From my other blog:

Disinvited From Cato

by STEPHAN KINSELLA | AUGUST 7, 2016

Here comes a lot of background, just to lead up to a few final paragraphs that get to what I want to say.

As I’ve recounted before,¹ I started my legal vocation and libertarian avocation² around the same time, almost twenty-five years ago, in 1992. That year, I started practicing law, and also published my first scholarly libertarian article.³ In 1994 my wife and I moved from Houston to Philadelphia for a few years, and around that time I started attending Mises Institute and other libertarian conferences. The contacts I was making with various libertarian thinkers and organizations started to increase, partly because of the rise of email and then the Internet around that time. At the time, I would devour everything libertarian-related that I could get my hands onto—The Freeman from FEE; Liberty magazine; Reason magazine; The Free Market, the Journal of Libertarian Studies, and the Review of Austrian Economics from the Mises Institute; Cato Journal; Reason Papers; Objectivity; Jeffrey Friedman’s Critical Review; various other newsletters and journals; and so on. In college I would go to the LSU library and photocopy old Ayn Rand related newsletters. In grad school in London, 1991–92, I found a copy of Rothbard’s Ethics of Liberty in the University of London library. It was then out of print and hard to find. So I paid something like 10p a page to photocopy it by hand, vellum bound it, and for years that was my main marked-up copy of that classic text, until the 1998 edition was released by the Mises Institute with an amazing introduction by Hans-Hermann Hoppe.⁴

Yeah, I was that kind of geek. Copying Ayn Rand newsletters and Rothbard books from college libraries. But I somehow got a normal woman to marry me anyhow.

From the late 1980s to the mid 1990s, I talked with a large number of libertarian thinkers, by email, phone, in person, or even by regular snail mail. As I noted in The Genesis of Estoppel: My Libertarian Rights Theory, in law school I had become fascinated by Hoppe’s “argumentation ethics” defense of libertarian rights. This led to my exploring related material by a number of thinkers, including libertarians like Tibor Machan and Roger Pilon.⁵ Hoppe had developed his argumentation ethics defense of libertarian rights, in part based on the work of his PhD advisor and mentor, the brilliant and famous (and socialist) German philosopher Jürgen Habermas, and fellow German philosopher Karl-Otto Apel, along with some insights from Rothbard and Mises, plus some original insights, and a libertarian spin, by Hoppe. It was an original and brilliant new spin on libertarian rights theory that Rothbard enthusiastically adopted. Rothbard became the mentor, Hoppe his protege and intellectual colleague from the mid-1980s to Rothbard’s death in 1995.

Read more>>

1.  How I Became A Libertarian; The Genesis of Estoppel: My Libertarian Rights Theory; My Failed Libertarian Speaking Hiatus; Memories of Mises Institute and Other Events, 1988–2015. [↩]
2. See my post, Career Advice by North, discussing the distinction and interplay between career and calling, vocation and avocation. [↩]
3.  Estoppel: A New Justification for Individual Rights, published in Reason Papers No. 17 (Fall 1992). [↩]
4. See Murray N. Rothbard and the Ethics of Liberty, Introduction to Murray N. Rothbard, The Ethics of Liberty (New York: New York University Press, 1998) . [↩]
5.  See links in “Argumentation Ethics and Liberty: A Concise Guide”; The Genesis of Estoppel: My Libertarian Rights Theory: namely: Pilon, “A Theory of Rights: Toward Limited Government“; Gewirth, “The Basis and Content of Human Rights“; Pilon, “Ordering Rights Consistently: Or, What We Do and Do Not Have Rights To.”  [↩]

As is too common–these authors don’t make their article public; they agree to hide it behind a publisher’s paywall, despite being paid nothing for this. Sad.

Here is a pre-publication version at SSRN.

From my Kinsella on Liberty podcast:

KOL220 | Future Gravy Interview about Blockstream and the Defensive Patent License

by STEPHAN KINSELLA on MAY 4, 2017

Kinsella on Liberty Podcast, Episode 220.

This is my interview by Rod Rojas of the Future Gravy show, which focuses on bitcoin and blockchain topics. We discussed how patents harm innovation and various strategies some companies use to try to deal with the patent threat, such as patent pooling, defensive patent licensing, whether Blockstream’s Patent Pledge is really a tactic that makes them a patent threat to the blockchain community, and related matters.

Read more>>

An interesting argument against copyright based on Hans-Hermann Hoppe’s “argumentation ethics” defense of libertarian rights:

• Libertarian and Lockean Creationism: Creation As a Source of Wealth, not Property Rights; Hayek’s “Fund of Experience”

Tucker is spot-on here. Take the title: “Knowledge Is as Valuable as Physical Capital” — actually this is what IP proponents say, they say that knowledge is as important as physical goods and therefore you need property rights in ideas just as we need it in physical things. Tucker turns it on its head and say that both knowledge and capital are important and therefore the state should not attack either: it should not tax and regulate or collectivize private capital, and it should not restrict the generation and flow and use of knowledge by IP law:  

“It harms prosperity and future progress to attack private capital. In the same way, it harms prosperity and future progress to restrict information flows and their uses, through whatever means: censorship or intellectual monopolies.”

Brilliant!

See also my

• “Intellectual Freedom and Learning versus Patent and Copyright,”
• KOL062 | “Intellectual Freedom and Learning versus Patent and Copyright” (2010)
• Rothbard on the Main Fallacy of our Time: Marx’s Labor Theory of Value

Knowledge Is as Valuable as Physical Capital

Jeffrey A. Tucker

Sunday, March 26, 2017

 

One of the greatest errors made by opponents of free economies is to disparage and attack the idea of private capital. Without capital, production is only about immediate consumption, not about building for the future. You cannot have a complex economy with advanced technology, rising wages, and many stages of production, in the absence of capital, which requires security in private property.

This is why even today you find very poor countries around the world. What has gone wrong? People are not lazy, unenterprising, uncreative, or unambitious. On the contrary, people in poor countries work harder and longer—even more creatively—than people in developed economies. What’s missing is that crucial thing: security in the cumulation of capital, intended to provide for future consumption. If you look carefully, what you find is that the state steals it (there is always some excuse) before it can be employed for social uses. [continue reading…]

[From my Webnote series]

• See also other posts and articles on the impossibility of “owning ideas.“

(Adapted from a couple of conversations with Facebook friends.)

I’ve observed before that information is a guide to action, not a means of action. Means of action are scarce and ownable so as to prevent conflict over the use of those means. The same is not true of knowledge or information, which merely guides action.¹

Another way to see this is to understand that ownership may be viewed as the right to possess or control something, and is distinct from possession or control.

Possession is actual control of a resource — “the factual authority that a person exercises over a corporeal thing,” in the words of a renowned legal scholar A.N. Yiannopoulos.² Or as the Louisiana Civil Code puts it, “Possession is the detention or enjoyment of a corporeal thing, movable or immovable, that one holds or exercises by himself or by another who keeps or exercises it in his name.”³ [continue reading…]

1. See, e.g., Intellectual Freedom and Learning Versus Patent and Copyright, and many talks e.g. KOL217 | Intellectual Property is the Bastard Child of the Gatekeepers. [↩]
2. A.N. Yiannopoulos, Louisiana Civil Law Treatise, Property (West Group, 4th ed. 2001), § 301 (emphasis added). [↩]
3.  Louisiana Civil Code, Art. 3421, emphasis added.  See also my article What Libertarianism Is for citations and further discussion. [↩]

Well, sort of. Not bad, for a patent specialist and federal government employee.

Techdirt Podcast Episode 96: Death Knell For Software Patents

“Software patents have been dubious since their inception — not just in principle, but legally too. Past rulings have called their validity into serious question, and now an opinion from a prominent pro-patent judge has called for people to admit that they simply shouldn’t exist. This week, we discuss what this opinion means for the (hopefully short) future of software patents.”

Nice, concise overview of various libertarian arguments against IP by Rob Nielsen on the Living Voluntary blog:

“He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.” – Thomas Jefferson

Property ownership is central to liberty and civilization. Property rights prevent conflict over the use of scarce resources. Ironically, the term “intellectual property” (aka “IP”) represents a hodgepodge of concepts that generally introduce artificial scarcity and needless conflict.

The term “intellectual property” is a biased overgeneralization that prevents clear thinking. The first step in untangling the conflated IP mess is to identify the distinct concepts that it represents. There are three main things commonly considered to be covered by the IP umbrella: copyright, patent, and trademark.

Copyright: A copyright is said to exist when a “work” is “fixed” in a “tangible medium of expression”. The creator of said “work” is granted exclusive rights of “distribution” of their “original expression”.

Patent: Patents are granted to exclude people from making, using, selling, importing, or distributing an “invention”.

Trademark: A trademark is a recognizable symbol that identifies the brand owner of a particular product or service.
[continue reading…]

“Patents are bulls–t,” says Newegg Chief Legal Officer Lee Cheng
At Ars Live 6, we talked to the attorney who fought patent trolls and won.

As I wrote in a Facebook thread:

“It’s all confusion and nonsense. He has no principled position at all. “When Cheng put it that way to his employers, they decided the money was worth it. If Cheng’s strategy worked, they would never have to deal with patent trolls again. “It was obvious there was a scam going on, and someone needed to say no,” he recalled.”

No, this is wrong. Patent trolls are not necessarily “scammers”–sometimes their patents are valid–i.e. will be upheld by a court, and the defendant will LOSE. You can’t just assume you will win if you fight–because there IS PATENT LAW. This guy doesn’t get that the problem with the system is not “scams” and “bullshit patents” but GOOD patents. That’s the real threat to innovation and progress.”

By Steve Lolyouwish:

The Rise of 3D Printing pushes the State closer to the Absurd Logical Conclusions of Intellectual Property and Copyright

The UK has just changed its copyright-and-patent monopoly law to extend copyright to furniture and to extend the term of that copyright on furniture with about a century. This follows a decision in the European Union, where member states are required to adhere to such an order. This change means that people will be prohibited from using 3D printing and other maker technologies to manufacture such objects, and that for a full century.

…

The people selling these copies are not necessarily “scam merchants”. Everybody knows they’re copies and not Vitra or Herman Miller originals. […] But – is there really £6800+ worth of value in the Vitraproduct? Or are they just charging that because they can? Who’s the scam merchant?

A relevant question indeed. Where’s the real scam when something designed 50 years ago is suddenly off limits to 3D printing and home manufacturing, requiring people to buy it at a 2000% markup instead?

 

Read the full article by the good folks over at Private Internet Access (a great and important kind of company) covering this issue, here.

Looks like yet another reason to finally abolish copyright and intellectual property, if you ask me. The only ones who will really win out in the grand scheme of things with laws in place for IP and copyright are the state, lawyers, and special interests.

The concept of private property was created and evolved to more easily minimize, manage and settle disputes regarding who had just control over some resource(s) — be it land, real estate, raw materials, capital — or any other kind of actuallyeconomically scarce resource. Desperately needed information systems regarding the supply, demand, their meeting place of ‘price’, profit and loss (which reward or punish you for management or mismanagement of these valuable, scarce resources according to the demand of society) evolved further out of that concept.
[continue reading…]

“Let us stand on each other’s shoulders, instead of each other’s feet!”

From: Are “Intellectual Property Rights” Justified? (2000), by Markus Krummenacker

A Thesis, from Brent Franklin, Philosophy Dept., Central European University, “The Case Against a Moral Right to Intellectual Property” (Budapest, 2013).

So some Randian, Gary “McGath,” who had published a weak semi-anti-IP article previously, “Patenting Software Threatens Innovation” (his utterly confused and totally useless article pontificates, “Software patents aren’t a necessity. Without patents, code can still be under copyright, protecting its authors from copying without compensation.” Brilliant, Gary, brilliant)—well, he submitted a pro-copyright article to FEE recently, his article “Is Copyright a Right?” As with all pro-IP arguments, it is confused and incoherent.¹  As he wrote in his email begging FEE to  publish him, “This article’s thesis is that copyright is a legitimate form of property, based on the same principles as the right to tangible creations. The libertarian case for copyright hasn’t had enough representation lately, and I’m hoping FEE will help to balance the debate by publishing this article.”

Obviously this guy is just another confused Randian who wants to find some way to justify some type of IP protection for his pet interest, software, sort of how Rand searched for a way to find animal rights because she loved her pet cat, Fluffball, or whatever she “Objectively” called it. (But at least, in the end, she had the grace to admit she couldn’t justify animal rights—yet, like most libertarian novelists, she twisted her theories to defend copyright. Because, you know, that’s how you live, man! You got to have protection from competition from the state, man!”)

This amateur, pro-IP, statist submission was rejected by FEE (no surprise, as the founder of FEE, Leonard Read, was naturally against IP) but, I figure, hey, I’ll have a conversation, a discussion, with anyone. So I email him to offer this. I say:

“Tucker told me you wanted to publish an article defending copyright (surprising to me since I believe you opposed software patents in the past). Would you like to have a discussion about it via Skype or phone—not a debate, just a discussion. If it’s not a trainwreck I could post it on my podcast. If you are not aware, I’m a leading libertarian legal theorist and the world’s leading IP policy theorist, and a practicing patent lawyer (also opposed strongly to all forms of IP). Also a semi-/former Randian.

Lemme know.”

His reply:

Stephan,

If you’re talking about offering some money (writing is what I do for a living), sure, I’d be interested in talking about it. My cell number is __. I’ll be around this afternoon from 1 to 6 PM Eastern time.

My views on software patents and on copyrights are two very different things; I believe that copyright is the appropriate level of legal protection for software. My view on copyright is that it stems from the same principles as property rights in tangible objects, coming from a more or less Randian position.

So it’s amazing to me. This is how these Randroid morons think. If you don’t “pay me” I won’t “produce” “values.” They are so… predictable. When I am offering to give him free services valued in the hundreds per hour, plus free publicity. Typical Randroid. You just can’t make this shit up. They really think this way. Unbelievable.

My reply:

“Stephan,

If you’re talking about offering some money (writing is what I do for a living), sure, I’d be interested in talking about it.”

Oh, not at all. I was offering to give you maybe an hour of my time, which is valued at $600 by the market, to help tutor you and educate you, and also give you a bit of free PR, since I’m well known and have a popular podcast. I would never pay you–if anything you could pay me, but I would waive the fee, as a pro bono type gesture, as part of my libertarian activism.

“My cell number is __. I’ll be around this afternoon from 1 to 6 PM Eastern time.

“My views on software patents and on copyrights are two very different things; I believe that copyright is the appropriate level of legal protection for software. My view on copyright is that it stems from the same principles as property rights in tangible objects, coming from a more or less Randian position.”

Yes, I gather you are a Randian. Her views on IP are utterly confused and flawed—her worst mistake, worse even than her mistake on anarchy. I thought you might want to have a conversation about it, but apparently you think you need to be paid for this, so again, let’s forget it. It’s just that I’m always willing to take time pro bono to try to expose errors people have in thinking about IP—either for the benefit of the person I am talking to, or for the audience.

You do realize, by the way that FEE doesn’t pay for articles, so you were willing to have them publish your piece for free (if they would have accepted it, which they didn’t—maybe some indication of the value of strained defenses of the fascist idea of copyright in the name of “liberty”).

His reply:

Please do not call me.

Um. As if I had offered (“threatened”?) to “call him”. I offered him my tutoring.

Sorry, Gary, you sad sack. My reply to this … upstanding citizen: “Ditto.” Hey, your loss, Randroid. Your loss.

1. See“There are No Good Arguments for Intellectual Property.”   [↩]