Last year I delivered the talk “Intellectual Property and Economic Development” at Mises University 2011. And it’s free online. Now some site “Tunesbaby,” the “Hit Video Network,” has a version of it up on its site, surrounded by annoying ads and distractions. I’m outraged that they stole my work! Outraged….! This is … hurting me…. somehow!

Wait a sec. No it’s not. Godspeed, Tunesbaby. Thanks for helping to promote my ideas.

By Cathleen Flahardy

February 21, 2012

Paramount Pictures Corp. has filed suit against the estate of Mario Puzo, author of the popular 1960s novel “The Godfather.”

With its suit, the film company hopes to block the publication of new sequel novels to “The Godfather.” Paramount claims it purchased the copyright to the original novel in 1969 and in its Feb. 17 complaint said it is trying to “protect the integrity and reputation of The Godfather trilogy.”

Read more>>

Related posts:

• Copyright Censorship versus Free Speech and Human Rights; Excessive Fines and the Eighth Amendment
• Reason: Copyright Should Last Half A Century
• Libraries: Prepare to burn foreign books, courtesy copyright law
• Atlas Hefts: The Sequel!;
• COICA: More Copyright-Backed Censorship on the Way?;
• The Patent, Copyright, Trademark, and Trade Secret Horror Files;
• Do Libraries Need Permission To Lend Out Ebooks?;
• Supreme Court lets ban on “gray market” imports stand

Update: See more posts on Internet freedom.

From the Wall Street Journal:

The U.N. Threat to Internet Freedom

Top-down, international regulation is antithetical to the Net, which has flourished under its current governance model.

By ROBERT M. MCDOWELLOn Feb. 27, a diplomatic process will begin in Geneva that could result in a new treaty giving the United Nations unprecedented powers over the Internet. Dozens of countries, including Russia and China, are pushing hard to reach this goal by year’s end. As Russian Prime Minister Vladimir Putin said last June, his goal and that of his allies is to establish “international control over the Internet” through the International Telecommunication Union (ITU), a treaty-based organization under U.N. auspices.

If successful, these new regulatory proposals would upend the Internet’s flourishing regime, which has been in place since 1988. That year, delegates from 114 countries gathered in Australia to agree to a treaty that set the stage for dramatic liberalization of international telecommunications. This insulated the Internet from economic and technical regulation and quickly became the greatest deregulatory success story of all time.

Read more>>

Related posts:

• Masnick on the Horrible PROTECT IP Act: The Coming IPolice State
• Patent vs. Copyright: Which is Worse?
• The Ominous PROTECT IP Act and the End of Internet Freedom

It is really true that for those who believe in IP, there is no non-arbitrary way to define the term, and that term must necessarily be decided by the state, which also must necessarily enforce it. One workaround to this problem: make copyright eternal. This is the proposal of Adrian Hon, writing for the Telegraph. And catch the great George Bernard Shaw quote in here.

On Tuesday 14th, the Serious Organised Crime Agency (SOCA) posted a message on RnBXclusive.com, stating: “If you have downloaded music using this website you may have committed a criminal offence which carries a maximum penalty of up to 10 years imprisonment and an unlimited fine under UK law.”

SOCA’s threat is a stirring defence of what we hold dear in this country – the right of a creator to benefit from their intellectual property, whether it be a song, book, film, or game. Without this assurance of compensation, we might not see any new creative works being produced at all, and so it’s for this reason that we’ve continually lengthened copyright terms from 14-28 years as set out by the Statue of Anne in 1710 to “lifetime plus 70 years” today.

Yet now, as we’ve instituted decade-long jail terms and unlimited fines for copyright infringers, it’s time to take the next step in extending copyright terms even further.

Imagine you’re a new parent at 30 years old and you’ve just published a bestselling new novel. Under the current system, if you lived to 70 years old and your descendants all had children at the age of 30, the copyright in your book – and thus the proceeds – would provide for your children, grandchildren, great-grandchildren, and great-great-grandchildren.

But what, I ask, about your great-great-great-grandchildren? What do they get? How can our laws be so heartless as to deny them the benefit of your hard work in the name of some do-gooding concept as the “public good”, simply because they were born a mere century and a half after the book was written? After all, when you wrote your book, it sprung from your mind fully-formed, without requiring any inspiration from other creative works – you owe nothing at all to the public. And what would the public do with your book, even if they had it? Most likely, they’d just make it worse.

No, it’s clear that our current copyright law is inadequate and unfair. We must move to Eternal Copyright – a system where copyright never expires, and a world in which we no longer snatch food out of the mouths of our creators’ descendants. With eternal copyright, the knowledge that our great-great-great-grandchildren and beyond will benefit financially from our efforts will no doubt spur us on to achieve greater creative heights than ever seen before.

However, to make it entirely fair, Eternal Copyright should be retroactively applied so that current generations may benefit from their ancestors’ works rather than allowing strangers to rip your inheritance off. Indeed, by what right do Disney and the BBC get to adapt Alice in Wonderland, Sleeping Beauty, and Sherlock without paying the descendants of Lewis Carroll, the Brothers Grimm, and Arthur Conan Doyle?

Of course, there will be some odd effects. For example, the entire Jewish race will do rather well from their eternal copyright in much of the Bible, and Shakespeare’s next of kin will receive quite the windfall from the royalties in the thousands of performances and adaptations of his plays – money well earned, I think we can all agree.

Naturally, we’ll need a government-controlled bureaucracy to track the use of copyrighted material from all of history and to properly apportion royalties to the billions of beneficiaries in a timely manner. There are some downsides; for example, we can expect countless legal cases to spring up concerning the descent of various famous creators, which will unfortunately gum up our courts for the indefinite future, but it’s a price worth paying in order to put things right.

A bold idea such as Eternal Copyright will inevitably have opponents who wish to stand in the way of progress. Some will claim that because intellectual works are non-rivalrous, unlike tangible goods, meaning that they can be copied without removing the original, we shouldn’t treat copyright as theft at all. They might even quote George Bernard Shaw, who said, “If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.”

Such opponents are condoning criminal activity, plain and simple, and are frankly no better than criminals themselves. Why would anyone want to create new ideas and intellectual works if they can’t benefit from them in perpetuity? Are we to believe that people have motivations other than the purely financial and quantifiable? And are they suggesting we should continue to allow modern “creators” to sully the legacy of legends like Jane Austen and Hans Christian Andersen with their pointless, worthless adaptations, remixes, and reinterpretations of Pride and Prejudice and The Emperor’s New Clothes?

In the interests of full disclosure, I do want to point out a genuine problem with Eternal Copyright, in that it will be difficult to enforce due to the inherently criminal nature of digital technology, which allows information to be copied perfectly and instantly. Absent a complete ban of the technology, which admittedly would be a little draconian, one obvious solution would be to hard-wire digital devices to automatically detect, report, and prevent duplication of copyrighted material. Yes, this might get the libertarians and free-speech crazies out protesting, but a bit of fresh air wouldn’t do them any harm.

Certainly we wouldn’t want to listen to their other suggestions, which would see us broaden the definition of “fair use” and, horrifically, reduce copyright terms back to merely a lifetime or even less. Not only would such an act deprive our great-great-grandchildren of their birthright, but it would surely choke off creativity to the dark ages of the 18th and 19th centuries, a desperately lean time for art in which we had to make do with mere scribblers such as Wordsworth, Swift, Richardson, Defoe, Austen, Bronte, Hardy, Dickens, and Keats.

Do we really want to return to that world? I don’t think so.

As discussed in Mike Masnick’s Techdirt post When We Copy, We Justify It; When Others Copy, We Vilify Them,

We’ve written multiple times about Kirby Ferguson’s excellent Everything is a Remix project that has produced three videos highlighting the problems and history of intellectual property and how copying and derivative works are a core element of culture and invention. He’s now released the fourth and final installment in the series, and it’s a great summary look at the general problems with intellectual property law today.

Everything is a Remix Part 4 from Kirby Ferguson on Vimeo.

The key theme is that the theory (treating ideas, inventions, content, etc. as a form of “property” — in the minds of many copyright and patent system supporters) simply doesn’t match up with reality (where almost everything is a derivative work of some sort). What the video does nicely is highlight the hypocrisy of it all. As he notes brilliantly, when we copy (and everyone does copy), we justify it. When others copy, however, suddenly we attack them and vilify them. A perfect recent example of this, by the way, was former NYT executive editor Bill Keller’s bizarre defense of the NYT copying and posting a work covered by someone else’s copyright, just days after his own column came out in support of greater legal enforcement of copyrights.

As he notes, this is psychologically understandable. It’s all about “loss aversion.” People feel a sense that they “own” something which they really do not — and that’s often boosted by the concepts of intellectual property that really spread the idea that you can, in fact, own an idea (and, yes, technically neither copyright nor patents apply directly to “ideas,” but that’s a nuance that most people fail to grasp when they see how content and inventions are considered “owned” under the laws of today).

The video then talks about the continued expansion of copyright laws, and the more nefarious effort to continue to ratchet things up through trade agreements like ACTA and TPP. But he also points out that this is somewhat ironic, since in its early years, the US refused to sign similar trade agreements, and was a “pirate nation” that ignored copyrights from around the globe.

The video doesn’t just cover copyrights, but digs into patents as well — with specific attention paid to broad software patents that do little to contribute any knowledge to the world, but instead take broad concepts and seek to lock them up for the purpose of suing and trying to extract settlements from those actually creating and innovating.

From there he breaks out the original purpose of both copyrights and patents under the US system. In both cases, they were about benefiting the public: to encourage learning or to promote the progress of “useful” arts (inventions). But when the laws fail to do that, then we should see the system as broken and seek to remedy it.

All in all, Ferguson’s series is a great introduction to many of the issues we cover around here. I don’t fully agree with everything in all of the videos — and the latest one has a slight undertone suggesting that capitalism and markets in and of themselves are bad (which I think is conflating a few different issues). But overall the videos are fantastic — and in terms of production quality, it seems like each one in the series is better than the previous one. He keeps maturing as a video maker, which is cool to see. Ferguson is now moving on to a new project, called This is Not a Conspiracy Theory, for which he’s raising funds on Kickstarter, so check it out.

Related posts:

• TUAW on SOPA and PIPA: What they are and why we’re against them;
• New Video On How PROTECT IP Act Breaks The Internet;
• Your Start-Up Isn’t Unique, But That Doesn’t Matter;
• Everything is a Remix–Part 3
• Microsoft Co-Founder on Software “Borrowing”;
• Everything is a Remix;
• Nina Paley’s All Creative Work Is Derivative
  
• Masnick: Time To Remix Copyright Law: The Hip Hop Case Study

Sad. How anyone can think this is anything but anti-competitive is beyond me. This is not the free market. From

Apple Secures Win Against Motorola Over ‘Slide-to-Unlock’ Patent

• By Chloe Albanesius
• February 16, 2012 11:44am EST

Apple won another patent victory against Motorola today regarding Cupertino’s “slide-to-unlock” technology.

Judge Dr. Peter Guntz of the Munich I Regional Court found that some of Motorola Mobility’s products infringe on Apple’s slide-to-unlock image patent, according to patent blogger Florian Mueller, who attended this morning’s hearing.

The court evaluated three implementations of slide-to-unlock on Motorola devices. Apple won on the first two, which relate to Motorola smartphones, but lost on the third, which is used in the Motorola Xoom tablet.

“That implementation is very similar to what I have on my Samsung Galaxy Note: the user has to make a swiping gesture from the inside of a circle to the outside,” Mueller wrote in a blog post. “It requires a relatively large screen to work somewhat well, but even then it’s not very intuitive.”

What happens next is up to Apple. With today’s ruling, Apple has the right to enforce the injunction and pull the offending Motorola products from store shelves in Germany. But if Motorola wins on appeal, Apple will have to reimburse the company all the money it lost while its products were banned. As a result, Apple will have to decide if it’s worth the gamble.

Read more>>

From Reason Hit & Run:

Two Decades of Attempts to Enforce Copyright

Peter Suderman | February 15, 2012

See also Mike Masnick’s Techdirt post, How Much Is Enough? We’ve Passed 15 ‘Anti-Piracy’ Laws In The Last 30 Years.

Note also that although Lee does good work here surveying the last two decades of attempts to enforce copyright, Lee is not an opponent of patent or copyright. As I noted in $30 Billion Taxfunded Innovation Contracts: The “Progressive-Libertarian” Solution, in an IP debate on Cato, Lee wrote:

I can’t agree with Baker that all copyright and patent monopolies are illegitimate. Copyright and patent protections have existed since the beginning of the republic, and if properly calibrated they can (as the founders put it) promote the progress of science and the useful arts. Like any government intervention in the economy, they need to be carefully constrained. But if they are so limited, they can be a positive force in the American economy.

As I wrote in response: Ah, yes, that’s our job as market liberals–to help the state “properly calibrate” its grants of pattern privilege!

Also, in my post Thick and Thin Libertarians on IP and Open Source, I noted Lee had expressed some somewhat confused views on net neutrality, IP, and thin libertarianism; see also our interesting exchange there in the comments. Here’s hoping that as Lee examines more and more examples and evidence of the IP police state, Lee will finally come around to the position that copyright (and patent) should be abolished,  instead of thinking they should be “properly calibrated.”

From a post at reddit, a heartbreaking story of a grad student’s career destroyed by the mere threat of a copyright lawsuit from Fox even though he had a license from Isaac Asimov’s wife. This is one reason that, although I oppose a “loser pays” rule (see Is “Loser Pays” Libertarian? and Gizmodo: The US Patent System Is Killing Innovation), I would favor a “losing patent/copyright plaintiff pays” rule. As I proposed in Reducing the Cost of IP Law: “In the US system, a victorious defendant in a patent-infringement lawsuit usually still pays for his legal defense, which may run in the millions of dollars. The system should be changed so that a patentee who loses an infringement suit must pay the defendant’s legal and other costs. The IPO recently proposed a loser-pays approach, but in my view, the defendant should never have to pay the fees of the patentee, since the defendant did not instigate the suit.” The same goes for copyright defendants.

Copyright and patent are evil. Shame on people who support them. (h/t Keith Worrell)

This is Why I Pirate (self.SOPA)

submitted 16 hours ago by capt_wink_martindale

Very good, solid piece by Yglesias in Slate:

The Miracle of the Loaves and FishesPainting by Lambert Lombard.

I’m having a little bit of trouble discerning what exactly Caleb Crain and I are disagreeing about. He seems to think I’m mistaken about copyright policy, but he doesn’t quite specify what the nature of the disagreement is. He clearly finds me distasteful, and thus finds it pleasurable to muse on the possibility that he might steal my lunch (or reduce my salary to $0). But after considering these possibilities at length, he concedes—as I wrote earlier this month—that copying is in fact not stealing.

I’ve long been concerned that Creative Commons (CC) licenses are not enforceable. I’d like to explain, but a bit of background is necessary first.

General Confusion About IP

My main focus here is copyright, one type of so-called “intellectual property,” or IP, since CC has to do with licenses (permissions) for copyright-protected works or authorship.

Now IP is an umbrella term encompassing a number of different, but related, areas of law, such as patent, copyright, trademark, and trade secret.¹ Each of them is unjust and full of arcane, specialized concepts, non-intuitive and arbitrary rules, and ambiguous or even inconsistent provisions. It can be frustrating to discuss IP policy with laymen because of this. (And it’s always frustrating to discuss IP policy with “experts” because they almost always favor IP or at least take an ad hoc, unprincipled, utilitarian approach. They are never in favor of striking at the root or of radical proposals like copyright abolition, but only tepid and never-realized “reform.”)

The first problem is that most people can’t even keep the types of IP law straight. They talk about copyrighting an invention, though that’s what patents are for (Rothbard, in his critique of patent and state copyright, tried to articulate some limited defense of a type of private, contract-based protection for inventions, like mousetraps, using the term “copyright” to describe this).² They confuse patent with trade secret. They confuse copyright infringement with plagiarism when these have nothing to do with each other. They confuse trademark with protecting consumers from fraud, even though this is a big lie (if it’s about consumer fraud why not just rely on fraud law? why is it the trademark owner who gets to sue the guy who defrauds his customers, instead of the customers having the cause of action? why can the trademark owner sue the guy who sells a knockoff purse even when the consumer knows it’s a knockoff? why can the trademark owner sue someone else for “antidilution” even when there is no consumer confusion whatsoever?).

And another problem is business people often use “IP” to refer to their knowhow or technology. “Our IP is our way of doing X,” etc. This seems to be some form of metonymy (or is it reverse metonymy?), in which people refer to the thing protected by IP law (designs, recipes, etc.), as IP itself. It does get confusing. And this is to the advantage of the state, and advocates of IP. Proponents are special interest factions; those harmed by IP are diffuse and ignorant of the details. The story of the state.

Most people do not understand IP law at all, yet they cling to bromides and slogans they’ve heard the intellectual propagandists sling around. They think copyright is meant to protect the author, and so on. They think copying information is somehow “theft” or “piracy”³ and that emulating others in the market is somehow “unfair competition,” even though, umm, competition is what the free market is supposed to be about.⁴

Copyright, Public Domain, Hypocrisy, and Ignorance

A strange criticism is often made of copyright opponents, due to the above-noted ignorance and confusion. As I noted in Copyright is very sticky!, often we opponents of copyright are accused of hypocrisy because we purportedly “copyright” our articles and books. [continue reading…]

1. “Intellectual Property” as an umbrella term and as propaganda: a reply to Richard Stallman; Types of IP. [↩]
2. Discussed in Against Intellectual Property. [↩]
3. Sharing Is Not Piracy; Stop calling patent and copyright “property”; stop calling copying “theft” and “piracy”. [↩]
4. Intellectual Property Advocates Hate Competition. [↩]

I’ve argued before that There are No Good Arguments for Intellectual Property. This is why we are seeing The Death Throes of Pro-IP Libertarianism.¹ The latest competitor for the worst argument for IP comes in the section “MORAL 5: Anything can be property,” of one “Tomkow”‘s post The Origins of Property II. The argument is too insipid and stupid to spend much time on, but here are a few comments I dashed off to the author after he wasted my time by emailing me about this dreck.

He wrote me “Among the morals is that intellectual property can be property simpliciter.” My reply (edited to remove profanity and typos, because this stuff really annoys me):

Yes, you “can” treat non-scarce things as property. but “so what”? https://c4sif.org/2011/10/classifying-patent-and-copyright-law-as-property-so-what/

You “can” treat other humans as property too. So what?

The question is what property rules are justified.

“You can’t homestead on intellectual property.” Hunh? Awkward phrasing. confused. A sign of unclear thinking.

“The most rabidly libertarian sites on the internet regularly feature writers [i.e. Kinsella] who demand the socialization of intellectual property with the same fervor (and mostly the same arguments) as Marxists decrying the private ownership of steel mills.”

This is bullshit and dishonest question-begging. It’s only “socialist” if IP is property, or should be.

“The problem is usually framed like this: How can the simple fact that someone else thought of it first make it wrong for me to practice an invention or play a tune without that person’s permission?

I don’t think there is a good answer to that question, but it is the wrong question.”

It’s only the wrong question insofar as patents don’t even require you to be the first inventor to get the effing monopoly.

“in appreciation for his great service I now say to him and all of you that, from this day forward, if I should ever sing a note of that song I hereby grant permission to Wilt and everyone else here assembled to beat the crap out of me.”

Two problems here. First, in most cases today there IS no actual agreement. Second, even if this statement was made it ought not be enforceable for inalienability reasons. And by the way, not only does this “argument” for IP not even purport to justify patent, it doesn’t justify copyright either since copyright has nothing to do with contract. Nothing. Contracts is between two or some limited number of actual parties. Property rights, which IP pretends to be, is in rem–good against everyone in the world, whether there is a contract negotiated or not.

This is the worst argument for IP that I have ever seen. Just about. Completely sucks. Dishonest or shoddy or stupid, I am not sure which, but it is incoherent and moronic

1. See also The Four Historical Phases of IP Abolitionism. [↩]

Free software advocate Richard Stallman, a critic of some aspects of IP law (though not completely consistently, and not from a libertarian perspective),¹ emailed me recently to suggest that we opponents of IP should not use the term “Intellectual Property” to include patent, copyright, trademark, trade secret, etc., for two reasons. First: the term is biased in favor of the legitimacy of various IP laws. Second, it is inappropriate to treat various legal regimes under a common heading, as they are all very different. I agree with the first but not with the second point.

In support of his contentions he cited his article  Did You Say “Intellectual Property”? It’s a Seductive Mirage for the reasons. Below is an edited version of my response to his article.

[Update: See also Stallman, Did You Say ‘Intellectual Property’? It’s a Seductive Mirage; pdf; gnu; pdf]

***

Thanks for your comments. My book Against Intellectual Property [which Stallman had referred to but had not read] is online here https://c4sif.org/resources/ along with shorter pieces.

I have admired your work in the area, by the way, and your general skepticism of copyright, though I believe my view goes further than yours and has a different base, as my remarks below will reveal.

Here is my take on this issue.

I don’t like the term IP because it is a propaganda term used to justify state monopolies. But the fact I don’t like it doesn’t change the fact that words have meanings and we need to use them to communicate with others. Though I have flirted with other names and often call them pattern privileges, censorship, monopolies, and so on.

My main targets are patent and copyright, and I do think they bear some similarities. When I write they are usually the main things I attack and I treat them together since they suffer from similar flaws, and wreak similar damage. And I usually am careful to say “by IP I mean patent and copyright”.

But the fact is I oppose all IP of all types (and there are many types)—not only trademark and trade secret but other things like defamation law etc. I would abolish all of them as they all violate property rights, and in similar ways (I am a libertarian). I would abolish trademark and trade secret as well. The worst of all is copyright, and the next worst is patent. The others are all far behind, but are all unambiguously bad. I have tried to present a very coherent and consistent framework of justice and property rights (“Intellectual Property and Libertarianism”, “What Libertarianism Is“) and explain from that framework what is the nature of so-called IP (or pattern privileges) and why they are all completely unjust.

So I would agree that I don’t like the loaded term IP, and would prefer another term; but I would still use an overall umbrella concept to refer to the various types of IP, all of which are statist and amount to theft of real property. That is because my approach is a principled, systematic one, and I want to totally abolish all these forms of false property, for the same reasons, more or less. That said, as a practicing patent/IP attorney I can assure you I know the differences and point it out when necessary, e.g. when giving examples of how various types of IP cause harm (The Patent, Copyright, Trademark, and Trade Secret Horror Files) or when recommending incremental reform (How to Improve Patent, Copyright, and Trademark Law).

Let me address some of the claims in your article you linked, though not comprehensively, as my general stance is probably already evident from the above comments.

It has become fashionable to toss copyright, patents, and trademarks—three separate and different entities involving three separate and different sets of laws—plus a dozen other laws into one pot and call it “intellectual property”. The distorting and confusing term did not become common by accident. Companies that gain from the confusion promoted it. The clearest way out of the confusion is to reject the term entirely.

That is a strategical matter and I cannot claim to be an expert on this. If I opposed only patent, or copyright, or both, or only wanted reform instead of abolition, you might be right. I would be against drug laws, taxes, copyright, and patent, or for reform, and could not lump them all together (but actually I could: they all violate property rights; but patent and copyright do so in a similar way by a triangular intervention in the market by the state that grants a monopoly privilege to someone). But I am for abolition of all types of IP. Not just tinkering or improvement or reform.

What should I have called my book? Against Patent, Copyright, Trademark, Trade Secret, Boat Hull Design, Database Rights, Moral Rights, Defamation Law…? If there is nothing in common, why not throw in drug prohibition? If there is something in common, what general term would you propose? I could have called it Against Monopoly (and in fact Boldrin and Levine did call theirs Against Intellectual Monopoly) but I am not sure everyone knows what that means, and if I am writing against monopoly I would have to include the state’s monopoly status over courts, military, roads, etc.–yet that was not my focus. Or I could write one book on patents, one on copyright, and so on. Which seems the wrong approach.

Seriously: if I oppose the big 4: patent, copyright, trademark, and trade secret, what term would you recommend…? Your proposal below of GOLEM is not serious; no one would know what I am talking about. I don’t think becoming a lexical crank is going to help me communicate with people I am trying to communicate with. I prefer to just identify something by its common name, and then state clearly why I think it is wrong. I don’t think social security is really security, but I use that name. I don’t think the PATRIOT act is really patriotic. But that’s it’s name.  I don’t think the Dept. of Defense is engaged in defense, but rather aggression and war. I don’t think the No Child Left Behind Act really leaves no children behind. But I can’t pick the names of these statutes–their authors do.

According to Professor Mark Lemley, now of the Stanford Law School, the widespread use of the term “intellectual property” is a fashion that followed the 1967 founding of the World “Intellectual Property” Organization (WIPO), and only became really common in recent years. (WIPO is formally a UN organization, but in fact represents the interests of the holders of copyrights, patents, and trademarks.) Wide use dates from around 1990. (Local image copy)

The term carries a bias that is not hard to see: it suggests thinking about copyright, patents and trademarks by analogy with property rights for physical objects. (This analogy is at odds with the legal philosophies of copyright law, of patent law, and of trademark law, but only specialists know that.)

These laws are in fact not much like physical property law, but use of this term leads legislators to change them to be more so. Since that is the change desired by the companies that exercise copyright, patent and trademark powers, the bias introduced by the term “intellectual property” suits them.

The bias is reason enough to reject the term, and people have often asked me to propose some other name for the overall category—or have proposed their own alternatives (often humorous). Suggestions include IMPs, for Imposed Monopoly Privileges, and GOLEMs, for Government-Originated Legally Enforced Monopolies. Some speak of “exclusive rights regimes”, but referring to restrictions as “rights” is doublethink too.

Some of these alternative names would be an improvement, but it is a mistake to replace “intellectual property” with any other term. A different name will not address the term’s deeper problem: overgeneralization. There is no such unified thing as “intellectual property”—it is a mirage. The only reason people think it makes sense as a coherent category is that widespread use of the term has misled them.

The term “intellectual property” is at best a catch-all to lump together disparate laws. Nonlawyers who hear one term applied to these various laws tend to assume they are based on a common principle and function similarly.

Nothing could be further from the case. These laws originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues.

Copyright law was designed to promote authorship and art,

and covers the details of expression of a work. Patent law was intended to promote the publication of useful ideas, at the price of giving the one who publishes an idea a temporary monopoly over it—a price that may be worth paying in some fields and not in others.

Trademark law, by contrast, was not intended to promote any particular way of acting, but simply to enable buyers to know what they are buying.

Legislators under the influence of the term “intellectual property”, however, have turned it into a scheme that provides incentives for advertising.

Since these laws developed independently, they are different in every detail, as well as in their basic purposes and methods. Thus, if you learn some fact about copyright law, you’d be wise to assume that patent law is different. You’ll rarely go wrong!

People often say “intellectual property” when they really mean some larger or smaller category.

For instance, rich countries often impose unjust laws on poor countries to squeeze money out of them. Some of these laws are “intellectual property” laws, and others are not; nonetheless, critics of the practice often grab for that label because it has become familiar to them. By using it, they misrepresent the nature of the issue. It would be better to use an accurate term, such as “legislative colonization”, that gets to the heart of the matter.

Laymen are not alone in being confused by this term. Even law professors who teach these laws are lured and distracted by the seductiveness of the term “intellectual property”, and make general statements that conflict with facts they know. For example, one professor wrote in 2006:

Unlike their descendants who now work the floor at WIPO, the framers of the US constitution had a principled, procompetitive attitude to intellectual property. They knew rights might be necessary, but…they tied congress’s hands, restricting its power in multiple ways.

That statement refers to Article 1, Section 8, Clause 8 of the US Constitution, which authorizes copyright law and patent law. That clause, though, has nothing to do with trademark law or various others. The term “intellectual property” led that professor to make false generalization.

The term “intellectual property” also leads to simplistic thinking. It leads people to focus on the meager commonality in form that these disparate laws have—that they create artificial privileges for certain parties—and to disregard the details which form their substance: the specific restrictions each law places on the public, and the consequences that result. This simplistic focus on the form encourages an “economistic” approach to all these issues.

Economics operates here, as it often does, as a vehicle for unexamined assumptions. These include assumptions about values, such as that amount of production matters while freedom and way of life do not, and factual assumptions which are mostly false, such as that copyrights on music supports musicians, or that patents on drugs support life-saving research.

Another problem is that, at the broad scale implicit in the term “intellectual property”, the specific issues raised by the various laws become nearly invisible. These issues arise from the specifics of each law—precisely what the term “intellectual property” encourages people to ignore. For instance, one issue relating to copyright law is whether music sharing should be allowed; patent law has nothing to do with this.

Patent law raises issues such as whether poor countries should be allowed to produce life-saving drugs and sell them cheaply to save lives; copyright law has nothing to do with such matters.

Neither of these issues is solely economic in nature, and their noneconomic aspects are very different; using the shallow economic overgeneralization as the basis for considering them means ignoring the differences. Putting the two laws in the “intellectual property” pot obstructs clear thinking about each one.

Thus, any opinions about “the issue of intellectual property” and any generalizations about this supposed category are almost surely foolish.

If you think all those laws are one issue, you will tend to choose your opinions from a selection of sweeping overgeneralizations, none of which is any good.

If you want to think clearly about the issues raised by patents, or copyrights, or trademarks, or various other different laws, the first step is to forget the idea of lumping them together, and treat them as separate topics. The second step is to reject the narrow perspectives and simplistic picture the term “intellectual property” suggests. Consider each of these issues separately, in its fullness, and you have a chance of considering them well.

SK

1. See my posts Stallman: An Internet-Connectivity Tax to Compensate Artists and Authors; Eben Moglen and Leftist Opposition to Intellectual Property; and An Open Letter to Leftist Opponents of Intellectual Property: On IP and the Support of the State; also Nina Paley’s “Rantifesto”: Why are the Freedoms guaranteed for Free Software not guaranteed for Free Culture?. [↩]
2. See my posts On the Danger of Metaphors in Scientific Discourse; Hume on Intellectual Property and the Problematic “Labor” Metaphor; Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors; Locke, Smith, Marx and the Labor Theory of Value. [↩]
3. See The Surprising History of Copyright: Karl Fogel at Google Tech Talks. [↩]
4. See Yet Another Study Finds Patents Do Not Encourage Innovation. [↩]
5. See my The Death Throes of Pro-IP Libertarianism”, The Four Historical Phases of IP Abolitionism. [↩]
6. “Ideal objects” is Tom Palmer’s term; Roderick Long notes there should not be property in information because information “is a universal, existing in other people’s minds and other people’s property, and over these the originator has no legitimate sovereignty. You cannot own information without owning other people.” See Tom Palmer, “Intellectual Property: A Non-Posnerian Law and Economics Approach” and “Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects”; Roderick Long, The Libertarian Case Against Intellectual Property Rights. Also see Long’s “Bye-Bye for IP,” Austro-Athenian Empire Blog (May 20, 2010). See also “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward”, the section “Resources, Properties, Features, and Universals“. [↩]

I just came across a pretty nice review of my monograph Against Intellectual Property, by anarchist “Abject Dogma,” as part of his “10 Book Reviews in 10 Days” series (others in his 10-part series can be found here):

Abject Dogma

The Abject Dogma of an Anarchist Martinet

10 Book Reviews in 10 Days: Day 6

5-23-2011
Number 5 – Against Intellectual Property by Stephan Kinsella

Against intellectual Property is by far one of the most important documents in libertarian theory. As far as condensed information goes only Gustav de Molinari’s ‘The Production of Security’ or ‘Anatomy of the State’ rival ‘Against IP’. IP as anyone reading this already knows is a hot topic among libertarians. Because of the focus on property rights that is the crux of libertarianism and voluntarism many people take for granted the idea of IP. Others, mostly objectivists, cite Ayn Rand’s disposition towards her own works and her…some would say fanatical defense of IP. In my own personal experience there seem to be an unusual number of software engineers/coders/etc who defend IP…which makes sense due to the (near)infinitely copyable nature of their work though I wonder how many of them regularly visit The Pirate Bay. Unfortunately for them though you don’t get to violate the NAP whenever it is convenient or relevant to your employment.

Kinsella’s argument is multi-faceted; he refutes Utilitarian, Natural Rights, Contract and property-rights defences of IP and the book is targeted towards libertarians and non-libertarians alike. This book is only about 60 pages long but managed to fully convince me that this issue is settled from an An-Cap stand point. Kinsella argues that not only does IP not help innovation but stifles it. The property rights argument was actually settled by Rothbard in Man, Economy, & State where he explicitly states that recipes are not property and this extends to IP as well being that any given item of IP is not scarce and therefore not an economic good, Kinsella merely elaborates this point but it was a necessary elaboration.

The two most important arguments in ‘Against IP’ are that contracts cannot bind a third party and that you have no right to ‘the value of the property’. For the former: A contracts with B to not copy a mousetrap but C sees the mousetrap on B’s desk. C is under no contractual obligation to not copy the mousetrap. The latter is basically a reference to Hans-Herman Hoppe who successfully argued that you only have a right to your property’s physical integrity not to any ‘intrinsic value’. Both of these have been vital in the evolution of my own thought and will serve anyone as a primer to further libertarian philosophy especially Block and his endlessly entertaining defense of the right to blackmail.

Final Score: 9.25
Topic appeal: 10
Information: 8
Execution: 9.5

Special modifier: — No modifier for this one, it is a solid work with few flaws and I wish it had ended the IP discussion among libertarians once and for all, alas that is not the case which is endlessly frustrating. If anyone would like to yell at me about how vital IP is [email protected] for all of your hate-mail.