• KOL469 | Haman Nature Hn 149: Tabarrok on Patents, Price Controls, and Drug Reimportation

I’ve previously criticized George Mason economist Alex Tabarrok’s views on patents.¹ For example, as noted in Patent Policy on the Back of a Napkin, Tabarrok makes a Laffer-curve style argument that patent rights are currently “too strong.” Of course, he is correct that patent rights are too strong. However, he assumes that we should reduce patent strength, since it’s “too strong” now, but not abolish it, since zero protection is too weak. Instead, there is an optimal amount of patent strength, somewhere between zero and infinity, and we should try to adjust the patent system to optimize the production of innovation.

But there is no evidence that patent policy produces any kind of net societal gains at all,² nor does Tabarrok provide any. [continue reading…]

1. See, e.g., Tabarrok: Patent Policy on the Back of a Napkin; Libertarian Favors $80 Billion Annual Tax-Funded “Medical Innovation Prize Fund”; $30 Billion Taxfunded Innovation Contracts: The “Progressive-Libertarian” Solution; and Tabarrok’s Launching the Innovation Renaissance: Statism, not renaissance.   [↩]
2. See, e.g., “The Overwhelming Empirical Case Against Patent and Copyright.” [↩]

I just came across this one in a Twitter thread — some rando no-name apparently named Vincent, who doesn’t even understand that copyright is automatic.

See also

• Objectivist Greg Perkins on Intellectual Property
• Objectivists Hsieh and Perkins on IP and Pirating Music
• There are No Good Arguments for Intellectual Property

***

See: How to Improve Patent, Copyright, and Trademark Law

An Open Letter to Congress

Dear Member of Congress:

Below please find some suggestions for legislative improvements to federal law in favor of American free markets, property rights, and individual liberty.
[continue reading…]

Jammit to the wall.

Related:

• The Critique of Copyright in Hans-Hermann Hoppe’s Argumentation Ethics
• Hoppe on Intellectual Property

Lockean Intellectual Property Refuted, by Cezary Błaszczyk, Scienza & Politica, vol. XXXII, no. 63 (2020).

Abstract: Locke’s theory of property is irreconcilable with intellectual property. Property-like titles in ideal objects cannot be introduced within the framework of the natural law, because they could constrain others from acts necessary for their survival. Nevertheless, followers of Locke’s theory of politics choose to belittle this conclusion and even Locke himself supported early copyright legislation. The inconsistency is important, for it depicts the problem of legitimization of intellectual property as political and demonstrates liberal reification of various aspects of social life.

This paper is solid, thorough, conclusive, and full of brilliant insights. It demolishes the case that IP, propounded by some such as Adam Mossoff, is a natural right or that Lockean theory supports IP. Related:

• Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory: Transcript
• Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging” (esp. the arguments by Tom Bell and Ronan Deazely that Locke’s thought does not support IP as a natural right)

[From my Webnote series]

• Blackburn’s new AI framework seeks to codify Trump’s desires
• Grok analysis (would sunset safe harbors)
• Whereupon Grok admits it (and AI) is severely gimped by copyright law

Or should I say “libertards”?

[Update: see Jeffrey Tucker, Backdoor Censorship through Libel Law; Techdirt Podcast Episode 266: In Defense Of Section 230 & A Decentralized Internet; Walter Block, “A Libertarian Analysis of Suing for Libel,” LewRockwell.com (Sep. 5, 2014); How Democrats’ Attack On Section 230 Plays Right Into Trump’s Censorial Plans, Techdirt (March 26, 2025)]

It’s understandable conservatives, who have no serious principles about liberty or property rights, want to end the “safe harbors” granted to ISPs and related social media platforms, like Twitter, Facebook, Instagram, Youtube, by §230 of the 1996 Communications Decency Act (CDA) (which has to do with defamation) and the “OCILLA provisions of the 1998 Digital Millennium Copyright Act (DMCA) (which has to do with copyright).¹ This is to be expected. But it’s disheartening when even some libertarians want to do this (e.g., Tom Bell; the late Justin Raimondo).

These laws, signed by Bill Clinton at the dawn of the Internet, prevent platforms from being vicariously liable for tortious conduct (e.g. defamation law) or copyright infringement by their users. They were instrumental in the early flourishing and development of the Internet; Youtube, blogging, etc. would not have been possible without them. See The Court Case that Enabled Today’s Toxic Internet.

Some argue that these laws were premised on the assumption that ISPs and now, social media services, are mere neutral platforms, not “publishers,” and thus they should not be responsible for actions of their users, any more than the telephone company should be liable for criminal actions by individuals when they make phone calls to plan a crime. But now that Facebook, Twitter, et al. have become more woke and are censoring non-progressive speech, they are “acting like publishers” and should be treated like publishers. If the New York Times is potentially liable for libel for publishing an article or letter or ad that defames someone, so should Twitter and Facebook, since they now obviously monitor and edit the content their users post. But removing the §230 and DMCA safe harbors would just be a way of imposing defamation and copyright liability on companies that are now somewhat exempt. Since both defamation and copyright law are utterly unjust and unlibertarian (as Murray Rothbard and Walter Block have shown re defamation; and as I and others have shown re copyright), we should not urge the abolition of these safe harbors. It would be like, instead of abolishing the drug war, advocating that rich white kids suffer the same criminal penalties as the poor do, or instead of advocating an end to the draft, advocating for a universal draft so that it doesn’t disproportionately affect the underclasses. No. Abolish taxes, copyright, the draft, and the drug war for all. Don’t extend it just to reduce inequality.

But the incremental advance of IP law continues. See, e.g., Covid-19 Relief Bill Adds Criminal Copyright Streaming Penalties and IP Imperialism; and The EARN IT Act Violates the Constitution—the EARN It Act seeks to undermine the ability to encrypt data, which will expand IP enforcement and threatens Bitcoin and cryptocurrency.

Some of my comments from previous posts and emails are below. [continue reading…]

1. See Trump Threatens to Veto Defense Bill if Tech Liability Shield Stands; Tucker Carlson Interview with Senator-Elect Josh Hawley on CDA 230; Mike Masnick, Lindsey Graham’s Latest Attack On Section 230: Reform It By 2023, Or We Take It Away; other Masnick posts; Hello! You’ve Been Referred Here Because You’re Wrong About Section 230 Of The Communications Decency Act. [↩]

As noted in this Facebook post:

It’s sad to see Republicans and even Fox News types applauding the Covid “relief packages” Congress recently passed and also earlier this year. These are massive wealth transfers and simply theft. I wonder however if the libertarians who believe in takings (eminent domain) have any principled opposition to this, e.g. Richard Epstein, author of Takings. Epstein’s argument there is that sometimes, because of free rider problems and holdouts, you need a public measure that takes someone’s private property for public use, while compensating them for the fair market value, with general tax revenues. This way, the overall cost of a measure is distributed evenly, and everyone benefits since the measure helps the “size of the pie” grow bigger (it is this surplus that you compensate the expropriated victim from, so that no one is harmed on net and everyone benefits overall). [continue reading…]

Announcing the Open Crypto Alliance, which has been formed to fight blockchain and crypto patent trolls and patent abuse that threatens the bitcoin space (as discussed in this Facebook post).

[Update: the Open Crypto Alliance (2020–22) has changed its name to the the Open Crypto Foundation (2022–)]

As we know, one significant threat to bitcoin and cryptocurrency is state regulation and law. Another looming threat to freedom and innovation in crypto also results from state law: the patent system. A group of us—blockchain and crypto advocates, working in technology and patent law for over 30 years—have created this alliance to organize a successful fight to provide freedom to operate in blockchain and crypto technology. ​The Open Crypto Alliance is dedicated to keeping blockchain and crypto technology free of unwarranted patent assertions. We intend to do this by taking aggressive proactive action to oppose unwarranted patents that are being filed and collected by patent trolls and other bad actors.

As I noted here, previous patents have already needlessly distorted and hindered bitcoin technology. What a waste. What a shame. And the patent threat is growing. See, e.g., this Bloomberg interview with one of our Advisors, patent attorney Marc Kaufman, about Blockchain patent strategies and Blockchain patents: the emerging landscape of risk, and, by our Founder, Jed Grant, What Would A Blockchain Patent War Look Like? For example, the rabidly pro-patent Craig Wright (see his comments here; see also my IP debate with Wright) has a growing arsenal of patents related to blockchain and crypto technology. (For example, see Craig Wright/nChain’s global patent filings or granted US patents and pending US patent applications. 

If you are a crypto entrepreneur or company concerned about the patent threat to innovation and freedom to operate in this space, please pass the word along, and join us.

Cobbled together from some Facebook posts calling for the Libertarian Party Platform to be amended to include calls to abolish intellectual property law, in particular, patent and copyright:

[Update: Aggression and Property Rights Plank in the Libertarian Party Platform; Colorado IP Socialists Trying to Amend LPCO Platform to Include IP]

[Update: Tom Knapp informed me that this almost happened earlier this year:

the Libertarian Party’s 2020 platform committee recommended the addition of new plank 2.15, “Intellectual Property,” to the platform. The proposed plank read as follows:

“As we oppose all government intervention in marketplaces, we favor the repeal of intellectual property laws. Disputes between inventors, creators, authors, artists, businesses and other such entities should be resolved without government intervention.”

Unfortunately, the 2020 Libertarian National Convention was interrupted/delayed by a full day of mutiny against the party, then voted to adjourn without considering the committee’s recommendations instead of doing its fucking job.

2.XX Intellectual Property

As we oppose all government intervention in marketplaces, we favor the repeal of intellectual property laws. Disputes between inventors, creators, authors, artists, businesses and other such entities should be resolved without government intervention.

Rationale for Proposal 19

No matter what position any person takes on intellectual property, it is nearly universally acknowledged that the government’s handling of this has been stifling and ham-handed. There are better free market solutions that can be allowed to flourish if the government would stay out. The market has already pioneered the way with the creation of items such as creative commons licensing.

[Update: See also It’s A Fucking Disgrace that the Libertarian Party Platform Does Not Condemn “Intellectual Property” (Patent and Copyright)]

From Aug. 3, 2018:

As noted recently, I’ve just joined the Libertarian Party, after more than 35 years of being a small-l libertarian. As noted there, my main goal is to persuade the party to adopt a clear platform plank calling for abolition of patent and copyright law. As I have in the past.

Intellectual property law is 100%, clearly and undeniably unlibertarian. Among destructive and evil state policies, it ranks among the worst, which are (in no particular order): 1. war; 2. the Fed/central banking/fiat money; 3. government schools; 4. taxation; 5. the drug war; 6. intellectual property — in particular, the federal patent and copyright laws (see “Where does IP Rank Among the Worst State Laws?”). Now not all libertarians are anarchists, and thus not all agree that war and taxation are always and completely wrong. And not all are Austrians, so some are not completely opposed to central banking. I’m not aware of many libertarian arguments for government schools, and there are just zero arguments for the drug war. Of all the libertarian stances, the drug war is simply not debatable. If there is a litmus test, it is the drug war. All libertarians must be completely and utterly opposed to the inhumane and evil prohibition of drugs. [If idiot Trump had come out for marijuana legalization at the federal level, he might have beaten Biden.]

And patent and copyright law also. There might be some argument for taxation or even war (especially among minarchists), but just as there is no libertarian argument at all for outlawing drugs, there is no argument at all for patent or copyright. They are as blatantly and clearly immoral and unlibertarian as the drug war is. And in one respect IP law is even worse than other state laws and policies: unlike war, taxation, drug laws, and so on, intellectual property pretends to be a type of “property right”, and thus is far more insidious. [continue reading…]

Just came across this 2014 article by Łukasz Dominiak, “Anarcho-Capitalism, Aggression and Copyright“. Great paper. Abstract:

“In this paper I examine the relation between copyright and aggression from the anarcho-capitalist perspective. I hypothesise that notwithstanding ubiquitous beliefs, copyright does not protect individuals’ property and freedom; on the contrary, copyright, as well as other types of intellectual property, initiates aggressive violence against people’s property and freedom being thereby an instance of aggression, not remedy thereof. The function of norms of conduct is to eliminate conflicts over scarce resources. If a given norm of conduct, such as copyright, itself produces scarcity where there was none before, conflicts and inconsistencies will result. “

[Update: According to some updates, the earlier reports were possibly somewhat inaccurate. I’m not surprised; journalists and others often mangle IP reports. I was myself wondering “gee, why don’t I see a link to a patent number”. Apparently the patentee (if it is that) didn’t “threaten” (not explicitly, anyway) and the $11k price was exaggerated. None of this affects my main point, which is the benefit of having principles. Here’s what probably happened: some Italian company had several international patents on this valve plus some kind of Italian/European version of FDA approval: “we were contacted at the end of last week for manufacturing details of a valve accessory but could not supply these due to medical manufacturing regulations”. And FDA type regulatory approval works similar to how a patent monopoly works. The bottom line is the combination of the patent system, plus the FDA-type “medical manufacturing regulations” results in some manufacturers having a quasi-monopoly on the supply of a product, which results in reduced supply and increased price. It doesn’t matter whether it’s $3 or $11k. The point is that others are generally/vaguely aware of this patent/regulatory threat, which is precisely why the doctors here were leery of reverse-engineering this valve, and why the manufacturer was leery of release to them the 3D design files, and why the good Samaritans here were leery of releasing their hacked data to other third parties. All this is caused by the patent and IP/copyright system. Without IP, 3D files would quickly be circulated and leaked; people could use and share such info without fear of liability. The IP system dissuades use of property for productive purposes; again, it is death. My judgment stands.

Update: See also Joshua M. Pearce, “A review of open source ventilators for COVID-19 and future pandemics,” F1000Research (2020), which states (citing AIP): “Putting aside the absurdity of patenting and then obstructing others from using obvious inventions in normal times, in the wake of a pandemic where millions of lives are at stake, it is intuitively obvious that this type of greed is no longer acceptable.”¹ ] [continue reading…]

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

This was a pretty good recent interview on IP.

Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 1:28:35 — 71.4MB)

Kinsella on Liberty Podcast, Episode 281.

This is my appearance on the Death to Tyrants Podcast, Episode 90: Against Intellectual Property, with Stephan Kinsella (Facebook post), released Feb. 3, 2020, with host Buck Johnson. (I was previously a guest back in 2018–see KOL252 | Death to Tyrants Podcast: Human Rights, Property Rights and Copyright.)

From the Shownotes:

This week, I feature my interview with Stephan Kinsella, the foremost expert on the topic of “intellectual property”. Can you own an idea? How about a word? A pattern of words? How about a color? Stephan Kinsella is here to explain why intellectual property is illegitimate. This episode will cause you to think seriously about the topic. Give it a listen. I think you’ll enjoy it!

Interesting new paper discussed in a recent Techdirt podcast episode: “Techdirt Podcast Episode 232: Copying Is Not Theft“, by Niskanen Center scholars Brink Lindsey and Daniel Takash.

They explain fairly well why both the rights-based or deontological case for IP makes no sense, and why the empirical case is wanting as well. As I have done also in Against Intellectual Property. They also come up with a set of proposals to improve patent and copyright, which are similar to some of my own recommendations (How to Improve Patent, Copyright, and Trademark Law). But despite criticizing the two cases for IP, they shy away from calling from abolition, and in their conclusion they inexplicably undercut most of their previous criticisms of IP, by conceding that some improved IP law is probably justified:

“Does this mean that the concept of “intellectual property” is completely invalid? Not necessarily. Working back from all the overreaching, there is a defensible intuition that some level of copyright and patent protection is needed to protect artists and inventors from unfair commercial exploitation of their work by parasitical imitators who add no real value of their own. And by preventing unfair exploitation, such protection would improve incentives for creation and innovation and thus promote efficiency.”¹

For more information: from the Niskanen post about it:

[continue reading…]

1. Update: See Lindsey’s article Why intellectual property and pandemics don’t mix: “patent law, properly restrained, constitutes one important element of a well-designed national innovation system…. [↩]