From the White-PillBox: Part 27. Achilles Heel edition 1

The State’s Achilles Heels, starting with Intellectual Property.

Mark Maresca Aug. 9, 2022

This is the first in a sub-series of the White Pill essays. They will examine some of the State’s obvious (and not-so-obvious) vulnerabilities.

Like any bully, the State can be formidable. But it has numerous Achilles Heels. These are attributes or outcomes that are pressure points…weak links in the State apparatus. This makes every one of them a solid White Pill.

Most of them will be familiar to freedom advocates, but one in particular (Intellectual Property) merits special attention. It will be the entire focus of this installment; upcoming essays will cover the White Pills of other State Achilles Heels.

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Related:

• Innovations that Thrive without IP

German copyright: No Copyright Law: The Real Reason for Germany’s Industrial Expansion?, By Frank Thadeusz.

German version: Explosion of knowledge, By Frank Thadeusz, der Spiegel (German). See also Jeffrey A. Tucker, Germany and Its Industrial Rise: Due to No Copyright (below). This new study by economic historian Eckhard Hoffner shows that Germany’s lack of copyright in the 19th century led to an unprecedented explosion of publishing, knowledge, etc., unlike in neighboring countries England and France where copyright law enriched publishers but stultified the spread of knowledge and limited publishing to a mass audience. According to Robert Groezinger, “This article in Der Spiegel is all about how the absence of copyright in Germany led to an “explosion of knowledge” in the 19th century. The reason there was no copyright law was that there was no central government until 1871. This contrasts with the UK, where there had been copyright since 1710, and the number of publications was lower by a factor of 10 compared to Germany. Also, the number of copies printed was much, much lower in the UK (hundreds as compared to ten thousand or so). The article claims that this is the main reason that Germany’s production and industry had caught up with everyone else by 1900.” [continue reading…]

Related:

• The Structural Unity of Real and Intellectual Property
• The “Ontology” Mistake of Libertarian Creationists
• Objectivists: “All Property is Intellectual Property”
• A Recurring Fallacy: “IP is a Purer Form of Property than Material Resources”

Update: On the issue of owning just any “type of thing” that one can conceptually identify, see: The “Ontology” Mistake of Libertarian Creationists; also Owning Thoughts and Labor; Remembering Tibor Machan, Libertarian Mentor and Friend: Reflections on a Giant. See also the related discussion in Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023): ch. 14, “Law and Intellectual Property in a Stateless Society,” Part III.B, “Libertarian Creationism”; ch. 15, “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward,” Part IV.C, “Lockean Creationism”; ch. 17, “Conversation with Schulman about Logorights and Media-Carried Property,” text at n.20.

Update: Penner on Intellectual Property, Monopolies, and Property: “If property is a right to things, we must provide some characterization of the things that can be property. … Most persons familiar with philosophical treatises on property are never faced with the task of thinking about why some things are objects of property and others are not.”

• The Structural Unity of Real and Intellectual Property
• KOL229 | Ernie Hancock Show: IP Debate with Alan Korwin: “Korwin’s Defense and Departure (49:59–1:17:42) … Korwin doubles down, arguing that copyright is a natural right, more real than physical property because it’s a unique creation.”

Various IP advocates sometimes argue IP is an even purer or stronger form of property than property rights in material resources, because with those, you just find them and they already exist, and you come to own them by adding some of your own labor or transformation to them (this is also similar to the criticism of property rights in land by moronic Georgists),¹ but with ideas, they come purely from the intellect so are 100% the product of the creator.

See, e.g. Wang, Intellectual Property: Natural Right or State Privilege?:  “Gordon (1993) argues that the chain of title for intellectual property is cleaner than for tangible property: intellectual creations are recent, well-documented, and uncontested in authorship.” Citing Gordon, Wendy J. “A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property.” Yale Law Journal 102 (1993): 1533–1609.

And: Ejan Mackaay, “Economic Incentives in Markets for Information and Innovation,” Harv. J. L. & Pub. Pol’y 13, no. 3 (Summer 1990): 867–910, p. 868 (citation omitted):

Recent advances in reprography and computer technology have once more brought the issue of the theoretical status of intellectual rights into question. These advances greatly facilitate and reduce the cost of copying information from one medium to another. Information has become less dependent on the vehicle through which it is conveyed; it has become “purer.” (( See Against Intellectual Property After Twenty Years: Looking Back and Looking Forward. ))

This is all nonsense of course. For one, all ideas are also incremental and build on previous knowledge developed, publicized, and advanced by others. But the fundamental mistake is in the assumption that creation is a source of ownership. See, e.g., my post Owning Thoughts and Labor; also Against Intellectual Property After Twenty Years: Looking Back and Looking Forward, the “Lockean Creationism” section here; and KOL037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory.

In the end, this “IP is more important/justified than others types of property rights” is the end result of Lockean Creationism—the deeply confused and flawed idea that property rights come from creation. Once you accept that, then it seems to follow that if you create a poem or invention, you own that too. But then, you realize that perpetual patent and copyright terms would be a problem, so you arbitrarily limit these “rights.” It’s a mess. And it highlights why we need to demolish and bury Lockean/Libertarian Creationism.

But for some examples I’ve collected (I will add more over time as I stumble across them): [continue reading…]

1. See my post Egads, I hate Georgism. [↩]

See also Benjamin Tucker and the Great Nineteenth Century IP Debates in Liberty Magazine.
Title:The Question of Copyright
Author: James L. Walker

1. See Rothbard, “Knowledge, True and False” and Against Intellectual Property, the section “Contract vs. Reserved Rights.” [↩]

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…]