As I note in my What Libertarianism Is, a property right is simply the legally recognized exclusive right to control a scarce resource. The question is always: who owns a particular, potentially contestable, scarce (rivalrous) resource?¹

The way the great legal systems of the world—e.g. the common law and civil law (Roman law, continental law)—deal with this issue is consonant with this perspective. As civil-law Professor Yiannopoulos explains:

Property may be defined as an exclusive right to control an economic good …; it is the name of a concept that refers to the rights and obligations, privileges and restrictions that govern the relations of man with respect to things of value. People everywhere and at all times desire the possession of things that are necessary for survival or valuable by cultural definition and which, as a result of the demand placed upon them, become scarce. Laws enforced by organized society control the competition for, and guarantee the enjoyment of, these desired things. What is guaranteed to be one’s own is property… [Property rights] confer a direct and immediate authority over a thing. ( (A.N. Yiannopoulos, Louisiana Civil Law Treatise, Property (West Group, 4th ed. 2001), §§ 1, 2 (first emphasis in original; remaining emphasis added). ))

The Louisiana Civil Code, at Art. 477, provides that “Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law.”

The practical nature of the law results in its rules dovetailing with libertarian/propertarian rules of justice. But the common law and civil law are not perfectly libertarian.² They have to deal with arbitrary and unjust legislated (statutory) schemes: rights decreed by the legislature out of whole cloth. This leads to complications and absurdities. For example, in the civil law, as I explain in Against Intellectual Property,  the term “things” is a broad civil-law concept that refers to all types of items, whether corporeal or incorporeal, movable or immovable. As specified in the Louisiana Civil Code, Art. 448: “Things are divided into common, public, and private; corporeals and incorporeals; and movables and immovables.” So every “thing” has to be classified as either a movable, or an immovable. The concepts of immovable and movable arose because economic goods are either land (immovables; see Art. 462), or some more “movable” scarce resource (Arts. 471, 475). It makes practical sense to analytically separate these types of economic goods, since legal rules naturally treat them somewhat differently, because land has a unique and “non-fungible” aspect (e.g. its location)  that movable items do not share.

But the positive law arbitrarily introduces property rights in things that are not economics (scarce, rivalrous) goods, and the legal system must account for and classify this. So the distinction between “corporeal” and “incorporeal” “things” arises:

Corporeals are things that have a body, whether animate or inanimate, and can be felt or touched.

Incorporeals are things that have no body, but are comprehended by the understanding, such as the rights of inheritance, servitudes, obligations, and right of intellectual property. [Art. 461; see also Arts. 471, 473, 475]³

So the fundamental purpose of law is the same as that of property rights: to allocate scarce resources to some identifiable owner so that these scarce resources may be employed peacefully and productively (by the owner) as a means of action. When the legislature starts arbitrarily decreeing special positive rights, like patent and copyright, the law must not only have a concept for “corporeal” and “incorporeal”—it must now specify whether these incorporeal rights are movable or immovable. Of course this makes no sense whatsoever; knowledge, ideas, patterns of information, inventions, etc., even legal rights in these things like patents and copyrights, have no location; they have no body; they are incorporeal. So how can they be immovable or movable? How can an idea be considered movable? Or immovable? The notion is nonsense. The reason it is nonsense is because the law is trying to use conflict-avoidance mechanisms (property rights) whose natural purposes is to assign rights in scarce resources, for nonscarce resources like patterns of information. This creates a disconnect, an absurdity in the law.

Nonetheless, the law must have its answer.  It has to answer the question of whether incorporeal “things” are immovable, or movable.

The answer is arbitrary, but found in the way the code defines immovables and movables. Immovables are “Tracts of land, with their component parts.” (Art. 462). IP rights are not tracts or land or components thereof, so they cannot be immovables. And Art. 475 specifies: “All things, corporeal or incorporeal, that the law does not consider as immovables, are movables.” So if it’s a “thing,” and not an immovable, it has to be a movable. Ergo, IP rights—patent rights in inventions, copyright in original creative works—are “incorporeal movables.” Ideas, it turns out, are movable.

[Update: IP rights can also be legally classified as non-consensual negative easements, or servitudes. See Intellectual Property Rights as Negative Servitudes (June 23, 2011)

[Also: In the English common law, patents are apparently classified as a chose in action. See Peter Drahos, A Philosophy of Intellectual Property (Ashgate, 1996), p. 35 n.26, citing In re Heath’s Patent [1912], W.N. 137 [56 Sol Jo 538, 29 RPC 389]; W. S. Holdsworth, “The History of the Treatment of ‘Choses’ in Action by the Common Law,” Harv. L. Rev. 33, no. 8 (June 1920): 997–1030.]]

Isn’t this good to know? Whew!

And who really thinks the idea of property rights in nonscarce goods is coherent?

1. See KOL 037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory. Also Hans-Hermann Hoppe, “Of Private, Common, and Public Property and the Rationale for Total Privatization”, sec. I, A Theory of Socialism and Capitalism, ch. 2, and The Great Fiction, chs. 2–4 et pass. [↩]
2. See my “Legislation and Law in a Free Society,” Mises Daily (Feb. 25, 2010) . [↩]
3. See also my Louisiana Civil Law Dictionary . [↩]

I received a query about IP from Aaron Easler, a student at Grove City College who had taken a recent course “Economics of Intellectual Property,” taught by my friend Jeff Herbener and covering my Against Intellectual Property. His message to me is reprinted below, with permission, as is my reply.

Hi Stephan, I don’t know how familiar you are with Grove City College and their economics department, but it’s very Austrian and at least Dr. Herberner, the header of the department and senior fellow of the Mises institute is an Anarchist.

Anyways, a few students were really interested in the IP topic and talked him into starting a 1 credit course in IP, which primary consisted of dissecting the various parts of your book and case studies through class-led discussion and debate.

I’ve come to have two main questions/points of contention with your argument. The first is more minor and concerns your criticism of Rothbard and his conception of Copyright though contracts and the other involves your definition of how property is established.

Your main concern with Rothbard’s copyright argument is that a third party who gets ahold of the work cannot reasonably be subject to same contract and had no way of knowing which of two identical works, one with copyright enforced and one without, was copyright protected. Isn’t it fairly reasonable to assume that the copyright-protected one would simply have “copyright” written in it on the opening couple of pages, as they do today? In that environment, why wouldn’t someone who finds a book and accepts the copyright as legally-recognized proceed as he does when finding someone else’s physical property in much the same way?

The second, and more consequential, argument I found unclear was your assertion that ownership of property is established through homesteading. First of all, what is homesteading other than claiming ownership of something that previously hasn’t been claimed? Under that definition alone, couldn’t someone, seeking to legitimatize IP, make that same claim to new thoughts? [continue reading…]

From the Washington Times:

Monsanto, steaks, and chefs: Intellectual property and foodSunday, April 7, 2013 – The Business of Living by Joseph S. Diedrich

RELATED COLUMNS

• Even libertarians wrong on Monsanto Protection Act
• Dislike: Facebook Sued for Patent Infringement

MADISON, Wisc., April 7, 2013 ― With all the current controversy over agricultural biotechnology company Monsanto, many are missing the biggest problem: reliance on patents and monopoly protection.

Last week, President Obama signed into law the infamous “Monsanto Protection Act” as part of an Agricultural Appropriations Bill. The law, which essentially protects the agricultural giant against litigation, has caused opponents of Monsanto and genetically modified organisms (GMOs) to erupt in a firestorm.

The opponents rally against Monsanto for numerous reasons.

GMOs are unsafe for human consumption; Monsanto should be required to extensively label all of its food products; the environment suffers from the widespread use of genetically modified crops; Monsanto is a big, scary, evil corporation bent on controlling and destroying the world. And so the list goes on.

These charges are largely hokum. There exists substantial scientific evidence debunking the claims of activists who suggest that GMOs are unsafe for humans or the environment. The call for mandated labeling is a call for increased government regulation, something at which everyone should shudder.

The big problem with Monsanto is its reliance on intellectual property. Rather than on innovation, the company’s entire business model is based primarily on patent protection and the monopoly power the patents have bestowed upon it.

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SEE RELATED: Even libertarians wrong on Monsanto Protection Act

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While all intellectual property protection is economically and ethically backward (see here, here, and here), a particularly malignant trend is its ever-increasing prevalence in agriculture and food. In 2011 alone, the U.S. Patent and Trademark Office approved nearly 1,200 patents on or related to food.

Read more>>

Update: The complete Libertarian Forum (1969-85) is now available in epub format here.

***

A great piece by Rothbard: “High Tech ‘Crime’: A Call for Papers,” from the July–August, 1983 issue (except for the confused comments on copyright-by-contract). My previous version has typos; I have replaced it with the superior epub/html version here.

THE LIBERTARIAN FORUM
Murray N. Rothbard, Editor
A MONTHLY NEWSLETTER Vol. XVII, No. 7-8
July–August, 1983

High Tech ‘Crime’: A Call for Papers
pages 8–10

The other day an old friend of mine, a libertarian and a veteran New Yorker who like myself is determinedly low-tech, was lamenting the crime problem. “Somehow,” he grinned, “the one thing I can’t work up any worry about is ‘computer crime.'” We laughed heartily. But later I began to ruminate on the new areas of alleged crime opened by our new “high tech” technologies. The press is full of mounting hysteria about the alleged need for new laws to cope with new high-tech crimes. Young lads in Milwaukee, inspired by the marvelous and exciting film War Games, use their home computers and modems to enter secret computer information networks. The New York Times headline (Sept. 18) proclaims: “Prosecutors Find Laws Inadequate to Fight New Computer Crimes”. Meanwhile, senders of cable-TV programs fight to prosecute enterprising folk who build antennae on their roofs to catch signals without paying, or others who purchase satellite dishes to trap every possible TV frequency. And the Supreme Court is gravely hearing a case that might allow producers of video films to prohibit (or at best tax) people from using their own VCRs to tape TV programs or movie cassettes which they rent from entrepreneurs.

But wait a minute! Before we rush to pass new laws making criminals out of large groups of people, surely we should pause and think—and surely, too, our a priori presumption must be that whatever anyone is doing is legitimate, unless someone can prove otherwise. The burden of proof is on those who would make criminals out of previously peaceful and productive citizens. At first blush, it seems that, yes, we must pass new laws adapting the concept of crime to new technological realms. But then we must stop and consider: Why can’t the common law, which has always applied principles to new technological situations, be applied without creating new statute law—always a dubious instrument at best?

Take, for example, alleged “computer crimes.” We learn that, for what all of us would recognize as theft, such as the computer bank theft committed years ago in a lovely British film by Peter Ustinov, there is really no need for new laws. Thus, the New York Times (Sept. 18): “Prosecutors distinguish between two types of computer criminals. On the one hand, they said, are those who use computers as a tool to defraud banks or other businesses, often using modern technology to cover their tracks. Prosecutors and private computer security consultants said such cases were still the most commonand the laws dealing with them were adequate.” (Italics mine.) In short, the regular laws against fraud and theft are sufficient; for such deeds which everyone would recognize as criminal there is no need for new laws.

What worries prosecutors, then, where their hands are now tied, are situations where young computer mavens or “hackers”, using their own computer, their own modem hooking them up legitimately to a telephone line, can extract information from other computers also hooked up to the same line. When, typically, a password is needed to hook into the other computer, the hacker can often discover the passwork by guesswork or by randomizing sequences of numbers.

Well, before we rush to laws, let us ponder the problem. Why should it be illegal for a young hacker, using his own computer and modem, to hook into a modem of another computer? It seems to me that libertarianism decrees that every person should have the right to do whatever he wants with his own property. Only the hacker’s own property, and phone lines for which he has bought access, is involved in this “computer crime.” So how can it be a crime at all?

But how then can copyright be justified at all? If I buy a book from a bookstore, by what right does the word “copyright” stamped on the book prohibit me from reprinting and reselling it? The answer there—and the reason why copyright is a common-law action—is that I contracted with the bookstore (who in turn contracted with the publisher and author), when I bought the book not to reprint and resell it. In short, my contract decreed that I do not own the book outright; I own every aspect of the book exceptthe right to print and sell it, which the publisher or author reserves to himself. Therefore, violation of copyright should indeed be illegal.

But the problem has been raised: What of third parties? Can they be said to violate copyright? Someone else, Zeke, sees the book in my house, or I lend it to him. He then copies it and reprints and sells the book. Since he didn’t sign any such contract, how can Zeke be violating copyright or doing anything illegal? My reply here is that whether Zeke signed any contract is immaterial. The important point is that my own title to the book was obtained with the right to copy reserved to the author/publisher; and that Zeke’s title cannot be any wider than my own. The point here is akin to a tort problem. Suppose that I had stolen rather than purchased the book. And suppose, too, that Zeke had bought the book from me in good faith, thinking that I had purchased it legitimately. Doesn’t he then really own the book, and can’t we then say that when Zeke is apprehended with the stolen book, that the injured bookseller can’t deprive him of it? Surely not, for a contract cannot convey a greater title than the one originally held. I stole the book, and therefore the book is stolen property, and Zeke must disgorge it if apprehended. He can then try to take damages out of my hide, for defrauding him. But the book properly belongs to the bookstore alone. Similarly, my title to any copyrighted book is not mine fully; I don’t have the right to copy, and therefore Zeke can’t have the right to copy either.

So while I defend the common law of copyright, I contend that there is nothing analogous to a copyright contract in the case of “theft of information” from a computer and its modem. The young hacker has not contracted anything with the other computer-owner; his only contractual status is with the phone company, whom he pays for access to its lines. And I can’t see that the hacker has committed any tort either. His “entry” into the other computer is only metaphoric. In actual fact, he was only able to get information through a phone line to which both owners have voluntarily hooked their computers.

I conclude, then, that there is here no computer crime at all. And that if the computer owner wants to safeguard his information from free-loaders, it is up to him to install security safeguards so as to make entry into his system impossible for those not paying a fee. The burden is on him to keep his own phone line free of unwanted persons. I conclude further that no new computer crime laws should be passed and that libertarians should oppose them as interfering with the property rights of hackers.

Why, in fact, do the owners keep their modems hooked into general telephone lines, despite the unchecked “theft of information”? Because of the great convenience in having a large number of computers hooked into each other to constitute a vast, nationwide data network. All right then; if the owners calculate their benefits and costs, and figure that the benefits to them of plugging into the information network outweigh the costs of hackers being able to use it for free, then so be it. If not, let the owners get out of the networks, or else tighten their security systems. Let them take their cue from the Defense Department, which has now decided to “build a fence” around their networks, especially their military computer networks, with “virtually uncrackable” coded messages and special passwords required for entry. (New York Times, Oct. 5).

Let us now turn from computer “crimes” to TV frequencies. The situation, I submit, is analogous. If a TV station, whether regular or cable, emits frequencies on a certain channel at a certain place, then it should have the private “ownership” of the right to transmit signals on such frequencies. Anyone else trying to broadcast on the same channel at the same place should be dubbed an aggressor against the property right of the pre-existing TV station. Indeed, that is precisely how the federal courts were beginning to apply the common law to the new technology of radio transmission (Tribune Co. v. Oak Leaves Broadcasting Station, Circuit Court, Cook County, Illinois, 1926), when the federal government, in panic that each radio station might obtain private property rights, rushed through laws to prevent it and to nationalize the airwaves (The Radio Act of 1927).

But even though every station should have the unimpeded right to transmit signals on any given channel or frequency, it should not be able to interfere with anyone’s right to receive signals. The station does not and cannot own the signal itself, only the right to transmit the signals. Why should Tex, a man with his own satellite dish or antennae on his own property, not have the right to receive any signals he darn pleases with his own equipment? Cable-TV stations, of course, can and do scramble their signals so that TV set owners who don’t pay cannot receive a clear signal. And that’s fine. Let Home Box Office scramble its signals, then, and good luck to it. But I find it monstrous that Home Box Office can and does send out the gendarmes to harass people ingenious enough to build antennae on their roofs in Brooklyn and Queens and point them toward the World Trade Center, thus picking up HBO signals without payment. If HBO doesn’t like it, let it set up a better scrambling system. If it can’t do so or it finds that alternative too costly, then it should jolly well have to put up with ingenious freebies, with satellite dishes or pointed antennae.

Finally, there is the almost incredible harassment of VCR owners. If I buy a VCR and a blank tape, I should be able to tape a movie or other program off my own TV set. If the TV or movie people don’t like it, they should jolly well have to lump it. It is grotesque that movie producers might get the Supreme Court to agree to outlaw use of the VCR. Worse yet is that the movie producers are harassing poor SONY, who only manufactures and doesn’t use VCRs. Obviously, SONY has the deep pockets to enjoin and sue, which most home owners do not. Obviously, too, the government would have a great deal of difficulty mobilizing an enormous Gestapo, armed to the teeth, to break in on and confiscate or destroy the VCRs in many million American homes. Defend your VCRs to the death, fellow Americans! In practice, then, the movie people are not going to outlaw VCRs. They will just force SONY and the other manufacturers to pay a tax to the movie people, a tax which will be passed on to every VCR buyer. But the unfortunate principle—and the higher cost—might well be enshrined in the books.

The problem in all these cases is not whether “property rights” should or should not be upheld. The problem in each of these cases is: Who should have the property right? The computer hacker to do what he wants with his own computer and his access to the telephone lines, or the other computer owner? The signal sender or the signal receiver in the latter’s own equipment? The VCR owner or movie producers? In all of these cases I believe that the concept of copyright has been illegitimately extended to become invasive, and that the fact that the common law cannot combat these “crimes” is already an indication that they are not crimes at all.

But I am in an odd position here. Of all the people in the libertarian movement, I probably know the least about computer technology. There are few movement people lower tech than myself. And yet among all the computer mavens in the movement, I have seen no discussion of these thorny issues. But it is important to apply libertarian property rights theory, i.e. judgments in various areas on who is a criminal and who is a victim, to advancing technology. So on these matters I still have a relativelyopen mind. Before the Iron Door closes, I cheerfully invite libertarian theorists and high-tech mavens to submit papers, on any or all sides of this problem, for possible publication in the Libertarian Forum. Is there computer crime? Are VCR and satellite dish owners criminals? Please send in your discussions, and help advance libertarian theory.

From my Kinsella on Liberty podcast:

KOL 038 | Debate with Robert Wenzel on Intellectual Property

by STEPHAN KINSELLA on APRIL 1, 2013

in INTELLECTUAL PROPERTY,KINSELLA ON LIBERTY PODCAST,LIBERTARIANISM

Read more>>

This is a nice, concise piece by Predrag Rajsic, posted at Mises.ca. More and more libertarians are getting it. (See The Origins of Libertarian IP Abolitionism, The Four Historical Phases of IP Abolitionism, The Death Throes of Pro-IP Libertarianism,  Have You Changed Your Mind About Intellectual Property?, Yet another Randian recants on IP.)

Monday, April 1st, 2013

by Predrag Rajsic

posted in Intellectual Property, Law,Philosophy, Regulation.

Many contemporary theorists and commentators frame the question of intellectual property as a question of ownership over ideas. In this framework, a new product is seen as an embodiment of a new idea. Producing multiple copies of a new product is then seen as a materialization of the same idea. Some conclude that ascribing ownership over a new idea to its original creator in the same way we ascribe ownership over material objects is inconsistent with either classical liberal or libertarian theory of rights. This inconsistency has led some to conclude that a creator of a new product has no right whatsoever in limiting the future replication of that object by others. This, however, is an erroneous conclusion.

The purpose of this article is two-fold. First I will elaborate why the concept of intellectual property is inconsistent with the classical liberal and libertarian theories of rights. In short, the root of this inconsistency is in the incoherent and ultimately subjective criteria for conflict resolution created by the concept of intellectual property. Second, I will argue that this inconsistency does not imply all replication of a new object is illegitimate. Classical liberalism and libertarianism contain clear principles for evaluating the legitimacy of copying in different situations. Both of these points bear heavily on the distinction between an idea and physical objects and on the nature of ownership under the classical liberal and libertarian theories of rights.

The Distinction between an Idea and Physical Objects

In its most general form, an idea has been defined throughout history as that which is not matter. For example, I may have an idea of a circle in my mind, but as far as we know, this circle does not exist anywhere as a physical object. It takes physical objects, say, pen and paper, to translate my idea into a material form. However, this translation is only provisional. I can imagine a circle that can never exist in reality. The equation x² + y² = r²defines an infinite number of dimensionless points in the x-y space, all at an equal distance, r, from one, central point. In other words, this is an equation of an ideal circular line in the Descartes’ two-dimensional coordinate system. This line, however, has no thickness or mass. No one can draw a line that has a thickness and a mass of zero. [continue reading…]

Another nice presentation from  learnliberty.org and Dr. Stephen Davies, a Historian with the Institute of Economics Affairs (see also SOPA and 3 Ways to think about Intellectual Property).

Great piece by Wendy McElroy, published today at The Daily Anarchist:

***

In the historical “Retrospective” section of Wendy McElroy’s 2011 Libertarian Papers article “Contra Copyright, Again,” she discusses the beginnings of the modern libertarian anti-IP movement in the 1980s, spearheaded primarily by her and Samuel Konkin III (“SEK3”). This resulted in a 1983 debate on IP between McElroy and J. Neil Schulman (“The Great IP Debate of 1983“), each of whom later published papers based on their presentation at that debate (McElroy’s is reprinted in “Contra Copyright, Again,” and first published in 1985; Schulman’s “Informational Property — Logorights,” in 1990, in the Journal of Social and Biological Structures, 13 no. 2, pp. 93–117).¹ I discuss some of this in “The Origins of Libertarian IP Abolitionism,” “The Four Historical Phases of IP Abolitionism,” and “The Death Throes of Pro-IP Libertarianism.”

I had previously thought McElroy’s 1985 “Contra Copyright” was the earliest published work by a modern libertarian mounting a comprehensive and explicit attack on IP as such (even SEK3’s “Copywrongs” was not published until 1986). There was earlier writing skeptical of IP by Hayek, Rothbard, and Leonard Read, but these pieces were either not completely anti-IP (Hayek, Rothbard) or were not comprehensive and sustained (Read) (“The Four Historical Phases of IP Abolitionism”).

However, in a recent Facebook thread, Less Antman informed me that when he was publisher of Caliber, the California LP’s newsletter, it published McElroy’s article “On the Subject of Intellectual Property” in its Dec. 1981-Jan. 1982 issue.  He sent the PDF and a text version to me, an edited version of which appears below (PDF version; thanks to Ganine Van Alst for copyediting assistance). The article is a precursor to “Copyright and Patent in Benjamin Tucker’s periodical Liberty,” which appeared as a chapter in McElroy’s excellent 2003 book, The Debates of Liberty: An Overview of Individualist Anarchism, 1881-1908. This appears to be McElroy’s first published work on the topic of IP and, thus, the first comprehensive and explicitly anti-IP piece by a modern libertarian ever published.

McElroy sent me this email concerning her reflections about this piece and her current thinking on IP:

As a matter of preserving an accurate record, I do not like to rewrite articles from earlier years and, so, I did no editing. Nevertheless, my views on IP have changed in significant ways since 1981 and a few prefacing notes are required.

First and foremost, I no longer believe that patent or copyright by virtue of contract is either feasible or desirable. In fact, I think it would be incompatible with a libertarian legal system. I credit Stephan Kinsella with prompting this gradual drift in my position.

Originally, I took a vaguely Rothbardian view of IP; namely, I argued that a copyright claim could properly exist only as the result of an explicit contract and it would be binding only upon the agreeing parties. Huge logistical problems are immediately obvious. For example, how do you maintain a copyright on a book that is left lying around for others to read? I was not comfortable with the assurance “the market will evolve an answer” but I accepted it as the best I had.

I no longer do so. There are simply too many contradictions in “copyright by contract.” Consider the person who buys a physical book. Even diehard IP advocates agree that a purchaser owns the book itself and is merely constrained from reproducing it. But the only way to maintain a copyright by contract would be to deny the purchaser has any property in the book at all. Otherwise he could sell it to a secondhand store and the material within would be immediately and utterly unprotected. In order to maintain the protection, the copyright holder must deny that even the physical book can be owned by anyone else but him. Inserting a clause that bans resale into the original contract would not resolve the issue. Ownership means the “use and control” of a good, including disposing of it. If the copyright holder controls the terms on which the physical book can be sold, then he is asserting an ownership claim to the object itself and one that is superior to the purchaser’s.

Another reason I came to reject copyright by contract is that its enforcement would lead to an unjust and unlibertarian system of law. The purpose of a libertarian legal system is to provide reasonable restitution to victims. There are compatibility problems with copyright and restitution. Consider the case of a person who downloads a song. The purpose of restitution is to make the victim whole, perhaps with some additional compensation, perhaps not. (Disagreement exists on the justice of additional compensation but not on whether the overall compensation should be reasonable; otherwise, it is not just.) Yet the music industry and the courts have penalized people hundreds of thousands of dollars for a handful of downloads. To maintain IP, they must do so. If the courts assessed a download in terms of quadruple damages or some other reasonable sum, then there would be no incentive for people to eschew downloads. The chances of being caught are negligible, as would be the cost of being caught. One of the only ways left to minimize the number of downloaders is to make the laws draconian and severely punish a scattering of offenders as a cautionary tale to others. This moves the legal system away from justice and from restitution.

Yet another aspect of IP and libertarianism are incompatible: the incredible policing of individuals which would be necessary to prevent the ‘crime’. The immense free flow of information over the Internet means that more and more invasive methods are being used to monitor peaceful behavior. Now the advent of 3D printers has the potential to make the downloading and creation of duplicate goods as convenient as the downloading of music. This potential would devastate patents, of course. The only way to protect patents would be to monitor, restrict or ban people’s use of 3D printers. At every turn, as technology brings greater freedom and prosperity, IP is there to try and seize control … if not of the technology itself, then of individuals.

The race is on between freedom and IP, with government standing solidly and with both fists on the side of IP. And this is yet another change in my attitude from 1981. I now fully understand the vital importance of opposing copyright and patent.

 

ON THE SUBJECT OF INTELLECTUAL PROPERTY

By Wendy McElroy

(Published in Caliber December 1981-January 1982 Edition)

The question of what can be the proper subject of ownership — what is property? — is an important theme of libertarianism.

It arises in discussion of such diverse topics as slavery, pollution, animal rights and intellectual property. It is with intellectual property (by which is commonly meant, copyright and patent) that the question becomes unusually difficult, for what is being claimed is the ownership of intangibles, of ideas. The title of a recent book, Who Owns What Is In Your Mind?, concretizes a commonsense objection to intellectual property; most people would loudly declare, “no one owns what is in my mind!” Yet, if the information you have is a chemical formula which you accidentally glimpsed, do you have the right to market it as your own over the protests of the chemist who worked a lifetime to perfect it? Do you have the right to publish a book with characters named John Galt and Dagney Taggart? And if not, why not?

Intellectual property was the subject of intensive and unsurpassed debate within the pages of Benjamin Tucker’s libertarian periodical Liberty (1881-1908).  Because of this, the best presentation of this question is an overview of the debate.  The citations which appear directly after quotations refer to the appropriate issue and page of Liberty.

Although it is usually contended that the intellectual property debate was over the ownership of ideas, this is not quite accurate.  James Walker — who wrote under the pseudonym of Tak Kak — was a leading opponent of copyright and patent; he stated, “My thoughts are my property as the air in my lungs is my property…” (March 21, 1891, 4)  Both sides of the debate agreed that each man owns his own thoughts which he is free to express or not, as he pleases. [continue reading…]

1. This piece appears in J. Neil Schulman, Origitent: Why Original Content is Property (Steve Heller Publishing, 2018) . [↩]

Cory Doctorow seems to keep inching more and more from IP reform to IP abolitionism. Jump on in, Cory–the water’s warm!

Copyright shouldn’t take away real property rights

Cory Doctorow at 4:02 pm Mon, Mar 18

iFixit’s Kyle Wiens has a must-read op-ed in Wired on the insane way that copyright is being used to take away your property rights in tools as diverse as tractors and cars and cellphones and phone switches. The manufacturers use a variety of copyright claims (especially anti-circumvention claims under the 1998 Digital Millennium Copyright Act/DMCA) to make it illegal to understand how your stuff works, to improve on it, or to repair it. Wiens makes the good point that it’s nuts to use metaphorical property (copyright) to end real property rights in things that you buy and pay for.

Meanwhile, progress is being made to legalize cellphone unlocking. With grassroots groups leading the charge, the Obama administration announced its support for overturning the ban last week. Since then, members of Congress have authored no fewer than four bills to legalize unlocking.This is a step in the right direction, but it’s not enough. Let’s make one thing clear: Fixing our cars, tractors, and cellphones should have nothing to do with copyright.

As long as Congress focuses on just unlocking cellphones, they’re missing the larger point. Senators could pass a hundred unlocking bills; five years from now large companies will find some other copyright claim to limit consumer choice. To really solve the problem, Congress must enact meaningful copyright reform. The potential economic benefits are significant, as free information creates jobs. Service information is freely available online for many smartphones from iFixit (my organization) and other websites. Not coincidentally, thousands of cellphone repair businesses have sprung up in recent years, using the repair knowledge to keep broken cellphones out of landfills.

As long as we’re limited in our ability to modify and repair things, copyright — for all objects — will discourage creativity. It will cost us money. It will cost us jobs. And it’s already costing us our freedom.

Forget the Cellphone Fight — We Should Be Allowed to Unlock Everything We Own (via /.)

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Here is a very nice, short video arguing against patent and copyright from learnliberty.org, by Dr. Stephen Davies, a Historian with the Institute of Economics Affairs.

Update: see also LearnLiberty: Can Artists Make Money Without Copyrights? (Video)

There are a few legal inaccuracies in the video, but they don’t affect the overall argument. But for example the video implies there are 3 types of IP rights—patent, copyright, and trademark—and omits others like trade secret and modern legislative innovation. It says that IP rights are limited in time, and gives as an example a 28-year patent and a trademark (the Coca-Cola mark). But patents last 20 years from issuance, not 28; and trademarks can be renewed indefinitely and trade secrets theoretically maintained forever. Still, this is a minor quibble.

From StephanKinsella.com:

KOL 033 | Free Talk Live Interview on Reducing IP Costs (2010)

by STEPHAN KINSELLA on MARCH 17, 2013

in INTELLECTUAL PROPERTY,KINSELLA ON LIBERTY PODCAST

Kinsella on Liberty Podcast, Episode 033.

I was interviewed back on Jan. 20, 2010 by Mark Edge, as part of his “Edgington Post Interview Series,” for his Free Talk Live radio show, about my Mises Daily article, “Reducing the Cost of IP Law.” The interview is lasts about 35 minutes, and starts at 2:02:36 in the original Jan. 20, 2010 show, which I have trimmed here. Edge conducted an excellent interview–very informed and interesting. And, like many others, he’s come around to the anti-IP position. (See, on this, Have You Changed Your Mind About Intellectual Property?, Yet another Randian recants on IP, The Death Throes of Pro-IP Libertarianism, The Origins of Libertarian IP Abolitionism.)

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