From Patently-O, 2012. See also: Mossoff: Patent Law Really Is as Straightforward as Real Estate Law; and re negative servitudes: Intellectual Property Rights as Negative Servitudes and Libertarian Answer Man: Restrictive Covenants and Homeowners Associations (HOAs).

COMMENTS:

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An old Mises post from Skip Oliva.

See also The Fountainhead and IP Terrorism; What Sparked Your Interest in Liberty? (FEE.org)

Interesting paper by Alfredo Bullard, “Is Intellectual Property Theft?“, Yale Law School SELA (Seminario en Latinoamérica de Teoría Constitucional y Política) Papers (Jan. 2008)

Abstract:

Marx said that private property is theft. In the Marxist vision of reality, to own something is to have stolen it from someone. Today few subscribe to this belief. We know that property is a central institution for market development and for the operation of any reasonably structured economy. Another truism arises from the simple application of this idea to the concept of intellectual property (hereinafter “IP”): IP is equally useful to the operation of the economic system as is the private ownership of tangible goods. If the Marxist belief that private property is theft turned out to be false, so is the belief that IP is theft. But this conclusion is not as simple as it might seem. The conceptual foundation that justifies the existence of exclusive title over tangible goods does not translate to the existence of exclusive title over ideas. In fact, it is questionable whether IP should even be considered property. Its foundations are, in most cases, very doubtful, and its existence, in every case, justifies a serious limitation on the reach that it is currently granted. In this sense, perhaps, Marx’s phrase might have had a longer and happier life if he had limited himself to stating that IP was theft.

Below is a transcript of my debate with Bob Wenzel on IP:

KOL038 | Debate with Robert Wenzel on Intellectual Property

Transcript

Debate with Robert Wenzel on Intellectual Property

Stephan Kinsella and Robert Wenzel

April 1, 2013

00:00:00

ROBERT WENZEL: Everyone, this is Robert Wenzel.  Welcome to a special edition of the Robert Wenzel Show.  You didn’t hear the usual music introduction because what we’re doing is we’re putting the raw audiotape up of the debate I’m having here with Stephan Kinsella.  So this will be on my site, EconomicPolicyJournal.com, and it will also be at Stephan’s site as part of his podcast.  I’ll put a—actually, I don’t know how Stephan has—what his link is, so I’ll have him mention that when he gets on the show, which is right now, Stephan, so take it away.  You have eight minutes. [continue reading…]

Paraphrased interchange:

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Confused “libertarian” Jan Lester¹ makes a feeble attempt to criticize some of my anti-IP arguments, in a retarded paper called “Against Against Intellectual Property: A Short Refutation of Meme Communism“.

This essay is intended to be a refutation of the main thesis in Against Intellectual Property, Kinsella 2008 (hereafter, K8). Points of agreement, relatively trivial disagreement, and irrelevant issues will largely be ignored, as will much repetition of errors in K8. Otherwise, the procedure is to go through K8 quoting various significantly erroneous parts as they arise and explaining the errors involved. It will not be necessary to respond at the same length as K8 itself.

1. See “Aggression” versus “Harm” in Libertarianism. [↩]

Interesting master’s of philosophy thesis by one Zachary Hopper at Georgia State, in 2013.

Abstract

Thomas Pogge proposes the Health Impact Fund (HIF) as a realistic, feasible reform to the pharmaceutical patent regime that would incentivize pharmaceutical research and reward innovation for medicines based on their impact on the global burden of disease. Pogge advances a human rights-based argument to show that the HIF is a morally required addition to the current pharmaceutical patent regime. One objection to his human rights argument comes from a libertarian appeal to property rights. Pogge’s response to the libertarian leads to the counterintuitive conclusion that libertarianism is incompatible with any system of intellectual property rights. This paper will show how Pogge fails to distinguish between what I call status quo and revisionist libertarian positions on intellectual property. Making this distinction, I maintain, would strengthen the human rights argument and allow Pogge to avoid the counterintuitive conclusion of his response to the libertarian.

David Friedman, a physicist by training who styles himself a legal expert and economics expert (though never practicing law and not an Austrian), and a soi-disant libertarian and anarchist even though he has no settled view on intellectual property, on IP:

Law’s Order: What Economics Has to Do with Law and Why It Matters, chapter 11, “Clouds and Barbed Wire: The Economics of Intellectual Property.”

This is what apparently passes as “libertarian” reasoning by the physicist:

See also references and links in KOL377 | No Way Jose Ep. 140: David Friedman Debate Prep: Deontology vs. Consequentialism, Utilitarianism, Natural Rights, Argumentation Ethics, Intellectual Property; also David Friedman on the “Problem” of Piracy; David Friedman on Copyright; David Friedman: Current Experiments in Self Publishing.

This is a decent overview of arguments for and against intellectual property in the Stanford Encyclopedia of Philosophy, by Adam Moore and Ken Himma. It’s of course too mainstream and too implicitly pro-IP, but what you gonna do.

Adam D. Moore & Kenneth Einar Himma, “Intellectual Property,” in Edward N. Zalta, ed., Stanford Encyclopedia of Philosophy (Stanford University, 2011; https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1980917; https://plato.stanford.edu/entries/intellectual-property/)

A Mises post from my good friend Juan Carpio back in 2008:

IP = right to profits. Nothing more and nothing less.

Josef Sima, Stephan Kinsella, Bertrand Lemmenicier, Property and Freedom Society, Bodrum, Turkey, May 20 2006

Bertrand Lemennicier (1943–2019)’s article on IP, as translated by google:

Brevets d’invention, droits de reproduction et propriété intellectuelle:

Lemmenicier, Patents, reproduction rights and intellectual property [continue reading…]

Various people have pointed me to this video since it came out two years ago.

Here’s the description:

In the litany of copyright infringement lawsuits, technology lawyer and musician Damien Riehl demonstrates that music is merely math, and has a finite number of possible melodies. If you’ve ever thought a song you like sounded similar to another, the culprit may not be an unethical forger, but rather the limited mathematical musical equations that our favorite artists have to work with. Current copyright law is at risk of severely limiting future music creation and future human creativity. This talk suggests a new way to handle these legal cases. Damien Riehl is a technology lawyer with a B.S. in music. After beginning to code in 1985, and for the web in 1995, he has worked for the chief judges of state and federal courts; litigated for a decade; taught law-school copyright classes; and led teams in software development, digital forensics, proactive cybersecurity, reactive cybersecurity incidents, and world-scale investigations. Damien’s combined experience in the law, technology, and music has inspired his most recent project—copyrighting billions of unique melodies.

[continue reading…]

See Mytheos Holt, The Bizarre Regulatory Idolatry of the Patent Lobby, TownHall (March 8, 2017), which has some good criticisms of the patent system, although it’s not clear the author is for abolishing the patent system; and the weak response by perennial IP advocate and Randian Adam Mossoff, Patents Are Property Rights, Not A “Bizarre Regulatory Lobby,” TownHall (March 13, 2017).

E.g., Mossoff writes:

To take but one example of this American approach, a Supreme Court Justice said in 1845 that “we protect intellectual property, the labors of the mind, . . . as much a man’s own, and as much the fruit of his honest industry, as the wheat he cultivates, or the flocks he rears.”

On the basis of this classic moral justification for all property rights — that people should have the fruits of their productive labors secured to them as their property — early American legislators and judges secured stable and effective property rights to innovators and creators.

Here we go with the ridiculous and amorphous–and Marxian–dessert-based, “fruits of one’s labor” argument. You don’t own wheat you cultivate because of labor. You own the wheat because you own the land and your labor transforms it into wheat. The labor creates wealth but not property rights. Creation is not a source of property rights, but of wealth. See, e.g., the section “Creation of Wealth versus Creation of Property” in Intellectual Freedom and Learning Versus Patent and Copyright; also Locke, Smith, Marx; the Labor Theory of Property and the Labor Theory of Value; and Rothbard, Gordon, and Intellectual Property; Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging’; Succinct Criticism of Utilitarianism and Libertarian Creationism; Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors.