Louis Rouanet, “Michel Chevalier’s Forgotten Case Against the Patent System,” Libertarian Papers 7 (1) (2015): 73–94.

Abstract: Although Michel Chevalier was an influential economist during the second half of the nineteenth century, and is well-known as an architect of the Cobden-Chevalier Treaty, his work in economics has been largely forgotten. In particular, Chevalier is notable for being one of the only French liberals opposed to patents. Unfortunately, his original and compelling critique of the patent system has been neglected. This paper rediscovers Chevalier’s arguments against patents, shows why they are still relevant today, and explains why they have been mostly ignored by historians of economic thought.

See also Michel Chevalier and patents: Ownership or privilege, by Louis Rouanet, Institut Coppet.

From 2016. For more by Carson.

Jay Mukherjee & Walter E. Block, “Libertarians and the Catholic Church on Intellectual Property Laws/Libertarios y la Iglesia Católica en las leyes de propiedad intelectual,” Las Torres de Lucca: Revista Internacional de Filosofía Política Nº 1 (julio-diciembre 2012): 83-99

Abstract:

Catholics and libertarians make strange bedfellows. They sharply disagree on many issues. However, when it comes to intellectual property rights, they are surprisingly congruent, albeit for different reasons. The present paper traces out the agreement on patents between these two very different philosophies.

See also:

• Kinsella, “Holy Copyright!“
• Thomas C. Berg & Ruth Okediji, “Intellectual Property and Religious Thought,” Lumen (Winter 2009);
• KOL388 | Cantus Firmus with Cody Cook: Against Intellectual Property;
• KOL243 | Libertarian Christians Podcast with Norman Horn: Intellectual Property
• Jeffrey Tucker, Pay to Pray: The Church’s Simony Problem
• idem, The Hidden Hand behind Bad Catholic Music;
• idem, The Church’s Ritual Texts Must Be Freed
• Music scholar says chant is for everyone, not just elite

From Alexander Zaitchik, Owning the Sun:

“Long before medicines entered the monopoly debate, many countries were hesitant to accept the general Anglo-American concept of “owning ideas.” A debate over the legitimacy and value of monopolies as awards for invention was a tempest across Europe throughout the nineteenth century and into the twentieth. The Netherlands proudly maintained what it called a “free trade in inventions” until 1912. During this long argument, the fiercest denunciations of intellectual property were found not in left-wing journals but in the pages of The Economist, whose editors advocated for the abolishment of the English patent system. The magazine asserted in 1850 that for inventors to “establish a right of property in their inventions,” they first would have “to give up all the knowledge and assistance they have derived from the knowledge and inventions of others . . . That is impossible, and the impossibility shows that their minds and their inventions are, in fact, parts of the great mental whole of society, and that they have no right of property in their inventions.”

The recently-published Routledge Companion to Libertarianism (Matt Zwolinski & Benjamin Ferguson, eds., 2022) includes a chapter on “Intellectual Property,” written by Objectivist law professor Adam Mossoff. I was initially dismayed that Mossoff was included in the book since he is pro-IP.¹ However, according to the Introduction, his chapter “surveys the surprisingly wide range of libertarian opinion on the issue of intellectual property rights.” As Mossoff states, “This chapter does not argue for any position in this longstanding IP debate, but rather describes the various positions on IP rights among libertarians and classical liberals.”

To my pleasant surprise, it’s a pretty decent and even-handed overview. I would quibble here and there, but it’s pretty good. As for some quibbles— [continue reading…]

1. See “Mossoff: Patent Law Really Is as Straightforward as Real Estate Law“; “Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors“; “Hsieh and Mossoff on IP and Sewing Machines“; “Mossoff: Why Should Business Leaders Care About Intellectual Property (Objectivism)“; “Pledge for a Webcast on Intellectual Property by Adam Mossoff“. [↩]

Dean Baker is sometimes skeptical of IP excesses,¹ though he’s no abolitionist.²

But as I said, sometimes he has a decent point when criticizing IP. For example, see his “Working Paper: Is Intellectual Property the Root of All Evil? Patents, Copyrights, and Inequality” (2018), which persuasively argues that abolishing patents would save about $827 billion annually, with some products becoming more than 90% cheaper. [continue reading…]

1. Dean Baker, Getting Ready for the Next Pandemic: Can We Get Patent Monopolies on the Table? (“We are still seeing no real debate as to whether we want to rely on these monopolies as a primary mechanism for financing medical innovation in the future.”); The Economist: Copyright Is An Antiquated Relic That Has No Place In The Digital Ages. [↩]
2. On Dean Baker’s inconsistent and confused views on IP policy, see: “$30 Billion Taxfunded Innovation Contracts: The ‘Progressive-Libertarian’ Solution”; Libertarian Favors $80 Billion Annual Tax-Funded “Medical Innovation Prize Fund”. As I noted in The Economist: Copyright Is An Antiquated Relic That Has No Place In The Digital Ages, Baker is not opposed to state-granted intellectual property, though he does toy with the idea of using taxpayer funded multibillion-dollar “artistic freedom vouchers” to promote artistic creation as some kind of improvement on copyright, and $30 billion/year in taxpayer funded subsidies for medical innovation. He’s also bad on §230 reform. Re The “Artistic Freedom Voucher” [sic]:

   As noted by Roderick Long here, “Timothy Lee writes:  ‘I can’t agree with Baker that all copyright and patent monopolies are illegitimate.’ I’m actually not sure that’s Baker’s view (in his original response Baker remarks in passing, ‘there may be areas in which patents are an effective policy for promoting innovation’).” In that exchange, Long rightly criticizes Baker’s proposal for “a system in which the government allocates a pot of money (@$30 billion a year – approximately equal to private R&D in the pharmaceutical sector) that would be awarded in long-term contracts to a relatively small number of master contractors”. I criticize this and related proposals in $30 Billion Taxfunded Innovation Contracts: The “Progressive-Libertarian” Solution. [↩]

This is included as ch. 9 of Stephan Kinsella, ed., The Anti-IP Reader: Free Market Critiques of Intellectual Property (Papinian Press, 2023).

***

Wendy McElroy has previously written about a fascinating debate on intellectual property among various anarchists in the pages of Benjamin R. Tucker’s periodical Liberty. She provides and excellent discussion of the debate in her article “Copyright and Patent in Benjamin Tucker’s Periodical,” Mises Daily (July 28, 2010), based on a chapter in Wendy McElroy, The Debates of Liberty: An Overview of Individualist Anarchism, 1881–1908 (2002), which also contains detailed endnotes and references.

As McElroy explains,

Intellectual property — as embodied in copyright and patent — was the subject of intense debate within Liberty. Benjamin Tucker flatly rejected the idea that legal copyright was compatible with anarchism. The strength of Tucker’s opposition to patents may be judged from his essay “State Socialism and Anarchism: How Far They Agree, and Wherein They Differ [1899].

In that essay, Tucker condemned four monopolies: [continue reading…]

This is a superb article by libertarian law professor Gary Chartier, arguing that IP cannot be justified by natural law reasoning, and in fact is incompatible with natural property rights: “Intellectual Property and Natural Law,” Australian Journal of Legal Philosophy vol. 36 (2011): 58–88.¹

As he writes:

I sent Gary the following note about one part of his article (and cc’d Roderick Long and Gerard Casey who had been on an earlier email thread with me and Gary).

[continue reading…]

1. Gary informs me that an updated version of this article is incorporated into ch. 2 of his book Anarchy and Legal Order: Law and Politics for a Stateless Society (Cambridge, 2012; online at zlib dot org). [↩]

Delivered at the Conference on Trusts of the Chicago Civic Federation, 14 September 1899. Later published as a pamphlet (New York: Benj. R. Tucker, 1903), available here and here. I’ve added some bolding to emphasize some key comments related to patent and copyright.

[continue reading…]

Fascinating series of articles about how bumbling and aggressive assertion and use of copyright law by the music industry distorted and suppressed innovation, using the Napster situation as a case study. (One of my first articles on IP was a response to the dispute between the copyright terrorists and Napster: “In Defense of Napster and Against the Second Homesteading Rule,” LewRockwell.com (Sep. 4, 2000).) Carrier’s piece is thorough and excellent, and Masnick, as usual, hits the nail on the head. Marks, an RIAA shill, is full of it.

The original paper that kicked this off is: Michael A. Carrier, “Copyright and Innovation: The Untold Story,” Wis. L. Rev. (2012).

This led to three replies, and a response by Carrier, in the online version of the Wisconsin Law Review.

• Steven M. Marks, “Debunking the “Stifling Innovation” Myth: The Music Business’s Successful Transition to Digital,” Wis. L. Rev. Online (2013)
• Mike Masnick, “When You Let Incumbents Veto Innovation, You Get Less Innovation,” Wis. L. Rev. Online (May 20, 2013) (summarized in “The Aftermath Of Napster: Letting Incumbents Veto Innovation Slows Down Innovation Drastically,” Techdirt (May 29, 2013))
• Randal C. Picker, “Copyright and Innovation: Déjà Vu All Over Again,”  Wis. L. Rev. Online (2013)
• Michael A. Carrier, “Copyright and Innovation: Responses To Marks, Masnick, and Picker,” Wis. L. Rev. Online (2013).

From the introduction to Carrier’s 2012 article: [continue reading…]

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 [continue reading…]

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). [↩]

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.

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:

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.

See also “Progress and Potential A profile of women inventors on U.S. patents,” USPTO Office of the Chief Economist, IP Data Highlights, Number 2 (February 2019).

Also: Dennis Crouch, “He, She, or They in US Patent Law,” Patently-O Blog (June 28, 2022):

For its part, the USPTO has not historically asked for the gender of its applicant.  Still, there is plenty of evidence for historic and ongoing systemic gender bias. See, for example, Kyle Jensen, Balázs Kovács & Olav Sorenson, Gender Differences in Obtaining and Maintaining Patent Rights, 36 NATURE BIOTECH. 307, 308 (2018); B. Zorina Khan, Married Women’s Property Laws and Female Commercial Activity: Evidence from United States Patent Records, 1790-1895, 56 J. ECON. HIST. 356 (1996); Deborah J. Merritt, Hypatia in the Patent Office: Women Inventors and the Law, 1865-1900, 35 AM. J. LEGAL HIST. 235, 290 (1991); Carroll Pursell, The Cover Design: Women Inventors in America, 22 TECH. & CULTURE 545 (1981). Dan L. Burk, Do Patents Have Gender?, 19 Am. U. J. Gender Soc. Policy & L. 881 (2011).

See also this the 19th Annual IP Symposium: Gender & IP – Addressing the Gap, Texas Intellectual Property Law Journal (2020). Jesus.

And Inventor Diversity Advocacy Group Launches ‘Patent Academy’ in Latest Effort to Reach Underrepresented Inventors. OMFG.

1. “How to Improve Patent, Copyright, and Trademark Law.” [↩]