From ars technica, a report about a proposal from a couple of Congresscritters who opposed SOPA for a “Digital Bill of Rights,” to help maintain a free and open Internet. The proposal calls for these “rights”:

1. The right to a free and uncensored Internet.
2. The right to an open, unobstructed Internet.
3. The right to equality on the Internet.
4. The right to gather and participate in online activities.
5. The right to create and collaborate on the Internet.
6. The right to freely share their ideas.
7. The right to access the Internet equally, regardless of who they are or where they are.
8. The right to freely associate on the Internet.
9. The right to privacy on the Internet.
10. The right to benefit from what they create.

This has some promise, but it’s both under- and over-inclusive. Under-inclusive in that it doesn’t call for the abolition of copyright, or for a radical reduction in term and penalties. In fact it suggests copyright is some kind of “right” in its call for “The right to benefit from what they create.” But so long as copyright exists, it is impossible to avoid its free-speech and free-press suppressing effects. There will continue to be a “balance” struck between copyright and First Amendment type rights; i.e., free speech will continue to be chilled and suppressed (see my post “Copyright is Unconstitutional”). It is impossible to have “a free and uncensored Internet,” which the new Digital Bill of Rights calls for, so long as there is copyright. You cannot have both free speech, and copyright.

And it is over-inclusive in that it calls for things like “the right to equality on the Internet” and “the right to access the Internet equally, regardless of who they are or where they are.” These and some other proposals are troubling in that they are not clearly limits on government behavior, but potential authorizations to the government to limit private actors. For example these provisions could be used by the state to regulate private companies in the name of “net neutrality” or to provide some kind internet access as a positive welfare right or privilege. (See my posts Net Neutrality Developments and  Internet Access as a Human Right.)

Congress should not be declaring “rights,” since it can then serve as a source of power to the feds to regulate private activity, much as the federalizing of the Bill of Rights by way of the Fourteenth Amendment has served not to limit federal power but to extend it to regulating state laws. Congress should do nothing but limit its own power, since it is the federal government that is itself the biggest threat to Internet and digital freedoms.

A better, simpler, more effective, and less dangerous proposal would read something as follows:

1. Copyright law is hereby abolished [or its term reduce to 5 years and statutory damages eliminated].
2. Congress shall have no power to regulate or tax activity on the Internet, including gambling or commerce.

Here’s the ars technica piece:

 

SOPA opponents unveil “Digital Bill of Rights”

Sen. Wyden and Rep. Issa want to protect digital citizens.

by Nathan Mattise – June 12 2012, 3:07pm CDT

The “Digital Bill of Rights” debuted at the Personal Democracy Forum in New York City on Monday. The document draft comes from Rep. Darrell Issa (R-CA) and Sen. Ron Wyden (D-OR), two key figures in the battle against SOPA.

Issa and Wyden created the Digital Bill of Rights because they were concerned about what seemed like a legal oxymoron: lawmakers trying to regulate the Internet without understanding how individuals use it.

“Government is flying blind, interfering and regulating without understanding even the basics,” Issa wrote on his website, KeepTheWebOpen.com (you can find a draft of the Digital Bill of Rights there). “Where can a digital citizen turn for protection against the powerful?”

At the conference, Wyden likened this project to a digital version of the “Constitutional convention.” It’s a convention that Issa and Wyden hope Internet users will participate in. On Issa’s site, he openly encourages readers to consider the current draft and suggest revisions (at the publication of this post, several individuals have already logged in to take that offer). Currently, the ten key rights are as follows:

1. The right to a free and uncensored Internet.
2. The right to an open, unobstructed Internet.
3. The right to equality on the Internet.
4. The right to gather and participate in online activities.
5. The right to create and collaborate on the Internet.
6. The right to freely share their ideas.
7. The right to access the Internet equally, regardless of who they are or where they are.
8. The right to freely associate on the Internet.
9. The right to privacy on the Internet.
10. The right to benefit from what they create.

Have any edits for Issa and Wyden? Contribute directly (sign-up required) or add them in the comments below.

 

[TLS]

Update: See the Rational Patent Exchange’s (RPX) Defensive Patent Aggregation Service.

See also: KOL220 | Future Gravy Interview about Blockstream and the Defensive Patent License; and Bitmex: A blockchain-specific defensive patent licence.

***

From Boingboing. For related ideas, see my posts The Patent Defense League and Defensive Patent Pooling and Twitter Heroically Promises Not to Use Patents Offensively. This is an admirable attempt to deal with the inevitable problems flowing from the invention-monopolies from the patent system favored by IP “libertarians” (interesting how many libertarian sci-fi novelists happen to favor copyright, such as Brad Linaweaver, J. Neil Schulman, L. Neil Smith, and I guess throw in Ayn Rand and John C. Wright; just like most of my fellow patent lawyers favor the patent system, and most public school teachers favor government schooling ….).

As heroic as this effort is, I see problems with it. At best, it’s a way to deter lawsuits, but at a huge cost (obtaining patents in the first place to contribute to the pool). What a waste. And it does nothing to deter patent trolls. And why not let some companies who have no patents buy into the pool for money? If 1 patent gets you in as much as 100 patents does, why can’t you pay some fee to get in? And once you start using the pool, what is your incentive to continue to acquire patents? After all you can just free-ride on the patents others put in the pool, to use in countersuits defensively against possible patent aggressors. So these pooling arrangements can do nothing against patent trolls. At best, they stave off some lawsuits, and only cost tons of money to obtain patents whose only purpose is to ward off other patent suits, and giving rise to oligopolies in the meantime. It’s a horrible system. This idea only puts a little bandaid on it.

The boingboing post says: “It’s a license pool that companies opt into, and members of the pool pledge not to sue one another for infringement. If you’re ever being sued for patent infringement, you can get an automatic license to a conflicting patent just by throwing your patents into the pool. The more patent trolls threaten people, the more incentive there is to join the league of Internet patent freedom fighters.”

I don’t get this. Patent trolls usually don’t make any products, so they are usually not infringing any patents of their victims, or of anyone else. So how can the patent pool give you a “conflicting patent” (presumably, by this term they mean a patent that can be asserted in a countersuit against a patent plaintiff) against a troll–how can the threat of patent trolls give you more incentive to join the league, if the huge pool of patents can’t be used defensively against trolls?

As I wrote in the previous post:

One problem is that the PDL’s pool would be useless against patent trolls. However, patent trolls usually just want money. So they just serve as a kind of tax. But competitors often want to get an injunction to shut down the product lines of their competitors. Having to pay a “tax” to a troll is usually less of an existential threat to a company than is the patent injunction threat from a competitor. So if the PDL deters this kind of patent injunction threat, that is a huge benefit.

Even if these challenges do not prove insurmountable, it’s possible the state would torpedo this as some kind of antitrust violation, or some kind of patent “policy” grounds. Sounds absurd, but then the state does absurd things. On the one had, use of patents seems to be contrary to the spirit of antitrust law. Indeed, as I’ve noted in the past, there is said to be a “tension” between the federal antitrust law (which penalizes the formation of “monopoly power”) and patent law⁵ (which grants monopolies).⁶ And for this reason there has been talk of possible antitrust scrutiny of the Apple-Microsoft-RIM-et al. consortium’s $4.5 billion purchase of Nortel’s patents–the consortium beat out Google’s $3 billion bid, thus depriving Google of a defensive patent shield from patent suits against its Android smartphone platform by these and other competitors.

But one could imagine the state clamping down on the PDL scheme. After all, it’s unfair to let companies have too big of a defense against the patent threat. That would thwart the very purpose of the patent system, heavens to betsy! Or the FTC could jump in and claim that this pooling is anticompetitive, even though the purpose is obviously to permit competition to thrive, to block the anticompetitive effect of aggressive patent lawsuits. Who knows what the schizo feds would do.⁷

Now, as noted above, even if this scheme worked, it would be a huge waste, but maybe a necessary one, given the patent system. Still, it could reduce the barriers to entry and anticompetitive threats posed by patents. Maybe if there were millions of patents held by the PDL and other patent pools and by larger companies, but no one was using them for fear of retaliation, people would wake up and say, hey, why don’t we just get rid of this hundreds-billion-dollar deadweight loss on the economy? If we are not suing each other, why not just do that for free?

The subtitle to the ars technica post says: “The first rule of Patent Club is you do not sue members of Patent Club.” Exactly. But patent trolls won’t join any such defensive club. So how is this supposed to fend them off? Granted, patent trolls cost the economy a lot of money (see Patent Trolls Cost The Economy Half A Trillion Dollars since 1990). But patent trolls are not the real problem. As I note in Washington Post on Patent Trolls, Software Patents, and Patent Reform and Patent Trolls Are Preferable to “Practicing Entities”, the problem is not software patents, or patent trolls (“non-practicing entities”), or even “bad” or junk or low-quality patents. The problem is not incompetent patent examiners. The problem is not ambiguous or arbitrary nonobviousness standards, or inadequate prior art databases or searching capabilities. The solution is not patent reform, or reducing the term of or even getting rid of “software patents.”  The problem is the good patents—”legitimate,” hiqh-quality, unassailable patents granted not to patent trolls but to practicing entities who use these patents and the force of law to squelch competition. Even if you get rid of all “bad” patents, all software patents, all trolls, all business method patents–the fundamental problem remains: companies can acquire patents that they can use to squelch competition.

In any case, here’s the Boingboing post:

Defensive Patent License: judo for patent-trolls

By Cory Doctorow at 2:57 pm Tuesday, Jun 12

Ars Technica’s Jon Brodkin has an in-depth look at the “Defensive Patent License,” a kind of judo for the patent system created by my former EFF colleague Jason Schultz (who started EFF’s Patent Busting Project) and my former USC colleague Jen Urban (who co-created the ChillingEffects clearinghouse). As you’d expect from two such killer legal freedom fighters, the DPL is audacious, exciting, and wicked cool. It’s a license pool that companies opt into, and members of the pool pledge not to sue one another for infringement. If you’re ever being sued for patent infringement, you can get an automatic license to a conflicting patent just by throwing your patents into the pool. The more patent trolls threaten people, the more incentive there is to join the league of Internet patent freedom fighters.

“The idea is if you want to be part of this network of defensive patent people, you are committing that all of your patents, every single thing you’ve done, will be available royalty-free to anyone who wants to take a license, if they commit to only practice defensive patent licensing,” Schultz said today in Boston at the Usenix conference on cyberlaw issues. “As long as they don’t offensively sue anyone else in that network, everything’s cool.”

The commitment is both daunting in that it requires submitting all of a member company’s patents to the pool, and forgiving in that members can still sue the pants off non-members. Schultz said his team thought long and hard about the exact implementation of the Defensive Patent License.

The “all-in” provision was put in place to prevent companies from joining the network while only providing their lamest patents. The ability of DPL members to sue non-members, meanwhile, preserves the right to monetize inventions. It also keeps members on a level playing field with non-members.

“Defensive Patent License” created to protect innovators from trolls

Good post by Mike Masnick about one author’s attempt to use Kickstarter for a “patronage” (perhaps it should be called “micro-patronage”) model for funding and rewarding artists, novelists, and other content creators. For related discussions, see my posts: Conversation with an author about copyright and publishing in a free society; Examples of Ways Content Creators Can Profit Without Intellectual Property; The Creator-Endorsed Mark as an Alternative to Copyright.

Author Using Kickstarter To Offer His Book To The Public Domain, And Help Other Creators To Do The Same

from the needs-better-production-values,-but… dept

I was recently alerted to an interesting project and organization seeking to get more new works into the public domain. It’s been started by Aaron Pogue, who self published some books last year, selling well over 100,000 copies, and allowing him to not just quit his job, but to start an entire organization focused on helping content creators get paid to put their works into the public domain. The goal is to use systems like Kickstarter and others to allow fans to support the organization, called The Consortium, to pay them a salary — just like a normal job — for which they can then create content to release into the public domain.

Pogue is kicking this off with an attempt to raise $30,000 for the third book in his trilogy. If he hits the goal, he’ll release the book into the public domain, allowing anyone to do whatever they want with it. Make a movie out of it? Go for it. Do a fan edit of it? No problem. Whatever you want, once it’s in the public domain.

That said, it’s not clear if he’ll make the goal, though it is an interesting project. I’m wondering why it hasn’t raised that much and I have a couple of theories: first, the production quality on the video with the Kickstarter project isn’t great. I know this isn’t always easy, but for some reason, projects with better quality production seem to just do better on Kickstarter. The other thing is that I’m wondering how many of the buyers of Pogue’s first two books in the trilogy even know about this offer. In fact, I wonder if this is one of the limitations of relying on a platform like Amazon — in that it can put a wall between an author and his or her fans.

Either way, I’m really interested in these types of projects. And it’s great to see people like Pogue out there — a successful artist — not just explaining that copyright isn’t “the only” way to make money as a creator, but almost certainly not the best way to make money. And then to take that even further, and to help other artists make money without relying on the crutch of copyright, is a very cool thing to see, whether or not this particular Kickstarter campaign succeeds. In the meantime, though, if you would like to show some support for this type of project, check out the Kickstarter campaign and see if you think it’s worth backing.

 

51 Comments | Leave a Comment..

I was a guest today on the Peter Schiff Show (guest host Jeff Tucker), discussing problems with patent law. Audio file here and streaming below. 1:00:55 to the end (about 20 minutes total).

[podcast]http://www.stephankinsella.com/wp-content/uploads/media/schiff-2012-06-06.mp3[/podcast]

Now podcast at KOL166.

From a facebook discussion, IP libertarian and novelist J. Neil Schulman says to me:

You and your ilk have a problem with me and L Neil Smith that won’t disappear with the death of the State copyright laws. Make copies of our creative works without our permission and we’ll kill you. “Seno Akta Gamat!” [from The Fifth Element: “Never without my permission!”]

This is even more explicit than his previous, more subtle suggestion along these lines, in his logorights article:

anyone who attempts to violate my property rights in this logos should expect to hear from the legal firm of Smith & Wesson.

As I wrote in The Great IP Debate of 1983:

while Schulman, as an anarchist, to his credit admits that if it could be shown that his version of IP could be enforced only by state law, he would abandon it, he ends his speech with a very unlibertarian threat of murder: to sic the firm of “Smith and Wesson” on those who use the ideas they have learned from him.

And now he is saying he would just murder people who copied his novel without his permission. Ho-kayyyy. Need anything else be said about the lunacy to which the IP mentality leads?

Update: To his credit, Schulman has retracted his comment, after a long facebook discussion:

Stephan Kinsella: I didn’t mean it. It was wrong for me to say it. Of course I wouldn’t kill someone for a copy violation. I’ve never killed anyone and I pray to God that I’m never put into an actual situation where I have to use deadly force against an attacker.

I apologize.

This said, you make me seething mad and that’s why I wrote such emotional rot. The way you toss around the word fascist at lights in the world such as Ayn Rand and Brad Linaweaver is awful.

I think your principles are truly fucked up and I will continue to argue against them. Just more civilly.

Neil

In Against Intellectual Property, I described some of the absurd results that could flow from a consistent application of IP:

imagine the time when men lived in caves. One bright guy—let’s call him Galt-Magnon—decides to build a log cabin on an open field, near his crops. To be sure, this is a good idea, and others notice it. They naturally imitate Galt-Magnon, and they start building their own cabins. But the first man to invent a house, according to IP advocates, would have a right to prevent others from building houses on their own land, with their own logs, or to charge them a fee if they do build houses.

Imagine how much worse it would be to copy an entire village! China in fact has done this, constructing “a full size replica of the Austrian village of Hallstatt, a small enclave in the Alps known for its tourism and salt production. The Unesco-recognized World Heritage Site was painstakingly recreated, down to the historic clock tower. All in all, it’s a stunning achievement ….” (China elevates the art of KIRF, copies Austrian village of Hallstatt, Engadget)

But of course, a consistent IP advocate would have to regard this as a massive act of theft. And this is why IP is also threatening the emerging technology of 3D printing, which permits people to fabricate duplicates of objects.¹ Copying, emulation, and “unbridled competition” are the bane of the IP advocates. In fact, some of the Austrian villagers were initially “angry and shocked” at the news that China would copy their village (from this BBC report), or “upset” (from this BBC report), though it’s never made quite clear what exactly they are upset about. But now the prevailing attitude seems to be one of bemusement or pride that their little village was “important enough to get a copy.” The town already hosts thousands of Chinese tourists every year. This publicity will likely only increase the tourism.

1. Marcin Jakubowski: Open-sourced blueprints for civilization; Pharmaceutical “Printers” and Patents; The IP War on 3D Printing Begins. [↩]

Roderick Long followed links in this post and ended up on this post revealing a humorous exchange  between a lawyer for Quaker Oats and some actual Quakers who dared sell Christmas trees under the name “Quaker Oaks.” Just another example of IP law gone amok.

Orange County Friends Meeting
Religious Society of Friends (Quakers)

Santa Ana, California

Quaker Oats threatens to sue us

Dear Mr. William Lovett:

I am the attorney at the Quaker Oats Company responsible for trademark matters. As you probably know, our company manufactures numerous food products, the most famous of which is oatmeal. In addition to having used the Quaker Oats name as our company name for close to 100 years, we have registered the Quaker name as a trademark.

It was therefore quite a surprise to discover that you are operating a business under the name “Quaker Oats Christmas Tree Farm.” Your use of our trademark is likely to mislead consumers into believing that your business is associated with the Quaker Oats Company. It is also likely to weaken our very strong trademark. In light of the foregoing, we hereby demand that you immediately stop all use of the “Quaker Oats” name…. While we would like to settle this matter amicably, we will take all steps which are necessary and appropriate to protect our name.

Sincerely
Janet L. Silverberg, counsel

Dear Janet Silverberg:

My breakfast this morning—rolled oats by the way—was interrupted by the arrival of your letter via FedEx, which was delivered to us despite the fact that you have misspelled our company name which is Quaker OAKS Christmas Tree Farm. Our farm was so named because religious services were held outdoors on this farm under a great oak tree until about ten years ago when we were able to move into our new Meetinghouse on another corner of our farm.

Our business is 100% owned and operated by Quakers. I suspect that your firm employs considerably fewer, if any, Quakers. We trace our Quaker ancestors back 320 years and they were mostly farmers, but I don’t know how many of them grew oats for your company. My guess is that you may be selling far more Lutheran oats, Methodist oats, or maybe atheist oats. Could your company be guilty of product source misrepresentation?

We don’t know why you choose to associate your commercial products with our faith, but we supposed you feel there is some marketing value from it. If you were selling machine guns, roulette wheels or some other product offensive to our Quaker faith, we would be upset by the association, but since we find your products wholesome and enjoyable, we consider your use of our name a compliment. We invite you to visit our farm to verify that we are indeed Quaker Oaks Christmas Tree Farm. If you come in December, we’d be happy to sell you a tree!

Sincerely,
William Lovett,
Visalia, California

Good article at The Economist:

Pretty profitable parrots

For businesses, being good at copying is at least as important as being innovative

As I noted in Software Industry Needs 2 Million Patent Attorneys and $2.7 trillion per year to avoid infringing software patents, for the software industry to monitor and be sure US software patents are not infringed, it would cost literally trillions of dollars–far more than the entire industry is even worth. And now it appears similar absurd results apply in the case of copyright. As noted by Glyn Moody at Techdirt, it would Google about $37 billion per year to pre-screen YouTube videos to ensure no copyright infringement, about equal to Google’s annual revenue. In other words, for many key industries (I would argue for all) it is literally impossible to comply with these “property rights” and survive. Some property rights.

How Much Would It Cost To Pre-Screen YouTube Videos? About $37 Billion Per Year…

from the copyright-does-not-scale dept

 

Last week we reported that videos were currently being uploaded to YouTube at the rate of 72 hours every minute, and asked how anybody could expect Google to pre-screen such a deluge. Techdirt Insider xenomancer has gone a little further by working out how much it would cost to screen that material for potential copyright infringement, doubtless something the media industries would love to see imposed.

Most of the calculation is straightforward, but there’s one key variable: the kind of person who will do the screening. You can’t just use random people off the street, or starving artists, or bored software engineers, because the crucial question they must answer is: does too much of this video infringe on somebody’s copyright? Only one class of person is qualified to answer that, and hence to take on this job: judges. Or, more specifically:

horribly underpaid judges who happen to be extremely efficient at determining the copyright status of each video they watch and choose, of the little free will they have, to consider all video uploaded.

Using the fact that the average pay for a judge in Silicon Valley is apparently $177,454, and that based on the volume of uploads and number of hours in a working day, a mere 199,584 judges would be required as screeners, this gives us the final figure for the cost of checking properly those 72 hours per minute:

$36,829,468,840 per year.

Interestingly, Google’s revenue for 2011 was $37,905,000,000.

Absurd as this calculation may be, it does reveal the key problem with unthinking calls for YouTube videos to be pre-screened for possible infringement: only suitably-qualified individuals can do that, and eventually you run out of them. In other words, attempts to police rigorously online materials are doomed to fail by the nature of the copyright system itself. Basically, copyright does not scale.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Great Techdirt post by Larry Downes:

How Copyright Extension Undermined Copyright: The Copyright Of Parking (Part I)

from the parallel-parking dept

What do copyright and parking laws have in common?

The short answer: no one takes either very seriously.

According to a recent article in L.A. Magazine, only 10% of parking citations ever get written.Which is to say that 90% of the times that people park illegally, there are no consequences. Those who violate the increasingly strict parking rules in most U.S. cities are more likely to associate a ticket with bad luck or personal hostility against them than with the fact that they broke the law.

In other words, when you get a ticket, you don’t feel guilty. You feel victimized. As John Van Horn, the editor of Parking Today, explains, low levels of enforcement undermine the deterrent intent of parking laws. “We break the law often and get away with it. Deep down inside we know that. What makes us mad is getting caught the few times we do. ‘Ninety percent of drivers on this street got away scot-free today, but I get the ticket?’ That makes us crazy.”

Part of what drives us to rage at getting a ticket is that we don’t actually believe parking should be illegal in the first place. The freedom to park wherever there’s space is deeply ingrained in the American psyche if not the law. The invention of the parking meter in the late 1930’s was greeted with near-riots across the country. Editorials railed against the new devices as “illegal,” “immoral” and a “perversion.” The Alabama state Supreme Court declared meters unconstitutional in 1937, and ordered them removed from Birmingham streets.

“I truly believe that when men and women think about parking, their mental capacity reverts to the reptilian cortex of the brain,” says UCLA’s Donald Shoup, perhaps the nation’s only academic devoted to the study of parking.

A law that is rarely enforced—indeed, which is not cost-effective to enforce except sporadically—is no law at all. Which brings us to copyright.

Overprotective and largely unenforced rules, combined with a deep-rooted sense of entitlement, create an explosive combination. The problem is the same with parking and copyright. As copyright law becomes more strict, and its penalties more byzantine, Americans are less likely to make the effort to follow the rules, or to believe that new forms of technology-enabled copying are immoral in the first place.

We refuse to see our behavior as illegal, even when we know it is. Recent surveys by the Pew Research Center, for example, report that 72 percent of Americans between ages 18 and 29 “do not care whether the music they download onto their computers is copyrighted or not.” Rightly or wrongly (if those terms even mean anything anymore in this context), the added penalties, extensions, and limits on copying, along with decreasing rates of successful enforcement, are making it less, not more, likely that Americans will obey the rules.

We are collectively living in a state of cognitive dissonance, uncomfortably embracing two conflicting beliefs at the same time. Copying is illegal. Copying is not wrong.

Where did we get the idea of a right to free content? In large part, from the content producers themselves. An older generation grew up with music, movies and television programs beamed directly to their televisions and transistor radios at no charge. Those consumers can’t understand why saving content onto some medium and enjoying it again or later should suddenly transform a strongly-encouraged behavior into a felony.

A younger generation, raised on cheap Internet access, was likewise encouraged to enjoy all manner of copyrighted materials freely and frequently by content providers who wisely chose to rely, as their predecessors did, on advertising and other indirect revenue to pay their costs and generate profits. That’s the message of newspapers, magazines, and broadcast networks who offer some or even all of their content without a paywall. And the movie industry teases consumers mercilessly with trailers, interviews, and production blogs that show just enough of upcoming movies to make us feel entitled to see the rest, one way or the other, the sooner the better.

Yet when fans enthusiastically encourage others to embrace their preferences by posting clips or copies of popular content to YouTube or by ripping CDs and DVDs to repeat their enjoyment on other devices, they instantly cross the legal line from well-trained consumers to dangerous criminals—even terrorists.

Copyright may be the law, in other words, but it no longer holds any moral authority with most consumers. There’s no longer an ethical imperative to obey it or even understand it. Self-enforcement is fading, and the rules are so severe and so frequently violated that effective legal enforcement has become nearly impossible.

It’s a meter, and we all know that the meter is rarely checked. Copyright is a law in name only—as obsolete and irrelevant as rules still on the books in some jurisdictions that regulate who can or must wear what kind of clothing.

Next: How making the law stronger makes the law weaker

My reply to this (ridiculous) post, 4 Ways Intellectual Property Drives our Economy:

I am a patent attorney. The patent system (and copyright system) are abominations. They are antithetical to the free market. They should be abolished.

This study is utter nonsense. The study does not prove IP generates any innovation or wealth. It just says that industries that are subject to IP generate wealth. So what? Every industry that generate wealth is subject to regulations, taxes, etc. Might as well say that taxes cause production, which is obvious nonsense. There is innovation and wealth production despite taxes and patent law, not because of it.

See also USPTO/Commerce Dept. Distortions: “IP Contributes $5 Trillion and 40 Million Jobs to Economy”.

As noted in a recent Techdirt post by Mike Masnick, economist Dean Baker, in his latest column about how The Pirate Party has got it right on copyright, argues:

Near the top of the list of the Pirate Party’s demons is copyright protection, and rightly so. Copyright protection is an antiquated relic of the late Middle Ages that has no place in the digital era. It is debatable whether such government-granted monopolies were ever the best way to finance the production of creative and artistic work, but now that the internet will allow this material to be instantly transferred at zero cost anywhere in the world, copyrights are clearly a counter-productive restraint on technology.

Problem is, Baker “goes on to suggest some alternative means to fund such creative works in a world without copyright, including ideas like ‘artistic freedom vouchers’ that would give people a refundable tax credit on supporting creativity, on the condition that any of the creativity funded by such money would not be able to protect it with copyright for a period of time.” So despite Baker’s pose that he is some radical supporter of pirate party ideas or an opponent of statist copyright grants—he is not. He supports these statist, ridiculous “artistic freedom vouchers.” This is pure theft: from taxpayer to state-favored “artist”. And he is not even against copyright. In my post Economist: Copyright Is An Antiquated Relic That Has No Place In The Digital Age, I noted that Baker, like Alex Tabarrok in the field of inventions, recommends taxpayer funded multibillion-dollar “artistic freedom vouchers” to promote artistic creation. See also William Patry on How to Fix Copyright and The “Artistic Freedom Voucher” [sic], where I note that Roderick Long here quotes Timothy Lee:  “I can’t agree with Baker that all copyright and patent monopolies are illegitimate.” Baker poses as some maverick radical IP reformer, even though he does not oppose getting rid of these monopolies, and indeed favors adding to this abominable program tens or hundreds of billions of dollars of taxpayer funded state-directed subsidies to the arts and innovation. With radical reformers like these, who needs socialists?

From C4SS:

The IP Wars as “Competition”

Posted by David S. D’Amato on May 15, 2012

On Monday (May 14, 2012), the Wall Street Journal published two stories on some of the major players in corporate patent wrangling.

The first story, featuring tech firms Nvidia and Intellectual Ventures, highlights the defensive role of patents as a strategic investment. Nvidia’s general counsel, David Shannon, remarks in the article that “[t]he acquisition of IP is a strategy every company is using right now.”

Elsewhere, in the litigation theater of the intellectual property wars Shannon cites, Apple and Samsung skirmished in a federal appellate court over whether Samsung could market its Galaxy tablet in the U.S. The case is just one in the constant and frenzied volley of IP-related lawsuits within the technology industries, whose most important assets are no longer physical goods, but special legal protections.

These stories and many more just like them hint at something at the core of the way that the economic ruling class employs the power of the modern state.

The role of the state in the economy is and always has been to allow a small elite to create gates and tolls around wealth and natural resources, to monopolize them and the products of labor. As a particular medium for this operating principle, the modern state is somewhat unique, built upon quite specific thinking as to roles and capabilities of bureaucrats working within centralized, hierarchical organizations.

It is in that way very similar, in both its philosophical assumptions and in its functioning, to the modern corporation. Narratives that position business and government as rivals ignore not only the similarities of the two, but their mutual interdependence. Indeed it would be practically impossible to neatly separate the two from one another in the history of the modern, total state.

Technology represents the proverbial double-edged sword within such a paradigm. On the one hand, in its relation to the do-it-yourself realm, technology has thrown wide potentialities of self-sufficiency and independence that few could have imagined, new ways to live and to thrive in a world outside of the state-corporate economic and social structure.

At the same time, the emergence of new industries and new technologies must be regarded as central in the evolution of the kind of state we know today, the reach and scope of authority seeming to lengthen and expand daily.

Discussing the international law framework around “intellectual property,” specifically the TRIPS agreement, economist Donald G. Richards notes the ways that international IP rules “reflect the real and perceived interests of cross-national classes.” Richards argues, as do market anarchists, that worldwide protection of patents and copyrights “facilitates the expansion of global capitalism while reinforcing the currently prevailing hierarchy of production and power relations.”

On a fundamental level, patents and copyrights dictate the ways in which people are allowed to use their own tangible property, from pens and paper to scrap metal and computer chips. They thus represent the kinds of coercive, monopoly privileges that genuine free markets stand against in principle. Using the restrictive power of the state to limit competition raises the prices of our computers, automobiles, food and clothing — virtually all of the good and services we buy.

“Competition” today is no more than a clash between rich, monolithic global corporate titans who would rather use the legal system to ban competitors than actually compete. Competition between Samsung and Apple may be fierce enough in the courtroom, but what would happen in a real free market, one where no one was entitled to special privileges through IP?

Then the consumer might not be merely a consumer; she might just be an autonomous individual with more capacity for self-sufficiency than we can imagine in a today shackled to millions of pieces of paper housing corporate patents.