It’s the wrong question to ask, the wrong way to frame it, and of course, wrong and pro-IP as usual. It’s sad the Federalist Society keeps pushing this.

Oh well, at least they allowed a sane voice at least one time: KOL235 | Intellectual Property: A First Principles Debate (Federalist Society POLICYbrief). But as noted there,

overall the Federalist Society has presented basically the pro-IP side (More defenses of IP by the Federalist Society; Federalist Society Panel: Undermining or Preserving Property Rights? The New Administrative Patents). I pestered them over years to include more balanced treatment in their bibliography, to no avail (Anti-IP Material Needed in the IP Section of the Federalist Society’s “Conservative & Libertarian Legal Scholarship: Annotated Bibliography”).

The moronic shills at IPWatchdog, including the oafish Gene Quinn, who writes like a 9th grader and used to illiterately list his master’s degree as an L.L.M. (it’s an LL.M, genius) (see here and here), won’t stop their senseless cheerleading for IP:

How the History of Patents Can Teach Us What a World Without Them Might Be Like

Despite its longevity, the patent system is often criticized. During the pandemic, accusing eyes quickly turned to patents and voices were raised demanding that patents related to COVID-19 be “waived”. This is not an isolated event: some have argued that we would be better off without patents for various reasons in other crises of the past as well. This raises the question of what a world without patents – as we know them today – would be like. As is often the case, history gives us some valuable insight. In this article, we will look specifically at three risks posed by a world without patents in light of real examples from the past.

One of my first published anti-IP pieces: “Is Intellectual Property Legitimate?” (local copy; archived copy), Pennsylvania Bar Association Intellectual Property Newsletter 1 (Winter 1998): 3; republished in the Federalist Society’s Intellectual Property Practice Group Newsletter, vol. 3, Issue 3 (Winter 2000). See also James Stern: Is Intellectual Property Actually Property? [Federalist Society No. 86 LECTURE]

[continue reading…]

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.

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

Abstract:

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.

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”.

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

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).

1. 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. [↩]