Networking technologies

Thomas L. Knapp
It’s never really possible to understand all of a person’s problems or how those problems might play into the decision to take his or her own life, but it’s a good bet that the 35-year prison sentence and $1 million fine hanging over Aaron Swartz’s head played a significant role in his choice.
“How,” John Kerry asked a committee of the US Senate (to which he himself would later be elected) in 1971, “do you ask a man to be the last man to die for a mistake?”
That question was among the first that came to mind last week when I heard that Swartz had hanged himself in his Brooklyn apartment.
Swartz was 26 and had already lived a life packed with accomplishments, from co-authoring the RSS standard (the primary tool for syndicating web content) at 14 to founding Infogami, which later merged into the popular Reddit social site, to co-founding the Internet freedom organization Demand Progress.
The threatened prison sentence and fine emanated from his attempt to fulfill a non-profit organization’s own stated mission of “helping the academic community take full advantage of rapidly advancing information and networking technologies”: He downloaded four million scholarly articles from JSTOR via an MIT account with the intention of making them universally available via P2P technology.
For this, he was hounded to his death by US Attorney Carmen Ortiz and Assistant US Attorneys Stephen P. Heymann and Scott L. Garland, even though JSTOR itself declined to pursue civil litigation and has subsequently made millions of those articles publicly available.
I sincerely hope that Swartz will go down in history as the last casualty of the war over “intellectual property” – a 300-year war that, or all practical purposes, ended years ago in triumph for the forces of freedom and a total rout of those who rely, for their fortunes, on the power of the state to extract rent on people’s use of their own minds and bodies.
Since England’s “Statute of Anne” in 1710, the rentiers have been fighting increasingly dubious battles to maintain and profit from the fiction of “intellectual property.”
Even at a time when printing presses were rare and electronic media non-existent, enforcement was impossible. The best they could hope for was to discourage copying by “making an example” of a few of the most prominent scofflaws.
The dawn of the Internet Age was the Appomattox of the “intellectual property” wars. The equipment for copying data and channels for distribution of that data are now cheaply and globally available. They represent a nearly trivial investment in “advanced” nations, and a doable investment even in the “Third World.”
The persecutions and prosecutions of “intellectual property” scofflaws like Jammie Thomas and distribution innovators like Aaron Swartz don’t even rise to the level of rearguard actions or last-ditch measures in this war.
They’re more along the lines of John Wilkes Booth’s assassination of Abraham Lincoln after Lee’s surrender, or the threatened “werewolf” attacks in occupied Germany at the end of World War II. They will not and cannot affect the outcome. They’re just murderous tantrums in lieu of facing reality.
Copyright. Is. Over. And patent is on its last legs. The old media companies’ only chance of survival is to give up their failed state-created monopolies and protection rackets, and figure out how to generate profits through voluntary trade instead.

(Thomas L. Knapp is Senior News Analyst at the Center for a Stateless Society.)

From the EFF:

Obama Calls for Patent Reform to Topple Trolls

In a welcome turn of events, President Barack Obama spoke directly to the patent troll problem and the need for more comprehensive patent reform yesterday in a “Fireside Hangout” — a live question and answer session hosted in a Google+ hangout. The President was responding to a question by the prominent electrical engineer and entrepreneur Limor “Ladyada” Fried, who in 2009 won an EFF Pioneer Award for her work with free software and open-source hardware.

Obama acknowledged that the much-touted patent reforms that came in his first term “only went about halfway to where we need to go.” Specifically, he describes patent trolls as “a classic example,” of the problem, and that “they don’t actually produce anything themselves.”

Read more>>

Not sure what is “welcome” about this. Trolls cause billions of dollars of damage (Patent trolls as mafioso (and that’s a compliment)), but they are just a red herring. The problem is not that they don’t produce anything. And in fact they are not as bad as people who do produce things since they just want to wet their beak. Then they go away happy. Your competitor who has a patent on his product wants to use it to stop you from competing. He doesn’t just want to wet his beak. The problem is good patents, not bad patents.

From Infoworld:

Save Silicon Valley — abolish patents now

Despite attempts at reform, the patent system is such a mess that the only way to save it is to destroy it

By Bill Snyder | InfoWorld 

Remember Jonathan Swift’s “A Modest Proposal“? Well, two very serious guys — economists at the Federal Reserve Bank in St. Louis — have a modest proposal of their own: Abolish the U.S. patent system. But unlike Swift, who sarcastically advocated the consumption of Irish babies, these men are not joking.

“Our preferred policy solution is to abolish patents entirely,” Michele Boldrin and David K. Levine wrote in a recently published paper. That statement, of course, flies in the face of the conventional wisdom that patents foster innovation and improve productivity. Both truisms, they say, are wrong. In fact, patents have a “negative effect on innovation,” they say.

[ Simon Phipps tells it like it is: Why software patents are evil. | Stay ahead of the key tech business news with InfoWorld’s Today’s Headlines: First Look newsletter. | ReadBill Snyder’s Tech’s Bottom Line blog for what the key business trends mean to you. ]

Obviously, this is awfully radical, but it’s worth noting that 18 months after the largest patent reform legislation in decades — the America Invents Act — was signed by President Barack Obama, patent litigation has continued to increase. There are some technical reasons for that, but the bottom line is clear: The act hasn’t made an appreciable difference.

Meanwhile, patent trolls continue their work, accumulating more and more patents they’ll never use for anything constructive and suing anyone who does. Companies like Apple and Samsung waste tens of millions of dollars on ultimately fruitless litigation: Does anyone really think that a rounded corner is an idea that should be covered by a patent? And giants like Google and Microsoft waste billions acquiring a defensive portfolio of patents. With the possible exception of the pharmaceutical industry, no sector of the economy is more embroiled in the patent mess than information technology.

What a waste.

First-mover advantage, not patents, is decisive
What creates success in the market: Getting there first with a great product or a patent? It’s the former, argue Boldrin and Levine. Apple, for example, launched the first iPhone in June 2007, and no serious competitor emerged until the HTC Dream came to market in October 2008. By 2010, 25 million iPhones had been sold, compared to 7 million Android smartphones.

It wasn’t Apple’s patent portfolio that led to its success; it was innovation and the advantage of being first to market. It’s not at all clear, Boldrin and Levine argue, that Apple’s patent portfolio slowed the competition very much.

Richard Posner, the federal judge who presided over the patent fight between Apple and Motorola Mobility, makes a similar argument. “When you are dealing with products that have very short lives, you often don’t need patents because by the time competitors wise up, you’ve moved on,” Posner said in an interview with the New York Times. Indeed, in such industries, patents — which are primarily intended to encourage innovation — have the exact opposite effect and discourage innovation, he added.

Read more>>

Yes, “we” temporarily killed SOPA. But now that the state has offed one of SOPA’s opponents, Aaron Swartz, maybe they can resume the march to ratchet up IP protections at the behest of Hollywood and the music industry. SOPA is just a drop in the bucket; see my previous post Death by Copyright-IP Fascist Police State Acronym, where I mentioned, inter alia (no offense, engineers) the looming ACTA (Anti-Counterfeiting Trade Agreement) and TPP (Trans-Pacific Partnership), the latter of which is being pushed by the  entertainment industry “to get SOPA-like laws introduced around the globe.” And just SOPA is just another incarnation or variation of related acts, like the  PRO-IP Act of 2008; the corresponding Senate bill, the PROTECT IP Act (PIPA); and others like the Online Protection and Enforcement of Digital Trade Act (OPEN), so the TPP is morphing into the Transatlantic Trade and Investment Partnership (see Obama Bid for Europe Trade Pact Stirs Hope on Both Sides). Like NAFTA, which pretended to be a free trade agreement (when you could do this in a paragraph instead of thousands of pages), the TTIP will doubtless attempt to strongarm other countries into ratcheting up patent and copyright protection, as the US has done successfully for over a century now (IP Imperialism).

It’s confusing, I know. But if they’re for it, I’m a’gin it.

Amidst all the flap about Ron Paul trying to take control of ronpaul.com through the ICANN dispute resolution procedures, an interesting argument has surfaced: namely, that Ron Paul’s name is his “intellectual property,” and he is within his (natural, libertarian) rights to control its use.

Most arguments for “intellectual property” center on the act of creation, and the rights of the creator to his work. I don’t see how those can possibly apply here: the name “Ron Paul” was not created by Ron Paul. If anything, his parents are the “authors” of that name; but it must be acknowledged that they conformed to a social convention by giving him the surname “Paul”. At most, they attached “Ronald Ernest,” and neither of these is a particularly unusual name. Not even unusual connected to “Paul” — a glance at the telephone directory reveals over 100 Ron Pauls, and 92 Ernest Pauls.So, we must ask what it means to “own” your name. Can “the” Ron Paul use his name to identify himself? Certainly. No one has interfered with that.Can “the” Ron Paul control the use of his name so that others may not use it? Certainly not! Ron Paul has no right to tell other parents surnamed Paul that they may not name their child “Ron.” And he has no right to sue the other 100+ Ron Pauls in the United States, telling them that they may not use that name.Here in a nutshell is the distinction between “use” and “control,” a distinction which many “intellectual property” advocates tend to blur. Ron Paul owns his name in the sense that he may use it as he sees fit — for his medical practice, for his political campaigns, or even to market the Ron Paul Supercharged Dildo if that is his fancy. And no other Ron Paul has the right to stop him, as embarassing as it might be for them.But Ron Paul does not own his name in the sense that he may exclude others from using it. If, say, Ron Paul in Minnesota decides to enter the sexual-accessories business, Ron Paul the ex-congressman has no right to stop him from using his own name.Trademark law is largely an attempt to force the rules and limitations of tangible property (exclusive use) onto intangible constructs (like a name). And, as Ron Paul has nicely illustrated for us, those rules don’t fit. To the extent that “property” means “control” or “exclusion,” then no, a name cannot be property.

[WendyMcElroy crosspost

Charles Johnson (aka Rad Geek) has a great sally against copyright up at his site (see below). Johnson, like most of the libertarian left (along with the Austrians and anarchos), has been consistently great on IP for a long time now (unlike the minarchists, Randians and utilitarians). E.g. see his “Patents Kill” (I) and “Patents Kill“ (II), and “Libertarians for Protectionism” (1, 2, 3). In this notice he explains that he used to try to use “copyleft” but he now declares that the content on his site is “free content”. He has had enough of trying to issue licenses under the current statist copyright system.

I hear him. I put a CC-BY notice on my own site, and on Libertarian Papers, and on a group blog I participate in, The Libertarian Standard. That means that anyone is free to use the content as long as they give attribution. This is the least restrictive of the CC licenses—I don’t like -ND or -SA or -NC. Why? ND means no derivative works are permitted. Screw that. SA means copyleft or share-alike; it means you can’t use my copyrighted work unless you slap a -SA prohibition on it. This means your article could not be put into an anthology published by a normal publisher, which uses normal copyright terms. Why restrict ideas? Let them include my article as a chapter in their  book if they want. And NC is non-commercial. What is wrong with someone making a profit? And anyway, what is commercial? If I have a site like this one which has some google ads, and I get more traffic from more hits, and I get more hits because I have better (sometimes reposted) content, then I am making a profit from the reproduction of others’ works. Is that “commercial”? I dunno. Who knows? The gubmint courts? Johnson says “you don’t need to ask permission.” I’m afraid this might be wrong. Some people do need to ask permission, because the copyright holder has the right to deny it. Making an informal statement on a website that “you don’t need my permission” doesn’t change this positive legal fact, as far as I can tell. [continue reading…]

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 on Tuesday February 05, @08:03AM
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!

• “Intellectual Freedom and Learning Versus Patent and Copyright” (esp. the section “Scarcity, the Free Market, and Abundance”)
• “Goods, Scarce and Nonscarce” (with Jeff Tucker)
  
• “Why ‘Intellectual Property’ is not Genuine Property”
• Intellectual Nonsense: Fallacious Arguments for IP (Libertopia 2012) (transcription in comment)
• The Death Throes of Pro-IP Libertarianism
• “IP and Artificial Scarcity” [archived comments])

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!