“a long habit of not thinking a thing WRONG, gives it a superficial appearance of being RIGHT, and raises at first a formidable outcry in defense of custom. But the tumult soon subsides. Time makes more converts than reason.” — Thomas Paine, Common Sense
Steve Jobs is often held up as the embodiment of the entrepreneur who made something totally new out of nothing. But the New Yorker offers a different take completely. Malcolm Gladwell says that he was in a long line of “tweakers” who made the industrial revolution – people who took what existed, didn’t like some aspect of it, and worked for improvements until the thing was done. Jobs’s perfectionism could not be realized in the absence of the pre-perfection products that flooded the market. In that sense, though he would deny it, he was completely dependent on the work of others, to provide the positive market test and the negative example that he had to beat. He absorbed, learned, and improved. This was his way. “Jobs’s vision, brilliant and perfect as it was, was narrow,” writes Gladwell. “He was a tweaker to the last, endlessly refining the same territory he had claimed as a young man.”
Not sure what Thelema is, but … interesting post: On the Problem of Intellectual Property in Thelema Comments on: Rethinking Intellectual Property: History, Theory & Economics by Stephan Kinsella of the Ludwig von Mises Institute.
Comments on: Rethinking Intellectual Property:
History, Theory & Economics
by
Stephan Kinsella of the Ludwig von Mises Institute
Do what thou wilt shall be the whole of the Law.
Anyone who participates in the world of ideas and the generation of human letters strives to share those ideas and find the occupation of this as an ideal career option. And in a small community, such as the Thelemic community, profitability on publication or the demand for professorship is quite limited if not wholly nonexistent; right from the outset. The ideas themselves may be the product of the more noble strivings of the human soul in the greater quest for virtue in life, but their importance to human evolution has become all too obscure in our contemporary, materialist and consumer-oriented society. Stephen Kinsella’s observations on the libertarian movement that developed from Renaissance thought and leading to the American Revolution have a profound bearing on the Thelemic and larger Occult movement today.
That ideas can be owned is a severe restriction on the development of human knowledge; a restraint against the will of society; individually and collectively. If I can’t use ideas readily available to me in order to contribute to and develop those ideas without first having to pay a fee or royalty, one of the worst forms of restriction is at play—censorship.
In previous decades libertarians viewed intellectual property as a boring and technical area of the law, the province of legal specialists. They also assumed it to be a legitimate, if arcane, type of property in a capitalist, free-market society. After all, it’s in the Constitution, and Ayn Rand blessed it. But we don’t ignore it anymore, and we don’t take its legitimacy for granted. We can’t. The injustices of IP have multiplied in the Internet age and are staring us in the face.
The advent of the Internet, digital information, and easy file-sharing and duplication have been met with ever-more draconian enforcement of the state’s IP law, and with incessant lobbying for legislation to make IP stronger and last longer. Just as the state wants to tax everything that moves, intellectual properteers want to cover ever-more subjects of life with IP protection. But everyone — the young, students, and libertarians — copies files, and we all regularly hear stories about insane patent and copyright lawsuits. Single moms and college students are sued for file-sharing. The IP barons seek three-strikes-and-you’re-out laws banishing accused offenders from the Internet for life. They seek international enforcement of their national monopoly rights, to harass street vendors in third-world countries. The legislators, who are in their pockets, have already outlawed the possession of devices that might be used to crack encryption codes. Their propaganda — in TV commercials, video games, magazine ads, and unskippable warnings at the beginning of DVD movies — hectors kids and college students about how uncool it is to copy.
By way of examples from our own experience, in two specific incidents, we are prevented from publishing on the web, two works, one by Crowley and Motta, and one by Motta alone (and that we ourselves have commented upon). These two men are dead, but have had their legacy victimized by organizations that have a legal hold on these documents and are engaged in thwarting the will of the two authors as much as restricting the flow of Gnosis to publication.
We hear regularly about multimillion- or even billion-dollar patent lawsuits, and about the millions of dollars spent by corporations on patent attorneys and litigators just to cross-license with each other, leaving smaller companies outside the walls of the barriers to entry erected on these patent arsenals. In the name of IP, books are banned, movies are ordered destroyed, singers are prevented from singing, car owners prevented from photographing their own cars, churches are prohibited from having Super Bowl parties, and imports of watches and reimports of drugs are blocked. And a little mouse keeps getting his life extended, thanks to copyright — from the original 14 years to over 100. Trumped-up charges of IP infringement are used as an excuse by the government to investigate political opponents. IP may still be arcane, but it’s not boring anymore. Scary and outrageous, maybe, but not boring.
In the hypothetical, let’s say that I’ve evoked a certain, well-known spirit that then speaks prophecy of an import for the entire human race. But I refuse to allow the publication of the prophecy without first exacting a fee from my readers. One of them pays the fee, but then publishes that prophecy on the Internet. Do I really have the right to stop this? Do I own these words from this spirit? In actuality, I became the original censor with the claim to property right for this communication. And what the spirit freely gave me, I then coveted; by placing an artificial value upon it.
And should this be any surprise? Copyright is rooted in censorship. No wonder it still leads to censorship today. Patent law finds its origins in mercantilist monopoly grants, and even legalized plunder — letters patent were used to legalize piracy in the 16th century — making it ironic for IP to be used against modern-day “pirates” who are not real pirates at all.
Once IP is seen this way, the scales fall from one’s eyes. It’s a transformative moment in one’s libertarian life, akin to the moment when one finally admits to himself that even the minimal state is criminal and thus adopts anarchism. Realizing that IP is not part of a free-market order makes possible a reassessment of aspects of libertarianism, economics, or social thought hitherto neglected or seen confusingly through the IP haze.
We have become conditioned into a mercantilist culture that is more popularly known as the military-industrial complex with a government seen to engage in corporate socialism. Living within such a system has fostered a conditioning onto our minds that can limit what we see; not unlike religious conditioning. But what’s worse, Thelemites number at best, three thousand people in a world of nearly eight billion; an anthill in contemporary society. For those to waste so much energy scouring the web to see if anyone is re-publishing their writings is not only moronic, but only serves to keep Thelemic philosophy on the fringe–it’s plain counterproductive. And what possible economic hurt could these ‘copyright enforcers’ be aggregating?–nada!
The history of IP is illuminating. For example, it was not simply invented by infallible, well-intentioned, protolibertarian framers of the Constitution, but originated in censorship and mercantilism. Seen in this light, IP is seen as another mercantilist-corporatist state intervention in the free market. And one simply must have a sound, coherent, and libertarian understanding of property rights, the nature of homesteading, and the nature of contractual exchange, to understand the IP issue. Or, rather, in wrapping your head around IP, you hone and deepen your understanding of property rights, and make new connections. In so doing, new insights become possible, indeed inevitable.
Indeed, one of the most important spiritual practices is to get around taboo; that which is conditioned into us and of which we may even be unconscious. One way to do this is to rethink why one publishes. Does one publish to bring recognition to oneself? Or is one more concerned with the ideas that one has generated; seeking intercourse with other idea generators? The former is more a parasite; a shut-up, more interested in mundane rewards, with the latter being a creator interested in the ideas themselves.
Moreover, IP is really virtual property; as unreal as say the planet Klingon; and would you buy real-estate on that planet? All creativity is but a rearrangement of current materials and ideas (such as words and letters); supporting the idea that there really is nothing new under the Sun. This even applies to the arts; if I as an artist record a song I wrote and then put it on a CD and sell it, and someone else comes along liking my song and copies my CD to re-sell it, have I really been harmed? No! All that’s being sold is the plastic ware; that‘s a material product.
Indeed, the larger distribution of my song would only serve to make me more popular. I can then sell ‘authentic–from the composer’ versions of my song. This is why the Grateful Dead has always authorized all bootlegging of their music. So one may ask, what if they take my song and put their name on it? Well, eventually, such ignoble behavior will cost such a manufacturer/distributor credulity, which in turn will make it very difficult for them to sell their wares.
But really best of all, I don’t have to waste my time and energy looking for copyright cheats and I don’t have to deal with the tremendous self-destruction that worrying about copyright cheats will bring to me. I would in effect, come to a greater state of personal liberty. And I might hope that others continue to copy and distribute my work; that my work might reach that many more ears. Please notice, there are no copyright notices on these websites.
For more on this, cf. our egroup conversation:
Appending the A.’.A.’. Editorial
Love is the law, love under will.
[From my Webnote series]
There are many Types of Intellectual Property, and all of them are bad, and most of them are getting worse and expanding.1 The worst two by far are patent and copyright. Some say the patent system is worse than copyright, because most innovations are inevitable anyway and there is no independent inventor defense, whereas it’s unlikely someone else would independently write Romeo and Juliet (of course, Shakespeare had no copyright and he borrowed freely from previous stories, but let’s not let facts get in the way of the romanticized notion of copyright). This argument overlooks the fact that copyright prohibits not only literal copying but non-literal copying of “similar” aspects of the copyrighted work and also the making of derivative works.
Others think copyright is worse because it lasts longer, for example.
Over the years I have vacillated on this issue. But I am becoming convinced that copyright is worse than patent, for the following reasons:
Length. The patent term is about 17 years, while copyright usually lasts over 100 years (life of author plus 70 years).
Trends. Copyright law keeps getting worse,2 while patent law has been basically the same for a while now, and in fact has slightly improved–in recent years it’s more difficult to get injunctions; and the recent patent reform law, the America Invents Act, actually added a general prior commercial user defense, the first significant legislative improvement to patent law … ever.3
Taxation versus Censorship, the Police State, and Regulation of the Internet. The patent system imposes costs of at least $100 billion a year, by reducing innovation and competition.4 So it basically acts like a tax. It’s bad, it impoverishes us, it slows things down. But it’s just another tax.
The copyright system, by contrast, besides imposing untold billions of cost on the economy, consumers, and artistic creation, and distorting the entire domain of creative works, is also being used as an excuse by the state to increase its surveillance, warrantless searches and seizures, punitive bans of people from the Internet without due process, censorship, cutting off websites accused of piracy, and control and regulation of the Internet and related technologies. As the Internet is one of the most significant tools ever to emerge to help people battle the state and communicate and learn and spread ideas, this is very chilling. In the name of stopping copyright piracy, the state is trying to squash mankind’s greatest anti-state weapon.5 Taxes are bad, but killing or restricting the Internet is just horrible. Copyright is worse.
Update: See more posts on Internet freedom. For more on the importance of the Internet, see What Bitcoin Did, How Bitcoin Will Destroy the State | Erik Cason & Jesse Posner:
[Erik Cason:] Ultimately, at the end of the day, everyone is exhausted by the contemporary political system, and it’s fundamentally broken. (1:01:41) If you went back to when these systems were created and said, ‘Do you think there’s a magical thing in the future where we can talk to people on the other side of the planet and (1:01:46) organize through these incredible computer systems?’ they’d think you’re completely insane. But we’ve finally reached a point where it’s clear that the internet is the most powerful technological apparatus ever created. (1:01:58) It’s not going away, and it has empowered billions of individuals around the planet. So, at what point are we really going to stand up and say, (1:02:04) ‘If there is an opportunity for the future to be freer than the one we were given, we must use this technology to push that mission forward’? (1:02:10) It’s really up to us. As the generation that straddles the world before and after the internet, we have a unique perspective. (1:02:16) This is something given to us, and we’re the only ones who can actualize it. That window will close if we don’t seize the opportunity (1:02:22) to build the necessary tools to ensure that future comes about. (1:02:34)
Update/Related post: Where does IP Rank Among the Worst State Laws?
See also Stephen Breyer, “The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs,” Harv. L. Rev 84, no.2 (1970): 281–355:
Copyright … poses a far less serious threat to competition than patents. While a copyright restricts only the use of an author’s “expression,” a patent provides its owner with a monopoly of an “idea”—a fact that limits the marketing of competing products that might hold down the patented product’s price. Of course, patents are more difficult to obtain than copyrights, requiring “novelty,” not simply “originality.” … Still, because of their widespread commercial application, the power to accumulate patents is likely to prove more harmful to competition than the power to accumulate copyrights.
Citing P. Areeda, Antitrust Analysis (1967): pp. 376–87 [more recent edition: Areeda, Kaplow, Edlin, and Hemphill, Antitrust Analysis: Problems, Text, and Cases, 7th ed. (2013)]; Fritz Machlup, U.S. Senate Subcommittee On Patents, Trademarks & Copyrights, An Economic Review of the Patent System (85th Cong., 2nd Session, 1958, Study No. 15).
[From my Webnote series]
Related:
I’ve long been a fan of and admired the brilliant libertarian legal theorist Richard Epstein. I devoured his book Takings: Private Property and the Power of Eminent Domain in 1991, at the tail end of my minarchist phase and as I was becoming even more an adherent of the Austrian school of economics. The book is Epstein’s own theory of the state, a response of sorts to John Rawls and Robert Nozick. He argues that because of free rider and holdout problems, a state is necessary. But that it and its laws and policies are justified only insofar as they do overcome these holdout problems and make everyone better off. Then, there is enough social surplus generated so that some of it can be used to compensate those who are disproportionately impacted by particular state polices.
For example if the state needs to take someone’s property for some public use and in a way that makes the overall “pie bigger,” then some of that extra wealth generated by this state measure can be used to compensate the victim of expropriation. So he has no complaint, since he receives compensation for the taking; and the rest of society benefits overall because of the bigger pie that they all partake in. Now I disagree with this argument for a number of reasons. For example, this utilitarian view falsely equates value with money; but as the Austrians have shown, value is subjective, ordinal, not cardinal, and not interpersonally comparable. Second, it is unethical to redistribute property from A to B even if B gains more than A loses. Third, there is no reason whatsoever to think the state could ever engage in this utilitarian redistributionism efficiently, competently, honestly, or without corruption. That is, the state would be making the pie smaller. (For more discussion, see my The Case Against IP: A Concise Guide; also the “Utlitarianism” section in In Defense of Napster and Against the Second Homesteading Rule.) In fact, in a review essay in the Texas Law Review in 1987–one of the best book reviews I have ever read, by the way; another favorite is Justin Raimondo’s great, withering review of Horowitz’s memoir Radical Son, David Horowitz and the Ex-Communist Confessional–Jeffrey Rogers Hummel observes: “The same public-goods problem that is such a vital prop to Epstein’s legal framework also fatally undermines that framework” (p. 1239). (Hummel’s amazing review is here, reprinted with his permission.)
Professor Epstein’s entire case relies on the fallacious notion of public goods, and flies in the face of Austrian insights into the nature of value and utility. (See Murray N. Rothbard, “Toward a Reconstruction of Utility and Welfare Economics“; Hans-Hermann Hoppe, “Fallacies of the Public Goods Theory & the Production of Security,” in The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy.)
In any case, in Takings, Epstein argues that a given state law or policy is justified only if we have good reason to think that it does make the pie bigger, i.e. that it increases social welfare. If it does not, there is no surplus left over to compensate the expropriated victim, and society is made worse overall. In other words, there is a presumption against state laws unless it is shown that it generates social surplus. The burden of proof is on someone who supports a given law or policy to demonstrate this. In the book Epstein then analyzes a number of laws and shows that a small number of them appear to increase the size of the pie, and should be permitted (e.g. national defense), but that most modern policies of the federal government clearly do not make the pie bigger, and so have to be rejected as illegitimate. So even though his utilitarian and positivist argument is flawed from the point of view of Austrians and anarchists, at least he applies a very strict filter to scrutinize state law, and most of it fails Epstein’s razor.
What I find interesting is that in his arguments for intellectual property, namely patent and copyright, Professor Epstein appears not to abide by his own normative theory in Takings. So far as I can tell, when he argues in favor of IP, he argues that IP is justified because it creates social surplus (say, by inducing valuable net innovation or artistic creation that would not exist without such laws). (See Richard Epstein on “The Structural Unity of Real and Intellectual Property”.) But he presents (so far as I can tell) no evidence for this assumption. In fact, the vast bulk of empirical studies seem to conclude that we simply cannot determine this, or that it appears that innovation is harmed by IP (see the references in The Economist on the American Patent System). In other words, the available evidence and studies indicate that IP makes the pie smaller. Epstein, it seems to me, should use an “if” instead of a “because”: IP is justified, according to his Takings theory, if it makes the pie bigger; but since we have no good reason to think that it does, and in fact good reason to think it makes the pie bigger, IP law is in fact not justified, by Epstein’s Takings test.
(Professor Epstein also argues that IP “can” be treated by the law like a form of property, as I note in Classifying Patent and Copyright Law as “Property”: So What?, but I don’t see how this means it’s justified, or that it does grow the pie higher—paraphrasing George W. Bush’s malapropism, “We ought to make the pie higher.”1
Update:
STEPHAN KINSELLA: Okay, so Professor Epstein, you seem to believe with me that 130 years or so for a copyright is absolutely absurd and ridiculous. Now, apparently if you have a copyright system, that’s what happens. So would you prefer to have … a zero copyright term or 130…
— Stephan Kinsella (@NSKinsella) February 12, 2026
KOL364 | Soho Forum Debate vs. Richard Epstein: Patent and Copyright Law Should Be Abolished:
STEPHAN KINSELLA: Okay, so Professor Epstein, you seem to believe with me that 130 years or so for a copyright is absolutely absurd and ridiculous. Now, apparently if you have a copyright system, that’s what happens. So would you prefer to have … a zero copyright term or 130 years if that was your choice?
00:47:06
RICHARD EPSTEIN: I’d take the 130 years even though I hate it because it turns out…
RICHARD EPSTEIN: I would take the second of the miserable one of these alternatives because most of the value with respect to any literary work, most of it for most of them, are going to be concentrated in the first ten or 15 years. So essentially the distortions [indiscernible_00:47:27] from the years 20 to 120 may matter with respect to Mickey Mouse and a few other things like that, but with most things it turns out it doesn’t.
00:47:36
And remember, it’s not just books and literature that are subject to copyright. A software is subject to a complicated regime, but it’s often protected by copyright, and the useful life of a software copyrighted device is sort of five, ten years at most, usually less than that. And so essentially I think that the coverage is harmful, but I think the most important years are the in years, not the out years, and so I would keep the system, and I would do everything in my power to get rid of the silliness, all of which was introduced by international agreements because I think what I would answer is I’m talking about an ideal patent system, which doesn’t have the terrible risks that are associated with the public choice dimension that we have in the current law where the ability to take things out of the commons and to put them into these things are – is completely up to legislative discretion.
00:48:24
There was, in fact, as I tried to make in one of these cases that were brought early on that if something is already in the public domain, to put it back and to say it’s now going to receive copyright protection or patent protection is just crazy. And the culprit there is the constitutional system, which is so weak that when it says we use a rational basis test, which in my Takings book I attack and allow them to be re-protected.
00:48:48
And this was the case that Larry Lessig argued in 2003. Somehow the name seems to have escaped me, but I thought that it was exactly right to say that if you want to extend it for no quid pro quo whatsoever, which is what they did with the Term Extension Act, that should be unconstitutional. 2 So again, I think the simplest way to put the point is I’m trying to defend an ideal system, not the current system, and the only way you can get to that system paradoxically is to do what I wanted to do in the Takings book, which is to create a strong and stable system of property rights, which would also mean that things that have been put into the public domain will be kept there.
Ugh. Horrible ABA CLE (continuing legal education) program:
Green IP: An Overview of Opportunities and RisksDate: Wednesday, November 2, 2011Format: Live WebinarDuration: 90 minutes
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Sponsors:
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12:30 PM-2:00 PM Eastern |
11:30 AM-1:00 PM Central |
10:30 AM-12:00 PM Mountain |
9:30 AM-11:00 AM Pacific |
Eco-Patents: A Triumph of the Commons
(Michael Byrne and Kevin Greenleaf)
Businesses can benefit from the public awareness of green-this and eco-that by not only marketing the environmentally friendly aspects of their products. But they can also benefit by participating in government and industry initiatives such as expedited patent examination, patent pools or open-patent strategies, such as the Eco-Patent Commons, which are similar to open-source licenses. Participation in such programs can result in far more than good public relations: businesses can realize reduced costs because of economies of scale, faster patent examination, easier technology licensing, joint ventures and faster time-to-market. The green movement continues to gain steam, so jump on the train before it leaves the station.
Eco-Marks and Greenwashing
(Jennifer Hetu, Anessa Owen Kramer, and Timothy Bradley)
Society as a whole is “greener” than ever, and this trend continues to spill over into the consumer marketplace with “green” product offerings growing at an annual rate of over 70%. Although the fact that consumers and companies are striving to become more environmentally friendly is certainly a positive trend, the “greening” of society and the marketplace has a negative consequence: greenwashing. Greenwashing poses an increasing risk for advertisers as well as consumers, and companies engaged in green marketing need good legal advice to avoid litigation and regulatory risks. This panel will discuss those risks and how to navigate them.
“Green” Is a Way of Thinking, Not an Industry
By Ryan M. Fountain
Green technology is not likely to be the next breakthrough industry. However, existing intellectual property incentives and consumer enthusiasm could foster some breakthroughs in the green industry. Some suggest that compulsory licensing or mandatory open sourcing of technology would result in more efficient and rapid utilization of green technology, but this may incentivize greater secrecy, promote economic uncertainty, and further limit venture capital investment in green industries. Preservation of established intellectual property protections that have successfully encouraged innovation for over 200 years, partnered with consumer education and marketing, is the most promising hope for the advancement of green technology.
The 3rd Adam Smith Forum is being held Nov. 12, 2011 in Moscow. This is an impressive event, organized by the Center for the Philosophy of Freedom, the Libertarian Party of Russia, and others. The Chairman of the ASF Steering Committee is economist Pavel Usanov, head of the Hayek Institute for Economy and Law; Andrey Shalnev, head of the Center for the Philosophy of Freedom Moscow, is its co-chairman. I was invited to speak but cannot attend in person, so my speech “Why Intellectual Property is not Genuine Property” will be presented remotely, with Russian subtitles.
Update: For further information and video of the lecture, see my followup post here.
Mises post; archived comments below.
I’ve written before about the quirky scientistic California libertarian guru Andrew J. Galambos, and his extreme, crazy IP ideas.1 Galambos believed that man has property rights in his own life (primordial property) and in all “non-procreative derivatives of his life”—the “first derivatives” of a man’s life are his thoughts and ideas—these are “primary property.” Since action is based on primary property (ideas), actions are owned as well; this is referred to as “liberty.” Secondary derivatives, such as land, televisions, and other tangible goods, are produced by ideas and action.2
In other words, man has “primary” property rights in his thoughts and ideas, and secondary property rights in tangible goods. Thus, as ideas are the primary form of property, Galambos claimed a property right in his own ideas, and required his students to agree not to repeat them. In Against Intellectual Property I note that Galambos
took his own ideas to ridiculous lengths dropping a nickel in a fund box every time he used the word “liberty” as a royalty to the descendants of Thomas Paine, the alleged “inventor” of the word “liberty”; and changing his original name from Joseph Andrew Galambos (Jr., presumably) to Andrew Joseph Galambos, to avoid infringing his identically-named father’s rights to the name.
(It’s not a huge surprise that Galambos fixated on the importance of intellectual property since, as noted in “On Andrew Galambos and His Primary Property Ideas,”
One of Galambos’ original supporters was patent attorney Billy Alvin Robbins, Esquire. Robbins attended the first offering of Course 100 in 1961. A polished lecturer and a competent engineer, Robbins became the second person to ever present that course to the public (in the San Fernando Valley in 1962) under the auspices of Galambos, dba the Free Enterprise Institute (FEI). Under the influence of Robbins and others like myself and Richard Nesbit who also had prepared in the physical sciences, Galambos made further refinements in his treatment of property, taking particular account of the intellectual variety because of its crucial role in technological advancement, the impetus for social progress.
This no doubt contributed to Galambos’s scientism.)
In any case, a version of Galambos’s “primary property” idea–elevating property rights in ideas to an even higher and more fundamental status that in scarce resources–is espoused by Ayn Rand, who incredibly said, “Patents are the heart and core of property rights.” Likewise, Objectivist IP attorney Murray Franck approvingly repeated the following quote: “intellectual property is after all the only absolute possession in the world,” and Objectivist law professor Adam Mossoff argues that “All Property is Intellectual Property.”3 And my friend and neo-Objectivist libertarian philosopher Tibor Machan has said: “it would seem that so called intellectual stuff is an even better candidate for qualifying as private property than is, say, a tree or mountain.”4
So it is interesting that I came across a much earlier use of the phrase “primary property” in a very similar context, in a 1950 article about the patent controversy by Machlup & Penrose.5 As they note, in the debate about patent and copyright in the late 1700s:
others went as far as to say that a man’s property in his ideas was more sacred than his property in things material …
This was one of the main arguments Stanislas de Bouffler used in presenting the patent bill to the Constitutional Assembly in December 1790:”If there is for man any genuine property it is thought, … and the tree which grows on a field does not so incontrovertibly belong to the owner of the field as the idea which springs from a man’s mind belongs to author. Invention, the source of the arts, is also the source of property: it is primary property, while all other property is merely conventional ….”–Augustin-Charles Renouard, Traité des brevets d’invention (3d ed.; Paris, 1865), pp. 89-90 (first published, 1825).
It seems to me that not only are Galambosians prevented from spreading their own views because of their bizarre self-imposed IP restrictions–now they cannot even claim credit for these bizarre ideas, leading to an infinite recursive Galambosian loop.
October 28, 2011 at 9:44 pmLOL
But wait: How could a true IP follower use ANY word at all without paying the inventor/creator of that word (and the underlying concept)? Galambos payed a nickel for “liberty”… And that’s just one word!
October 29, 2011 at 7:16 amWho is he paying the money too? Or is there just a box full of nickles somewhere waiting to be claimed?
October 29, 2011 at 5:57 pmI could tell you that, but it would be infringing on a person’s intellectual property.
I can’t tell you who’s intellectual property that would be infringing on because their name is their own intellectual property and I cannot use it without paying them money first.
Unfortunately I cannot pay them because I cannot find them. I tried using a phone book, but it is full of people’s names. Those are people’s intellectual property and the phone book is a book of piracy. So I couldn’t actually find the name because doing so meant that I would be reading the name of other people and I can’t live with myself for performing such a terrible act of privacy. I would just be encouraging the phone company to violate more intellectual property by using their services anyways.
But that’s ok.
To prevent stuff like this happening in the future I always make sure to provide licensing terms with any sort of intellectual property.
This post is my intellectual property. You now owe me 15 cents for reading it. You can mail that to me using a personal check or money order. Replying to this post creates a derivative product and costs only 30 cents. The price of reading is included in the price of replying. After 10 pm on next tuesday the price goes up to 33 cents, so hurry now!
November 16, 2011 at 10:40 amWhy does Galambos assume Thomas Paine is even willing to sell him usage of his “property” (the word “liberty”) at all let alone at the price of 5 cents? I think it’s safe to say Paine never gave Galamobs permission to use the word “liberty” at all.
So apparently Galambos thinks he can use someone else’s “property” without permission and at whatever price he makes up.
This would mean that I can use anyone else’s “primary property” (IP) without permission and at the price I make up: $0.
Galambos didn’t realize it but dissecting his example and consistently applying the principles behind it allows for any copying of any pattern without permission and at a price of $0.
His own example destroys IP.
November 26, 2011 at 4:22 pmNot surprisingly, Stephan confuses independency with theft in his latest swipe at his favorite strawman. It is highly unlikely that Galambos ever read that article as he had little interest in economics that was not specifically Austrian or pre-Austrian (as in Bastiat). It certainly didn’t extend to reading journals on economic history. One would expect better from an IP lawyer, but Stephan is blinded by a red mist whenever he has a chance to attack Galambos, even after stating in Against Intellectual Property that his criticism “only applies to the extent that I am properly describing his views.”
Post below from Mike Masnick at Techdirt:
The folks behind Fight For the Future have teamed up with Kirby Ferguson, who created the excellent everything is a remix series, have teamed up to put together a video about the problems with…
PROTECT IP Act Breaks The Internet from Fight for the Future on Vimeo.
As noted in previous posts,1 I spoke this past weekend on a panel at the Open Science Summit, held at the Computer History Museum in Mountain View, California. My panel’s topic was “The Future (the End?) of ‘Intellectual Property.'” The video for our panel is now up, here and here, and below. My talk, “IP and the New Mercantilism,” is first, and lasts about the first 19 minutes. The slideshow I used (but did not show the audience) is also below.
[See KOL101 | The Future (the End?) of Intellectual Property (Open Science Summit, 2011) ]
My original title was “IP and the New Mercantilism,” but I think a better title is “Property and Science: The Twin Pillars of Prosperity and Civilization–versus Patent and Copyright.”
The Future (the End?) of “Intellectual Property” from Open Science Summit on FORA.tv
The Future (the End?) of “Intellectual Property” from Open Science Summit on FORA.tv
As I noted in previous posts (Open Science versus Intellectual Property and Kinsella on Panel at Open Science Summit), this is a fascinating and promising movement/group that is devoting a great deal of attention to how IP affects science (for more on the OSS, see The Open Science Shift, Xconomy; Open science: a future shaped by shared experience, The Guardian; footage from last year’s summit is available on the OSS Youtube channel).
In fact a good deal of the Opening Session of the 2010 Open Science Summit was devoted to IP horror stories and ways in which it interferes with science and the spread of knowledge (go to about 8:20 for the beginning of this discussion).
For a related talk, “Science is a Private Good – Or: Why Government Science is Wasteful” (video; audio; and below) delivered at the Fifth Annual Meeting of the Property and Freedom Society in Bodrum, Turkey,2 by Terence Kealey, a biochemist at the University of Buckingham and author of Sex, Science and Profits and The Economic Laws of Scientific Research.
Earlier today I appeared on Adam Kokesh’s show Adam vs. The Man (see embedded video below). We discussed U.S. Copyright Czar Cozied Up to Content Industry, E-Mails Show and related issues such as neo-mercantilist aspects of modern patent and copyright law (discussed in my post Rothbard on Mercantilism and State “Patents of Monopoly”).
This is the new, 3.0 version of Adam’s show. The previous version was carried by RT (Russia Today). I appeared a couple times on the 2.0 show–On Adam vs. The Man re Drug Patents and Adam the Man vs. IP. Adam’s new format permits longer interviews for more in-depth discussion.
[Podcast at KOL107]
As noted previously, I was on the IP panel of the Open Science Summit last weekend. I was please to meet co-panelist Andrew Torrance, a law professor at the University of Kansas School of Law. My presentation was libertarian and theoretical, while his was empirical. He presented the results of a complicated and detailed simulation he did to test the effect of patent law on innovation.
The results of his study are fascinating. They are presented in his 2009 paper Patents and the Regress of Useful Arts. Abstract:
Patent systems are often justified by an assumption that innovation will be spurred by the prospect of patent protection, leading to the accrual of greater societal benefits than would be possible under non-patent systems. However, little empirical evidence exists to support this assumption. One way to test the hypothesis that a patent system promotes innovation is experimentally to simulate the behavior of inventors and competitors under conditions approximating patent and non-patent systems. Employing a multi-user interactive simulation of patent and non-patent (commons and open source) systems (“The Patent Game”), this study compares rates of innovation, productivity, and societal utility. The Patent Game uses an abstracted and cumulative model of potential innovations, a database of potential innovations, an interactive interface that allows users to invent, make, and sell these innovations, and a network over which users may interact with one another to license, assign, infringe, and enforce patents. Initial data generated using The Patent Game suggest that a system combining patent and open source protection for inventions (that is, similar to modern patent systems) generates significantly lower rates of innovation (p<0.05), productivity (p<0.001), and societal utility (p<0.002) than does a commons system. These data also indicate that there is no statistical difference in innovation, productivity, or societal utility between a pure patent system and a system combining patent and open source protection.
He describe this also in his Google TechTalk, “The Patent Game: Experiments in the Cathedral of Law”:
Torrance’s simulation indicates that a society with no patent law would have more innovation than one with patent law. What is interesting is Torrance said that when he began this project he fully expected the simulation to show the opposite: to vindicate the legitimacy of patent law. In this, he is similar to Boldrin and Levine, authors of Against Intellectual Monopoly, who began their empirical study of patent law expecting it justify it, but ended up completely opposing patent and copyright law (Boldrin discusses their change of heart in the podcast mentioned in EconTalk Podcast on IP with Michele Boldrin).
Yet another nail in the IP coffin. (See also my post Yet Another Study Finds Patents Do Not Encourage Innovation.)
[From my Webnote series]
Ideally law ought to be developed in a decentralized fashion by judges, juries, arbitral tribunals applying developed legal principles based on libertarian ideas about justice and property rights, to new disputes and fact situations.1 This was the basic model of the two grand legal systems in history: the Roman law, and the English common law. Better yet if the state were not involved, but in any case, an decentralized, caselaw, organic system is to be preferred.
But we have a system now dominated by legislation, by statutory law. The Roman law was codified legislatively by Napoleon and others, resulting at first in elegant civil codes enacted by legislation and backed by the force of the state. This enshrined legislation as the supreme source of law–legal positivism.2 These are the continental legal systems, the so-called civil law. In the meantime even the relatively propertarian and elegant civil codes have been swamped by a deluge of inelegant artificial and special-interest favoring legislation. Meanwhile the English common law has also been gradually submerged in a flood of English statutes. The US English-influenced common law system has also become steadily dominated by state and federal statutes. This should be no surprise given that the fount of our law is the Constitution, itself nothing but a statute, a piece of legislation. Sure, the Constitution as legislation is broader and more general and aspirational than most modern specialized statutes, which means that it is vague and ambiguous and subject to arbitrary interpretation–and since it is the state’s courts that interpret it, this means that it will be construed over time to grant more and more power to the state.3 Don’t fool yourself: the Constitution is nothing special, and is not libertarian. It’s just a cover for a centralizing power grab.4
When you get legislation law is divorced from justice. In a normal dispute, a case before some judge or tribunal, the court can attempt to “do justice” and find the right answer by appeal to developed legal principles and even abstract principles of justice.5 In such a system, it is at least possible for the legal principles that develop to be internally consistent–as the judge seeks to reconcile his decision with previous precedent and developed law–and to also be compatible with justice, since that is the purpose of such a dispute resolution proceeding. The law grows like a coherent crystalline structure on a substrate of justice and libertarian property rights. This is even true to some degree of civil law systems, even though they are based on legislated codes, since they are themselves elegant codifications of legal principles developed in decentralized form in the Roman law system. This is why scholars are able to speak metaphorically of the legal principles staked out by articles of a civil code as embodying a
plasma that bathes and nourishes an entire code and its institutions. The obligations articles are traditionally rich in analogies, making them, in Portalis’ famous phrase, “fertile in effects.”6
But when law becomes dominated by legislation the judges’ job becomes merely to interpret words–words that have no necessary connection to justice; words of a statute decreed by a committee of corrupt, power-hungry political elites; a statute that embodies conflicting compromises and that has provisions not even guaranteed to be internally consistent, much less consistent with other statutes. For example, the Constitution itself is incoherent (it does not authorize censorship yet provides limits on what and how the state can censor; it does not authorize federal eminent domain yet places due process and compensation limits on this nonexistent power; it recognizes free speech rights yet authorizes the censorship of copyright) and contains ambiguous provisions (the interstate commerce clause, the general welfare clause, the patent and copyright clause, the necessary and proper clause). And the patent and copyright statutes empower the granting of monopolies, all the while the various antitrust statutes decry them, leading courts to helplessly conclude that there is “a tension” between antitrust and IP law. These modern statutes, even the Constitution, could hardly be viewed as enunciating principles of natural law that are embedded in a coherent “plasma” of natural justice. (The US Constitution is more abstract and general than modern statutes, and is based in part on organically developed principles of the English “constitution” that are somewhat compatible with libertarian principles, but as noted above, it is riddled with ambiguity, inconsistencies, and blatantly illiberal provisions precisely because it was the artificial decree of a committee of politicians, bureaucrats, and power-seekers. It is more accurate to say that the natural justice and libertarian principles that do inform parts of the Constitution’s fabric serve not to make it libertarian, but to give even its illiberal provisions legitimacy in the eyes of a confused and duped public. On this see Lysander Spooner’s comments about supporters of the Constitution being knaves or dupes.)
New York lawyer James Carter recognized this when he worte, in 1884, in opposing David Dudley Field’s attempt to (legislatively) codify New York’s common law, to replace case law with centralized legislation:
At present, when any doubt arises in any particular case as to what the true rule of the unwritten [i.e., judge-found, common-law developed] law is, it is at once assumed that the rule most in accordance with justice and sound policy is the one which must be declared to be the law. The search is for that rule. The appeal is squarely made to the highest considerations of morality and justice. These are the rallying points of the struggle. The contention is ennobling and beneficial to the advocates, to the judges, to the parties, to the auditors, and so indirectly to the whole community. The decision then made records another step in the advance of human reason towards that perfection after which it forever aspires. But when the law is conceded to be written down in a statute, and the only question is what the statute means, a contention unspeakably inferior is substituted. The dispute is about words. The question of what is right or wrong, just or unjust, is irrelevant and out of place. The only question is what has been written. What a wretched exchange for the manly encounter upon the elevated plane of principle!
This gives rise to a phenomenon I have referred to as “classificationism.” When the positive law becomes dominated by artificial state decrees–whether actual legislation, or administrative “rules” made by various federal “agencies,” or fumbling attempts by the courts to make sense out of mere words of a statute, the meaning of which is not connected to natural property or justice–then law devolves into endless squabbling and bickering over definitions and classifications.
There are a depressingly endless number of examples that could be given. Under the Americans with Disabilities act, what is, or is not, “reasonable accommodation” made by a business owner to the disabled? Who knows?
In copyright law, what is “fair use”? In patent law, when is an invention “obvious”? [continue reading…]
The Center for the Study of Innovative Freedom (C4SIF) is dedicated to building public awareness of the manner in which so-called “intellectual property” (IP) laws and policies impede innovation, creativity, communication, learning, knowledge, emulation, and information sharing. We are for property rights, free markets, competition, commerce, cooperation, and the voluntary sharing of knowledge, and oppose IP laws, which systematically impede or hamper innovation. IP law should be completely and immediately abolished.
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