Reports about the new movie Atlas Shrugged: Part II indicate that it highlights Ayn Rand’s deep confusion on the whole issue of intellectual property (IP)—e.g,. from my friend Jacob Huebert.  Stephanie Murphy mentions some of the IP confusion in the film in her recent PorcTherapy podcast (at around 1:05). And Chris Bassil, of Hamsterdam Economics, in Atlas Shrugged Part II: Hank Rearden Confuses his Principles, notes:

At one point, industrial steel magnate and metal manufacturer Hank Rearden is ordered by the state to sell his Rearden metal to them, which he has up until this point been refusing to do. He is also forced to sign away his rights to the metal, so that the state can distribute its procedure to other manufacturers and it can be universally produced. At this point, Rearden accuses the agent in his office of trying to take his patents from him.

This, to me, is a philosophically complicated position. Now, Ayn Rand, despite taking a position against the government in many cases, was a huge supporter of patents and intellectual property rights. As Stephan Kinsella has pointed out here, Rand endorsed them on a number of occasions:

Patents are the heart and core of property rights.

Intellectual property is the most important field of law.

Without getting into the larger points concerning intellectual property (which Stephan Kinsella covers well here, and which I discussed briefly in the Duke University Chronicle here), I think that Rearden’s position on this is a bit contradictory. He is indignant that the state would move to deprive him of his patents, thereby also depriving him of the fruits of his labors. But isn’t that what those patents do to others? Don’t they prevent others who develop similar products from bringing them to the market? It is true that, within the context of the film, Rearden plays a heroic producer who alone seems able to keep the steel industry afloat. But this glosses over the daily considerations of intellectual property laws, which are seldom enforced on such a genuine basis.

Furthermore, Rearden’s position seems to me to be a little bit disingenuous. After all, he opposes the state’s use of force. In fact, he constantly pushes state officials to actually endorse the use of force instead of merely allowing it to be implied. At the same time, however, his patents themselves rest on just such a threat. I see this as something of a double standard.

Of course, Rand might respond that the force backing Rearden’s patent is legitimate, since, in her view, patents are themselves legitimate derivations of individual property rights. I don’t agree with this either, but that would require a much more extensive blog post to cover. For now, see my article in the Chronicle on it, and Kinsella’s book, articles, YouTube videos, or even audiobooks available for free from the Mises Institute on iTunes U.

Overall, this is why I think that Ayn Rand’s work largely functions more as a gateway to discovery of free-market ideas rather than as a truly solid foundation for them. In my opinion, much of what Rand was right about is better said by others, and there was a lot that I don’t think she was right about, either.

And as Jeff Tucker notes in his recent comments on the movie:

Of course this gets us into the Randian view of IP, that great industrial ideas — appearing out of nowhere in the minds of a few — must somehow be assigned to owners and protected by government. And sure enough, patents and copyrights as property play a major role in Atlas II, as when Hank Reardon is blackmailed into assigning his patents as a gift to the government. It’s a scene that completely overlooks that these patents themselves were actually granted by government in the first place and would not exist in the free market.

In fact, for any viewer schooled in the role of patents today, this scene actually makes the viewer less sympathetic to Reardon. For a brief moment, he actually looks like a member of the monopolist class who is dependent on government favors. Not good. This scene reinforces for me my sense that the single biggest mistake Rand made was not in her ethics, economics, or religion but in her view that ideas are property and must receive government codification.

I haven’t seen either Part I or Part II yet of the movie versions of Atlas, but none of this is surprising to me, given Rand’s completely confused IP views. Some of these IP views are of course present in her magnum opus Atlas Shrugged and could be expected to leak into the films (at least the IP issue doesn’t dominate or ruin Atlas, like it does The Fountainhead, which basically glorifies IP terrorism).  Rand’s view of IP and rights was very confused. I have referred to it as libertarian “creationism” and have criticized it, as well as her confused view of the relationship between labor, ownership, homesteading, and production (see, e.g., most recently, my recenty speech Intellectual Nonsense: Fallacious Arguments for IP (Libertopia 2012), and various blog posts on these and related fallacies and confusions, e.g. Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging’, Rand on IP, Owning “Values”, and ‘Rearrangement Rights’, Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors, and Hume on Intellectual Property and the Problematic “Labor” Metaphor. [continue reading…]

Not so fast there, kemosabe.

In a recent blog post, An argument for Intellectual Property, one “Onar Åm” triumphantly concludes “What I have done just now is to demolish the standard libertarian argument for property rights (and against IP).”

He claims, of my Against Intellectual Property monograph:

In the book [Kinsella] reviewed the various arguments for and against, and I was surprised to learn that my standard defense of intellectual property is nowhere to be seen. In fact, by the very absence of this argument I developed a completely novel argument for IP.

But this novel argument is not novel. It is just a mishmash of the standard confused arguments Randians and others have trotted out for decades, which I have responded to in depth already. In particular, the argument is based on the confused idea that labor plays a role not only in production, but in creation of property rights:

My standard response to this argument (both to Kinsella himself in a debate a few years ago and to all other libertarians who use it) is that it is not information that is the scarce resource that needs protection, but mental labor.

… creation is the source of property rights because for us our ability to create is the ultimate scarce resource in the universe! All other forms of scarcity are just derivatives of our limited ability to create.

I call this latter view libertarian “creationism” and have criticized it, as well as this confused view of the relationship between labor, ownership, homesteading, and production, many times, including, most recently, in a three-hour talk covering, fairly exhaustively, these and most other arguments I’ve heard for IP over the years: see Intellectual Nonsense: Fallacious Arguments for IP (Libertopia 2012).

And see various blog posts on these and related fallacies and confusions at Selected Supplementary Material for Against Intellectual Property, e.g.

• “Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging’,”
• “Rand on IP, Owning “Values”, and ‘Rearrangement Rights’,”
• “Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors,”
• “Hume on Intellectual Property and the Problematic “Labor” Metaphor”

Update:

Our confused interlocutor has dug his hole deeper with a followup post, Response to Kinsella. I have posted below some of my comments there, since they are now being moderated:

me:

Scarce means rivalrous–things over which there can be conflict. We make this clear over and over. You guys ignore this.

me:

The comment “life is scarce” is a nonrigorous, ambiguous, equivocation-prone metaphor. See On the Danger of Metaphors in Scientific Discourse. and On the Danger of Metaphors in Scientific Discourse. and Creation and Labor as Sources of Property Rights and the Danger of Metaphors.

Now, as Samuel Johnson said, “Sir, I have found you an argument; but I am not obliged to find you an understanding.

21/10/2012 at 09:55

@Kinsella

“And, this implies that there is a second way to own something: by contractual transfer of title from a previous owner.”

I am very good at making copies – would it be legal or illegal under libertarianism to copy a piece of paper where contractual transfer of title from a previous owner has occurred? Except, in my copy, I fill out my own name, instead of yours, Kinsella, – you paid for the contractual transfer of title from a previous owner, but now we both own it. Nobody lost anything, you still have your piece of paper, but we share your property, because I am a good copier. Where is my mistake?

Sindre

Reply

• Stephan Kinsella says:

  Your comment is awaiting moderation.

  21/10/2012 at 15:33

  Not sure I understand your question. It is not possible for two people to own the same scarce resource. You can correct me if I am wrong, but what I think you are trying to say is this:

  “If A uses some kind of deception to acquire possession of use of B’s property without B’s consent, that is some type of trespass or invasion. One way to do this would be to fake a contract or deed to the property. This means that in some cases it is impermissible to make certain copies. Therefore, libertarians cannot say that all copyright law is illegitimate.”

  If this is the argument, it is confused. I have dealt with this kind of fallacy already, in my recent talk (Intellectual Nonsense: Fallacious Arguments for IP (Libertopia 2012), slides 14-15, and other posts like “The Non-Aggression Principle as a Limit on Action, Not on Property Rights” and “IP and Aggression as Limits on Property Rights: How They Differ”). Basically the argument is incoherent (if that is the questioner’s implicit argument, which it seems to be). It is true that there are various means one can employ to commit trespass of others’ property, but this does not mean that the means employed are always ownable or, if they are, that they are owned by the actor. And even if you are in some cases prohibited from performing certain actions (like making a stabbing motion with your hand if it is holding a knife and another person is standing next to you, or making a fake copy of a deed to property or a fake driver’s license used to gain access to some else’s safety deposit box) does not mean that property rights are limited, but only that some actions are impermissible: namely, actions that invade others’ property borders. It does not imply IP. The prohibition on copying-when-it-is-used-to-violate-property-rights-in-others’-scarce-resources does not mean that the prohibitions on copying imposed by copyright are illegitimate.

  As an analogy: in some cases, a person is unable to withhold consent to others using force against his body, for example, when he is committing an act of aggression, he cannot object to the victim using defensive force against him. But that does not mean that you have no right to complain when the government taxes you. It is not a legitimate argument to say: well, how dare you complain about taxes? After all, property rights in your body are not unlimited, as the defensive force example shows!

  For this is the argument people are making, when they try to show that copyright is legitimate because property rights are not absolute or because there are *some situations* in which copying is not permissible.

Fantastic, concise explanation of the problem with patents from Sheldon Richman:

Patents Stifle Prosperity

My latest article at The Project to Restore America is “Patents Stifle Prosperity.”

As Jeff Tucker notes on the Facebook, “Good to see IP being discussed by religious thinkers. Few things seems crazier to me than the notion of a religion using the state to restrict access to its texts…”

I agree. I hope they take have some serious discussion of this issue. But given that many Catholics have been able to square their religion with their support of statolatry and war, it’s not a big surprise they can square the censorship of copyright with their obligation as Christians to spread the Word…

I note that one of the confirmed speakers is “Roberta Rosenthal Kwall, Raymond P. Niro Professor of Intellectual Property Law, DePaul University College of Law”—hmm, I wonder where she’ll land on the IP issue, pro or con? An IP law professor, and holding a chair named after the guy whose firm inspired the term “patent troll”…

Call for Papers: “Intellectual Property and Religious Thought”

Tell your friends who may be interested in participating in this! — Tom B.

+++++

CALL FOR PAPERS: “Intellectual Property and Religious Thought”

University of St. Thomas School of Law, April 5, 2013

The University of St. Thomas will hold a conference titled “Intellectual Property and Religious Thought,” on April 5, 2013, co-sponsored by the Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy and The University of St. Thomas Law Journal.  The conference will be held at the University of St. Thomas School of Law building in downtown Minneapolis.

The conference will bring together legal scholars, religious ethicists, religion scholars, and theologians for an interdisciplinary discussion of how religious themes, practices, and communities may inform and shape intellectual property law and policy.  The time is ripe for such a conversation.  The long, rich tradition of religious thought concerning property rights and obligations has only begun to be applied to the problems concerning intellectual property (IP) that are so central to the Information Age.  The foundations for analyzing these issues are deeply contested culturally, as evidenced by the warring slogans “Copying is theft” and “Intellectual property is theft.”  The Catholic Church and other religious bodies have issued brief but non-systematic statements on certain issues, such as biotechnology patents and access to patented medicines or seeds.  Underlying cases such as Bowman v. Monsanto, now before the U.S. Supreme Court, are deep debates about social justice and the ownership of artificially created but naturally replicating things (in that case, patents on seeds)—both matters to which major religions have historically spoken.  The conference and papers from it published in the University of St. Thomas Law Journal will be catalysts for this interdisciplinary conversation.

Keynote/featured speakers confirmed for the conference include (further invitations pending):

• Roberta Rosenthal Kwall, Raymond P. Niro Professor of Intellectual Property Law, DePaul University College of Law
• Paul Griffiths, Warren Professor of Catholic Theology, Duke University Divinity School
• Kevin Outterson, Associate Professor of Health Law, Bioethics, and Human Rights, Boston University School of Law
• Audrey Chapman, Joseph M. Healy, Jr. Chair in Medical Humanities and Bioethics, University of Connecticut School of Medicine

Two broad themes provide the framework for conference papers: the idea of creativity as gift, and the idea of stewardship of property as fundamental to ownership.  These are meant to be highly flexible and allow for a wide range of topics, including but not limited to:

• Creativity as a gift: its implication for particular areas in copyright, patent, or other IP laws
• Limits on patentability, of living things or natural processes, in the light of religious frameworks
• Particular moral obligations of IP rights-holders, under stewardship or other religious themes
• IP and human development in religious perspectives, under frameworks such as “the preferential option for the poor” or others
• Analyses of particular creative/innovation industries or practices under religious norms and frameworks
• The role of religious norms or communities in (a) encouraging compliance with IP rights or (b) challenging IP rights
• Religious communities’ treatment of their own IP-eligible material

Read more>>

I posted the other day my 45-minute talk at Libertopia, “Intellectual Nonsense: Fallacious Arguments for IP.” As I noted there, I only covered about a third of the material I had prepared. Today I recorded a two-hour podcast covering the remaining material. It’s all here.

From the Surprisingly Free podcast by Jerry Brito. Liebowitz’s basic argument seems to be this. Most copyright advocates think we should have a finite copyright term, selected to maximize incentives and “efficiency.” Legislators should select a long enough copyright term to incentivize creators—but not too long. According to him, “economists could hypothetically calculate the exact copyright terms necessary to incentivize creators to make new works without allowing them to capture ‘rents,’ or profits above the bare minimum necessary”. Thus, this economic approach might recommend some copyright term like 14, or 28, or 100 years, but in any case finite (as it is now).

However, we don’t do this in other areas of life or commerce, even though we could. For example, one could argue that many professions are overcompensated, since the actor gets more pay than he “needs” to be incentivized by his salary. A Michael Jordan would probably be a great basketball player at only $1M a year instead of the $10M a year he actually makes. So the excess $9M is a “rent” that “we” “allow” him to “keep.” If we were really serious about optimizing policy we would form an ideal tax system that would take away his $9M excess rent, and he would still provide the same benefits to the public, but at a lower “cost.” Yet we do not do this, for a variety of reasons. “Therefore,” we have no reason to do it in the copyright arena. “After all,” they are all just “property rights.” If it’s okay for Michael Jordan to make $10M a year, then why can’t JK Rowling make $1B a year from her copyright on her novels? Why do we want to reduce the copyright term to try to take away her “rent”? We don’t want to take away Jordan’s rent. So why take away Rowling’s? Ergo, copyright term should be perpetual.

Now Brito is more skeptical of copyright. I seem to recall him sounding more skeptical in previous podcasts (and he sounds more skeptical here http://jerrybrito.com/2012/07/25/how-copyright-is-like-solyndra/, although he seems to accept the idea that it would be okay for the state to enact copyright law if it really did lead to more creative output), but here he seems to share the empirical-utilitarian policy mindset of Liebowitz, at least to the extent that he thinks we need some copyright, but because he senses that the restrictions it imposes on others’ liberty is somehow different than those that accompany normal property rights (say, in a car), he thinks that the term should be limited. Liebowitz is more consistent. Like Galambos or Rand, he wants to take the logic of IP—of treating immaterial things as if they are scarce—to extremes. Brito senses something is wrong, but has trouble formulating a coherent criticism of Liebowitz’s approach. He seems at one point to sense that there is some difference between a law protecting your property right in your car (Liebowitz’s argument) and in a song or book, but he doesn’t have a solid propertarian-normative foundation. The right response, which Brito seems to sense but then shies away from, is that property rights in a scarce resource like a car prevent you from using someone else’s property; while copyright allows the copyright holder to prevent me from using my property (my body, my printing press, etc.) as I see fit. That is the connection that Brito almost glimpses, but backs away from. For to make this connection would require him to distance himself from the empirical approach and to have to adopt some normative principles, which seem to be regarded as “unscientific” by the utilitarian-empiricist approach so popular among academics today.

Stan Liebowitz on copyright and incentives

OCTOBER 16, 2012

Stan Liebowitz on copyright and incentives

Stan Liebowitz, Ashbel Smith Professor of Economics at the University of Texas at Dallas, discusses his paper, “Is Efficient Copyright a Reasonable Goal?” According to Leibowitz, economists could hypothetically calculate the exact copyright terms necessary to incentivize creators to make new works without allowing them to capture “rents,” or profits above the bare minimum necessary. However, he argues, efficiency might not be the best goal for copyright.

Liebowitz argues from a fairness or justice perspective that society should not favor an economically efficient copyright law, but one that treats creators of copyrighted works the same as workers in other types of industries. In other industries, he argues, workers are allowed to capture and keep rents.

Download

Read more>>

The problem here is that the patent wars are caused by state grants of patent rights in the first place. The state causes the problem, then someone with a dim understanding of statism calls for the state to solve the problem. The solution is for the state to stop granting and enforcing patents in the first place.

(See also Amazon.com’s One-Click Patent Application Allowed in Canada, noting Bezos’s call for shorter software patent terms.)

Amazon founder Jeff Bezos calls for governments to end patent wars

Exclusive: Government action could be needed to bring an end to a litany of patent lawsuits in the consumer technology market, such as those between Apple and Samsung, Amazon founder Jeff Bezos has told Metro.

So-called patent wars have raged in the smartphone and tablet era, with Apple and Samsung most consistently at loggerheads over their products.

The tech giants have had mixed results in the courtroom, however, as Apple secured a significant legal victory in the US but Samsung won comparative cases in South Korea and Japan, with many more lawsuits not yet heard.

Mr Bezos told Metro that innovation and society itself was threatened by the patent lawsuit culture.

Calling for new legislation to be introduced by national governments, he said: ‘Patents are supposed to encourage innovation and we’re starting to be in a world where they might start to stifle innovation.

‘Governments may need to look at the patent system and see if those laws need to be modified because I don’t think some of these battles are healthy for society.’

Read more: http://www.metro.co.uk/tech/915146-amazon-founder-jeff-bezos-calls-for-governments-to-end-patent-wars#ixzz29fIg3Neb

Read more>>

From Mike Masnick at Techdirt, another example of copyright madness and censorship. Wake up, libertarians who are “on the fence” about copyright:

Textbook Publisher Pearson Takes Down 1.5 Million Teacher And Student Blogs With A Single DMCA Notice

from the 38-year-old-content-in-a-5-year-old-post-equals-1.5-million-dead-blogs dept

If there’s one thing we’ve seen plenty of here at Techdirt, it’s the damage a single DMCA takedown notice can do. From shuttering a legitimate ebook lending site to removing negative reviews to destroying a user’s Flickr account to knocking a copyright attorney’s site offline, the DMCA notice continues to be the go-to weapon for copyright defenders. Collateral damage is simply shrugged at and the notices continue to fly at an ever-increasing pace.

Textbook publisher Pearson set off an unfortunate chain of events with a takedown notice issued aimed at a copy of Beck’s Hoplessness Scale posted by a teacher on one of Edublogs’ websites (You may recall Pearson from such other related copyright nonsense as The $180 Art Book With No Pictures and No Free Textbooks Ever!). The end result? Nearly 1.5 million teacher and student blogs taken offline by Edublogs’ host, ServerBeach. James Farmer at wpmu.org fills in the details.

In case you don’t already know, we’re the folks not only behind this site andWPMU DEV, but also Edublogs… the oldest and second largest WordPress Multisite setup on the web, with, as of right now 1,451,943 teacher and student blogs hosted.

And today, our hosting company, ServerBeach, to whom we pay $6,954.37 every month to host Edublogs, turned off our webservers, without notice, less than 12 hours after issuing us with a DMCA email.

Because one of our teachers, in 2007, had shared a copy of Beck’s Hopelessness Scale with his class, a 20 question list, totalling some 279 words, published in 1974, that Pearson would like you to pay $120 for.

Putting aside for a moment the fact that Pearson somehow feels that a 38-year-old questionnaire is worth $120, and the fact that the targeted post was originally published in 2007, there’s still the troubling question as to why ServerBeach felt compelled to take down 1.5 million blogs over a single DMCA notice. There’s nothing in the DMCA process that demands an entire “ecosystem” be killed off to eliminate a single “bad apple.” This sort of egregious overcompliance gives certain copyright holders all the encouragement they need to continue to abuse the DMCA takedown system.

Making this whole catastrophe even worse is the fact that Edublogs already has a system in place to deal with copyright-related complaints. As the frontline for 1.5 million blogs, Edublogs is constantly fighting off scrapers and spam blogs (splogs) who siphon off content. The notice sent to Edublogs had already been dealt with and the offending post removed, but these steps still weren’t enough.

So, yesterday, when we got a DMCA notice from our hosts, we assumed it was probably a splog, but it turned out it wasn’t, rather just a blog from back in 2007 with a teacher sharing some materials with their students…

And the link they complained about specifically is still on Google cache, so you can review it for yourself, until Pearson’s lawyers get Google to take that down… or maybe Google will get shut down themselves 😉

So we looked at it, figured that whether or not we liked it Pearson were probably correct about it, and as it hadn’t been used in the last 5 years ’splogged’ the site so that the content was no longer available and informed ServerBeach.

Clearly though that wasn’t good enough for Serverbeach who detected that we still had the file in our Varnish cache (nevermind that it was now inaccessible to anyone) and decided to shut us down without a word of warning.

Well, there actually was a “word of warning.” Farmer received the following notice that clearly states ServerBeach’s DMCA policy, which, unbelievably, entails taking entire servers offline in order to “comply” with DMCA notices. For $75,000 a year, you’d think Edublogs would be entitled to a bit more nuance.

As for Pearson, it’s a shame to see a zero-tolerance, all-uses-are-infringing attitude superseding any sort of educational benefit gained from being included in a teacher’s class materials. Taking a look at the original post (below), it appears to be no different than a teacher photocopying course materials for attending students.

Hosting it online may make the test infinitely distributable, but there’s no indication this was the teacher’s intent. One of several problems in copyright law is the fact that what appears to be fair use to the layman is usually illegal. And the unintended consequences of actions taken in good faith tends to include a ton of collateral damage — damages which usually far outweigh any perceived losses from non-commercial infringement. Because of this, hosting companies tend to prefer harming a relationship with a paying customer to finding their safe harbors under attack. For the sake of a $120 paper, ServerBeach was more than willing to drop a $75,000/year customer. Despite all the whining, copyright still has plenty of power. Too bad it’s so easily abused.

As explained in Lockergnome’s post Are Hackintosh Computers Legal? (video below), when you “buy” OS X software from Apple, you are subject to the terms of Apple’s end-user license agreement (EULA).  The EULA provides, first, that you don’t “buy” the software—you only “license” it. And that the license terms do not permit you to install the software on non-Apple hardware. Thus, if you install OS X on a non-Apple machine—making a  “Hackintosh”—you are in breach of contract and also copyright law. Thus, for hackintoshers: “Apple can bring causes of action for breach of contract, copyright infringement, violations of the Digital Millennium Copyright Act [DMCA], etc. and no one is going to want to spend the hundreds of thousands of dollars it would take to get to a jury.”

This is what you get when you have copyright law. Without copyright law not only would you not have the copyright-DMCA “teeth” to add strength to a sort of license-contract claim–so that the terms of Apple’s EULA could be enforced merely as contract claims, not as copyright infringement—but the terms of the EULA would not apply to people using pirated copies of Apple’s OS software. Imagine: Apple sells a copy of (well, licenses) OS X to person A, and restricts A from putting OS X on a non-Apple computer, by the EULA. A then leaks a copy onto some pirate site. Third parties B, C, D, etc., now copy and use and further distribute copies of OS X. These third parties never agreed to any contract with Apple, so they would not be in contract breach if they were to put OS X onto a non-Apple machine.

Which means: random person R would rather get a pirated copy than a copy from Apple–not only would it be cheaper, but it would come with less possible contract-breach liabilities.

Knowing this reality, Apple would be reluctant to impose such ridiculous terms in its EULA in the first place. They would not want to drive away potential customers and push them towards pirated copies. It would most likely simply sell the software (not merely “license” it) to users for a fair price, with no draconian conditions like “you may not use this on a non-Apple computer.”

Good piece in NYTimes, “The Patent, Used as a Sword,” by Charles Duhigg. Also check out Terry Gross’s interview of Duhigg on this topic for Fresh Air, “In Digital War, Patents Are The Weapon Of Choice” (” New York Times business reporter Charles Duhigg says that consumers and innovation are the big losers in the patent wars. “Patents have become a toll gate on the road of innovation,” he says.”).

Duhigg is obviously not a patent lawyer, since he misstates a few nuances of patent law, but his overall critique of the patent system is good, even if he shies away from pure abolitionism and principle in favor of a more incrementalist and utilitarian approach.

From Cory Doctorow at Boingboing (h/t Wendy McElroy). I can’t tell whether this is a copyright or trademark claim, but in any case I don’t know why people would whine about this—after all, there are an infinite number of numbers, enough for everyone to own one! In fact, there are enough numbers available for everyone to own an infinite number of them! (h/t Rudy Rucker).

Microsoft claims ownership of the number 45, asks Google to censor the US government and Bing

By Cory Doctorow at 6:16 pm Sunday, Oct 7

A series of monumentally sloppy, automatically generated takedown notices sent by Microsoft to Google accused the US federal government, Wikipedia, the BBC, HuffPo, TechCrunch, and even Microsoft Bing of infringing on Microsoft’s copyrights. Microsoft also accused Spotify (a music streaming site) of hosting material that infringed its copyrights. The takedown was aimed at early Windows 8 Beta leaks, and seemed to target its accusations based on the presence of the number 45 in the URLs. More from TorrentFreak’s Ernesto:

Unfortunately this notice is not an isolated incident. In another DMCA notice Microsoft asked Google to remove a Spotify.com URL and on several occasions they even asked Google to censor their own search engine Bing.

The good news is that Google appears to have white-listed a few domains, as the BBC and Wikipedia articles mentioned in the DMCA notice above were not censored. However, less prominent sites are not so lucky and the AMC Theatres and RealClearPolitics pages are still unavailable through Google search today.

As we have mentioned before, the DMCA avalanche is becoming a bigger problem day after day.

Microsoft and other rightsholders are censoring large parts of the Internet, often completely unfounded, and there is absolutely no one to hold them responsible. Websites can’t possibly verify every DMCA claim and the problem will only increase as more takedown notices are sent week after week.

Microsoft DMCA Notice ‘Mistakenly’ Targets BBC, Techcrunch, Wikipedia and U.S. Govt

Update: Podcast now as KOL236.

Yesterday morning I delivered a 45-minute talk here at Libertopia, “Intellectual Nonsense: Fallacious Arguments for IP,” the slides for which (which I did not show but only used as notes) are below. I spoke for 45 minutes—well, 40, then the last 5 were taken up by a question from J. Neil Schulman—but only covered the first 25 slides; the remaining 41 will have to wait for another lecture…

I recorded my talk on my iphone, but a professional video/audio should be available presently. Audio file is here (21MB), and streaming below:

[podcast]http://www.stephankinsella.com/wp-content/uploads/media/kinsella-libertopia-2012-intellectual-nonsense.mp3[/podcast]

Update: Because I did not have time to finish the remaining slides during my 45 minute talk, I recorded a podcast covering the remaining slides today (10/18/12). It took a bit over 2 hours. Audio file is here (67MB; time: 2:18:46) and streaming below:

[podcast]http://www.stephankinsella.com/wp-content/uploads/media/kinsella-libertopia-2012-intellectual-nonsense-2.mp3[/podcast]

Update: Today I participated in an hour-long IP panel at Libertopia, with Charles Johnson and moderated by Butler Shaffer. Audio file is here (29MB), and streaming below:

[podcast]http://www.stephankinsella.com/wp-content/uploads/media/kinsella-libertopia-2012-ip-panel.mp3[/podcast]

Update: I thought of one more argument that I forgot to cover in the slides and talk. It is the argument made by Silas Barta that (a) some libertarians support rights in airwaves (electromagnetic spectra); but (b) if you support airwave rights you have no basis to object to rights in other nonscarce resources like inventions or patterns of information (see Why Airwaves (Electromagnetic Spectra) Are (Arguably) Property).

There are several problems with this argument. First, not all libertarians support rights in EM spectra. So they are not committed to favor IP rights, even by Barta’s argument.

Second, even if EM spectra ought to be homesteadable, it does not mean that patterns of information ought to be. This is because EM spectra are actually scarce resources, while patterns of information are not. IP proponents typically grudgingly admit, when pressed, that EM spectra are  scarce but patterns of information—knowledge—is not, but they then shift to the argument that the monopoly over information leads to a “right to exploit” the monopoly, which leads to acquisition of profit (money), which is a scarce resource. The problem with the latter maneuver is that the profit comes from money voluntarily handed over to a seller by a customer. But the customer owns his money until he chooses to spend it. No other person has any property right claim in other people’s money or, thus, in any possible future income stream or profits.

Third, even if support of airwave property rights were to imply some type of possible rights in information or the right-to-exploit information, it does not imply that legislated IP rights systems like patent and copyright are justified (see, e.g., Legislation and Law in a Free Society). The advocate of an IP system that is somehow compatible with EM spectra rights has the burden of making a positive obligation for this system, and specifying its details. He can’t just say that IP is justified just because some of its opponents favor EM rights or are confused on the EM issue.

Finally, and to complement the previous point: even if you can argue that EM rights are valid, and do somehow impinge on normal property rights in scarce resources (which I disagree with), this does not mean that “anything goes”, that just any limits on property rights in scarce resources are justified (and this is a point I emphasized in the lecture—see slides 14-15, and my posts The Non-Aggression Principle as a Limit on Action, Not on Property Rights; IP and Aggression as Limits on Property Rights: How They Differ). Again, the IP proponent would need to put forth a positive argument for IP rights. It cannot be established by criticizing its critics. As an analogy: suppose someone believes conscription is justified, but also opposes rape. You cannot show that rape is justified just because some people are wrong on conscription; you cannot even show that rape is justified if conscription is justified.

Another argument I sometimes hear is exemplified here:

By such a viewpoint there’s nothing wrong with raiding an online bank account – how can the account holder claim to own something as arcane as electronic digits? People can’t claim to own electricity or numbers hence they can’t claim ownership of so-called electronic money let alone complain when they’re account is gone. For anyone to claim ownership of money it has been made out of a physical medium such as paper or metal, right?

In other words, we all believe it’s wrong to get into someone’s bank account; yet this requires something similar to IP—ownership of nonscarce things. Therefore, if it’s okay to own money in a bank, why not the patterns of information protected by patent and copyright. Well: in a free society, money would be gold, a scarce thing. You don’t need anything IP-like to protect property rights in such scarce resources. Pointing to the fiat money created by the state and related rules hardly justifies the state creating property rights in ideas. Further, even in today’s fiat society world, we can say that it’s a rights violation for someone to access your bank account, because to do that requires accessing scarce resources owned by the bank, and when deception is used, this is fraudulent: the deceptive person gains entry under false pretenses, meaning that the consent given by the bank is not valid, meaning that he is committing a form of trespass. (For more discussion of related issues, see my post Why Spam is Trespass.) (A similar argument is made by Jamie McEwan; see  Yeager and Other Letters Re Liberty article “Libertarianism and Intellectual Property”).

David Faraci has a draft paper up, Do Property Rights Presuppose Scarcity?, involving a good deal of criticism of my anti-IP arguments. I don’t agree with him. I may post something more substantive about this in due course. But I will give him this: he seems sincere, intelligent, and civil, a rarity among IP advocates.