Letter on Intellectual Property Rights, IOS Journal (June 1995)

by Stephan Kinsella on August 31, 2022

Stephan Kinsella, “Letter on Intellectual Property Rights,” IOS Journal 5, no. 2 (June 1995), pp. 12-13. This issue also contains David Kelley, “Response to Kinsella,” IOS Journal 5, no. 2 (June 1995), p. 13; and Murray I. Franck, “Intellectual and Personality Property,” IOS Journal 5, no. 3 September 1995), p. 7.

This was the journal of David Kelley’s Institute for Objectivist Studies, or IOS, which is now The Atlas Society. The letter was a response to Murray I. Franck, “Intellectual Property Rights: Are Intangibles True Property?“, IOS Journal (April 1995). Franck, and later Kelley, argued for IP; I argued against it.

See also a subsequent response from The Atlas Society to my IP criticisms in Marilyn Moore, “Ayn Rand’s ‘Patents and Copyrights,'” AtlasSociety.org (May 28, 2019).

N.b.: some back issues of IOS Journal are archived here.

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Radu Uszkai, “Are Copyrights Compatible with Human Rights?”

by Stephan Kinsella on August 30, 2022

Radu Uszkai, “Are Copyrights Compatible with Human Rights?,” The Romanian Journal of Analytic Philosophy 8 (2014), pp. 5–20.

Abstract:

The purpose of the following study is that of providing a critical analysis of Intellectual Property (IP), with a closer look on copyright, in the context of human rights. My main conjecture is the following : the legal infrastructure stemming from the implications of copyrights which states created has negative consequences if we have a closer look at some human rights specified by The Universal Declaration of Human Rights (UDHR). For example, copyrights are, in my view, incompatible with the human rights which specify that (1) human beings have a right to freely take part in the cultural and scientific life of the communities which they inhabit and (2) human beings have a right to own property. My main hypothesis is the following : if copyrights are, in fact, more difficult to ground from a moral perspective, then this considerations must trump the provision of the 27th article of the UDHR, which states that creators, be they artists or researchers, have a human right to have their moral and mate‑ rial interests protected with regard to their intellectual products, if this amounts to a justification for a copyright.

This paper is also relevant to the points made in Intellectual Property Rights as Negative Servitudes.

See also idem, “The Use of Torrents in Society,” Libertarian Papers vol. 10 (2018).

Abstract:

This paper explores whether the case against intellectual property can be strengthened by appealing to the work of F.A. Hayek. It strives first to establish a Hayekian research agenda on copyright by providing a unified reading of Hayek’s scattered remarks and positioning them within a broader picture of the contemporary philosophy, politics, and economics of IP. Secondly, exploring peer-to-peer (P2P) file sharing and copyright infringement through a Hayekian lens suggests what might be a useful analogy between the ability of torrent downloads and prices to convey information. Last but not least, the paper ends on a skeptical note concerning the moral and economic foundations of copyright by presenting what I consider a more Hayekian alternative: crowdfunding platforms.

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“Investment Grade Patents are not for Rent Seeking … They are for business negotiations”

by Stephan Kinsella on August 30, 2022

The hapless patent attorney/shill Russ Krajec,¹ of “BlueIron,” an IP consulting thing, or something, in a recent ineptly written piece, tries to criticize the extortion that lies behind patent trolling, and to distinguish it from “legitimate” “investment grade patents.” He writes:

Investment Grade Patents are not for Patent Trolling
They are for business negotiations.
Patent trolling is the business of extortion. Generally, patent trolling is when someone sues for patent infringement but is willing to settle for less than the cost of litigation. It is extortion, pure and simple.

This reminds me of my post Patent trolls as mafioso (and that’s a compliment), quoting The Godfather II:

Don Fanucci: Young man, I hear you and your friends are stealing goods. But you don’t even send a dress to my house. No respect! You know I’ve got three daughters. This is my neighborhood. You and your friends should show me some respect. You should let me wet my beak a little. I hear you and your friends cleared $600 each. Give me $200 each, for your own protection. And I’ll forget the insult. You young punks have to learn to respect a man like me! Otherwise the cops will come to your house. And your family will be ruined. Of course, if I’m wrong about how much you stole, I’ll take a little less. And by less, I only mean – a hundred bucks less. Now don’t refuse me. Understand, paisan? Understand, paisan?… Tell your friends I don’t want a lot. Just enough to wet my beak. Don’t be afraid to tell them!

Or see Hsieh and Mossoff on IP and Sewing Machines, quoting Objectivist law professor Adam Mossoff:

the fact remains that [patent] lawsuits are often no more than an invitation to negotiation. “Oftentimes the way a party signals to another party in one’s industry, ‘I’m serious about this–you need to speak with me,’ is by filing a lawsuit,” says Mossoff.

Hey, Krajec, I got news for you–the license fees extorted by your “investment grade patents” are still extortion. One could even argue patent trolls–so-called “non-practicing entities”–and “junk patents” are the not as bad as “good” or “investment grade” patents held by “practicing entities,” since patent trolls don’t want to kill the infringer, they just want “a taste”.

See KOL284 | Talking IP and Patent Policy with Patent Attorney Russ Krajec. [↩]

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Hettinger v. Paine: Justifying Intellectual Property Rights

by Stephan Kinsella on August 25, 2022

After Edwin C. Hettinger’s paper “Justifying Intellectual Property,” Philosophy & Public Affairs, Vol. 18, No. 1 (Winter, 1989), pp. 31–52, critical of IP, Lynn Sharp Paine responded in “Trade Secrets and the Justification of Intellectual Property: A Comment on Hettinger,” Philosophy & Public Affairs, Vol. 20, No. 3 (Summer, 1991), pp. 247–63 (text).

The debate is summarized in “Hettinger v. Paine: Justifying Intellectual Property Rights” by Professor Adam D. Moore.¹ Moore’s overview of Hettinger’s critique of IP rights:
[continue reading…]

Moore is author of Intellectual Property and Information Control: Philosophic Foundations and Contemporary Issues (Routledge, 2001; pdf), Intellectual Property: Moral, Legal, and International Dilemmas, ed. (Lanham, Md.: Rowman & Littlefield, 1997; pdf; Introduction), and the forthcoming Intellectual Property: Moral and Legal Foundations. [↩]

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Wojciech Gamrot, “The type individuation problem”

by Stephan Kinsella on August 24, 2022

Maybe a better, more comprehensible title, would have been “fuck IP”.

Wojciech Gamrot, “The type individuation problem,” Studia Philosophica Wratislaviensia, vol. XVI, fasc. 4 (2021); DOI: https://doi.org/10.19195/1895-8001.16.4.3 [pdf]

Abstract: Lockean justifications of intellectual property postulate the appropriation of immaterial entities, in various contexts called types, patterns, designs, or technologies. It is widely believed that the ownership of such entities gives the owner a right to control their physical embodiments and prohibit imitation. For the prohibition to be meaningful, a condition identifying forbidden objects must be formulated. It must cover not only objects which are identical to some original artifact or its exact, ideal description, but also those which are only similar. This requires systematic answers to three questions: (1) which material structures and which of their subsets should be compared? (2) which of their characteristics should be compared? (3) how to combine these characteristics into a decision rule for token identification? There is no underlying empirical reality that could be independently consulted by individuals in order to incontestably answer these questions. Meanwhile constant evolution in technology and arts requires addressing them repeatedly. Consequently, intellectual property regimes must rely on political institutions incessantly dictating the scope of prohibition, and hence they cannot originate or exist in a prelegal state of nature.

[continue reading…]

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Maresca: “From the White-PillBox: Part 27. Achilles Heel edition 1: Intellectual Property”

by Stephan Kinsella on August 24, 2022

From the White-PillBox: Part 27. Achilles Heel edition 1

The State’s Achilles Heels, starting with Intellectual Property.

Mark Maresca Aug. 9, 2022

This is the first in a sub-series of the White Pill essays. They will examine some of the State’s obvious (and not-so-obvious) vulnerabilities.

Like any bully, the State can be formidable. But it has numerous Achilles Heels. These are attributes or outcomes that are pressure points…weak links in the State apparatus. This makes every one of them a solid White Pill.

Most of them will be familiar to freedom advocates, but one in particular (Intellectual Property) merits special attention. It will be the entire focus of this installment; upcoming essays will cover the White Pills of other State Achilles Heels.

A Recurring Fallacy: “IP is a Purer Form of Property than Material Resources”

by Stephan Kinsella on August 7, 2022

Various IP advocates sometimes argue IP is an even purer or stronger form of property than property rights in material resources, because with those, you just find them and they already exist, and you come to own them by adding some of your own labor or transformation to them (this is also similar to the criticism of property rights in land by moronic Georgists),¹ but with ideas, they come purely from the intellect so are 100% the product of the creator.

This is all nonsense of course. For one, all ideas are also incremental and build on previous knowledge developed, publicized, and advanced by others. But the fundamental mistake is in the assumption that creation is a source of ownership. See, e.g., my post Owning Thoughts and Labor; also Against Intellectual Property After Twenty Years: Looking Back and Looking Forward, the “Lockean Creationism” section here; and KOL037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory.

In the end, this “IP is more important/justified than others types of property rights” is the end result of Lockean Creationism—the deeply confused and flawed idea that property rights come from creation. Once you accept that, then it seems to follow that if you create a poem or invention, you own that too. But then, you realize that perpetual patent and copyright terms would be a problem, so you arbitrarily limit these “rights.” It’s a mess. And it highlights why we need to demolish and bury Lockean/Libertarian Creationism.

But for some examples I’ve collected (I will add more over time as I stumble across them): [continue reading…]

See my post Egads, I hate Georgism. [↩]

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James L. Walker (Tak Kak), “The Question of Copyright” (1891)

by Stephan Kinsella on July 28, 2022

See also Benjamin Tucker and the Great Nineteenth Century IP Debates in Liberty Magazine.
Title:The Question of Copyright
Author: James L. Walker

Topics: egoism, individualism, intellectual property

Date: 1891

Source: http://fair-use.org/tak-kak/the-question-of-copyright/

An amazingly perceptive work for something written so long ago. For example, here is Walker skewering and anticipating the practice of Monsanto and others with their ridiculous seed patents:

Profit is gain by monopoly. What Spencer seeks from copyright is gain; and he wishes to be protected against others doing the same acts as himself and his assigns. But equal liberty permits him to do merely such acts as he can do without interfering with the equal liberty of others. Since Spencer remains at liberty to copy, we do not invade his liberty by copying. He, however, wishes to be the sole copyist or to sell the privilege as regards his compositions. But thus he would mingle a certain amount of labor with natural elements which he did not create, and that universally. He would exercise ownership and receive pay where he knows not. Like one who discovers and first cultivates a new variety of wheat and lays claim to a share of the increase of all fields where it is sown, he is a monopolist.

I grant that it is allowable for Mr. Yarros and others to voluntarily submit to such royalties, but suppose that one who has bought a bushel of the new wheat, grown more, and so far paid the demand of the discoverer from his crop, sells the rest. The burden of proof in the question of ethics is, I think, decidedly on the other side, on a claim that royalty attaches to the culture by any hands and intelligence.

And here he eviscerates the ridiculous “bundle of rights”/contract argument for IP, which Rothbard himself later advanced:¹

If one can sell his liberty to copy his writings, can he not sell his liberty to build a second house after the pattern of the first? Can he not sell his liberty to follow a trade? Can he not bargain for a conjugal privilege that he will not have other conjugal relations? And if one of these transactions receives the social sanction, why not the others?

If, however, I have an inalienable right to rebuild according to my own plans have I not a right to engage others to help me? And have not others a right to do for themselves on their own land what they have a right to do for me for hire on my land? Let the answers be given by reference directly to liberty,—to the maximum of equal liberty, may I say? If, then, the inquiry via the corollary seems to some persons to show an infringement upon a gain which has an appearance of being a proprietary result, it will be well for them to examine all the factors, to discover where there has been a false principle admitted. In these articles I have anticipated this position. Perhaps I need only add now that it is not incumbent upon society to guarantee the individual a certain gain for his labor. Equal liberty being admitted, he must be content with whatever gain follows.