a turn around in the culture for the first time in several generations. One is more likely to hear live music at the museum, and the great scores of the past are being given new life with amateur groups acquiring sheet music that would have been unaffordable in the past. Listeners are discovering new and forgotten pieces rather than being treated to an endless litany of warhorses. New vibrancy in this genre is everywhere to behold, not only in live performances but also in digital recordings.
The founder of IMSLP is a Chinese immigrant who remembers what it was like in the old days, and how music was just so inaccessible. He changed all that with his scans and uploads. And the site has managed to survive some serious legal challenges by the state-protected publisher monopolies that try to charge ghastly prices for music. It is a glorious thing to behold, and I’m so pleased to see that classical music is systematically developing a larger role in society and culture than it has had before. The site and the development model has even inspired modern composers to seek out other models for financing their work and then putting their creations into the commons – which represents a recreation of the distribution method from the golden age.
Just the other day, for example, I was seeking some scores from a composer/pianist on the West Coast. I had never contacted her before, but she readily attached all her music back to me in an email. She further encouraged me to pass them around to others, which I did. She did this without thinking a thing about it. This never would have happened two or three decades ago. Now, it seems like a no brainer: of course I want me music to reach the widest audience possible!
One tragedy here concerns the early modern composers who are dead but whose works are tied up in a copyright prison. Their status is sinking while the status of older and newer works is rising.
The Center for the Study of Innovative Freedom (C4SIF) is dedicated to building public awareness of the manner in which so-called “intellectual property” (IP) laws and policies impede innovation, creativity, communication, learning, knowledge, emulation, and information sharing. We are for property rights, free markets, competition, commerce, cooperation, and the voluntary sharing of knowledge, and oppose IP laws, which systematically impede or hamper innovation. IP law should be completely and immediately abolished.
We provide news commentary and analysis and scholarly resources from our unique pro-property, pro-market, pro-innovation perspective.
As noted in Kinsella on IP Panel of NYU School of Law Symposium: “Plain Meaning in Context: Can Law Survive its Own Language?”, last month I was a panelist on the “Intellectual Property Law and Policy” panel of Symposium: “Plain Meaning in Context: Can Law Survive its Own Language?”, put on by New York University School of Law/Journal of Law and Liberty (February 18, 2011). Professor Richard Epstein delivered an interesting keynote address immediately preceding my panel.
Nina Paley designed this great “Librarians Against DRM” logo to accompany the 
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