“I explain why Intellectual Property rights are actually criminal monopoly grants and why copyrights and patents should be entirely abolished. I debunk every pro-IP argument ever and explain how we will see more technological and artistic development without copyrights and patents.”
Interesting paper that discusses and relies on my IP work and views on Locke and the labor theory of property:
David Jarrett, “Lockeanism and restitution: What are the implications of a Lockean law of restitution for the contemporary UK?” (Doctoral thesis, Goldsmiths, University of London, Department of Politics and International Relations, Submitted for a degree of Doctor of Philosophy, 2019).
Abstract: This dissertation sets out a Lockean law of restitution and enquires into some of the implications of this law. It firstly looks into the implications for property redistribution in a case study country – the contemporary UK. It secondly looks into the implications of the law for understanding exploitation in the contemporary UK and historical England until the early industrial era. According to Lockean justice, one owns one’s body and is entitled to fully own previously unowned natural resources one has laboured on. One is also able to transfer one’s property to whom one wishes. We are concerned with the problem of how to address holdings which did not arise in line with Lockean justice. We argue that previous attempts at addressing the problem, including those laid out by Nozick and Rothbard respectively, have been unsatisfactory. We set out a new way of approaching the problem, which we argue is more consistent with Lockean theory. We lay out a Lockean law of restitution inspired by the law of restitution found in the English legal tradition. After laying out the Lockean law of restitution, we look into some implications of the law. Using secondary historical and sociological sources, we argue that all property in the UK is unjustly held according to the Lockean law of restitution and should be redistributed in an egalitarian manner. We secondly argue that wage labour in the contemporary UK is exploitative in Lockean terms, and thirdly, that wage labour can reasonably be presumed to have always been exploitative in England historically. In light of our findings we outline the possibilities for a Lockean approach to property redistribution in the UK.
Related:
Leonhard Dobusch, “Reflections on Abolitionism: Copyright and Beyond,” in Governance across Borders: Transnational Fields and Transversal Themes, edited by Leonhard Dobusch, Philip Mader and Sigrid Quack (Cologne: Max-Planck Institute for the Study of Societies, 2013)”1 [continue reading…]
This is a talk delivered at Trinity University in San Antonio, Texas, on or around April 6, 2013 by Jan Narveson. Published here for the first time (with permission). See also the entry for Narveson at Classical Liberals, Libertarians, Anarchists and Others on Intellectual Property.
Privacy, Intellectual Property, and Rights
Jan Narveson
Intellectual Property is one of the most important concepts in the world of commerce today. But there are thinkers who seriously challenge the idea. They point out that ideas do not have the property of scarcity that is required for property to make sense: If I know that p, and I tell it to you, I don’t thereby cease to know it. True, and important. On the other hand, somebody has to think up knowledge – it doesn’t fall from the heavens on us all. The work of thinkers, especially when successful, is supremely important. Without them, we would have none of the things that make life so much better for all than it was for the cavemen. The question is, how are those extremely important people to make their livings if they are not credited with what amounts to ownership of those ideas? The essentials to the solution to this problem, I am sure, lie in the distinction between ideas in the head, and ideas in Plato’s heaven. Ideas in the abstract cannot be owned or patented: nobody can own the mathematical fact that every even number is the sum of two primes, but somebody can discover it, and at the time he or she does, his is the only head having that fact in his possession. That’s scarcity enough for him to charge for the discovery. But: ordinarily a property right excludes all others forever. And yet someone else might, a week or a year later, discover that same amazing thing – latches on, as it were, to the same Platonic form. Because property is individual, there is a serious question whether the newcomer is properly excluded by the first discoverer’s right. I argue not, with some further observations on patents and copyrights. [continue reading…]
Interesting book by James O. Young, Radically Rethinking Copyright in the Arts: A Philosophical Approach (2020). He recognizes many absurdities of copyright law, and recommends many changes, but can’t quite bring himself to push for abolition.
From Mises Wire:
Proponents of intellectual property rights often rely on one of two lines of reasoning. The first is based on the misunderstanding that the frequency or volume of innovations determine economic growth. The second is captured by the question, “So if I spend $1 billion on R&D (research and development) to bring a new drug to market, anyone should be able to copy my drug without compensation?” Both are based on the same fundamental error: assuming that innovation is a matter of production. It is not. Innovation is all about entrepreneurship, and that’s why intellectual property rights do not and cannot help.
It’s the wrong question to ask, the wrong way to frame it, and of course, wrong and pro-IP as usual. It’s sad the Federalist Society keeps pushing this.
Oh well, at least they allowed a sane voice at least one time: KOL235 | Intellectual Property: A First Principles Debate (Federalist Society POLICYbrief). But as noted there,
overall the Federalist Society has presented basically the pro-IP side (More defenses of IP by the Federalist Society; Federalist Society Panel: Undermining or Preserving Property Rights? The New Administrative Patents). I pestered them over years to include more balanced treatment in their bibliography, to no avail (Anti-IP Material Needed in the IP Section of the Federalist Society’s “Conservative & Libertarian Legal Scholarship: Annotated Bibliography”).
The moronic shills at IPWatchdog, including the oafish Gene Quinn, who writes like a 9th grader and used to illiterately list his master’s degree as an L.L.M. (it’s an LL.M, genius) (see here and here), won’t stop their senseless cheerleading for IP:
How the History of Patents Can Teach Us What a World Without Them Might Be Like
Despite its longevity, the patent system is often criticized. During the pandemic, accusing eyes quickly turned to patents and voices were raised demanding that patents related to COVID-19 be “waived”. This is not an isolated event: some have argued that we would be better off without patents for various reasons in other crises of the past as well. This raises the question of what a world without patents – as we know them today – would be like. As is often the case, history gives us some valuable insight. In this article, we will look specifically at three risks posed by a world without patents in light of real examples from the past.
PASCAL ATTALISEPTEMBER 7, 2022, 07:15 AM
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One of my first published anti-IP pieces: “Is Intellectual Property Legitimate?” (local copy; archived copy), Pennsylvania Bar Association Intellectual Property Newsletter 1 (Winter 1998): 3; republished in the Federalist Society’s Intellectual Property Practice Group Newsletter, vol. 3, Issue 3 (Winter 2000). See also James Stern: Is Intellectual Property Actually Property? [Federalist Society No. 86 LECTURE]
Audio available at KOL445 | Audio: Is Intellectual Property Legitimate? Three Essays.
Stephan Kinsella, “Letter on Intellectual Property Rights,” IOS Journal 5, no. 2 (June 1995), pp. 12–13. This issue also contains David Kelley, “Response to Kinsella,” IOS Journal 5, no. 2 (June 1995): 13; and Murray I. Franck, “Intellectual and Personality Property,” IOS Journal 5, no. 3 September 1995): 7. Text below.
[Audio available at KOL445 | Audio: Is Intellectual Property Legitimate? Three Essays.]
This was the journal of David Kelley’s Institute for Objectivist Studies, or IOS, which is now The Atlas Society. The letter was a response to Murray I. Franck, “Intellectual Property Rights: Are Intangibles True Property?“, IOS Journal (April 1995): 8–10. Text below. Franck, and later Kelley, argued for IP; I argued against it.
See also a subsequent response from The Atlas Society to my IP criticisms in Marilyn Moore, “Ayn Rand’s ‘Patents and Copyrights,'” AtlasSociety.org (May 28, 2019).
N.b.: some back issues of IOS Journal are archived here.
Institute for Objectivist Studies
From the Forum…
by Murray I. Franck
At an IOS Forum in New York City on May 2, 1992, Murray Franck, an attorney, professor, and trustee of the Institute, spoke on “Intellectual Property Rights.” Mr. Franck began with a review of Ayn Rand’s theory of rights and within that context discussed the nature and justification of intellectual property rights. He concluded with a brief review of the status of intellectual property rights today. The following brief excerpt discusses “intangible property” and our right to it.
Intellectual property includes not only patents and copyrights, but also personality property—property concerned with the facts of your life and conscience property—property concerned with the content of your mind. I maintain that we cannot separate tangible property from intangible property, and therefore that intangible property—in all its forms—is subject to the protection of property rights.
In discussing intangible property, please bear in mind that tangible property is corporeal, physical—such as real estate, a pen, the clothing we are wearing—and that intangible property supposedly attaches to no physical entity; it includes, for example, a patent or copyright. The issue, then, is whether intangibles are true property and, if they are, do we have rights in them?…
Rights have no value except as rights to action in the physical world—that is, to attempt physical implementation of expression. And rights cannot be violated except in the physical world—that is, they can be violated only by physical action.
Let’s explore this thesis with civil rights. One civil right is to freedom of expression. It is derived from the right to the contents of your mind, which is ostensibly an intangible. This intangible is property because you created your own thoughts. Let’s test my thesis. Can we separate this ostensibly intangible property from a tangible piece of property? Freedom of the press is the manifestation of freedom of conscience and expression. It takes place in the real world with real printing presses. In practice, it requires private ownership of the physical media that is, property rights in the media. To bring this home: If the government owned all of the media, we would have a regime of continuous censorship, because the government perforce must select the users and then, by force, bar others from using the same physical media.
Your Right To Your Biography
Let’s discuss personality property. Privacy rights protect the rights to knowledge of the facts of your own life—that is, to knowledge of your own biography—against public disclosure without your permission. Publicity rights protect the rights to exploit your own name and likeness commercially—usually in association with a product, such as an actor endorsing a particular brand of soda. Laws against defamation protect rights to your own reputation.
Personality property meets all of the criteria of property and must be protected. First, you created it; you are the author of your own biography by means of your mental activity followed by your actions. You have the right to your own body, and to what it does…. Further, this thought in action creates your reputation, and it is your reputation that makes your biography—the facts of your life—interesting to people, and, conceivably, of economic value. Furthermore, your reputation is what makes your likeness and your caricature valuable for product endorsement. Most important, your reputation is what causes people to want to deal with you.
Further, the protection of personality property is crucial to one’s survival. Each person, as we noted [earlier in the Forum], requires tranquility against constant intrusion that can inhibit access to the subconscious and therefore to certain automated thought processes, and therefore to effective creative and productive thought…. If you constantly have to worry that the most secret parts of your life are subject to revelation, you always will be on guard, and consequently you will lose access to certain forms of thought processes. In addition, the protection of personality property provides money for the means of survival: You can sell your story, and again license your name and likeness. And, if you are defamed, no one will deal with you— and survival can become impossible.
How are personality property rights violated? They are violated through physical means—primarily through the media.
Are rights attendant to personality property rights to action or rights to a result? They are merely rights to action: to create the facts of your life and attempt to make them valuable—i.e., marketable.
Personality property is consistent with the rights of others. No one has the right to use another’s property without his permission. No one has the right to reveal that is, to use the facts of your life, your creation, your property, without permission. The public, in contrast to what a very irresponsible press has argued, does not have a “right to know”—at least, not a right to know everything. It has a right to the disclosure only of what one wishes to reveal, and only of that which is required for life: for example, whether a certain doctor has a communicable disease.
A claimant to personality property is not initiating force by refraining from disclosing the facts of his life, or by refraining from allowing the use of his name and likeness.
The Scope of Privacy
What is the scope of protection of personality rights? Let’s consider privacy. Rights to privacy…are protected to the point of what you voluntarily relinquish, as is the case with all other property. You can license the right to your biography, to your likeness and to your name. You can enter the public eye to varying degrees. You can become part of the public landscape. You can act in a way that does not indicate secretiveness. Your can become a public figure in the political arena and your protection will be narrower.
I posit that any reasonable individual can judge what is private in this respect this is, what is private in another reasonable individual’s life by asking: Does the subject, the individual, wish it kept private and is this privacy necessary for his sense of tranquility? For example, I pass someone’s home and through an open window I overhear a conversation, the contents of which are clearly personal. If I reveal the content of that conversation, it is theft in the same way that it is theft if I take an unattended flower pot from the sill of the same window. If I walk onto your real estate without permission, I am trespassing. I contend that if I take a photograph, from my property, of you on your real estate, I am trespassing by means of technology. If you are in the waiting room of a doctor’s office and you overhear a conversation between the nurse and a patient concerning a test result that is due, I contend that you cannot reveal that information, because by entering that doctor’s office you have entered into an implied contract to keep whatever you hear secret. And, as a lead into the next section, I argue that to publish private facts is tantamount to violating the subject’s copyright in his own biography.
Patents, Copyrights, and Trademarks
Do we have property rights in patents, copyrights, and trademarks? The subject matter of these branches of intellectual property is physical embodiments and physical expressions of ideas. Here are some definitions, which may overlap in practice.
A patent is the right to the exclusive use of utilitarian creations: that is, inventions of a chemical, biological, or physical nature. The standard for receiving a patent is: Is the invention novel, non-obvious to one skilled in the art, useful, and reduced to practice? “Reduced to practice” means that a model has been built or that you constructively reduced the invention to practice by filing a patent application, which requires drawings or formulae.
A copyright is the right to the exclusive control of artistic and literary creations embodied in any tangible form or medium of expression. This includes books, paintings, music, jewelry, and even software. The standard for receiving a copyright is lower than that for receiving a patent. The work must be original to the extent of being a non-trivial distinguishable variation from what existed previously. A copyright does not bar the marketing of an identical embodiment as long as that identical embodiment, that identical expression or substantially similar expression was created independently. For example, and I know that this example is metaphysically impossible: if someone, somehow, somewhere wrote Atlas Shrugged without ever having had access to the works of Ayn Rand, particularly Atlas Shrugged, he could market it. He may not be able to market it under the same title, but he certainly could market it.
Trademarks protect the exclusive right to use your brand name and packaging, and to bar use of an identical or confusingly similar trademark on the same or related goods, if you are the first to use the mark in commerce and if it, too, rises to a certain level of originality.
Protecting Man’s Mind
Is intellectual property actually property?1 And, are rights in it justified? Resoundingly, yes! Man requires property rights to survive physically and spiritually. As we have discussed, if the creator’s rights are not protected, his survival is jeopardized. If another can market his creation, the creator is deprived of the money he otherwise would have earned: that is, deprived of his means of production through trade, and therefore of his survival. In effect, the creator’s personality and the value of his creation to him have been destroyed. If the infringer can market the creator’s property without the creator’s permission, he has substituted his own life for the creator’s life in the marketplace by claiming the results of the creator’s energy, thought, time, and action.
Creation is the criterion of earning, and therefore of ownership. And again, to paraphrase Ayn Rand: Intellectual property rights recognize the paramount role of the mind in the creation of wealth. Intellectual property rights protect the basis of all rights: man’s right to the content and product of his mind.
Neither man nor the product of his mind is a natural resource. All wealth is produced by somebody and owned by somebody, and all production involves both mental effort and the physical effort to translate the mental effort into material form. A physical object, in the absence of an idea of how to exploit it, has no value. Similarly, an idea not followed by physical concretization has no value. But again, ideas come first.
Technology is the translation of theoretical discoveries into practical form; thus, technology is the ultimate and implicit purpose of man’s quest for knowledge. Intellectual property rights protect this quest. They do not protect the metaphysically given; they protect only the manmade. They do not protect scientific discoveries. They protect only their volitionally created expressions and embodiments. Intellectual property rights do not mandate that people ignore scientific discoveries, and practice falsehoods. They do mandate that people practice truth in an original way.
Justice demands that we reward the creator by defending his right to the fruits of his creation. Justice prohibits rewarding the infringer by allowing him to diminish the rewards of the creator….
As an intellectual property law attorney with a great appreciation of Ayn Rand’s philosophy and an interest in property rights theory, I was quite interested to read Murray I. Franck’s article in the April 1995 IOS Journal, “Intellectual Property Rights: Are Intangibles True Property?”
Mr. Franck argues that “intangible” property such as “personality property” and patents, copyrights, and trademarks, is actually property deserving the protection of law. However, there seem to me to be several insurmountable problems in treating intangible entities such as reputations and inventions as “property.”
First, the very reason we need property rights is that we do not live in the Garden of Eden, where everything is in infinite abundance. Rather, some things are by their nature scarce, which means that there can be conflicts between individuals over who gets to consume and control various scarce goods. Because of the possibility of such conflicts and the necessity of humans being able to use physical goods to survive in the world, we must have a system of property rights that solve such conflicts by allocating specific scarce goods to specific individuals. Thus I can own and farm Blackacre, and you can build a house on Greenacre, rather than us eternally warring over these tracts.
However, intangibles such as ideas (e.g., a particular invention which may be patented under today’s laws) are the exact opposite of a scarce good: person B may learn of and use A’s idea without diminishing A’s possession and use of the idea. As Thomas Jefferson wrote, “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights inter at mine. receives light without darkening me.” (It is true that the economic value of A’s idea may diminish if B is able to learn and use it without paying A for this, but property rights protect the integrity of one’s property, not its value, since value is dependent on what others are willing to pay for it. For example, your house may be more valuable on the market if your neighbor has a nice rose garden. but you do not have a right to this value at all, and your neighbor has every right to tear down his rose garden even if it reduces the value of your property.) Thus, ideas do not deserve property protection because they are not scarce goods and are thus simply not property.2
Another problem with intellectual property rights is that at least some of them seem to be inherently arbitrary and vague. This is in contrast to normal property rights to tangible or corporeal objects like land and furniture, which have objective, intersubjectively ascertainable boundaries that can be determined and respected by everybody. A patent protects an invention which is defined in the patent’s “claims.” but these claims are much more vague than are the boundaries of normal property.
There is often no objective answer as to whether an allegedly infringing invention is the “same” as that claimed in the patent.
Further, the scope of things that patent rights apply to seems both arbitrary and inherently vague and subjective. Patents, for example, protect “inventions” but not “abstract ideas.” Thus I can get a patent on a new mousetrap, while, in a recent case (In re Trovato, 1994) the inventor of a new way to calculate a number representing the shortest path between two points, an extremely useful technique, was denied patent protection because this was “merely” a mathematical algorithm. Why the distinction? Are not both equally beneficial to mankind? Do not both “discoveries” require creative intellect? Patent law seems to arbitrarily protect some intellectual creations, but not others.
—N. Stephan Kinsella, West Chester, PA
[Note: This final part of my letter-to-the-editor was cut from the published letter. — SK]
One final problem with intellectual property rights is that at least some of them require legislation to be created i.e., they would never form in a common-law system. A patent, for example, is a monopolistic grant by government to exclude others from using or selling one’s patented invention. It is doubtful that a rights-respecting court-based system would create or recognize such privileges. Bruno Leoni explained in Freedom and the Law why legislation should not be considered the primary way of making law. Legislators are incapable of escaping special-interest influence, and are also hopelessly ignorant of the complex patterns that naturally evolve in society, much as central economic planners cannot efficiently plan socialist societies, as Ludwig von Mises demonstrated in the 1920s.3
Thus legislators’ centrally-issued commands are usually inept and have unintended consequences. It is very unlikely that edicts issued by government employees will have anything to do with individual rights or with what property law ought to be. For this reason common-law type systems should be relied upon as the primary way of discovering legal principles, and legislation should be distrusted and relegated to a strictly secondary status. Intellectual property rights that depend on legislation for their existence are suspect on this ground alone.
As a general thesis about property rights, I think Mr. Kinsella’s point about scarcity misses the essence of the issue. Property rights are required because man needs to support his life by the use of his reason. The primary task in this regard is to create values that satisfy human needs, rather than relying on what we find in nature, as animals do. I therefore agree with Murray Franck’s premise that the essential basis of property rights lies in the phenomenon of creating value.
Scarcity becomes a relevant issue when we consider the use of things in nature, such as land, as inputs to the process of creating value. As a general rule, I would say that two conditions are required in order to appropriate things in nature and make them one’s property: 1) one must put them to some productive use, and 2) that productive use must require exclusive control over them, i.e., the right to exclude others.
Condition (2) holds only when the resource is scarce. But for things that one has created, such as a new product, one’s act of creation is the source of the right, regardless of scarcity.
—David Kelley
[From The Roundtable]
I wish to thank Stephen Kinsella for his letter [IOS Journal, June 1995] highlighting several insightful challenges to the proposition that, although they are intangibles, intellectual and personality property are true property, entitled to legal recognition and protection. While my original lecture incorporated full answers to the issues Mr. Kinsella raises, space limitations permit only a summary response here.
—Murray I. Franck, New York, NY
Radu Uszkai, “Are Copyrights Compatible with Human Rights?,” The Romanian Journal of Analytic Philosophy 8 (2014), pp. 5–20.
Abstract:
The purpose of the following study is that of providing a critical analysis of Intellectual Property (IP), with a closer look on copyright, in the context of human rights. My main conjecture is the following : the legal infrastructure stemming from the implications of copyrights which states created has negative consequences if we have a closer look at some human rights specified by The Universal Declaration of Human Rights (UDHR). For example, copyrights are, in my view, incompatible with the human rights which specify that (1) human beings have a right to freely take part in the cultural and scientific life of the communities which they inhabit and (2) human beings have a right to own property. My main hypothesis is the following : if copyrights are, in fact, more difficult to ground from a moral perspective, then this considerations must trump the provision of the 27th article of the UDHR, which states that creators, be they artists or researchers, have a human right to have their moral and mate‑ rial interests protected with regard to their intellectual products, if this amounts to a justification for a copyright.
This paper is also relevant to the points made in Intellectual Property Rights as Negative Servitudes.
See also idem, “The Use of Torrents in Society,” Libertarian Papers vol. 10 (2018).
Abstract:
This paper explores whether the case against intellectual property can be strengthened by appealing to the work of F.A. Hayek. It strives first to establish a Hayekian research agenda on copyright by providing a unified reading of Hayek’s scattered remarks and positioning them within a broader picture of the contemporary philosophy, politics, and economics of IP. Secondly, exploring peer-to-peer (P2P) file sharing and copyright infringement through a Hayekian lens suggests what might be a useful analogy between the ability of torrent downloads and prices to convey information. Last but not least, the paper ends on a skeptical note concerning the moral and economic foundations of copyright by presenting what I consider a more Hayekian alternative: crowdfunding platforms.
The hapless patent attorney/shill Russ Krajec,1 of “BlueIron,” an IP consulting thing, or something, in a recent ineptly written piece, tries to criticize the extortion that lies behind patent trolling, and to distinguish it from “legitimate” “investment grade patents.” He writes:
Investment Grade Patents are not for Patent Trolling
They are for business negotiations.
Patent trolling is the business of extortion. Generally, patent trolling is when someone sues for patent infringement but is willing to settle for less than the cost of litigation. It is extortion, pure and simple.
This reminds me of my post Patent trolls as mafioso (and that’s a compliment), quoting The Godfather II:
Don Fanucci: Young man, I hear you and your friends are stealing goods. But you don’t even send a dress to my house. No respect! You know I’ve got three daughters. This is my neighborhood. You and your friends should show me some respect. You should let me wet my beak a little. I hear you and your friends cleared $600 each. Give me $200 each, for your own protection. And I’ll forget the insult. You young punks have to learn to respect a man like me! Otherwise the cops will come to your house. And your family will be ruined. Of course, if I’m wrong about how much you stole, I’ll take a little less. And by less, I only mean – a hundred bucks less. Now don’t refuse me. Understand, paisan? Understand, paisan?… Tell your friends I don’t want a lot. Just enough to wet my beak. Don’t be afraid to tell them!
Or see Hsieh and Mossoff on IP and Sewing Machines, quoting Objectivist law professor Adam Mossoff:
the fact remains that [patent] lawsuits are often no more than an invitation to negotiation. “Oftentimes the way a party signals to another party in one’s industry, ‘I’m serious about this–you need to speak with me,’ is by filing a lawsuit,” says Mossoff.
Hey, Krajec, I got news for you–the license fees extorted by your “investment grade patents” are still extortion. One could even argue patent trolls–so-called “non-practicing entities”–and “junk patents” are the not as bad as “good” or “investment grade” patents held by “practicing entities,” since patent trolls don’t want to kill the infringer, they just want “a taste”.
After Edwin C. Hettinger’s paper “Justifying Intellectual Property,” Philosophy & Public Affairs, Vol. 18, No. 1 (Winter, 1989), pp. 31–52, critical of IP, Lynn Sharp Paine responded in “Trade Secrets and the Justification of Intellectual Property: A Comment on Hettinger,” Philosophy & Public Affairs, Vol. 20, No. 3 (Summer, 1991), pp. 247–63 (text).
The debate is summarized in “Hettinger v. Paine: Justifying Intellectual Property Rights” by Professor Adam D. Moore.1 Moore’s overview of Hettinger’s critique of IP rights:
[continue reading…]
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