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Yaron Brook on the Appropriate Copyright Term

Objectivist Yaron Brook on the Leonard Peikoff podcast answers a question about how long the duration of copyright should be. Well, I should say, he attempts to answer the question. No, he doesn’t even quite do that. He just “punts”; says he doesn’t know and that this is the domain of legal philosophy. He says it’s like any other property rights; if someone creates something, it’s “theirs”; but because it’s digital, it “has a certain lifespan.” But what that lifespan is is just a “technical question.” Then he recommends the work of Adam Mossoff, who is the “best thinker on these issues of intellectual property rights.” As I have noted before, the Objectivists have no coherent argument for IP.1

Objectivists insanely claim that IP is the most important type of law. Ayn Rand actually said that “patents are the heart and core of property rights“;   Objectivist IP attorney Murray Franck said: “intellectual property is after all the only absolute possession in the world.” Ayn Rand said that “Intellectual property is the most important field of law.”2 So you would think they would, you know, have a theory of how long IP rights are supposed to last. They are the most important property rights of all! Objectivists say that patent and copyright are “just like” other property rights (except: they are more important), but, unlike other property rights, they cannot (for some unfathomable reason) last forever; and they cannot just have a zero term; so it has to be somewhere in between. How principled! What should this term be? Well, …. well …  legal experts can figure this out! (Except: they can’t: Legal Scholars: Thumbs Down on Patent and CopyrightThe Overwhelming Empirical Case Against Patent and Copyright.) And hint: something that has a limited term is not a natural right, as Tom Bell and others have argued: it’s a temporary state-granted monopoly privilege.3

The idea of an optimal copyright term is pure nonsense. There is nothing natural or objective about the number of years the criminal state decides to grant its monopoly privileges for. What’s the right term? A million years? Forever? Fourteen? Twenty-eight? Life-plus-fifty? Life-plus-seventy? Who knows?4 That Objectivists would refer to IP rights as the “most important” type of property, and have no coherent theory of how long they should last, is pathetic.

  1. See Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory: Transcript; Yet more disanalogies between copyright and real property; Mossoff: “Convincing the Intellectual Property Skeptic”; Mossoff: Patent Law Really Is as Straightforward as Real Estate Law; Classifying Patent and Copyright Law as “Property”: So What?; Objectivists: “All Property is Intellectual Property”Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging’Locke, Smith, Marx and the Labor Theory of ValueHume on Intellectual Property and the Problematic “Labor” Metaphor”. []
  2. See Inventors are Like Unto …. GODS…..Ideas Are Free: The Case Against Intellectual PropertyRand on IP, Owning “Values”, and “Rearrangement Rights”. []
  3. See Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging”, where I note that Tom Bell and Ronan Deazley have shown that neither the Founders nor Locke thought that IP was a natural right–that is, they only favored IP as a policy tool. []
  4. See  Tom Bell on copyright reform; the Hayekian knowledge problem and copyright termsOptimal Patent and Copyright Term LengthWhere did the patent term come from?; Masnick, Copyright Length And The Life Of Mickey Mouse []
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More defenses of IP by the Federalist Society

UpdateKOL235 | Intellectual Property: A First Principles Debate (Federalist Society POLICYbrief)

and James Stern: Is Intellectual Property Actually Property? [Federalist Society No. 86 LECTURE]

***

Economists and legal scholars have long been skeptical of IP,1 and libertarians in recent decades have become even more skeptical; most nowadays are in favor of abolishing IP altogether.2 So it is passing strange that the Federalist Society, allegedly a group of conservative and libertarian lawyers, is completely dominated by pro-IP discourse. You would never know that anyone opposes IP in principles. Its events, teleforums, articles, never bring up the anti-IP position. It’s always a pro-IP guy (often a federal “judge”) against some “reformer”. The reformer wants to fix the system, but not abolish it. After all, it’s in the Constitution, and that’s sacrosanct! (Nevermind that the Constitution was an illegal coup d’etat,3 which centralized the state, authorized taxation, conscription, eminent domain, slavery, and war, the central bank, inflation, fiat money, the business cycle, and apparently minimum wage laws, regulation of narcotics and firearms and immigration, and the like.)

For recent examples of Federalist Society IP discussions which never include the anti-IP side, but, at most, some “reformist” viewpoints:

These talks often include pro-IP advocate Objectivist law professor Adam Mossoff, federal judges, pro-IP Richard Epstein (whose arguments for IP are glaringly weak, compared to the corpus of his work), or “reformers” who think the copyright term should perhaps be reduced by a few years or the fair use defense expanded or “clarified.” The talk is almost always unprincipled and utilitarian. Or else it is just a positive discussion of the existing law, regardless of its legitimacy or morality. Why no principled libertarian, propertarian, or economist opponents or deep skeptics of IP, such as, off the top of my head: Wendy McElroy, Tom Palmer, Timothy Sandefur, me, David Levine and Michele Boldrin, Mike Masnick, David Koepsell, Tom Bell, Jacob Huebert, Terence Kealey, Roderick Long, Sheldon Richman, Jeff Tucker, Karl Fogel, Nina Paley, and other scholarly and libertarian luminaries? (Many of these thinkers’ works are linked at my C4sIF.org resources page.)

The Federalist Society’s conservative and libertarian bibliography is also lacking in this respect; as I noted previously:

The Intellectual Property section was last updated recently (December 2010, repixeled below) but  it unfortunately seems to have a decidedly pro-IP, utilitarian, and mainstream bias. The material listed is dominated by law and economic analysis (Posner); positivist legal analysis by fairly mainstream scholars; and  technical legal analysis (Chisum) of interest mainly to patent practitioners, not to libertarians and conservatives.

As far as I can tell the material listed contains little explicitly libertarian analysis, other than pieces by utilitarian libertarian law professor Richard Epstein and Objectivist law professor Adam Mossoff—both of whom are pro-IP. The bibliography is missing a wealth of important anti-IP work by libertarians and economists, including many economic and empirical studies that conservatives and libertarians interested in the IP issue should be familiar with. It even omits classic studies by Plant and Machlup (see below). [See Anti-IP Material Needed in the IP Section of the Federalist Society’s “Conservative & Libertarian Legal Scholarship: Annotated Bibliography”.]

To be sure, on occasional local Federalist Society chapters host anti-IP speakers. I’ve done this a couple of times, in Houston and other chapters like Ohio (Federalist Society IP Debate (Ohio State)), but the national group is completely dominated by pro-IP and utilitarian thinking.

The latest example of the Federalist Society’s pro-IP bias is the publication of libertarian lawyer Russell Hasan’s pro-IP article Winning the Copyright War: Copyright’s Merger Doctrine and Natural Rights Theory as Solutions to the Problem of Reconciling Copyright and Free Speech, in its journal Engage (Volume 14, Issue 1 February 2013). This article simply tries to reconcile free speech rights with copyright; it makes no positive much less principled much less libertarian case for patent or copyright. In this, it is similar to arguments by Mossoff and Epstein that try to defend IP on the grounds that it “can” be integrated into a conventional property rights legal framework.4 Well—so what? So what if human beings can be considered property and bought and sold and mortgaged? So what if conventional legal principles “can” be twisted to include various positive legal rights like taxes, welfare benefits, chattel slavery, and IP? What kind of defense or justification is this supposed to be? So what if there is a way to twist and contort constitutional free speech doctrine to make it more compatible with the aims of patent and copyright? After all, free speech is not a primary or fundamental right in the first place; all rights are property rights, and the only just rights are the rights to control certain scarce resources in accordance with the Lockean homesteading rule combined with a few ancillary rules such as contract and tort.5 And it is clear that IP is an infringement of such natural property rights, amounting to a taking, an expropriation, which amounts to a negative servitude.6

Further, as I have previously argued, copyrights and free speech/property rights are utterly incompatible, and for this reason, copyright is clearly unconstitutional (see my podcast KOL067 | Patent and Copyright are Unconstitutional! and notes and links in my post Copyright is Unconstitutional).

The tide is turning against IP. It is increasingly seen, especially by principled libertarians and propertarians, as a clear and dangerous infringement of liberty and life.7

As a side note, even Cato seems to have a similar problem, which is even more striking as it was the home of Tom Palmer, one of the early pioneers of the principled case against IP.  (See Does Cato’s New Objectivist CEO John Allison Presage Retrogression on IP?) “Reformers” like Jerry Brito8 don’t cut it.

Update: For libertarians who think IP/copyright is “compatible” with free speech/1st Amendment: More Copyright Censorship: ‘Straight Pride’ Group Uses DMCA To Take Down Their Own Responses To ReporterWhy Yes, Copyright Can Be Used To Censor, And ‘Fair Use Creep’ Is Also Called ‘Free Speech’.

Update: from Facebook:

The Federalist Society pretends to be a group for conservatives and libertarians but it is invariably horrible on IP, always taking the pro-IP side. In debates, it’s always about how to “reform” or “improve” the IP (patent/copyright) systems, never whether these systems are just or even constitutional. They routinely feature pro-IP lawyers, judges, and law professors–never a real libertarian who opposes IP law. See e.g. the pro-IP slant of the IP section of their bibliography: http://old.fed-soc.org/…/conservative-libertarian-legal-sch…

E.g. they often feature Adam Mossoff, an Objectivist, not even a conservative or libertarian, of the “Center for the Protection of Intellectual Property”.http://cpip.gmu.edu/about/people/adam-mossoff/ Note: Not for the *study* of IP–but for its *protection*. Hmm, wonder if they have an agenda? yep. Wonder if it is compatible with libertarianism at all? Nope.

Case in point: the latest podcast, which features Mark F. Schultz–who is with the CPIP — and law professor Gregory Dolin, a “doctor” and “lawyer” who has written a paper for the CPIP, and lawyer Robert Sterne, who is also pro-IP (surprise, surprise).

I find it pathetic that the Federalist Society poses as a free market/conservative organization while pushing only the statist message in IP. In this talk, it is really disgusting to hear the commentators whining about a very minor change in the law from Obama’s America Invents Act (which I dissected already at http://www.stephankinsella.com/…/kol164-obamas-patent-refo…/). They literally whine and complain that a patent owner has to defend his patent from challengers in some adminstrative proceeding. They even accuse people who threaten to bring such a proceeding as “extortionists.” for example one of them gives the case of a patent troll who sued Apple for patent infringement and won a $300M judgement, and some “reverse troll” (my language) asked for 10% or $30M or they would challenge the patent’s validity in the administrative proceeding–one of the lawyers calls this “extortion”!! That’s rich.

The Federalist Society is pathetic and worthless. It has nothing to do with liberty.

Property rights in patented inventions are being struck down at an unprecedented rate in a new administrative forum. This new post-grant review procedure (PGR),…
FED-SOC.ORG

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I sent this email to 3 of the participants:

Dear X:
I’m a patent attorney and libertarian. I’ve long been an opponent of the IP system. I  heard your recent Federalist Society discussion (https://www.fed-soc.org/multimedia/detail/administrative-death-squads-for-patents-assessing-the-new-administrative-procedures-for-challenging-patents-podcast) —
I am curious if you are aware of any good, conclusive study that unambiguously demonstrates that the patent system causes extra innovation the value of which is greater than the cost of the patent system, or even any study that shows that the patent system increases innovation at all. I ask because the empirical and related studies I’m aware of seem to conclude either that the patent system imposes net costs on society, retards innovation, or that the empirics are not possible to obtain or have not yet been measured. E.g., see the quotes below. If you happen to be aware of any published study that contradicts these conclusions, I’d be grateful to know it.
Best, Stephan Kinsella
 

Fritz Machlup, 1958 (https://mises.org/library/economic-review-patent-system):

No economist, on the basis of present knowledge, could possibly state with certainty that the patent system, as it now operates, confers a net benefit or a net loss upon society. The best he can do is to state assumptions and make guesses about the extent to which reality corresponds to these assumptions. … If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one.

François Lévêque and Yann Ménière (Ecole des mines de Paris, 2004) http://services.bepress.com/leveque/art1/ :

The abolition or preservation of intellectual property protection is … not just a purely theoretical question. To decide on it from an economic viewpoint, we must be able to assess all the consequences of protection and determine whether the total favorable effects for society outweigh the total negative effects. Unfortunately, this exercise [an economic analysis of the cost and benefits of intellectual property] is no more within our reach today than it was in Machlup’s day [1950s]. 

Boston University Law School Professors (and economists) Michael Meurer and Jim Bessen concluded (2008) that on average, the patent system discourages innovation. As they write: “it seems unlikely that patents today are an effective policy instrument to encourage innovation overall” (p. 216). To the contrary, it seems clear that nowadays “patents place a drag on innovation” (p. 146). In short, “the patent system fails on its own terms” (p. 145).

Economists Michele Boldrin and David Levine (2012, http://levine.sscnet.ucla.edu/archive/refs4786969000000000465.pdf):

The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity, unless the latter is identified with the number of patents awarded—which, as evidence shows, has no correlation with measured productivity. This is at the root of the “patent puzzle”: in spite of the [enormous] increase in the number of patents and in the strength of their legal protection we have neither seen a dramatic acceleration in the rate of technological progress nor a major increase in the levels of R&D expenditurein addition to the discussion in this paper, see Lerner [2009] and literature therein. As we shall see, there is strong evidence, instead, that patents have many negative consequences.

  1.  Legal Scholars: Thumbs Down on Patent and CopyrightThe Overwhelming Empirical Case Against Patent and Copyright. []
  2.  The Death Throes of Pro-IP LibertarianismThe Four Historical Phases of IP AbolitionismThe Origins of Libertarian IP Abolitionism. []
  3. See also Black Armbands for “Constitution Day”Thumbs Down on the Fourth of JulyHappy We-Should-Restore-The-Monarchy-And-Rejoin-Britain Day!. []
  4. See Classifying Patent and Copyright Law as “Property”: So What?Mossoff: Patent Law Really Is as Straightforward as Real Estate Law. []
  5. See my What Libertarianism Is; also Rothbard, “Human Rights” As Property Rights. []
  6.  Intellectual Property Rights as Negative Servitudes. []
  7. See Where does IP Rank Among the Worst State Laws?  []
  8. Brito: What’s Wrong With a Copyright Alert System?Republicans More Radical than Libertarian Copyright Moderates. []
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Joseph Diedrich: Intellectual Property Cannot Be Property

From the MacIver Institute, a Wisconsin free market group:

Intellectual Property Cannot Be Property

July 16, 2013

by Joseph Diedrich
Special Guest Perspective for the MacIver Institute

What is property?

More specifically, at its essential theoretical core, beyond the artifice of legal fiat, what is property?

Somewhat broadly, property is anything that satisfies each of the following requirements: property is scarce; property possesses objective (intersubjectively ascertainable) borders; and property has a determinable temporal genesis.

The theory of intellectual property (IP) posits that two distinct genera of proprietary resources exist–tangible and ideal–and that, while formally differentiable, they are fully compatible within a logically constructed theory of property. In essence, both tangible and ideal resources are property.

For the sake of argument, assume the truth and tenability of the IP theory–that ideal resources are, in fact, property. Assume that every idea, pattern, design, and conception meets all three of the aforementioned necessary requirements to be classified as such. Ultimately, assume that the theory of intellectual property is legitimate and fits harmoniously within a broader theory of property rights.

What, then, are the logical implications of such an assumption?

To begin, all property can be owned–i.e., fully and exclusively controlled. As economist Ludwig von Mises writes, “Ownership means full control of the services that can be derived from a good.” The process by which an individual acquires exclusive control over a proprietary resource can be either legitimate (peaceful and just) or illegitimate (aggressive and unjust). Legitimate means of acquiring ownership involve voluntary title transfer by contract, including by sale, rent, or gift. In contradistinction, theft is the prime example of illegitimate ownership acquisition.

Thus, if indeed property, ideal resources can be sold, rented (licensed), given away, or stolen, contingencies all of which are incorporated into IP law. Patent and copyright holders regularly sell, license, and give away (often by virtue of conscious ambivalence toward IP law) their patents and copyrights; moreover, they can seek legal resource if another party steals their patent or copyright. [continue reading…]

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Bill Gates: Flip-Flopping IP Hypocrite

A couple decades ago, Bill Gates seemed to have some appreciation of the damage wrought by patent law:

If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today. I feel certain that some large company will patent some obvious thing related to interface, object orientation, algorithm, application extension or other crucial technique. If we assume this company has no need of any of our patents then [they] have a 17-year right to take as much of our profits as they want. The solution to this is patent exchanges with large companies and patenting as much as we can. Amazingly we havn’t done any patent exchanges tha I am aware of. Amazingly we havn’t found a way to use our licensing position to avoid having our own customers cause patent problems for us. I know these aren’t simply problems but they deserve more effort by both Legal and other groups. For example we need to do a patent exchange with HP as part of our new relationship. In many application categories straightforward thinking ahead allows you to come up with patentable ideas. A recent paper from the League for Programming Freedom (available from the Legal department) explains some problems with the way patents are applied to software. [See Bill Gates’ 1991 Comments on Patents; emphasis added.]

Yet over the years Microsoft relied on the other major form of intellectual property—copyright—to dominate aspects of the software industry, and then to use the monopoly profits to accumulate thousands of patents. These two forms of IP are then used together to squelch competition. (See Controls breed controls, Monopolies breed monopoliesMicrosoft Copyrights —> Patent DominancePrice Controls, Antitrust, and PatentsThe Schizo Feds: Patent Monopolies and the FTC.)

Now that Gates has used state-granted IP monopolies to acquire billions of dollars that he can then use to be a bigshot philanthropist, he is all for patents (as my friend Rob Wicks says, Gates is “America’s wealthiest welfare queen”). For example, in a recent Microsoft Summit, he had this to say about patents:

On the greatness of patent law

“Thank god for commercial software,” Gates told an audience member who asked about the disconnect between Microsoft’s historically proprietary nature and all the charitable work Gates now does.

Intellecual property in developed countries pays salaries and lets software companies, pharmaceutical companies and others actually be able to invest in the innovation that helps improve our world, he explained. Then, when organizations like the Gates Foundation are doing work in undeveloped countries, pharmaceutical, IT and agri-business companies can afford to give away their work for free. (A skeptic might say that’s like robbing from the not-so-rich to give to the poor.)

“Anybody who thinks getting rid of [patent law] would be better … I can tell you, that’s crazy,” Gates said. “My view is it’s working very well.”

How the heck does Gates know it’s “working” well? Does he know the costs and the benefits of this system? No. (See The Overwhelming Empirical Case Against Patent and Copyright.) This sounds like welfare-socialists who say that medicare or social security “work well”. Yes, if you ignore the victims forced to pay for it, maybe.

And now he is involved with a company spun off from uber patent troll Intellectual Ventures (see Patent Trolling in Action: Big Patent Firm Sues Nine Tech Firms), as noted in Bill Gates’ nuclear company explores molten salt reactors, thorium:

“We’re thinking about it and trying to work on it and we have a few proprietary ideas that we’re cooking up,” Gilleland said in relation to MSRs. He did provide details of the “proprietary” ideas, noting that, “We like to work on an idea for a while before we run out and tell about it – so we have some ideas which we’re trying to ferret out how good they are.”

Director of innovation Latkowski declined to say whether or not TerraPower has filed any MSR patents. In addition to running innovation and related partnerships, Latkowski also “oversees the development, maintenance and protection of TerraPower’s intellectual property portfolio” according to his company bio. TerraPower is a spin out of Intellectual Ventures, an innovation and venture capital firm that makes a business out of patents and is known as a keen collector and protector of intellectual property. It is headed by Nathan Myhrvold, a former Microsoft chief strategist and technology officer who serves as TerraPower’s vice chairman.

***

Patently speaking. TerraPower vice chairman Nathan Myhrvold is CEO of Intellectual Ventures, a company whose business is intellectual property. TerraPower is an Intellectual Ventures spin out.

Imagine some other company comes up with a good way to make affordable, cheap, clean, safe thorium or other nuclear energy systems. They could well be sued into the ground by TerraPower by virtue of its patents, setting human progress and welfare back decades.

It’s no surprise Gates is in favor of the statist institution of IP; here he is gushing over the great things state violence gives us:

You write about the violence in traditional societies. It made me think of Steven Pinker’s The Better Angels of Our Nature, which shows how and why the world has become a less violent place over the centuries. One factor is the growth of centralized governments that have a monopoly on punishing people. You’ve seen examples where police come in to an area for the first time. As soon as they make it clear that the first guy to take revenge will go to prison, the levels of violence drop very quickly. [From Gates’s blog: A Discussion with Jared Diamond.]

This is all a shame, given that Gates elsewhere seems to have some glimmer of understanding of the importance of capitalist property rights:

The incredible economic transition in China over the last three-plus decades occurred because the leadership embraced capitalistic economics, including private property, markets, and investing in infrastructure and education.
This points to the most obvious theory about growth, which is that it is strongly correlated with embracing capitalistic economics—independent of the political system. When a country focuses on getting infrastructure built and education improved, and it uses market pricing to determine how resources should be allocated, then it moves towards growth. This test has a lot more clarity than the one proposed by the authors, and seems to me fits the facts of what has happened over time far better.
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From the great Rick Falkvinge. For related see Intellectual PovertyAre Patents “Monopolies”? and Intellectual Properganda.

Language Matters: Framing The Copyright Monopoly So We Can Keep Our Liberties

George Orwell was scaringly right in many ways, but one of his most overlooked points is one of the most important. The language we use defines our reality and what problems we perceive, communicate, and solve. From theft of intellectual property to sharing culture and knowledge, it’s a war of words.

“1984″ by George Orwell is a book that seems to increasingly define our society, mixed in with a dash of Aldous Huxley’s Brave New World. One central theme to 1984 is the concept of Newspeak – but the language Newspeak never takes center stage in the book, it is just pervasive throughout the storyline.

copyright-brandedThe concept of Newspeak was simple. By taking away the expressions for free thinking and challenging authority from the language, the people in power would remove other people’s ability to conceptualize those thoughts, and thus ensure obedience.

In one passage in the book, translators of Oldspeak into Newspeak say they have a trouble with translating the Declaration of Independence into Newspeak – there is simply no way to express what it says in Newspeak. Orwell comments on this in an appendix: as long as the language has words for rebellion, freedom of thought, and dissent, then society will eventually throw off any tyrant.

This matters, because the words we use define the society we live in. That definition of society, in turn, decides what problems need to be solved and how. We are nerds and geeks; we tend to not bother with subtleties and nuances of communication, except to be technically precise in what we express. But all words have values to them. Some are negative, some are positive. Some have double meanings. Some evoke feelings of happiness, others of discomfort. Being aware of this as you discuss net liberty and culture today is paramount to the discussion – the side that wins the definitions, wins the long-term war.

It is not a coincidence that the deceptive term “Intellectual Property” has been relentlessly used by the copyright industry. They are trying to get others to use it. They are trying to make it define the copyright monopoly; to make people think of their monopoly in terms of property. Property is a positive word, and it follow-up-defines any violation of those monopolies as stealing (as violation of property rights is stealing). Don’t ever fall for using this term. Not once, not ever.

The way to spread your own framing of the world is not necessarily to correct others in their use of language – that would only seem rude. Rather, we use our own language consistently, persistently, and tenaciously. We use our language that defines the world of the net generation the way we see it, and in a way that doesn’t give influence to the copyright industry.

Every time you repeat a term of the adversary’s worldview, you help them take away your rights. Every time you use one of the terms that define our worldview, you help the net generation retain their civil liberties. People will copy your terms subconsciously. Be happy when they do, but don’t point it out. Again, that would be rude.

Here’s a sample of words to be conscious of:

Copyright industry – use this consistently instead of record industry and/or film industry. It highlights how the middlemen incumbents are monopolistic parasites that aren’t necessary for the cultural ecosystem, having industrialized lobbying for their monopolies and cashing in on them, and the term sticks very well.

Sharing knowledge and culture – use this instead of “file-sharing”. The “file-sharing” term tends to be too technical, and doesn’t appropriately convey the usefulness of the act. Also, “sharing knowledge and culture” is fundamentally positive to anybody who hears it – plus, it is technically correct. People who share knowledge and culture should never be punished, they should be rewarded.

Copyright monopoly – don’t ever use “copyright” alone. When you do, you will reinforce that it is a right of some kind, like the right to freedom of speech. In reality, it is a monopoly. While a somewhat clumsy term, it is necessary at this stage to communicate that the copyright monopoly is just that, a monopoly. Use language to tie the concept together with its nature to people who haven’t seen it as such yet.

Patent monopoly – Same thing there.

Industrial Protectionism – don’t ever use the IP term that reads out as some kind of “property”. That’s self-defeating. If you cannot escape using the IP term (which you should, as it lumps completely unrelated laws together) then take care to read it out as “Industrial Protectionism”. It’s what it is, and the value of the word protectionism is sharply negative.

Manufacturing copies – try avoiding “downloading” copies of something. That implies “taking”, and leads down the wrong line of thought. What people are doing aremanufacturing copies using their own raw materials, and it highlights how the copyright monopoly is trying to restrain a legitimate activity. Say “when people are manufacturing their own copies of knowledge and culture”, if you can’t highlight the process of “sharing knowledge and culture”.

Digital Restriction Mechanisms – DRM. No comment necessary. Read it out as Digital Restriction Mechanisms. (Some have used “Management” for M. That is a positive word that dilutes the negative “Restriction”; I prefer Digital Restriction Mechanisms.)

There are many more examples, but these are a starter. Remember that the side that wins the language wins the definition, and take time to judge the subtleties of how language defines and shapes the problem we discuss.

About The Author

Rick Falkvinge is a regular columnist on TorrentFreak, sharing his thoughts every other week. He is the founder of the Swedish and first Pirate Party, a whisky aficionado, and a low-altitude motorcycle pilot. His blog at falkvinge.net focuses on information policy.

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Evangelization vs. Copyright

Thought-provoking piece by Jeff Tucker:

Evangelization vs. Copyright

by Jeffrey Tucker

Brandon Vogt really liked the new papal encyclical but noted that the Vatican only made it available in HTML. So he worked to convert it to PDF, epub, Mobi, and more, and then he gave away these formats on his website.

Perhaps he was inspired by the message: “The transmission of the faith not only brings light to men and women in every place; it travels through time, passing from one generation to another. Because faith is born of an encounter which takes place in history and lights up our journey through time, it must be passed on in every age.”

Whoops. Both the Vatican and the USCCB wrote to demand a takedown. Clearly, Vogt was “stealing from the Pope” (really? I don’t think making other formats available causes the text to be mystically removed from the Vatican website). Also, he was accused of “violating the civil law.” Perhaps, but the Church does not need to take recourse to civil law — a law that restricts information flow by assigning legal right of ownership to the expression of ideas. The Church can easily publish into the commons, as millions of others do today as a way of avoiding restrictive state laws.

Multinational copyright enforcement is a legal invention of the late 19th century. It serves to block the light of truth. This is a great example of that. Thousands, maybe millions, who would be able to obtain the encyclical on their ereaders will now not be able to — at least not until it is published by the state-protected monopoly agent. That’s just a very strange way to go about distributing light and truth.

When faced with the question of whether to impose and enforce copyright over core Catholic texts, one might ask the question that was popular among the teen set a few years ago: What Would Jesus Do?

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How long copyright terms make art disappear

Good post by Cory Doctorow illustrating how copyright is a type of censorship—in this case, it suppresses the dissemination of books caught in the copyright “black hole” as a result of the combination of copyright terms, the orphan works problem (which is a result in part of the lack of a requirement for copyright registration formalities and renewal requirements).1 But notice that Doctorow—who does not oppose copyright per se2  —blames this on “long copyright terms” instead of copyright itself. This is akin to people who favor a “modest” minimum wage of say $10/hour but who would not favor a $100 minimum wage because they know that it would cause severe unemployment; a small amount of unemployment is tolerable, however. Likewise, even if copyright terms were shortened, the damage done by copyright would be reduced, but would still be real. The problem is not long copyright terms; it is copyright itself.

How long copyright terms make art disappear

 at 10:57 am Fri, Jul 5, 2013

Jill sez, “Exciting study samples new books for sale by Amazon and asks: Why are there three times more books initially published in the 1850’s than books from the 1950’s? The chart on page 15 is eye-popping, showing graphically decade-by-decade how many more new books initially published before 1923 are currently available than those published after 1923 [the magic public domain date]. The music and YouTube data are also compelling!”

How Copyright Makes Books and Music Disappear (and How Secondary Liability Rules Help Resurrect Old Songs)

Jeff Tucker, by the way, discussed this over a year ago, in Market Failure? The Case of Copyright (2), in which he observed that:

There was a brief moment in the early days of Google when the company naively imagined that it could do the right thing and make all of this literature available for instant viewing and printing. They had the technology to rescue it all and bring it to the whole world. Publishers, backed by regulations that favor them, went bonkers. Google tried a profit-sharing agreement. Didn’t work. Finally, Google bailed and cooperated with the prevailing system.

The results you see in this graph. There is an 80-year black hole in which literature is being buried. In some ways, a whole century of ideas is being forced under a rock by government in league with large publishers. And it is getting worse by the day. Publishers are going through their back catalogs and threatening anyone who puts even a scrap online. Not that they plan new editions; they are just claiming what they think of as their assets.

This is a case of incredibly tragic loss. As you can see from the above chart, the literature of 1850 is more available than the literature of 1970. How preposterous is that? This is all a direct result of unprecedented, outrageous regulations that have effectively put a censorship veil over history’s most-productive period of literary creation. This entire world is trapped in libraries that no one visits or is being put on remainder racks so that libraries can create more space for coffee bars.

There is a more general lesson that pertains to all government regulations. Even one line can be impossibly damaging to industry and to social advancement. It is extremely difficult to quantify the losses. This is just one case, but it is an important one because it deals with the most important thing any civilization possesses: its treasury of ideas. That treasury has been thrown to the bottom of the sea. Someday, explorers will discover it and wonder how any society could have let this happen even though it had the means to do otherwise.

  1. First Amendment Defense Act of 2021. []
  2. See Cory Doctorow, Victim of Fox Copyright Legal Bullying, Should Take A Stand Against Copyright;  Paley & Doctorow argue over Non-Commercial licenses []
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From Rick Falkvinge at Torrent Freak:

The Copyright Monopoly Was Always Intended To Prevent Freedom Of Expression

As I was explaining the need for copyright monopoly reform in Dublin this week, an elderly gentleman red-faced with rage exclaimed in the Q&A session that the copyright monopoly was absolutely crucial for freedom of expression. It surprises me that some monopolists still have things this backwards: the monopoly was always a gag on freedoms of speech and expression. copyright-branded

When Queen Mary I created the copyright monopoly onMay 4, 1557, it was a purebred censorship mechanism: in exchange for a lucrative monopoly on printing, the London Company of Stationers agreed to let anything printed first pass by the royal censors.

This was the norm for a long time in England, and the monopoly has been used to prevent freedom of speech since, with the exception of 1695-1710, as the monopoly did not exist during those fifteen years.

The examples are plenty of how the copyright monopoly has been used as a bludgeon against freedoms of speech and expression. From the landmark court case in 1765, when the Entick vs. Carrington case determined that authorities had no right to quell free speech unless the method used is specifically enabled by law, right up until modern times when the Finnish oil company Neste Oil disgracefully used the copyright monopoly to kill a legitimate Greenpeace protest site against the oil company (by threatening to sue the Internet Service Provider, to boot, and not Greenpeace directly).

The fact that the copyright monopoly is a limitation on freedom of expression, and therefore an interference with fundamental human rights, has even been confirmed recentlyby the European Court of Human Rights.

And yet, when you outline this very clear picture, some dinosaurs will insist that the freedom of expression only covers “your own” expressions, and not “other people’s” expressions, in an attempt to defend the legitimacy of the copyright monopoly. This is hogwash of the lowest conceivable quality. There is no such thing as “other people’s expressions” that aren’t covered by freedom of expression when I repeat them in a message of my own.

When I sing “Happy Birthday” to somebody, that is quite obviously a message of my own aimed at somebody having a birthday, despite my singing that song being an illegal violation of the copyright monopoly. It is therefore trivial to see how the copyright monopoly is an illegitimate limitation on freedom of expression.

Oh by the way, the Q&A session in Dublin ended well: after the elderly enraged gentleman had tried to “correct” my highlight of the need for copyright monopoly reform by reciting the entire arsenal of commonly-debunked arguments of the copyright industry, a younger professional took the microphone and calmly explained how pretty much every view I had expressed was perfectly in tune with his generation’s values. Everybody in the room took careful note.

About The Author
Rick Falkvinge is a regular columnist on TorrentFreak, sharing his thoughts every other week. He is the founder of the Swedish and first Pirate Party, a whisky aficionado, and a low-altitude motorcycle pilot. His blog at falkvinge.net focuses on information policy.

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On This Week in Law #213, the hosts were discussing DRM and the upcoming X-Box One, and speculation, based on a Microsoft patent, about whether that system might move away from standard DRM to  “visual DRM“—an Orwellian system where the Kinect looks around the room with its camera, counts the number of people watching a movie being played, and asks for greater fees if it determines there are “too many” people in the room for a standard consumer/home license (go to around 1:05:13 for the beginning). Peter Biddle of Intel then mentions an experience he had years ago with secure digital music industry (SDMI)  people  trying to implement some kind of DRM for music similar to that used for DVDs and movies. He got frustrated and sarcastically suggested that the group lobby Congress to enact a law requiring every citizen to have a neural shunt embedded into the base of their neck to shut off the person’s eyes and ears when the device detects that they are observing watermarked content that they don’t have a license to watch or listen to. Instead of laughing at the absurd joke, or expressing dismay at the utter evil of this proposal, it generates a buzz of excitement among the music executives, and one of them asks, “can you do that?”

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My IP Odyssey

[Update: see various biographical pieces on my publications page, including Alan D. Bergman, Adopting Liberty: The Stephan Kinsella Story (2025).]

I became libertarian in 1982, as a junior in high school, after reading Ayn Rand’s novels and nonfiction books. (See more biographical material here.)

A few years later I was in law school and a nascent anarchist and Rothbardian, having by this time rejected Rand’s attacks on libertarianism and anarchism. And I had always had qualms about her pro-IP arguments.1

And then in 1992 I started practicing law and soon started specializing in intellectual property and patent law. Hey, that’s where the money was. At the same time, I was starting to publish on various libertarian legal theory issues, such as rights theory. Naturally, given my chosen specialty and my interest in libertarian theory, my interest turned to the IP issue. I had tried for years to find some way to justify patent and copyright law, but by the time I finally started practicing and had passed the patent bar (1994), I had pretty much become a total IP skeptic. I started publishing articles critical of IP around that time, such as my “Letter on Intellectual Property Rights,” IOS Journal 5, no. 2 (June 1995), pp. 12-13, and my “Is Intellectual Property Legitimate?Federalist Society IP Practice Group Newsletter (Winter 2000),2 and then In Defense of Napster and Against the Second Homesteading Rule, LewRockwell.com (September 4, 2000) and “Against Intellectual Property,” Journal of Libertarian Studies (Spring 2001), which won the Mises Institute’s Alford Prize.3

At first I was leery of admitting, as a “respectable” big-firm and IP lawyer, my growing libertarian and anti-IP radicalism. I was worried clients or bosses or partners would not like it. But I gradually realized: none of them care. They just want lawyers who are competent; they don’t care about your personal politics. You want your airplane pilot and your brain surgeon to be competent, not of the same political persuasion as you. So gradually I shed my initial reluctance to reveal my views. In fact I still get contacted by people who want me to help them with patent law or other IP law issues—they don’t care that I hate patents and want the law changed; they seem to assume that I must know my stuff if I am so passionate about it. Odd (but rational, I think).

As I have often mentioned, IP was never my primary interest, either as a lawyer or libertarian theorist. As a lawyer, I enjoyed other types of law more—oil and gas law, international law, even family law (wills, adoptions, name changes, etc.)—but went into IP because in the mid-90s as a young electrical engineer-background lawyer, there was an intense and growing demand in patent law for such highly specialized and technically trained attorneys. Plus, patent law  is a national rather that state-based field of practice, which provides more interstate mobility; you are not locked into one state’s legal system, as you might be in fields like family law, oil and gas law, tort law, and so on. And in terms of libertarian theory, I focused on IP only because the issue nagged at me and I felt I had to figure that issue out and get it out of the way; but I was always more interested in other topics, like philosophy in general, epistemology, rights theory, contract theory, aspects of property theory, Austrian economics, and the like. But of course, as one of the few libertarians with a deep knowledge of IP law, over the years, ever since 2005 or so, whenever I am asked to give a speech or interview or contribute an article, the most requested topic is IP.

I initially felt a tug of annoyance at this pigeon-holing, but finally got over it, for a couple reasons. First, I’ve become convinced that IP is not a marginal issue; that is is one of the top 5 or 6 evils the state foists on us, and crucially important to get this right and to help libertarians, at least, to understand this. (“Where does IP Rank Among the Worst State Laws?“) Second, I’ve discovered that sorting all this out requires one to carefully think about and refine one’s thought on a host of related issues, from the nature and purpose of property rights to issues like fraud, defamation, anarchy vs. minarchy, legislation vs. common law, and contract theory.

So, I guess the IP issue is here to stay—until we can abolish it, that is.

  1. Some of this is detailed in “How I Became A Libertarian,” in Legal Foundations of a Free Society. Some people reading this may also be interested in my posts New Publisher, Co-Editor for my Legal Treatise, and how I got started with legal publishing and Advice for Prospective Libertarian Law Students. []
  2. This article was based on a version previously published in the Pennsylvania Bar Association Intellectual Property Newsletter 1 (Winter 1998): 3, a newsletter I founded in 1997. []
  3. See also Roderick Long Finally Realizes IP is Unjustified. []
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“Around this time I met the Galambosian.”

Tuccille, It Usually Begins With Ayn Rand A great anecdote from Jerome Tuccille’s hilarious It Usually Begins with Ayn Rand, about one of the stranger kooks in the libertarian movement, Andrew Galambos.1 I quoted this way back in the Summer 1998 issue of the Pennsylvania Bar Association IP Law Newsletter (which I founded in 1997):

 Around this time I met the Galambosian.

“I am a Galambosian,” he said.

A what? I was beginning to feel like a right-wing Yossarian. All these mothers were out to destroy every principle I believed in! If it wasn’t squarejawed Southwesterners with mixed premises, or Ivy League intellectuals who mouthed off in public like truck drivers, or shifty-eyed carny barkers from the Middlewest, it was an S. J. Perelman character with a pipe and an ascot, telling me he was a Galambosian.

“What the hell is a Galambosian?”

There was this individual, it seems, named Joseph Andrew Galambos who evolved a theory of “primary property rights.”2 Apparently, as soon as someone came up with a new idea—whether an invention or an original philosophical concept—the prototype belonged irrevocably to him and was to be regarded forevermore as his primary properly. Somewhere along the line Galambos picked up the notion that Thomas Paine had invented the word “liberty,”3 whereupon he established the Thomas Paine Royalty Fund, and every time he gave a lecture and used the word “liberty” he dropped a nickel into his fund box as a royalty payment to Tom. How he determined that a nickel was the proper measure of homage to Mr. Paine, I have no idea. Legend even had it that Galambos was still diligently searching for Thomas Paine’s descendants so he could turn over moneys due their famous ancestor.

Sometime in the early or middle 1960s, Galambos decided that his name, Joseph Andrew, was actually the primary property of his father. In order to avoid giving his father a royalty payment every time he spoke the name, Galambos reversed the order and sent out notices to all his friends that henceforth his name was Andrew Joseph, and that he was to be addressed as Andy, instead of Joe.

“There are five legitimate functions of government,” said the Galambosian.

“No kidding. What are they?”

“I am not at liberty to say. The theory was originated by Andy Galambos and it is his primary property.”

The Galambosian also informed me that Andy had been introduced to Ayn Rand several years before, and that after five minutes of conversation they had pronounced each other insane.

“Of course, it is Miss Rand who is really insane,” said the Galambosian.

“Why is that?”

“I’m afraid I cannot tell you. The reasoning behind that theory belongs to Andy.”

The most peculiar thing about the whole Galambosian concept was the impossibility of finding out anything about it. Galambos’ disciples were not at liberty to disseminate his philosophy without paying a royalty to their leader—who could not even waive payment, since primary property was an absolute good and could not be given away. You were stuck with it whether you wanted it or not, throughout eternity. Consequently, all the converts were those proselytized by Galambos himself—a time-consuming and self-restricting process, it being physically impossible to convert more than a handful of people at a time.

“If the rest of us were free to discuss his ideas,” said the Galambosian, “there is no question in my mind that Galambosianism would spread throughout the world like wildfire.”

  1. For more on Galambos, see Galambos and Other NutsGalambosian IP RecursionShades of GalambosAgainst Intellectual Property, p. 27). []
  2. Which he arguably “stole” from one “Stanislas de Bouffler,” haha! Was Galambos an IP Thief? []
  3. See Galambos on Paine []
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From Karl Hess and Robert Anton Wilson Discuss Everything, a Q&A session at a 1987 Libertarian Party convention, an audience member asks them about their opinion on “so-called intellectual property rights,” and Apple’s assertion of IP claims over its computer systems (at 1:13:53).

Hess first replies that he thinks IP rights are “difficult to enforce” and Wilson adds that “they’ll become impossible to enforce very shortly.”

There is then this interchange between Hess and the audience member:

Hess: “They’ve always been sort of crazy, they protect the person who gets there first. … It’s been my understanding all along that libertarians were glorified … by the fact that they very early on had attacked the copyright laws.”

Audience member: “But you’re both authors.”

Hess: “Yeah, sure, … maybe [the copyright laws] protect us in some technical sense, but I’d be happy to sell things in a free market.”

Audience member: “Would you mind if I took Death of Politics and sold it to make a profit without cutting you in?”

Hess: “People are doing it all the time. Look, I made money off that. I mean I figure, somebody bought it, it’s not mine anymore. … And people do it. People do it constantly. And I think it’s fine …  If I were asked to do it again today, I’d say I’ll do it on the condition that a lot of people read it. And this … may help it.”

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Dante’s Divine Comedy and Intellectual Property

Interesting article at Strike-the-Root by Lawrence Ludlow, Dante’s Divine Comedy and the Divine Origins of the Free Market, which makes some interesting connections between Dante’s Divine Comedy, the free market, and (anti) intellectual property theory. An excerpt:

In short, Virgil asks Dante to abandon his outmoded economic paradigm of command-and-control economics, where the Diktat of economic viziers can only derail the spontaneous order of things and undermine the natural benefits of a free market. Virgil is telling Dante that the wealth created by the free and spontaneous order is as abundant as the divine light emanating from the sun. One person’s enjoyment of it does not subtract from the enjoyment of another. And please, let’s not over-extend the metaphor by talking about shadows cast by individuals positioned more closely to the sun! We must assume that Dante is referring to a divine sunlight that probably does not cause cancer either! In an analogous way, Stephan Kinsella’s path-breaking work “Against Intellectual Property,” demonstrated that the concept of intellectual property (IP) is inappropriate for a similar reason.

Divine Sunlight, Intellectual Property, and Love

The shared understanding of a concept among more than one person merely expands with the number of people who share that concept. When greater numbers of people appreciate the concept of a wheel and the advantages that a wheel brings to the art of transportation, the sharing of this concept among many minds does not dislodge it from the mind of the person who originally conceived it. One person’s grasp of a concept does not subtract from another’s. In other words, there is no scarcity in the realm of understanding just as there is no scarcity in the availability of divine sunlight to all who are illuminated by it. That is why the concept of IP is an anti-concept and quite destructive. As Kinsella has shown, the concept of property rights was developed to resolve conflicts of ownership that apply to real, or physical, property – not intellectual concepts. Only physical property is afflicted by the burden of scarcity because the limitations of its physical nature imply that it cannot be simultaneously employed by more than one person. In other words, one cannot have one’s cake and eat it, too. But this concept does not apply to intellectual knowledge – which like the sunlight described by Virgil, shares a quality in which “the blaze of Love is spread more widely, the greater the Eternal Glory grows.”

As much light as it finds there, it bestows; (Verse 70)
thus, as the blaze of Love is spread more widely,
the greater the Eternal Glory grows.

As mirror reflects mirror, so, above, (Verse 73)
the more there are who join their souls, the more
Love learns perfection, and the more they love.

In addition, we can perceive here the overwhelming importance of love in Dante’s exposition. Just as the divine sunlight described by Dante’s Virgil is not diminished by its ability to illuminate many darkened minds, and just as Kinsella’s rejection of intellectual property and replacement of that anti-concept by the concept of shared knowledge demonstrates the undiminished capacity of a shared idea to transform countless lives for the better, love itself does not diminish in proportion to its being shared. Instead, it increases and grows tremendously in its impact. This is a powerful message, and it is one we should all consider deeply. From an anarcho-libertarian perspective, the writer Glen Allport has explored the importance of love as a means of emotional connection in his many valuable essays at Strike The Root – most particularly in The Doctrine of Love and Freedom. While I frequently fail in my attempts to incorporate Glen Allport’s approach in my sometimes-snarky essays, these failures cannot diminish the intrinsic value of the important message of free markets or the equally valuable message of love. I hope that this essay does much to make up for the deficit – shortening my own future journey through Purgatory.

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