Yet another illustration that trademark law is also incompatible with private property rights and free markets: in a post by Cory Doctorow from Boing Boing: Games Workshop trademark bullying goes thermonuclear: now they say you can’t use “space marine” in science fiction.
In a previous post I cited The Overwhelming Empirical Case Against Patent and Copyright. Not only economists, but legal scholars are very skeptical of IP (Legal Scholars: Thumbs Down on Patent and Copyright). Nonetheless the basic IP system of patent and copyright retains is primacy and the patina of legitimacy. In the past most academic and scholarly symposia on the topic would host a gathering of court intellectual offering justifications of the IP system that more honest economists and legal scholars could not find a justification for. It was taken for granted that we need IP, that IP will always be with us, and despite the inability of its supporters to prove their case, the cries of the skeptics would remain unheeded. Thus, books and journals and academic symposia are riddled with the musings of quasi-statists and empiricists who recite the incantations needed to keep IP alive for another generation, while no one really believes it.
But the tide is turning. As I note in Mossoff: “Convincing the Intellectual Property Skeptic”, “free market” defenders of IP are increasingly on the ropes, and are starting to mount a rearguard defense of a crumbling, antiquated, statist ideology. They all know their days are numbered. And so we have more and more symposia on this topic, not just including the standard pro-IP defenders of the naked emperor, but compelled to give at least some platform to the skeptics.
Case in point is the recent issue of the prestigious Journal of Economic Perspectives, which includes a balanced symposium on patents. Yes, it includes a couple of rote pieces defending the status quo (or so it appears; I only glanced at these two), but it also includes two articles very skeptical of patents. First, there is an article by Boldrin and Levine (authors of Against Intellectual Monopoly), who write in “The Case against Patents“:
The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity …. This disconnect is at the root of what is called the “patent puzzle”: in spite of the enormous increase in the number of patents and in the strength of their legal protection, the US economy has seen neither a dramatic acceleration in the rate of technological progress nor a major increase in the levels of research and development expenditure.
… Our preferred policy solution is to abolish patents entirely to find other legislative instruments, less open to lobbying and rent seeking, to foster innovation when there is clear evidence that laissez-faire undersupplies it. However, if that policy change seems too large to swallow, we discuss in the conclusion a set of partial reforms that could be implemented as part of an incremental strategy of reducing the harm done by the patent system.
And Petra Moser notes in “Patents and Innovation: Evidence from Economic History“:
Historical evidence suggests that in countries with patent laws, the majority of innovations occur outside of the patent system. Countries without patent laws have produced as many innovations as countries with patent laws during some time periods, and their innovations have been of comparable quality.
From TLS:
Complete Liberty: The Demise of the State and the Rise of Voluntary America, by Wes Bertrand
by STEPHAN KINSELLA on FEBRUARY 4, 2013 @ 9:03 PM
I recently came across the website and podcast ”Complete Liberty,” by Wes Bertrand, also featuring Bertrand’s 2007 book Complete Liberty: The Demise of the State and the Rise of Voluntary America (print; PDF). The podcast has some excellent episodes, including a whole series on IP—episodes 89–99.
Bertrand is heavily influenced by Ayn Rand but is, nonetheless, anti-IP and anti-state. (For other Randian dissidents, see Yet another Randian recants on IP.)
From Slashdot:
Amazon Patents ‘Maintaining Scarcity’ of Goods
Posted by Unknown Lamer
from the moldy-bits dept.theodp writes“Back in Biblical times, creating abundance was considered innovative. That was then. Last Tuesday, GeekWire reports, the USPTO awarded Amazon.com a broad patent on reselling and lending ‘used’ digital goods for an invention that Amazon boasts can be used to ‘maintain scarcity’ of digital objects, including audio files, eBooks, movies, apps, and pretty much anything else.”
Claim 1 of the patent reads:
1. A system comprising: one or more processors; and computer-readable storage media encoded with instructions that, when executed on the one or more processors, instruct the one or more processors to perform acts for enabling permissible transfer of used digital objects among different users in an electronic marketplace, the acts comprising: storing a used digital object obtained from an authorized source in a first personalized data store, wherein the first personalized data store is associated with an account of a first user and is accessible by an electronic device associated with the first user, and wherein the used digital object is a digital object in which the first user has legitimately obtained access rights; determining that the used digital object is available for transfer from the first personalized data store; providing an indication that the used digital object is available for transfer from the first personalized data store; receiving a request to transfer the used digital object to a second personalized data store, wherein the second personalized data store is associated with an account of a second user and is accessible by an electronic device associated with the second user; authorizing transfer of the used digital object to the second personalized data store based on satisfaction of one or more business rules; upon authorization of the request to transfer the used digital object to the second personalized data store, transferring the used digital object from the first personalized data store to the second personalized data store; and deleting the used digital object from the first personalized data store.
The brief slashdot post above makes a good point about how the normal purpose of the market is to overcome scarcity and produce abundance, while the perverse purpose of IP law is to take the natural abundance of nonscarce goods and make it artificially scarce.
See below for related reading, in which I point out the perversity of making infinitely abundant nonscarce goods less abundant on purpose at the same time the free market is trying to help us overcome the problem of scarcity in the physical world. As I noted in The Death Throes of Pro-IP Libertarianism,
It is obscene to undermine the glorious operation of the market in producing wealth and abundance by imposing artificial scarcity on human knowledge and learning (see “IP and Artificial Scarcity” [archived comments]). Learning, emulation, and information are good. It is good that information can be reproduced, retained, spread, and taught and learned and communicated so easily. Granted, we cannot say that it isbad that the world of physical resources is one of scarcity — this is the way reality is, after all — but it is certainly a challenge, and it makes life a struggle. It is suicidal and foolish to try to hamper one of our most important tools — learning, emulation, knowledge — by imposing scarcity on it. Intellectual property is theft. Intellectual property is statism. Intellectual property is death. Give us intellectual freedom instead!
I came across this fascinating expression from the book To Steal a Book Is an Elegant Offense: Intellectual Property Law in Chinese Civilization (1995), by William P. Alford, which I am reading now. The saying is complemented by a quote from Confucius that leads off ch. 2:
The Master [Confucius] said: I transmit rather than create; I believe in and love the Ancients.
Alford challenges the received wisdom that copyright emerged with the invention of printing, since the advent of printing in China did not give rise to something similar to Western-style copyright. In the West, state control of printing, to suppress or regulate dissident thought, gave rise to the Stationer’s Company with its authority to control what books could be printed, and eventually morphed into modern copyright with the Statute of Anne in 1710 (see my How to Slow Economic Progress; and Karl Fogel, The Surprising History of Copyright and The Promise of a Post-Copyright World). State-control of thought transformed into a right of authors to their copyright.
As Alford points out, in China, there were various attempts to regulate printing as well. For example,
Surred by advances in printing technology and a relative rise in literacy, the early years of the Song Dynasty (A.D. 960–1279) saw a marked increase in the production of printed materials by both the Imperial College … and “private” persons, many of whom, in fact, were government officers carrying on sideline activities. concerned about the proliferation of undesirable printed materials, in 1009, the Zhenzong Emperor ordered private printers to submit works they would publish to local officials for prepublication review and registration.
The principal goal of prepublication review was to halt the private reproduction of materials that were either subject to exclusive state control or heterodox. [13]
However, though the penalties for unauthorized publishing or copying were severe (“one hundred blows with a heavy bamboo cane and the destruction of their printing blocks”), there were no explicit penalties for unauthorized reproduction of more mundane works, and the Song dynasty started having difficulty policing “piracy” (14-15). In the Ming Dynasty (A.D. 1368-1644), the prepublication review system started to lose its vitality.
In the West, what started out as state/church control of thought strangely transformed into a property rights of authors in their works. As Alford notes:
In both the common and civil law worlds, the idea of limiting the unauthorized copying of books was originally prompted not by a belief that writings were the property of their authors, but by a desire to give printers an incentive no to publish heterodox materials. Similarly, the early history of patent law in the West owes far more to the state’s desire to strengthen itself than to an acknowledgement of any inherent property interest of the invento. Thus, for example, the English throne awarded patents to foreigners who introduced new products or processes to the British isles, even if those persons were not themselves responsible for the innovation in question.
But the seventeenth and eighteenth centuries witnessed the development of an approach toward intellectual property in Europe that had no counterpart in imperial Chinese history. Simply stated, there developed in England and on the Continent the notion that authors adn inventors had a property interest in their creations that could be defended against the state. Society, growing numbers of Europeans cam to believe, would benefit by providing incentives to engage in such work and disseminate the results. China, by contrast, continued to regulate this area predominantly in terms of how best to maintain the state’s authority.
In other words, both in China and the West, the state first controlled printing to control thought. But in the West, this control over “creations” became interwoven into the private property/private law framework. We might say that the monopolistic and censorial practices of the state corrupted and distorted the fabric of private law in the West. Whereas, in China, there was no corresponding industrialization and a corresponding emergence of the capitalist, free market culture onto which the state’s previous censorship of publications could be grafted. In a sense, the Chinese system stayed more honest: state control of thought is more clearly wrong and censorship, and is not masqued with the label “property” as it is in the West. China’s deep reverence for its past, as illustrated in the Confucius quote above, also plays a role in why Western notions of an individual right to “own” creative works did not take hold in China or transform the state censorship of works into a more individualized system, as happened in the West. (I am only part way through chapter 2, which explores these issues in greater detail, so these remarks of mine are tentative and somewhat speculative.)
Even though I am just in the first part of the book, I’ve already come across other interesting information, such as n. 12 on p. 128–29, which refers to various studies on whether IP actually does achieve its stated utilitarian goals of spurring inventiveness and creativity. Alford writes:
Certain of these writers deploy extensive statistics in making their cases, although in some instances, such data rest on questionable assumptions … and offer little insight as to whether intellectual property law spawned prosperity or prosperity spawned intellectual property law.
In other words, Alford sees that those arguing empirically for IP might be confusing correlation with causation (see Intellectual Property as a cause of American Prosperity?).
Five years ago I noted that tiny Antigua was engaging in clever copyright manœuvering to use copyright law against the mighty United States in a trade dispute. You see, the US, in its fascist, maniacal zeal to Control Everything, including online gambling, retaliated against Antigua for not sufficient punishing its subjects for engaging in online gambling. This cost Antigua $21M or so (“allegedly”).
Antigua sued in the WTO and won, but had no way to collect. You know, because the US is so powerful and arrogant.
So it thought: hmmm, let’s just have a government-authorized site that allows piracy of Hollywood content, until our damages are recouped. Apparently the WTO agreed. I discussed this previously in in Go, Antigua, Go! and My Hero: Mark Mendel; see also Techdirt, Antigua Says It’s Going To Start Ignoring US Copyrights (For Real This Time). The latest on this saga is detailed in the Techdirt post US Still ‘Warning’ Antigua That It Better Not Set Up Piracy Hub, Even As WTO Gives Approval. Go, David, Go!
Haha. More distortions caused by legislation: The Upcoming “Patent Cliff”: Plan To File New Patent Applications Before March 16, 2013.
For background, see Legislation and Law in a Free Society; and “Obama’s Patent Reform: Improvement or Continuing Calamity?,” Mises Academy webinar (discussed in my article “Obama’s Patent Reform: Improvement or Continuing Calamity?,” Mises Daily, Sep. 23, 2011; I discussed the AIA in further detail in The American Invents Act and Patent Reform: The Good, the Meh, and the Ugly) (audio and slides).
From readwrite play: 5 Absurd Copyright Takedowns That Make The Law Look Outdated. But it’s not “outdated”; it’s immoral and unjust. These are just examples to illustrate that. Whenever you have unjust, non-objective law, you will have bad consequences.
As I noted in Types of Intellectual Property, patent and copyright are not the only forms of IP, though they are the two worst; there are also trademarks and trade secrets, in addition to reputation/defamation law, and also the right of publicity and the somewhat related right against “invasion of privacy.” For a recent example of the latter, see this post by Evan Brown of Internet Cases:
Seventh Circuit tosses right of publicity case against Joan Rivers
By Evan Brown (@internetcases) | Posted January 18th, 2013Bogie v. Rosenberg, — F.3d —, 2013 WL 174113 (7th Cir. 2013)
The Seventh Circuit has held it was not an invasion of privacy, nor a misappropriation of plaintiff’s right of publicity, to include a video clip of a 16-second conversation between plaintiff and comedian Joan Rivers filmed backstage. These claims failed under Wisconsin law.
Someone filmed plaintiff having a conversation with Joan Rivers about the comments a heckler made in the just-concluded show. The producers of a documentary about Rivers included the clip in their work. The clip comprised 0.3 percent of the entire work.
Plaintiff sued, alleging claims under Wisconsin law for invasion of privacy and misappropriation of her right of publicity. The district court dismissed her claims for failure to state a claim. The Seventh Circuit affirmed.
In Classifying Patent and Copyright Law as ‘Property’: So What?, I noted that some libertarian proponents of IP, like Richard Epstein and Adam Mossoff, try to defend IP by arguing that it “can” be treated like property by a legal system. As I explain there, it is not really relevant whether it “can” or not. Libertarians should not be legal positivists: the fact that a given thing is or can be law is not an argument that it is justified. And in fact, IP is not similar to property rights in scarce resources, as noted by legal scholars such as Tom Bell, Peter Menell, and Wendy Gordon.
The fundamental differences between IP and normal property is also recognized in a recent article by Avihay Dorfman & Assaf Jacob, “Copyright as Tort,” 12 Theoretical Inq. L. 59 (2011) [h/t Gary Chartier]
In these pages we seek to integrate two claims. First, we argue that, taken to their logical conclusions, the considerations that support a strict form of protection for tangible property rights do not call for a similar form of protection when applied to the case of copyright. More dramatically, these considerations demand, on pain of glaring inconsistency, a substantially weaker protection for copyright. In pursuing this claim, we show that the form of protecting property rights (including rights in tangibles) is, to an important extent, a feature of certain normal, though contingent, facts about the human world. Second, the normative question concerning the selection of a desirable protection for creative works is most naturally pursued from a tort law perspective, in part because the normative structure of copyright law simply is that of tort law.
See also Patent Lawyers Who Don’t Toe the Line Should Be Punished!, discussing Michael Davis’s dissection of the tactic of trying to justify patents by equating it with real property, a tactic he calls the “trump of property.”
***
Update: The absurdity of the notion that IP rights are similar to normal property rights can also be seen in the discussions in Peter Drahos, A Philosophy of Intellectual Property (Ashgate, 1996), pp. 16–19 et pass., and Alexander Peukert, A Critique of the Ontology of Intellectual Property Law, Gill Mertens, trans. (Cambridge University Press, 2021), p. 101 et pass.
For all the IP dupes out there who think patent copyright are necessary to protect the “little guy” against big companies…. see this boingboing post… maybe one of these days Cory Doctorow will actually oppose all copyright, not just want to reform it.
School system seeks copyright ownership of students’ work in Maryland
Xeni Jardin at 7:39 am Sun, Feb 3
It’s as if they lifted the plot right out of a Cory Doctorow novel. In Maryland, the Prince George’s County Board of Education is considering a proposal that would allow the school system to copyright ownership of all work created by students and teachers. The sweeping intellectual property grab could mean that anything from a drawing to an app to a lesson plan would become the property of the school system, not the creator.
From Ovetta Wiggins’ piece in the Washington Post:
The proposal is part of a broader policy the board is reviewing that would provide guidelines for the “use and creation” of materials developed by employees and students. The boards’s staff recommended the policy largely to address the increased use of technology in the classroom.Board Chair Verjeana M. Jacobs (District 5) said she and Vice Chair Carolyn M. Boston (District 6) attended an Apple presentation and learned how teachers can use apps to create new curricula. The proposal was designed to make it clear who owns teacher-developed curricula created while using apps on iPads that are school property, Jacobs said.
It’s not unusual for a company to hold the rights to an employee’s work, copyright policy experts said. But the Prince George’s policy goes a step further by saying that work created for the school by employees during their own time and using their own materials is the school system’s property.
Read the rest.It seems that the idea here is to protect possible revenue that could come from “the growing secondary online market for teacher lesson plans,” or from software or other internet-based applications and services that might be developed within the classroom, but have greater revenue potential in secondary sales outside the classroom.
(Image: Shutterstock)
From my Kinsella on Liberty podcast:
KOL010 | Decline to State Aftershow: Q&A
by STEPHAN KINSELLA on FEBRUARY 2, 2013
I appeared recently on Decline to State, discussing Locke, property rights, intellectual property, anarchy, and so on; see KOL009. I also participated in the Aftershow. From their description:
Show #39.1: Aftershow for January 23 2013
Stephan Kinsella joins us for the aftershow. He answers some listener questions, talks about dispute resolution and contract, and shares his many insights into the liberty movement at large. Enjoy this special bonus content, everyone!
Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 40:55 — 28.1MB) | Embed
KOL009 | Decline to State Interview: Intellectual Property, Anarchy
by STEPHAN KINSELLA on FEBRUARY 2, 2013
I appeared recently on Decline to State, discussing Locke, property rights, intellectual property, anarchy, and so on. From their description:
Show #39: January 23 2013 with Stephan Kinsella — by The Decline to State team — last modified Jan 29, 2013 02:15 PM
The Decline to State team sits down with patent lawyer and libertarian author Stephan Kinsella. We delve deep into the roots of property rights – where do they come from? Was Locke wrong? Why is intellectual property fundamentally different from normal property? How long does it take Decline to State to bring up bitcoins? Listen to find out answers to these perplexing questions!
The Aftershow appears in KOL010.
There is no denying that patent trolls—or “non-practicing entities”, companies that assert patents that do not cover any products they sell—impose large costs on the economy. See “Patent Trolls” Cost Productive Companies $29 Billion in 2011, Stall Innovation, and Hurt Small Businesses and Patent Trolls Cost The Economy Half A Trillion Dollars since 1990. But as bad as trolls are, they are not as bad as “practicing entities”—companies whose patents do cover their products. (See Patent Trolls Are Preferable to “Practicing Entities”.) You see, patent trolls don’t want to stop competition, unlike, say, Apple in the smartphone wars trying to quash Samsung’s competing products. They only want to “take a taste,” as mafioso might say, or “wet their beak” a little. Patent trolls are analogous to a polite mafia extorter, or Lysander Spooner’s highwayman, who does not pretend he is helping you and, after taking his cut, largely leaves you alone. But practicing entities are more like the state: just as the state outlaws all geographic competitors, so companies holding patents on their products try to use them to outlaw their competitors: they seek court injunctions that literally prevent their competitors from competing, unlike trolls, who just demand a small toll.
Jeff Tucker used the “wet my beak” analogy in his recent article The Patent Bubble and Its End, where he says:
the trolls may not be as bad as conventional patent practice. At least the trolls don’t try to shut you down and cartelize the economy. They just want to get their beak wet. Once that happens, you are free to go about your business. This is one reason they have been so successful.
This is a nod to The Godfather II:
Don Fanucci: Young man, I hear you and your friends are stealing goods. But you don’t even send a dress to my house. No respect! You know I’ve got three daughters. This is my neighborhood. You and your friends should show me some respect. You should let me wet my beak a little. I hear you and your friends cleared $600 each. Give me $200 each, for your own protection. And I’ll forget the insult. You young punks have to learn to respect a man like me! Otherwise the cops will come to your house. And your family will be ruined. Of course, if I’m wrong about how much you stole, I’ll take a little less. And by less, I only mean – a hundred bucks less. Now don’t refuse me. Understand, paisan? Understand, paisan?… Tell your friends I don’t want a lot. Just enough to wet my beak. Don’t be afraid to tell them!
See also Hsieh and Mossoff on IP and Sewing Machines:
the fact remains that lawsuits are often no more than an invitation to negotiation. “Oftentimes the way a party signals to another party in one’s industry, ‘I’m serious about this–you need to speak with me,’ is by filing a lawsuit,” says Mossoff.
An “invitation to negotiation”! How polite!
See also “Investment Grade Patents are not for Rent Seeking … They are for business negotiations”.
Make no mistake; I am all in favor of eliminating trolls. I would love to see a working model or working requirement added to patent law, as I suggested in How to Improve Patent, Copyright, and Trademark Law.1 But it would not get at the heart of the problem. Even if you get rid of trolls, software patents, even if you improve the “quality” of the prior art or PTO examination process—still, we would be left with: companies that have products covered by high-quality, unassailable patents. And guess what they would use these patents for? To squash competition. Worse: the larger companies that emerge and that have large product and patent portfolios would largely leave each other alone and/or sue and settle, resulting in increasingly oligopolized industries. Small companies and independent inventors are able to pay some modest fee to “wet the beak” of a patent troll—the patent troll does not want to kill his victims, only suck a bit of their blood, after all—but they would not have the defensive patent warchests needed to stave off patent lawsuits by competitors. They would have no patent countersuit to hit them back with, unlike, say, Apple vs. Samsung or Motorola or El Goog.
So, sure, get rid of patent trolls. Get rid of software patents. Get rid of “junk” patents. But then you are left with “high quality” patents that large companies can use to erect barriers to entry and quell competition. Hurrah. But give me mafioso and patent trolls, over the state and “practicing entities” any day.
The Center for the Study of Innovative Freedom (C4SIF) is dedicated to building public awareness of the manner in which so-called “intellectual property” (IP) laws and policies impede innovation, creativity, communication, learning, knowledge, emulation, and information sharing. We are for property rights, free markets, competition, commerce, cooperation, and the voluntary sharing of knowledge, and oppose IP laws, which systematically impede or hamper innovation. IP law should be completely and immediately abolished.
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