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“To Steal a Book is an Elegant Offense”—Chinese saying

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?).

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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!

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The Upcoming “Patent Cliff”

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).

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5 Absurd Copyright Takedowns That Make The Law Look Outdated

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.

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Kinsella vs. Obama on IP Cartoon

Funny cartoon from the Facebook Spontaneous Order Society group.

kinsella-obama cartoon

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Another form of IP: publicity and “privacy” rights

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, 2013

Bogie 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.

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Yet more disanalogies between copyright and real property

Related:

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.

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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

 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)

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KOL009 & 010: Decline to State interview on IP and Anarchy

From my Kinsella on Liberty podcast:

KOL010 | Decline to State Aftershow: Q&A

by STEPHAN KINSELLA on FEBRUARY 2, 2013

in INTELLECTUAL PROPERTY

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!

Play

Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 40:55 — 28.1MB) | Embed

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.

 

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Patent trolls as mafioso (and that’s a compliment)

[From my Webnote series]

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.

  1. See my grok conversation about the working requirement for Louisiana mineral servitudes. [↩]
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As I noted in The tepid mainstream “defenses” of Aaron Swartz, patents impose hundreds of billions of dollars of cost on the economy and impede and distort innovation and competition; patent literally kill people (millions of people have died from AIDS in Africa because Big Pharma and the US have blocked generic drugs in the name of patents; by making cars less safe; by denying lifesaving drugs to people with Fabry disease); patents even impose censorship, and are threatening the entire industry of podcasting; patents give rise to free trade restrictions by blocking drug reimportation.

Update: see also Why Chemotherapy That Costs $70,000 in the U.S. Costs $2,500 in India.

Update: Ebola Vaccine Delay May Be Due To An Intellectual Property Dispute (2014). Also: see here regarding patent-related shortages of the Anthrax drug Cipro during the Anthrax scare a few years ago.

For more elaboration on the AIDS issue noted above, see this Democracy Now post. Makes me think we ought to move IP up a notch or so on the list of bad state laws (Where does IP Rank Among the Worst State Laws?).

“Fire in the Blood”: Millions Die in Africa After Big Pharma Blocks Imports of Generic AIDS Drugs

The new documentary, “Fire in the Blood,” examines how millions have died from AIDS because big pharmaceutical companies and the United States have refused to allow developing nations to import life-saving generic drugs. The problem continues today as the World Trade Organization continues to block the importation of generic drugs in many countries because of a trade deal known as the TRIPS Agreement. We’re joined by the film’s director, Dylan Mohan Gray, and Ugandan AIDS doctor Peter Mugyenyi, who was arrested for trying to import generic drugs, and is recognized as one of the world’s foremost specialists and researchers in the field of HIV/AIDS.

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Kinsella vs. Wenzel on IP

Bob Wenzel and I have agreed to have a joint podcast debate-discussion about IP. We discussed this over a week ago. I thought we would do it sooner, but Wenzel says he needs until April, so we are planning to do it April 1, for podcast release by April 7 or so.

[Update: see

]

For background: Wenzel is an Austro-libertarian (I think) but one of the dwindling number who still supports some form of IP. For previous posts about all this, see:

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Mark Cuban’s Proposals to Improve Patent Law

As I noted in The tepid mainstream “defenses” of Aaron Swartz, the patent system is imposing devastating costs on life, property, and liberty:

Patents impose hundreds of billions of dollars of cost on the economy and impede and distort innovation and competition; patent literally kill people (millions of people have died from AIDS in Africa because Big Pharma and the US have blocked generic drugs in the name of patents; by making cars less safe; by denying lifesaving drugs to people with Fabry disease); patents even impose censorship, and are threatening the entire industry of podcasting; patents give rise to free trade restrictions by blocking drug reimportation.

Most people are bamboozled by assurances from bespectacled authorities that we “need” such laws, but not everyone falls for their propaganda. Brilliant entrepreneur Mark Cuban sees through this nonsense; see my previous posts Mark Cuban Bashes Patents on Shark Tank;  Mark Cuban Funds EFF’s New ‘Mark Cuban Chair To Eliminate Stupid Patents’; Mark Cuban: Patent law is killing jobs.

In Mark Cuban’s Awesome Justification For Endowing A Chair To ‘Eliminate Stupid Patents’, Cuban proposes some changes to patent law. Every one of these is a good idea, each of which I have proposed before. See, e.g., my post

How to Improve Patent, Copyright, and Trademark Law, which suggests the following changes to patent law (the ones Cuban also favors are bolded):

  • Reduce the Patent Term
  • Remove Patent Injunctions/Provide Compulsory Royalties
  • Add a Royalty Cap/Safe Harbor
  • Reduce the Scope of Patentable Subject Matter [Cuban: no software or design patents]
  • Provide for Prior-Use and Independent-Inventor Defenses
  • Instantly Publish All Patent Applications
  • Eliminate Enhanced Damages
  • Add a Working/Reduction to Practice Requirement
  • Provide for Advisory Opinion Panels
  • Losing Patentee Pays
  • Expand Right to Seek Declaratory Judgments
  • Exclude IP from Trade Negotiations
  • Increase the threshold for obtaining a patent
  • Increase patent filing fees to make it more difficult to obtain a patent
  • Make it easier to challenge a patent’s validity at all stages
  • Require patent applicants to specify exactly what part of their claimed invention is new and what part is “old” (e.g., by the use of European-style “characterized in that “claims)
  • Require patent applicants to do a search and provide an analysis showing why their claimed invention is new and nonobvious (patent attorneys really hate this one)
  • Limit the number of claims
  • Limit the number of continuation applications
  • Remove the presumption of validity that issued patents enjoy
  • Apportion damages to be proportional to the value of the patent

Cuban also suggests getting rid of software patents altogether, which I of course also favor, though I am skeptical of the ability to do this so long as method (process) patents are permitted. He is also in favor of eliminating design patents, which I also agree with.

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Excellent piece by Jeff Tucker from the LFB blog. For related discussion, see my posts:

Does Creativity Alone Create a Special Entitlement?

 · 

A discussion we had last night on Adam V. The Man — Stefan Molyneux and I were guests — kept returning to an idea that we never really had time or space to take on directly, until it was briefly touched on at the end.

The more I think about this, much whole question of intellectual property rights seems to turn on this idea that we own what we create. That sounds very plausible at first. When people celebrate this idea, they talk about the great sculpture who makes a majestic piece of art out of stone, the composer of a symphony, or the lowly woodworker who makes a bench in his garage. They are said to be owners of something new.

Let’s look at a more mundane example. I’m making brownies using a conventional recipe and throw in a dash of bourbon. They turn out to be great. I call them Bourbon Brownies. What do I own in this case? I own those brownies. Why? Because I made them out of ingredients that I own. Because I created them, am I entitled to speak of having created something new that I own? Perhaps in a metaphorical sense. But nothing grants me the special right to a unique ownership right to my create that somehow allows me to extract money from anyone else in the world who adds bourbon to brownies (unless, of course, I appeal to a government bureaucracy to make it possible). I own what I own — the physical brownies I took out of the oven — and nothing more.

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