William C. Robinson, The Law of Patents for Useful Inventions, vol. 1 (Boston: Little, Brown, and Co., 1890) (Amazon; google books; HathiTrust), §24 (first footnote omitted):

In pursuing this investigation the relations of an inventor and the public to an unpatented invention first demand attention. In its earliest stage this invention is a mere addition to the stock of ideas possessed by the inventor. He has imagined or discovered something which to himself, and presumably to all the world, is new, and has conceived a method by which his idea may be so applied as to produce a tangible and valuable result. In this stage he has a natural exclusive right to his invention. No one can compel him to disclose his secret. He may reduce it to actual practice, or preserve it as a matter of subjective contemplation. The law can take no other notice of it than it does of his moral sentiments or his personal recollections. If, however, he endeavors to avail himself of this idea in his exterior life, his position in regard to it is somewhat changed. The material forms in which he then empbodies it are his, but the idea itself is not to be imprisoned within their narrow bounds. Every one who examines and can understand them immediately conceives the same idea, whether he will or not, and thenceforward that idea remains as much a part of the observer’s fund of knowledge as it ever was of that of the inventor. In order, therefore, to retain exclusive ownership of his idea, he must withhold its material embodiment from observation; and as long as he can do this, the invention is as truly his by natural right as if it never had been thus externally expressed. But with his submission of the tangible result of his idea to the inspection of others, in such a manner that the idea itself become apparent, its control over it is gone. An idea once communicated can no longer be exclusively appropriated and enjoyed. Every one who receives it possesses it in the same degree as if he alone had apprehended it, and its inventor has no power to restrain him from its practical and useful application. Under the laws of nature the exclusive public use of an invention is thus impossible, and hence there is no natural right to such a use. The inventor, who voluntarily discloses his invention to the public, necessarily and freely dedicates it to the public; and that which formerly was his alone by virtue of his sole possession becomes by universal possession the common property of all mankind.²

2. Coryton:¹ (45) “So far as natural right is concerned, the application of a law of nature, a philosophical or abstract principle, is capable of exclusive appropriation only so long as the secret of such application is within the inventor’s breast. Once passed, it becomes the property of all mankind.”

Norman:² (2) “Independently of an express restriction by the sovereign authority in a state, there is no such thing as exclusive property in an invention. The subject-matters of human inquiry are free to all men. An addition once made to the stock of knowledge is common property forever, nor is it less the property of the discoverer because others possess it as well as himself. It is in its nature infinite and incapable of appropriation. The first builder of a house could claim as his own the substantial and tangible materials, the logs and wood of which he constructed it; but the idea of wuch an erection became instantly the property of all mankind. The abstract natural right of the inventor is only to exercise his own invention freely.”

In The Attorney-General ex rel. Hecker v. The Rumford Chemical Works (1876), 9 O.G. 1062, Shepley, J.: (1064) “So long as such writings and discoveries were not communicated to the public, authors and inventors had a possession of, which was equivalent to a property in, their writings and discoveries. When communicated to the public, by the common law that property was lost.”

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1. Apparently this is a reference to Coryton on Patents (1855).  [↩]
2. Apparently: John Paxton Norman, A Treatise on the Law and Practice Relating to Letters Patent for Inventions (1853; Amazon).  [↩]

Whenever there is “bipartisan” legislation in Congress, hold to your wallets, for they are coming after it.¹ Or, in this case, they are going to make the patent system worse, i.e. “improve” it. Don’t you know, it’s “broken.”

IP law almost never gets better. It always gets worse. The copyright terms keep getting extended—from 14 years extendable once, to life of the author plus fifty years, now life of the author plus seventy years.² There is  constant agitation to make the copyright fair use defense harder to invoke, constant calls to expand copyright to cover links, newspaper story headlines, and so on. Patent law almost never gets better, except as the random happenstance of court interpretations of its nonobjective and vague standards, e.g. in eBay Inc. v. MercExchange, L.L.C., the 2006 case that mercifully made it somewhat more difficult for patentees to get injunctions against their victims. Something patent terrorists continually whine about.³ The only meaningful improvement in the entire history of US patent law—from 1790 to now—that I am aware of was an expansion of prior user rights in Obama’s 2011 America Invents Act.⁴ But this was pretty minor. Okay there was one other minor one too, that I mention below. The other changes were all window dressing, though you would not know it from the caterwauling of patent shills who freak out about every tiny change to avoid real change ever being considered. They want to keep that Overton window small.

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1. See also: “Run for your life from any man who tells you that money is evil. That sentence is the leper’s bell of an approaching looter.” —Ayn Rand, “Francisco’s Money Speech” and: “Is there a need to reform taxes? Most certainly. Always and everywhere. You can always make a strong case against all forms of taxation and all tax codes and all mechanisms by which a privileged elite attempts to extract wealth from the population. And this is always the first step in any tax reform: get the public seething about the tax code, and do it by way of preparation for step two, which is the proposed replacement system. Of course, this is the stage at which you need to hold onto your wallet.” —Lew Rockwell [↩]
2.  As I sarcastically observed here, the rules for determining the term of a copyright are clearly the product of natural law. See KOL012 | “The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism,” Austrian Scholars Conference 2008. [↩]
3. Adam Mossoff & Eric Claeys, “Patent Injunctions, Economics, and Rights“; Christopher B. Seaman, “Permanent Injunctions in Patent Litigation After eBay: An Empirical Study“. These support finite terms for patents, even though the number is totally arbitrary: “the exclusionary rights secured by a patent should account for “how long it would have taken, in the absence of knowledge of the invention, for independent discovery” resulting from the productive labors of others.43 This concern is addressed by duration limits.44″ (P. 7) It’s hard to believe they seriously believe that Congress knows and had determined what the “right patent term should be. 17 years? Why? Why should it be the same for all types of patents? Why shouldn’t the courts or the PTO figure it out? Jesus Christ, how can they bear to repeat such utter nonsense! This was the same stupid shit Neil Schulman proposed, as I noted elsewhere: “which is what J. Neil Schulman proposes in his logorights idea–just have some panel of “experts” use “information theory” to figure out how long each patent should last–1.3 years for this one. 26 years for that one. and so on.” See Optimal Patent and Copyright Term Length. As Schulman writes: “Taking the “lowering entropy” argument too far into the area of physical thermodynamics runs one quickly into problems of both fact and theory; the comparative “entropy levels” of a car, a piece of junk, and a chunk of ore are incalculable. Nevertheless, I believe the “entropic” paradigm of regarding creation as a “calculable increase in improbability” is sound within the context of information theory, where one discusses the “entropy” of a signal; and, in fact, I’m told there are existing formulas, used by the Search for Extra-Terrestrial Intelligence (SETI), to calculate the “improbabilities” of a signal being a “natural” occurrence as opposed to being artificially generated “information.” J. Neil Schulman, Origitent: Why Original Content is Property (Steve Heller Publishing, 2018), p. 40. And now you have these guys buying into this. What’s their authority? Nozick’s dilettantish remarks in his anarchy book; he didn’t know anything about IP law, or even how to justify rights! Oh, and Ayn Rand, who made up some makeweight argument. And of course the Congress and the US Code that “says” what the patent term is. Oh, that’s some proof! See also Yaron Brook on the Appropriate Copyright Term; Hawley Introduces Bill to Reduce the Copyright Term; Reason: Copyright Should Last Half A Century; and see the remarks on copyright term and related matters by Tom Bell and Jerry Brito in Tom Bell on copyright reform; the Hayekian knowledge problem and copyright terms. [↩]
4. “Obama’s Patent Reform: Improvement or Continuing Calamity? [↩]

X:

[I’m a law student in a foreign country]

I’ve found many interesting subjects regarding Intellectual Property, especially this debate inside the libertarian community, with Austrian economists’ and anarcho-capitalists postures being the ones I’m the most curious about. This is where I found your articles and your contact information.

Before, while doing some personal investigation about ways to achieve more liquidity from copyrights and their use as assets I found out that decentralization through the use of blockchain and DLTs in creative works markets and the participation of artists and authors in such tends to provide more efficiency and effectiveness for this purpose, of artists and authors getting paid for their works, I’m also a musician so that’s why I was trying to learn about this subject. [continue reading…]

Contra la propiedad intelectual, Spanish translation of Against Intellectual Property (Scribd version; print version; pdf; local pdf (with foreword); Word; Vanguardia Libertaria). Traducción y prólogo: Mariano Bas Uribe. The prólogo, which included in the print version but missing from the files provided above, is reproduced below along with an English translation.

Prólogo

Contra la Propiedad Intelectual
By Stephan Kinsella (Against Intellectual Property)
Traducción y prólogo: Mariano Bas Uribe

Stephan Kinsella es uno de los expertos en uno de los asuntos menos tratados por la literatura libertaria reciente: la propiedad intelectual. Siendo él mismo abogado de propiedad intelectual, su postura en contra de su existencia no deja de resultar sorprendente, aunque también es un reflejo de su fidelidad a sus principios.

El libro que tiene el lector en sus manos contiene su obra principal, Contra la propiedad intelectual, y en él hace un repaso tanto de los distintos tipos de propiedad intelectual (patentes, derechos de autor, marcas registradas y secreto industrial) como de las distintas argumentaciones libertarias a favor y en contra de esta.

En un momento en el que la influencia en la política del llamado mundo de la «cultura» (al menos en España) va ganando cada vez mayor peso y ejerce su influencia para obtener dividendos materiales reforzando la legislación de protección de la propiedad intelectual, no parece fuera de lugar replantearnos la justicia y validez de esta institución.

La tesis esencial de Kinsella se basa en la función social de la propiedad. Como ha indicado repetidamente Hans-Hermann Hoppe, la función de la propiedad es la de resolver conflictos sobre el uso de los objetos. El hecho de que las cosas materiales posean un dueño evita los conflictos sobre su uso y resuelve el problema de la escasez. La llamada propiedad intelectual no se ve en absoluto afectada por este problema, ya que el uso de la misma no es exclusivo: por ejemplo, si estoy escuchando una canción, no se la estoy «quitando» a nadie y la copia de esta a un nuevo soporte no hace que desaparezca el original.

Pero Kinsella no se limita a hacer una exposición economicista-libertaria. También se ocupa de los argumentos relacionados con el fomento de la creación, el utilitarismo y el derecho natural, siempre con gran abundancia de ejemplos y notas a pie de página que facilitan al lector curioso la profundización en los argumentos aportados por el autor (lamentablemente, muchos de estos títulos están en inglés, aunque el volumen de literatura en español esté aumentando, gracias, entre otras cosas, a la labor de entidades como Unión Editorial, responsable de esta edición).

A pesar de que la edición original de este libro (de 2001) tiene ya unos años, la gran mayoría de sus argumentos siguen siendo válidos y permiten una visión general de los problemas planteados. Kinsella sigue escribiendo y aportando ideas dentro del entorno del Instituto Mises, siendo asimismo director del The Center for the Study of Innovative Freedom (https://c4sif.org/) y editor de Libertarian Papers (http://libertarianpapers.org/). Remitimos asimismo al autor curioso a esas publicaciones si quiere mantenerse al día sobre este asunto.

La propiedad intelectual es un asunto controvertido dentro del pensamiento libertario, incluso en el entorno estrictamente anarcocapitalista, por lo que este libro constituye una aportación extraordinaria a los muchos debates que se pueden plantear en este sentido. Kinsella atrae por la solidez de su argumentación, su erudición y su capacidad de explicación de los distintos argumentos, abarcando los puntos de vista de libertarios tan importantes como Rothbard, Rand, Block o David Friedman, sin olvidar algunos puntos de vista peculiares como los de Galambos. También expone algunos temas menos tratados, como la distinción entre descubrimiento e invención.

Kinsella concluye con un ensayo sobre la posibilidad de establecer algún tipo de propiedad intelectual basado en contratos, criticando ciertas aportaciones de Rothbard (que no estaba en contra de la propiedad intelectual), y termina con un curioso apéndice con ejemplos cuestionables de patentes y derechos de autor que nos deberían llevar a reflexión.

***

Foreword

Against Property Intellectual
By Stephan Kinsella (Against Intellectual Property )
Translation and foreword: Mariano Bas Uribe

Stephan Kinsella is one of the experts on one of the least discussed issues in recent libertarian literature: intellectual property. As an intellectual property lawyer himself, his stance against its existence is surprising, although it also reflects his commitment to his principles.

The book you are holding contains his main work, Against Intellectual Property , and in it he reviews both the different types of intellectual property (patents, copyrights, trademarks and industrial secrets) and the different libertarian arguments for and against it.

At a time when the so-called “cultural” world (at least in Spain) is gaining increasing political influence and exerting its influence to obtain material benefits by strengthening intellectual property protection legislation, it does not seem out of place to reconsider the justice and validity of this institution.

Kinsella ‘s essential thesis is based on the social function of property. As Hans-Hermann Hoppe has repeatedly pointed out, the function of property is to resolve conflicts over the use of objects. The fact that material things have an owner avoids conflicts over their use and solves the problem of scarcity. So-called intellectual property is not at all affected by this problem, since its use is non-exclusive: for example, if I listen to a song, I am not ” taking ” it from anyone, and copying it to a new medium does not make the original disappear.

But Kinsella doesn’t limit himself to an economicist-libertarian exposition. He also addresses arguments related to the promotion of creation, utilitarianism, and natural law, always with an abundance of examples and footnotes that make it easier for the curious reader to delve deeper into the author’s arguments (unfortunately, many of these titles are in English, although the volume of Spanish literature is increasing, thanks, among other things, to the work of organizations such as Unión Editorial , responsible for this edition).

Although the original edition of this book (from 2001) is a few years old, the vast majority of its arguments remain valid and provide an overview of the issues raised. Kinsella continues to write and contribute ideas within the Mises Institute, and is also director of The Center for the Study of Innovative Freedom (https://c4sif.org/) and editor of Libertarian Papers (http://libertarianpapers.org/). We also refer the curious author to these publications if they want to stay up-to-date on this issue.

Intellectual property is a controversial issue within libertarian thought, even within the strictly anarcho-capitalist context, so this book constitutes an extraordinary contribution to the many debates that can be raised in this regard. Kinsella is compelling due to the solidity of his arguments, his erudition, and his ability to explain the different arguments, covering the views of such important libertarians as Rothbard, Rand, Block, and David Friedman, without forgetting some peculiar points of view such as those of Galambos. He also expounds on some less-discussed topics, such as the distinction between discovery and invention.

Kinsella concludes with an essay on the possibility of establishing some form of intellectual property based on contracts, criticizing certain contributions by Rothbard (who was not against intellectual property), and ends with a curious appendix with questionable examples of patents and copyrights that should give us pause for thought.

Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before.

Judge Alex Kozinski, in White v. Samsung Elecs. Am. Inc., 989 F.2d 1512, 1513 (9th Cir. 1993) (Kozinski, J., dissenting from denial of rehearing en banc)

As I noted here:

I published Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023) last September, in hardcover, soft cover, and Kindle formats. A free pdf was released at the time of publication as well and the book was published under at CC0 (no rights reserved) license. Read more >>

As I explain at the AIP landing page,

For a compilation of my more recent writing on IP, see You Can’t Own Ideas: Essays on Intellectual Property (Papinian Press, 2023). And see also Stephan Kinsella, ed., The Anti-IP Reader: Free Market Critiques of Intellectual Property (Papinian Press, 2023). I stand by AIP but You Can’t Own Ideas contains a streamlined and updated version of the arguments in AIP, “Law and Intellectual Property in a Stateless Society” (ch. 6) followed by Against Intellectual Property After Twenty Years: Looking Back and Looking Forward (ch. 7) (these are also included in Part IV of Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023)). Together, these two chapters my main arguments against IP. AIP and other chapters in You Can’t Own Ideas thus contain the bulk of my anti-IP ideas and will have to suffice until I tackle writing Copy This Book: The Case for Abolishing Intellectual Property (probably in 2026 or so).

The purpose of property rights is to reduce conflict in the use of scarce means by assigning owners based on objective and just criteria, namely original appropriation (ownership, property) and contractual title transfer (contract), plus ancillary rules for tort (rectification).¹ [continue reading…]

1. Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023) (LFFS), ch. 2, text at n.11 et pass., ch. 11, text at n.15 et pass.; also chs. 4, 5, 14, et pass.; Kinsella, “Aggression and Property Rights Plank in the Libertarian Party Platform,” StephanKinsella.com (May 30, 2022); idem, “KOL259 | “How To Think About Property”, New Hampshire Liberty Forum 2019, Kinsella on Liberty Podcast (Feb. 9, 2019). [↩]

In a recent Federalist Society lecture series on Roman Law, Richard Epstein in one lecture (see below) discusses how the famous Roman jurist Gaius treats the concept of theft.

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As I mention in Classical Liberals, Libertarians, Anarchists and Others on Intellectual Property, Mark Skousen is bad on the topic of intellectual property. I know this from private correspondence with him in the wake of my Soho Forum debate (KOL364 | Soho Forum Debate vs. Richard Epstein: Patent and Copyright Law Should Be Abolished).

Now he doubles down. In a recent article for the Cobden Centre, “This Little-Known Section of the Constitution Made America the World’s #1 SuperPower,” where he rightly points out the advantages of free trade in the American “common market” stemming from language in the US Constitution, he unfortunately adds this unnecessary comment to the end: [continue reading…]

Yet more IP absurdity. But this is where the “logic” of IP leads. H/t Bob Murphy.

Does Pantone have a monopoly on colors? Is that bad?

A while back Michael Rectwald sent me this 2008 paper of his, “The Trope of “the Poor Inventor” in the British Patent Debate (and Beyond).” If I am not mistaken, this was written even before he was a libertarian. Impressive.

Abstract:

As recent scholarship on the history of invention has shown, the eighteenth- and nineteenth-century inventor was proposed as a plausible new hero of the industrial revolution. But the inventor has also been characterized as a creature of accident—of risk, poverty, madness, and premature death. By the 1820s, inventors were not only heroes of industry; they became its victims as well—“poor inventors” who suffered under poverty and oppression to bring forth the works of the mind. The case of the poor inventor was introduced and championed by advocates of inventive workers from the 1820s until the 1840s; the figure came to stand emblematically for working-class interests at large. By 1850, however, the ideological and rhetorical construct of the poor inventor was appropriated by a liberal, mostly middle-class lobby to affect the first reform of patent law in modern British history.

As Michael commented to me, “It’s about the figure of the “poor inventor” and how it was mobilized to effect patent law “reform.” Note that my piece isn’t about IP per se. It focuses on the rhetoric used to maintain it as against the abolitionists of the period in Britain.”

For more on this issue, see my post “Intellectual Properganda.”

Too bad he was not the Libertarian Party’s nominee this year. He would have been the first Presidential candidate in history, to my knowledge, including previous LP candidates, to oppose IP. The current nominee, Chase Oliver, seems to have some good instinctual skepticism of IP but unfortunately no coherent or principled stand against it (see my tweet re same).

Posted on Twitter (July 22, 2024); the Google auto-translate, from the Portuguese, is pasted below.

The Absurdity of Intellectual Property Laws

By: Joakim Book @joakimbook

In a previous article, I explored the absurdity of intellectual property, the unfair and inefficient monopoly privilege it confers on those experienced enough to navigate the legal system well. Because they are non-scarce and non-rival objects, like ideas or sound waves arranged in a specific order, they cannot be property economically speaking. No one can “own” vibes or reasonably punish me for using your grandmother’s recipe for beef stew. (This is also why cultural appropriation is an absurd concept.) [continue reading…]

My article “Defamation as a Type of Intellectual Property” (pdf; epub; word files; Amazon; Mises Store; text below) has been published in Jörg Guido Hülsmann & Stephan Kinsella, eds., A Life in Liberty: Liber Amicorum in Honor of Hans-Hermann Hoppe (Sept. 20, 2024).¹ My original title was “Defamation Law and Reputation Rights as a Type of Intellectual Property” but I have simplified it.

In this article I briefly survey the modern concept of intellectual property, or IP, its four primary component rights—patent, copyright, trademark, and trade secret—and how this concept and the “IP” terminology emerged. I then summarize the libertarian criticism of the main forms of IP with a focus on trademark law since it has the most similarity to defamation law and the reputation rights it protects. Next I provide the libertarian case against defamation law and reputation rights, and show similarities in the arguments for both trademark and defamation law as well as similarities in the case against both. I conclude that defamation law should be classified and treated as a type of IP and that like all forms of IP, it is illegitimate.

For previous arguments against defamation law, see Murray N. Rothbard, “Knowledge, True and False,” in The Ethics of Liberty (New York: New York University Press, 1998) and Walter E. Block, “The Slanderer and Libeler,” in Defending the Undefendable (2018).

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1. It was originally slated to appear in Elvira Nica & Gheorghe H. Popescu, eds., A Passion for Justice: Essays in Honor of Walter Block (New York: Addleton Academic Publishers, forthcoming) but was withdrawn. [↩]