• J.P. Chandler’s Legal Foundations of a Free Society
• Russell Madden’s “The Death Throes of Pro-IP Libertarianism”

Update: See Are anti-IP patent attorneys hypocrites?, collecting various posts about this topic.

***

A Romanian translation of my monograph Against Intellectual Property, Împotriva Proprietăţii Intelectuale, was recently published. It was with my blessing, but my permission was not needed, since I had released it under a Creative Commons-Attribution Only (CC-BY) license. I would release it under CC0 if this was possible and legally effective. But it’s not. (See Let’s Make Copyright Opt-OUT; Copyright is very sticky!)

Quite often some IP proponent will try the smartass retort, “Oh yeah? Well if you don’t believe in copyright I guess you won’t mind if I slap my name on your book and make a million bucks selling it, hunh?!” I mean, if the book would sell that well, why haven’t I made a million on it…. Why does the pirate think he can profit where I couldn’t? These retorts are never serious, and never coherent. Some of them imply the author is a hypocrite for merely having a copyright in his work, even though it’s automatic and impossible to get rid of. Some of them imply it’s hypocritical even to sell one’s book if one does not believe in copyright, even if the author doesn’t mind others copying it. They seem to think that if they just make this challenge, they can prove that copyright is justified. It’s bizarre. Others argue that I’m a hypocrite because I’m a patent lawyer, and oppose IP—and that if N. Stephan Kinsella is a hypocrite, why, that proves that IP is valid! QED! (See Patent Lawyers Who Don’t Toe the Line Should Be Punished!; Rothbard on Lawyers, Accountants, Locks and Safes–and patent lawyers?; Are anti-IP patent attorneys hypocrites?; An Anti-Patent Patent Attorney? Oh my Gawd!; The Most Libertarian IP Work.)

The latest example of the smart-ass approach involves the aforementioned Romanian translation. Someone took the translation, stripped off my name, and reposted it on another site, with an Intel-Inside like logo saying “Commie Inside.” Below is the first part of it, with automatic translation from Google Translate:

Against intellectual property

Today I translated this pamphlet in support of communism. You can contact me at the address [email protected] for account details where you can make cash donations (fiat), the physical address where you can send donations and more money (gold), or the destination bitcoin 48NDR15end1glt6flnXfty2isd3LZw4jmK2saQ, noting that when bitcoin system will be broken and their infinite replication will be possible, funds will return to your property (to everyone), obviously the quotations bitcoin today (12/30/2012). Text can be purchased in physical form extremely rare autographed poster for $ 100 (one hundred) RON (edition 2012), Euro, U.S. Dollars $ $ $, Swiss francs or gold grams choice, do not offer credit . I thank Karl Marx brother Groucho idea and for a sense of humor. This text is original.

He seems to think he will anger me by taking my name off, by asking for donations, by calling me a commie, and by dishonestly stating that his “text is original.” Why would I care? Do as you please, Mr. Pro-IP Romanian. I’m happy to call your bluff. I hope you make some money off of this, but I doubt you will. All you did was impose a cost on yourself (time, effort) for no purpose whatsoever, since you made no point at all, and put forth no coherent defense of IP whatsoever. If you are trying to show what horrible things would happen in a copyright-free world … you failed, because this harms no one.

This is not the first time something similar has happened. For example, as I noted in Russell Madden’s “The Death Throes of Pro-IP Libertarianism”, [continue reading…]

Ed. note: Usually liability for copyright is “direct”—as a result of actions by a person that amount to copyright infringement. There are also types of “secondary” liability, such as “contributory” or “vicarious” infringement. Under the doctrine of contributory infringement, “One who knowingly induces, causes or materially contributes to copyright infringement, by another but who has not committed or participated in the infringing acts him or herself, may be held liable as a contributory infringer if he or she had knowledge, or reason to know, of the infringement.” As for vicarious liability: “A person may be held liable for the infringing acts committed by another if he or she had the right and ability to control the infringing activities and had a direct financial interest in such activities.”

Ms. McElroy’s article below discusses an attempt to expand copyright liability by adding a new type of “secondary” liability: negligent. But as noted in an EFF article cited by McElroy, arguments for the negligence theory of copyright liability  

ignore[]  traditional theories in favor of an unprecedented claim based on negligence and a 1932 case about boats.

It’s a creative theory. It’s also wrong.

First, there is no negligence theory of copyright liability. Zip, none, nada. Only direct, vicarious and contributory (which includes inducement) ….

This theory also ignores the safe harbor provisions of the DMCA.

—Ed.

The Negligence Theory of Copyright Liability

By Wendy McElroy

A new business model has emerged from America’s litigious nature: copyright trolling. A copyright troll is someone who uses copyright law in an opportunistic manner for no other reason than to make money through lawsuits or the threat thereof. After notifying an alleged infringer of impending litigation, the troll offers to settle out of court for a sum that is often less than the cost of defending a lawsuit.

The issue of trolling is distinct from the question of whether or not protecting intellectual property (IP) is a valid function of law. Arguably, those who support the legal protection of ideas – copyright and patent – should be more alarmed than those who argue against IP. Trolls typically use an overly broad interpretation of the law to extort pre-court profits.¹ The process results in bad publicity and occasional court decisions that are unfavorable for copyright enforcers. It also provides ammunition to anti-IP advocates. They can point to trolling as a reflection of the injustice and harm caused by IP laws.

One overly broad interpretation of IP law is currently being pushed to the forefront: the negligence theory of copyright liability. [continue reading…]

1. http://www.copyright.gov/title17/92chap5.html#504. [↩]

I was a guest on Jeff Berwick’s Anarchast (ep. 51, 36 min), released today. We discussed anarchy and how such a society might be reached; the basis and origin of law and property rights and its relationship to libertarian principles, and implications for legislation versus law and the legitimacy of intellectual property; also, utilitarianism, legal positivism, scientism, and logical positivism. Description from the Anarchist site below; MP3 download. For more background on IP, see the C4SIF Resources page; on legislation vs. private law, see The (State’s) Corruption of (Private) Law.

 

[KOL187]

Anarchast Ep. 51 with Stephan Kinsella

 

Jeff Berwick in Acapulco, Mexico, talks with Stephan Kinsella in Houston, Texas

Topics include:

– Stephan explains how he became an anarchist and some of the books that pointed him in the right direction including
– The Fountainhead (http://amzn.to/VnZwSL)
– Stephan is a practicing attorney that applies his legal knowledge with his libertarian philosophy
– He believes a free law society will only come about if a majority of people agree in libertarian principles
– Law is defined as a concrete body of rules that permits a group of people that want to be able to cooperate to be able to do so
– Jeff asks if it is necessary for everyone to agree with libertarian philosophy in order to have a free society
– Stephan thinks that a majority of people already have libertarian principles but have not been educated correctly in constancy
– He is more optimistic that most because he sees more people not accepting central planning than in the past
– Jeff thinks that there could be a backlash against free market ideas during a financial collapse where the people believe capitalism is to blame
– Stephan hopes that people will slowly find the state to be irrelevant and this will bring about a free society
– Jeff thinks that there will be a financial collapse that will make this transition unpredictable
– Stephan is an expert in libertarian Intellectual Property theory
– He explains the principles of property law
– What most people think is law today is not what law would be based on in a libertarian society
– Stephan explains the problem with legal and economic positivism
– The proper libertarian view is to be opposed to making law through legislation
– The problem with intellectual property is that you are able to use the force of the government against someone who has not aggressed against you
– Stephan explains the problems with the utilitarian Intellectual property justification
– The intellectual property system forces everyone to participate even if they don’t agree with it

Stephan is doing astounding work in libertarian legal theory you can find more in formation on his sites

http://www.stephankinsella.com/

https://c4sif.org/

For more information on The Dollar Vigilante, go to http://dollarvigilante.com. For more information on Jeff Berwick’s anarchist enclave, Galt’s Gulch Chile, go to http://galtsgulchchile.com. And, for more on the anarchist enclave in Acapulco go to http://dollarvigilante.com/acacondos. Come on down and be a guest on Anarchast and live relatively free amongst other anarchists.

Source: http://financialsurvivalnetwork.com/2012/12/anarchast-ep-51-with-stephan-kinsella/?utm_source=rss&utm_medium=rss&utm_campaign=anarchast-ep-51-with-stephan-kinsella

 

 

• Stephan Kinsella, “The Title-Transfer Theory of Contract,” Papinian Press Working Paper #1 (Sep. 7, 2024)

[Update: Oddly, as called to my attention by my friend Dick Clark, LeFevre has some quasi-pro-IP comments on the copyright page of his book This Bread Is Mine, which seem incompatible with his anti-IP thoughts noted below. Not sure if his thinking changed on this, or he was just confused.]¹

I’ve noted previously the anti-IP writings of earlier libertarian and proto-libertarian thinkers, such as Benjamin Tucker² and William Leggett.³ Among more modern libertarian thinkers, some of the earliest opponents of IP included Konkin, McElroy, and Rothbard. (See my posts The Four Historical Phases of IP Abolitionism and The Origins of Libertarian IP Abolitionism.)

Robert LeFevre, in The Philosophy of Ownership (1966), also evinced great wisdom on the topic of intellectual property, though it is not without error. But there are so many great insights in this short passage, e.g. “If an idea is so precious that you do not want others to use it, perfect security is possible by refusing to discuss it,” which reminds me of Benjamin Tucker’s thoughts on IP, discussed in Wendy McElroy’s Copyright and Patent in Benjamin Tucker’s periodical Liberty:

Tucker and the other contributors to Liberty who rejected intellectual property as a natural right were not hostile to copyright or patent enforced by contract. Nor did they deny a man’s absolute right to exclusively use whatever ideas he privately held. The point at which this exclusivity was lost, however, came when the idea was communicated without the protection of contract. Tucker insisted that a man who wrote in the public realm abandoned all claim to his property just as a man who spoke publicly abandoned claim to his spoken words.

The natural-rights side contended that the law must presume something to be property so long as it was valuable. If an idea had value, then it was presumed to be property whether publicly expressed or not. By contrast, Tucker advanced a theory of abandonment. That is, if a man publicized an idea without the protection of a contract, then he was presumed to be abandoning his exclusive claim to that idea.

If a man scatters money in the street, he does not thereby formally relinquish title to it … but those who pick it up are thereafter considered the rightful owners…. Similarly a man who reproduces his writings by thousands and spreads them everywhere voluntarily abandons his right of privacy and those who read them … no more put themselves by the act under any obligation in regard to the author than those who pick up scattered money put themselves under obligations to the scatterer.

Perhaps the essence of Tucker’s approach to intellectual property was best expressed when he exclaimed, “You want your invention to yourself? Then keep it to yourself.”

LeFevre also relies on a distinction between “tangible” and “intangible” in his analysis, one which I have used myself in previous writing but now think is better expressed in terms or materiality or rivalrousness. For example, in Against Intellectual Property, I sometimes used “tangible” to indicate scarce resources that can be subject to property rights. Hardy Bouillon argues that it might be more precise to focus on the difference between material vs. non-material goods rather than tangible vs. non-tangible goods, as the touchstone of things subject to property rights. As Bouillon writes:

Though some speak exclusively of tangible and non-tangible goods, I prefer to talk of material and immaterial goods. … The point about material goods is not that they are tangible, for some are not. For instance, atoms and many other small material units are not tangible; they are identifiable only indirectly, though this does not prevent us from calling them material.⁴ [continue reading…]

1. The copyright page to that book states: “THIS BREAD IS MINE is private property.
   .
   Readers are welcome to enter and browse to their content. It is regretted that the only way open to author or publisher to designate this book as private property is through the government copyright office. Essentially, the same chore could be performed by any good insurance firm or some other free market establishment. Since none such is in existence, and since it is deemed advisable to designate this book as private property, no choice exists for author or publisher. The book must be copyrighted, or it must be placed in that twilight realm where ownership is in doubt.
   .
   Perhaps in Some future and more enlightened time authors and publishers may find a way to designate their efforts as private property without invoking the taxing powers of the government and without calling upon the police powers to hold the world at bay with the threat of violence.” [↩]
2. Copyright and Patent in Benjamin Tucker’s periodical Liberty [↩]
3. William Leggett on Intellectual Property. [↩]
4. Hardy Bouillon, “A Note on Intellectual Property and Externalities,” Mises Daily (Oct. 27, 2009), previously published in Property, Freedom and Society: Essays in Honor of Hans-Hermann Hoppe (Jörg Guido Hülsmann & Stephan Kinsella, eds., Mises Institute, 2009). [↩]

From the WSJ. Congrats, Objectivists, utilitarians, and other pro-IP libertarians. A high-tech firm is persecuted by Carnegie Mellon University. Perversely, Carnegie was represented by K&L Gates, which was founded by the father of Microsoft founder Bill Gates—it’s perverse, given the billions made and monopoly position of Microsoft which is partly a result of the copyright and patent monopolies Microsoft has, courtesy Uncle Sam (see Controls breed controls, Monopolies breed monopolies; Apple vs. Microsoft: Which Benefits more from Intellectual Property?;  Patent Cross-Licensing Creates Barriers to Entry; Google’s Schmidt on the Patent-Caused Smartphone Oligopoly; The Microsoft-Apple Gesture Oligopoly; Nortel Patents Sold for $4.5 Billion to Consortium Which Includes Apple;  other posts on Microsoft).

Jury Finds Against Marvell in Patent Case

A jury in Pittsburgh on Wednesday found that chip maker Marvell Technology GroupLtd. MRVL -10.42% should pay nearly $1.17 billion for infringing patents held by Carnegie Mellon University.

If the jury’s decision stands, the award would rank among the largest to date in a patent case.

The university sued Marvell in 2009 in U.S. District Court for the Western District of Pennsylvania, alleging that the company infringed patents covering technology associated with “noise predictive detection,” which is used in data-storage systems.

Marvell, which is based in Santa Clara, Calif., is known for chips used in data-storage applications.

Read more>>

Yes, Microsoft has patented hugging and shaking hands—well, sort of. See this Geekwire post (h/t Wendy McElroy):

Microsoft patents long-distance virtual handshakes, hugs

December 22, 2012 at 11:43 pm by Todd Bishop 17 Comments

It can be tough to stay connected over long distances. Yes, there’s phone calls, texting, Facebook, Twitter, IM, video chatting and everything else. But what if you could give virtual hugs to each other using battery-powered, Internet-enabled pillows?

Microsoft just patented that … and more.The company has been awarded a patent on “Force-feedback within telepresence” — the idea of using interactive, connected devices to bring physical interactions to long-distance communications. For example, the patent says, “Hugs, hand-shakes, grabbing documents, writing on a whiteboard, and the like can be detected so a specific feedback force response is implemented.”

Force feedback is common in video game controllers these days, and this idea of extending it to long-distance interactions isn’t new. For example, researchers from Carnegie Mellon in 2003 presented a paper (PDF) called “The Hug: An Exploration of Robotic Form For Intimate Communication.” Here is one of the scenarios they described, referencing the picture above.

“Mary lives in Chicago and her granddaughter, Chrissy, lives in Pittsburgh. They use The Hug to stay connected. One evening while sitting in her living room, Mary hears her, Hug’s melody and sees a warm glow in its belly, signalling that someone is sending her a hug. She picks up her Hug, squeezes its left paw and says “Hello.” She hears her granddaughter Chrissy respond “Hello Grandma.” As Mary and Chrissy chat, Mary strokes the back of her Hug, causing Chrissy’s Hug to vibrate softly (Figure 2). As time passes, their Hugs begin to slowly warm, radiating a comfortable heat. Once they are done chatting, Mary says goodbye, and squeezes her Hug’s right paw. The Hug plays another melody and glows, signalling that this hug has ended.”

The wording of Microsoft’s patent isn’t anywhere near that warm and cuddly, but it covers that type of thing and more. For example, the patent describes a handshake scenario: If someone on one end of the line shakes a device forcefully, that shake is felt with more force by the person holding a counterpart device on the other end of the line.

Read more>>

My Against Intellectual Property has so far been translated into Czech, Georgian, German, Italian, Portugese, and Spanish and, now, into Romanian, as Împotriva Proprietăţii Intelectuale. These are all linked at my Translations page, which includes translations of various of my publications into thirteen languages.

Yet another great piece by Rick Falkvinge:

 

The Copyright Monopoly Stands In Direct Opposition To Property Rights

 

A lot of today’s bad policy stems from the misconception that the copyright monopoly is related to property rights, an illusion peddled by the copyright industry’s own powerful lobby. The idea that the copyright monopoly would be a property right doesn’t just lack factual basis, but it is 180 degrees and one hundred per cent wrong, factually wrong. The copyright monopoly stands in direct opposition to property rights.

The copyright monopoly is a governmentally-sanctioned private monopoly. No liberal, socialist, green, capitalist, or conservative can defend those constructions from their ideology; this construction only fits corporativist and protectionist ideologies.

Allow us to illustrate with a tangible example: assume that we buy a copy of a chair. We say “a copy”, as it is automatically made from a master in the form of a digital blueprint in some sort of plant; colloquially, we’ve bought “a chair” at IKEA. We own this copy of the chair, we have our receipt here in hand. This physical object, in all its aspects, is our property. We are allowed to do a number of things with this copy of the chair:

• We can take the chair apart, and use pieces of it for new projects that we make in our workshop.
• We can look at the underlying pattern to examine how the chair is built, make an identical copy, and sell it.
• We can put out our chair on the porch and use it there, and we can charge our neighbors to use it if we like.

All of this is typical for property. These are typical actions we can all take with our property without anybody raising an eyebrow. (To counter a common but false objection to this point: while there are some monopolistic protections possible for chairs, the overwhelming majority of chairs don’t come with patent or design patent monopolies, and the everyday chair is perfectly legal to reproduce using your own parts and labor, as is the normal case with property.)

In contrast, assume that we buy a copy of a movie. We say “a copy” as the disc with the movie is automatically made from a master in the form of a digital blueprint in some sort of plant; colloquially, We’ve bought “a movie” at the gas station. We own this copy of the movie, we have our receipt here. This physical object, in all its aspects, is our property. Yet, we are notlegally allowed to do certain things with this copy of the movie:

• We are not legally allowed to remix the movie that we own and use parts of it for new projects.
• We are not legally allowed to examine the underlying bitpattern and make an identical copy on a different storage medium which is the property of somebody else, nor are we allowed to sell a copy we have produced with our own property and labor.
• We may not use our movie on the porch, and may not charge our neighbors to use it.

Somebody’s monopoly overrides our property rights and makes it illegal to use our legal property and exercise our normal property rights using our own work and labor.

The copyright monopoly is a governmentally-sanctioned private monopoly on certain forms of duplication and performance. It doesn’t just stand in opposition to property rights, but to free trade as well.

(Some people would argue that even property as such is a governmentally-sanctioned private monopoly, in order to downplay the fact that the copyright monopoly stands in opposition to property rights, but that would not be what we mean by “property” and “monopoly” as concepts. If I own an umbrella, I control that umbrella. If I have a monopoly on umbrellas, I get to control everybody else’s umbrella too, and get to call on the government to have that enforced.)

It is quite possible to argue for the copyright monopoly from a purely utilitarian, protectionist, or mercantilist perspective, but not from a “property is good” perspective: you will end up in the exact opposite conclusion. By extension, since we know that property rights are good for trade, we also deduce that the copyright monopoly is bad for trade and competition. This comes as no surprise, seeing how the copyright industry has been fighting tooth and nail against the more-efficient industries that would otherwise already have replaced them.

Update: I posted this in the comments:

Stephan Kinsella

December 24, 2012 – 13:59

“An idea cannot, by its nature, be property. This is fundamental.”

This is correct. It is literally impossible to set up a property right in nonscarce things like patterns of information, knowledge, or ideas. Laws and enforceable rights always use physical force (e.g., of the state’s goons) against scarce resources owned by other people–against their material property. A copyright “owner” can use the grant of this monopoly privilege to have the state use its goons to threaten physical force against an “infringer”–against his body (threats of imprisonment) and/or his money or other property. That is why IP rights like patent and copyright are disguised takings of property rights, redistribution of wealth from previous property owners to the IP holders: and I believe the best way to legally classify these rights is that patent and copyright should be viewed as negative servitudes over the body and/or other property of those affected by the IP right. In essence, the IP holder is given a “veto” right over how other people are permitted to use their own bodies and other owned resources. The IP holder in effect becomes a co-owner of others’ bodies and property. There is nothing inherently wrong with such an easement, if it is voluntarily negotiated by contract. But in the case of IP, there is no agreement by the person who is now burdened by the IP negative servitude; the state simply grants this right to the IP holder.

For more on this, see https://c4sif.org/2011/11/why-intellectual-property-is-not-genuine-property-adam-smith-forum-moscow/ and http://blog.mises.org/17398/intellectual-property-rights-as-negative-servitudes/

Positive developments in UK copyright law:

 

Video mash-ups and song parodies to be legalised (just as long as they are funny)

 

• Copyright law shake-up to make it easier to transfer files between devices
• iPod and e-book users will not be criminalised if copy is for personal use
• Record companies will not be able to block song parodies

By MATT CHORLEY, MAILONLINE POLITICAL EDITOR

PUBLISHED: 07:18 EST, 21 December 2012 | UPDATED: 11:29 EST, 21 December 2012

Film companies and record labels will not be able to force mash-ups and spoofs to be taken down from the internet under a major shake-up of copyright law.

Ministers have vowed to legalise parodies after countless viral hits have disappeared from sites like YouTube because multi-national firms failed to see the funny side.

It also means the creators of hits like the countless parodies of the Hitler film Downfall, Cassetteboy’s mash-ups of TV shows and the genius behind the Masterchef Synthesia (buttery biscuit base) will no longer be breaking the law by copying and editing popular TV shows.

 

Parodies of the 2004 film Downfall are now so widespread online there is even one which shows Hitler’s fury at the number of spoof versions

The shake-up, ordered by Lib Dem Vince Cable, also means the hilarious video of his boss Nick Clegg ‘singing’ his tuition fees apology would be freed from copyright control.

Read more>>

Take-away: “In essence, plant patent laws created the industrial food system that the modern food movement rightly decries.” From Slate:

Genetically Monetized Food

If the food movement really wants to improve the food supply, it needs to follow the money instead of wasting its time on labels.

By Frederick Kaufman|Posted Thursday, Dec. 20, 2012, at 9:50 AM ET

Over the past several years I have spent a great deal of time in high-security, limited-access genetic modification laboratories. While researching my latest book, I peered at glow-in-the-dark grapes (their seeds spiked with jellyfish genes), inspected attempts to create square tomatoes (a yet-to-be-decoded DNA sequence may dictate the shape of all fruit), and marveled at rice plants engineered to be immune to Asia’s deadliest rice blight. None of the GMO cornucopia I ogled is commercially available—yet. But even if these laboratory specimens never make it to the shelves, about 70 percent of processed foods in U.S. supermarkets already contain genetically modified ingredients.

Should you be concerned about the healthfulness of such foods? This question monopolized a good deal of the recent diatribes deployed in the lead-up to last month’s vote on California’s Proposition 37, which would have mandated labeling on GM foods.

But this is the wrong question.

Here’s why: GM foods’ effect on health is uncertain, but their effect on farmers, scientists, and the marketplace is clear. Some GM foods may be healthy, others not; every genetic modification is different. But every GM food becomes dangerous—not to health, but to society—when it can be patented. Right now, the driving force behind the development of new genetic crop modifications is the fact that they possess the potential to be enormously profitable, and the source of those potential profits is a seemingly innocuous bit of legal code:

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor.

That’s the gist of early American patent law (originally with the word art in place of the wordprocess)—and the reason why molecular biologists are spiking grapes with jellyfish genes and pulling all-nighters in pursuit of the square tomato. Originally, patent law applied only to nonedible inventions, but since the Plant Patent Act of 1930 was passed, genetically altered food has been subject to intellectual property protection, and the creation of new foods has become a reliable way to ensure profit streams for whoever patented them first. In 1930, genetically modified food meant apples grafted from one tree onto another, but 40 years later the statute was extended beyond the fruits of grafted saplings to plants that grow from seeds, like corn. “Utility patent” protection came later, in 1985, and expanded intellectual property rights to methods of engineering a plant, including genetic sequences inserted into a species’s genome.

The impact of these laws has been enormous. In essence, plant patent laws created the industrial food system that the modern food movement rightly decries.

Monsanto, the most reviled agricultural corporation in the world, has committed manifold ethical sins that have been widely reported in foodie media. What isn’t widely reported is that plant patent laws are the legal framework that enables these sins. It was utility patent protection that opened the door for Monsanto’s present-day global seed and insecticide portfolio, including rights to its infamous “terminator” or “suicide seed” technology (which effectively sterilizes second-generation plants and makes it not only futile but a legal violation for farmers to gather seeds for next year’s crop). Monsanto has prosecuted farmers who discover GM corn or soy sprouts growing on their land after the wind carries seeds over from neighbors’ GM fields. The basis for such ridiculous lawsuits? Plant patent laws: These farmers are inadvertently violating Monsanto’s intellectual property rights. Worst of all, Monsanto has deviously developed an insecticide technology (specifically, a weed-killer known as “Roundup,” discovered and patented by a Monsanto chemist in 1970) that works best when applied to the corporation’s patented GM seeds. Patent laws, in essence, have allowed the corporation to establish a vertical monopoly—if you want Monsanto’s high-yielding Roundup Ready seeds, you’ll need Monsanto’s Roundup insecticide; and if you buy Roundup insecticide, you’ll need Roundup Ready seeds. (Since large-scale corn and soybean farmers want the highest yields they can get, they tend to go ahead and buy both.)

The sum total effect of these actions on the global food system has been overwhelmingly negative.

Read more>>

I noted before that Obama’s patent reform law from 2011 (the America Invents Act) made almost no significant—or good—changes to patent law, despite the patent bar pretending that this was “major” or “radical” change (The American Invents Act and Patent Reform: The Good, the Meh, and the Ugly). The one good thing the law did was to broaden the prior commercial user defense, perhaps the only significant positive change in US patent law… ever. But it did not reduce patent terms or penalties, get rid of injunctions, provide an independent inventor defense (one of the reforms proposed by groups like the EFF, among others), eliminate patent trolling or software patents. And the AIA made things worse in a number of ways:

• The best mode defense has been virtually eliminated.
• The PTO can now prioritize examination of inventions of national importance or for a high fee.
• The penalties for “false marking” have been drastically reduced.

Of course, we now see patent practitioners cheering these changes. E.g., USPTO’s fast-track examination: A case in point, and America Invents Act provides patent marking relief, both from Inside Counsel. The latter article bemoans the fate of companies who lose their right to obtain infringement damages if they don’t provide notice on their products that they products are patented. After all, this is not fair—patent trolls (“non-practicing entitites”), after all, don’t have to provide such notice. So instead of arguing that maybe patent trolling should be curtailed, the natural pro-patent instinct is to argue that “practicing entities” should find it as easy to extort money from innocent victims as patent trolls do. To-wit:

Patent owners that practice their invention are at a disadvantage compared to nonproducing patentees. The patent marking statute, 35 U.S.C. § 287(a), says that patentees that make and sell patented products or authorize others to do so, may mark their patented products and put the public on notice that the product is patented. However, failure to mark a patented product made or offered for sale limits the infringement damages available to the patent owner. In the absence of patent marking, damages are recoverable only for infringement that occurs after the infringer received notice of the infringement. Thus, for patent owners that make and sell a patented product without marking it, the patent marking statute operates as a forfeiture of damages, which may be substantial depending on the duration of infringement prior to providing the infringer with notice. There is no corresponding risk of forfeiture for nonproducing patentees.

From a practical standpoint, one of the challenges many patent owners face is the manufacturing cost of changing tooling and dies when a patent issues for a product that it may have been making and selling for years. This challenge is further complicated by the fact that a product, or components or subsystems of the product, may be covered by multiple patents, each with a different expiration date. From a legal standpoint, it may not be possible to know which patent or patents are likely to be most important from an enforcement perspective and which are most critical to be included in the patent marking strategy.

The recently enacted American Invents Act (AIA) provides some relief. Patent owners are no longer required to include the patent number on the product or packaging. They can now simply include the word “patent” or “patented” or the abbreviation “pat” together with an address of a posting on the Internet that associates the patented article with the patent number. The site must be accessible to the public free of charge. As a result, patent owners can now update a web site with their products’ patent information rather than changing their manufacturing equipment each time a patent issues or expires.

The AIA also reduces the risk of exposure to false patent marking lawsuits. …

Yeah, we wouldn’t want people to suffer any costs at all from using threats of state force against their competitors. Why make it easy for potential victims to know that they might be subject to a patent lawsuit? Why penalize a company for getting the benefits of using the patent extortion monopoly but not warning the victims? Why require the patentee to disclose the best mode, when the entire idea of the patent system is the “patent bargain”: the grant by the state of a temporary monopoly privilege “in exchange” for revealing to the public information (including best mode) that would otherwise be kept as a trade secret? And notice: “Patent owners that practice their invention are at a disadvantage compared to nonproducing patentees.” Yeah, but they are not at a “disadvantage” with respect to smaller companies and victims of their extortionate patent lawsuits, now, are they? Obama: SUCH a “reformer.”

This is just great. As Mike Masnick reports on Techdirt, Mark Cuban is putting his money behind efforts to crack down on patent abuse. I’m becoming a huge fan of Cuban: he stars on ultra-capitalist Shark Tank, one of the best shows on TV, and he also gets that patent law is anti-capialist (see Mark Cuban: Patent law is killing jobs).

Mark Cuban Funds EFF’s New ‘Mark Cuban Chair To Eliminate Stupid Patents’

from the go-julie dept

Some fantastic news from EFFland, where Mark Cuban and Markus ‘Notch’ Persson have agreed togive EFF $250,000 each in order to fund its latest efforts to stop bad patents. This includes naming EFF attorney Julie Samuels “The Mark Cuban Chair to Eliminate Stupid Patents.” This is a job title that only a few people deserve and, knowing Julie, she’s one of them. Over the years, EFF has done some really great work on patents, but they’ve often seemed like a backburner issue compared to other things — so we’re excited to see what comes next.

Still another fantastic piece by Rick Falkvinge:

The Analog Letter: It’s Entirely Reasonable To Demand That Our Children Inherit The Rights Of Our Parents

COPYRIGHT MONOPOLY

Whenever pirates demand the right to send anything to anybody without being tracked, we are somehow accused of wanting things for free. That’s not true. What we demand is simpler: we demand the laws to apply equally online and offline; we demand that our children inherit the civil liberties that our parents fought, bled and often died to give to us. It’s an entirely reasonable demand.

Let’s look at the classic letter to illustrate this. The physical letter, consisting of an envelope, a folded paper with writing on it inside the envelope, and a stamp. This was what personal communication looked like in our parents’ offline world, and it was enshrined with certain civil liberties. I’m going to focus on four of them.

First, the letter was anonymous. You, and you alone, determined whether you identified yourself as sender on the outside of the envelope for the world to know, on the inside of the letter for only the recipient to know, or didn’t identify yourself at all when sending a letter. This was your prerogative.

Second, the letter was secret in transit. Nobody had the right to open all letters just to make sure they didn’t contain something illegal or immoral – or something copied, for that matter. If you were under prior suspicion of a very serious crime, your mail could be secretly opened to find evidence of that crime – but no letter would ever be opened routinely to check for new crimes.

Third, the letter was untracked. Nobody had the right – nor, indeed, the capability – to record who was communicating with whom. Nobody was able to monitor all mailboxes to see when somebody dropped a letter in it, much less the ability to identify that person and connect them to the address on the letter dropped in the mailbox. It was a fundamental right to keep your connections to yourself.

Fourth, the mailman was never responsible for the contents in the sealed letter. How could they? They were not aware of its contents, nor were they allowed to make themselves aware of its contents. Their responsibility and accountability started and ended with delivery of the packages to the address on the envelope.

This is a set of civil liberties that our parents and grandparents literally fought, bled, and sometimes even died to give us. It is entirely reasonable that they carry over to our children in the environment they communicate in, just as the rights applied to the offline world of our parents.

But when you point this out, some will protest loudly. The copyright industry, in particular. “If you allow anybody to send anything to anybody else, even anonymously, we can’t make any money!”

To this, I respond, so what?

It is the job of every entrepreneur to make money given the current constraints of society and technology. Nobody gets to dismantle civil liberties just because they can’t make money otherwise – and perhaps especially if they can’t make money otherwise.

If a particular industry can’t continue to make money the same way in the face of sustained civil liberties, they get to go out of business or start selling something else. We don’t determine what civil liberties our children get based on who can make money and who can’t; we base them on what our parents fought and bled for.

This is the heart of the file-sharing debate. I don’t care a millisecond if an obsolete distribution industry goes out of business, but I do care about the civil liberties that our children deserve to inherit.

This article has previously been published on TorrentFreak.