C4SIF.org

Just came across this article: John M. Kraft & Robert Hovden, “Natural Rights, Scarcity & Intellectual Property,” 7 NYU J.L. & Liberty 467 (2013)

Introduction

Property rights are a fundamental aspect of all classical liberal and libertarian philosophies. Within these ideological paradigms, there is little disagreement over the concept of selfownership and property rights in tangible goods. But when looking to property rights in non-tangible or ideal objects—like those granted by copyright, patent, and trademark law—a considerable disagreement can be seen within the classical liberal approach. [continue reading…]

From my podcast:

Good critique of copyright law, inspired by the great Nina Paley’s artistic work and her critiques of copyright.

Important recent work by Michele Boldrin & David Levine, authors of Against Intellectual Monopoly, about why, contrary to arguments given by pro-patent shills and the pharmaceutical industry and its lobbyists, patents are actually not necessary in the pharmaceutical industry and in the production of vaccines.

• Michele Boldrin, David Levine & Flavio Toxvaerd, “Should patents on Covid-19 vaccines be waived?“, Economics Observatory (May 14, 2021), and
• Boldrin & Levine, “Reforming Patent Law: The Case of Covid-19,” Cato Journal (Fall 2021)
  • See also “How to think about vaccines and patents in a pandemic,” The Economist (April 24, 2021)
  • Moderna sues Pfizer over COVID-19 vaccine patents
  • Tristan Manalac, “BioNTech Hit with NIH Notice of Default Over COVID-19 Vaccine Royalties,” BioSpace (Mar. 26, 2024)

See also:

• Boldrin & Levine, Against Intellectual Monopoly, Chapter 9: The Pharmaceutical Industry (pdf)
• and Boldrin and Levine: The Case Against Patents

For something tangentially related, see “Patents Kill Update: Volunteers 3D-Print Unobtainable $11,000 Valve For $1 To Keep Covid-19 Patients Alive; Original Manufacturer Threatens To Sue” and Joshua M. Pearce, “A review of open source ventilators for COVID-19 and future pandemics,” F1000Research (2020), which states (citing AIP): “Putting aside the absurdity of patenting and then obstructing others from using obvious inventions in normal times, in the wake of a pandemic where millions of lives are at stake, it is intuitively obvious that this type of greed is no longer acceptable.”¹

1. Abstract: Coronavirus Disease 2019 (COVID-19) threatens to overwhelm our medical infrastructure at the regional level causing spikes in mortality rates because of shortages of critical equipment, like ventilators. Fortunately, with the recent development and widespread deployment of small-scale manufacturing technologies like RepRap-class 3-D printers and open source microcontrollers, mass distributed manufacturing of ventilators has the potential to overcome medical supply shortages. In this study, after providing a background on ventilators, the academic literature is reviewed to find the existing and already openly-published, vetted designs for ventilators systems. These articles are analyzed to determine if the designs are open source both in spirit (license) as well as practical details (e.g. possessing accessible design source files, bill of materials, assembly instructions, wiring diagrams, firmware and software as well as operation and calibration instructions). Next, the existing Internet and gray literature are reviewed for open source ventilator projects and designs. The results of this review found that the tested and peer-reviewed systems lacked complete documentation and the open systems that were documented were either at the very early stages of design (sometimes without even a prototype) and were essentially only basically tested (if at all). With the considerably larger motivation of an ongoing pandemic, it is assumed these projects will garner greater attention and resources to make significant progress to reach a functional and easily-replicated system. There is a large amount of future work needed to move open source ventilators up to the level considered scientific-grade equipment, and even further work needed to reach medical-grade hardware. Future work is needed to achieve the potential of this approach by developing policies, updating regulations, and securing funding mechanisms for the development and testing of open source ventilators for both the current COVID19 pandemic as well as for future pandemics and for everyday use in low-resource settings. [↩]

Kinsella on Liberty Podcast, Episode 364.

This is my Soho Forum debate held Nov. 15, 2021, in Manhattan, against professor Richard Epstein, moderated by Gene Epstein. I defended the resolution “all patent and copyright law should be abolished” and Professor Epstein opposed it. Oxford debate rules applied which meant that whoever changed the most minds won. My side went from about 20 to 29 percentage points, gaining about 9; Richard went from about 44 to 55%, gaining about 11, so he won by 1.7 percentage points.

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Fascinating chapter, “The Law of the Sea of Ignorance: F. A. Hayek, Fritz Machlup, and other Neoliberals Confront the Intellectual Property Problem,” by Quinn Slobodian, in Nine Lives of Neoliberalism, eds. Dieter Plehwe, Quinn Slobodian, Philip Mirowski.

Abstract: Aggressive IP rights are often assumed to be one feature of the global neoliberal regime snapping into place since the 1970s. Yet, as this chapter shows, neoliberals themselves have been far from unanimous on the question of when, how, and even if ideas can be treated as property. This chapter focuses on the heterodox Austrian approaches of Friedrich Hayek and his contemporary Fritz Machlup, coiner of both the terms “knowledge economy” and “production of knowledge” and an understudied member of the Mont Pelerin cohort.

“Concreteness and Virtuality: Our Freedoms in the Era of the Internet,” by Eduardo Luft & Rosana Pizzatto, in Internet, Direito e Filosofia: leituras interdisciplinares, Editora Fundação Fênix Porto Alegre, 2021. Abstract:

“Like any other human society, virtual communities face ethical-political issues. Discussions on the internauts’ human rights, especially those related to human freedom, and on the legitimacy of models of regulation are always present in the international Internet forums. The contemporary dispute over the true idea of freedom still places the heirs of Kant and Hegel in the arena. Following the dialectic route, we see as one of the main challenges of our time to unveil the concept of freedom that emerges from an evolutionary ontology. According to the dialectic actualization project shown here, the Internet is conceived as one more subsystem that emerges in nature under the constraints imposed by the evolutionary logical space. As a self-organized process that evolves over time, the Internet also has relational and processual traits, presenting equally a movement towards the coherence of the network itself. Online societies follow the same law of coherence that rules real societies and online freedom presents the same character of real freedom, the exploration of the open field of possible modes of coherence. Personal freedom on the Internet retains common traits with the personal freedom that every person has and should have in real society, but, as we shall show later, there are also subtle differences between the two, with a strong impact on the Theory of Law. Keywords: Law, freedom”

[continue reading…]

In the end:

But here are some collected resources about ways to make a profit without relying on patent and copyright, or related ideas.

• “Conversation with an author about copyright and publishing in a free society” (Jan. 23, 2012)
• Do Business Without Intellectual Property (Liberty.me, 2014)
• “Innovations that Thrive without IP,” StephanKinsella.com (Aug. 9, 2010)
• “Examples of Ways Content Creators Can Profit Without Intellectual Property,” StephanKinsella.com (July 28, 2010)
• “The Creator-Endorsed Mark as an Alternative to Copyright,” Mises Economics Blog (July 15, 2010)
• Diomavro, Avengers endgame or do movies need copyright?
• Creators SHOULDN’T Own their Creations

This article is confused. Anything enforced by contract is not IP since contract rights are in personam—between the parties only—whereas IP rights are in rem (or erga omnes) property rights good against the world. That is why they affect third parties and precisely why they are problematic. A contract cannot bind third parties so it can’t produce IP rights. Hammer is confused. Rothbard was wrong that contracts can bind third parties. I explain this in the “IP as Contract” section of Against Intellectual Property, in particular the subsections “The Limits of Contract” and “Contract vs. Reserved Rights.”

***

This article was published in the Winter 1995-96 issue of Formulations

by the Free Nation Foundation

Intellectual Property Rights Viewed As Contracts

by Richard O. Hammer

 (to table of contents of FNF archives)

While we libertarians wrestle with the rectitude of intellectual property rights, I suggest that we think of contracts, and the limits of the enforceability of contracts. Suppose Scribbler has written a book that you want to read. Scribbler offers you a contract. For $10 you may take the volume — but only if you promise not to copy it.1

While some libertarians argue persuasively against the legitimacy of intellectual property as granted by state power,2 I think that most of us would agree that the state should not intervene to void a contract between two freely consenting parties. You and Scribbler have a right to enter into a contract which gives Scribbler a right, of sorts, to intellectual property. [continue reading…]

[Update: See also My reply to Brian Doherty’s post on my Death Throes of pro-IP Libertarianism article]

This piece Brian Doherty, Intellectual Property: Dying Among Libertarians?, was published in Reason in 2010. He doesn’t quite get it, but at least tries to fairly summarize my propertarian take. I had several replies, including this one:

In this recent podcast, KOL341 | ESEADE Lecture: Should We Release Patents on Vaccines? An Overview of Libertarian Property Rights and the Case Against IP, I start off with a concise overview of the libertarian understanding of property rights and why this rules out intellectual property rights. The podcast episode is accompanied by a transcript.

Kinsella on Liberty Podcast, Episode 341.

This was a webinar I did for an Argentinian audience for ESEADE May 26, 2021. The topic was formally “Should We Release Patents on Vaccines” (“¿Hay que liberar las patentes sobre las vacunas?“). In this talk, I briefly provide an overview of the nature of property rights and the principled case against IP, then apply it to vaccines, and took questions from the audience.

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One no-name nym-wielding Silas Barta (aka John Sharp, “Person,” Richard Harding [a juvenile sexual term, “hard dick”])¹ has been a perennial gadfly and pest about IP, flitting in various Mises Blog comments razzing us IP abolitionists.

His argument is a literally stupid one (not surprising as “There are No Good Arguments for Intellectual Property”; see also “Absurd Arguments for IP”). It amounts to this: Some libertarians seem to think that there should be rights in electromagnetic (EM) spectra (see e.g. my post Why Airwaves (Electromagnetic Spectra) Are (Arguably) Property [Aug. 9, 2009]). And if you believe in property rights in EM spectra, then you have to believe in IP rights. After all, “IP (intellectual property) rights have the exact same form” as EM spectra rights. Et voilà!

Here’s his old post about this. He tangles with Bob Murphy in the quotes; interestingly, they later wrote a book together on Bitcoin: Murphy and Barta, Understanding Bitcoin: The Liberty Lover’s Guide to the Mechanics & Economics of Crypto-Currencies (2015)  I love Bob and some of his Bitcoin stuff is provocative and enlightening (see his “Bitcoin and the Theory of Money” and “The Economics of Bitcoin“), but I can’t bear to read something co-authored by this idiot pest Barta/Person/Sharp/Harding, unless Murphy assures me he wrote basically all of it and for some reason just added Barta as a pity gesture or something. But since num-nuts’ name is listed first, I assume it was the opposite: gadfly Hard Dick wrote it and persuaded Bob to attach his name to it. Since Hard Dick is so bad on libertarian theory and on the argument for EM spectra (he doens’t even give an argument), I have no reason to think he has anything sensible to say about Bitcoin or libertarianism at all.

In his “article” pretending to “argue” for IP (he nowhere does), Barta says “Unlike some other people who shall remain nameless[1], I want to see where I’m wrong.” This is a lie. He doesn’t want to see where he’s wrong because he doens’t adduce a genuine argument for IP. He has some weird monomaniacal obsession with the EM spectrum issue [which is not settled among libertarians, unlike real property rights (yes!) and unlike IP rights (no!)]. His argument is not a real one; it’s an “if-then” one. “IF you believe in EM rights, THEN you should believe in IP rights.” Well. This is simply not a case for IP. And it’s wrong. You can believe in EM rights without believing in IP rights (see my post linked above). And if he’s right that EM implies IP, then EM would have to fall too, for the same reasons IP falls.

What Silas refuses to see is that, ultimately, IP rights are a taking of property rights, a redistribution of wealth in the form of a nonconsensual negative servitude (or easement), as I explain here: Intellectual Property Rights as Negative Servitudes. And to counter his predictable next silly argument: see my posts “The Non-Aggression Principle as a Limit on Action, Not on Property Rights,” “IP and Aggression as Limits on Property Rights: How They Differ,” “The “If you own something, that implies that you can sell it; if you sell something, that implies you must own it first” Fallacies.”

By the way, Hard Dick, I’ll be happy to discuss/debate this issue with you any time (this goes for any other defender of evil, socialist IP in the world).

In any case, here’s his little screed, saved here for posterity in case he modifies or deletes it out of embarrassment later.

[continue reading…]

1. He once confirmed this to me: “I also post at these places.  (Usual handle in parentheses.)

   Asymmetric information, Megan McArdle’s blog (Person)
   Marginal Revolution (Person)
   Overcoming Bias (Silas)
   Kip Esquire’s blog, A Stitch in Haste (Silas)
   econlog.econlib.org (none, banned)
   economiclogic.blogspot.com (johnsharp9)”  [↩]