It’s well known that Steve Jobs was one of Apple’s most prolific inventors. A search at the Patent and Trademark Office (PTO) site reveals 312 issued Apple patents where Jobs was one of the listed inventors; 269 of these of these were design patents, which cover ornamental design aspects of some device. (A search leaving Apple out found 317 patents issues to Jobs, implying he also filed a few patent applications in the years he was not at Apple.) There appear to be dozens more pending patent applications filed in Jobs’ name, as well.

Patents are issued by the PTO each Tuesday. The most recent Apple patent, and Steve Jobs’ most recent issued patent, was issued this week, Tuesday, Oct. 4, the day before Jobs died. It is U.S. Pat. No. 8,032,843, for “User interface for providing consolidation and access” (PDF). This is a broad patent covering the Mac OS X Dock (see below).

OS X Dock

More particularly, this patent covers having a Dock type user bar or user interface where the items the user hovers over with the mouse grow larger, as if magnified. Or, as claim 1 of the patent puts it, in single-sentence patent lawyer-speak:

1. A method for displaying graphical representations of launchable applications on a display of a device comprising: displaying on the display a visible mechanism for launching one or more launchable applications, wherein the visible mechanism comprises multiple user-activatable graphical representations that respectively correspond to multiple launchable applications; detecting a position of a user input proximate to at least one of the graphical representations; in response to the detecting, increasing in size the at least one of the graphical representations; and increasing one or more of the remaining graphical representations to one or more respective sizes, each size being at least approximately inversely related to a distance between the respective one of the remaining graphical representations and the detected position.

Jobs 2011 Dock Patent

Interestingly, this patent is a “continuation” of two earlier patent applications, the earliest of which was filed back in 1999, near the time of introduction of the OS X Dock. That means this patent should expire  on Dec. 20, 2019 (20 years after the earliest priority date date). So this patent’s term is only about 8 years, unlike most patents, which last about 17 or so years (assuming 3 years between filing and issuance).

The earlier two applications also matured into patents, so this is not Apple’s first Dock patent. The first one was U.S. Pat. No. 7,434,177, issued Oct. 7, 2008 (9 years after it was filed) (see also Apple patents OS X Dock, The Register, Oct. 8, 2008); the second was U.S. Pat. No. 7,526,738, issued in 2009. The ‘177 patent is also very broad, claim 1 reading:

1. A computer system comprising: a display; a cursor for pointing to a position within said display; a bar rendered on said display and having a plurality of tiles associated therewith; and a processor for varying a size of at least one of said plurality of tiles on said display when said cursor is proximate said bar on said display and for repositioning others of said plurality of tiles along said bar to accommodate the varied size of said one tile.

The ‘738 patent provides yet another variation on describing how dock tiles work.

As reported on TechCrunch,

Kickstarter, which just recently celebrated the 10,000th successfully funded project in its 2.5-year history, is under siege by that most ubiquitous of foes, presently at least: patent litigation.

Read more>> (h/t Geoff Plauche)

This is sadly ironic: Kickstarter is one of the means emerging on the free market to make projects profitable WITHOUT copyright or IP; and now, IP is heping to klll it. Pathetic.

Patent and copyright are the worst, most virulent forms of IP. And trademark has become distorted and is used to hamper competition too, as illustrated in my post The Patent, Copyright, Trademark, and Trade Secret Horror Files.

But even trade secret law, the least objectionable of the four main types of IP, has been corrupted by the state. E.g.:

• Apple Lawyers Strike Back at Valleywag Over Tablet Bounty;
• HP sues former CEO Mark Hurd, doesn’t want him working at Oracle, Niley Patel, Engadget

And the latest: as reported in the Huffington Post, Hooters Lawsuit Claims Rival Restaurant Stole ‘Trade Secrets’: the restaurant chain Hooters is suing its upstart “breastaurant” competitor Twin Peak in federal court, claiming theft of “trade secrets.” Part of the claim asserts a former Hooters executive, now working for Twin Peaks, stole “plans related to management, recruitment, distribution and sales”. But it seems likely that Hooters will also make some kind of trade secret or trade dress claims (see my discussion of trade dress as used in the Two Pesos/Taco Cabana suit in The Velvet Elvis and Other Trademark Absurdities) against Twin Peaks since it has similar themes–scantily clad girls, etc.–i.e., that it is facing competition.

See also other posts concerning trade secret.

From glyn moody @Techdirt:

New UK Banknote Celebrates James Watt, Patent Bully and Monopolist

from the litigation-is-easier-than-innovation dept

As do many nations, England likes to put images of its great and good on banknotes. In a somewhat quixotic attempt to stem the decline of what little manufacturing remains in the country, the governor of the Bank of England has come up with the following idea:

Sir Mervyn King, the governor of the Bank of England, has often voiced his yearning for a “rebalancing” of the economy towards neglected manufacturing, and he will put the nation’s money where his mouth is next month when the Bank produces a new £50 note celebrating two pioneers of the industrial revolution.

The Bank will evoke the memory of the inventor James Watt and his Birmingham business partner, Matthew Boulton on the new note.

Here’s the orthodoxy regarding Watt and Boulton’s contribution to innovation and the industrial revolution, as retold by the Guardian piece about the new banknotes:

[Boulton] later went into partnership with James Watt, who took the Newcomen steam engine, then the latest design, and made a series of crucial improvements, improving its efficiency and making it more commercial.

By 1800, Watt’s version [of the Newcomen steam engine] was outselling its predecessor, and they were shipping it across the world. Boulton and Watt worked together to pioneer the use of the steam engine in the cotton spinning industry; and Boulton also used Watt’s engine to power minting machines, pressing coins at his Soho Mint in Birmingham, to boost the supply provided by the Royal Mint.

What’s missing from this rosy picture of jolly engineers and entrepreneurs working together to apply technology for the benefit of humanity is that Watt was one of the first to exploit the monopoly power of patents to stymie innovation by others:

Once Watt’s patents were secured and production started, a substantial portion of his energy was devoted to fending off rival inventors. In 1782, Watt secured an additional patent, made “necessary in consequence of … having been so unfairly anticipated, by [Matthew] Wasborough in the crank motion”. More dramatically, in the 1790s, when the superior Hornblower engine was put into production, Boulton and Watt went after him with the full force of the legal system.

During the period of Watt’s patents the United Kingdom added about 750 horsepower of steam engines per year. In the thirty years following Watt’s patents, additional horsepower was added at a rate of more than 4,000 per year. Moreover, the fuel efficiency of steam engines changed little during the period of Watt’s patent; while between 1810 and 1835 it is estimated to have increased by a factor of five.

After the expiration of Watt’s patents, not only was there an explosion in the production and efficiency of engines, but steam power came into its own as the driving force of the Industrial Revolution. Over a thirty year period steam engines were modified and improved as crucial innovations such as the steam train, the steamboat and the steam jenny came into wide usage. The key innovation was the high-pressure steam engine — development of which had been blocked by Watt’s strategic use of his patent. Many new improvements to the steam engine, such as those of William Bull, Richard Trevithick, and Arthur Woolf, became available by 1804: although developed earlier these innovations were kept idle until the Boulton and Watt patent expired.

So rather than representing all that is best about invention and industrial innovation, the story of Watt and Boulton turns out to be one of how the nascent patent system was abused to prevent progress in this field. Indeed, it offers one of the best demonstrations that patents often harm everyone – even patent-holders:

Ironically, not only did Watt use the patent system as a legal cudgel with which to smash competition, but his own efforts at developing a superior steam engine were hindered by the very same patent system he used to keep competitors at bay. An important limitation of the original Newcomen engine was its inability to deliver a steady rotary motion. The most convenient solution, involving the combined use of the crank and a flywheel, relied on a method patented by James Pickard, which prevented Watt from using it. Watt also made various attempts at efficiently transforming reciprocating into rotary motion, reaching, apparently, the same solution as Pickard. But the existence of a patent forced him to contrive an alternative less-efficient mechanical device, the “sun and planet” gear. It was only in 1794, after the expiration of Pickard’s patent that Boulton and Watt adopted the economically and technically superior crank.

As such, Watt and Boulton’s appearance on the new £50 banknote is not so much a celebration of engineering excellence, as a timely reminder of the harm that patents and their thickets continue to wreak on true innovators today.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

See also, however, George Selgin & John L. Turner, “Strong Steam, Weak Patents, or, the Myth of Watt’s Innovation-Blocking Monopoly, Exploded,” Journal of Law and Economics, Vol. 54, November 2011. Abstract:

James Watt’s 1769 patent is widely supposed to have stood in the way of the development of high-pressure steam technology until it finally expired in 1800. We dispute this popular claim. We show that, although it is true that high-pressure steam technology developed only after the expiration of Watt’s patent, the delay was due to factors other than that patent itself, including the widely-held opinion that high-pressure engines were excessively risky. Indeed, Watt’s monopoly rights may actually have hastened the development of the high-pressure steam engine, by inspiring Richard Trevithick to revive a supposedly obsolete technology so as to invent around them.

See also idem, “Watt, Again? Boldrin and Levine Still Exaggerate the Adverse Effect of Patents on the Progress of Steam Power,” Review of Law & Economics, 5:3 (2009). Boldrin and Levine respond to earlier criticisms by Selgin and Turner in Against Intellectual Monopoly, in an appendix to chapter 1.

Related:

• Yet more disanalogies between copyright and real property
• Richard Epstein on “The Structural Unity of Real and Intellectual Property” (Mises 2006)

Mises blog; archived comments below.

In recent papers, two pro-intellectual property libertarians, Richard Epstein and Objectivist Adam Mossoff, try to defend IP by arguing that it “can” be treated like property by a legal system.

In Epstein’s case, see his The Structural Unity of Real and Intellectual Property  (discussed here) and his The Disintegration of Intellectual Property? A Classical Liberal Response to a Premature Obituary. From the abstract of the latter piece:

The title of this paper plays off the title of Thomas Grey’s well known article, The Disintegration of Property, which argued in part that the ceaseless consensual fragmentation and recombination of property rights revealed some inner incoherence of private property institutions. I take the opposite position and treat this supposed disintegration as evidence of the robust nature of private property rights, not only for land but for all forms of intellectual property.

From the text of the former article:

My historical path influences the way I think about intellectual property. While others might look first to the statutes or the case law, I take a step back from these particulars. I first try to understand something about the general configuration of property rights as it works for various kinds of material objects. So armed, I then asked how intellectual property fits into the general framework. I did not start with the question of why intellectual property in its various forms is unique and distinct. To me the key question is how much of basic understanding about property rights carries over into intellectual property.

… The next question is how do these four elements [for treatment of physical resources]—exclusion, disposition, fragmentation and concentration—combine when the task is to examine the universe of intellectual property? And the answer is, it translates amazingly well.

Mossoff, in his draft chapter “Commercializing Property Rights in Inventions: Lessons for Modern Patent Theory from Classic Patent Doctrine,”¹ argues (from Abstract):

At the start of the Industrial Revolution, patentees created many novel and complex transactions to commercialize their property: they maximized their profits through sophisticated agreements that imposed restrictions on manufacturing, sales, and other uses of their inventions. When these restrictions were challenged as invalid restraints on property, courts consistently upheld them. They did so by employing the same concepts and doctrines used by common law courts to validate the creation of lesser estates or restrictive covenants for real property. In sum, early American courts incorporated into patent law the same legal doctrines governing conveyances of real estate, even going so far as adopting the common law property concepts of “assignments” and “licenses.” Given widespread confusion today concerning patent conveyance doctrines, this chapter explains the structure and content of this now-forgotten doctrinal framework.

This analysis is descriptive (or positive, in economic parlance), but patent theorists today can draw at least two important lessons from it. First, it reveals how traditional property theory is determinative in patent law. Early American courts secured to patentees the same conveyance rights as owners of real estate because patents were “property.” Thus, by definition, patentees enjoyed the same rights as those of landowners – the exclusive rights of use, enjoyment and disposal. Courts applied to patentees the same legal rules for conveying estates, and thereby permitted patent-owners to sue downstream infringers if there was a properly created reversionary interest. Second, patents are now defined as securing only a right to exclude, and this has unhinged patent conveyance doctrines from their firm conceptual grounding in property law. When novel issues are presented to courts concerning complex conveyances of patent rights, the result is indeterminacy and confusion in both the Federal Circuit’s and the Supreme Court’s decisions. Perhaps it is time to rethink how the hoary concept of property was essential to the successful commercialization of property rights in inventions in the nineteenth century.

(And in another draft essay, “Trespass Fallacy in Patent Law,” Mossoff makes similar arguments, which I discuss in Mossoff: Patent Law Really Is as Straightforward as Real Estate Law.)

In other words, both authors are highlighting the fact that a modern property-rights-oriented legal system “can” treat IP rights under some of the same legal rules, as a property right. Well sure, I agree with them. But then so what? This is a fairly trivial observation, in terms of policy (as opposed to legal theory), unless it is supposed to imply that this somehow helps to legitimize–or maybe rehabilitate–IP law. But of course it does not. There is a distinction between positive law (and the legal rights corresponding to these laws), and what we libertarians sometimes call “natural law” or libertarian law (and the natural rights or libertarian rights corresponding thereto).² The criminal gang called the state, through its law-creating legislature, can create any number of arbitrary positive rights or laws that contravene libertarian rights and justice.³ The right to receive social security payments could be viewed as an annuity. Another human could be viewed as property, and bought and sold as such. So what?

Calling something property, or fitting it into the state’s property law legal framework, does not mean it is legitimate property.⁴ To the contrary, just as the fed printing money dilutes the purchasing power of money, legislatively granting the status “property” to privileges granted by the state can only dilute the value of property itself. As Professor Tom Bell artices, in his witty Copyright Erodes Property?, “Calling copyright property risks eroding that valuable service mark.” To quote at greater length, Bell argues:

Copyrights and patents differ from tangible property in fundamental ways. Economically speaking, copyrights and patents are not rivalrous in consumption; whereas all the world can sing the same beautiful song, for instance, only one person can swallow a cool gulp of iced tea. Legally speaking, copyrights and patents exist only thanks to the express terms of the U.S. Constitution and various statutory enactments. In contrast, we enjoy tangible property thanks to common law, customary practices, and nature itself. Even birds recognize property rights in nests. They do not, however, copyright their songs.

Those represent but some of the reasons I have argued that we should call copyright an intellectual privilege, reserving property for things that deserve the label. Another, related reason: Calling copyright property risks eroding that valuable service mark.

Property as a service mark, like FedEx or Hooters? Yes. Thanks to long use, property has come to represent a distinct set of legal relations, including hard and fast rules relating to exclusion, use, alienation, and so forth. Copyright embodies those characteristics imperfectly, if at all. To call it intellectual property risks confusing consumers of legal services—citizens, attorneys, academics, judges, and lawmakers—about the nature of copyright. Worse yet, it confuses them about the nature of property. The property service mark suffers not merely dilution from copyright’s infringing use, but tarnishment, too.

Update:

See Patent Lawyers Who Don’t Toe the Line Should Be Punished!, discussing Michael Davis’s dissection of the tactic of trying to justify patents by equating it with real property, a tactic he calls the “trump of property.”

See also Tom Bell: Copyright Erodes Property?, arguing that it is in fact inappropriate to classify or refer to IP as “property.” And see also Bell’s article “Copyright as Intellectual Property Privilege“:

Abstract: 
We often call copyright a species of intellectual property, abbreviating it, “IP.” This brief paper suggests that we consider copyright as another sort of IP: an intellectual privilege. Though copyright doubtless has some property-like attributes, it more closely resembles a special statutory benefit than it does a right, general in nature and grounded in common law, deserving the title of property. To call copyright a privilege accurately reflects legal and popular usage, past and present. It moreover offers salutary policy results, protecting property’s good name and rebalancing the public choice pressures that drive copyright policy. We face a choice between two ways of thinking about, and talking about, copyright: As an intellectual property that authors and their assigns own, or as an intellectual privilege that they merely hold. Perhaps no label can fully capture the unique and protean nature of copyright. Recognizing it as form of intellectual privilege would, however, help to keep copyright within its proper legal limits.

See also Peter S. Menell’s 2007 article The Property Rights Movement’s Embrace of Intellectual Property: True Love or Doomed Relationship?, concluding that:

the Property Rights Movement is too limited and grounded in absolutist ideology to support the needs of a dynamic, resource-sensitive intellectual property system. Professor Epstein’s *754 simplistic equation of real and intellectual property generates more heat than light. It is not particularly helpful to think of real and intellectual property as structurally unified. The differences matter significantly and resorting to rhetorical metaphors distracts attention from critical issues. As Judge (later Justice) Cardozo cautioned in 1926, “[m]etaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.”

And: Who are You Calling a Pirate?: Shaping Public Discourse in the Intellectual Property Debates Christina Mulligan Yale Law School, Information Society Project Brian Patrick Quinn affiliation not provided to SSRN October 22, 2010 Brandeis University Department of English Eighth Annual Graduate Conference, 2010 Abstract: To describe an activity as “piracy” is to code it as violent, avaricious, and unjustified. The word’s etymology in the Hellenistic Greek peirân, “to assault,” emphasizes the physical force involved. Later usage added the connotation of theft. Today, the term is applied to two groups that could hardly be more dissimilar. One group takes hostages at sea and sometimes harms them; the other, on a home computer, downloads songs and software without paying for them. This paper argues that the use of the word “piracy” by members of the content industry, such as recording companies, betrays an effort to naturalize a notion of intellectual property that has historically been rejected by courts in the English-speaking world. This notion holds that intellectual property is analogous to any material good and that, as a consequence, acquiring it without the permission of its creator is theft. We contend, in contrast, that this analogy between physical property and intellectual property is troubled for a number of reasons. Moreover, referring to violations of copyright law as “piracy” in public and legal discourse can, by rhetorically invoking the bloody anomie of maritime piracy, promote the unsupported notion that intellectual property protections are as natural as prohibitions of violent theft. This rhetorical legerdemain obscures intellectual property laws’ constructedness and papers over any gaps that exist between the letter of the law and the values of the citizens to whom it applies. Number of Pages in PDF File: 10 papers.ssrn.com/sol3/papers.cfm?abstract_id=1695461

Update: This is discussed by Bell in his recent interview on Surprisingly Free with Jerry Brito (see Tom Bell on copyright reform).

See also my 2008 Mises blog post: Are Copyrights and Patents Property Rights?:

Timothy Lee on the Cato blog notes that

The latest issue of Regulation magazine has a fantastic article by Peter Menell discussing the divisions in libertarian theory on copyright and patent issues. One one side is what Menell dubs the Property Rights Movement, of which Richard Epstein is a leading theoretician. They see intellectual property and more traditional property rights as fundamentally similar, and apply libertarian insights about the importance of strong property rights in tangible goods to debates over patent and copyright law. For theorists like Epstein, the need to reward the fruits of labor lie at the heart of the libertarian case for property rights, and as a consequence the argument for strong intellectual property rights is identical to the argument for tangible property rights.The other camp sees copyright and patent law as fundamentally different from tangible property rights. It includes F.A. Hayek, many “cyberlibertarians,” and Menell himself. For this camp, the fundamental argument for property rights is not about rewarding creativity so much as managing scarcity. We need strong property rights in tangible property so people can make plans about the use of scarce resources. Since inventions and creative works are non-rivalrous once created, the argument goes, property-like restrictions on their use are at best a necessary evil.

The paper cited is Intellectual Property and the Property Rights Movement by Peter S. Menell.

The last paper cited has a conclusion similar to the other Menell paper cited above:

The property rights movement is too limited and grounded in absolutist ideology to support the needs of a dynamic, resource-sensitive intellectual property system. It is not particularly helpful to think of real and intellectual property as “structurally unified.” To the contrary, the landscape of intellectual property itself is quite variegated. Functionally-oriented property rights analysis can be useful to legal and policy debates, but property rights rhetoric is misleading philosophically, historically, and functionally. Suggesting that “intellectual property” must be treated as part of a monolithic “property” edifice masks fundamental differences and distracts attention from critical issues.

And see Wendy J. Gordon, “Intellectual Property“, sec. 1.1.3:

The ‘property’ portion of the ‘intellectual property’ label has caused practical as well as conceptual difficulties. Too many courts have assumed that all things called ‘property’ should be treated similarly, ignoring the important physical, institutional, and statutory differences that distinguish intellectual ‘property’ from the tangible kind.

For example, it has become standard in the study of IP to note that patent and copyright reflect a balance between two effects on society: (1) providing incentives to authors and inventors, and (2) providing access to the members of the public, both as consumers and as potential new authors and inventors who need to copy in order to implement their own creativity and skill. The first goal (incentives) is served by giving rights to IP proprietors. The second goal (access) is served by giving liberties to the public, which involves limiting IP owners’ rights in ways quite foreign to ordinary property.Yet those limits are as crucial to IP as are the rights that IP grants. (Or at least the limits should be as important. The dynamics of public choice sometimes result in special interests having a greater impact on IP legislation than does the interest of the general public ….)

Another difficulty with the ‘property’ label is that, even more obviously than with ordinary property, the essence of IP law is person-to-person, not person-to-thing.This relational focus might have been better captured by the label that the US bar employed for the field during the first half of the last century,‘unfair competition’. In my view, that was a better phrase (albeit still imperfect) to unite the various doctrines. The core and most justifiable part of the essence of the IP cause of action is to restrain some act of duplication or free riding that, if widespread, would be wrongful (‘unfair’) because it is immoral and/or economically costly. Economic cost in IP usually stems from the danger that free riding will cause a loss of incentives, leading to under-production, or from the danger that fraud and confusion will result from too many entities using the same symbol. However,‘unfair competition’, too, is inadequate as a label.

Most obviously, it is misleading as a descriptive matter. IP owners today have rights against persons who are neither competitors nor cause effects like those caused by competitors. It is even a bit misleading to use ‘unfair competition’ as a normative model. That is because competitors are not the only persons who can use strangers’ patterns in ways that have deleterious social effects.

…  Dispensing with the need for a plaintiff to show a particularized personal or social harm reduced the cost of adjudication, increased certainty, and made it easier to buy and sell rights—and, so long as the IP was sufficiently narrow, may have done so without significantly chilling the socially desirable use of created works by third parties.

However, over the years, the definitions of both subject-matters and protectable rights have expanded. (For example, under early copyright statutes, the proprietor typically had rights only against slavish duplication and sale of the copyrighted manuscript. She had no right to veto, for example, a creative adaptation of her work that served a different market. By contrast, today a copyright proprietor’s rights extend over creative uses that others may wish to make of her work.) With this expansion, a lack of fit between private and public interest has become increasingly likely to occur in given IP cases.

At least, so is the view of this writer, and of the growing academic consensus. Various devices exist to ameliorate this situation. …

[Mises]
Update: See also Yet more disanalogies between copyright and real property.

archived comments

J. Murray October 4, 2011 at 4:53 pm

You can also throw rocks at a wasp nest, but that doesn’t make it a good idea.

REPLY

Max Power October 4, 2011 at 6:19 pm

The courts can treat children as property, as well. It doesn’t mean they should.

REPLY

Wildberry October 6, 2011 at 11:58 am

J. and Max;

This is true. The question I wonder about is why don’t we? The fact is we don’t do these things. This leads me to suspect that there must be something about what we do that is tied to why we do it and what we expect from such rules of conduct?

Any chance you might consider this?

REPLY

Max Power October 7, 2011 at 9:15 am

You seem to be implying that it is correct to treat ideas as property because scoiety generally supports the idea, while “children as property” is not, because society does not support that idea.

A logical extension of that line of reasoning is that it was correct for someone in the 1850s to treat certain humans as property, since society as well as the courts supported that principle.

REPLY

Wildberry October 7, 2011 at 9:27 am

Max,

I am not implying anyting of the sort. I am saying directly that we are capable of distinguishing one thing from another, and we do.

Despite Kinsella protestations to the contrary, I do not make a claim that once a law is established as enforceable code, it is forevermore considered legitimate. Obviously laws are subject to review, revision and repeal. Slavery is a fine example.

Viewed from my, and generally “our” contemporary perspective, slavery was always wrong, even when it was legal. Why? There is some reasoning that allows us to distinguish one answer from another and formulate some perception of truth on the matter.

Why should the debate on IP be subject to less analysis? In fact, because the concept is much more esoteric than slavery, analysis should be even more exacting. Do you disagree?

REPLY

Stephan Kinsella October 7, 2011 at 10:38 am

I am not implying anyting of the sort. I am saying directly that we are capable of distinguishing one thing from another, and we do.

Of course we can distinguish. But “so what”? We can distinguish blacks from whites so that a rule saying the latter can own the former as property comprehensible. so what?

Despite Kinsella protestations to the contrary, I do not make a claim that once a law is established as enforceable code, it is forevermore considered legitimate. Obviously laws are subject to review, revision and repeal. Slavery is a fine example.

Aww, how nice. If negroes are enslaved, “by law,” you respect that, but are generous enough to consider “reviewing” it as part of the “democratic” process. How humane.

REPLY

Wildberry October 7, 2011 at 11:53 am

@ Stephan Kinsella October 7, 2011 at 10:38 am

Ridicule is a defense, not a weapon.

So what? Distinction is unimportant to you? Black from white is all there is? This explains your preference for strict liabilty rules; fewer facts to bother with.

As for the rest, it is the famous “Is not.” “Is too!” “Nah uh!” retort. Impressive.

Simun October 4, 2011 at 6:32 pm

The professor you’re quoting in your support mentions customary practice and common law as sources of legitimacy for property rights. Isn’t that the same argument authors you’re refuting are making?

REPLY

Mashuri October 4, 2011 at 7:16 pm

He also cites nature as a source as well, which leads to common law, customary practice, etc. I see no issue with the professor’s quote in its current context.

REPLY

Old Mexican October 4, 2011 at 10:57 pm

In recent papers, two pro-intellectual property libertarians, Richard Epstein and Objectivist Adam Mossoff, try to defend IP by arguing that it “can” be treated like property by a legal system.

Legal positivism – how quaint.

REPLY

jim blackstock October 5, 2011 at 7:49 am

In other copyright news, It looks like Bob Dylan himself is in trouble for his paintings that are borrowed from famous photographs. As a photographer, it even bothers me that courts claim people don’t have a right to paint something I have photographed. I have no claim over works “inspired” by the things I do or create. The article here:
http://pdnpulse.com/2011/09/bob-dylan-looking-like-a-copyright-infringer-now-what.html

Jim

REPLY

Thomas Christensen October 5, 2011 at 9:19 am

In Denmark we don’t officially use the term “intellectual property” – though IP-defenders never stop trying. We’re using the term “immaterial rights” which I find to be much better.

REPLY

Phinn October 5, 2011 at 10:10 am

You can treat contractual rights and partnership interests as though they were property, too. But those types of rights clearly don’t share the same characteristics as the right of exclusive use that one can have in a toaster or a patch of dirt. Intangible property is only property by metaphor.

The reason that a promissory note, for example, can be treated as though it were property is not because someone owns a physical sheet of paper. After all, the right that a lender has in a promissory note is not in the physical document, but in the abstract right to compel the borrower to pay, or else he must submit to having an equivalent portion of his property taken from him by force. That right can be merely verbal, and not written down at all, and still be thought to exist.

The reason a promissory note is treated as though it were property is because, like the use of physical objects, the right to enforce a promissory note is rivalrous with everyone else’s right to enforce it. If the lender transfers the right to enforce the note to someone else (i.e., “sells” it), the lender necessarily loses whatever he sells. The buyer acquires exactly what the seller loses. The key here is that the buyer and seller cannot both enforce the note; the borrower only has to pay once.

But IP doesn’t purport to work that way. IP purports to make EVERYONE stop doing something, merely because someone, somewhere on planet earth, claims to have been the first one to do that TYPE of thing. The people who do this activity later in time may have no contact whatsoever with the first one, may not know him, and their activities may have no physical contact with each other in the slightest, but still IP proponents insist that forcibly stopping others from doing it is a right of property. It makes no sense.

Except, of course, IP makes sense when we realize that it’s not property but a form of monopoly. Monopoly “rights” purport to allow the holder to not only prevent someone from stealing a specific, actual bale of cotton, for example (and then using it or selling it), but somehow includes the right to stop anyone, anywhere, from selling ANY bales of cotton to anyone else. It’s a purported exclusivity of use not in some actual, particular thing, but exclusivity in engaging in a TYPE of market activity — in this case, selling cotton.

IP claims not to control the use of things, but to control people in their market activities.

Which is indefensible.

REPLY

coturnix October 6, 2011 at 7:01 am

IP is nothing more nor less than a special case of ‘market ownership’; it is defended with the very same arguments both from theoretical and from applied p.o.v. and behave the same way. Person that support IP but defies tariffs and trade quotes is a bigot.

REPLY

Wildberry October 6, 2011 at 12:12 pm

@Phinn October 5, 2011 at 10:10 am

You can treat contractual rights and partnership interests as though they were property, too.

Your first sentence reveals your misunderstanding of the differnece between property rights and contractual rights; property rights work against everyone and anyone who infringes upon them, while contractual rights only work against the parties to the contract.

So the rest of your analysis is flawed by this misunderstanding.

Second, your understanding of IP is flawed because no IP right operates to secure exclusive use of a “type” of thing. No one owns the concept of “book”. No one can prevent another from writing and publishing a book.

Further you fail to undertand that IP laws do operate on tangible, physical things that authors and inventors produce. The issue you are trying to address is servicability; this is the fundamental nature of IP that differs from other economic goods.

The issue of dealing with economic goods of infinate servicability is the economic problem Mises addresses in his short analysis of externalities, including external economies.

All of this hand-waving about whether somethig is “real” property or not is simply a disguised economic argument that posits that it is not necessary or desirable to secure property rights in intellectual creations. This argument fails to address the delimma between infinite servicability and external economies. The Kinsella argument simply presumes that the second issue does not exist. This is false.

REPLY

Stephan Kinsella October 6, 2011 at 12:53 pm

You are an unfortunate combination of naif, moron, and dissembler.

REPLY

Phinn October 6, 2011 at 7:28 pm

“So the rest of your analysis is flawed by this misunderstanding.”

Your first point is wholly incorrect. I have no misunderstanding whatsoever that property is generally and universally applicable, while contracts must be affirmatively created.

In fact, it is entirely possible to think of a contract as a partial waiver of one’s self-ownership, in the sense the party gives away the right to defend himself against the forcible extraction of some thing (e.g., money) that he has promised in the contract. No one can legitimately extract $100 from you, except when you have promised to give it under circumstances that have been met. The promissor to a contract essentially relinquishes some of his property.

So contracts are premised on property. They are promises to exchange rights in property.

Since you misunderstand me so thoroughly, I have lost interest in discussing the point further.

REPLY

Phinn October 6, 2011 at 7:33 pm

“So the rest of your analysis is flawed by this misunderstanding.”

Your very first point is wholly incorrect. I have no misunderstanding whatsoever that property is generally and universally applicable, whereas contracts must be affirmatively created.

Contracts are promises of the exchange of property. In fact, it is entirely possible to think of a contract as a partial waiver of one’s self-ownership, in the sense the promissor gives away the right to defend himself against the forcible extraction of some thing (e.g., money) that he has promised in the contract. No one can legitimately extract $100 from you, except when you have promised to give it under circumstances that have been met. The promissor to a contract essentially relinquishes some of his property.

So contracts are premised on property. They are promises to exchange rights in property.

Since you misunderstand me so thoroughly, I have lost interest in discussing the point further.

REPLY

Wildberry October 7, 2011 at 11:24 am

@ Phinn October 6, 2011 at 7:28 pm

Hey, don’t take it personally…I’m trying to help.

It is applicabilty that is being compared, not method of creation. All property is “created” in some way or antother, one of which is Kinsella’s beloved “homesteading”.

Property can be affirmatively created by contract. I’m referring to the operation of rights to goods. Contracts usually involve the transfer of goods and services between parties, and rights and liabilities extend only to those parties.

However, if those same two parties create a property interest, say an easement, once created, it operates on everyone, incuding successors to the property who did not sign a contract.

Same with laws. A law secures enforcabilty of a right to something, and that something is property, not a contract.

The promissor to a contract essentially relinquishes some of his property.

Yes, this is “consideration”, a requirement for an enforceable contract. The question is who is it enforcable against? In contract law, only the party to the contract who does not perform is liable. In property law, the right created is enforceable against everyone.

Your idea is interesting. I guess you could say that one way to think of property rights is that everyone in the world has effectively signed a contract with the rights holder.

The problem, of course is that the first problem in a contract dispute is to determine if there is a contract, and one element is mutual assent. What theory would you use to establish that a given property right is created by the implied consent of the rest of the world?

You would have to make a rule that people are forced to follow. I think that is the fundamental concept of “law” istn’t it? So I think you have to decide whether the concept of law is legitimate, for whithout it, there is no property right.

One law that does not require any form of state enforcement is “might makes right”. This is what Kinsella indrectly supports. According to him, you set up a property right by homesteading, and everyone agrees who owns what in advance, because it is a natural law which pre-exists the state, and is never, ever ambiguous. Then if there is a conflict, PDAs enforce these rights as “defense against aggression”. This is a strict liability rule for defending against aggression.

This is a sophisticated and indirect form of claiming a right, and then defending it, which in turn is just a rule of the jungle, where superior force prevails over inferior force.

I personally don’t see that as much of an improvement.

REPLY

Peter Surda October 7, 2011 at 12:15 pm

Wildberry,

All property is “created” in some way or antother, one of which is Kinsella’s beloved “homesteading”.

No property is created. The objects of the property are given. They can only be unaffected, appropriated, transferred and abandoned, which is the result of a 2×2 matrix representing the existence of an owner prior and post an act. I’m too lazy to draw so I’ll just list it:

Unaffected: no owner -> no owner
Appropriated: no owner -> an onwer
Transferred: an onwer -> another owner
Abandoned: an owner -> no owner

There is no logically possible alternative.

Property can be affirmatively created by contract.

It cannot. If you disagree, then please provide an example. Also, the funny thing is, you actually agreed with me back in July that a contract cannot create a right that none of the parties to the contract has prior to the contract, so you’re contradicting yourself again.

Hold on a bit until I get my popcorn, I’m curious what method you’re going to use to wiggle out of this one. Please do not disappoint me with one of your old tricks, I want to see a new one.

REPLY

Wildberry October 7, 2011 at 1:04 pm

@Peter Surda October 7, 2011 at 12:15 pm

No property is created. The objects of the property are given.

Ah, you are tiresome. “Created”. That doesn’t mean I CREATE the universe, but thanks for the physics lesson.

If I say “Property rights are appropriated to an owner” is that ok with you, or are we now going to debate the meaning of “owner”? We can debate the meaning of “appropriate”. That should be good for 1,000 words.

please provide an example.

Ah, how about an easement? Is that not a property interest created by contract? And once created, does it not operate as a property right? Amnesia? Wait, to make you happy I should say that the owner of the land appropriates some of his rights and transfers them to the other guy, who now has them under contract. But now that just a contract, not property. Oh yea, they are “co-owners” now…

If you want to claim a new connotation of a word, and then feed it back to me as a contradiction, you are going to need lots of popcorn; that can (and does) go on forever.

I’ll leave you to Kid Salami. He is much better at pointing out your foolishness than I am.

REPLY

Peter Surda October 8, 2011 at 7:40 am

Wildberry,

in the referenced quote by you, while discussing easement, you confirmed that contracts do not create new rights. Now you switched your argument around, again, and claim that contracts do create rights, and present easements as an example.

REPLY

Wildberry October 10, 2011 at 12:00 pm

create – 3 dictionary results
cre·ate   /kriˈeɪt/ Show Spelled
[kree-eyt] Show IPA
verb, -at·ed, -at·ing, adjective
–verb (used with object)
1. to cause to come into being, as something unique that would not naturally evolve or that is not made by ordinary processes.
2. to evolve from one’s own thought or imagination, as a work of art or an invention.
3. Theater . to perform (a role) for the first time or in the first production of a play.
4. to make by investing with new rank or by designating; constitute; appoint: to create a peer.
5. to be the cause or occasion of; give rise to: The announcement created confusion.
EXPAND
6. to cause to happen; bring about; arrange, as by intention or design: to create a revolution; to create an opportunity to ask for a raise.
COLLAPSE–verb (used without object)
7. to do something creative or constructive.
8. British . to make a fuss.
–adjective
9. Archaic . created.
Use create in a Sentence
See images of create
Search create on the Web

——————————————————————————–

Origin:
1350–1400; Middle English creat (past participle) < Latin creātus, equivalent to creā- (stem of creāre to make) + -tus past participle suffix

—Related forms
cre·at·a·ble, adjective
in·ter·cre·ate, verb (used with object), -at·ed, -at·ing.
self-cre·at·ed, adjective
self-cre·at·ing, adjective
un·cre·at·a·ble, adjective
EXPAND
un·cre·at·ed, adjective
COLLAPSE

—Synonyms
2. originate, invent.

Peter, wouldn’t it be inconvenient for you if words could only be used like numbers? Then how would you “falsify” things?

REPLY

Peter Surda October 10, 2011 at 12:24 pm

Wildberry,

you are avoiding a confrontation. No matter how you define “create”, it still cannot have simultaneously contradictory meanings. Assuming, of course, that you’re to be taken seriously.

Wildberry October 10, 2011 at 4:02 pm

If I were to take you seriously, I woud expect you to lay the contradictions you claim out, and explain why they are a contradiction, so everyone can see what you are talking about and so I might have chance to rebut your explanation.

Instead you just declare a contradiction and expect me to prove your assertion wrong.

This is why I find your posts a waste of time. You contribute nothing.

Peter Surda October 11, 2011 at 1:49 am

Wildberry,

If I were to take you seriously, I woud expect you to lay the contradictions you claim out, and explain why they are a contradiction, so everyone can see what you are talking about and so I might have chance to rebut your explanation.

I already did this several times: you simultaneously claim that contracts do, and don’t, create new rights.

Instead you just declare a contradiction and expect me to prove your assertion wrong.

I clearly explained the contradiction several times, as well as provided references to you making the contradictory claims.

This is why I find your posts a waste of time.

I regularly provide point by point refutations of your claims, which end up being ignored by you. This has been going on for about 10 months now. I find it peculiar how you can make the claim that this is a waste of time.

You contribute nothing.

What you mean is that I disturb your games and you find it annoying. Maybe you should consider playing somewhere else then.

Wildberry October 11, 2011 at 10:59 am

Surda,

I already did this several times: you simultaneously claim that contracts do, and don’t, create new rights.

As in “contracts create the universe” or “contracts give rise to alienable rights”?

Like I said, wouldn’t it be convenient for you and other robots if “create= 2″?

I regularly provide point by point refutations of your claims, which end up being ignored by you. This has been going on for about 10 months now. I find it peculiar how you can make the claim that this is a waste of time.

In your dreams. As I have said to you before but it bears repeating, you confuse response with reply. A mere response contributes nothing. You contribute nothing.

Maybe you should consider playing somewhere else then.

You wish. You are fundamentally a tyrant, like Kinsella, who would rather stifle discourse by rudeness, ridicule and unfounded claims of victory than actually engage in it. This is why it is impossible to take you seriously, as so many others here have ceased to do. Why, is obvious to everyone but you.

REPLY

Peter Surda October 11, 2011 at 11:36 am

Indeed Wildberry. How dare I insist that you answer questions, how dare I point out the errors in your claims, how dare I call your bluffs, how dare I challenge your moral superiourity. That’s tyrrany. A proper human being, like you, ignores everyone and craps all around.

Phinn October 7, 2011 at 3:11 pm

You would have to make a rule that people are forced to follow. I think that is the fundamental concept of “law” istn’t it?

No, what you describe is a fundamental concept of “edict” or “command” or “legislation.” These things are merely expressions of someone’s preference as to what others do or not do.

Normative assertions do not qualify as principles of ethical behavior unless they can be justified rationally and universally. Otherwise, the assertion is merely a human device, as you might say — something that someone pulls out of his ass, which happens to sound sorta good to a certain set of people for a limited amount of time, and which he backs up with threats. Like “let’s all wear bellbottom jeans” or “Lady Gaga is the best evar!!!” or “Let’s call these people ‘police’ and give them funny costumes and guns and privileges to do what others can’t do.”

These are not universal ethical principles, but merely preferences.

It should be pretty obvious that the preferences of a mob are no more legitimate and authoritative than the preferences of anyone else.

(I am reminded of a passage from Balzac’s Pere Goiriot, which the author placed in the mouth of the sociopath M. Vautrin —

“There are no such things as principles; there are only events, and there are no laws but those of expediency: a man of talent accepts events and the circumstances in which he finds himself, and turns everything to his own ends. If laws and principles were fixed and invariable, nations would not change them as readily as we change our shirts.”

Preferences are often confused with principles of ethics. For example, let’s say the “rule” is “You shall pay the government 35% of your income.” That is not a law. That is an edict. If it were a law, or principle of ethics, then it could not also be true that it is ethically required for people to pay anything other than 35%, such as 20% or 85%. A rule cannot be considered an expression of ethics if it changes as readily as we change our shirts, as Balzac would say.

Sure, the mob can get together and hire goons to tear me to ribbons and spill my entrails for not complying with its edicts, but that still does not make its preferences a form of law. That’s not even “might makes right,” which is nonsense. That’s just “might makes you do what might wants you to do.”

By merely asserting that X is right and Y is wrong (as you often do), you are necessarily also asserting that a universal principle of ethics exists, and that you know what it is. You then contradict yourself, however, when you then claim that the “law” you stand on is also a “human device,” which is your pet phrase for edicts that that change according to whoever swings the biggest stick of the day. Like IP laws that get rewritten depending on how much Disney’s lobbyists have to spend on buying politicians.

But, my larger point is quite simple — by even uttering a single ethical precept, you are also necessarily asserting that a universal, timeless and eternal principle of ethics is out there, somewhere, for us to discern and follow, like we would a law of physics or mathematical reality.

REPLY

Wildberry October 7, 2011 at 5:39 pm

@Phinn October 7, 2011 at 3:11 pm

“You would have to make a rule that people are forced to follow. I think that is the fundamental concept of “law” isn’t it?”

No, what you describe is a fundamental concept of “edict” or “command” or “legislation.” These things are merely expressions of someone’s preference as to what others do or not do.

I guess you are free to presume that it comes about that way, but I do not. Imagine it comes about is a way that even you believe is legitimate, say trespassing or murder or robbery. Do you have a problem against a “rule” that prohibits that conduct under threat of legal enforcement? What would you call such a rule? Give the word you will accept and we can refer to it that way from now on.

Whatever name you give it, I mean to presume that it is more than a “preference” since preferences are not enforceable. They are suggestions, not enforceable rules. I’m taking about rules of law. Presume whatever form of enforcement you wish, that is irrelevant.

These are not universal ethical principles, but merely preferences.

Yes, but you are the only one talking about preferences. I mean to imply a legitimate rule of law, however you assume it is legitimized. I agree that ethics must be in there somewhere, but principles of ethics are not automatically universal, although I think some principles are very commonly held to be true and self-evident. You might think some types of conduct is ethical, say blackmail, while I might not. Whether a rule of law prohibited blackmail exists or not, you would still have your opinion and preferences, but if one did exist, you would have the right to blackmail me, meaning if you did you might be subject to redress by whatever enforcement means “our” society has adopted. You might want to revise or abolish that law, but I would not. You could try, legally, and I could oppose you, legally. Eventually, our social institutions, if I may be so bold as to presume we have some, would decide. In today’s world of 2011, I think my side would win.

It should be pretty obvious that the preferences of a mob are no more legitimate and authoritative than the preferences of anyone else.

Such inflammatory rhetoric! Mob?

“You shall pay the government 35% of your income.” That is not a law. That is an edict.

Careful, Mr. Phinn, your assumptions are showing. “Shall pay” is a command, that would have to be backed up with force. You are presuming that 1) someone has the power to make his/her personal preferences law, and 2) can back it up with force and 3) can only be opposed with greater force. If you make those presumptions, you are assuming a dictatorship. You are implying that all taxes originate from such power. This is not necessarily true, is it?

If it were a law, or principle of ethics, then it could not also be true that it is ethically required for people to pay anything other than 35%, such as 20% or 85%. A rule cannot be considered an expression of ethics if it changes as readily as we change our shirts, as Balzac would say.

Sorry, I think you are confusing means with ends. An ethical principle for taxes may rest on a groups’ right to self organize and self-govern. Do you believe that free people have such a right, ethically speaking?

Unless you assume a scenario of conquest and occupation, common law takes quite some time and considerable effort to evolve to some state, and likewise it takes some considerable effort to change them once established.

Perhaps you are thinking of the ease by which something like Obamacare was passed; legislative law. I agree, he made it look like ramming through his preferences, but then let’s see what happens next. It looked easy because opposing forces had been asleep at the wheel and allowed the wolves in the henhouse, so to speak. If you let the chickens roam free and unsupervised, they are bound to be eaten by varmints. But even there, isn’t there at least a shred of ethical principle that could be rallied in support, say compassion for the health needs of our fellow humans? I case can be made for some ends that rest upon that principle, though we probably agree that Obamacare is far from the most appropriate means.

Most controversy about laws are like that. There are some ends that are rooted in an ethical principle that is widely accepted, and the means are proposed to achieve those ends. In a mercantilist state, to illustrate my point, a law imposing tariffs is not the best means to achieve the declared ends of fair competition. (lame example but I think you get my point)

Sure, the mob can get together and hire goons to tear me to ribbons and spill my entrails for not complying with its edicts,

Stephen King fan?

By merely asserting that X is right and Y is wrong (as you often do), you are necessarily also asserting that a universal principle of ethics exists, and that you know what it is.

That is a pretty uncharitable way describing me. I don’t think I do or have done what you say. But I do pick up the disdain.

Actually, Phinn, we probably agree on 95% of any ethical principles you care to describe, since we are both humans and probably have a pretty good sense of right and wrong, which is another way of describing ethics. Where we actually disagree is on the means. Because of that, you seem to want to make me out as someone who has no idea about right, wrong, good or bad. Does that seem reasonable to you? Is that the only possibility that could explain why I support means that differ from yours, even though I believe we have much in common concerning desirable ends?

You then contradict yourself, however, when you then claim that the “law” you stand on is also a “human device,” which is your pet phrase for edicts that that change according to whoever swings the biggest stick of the day.

You misunderstand me completely, but I’m not offended. Laws are a human device to the extent that they would not exist if it were not for the humans who create them. (I’m not talking about gravity and thermodynamics here. Those are natural laws, not the ones you call “natural law”, meaning they pre-exist human laws.) Neither IP or any other law is a natural law in the sense you probably mean. In my view, if they would naturally arise from a state of anarchism, they might be called “natural”. Even though you may classify this meaning of “natural law” from positive law, all laws eventually become positive law. Rights cannot exist without positive law. To restate it, rights cannot exist without a means to enforce them. Again, we may differ on the means of enforcement, but they must exist in some form, or no rights can be said to “exist”.

Like IP laws that get rewritten depending on how much Disney’s lobbyists have to spend on buying politicians.

See, we agree. Are you surprised? CTEA is a perfect example of what can be referred to as neo-mercantilism, a generalized form of trade-tariff mercantilism; collusion between private business interests and political means used to serve the ends of unfair competitive advantage. Before you say it, of course IP is a fair target for that criticism. The question is, is it the same or different? CTEA, and much of recent IP law changes support the argument that it is the same. The interesting point for me is, like your understanding of the need for ethical principles to underpin legitimate laws, is there a legitimate underpinning for IP laws in principle? I say yes.

But, my larger point is quite simple — by even uttering a single ethical precept, you are also necessarily asserting that a universal, timeless and eternal principle of ethics is out there, somewhere, for us to discern and follow, like we would a law of physics or mathematical reality.

Who disagrees with this? Knowledge is imperfect, ongoing, and cumulative. This seems to be true in every domain of human understanding. Don’t you agree?

REPLY

Stephan Kinsella October 7, 2011 at 7:41 pm

“It should be pretty obvious that the preferences of a mob are no more legitimate and authoritative than the preferences of anyone else.”

Such inflammatory rhetoric! Mob?

Heavens to Betsy, no! Gasp!

“You shall pay the government 35% of your income.” That is not a law. That is an edict.

Careful, Mr. Phinn, your assumptions are showing. “Shall pay” is a command, that would have to be backed up with force. You are presuming that 1) someone has the power to make his/her personal preferences law, and 2) can back it up with force and 3) can only be opposed with greater force. If you make those presumptions, you are assuming a dictatorship. You are implying that all taxes originate from such power. This is not necessarily true, is it?

Yes, you idiot, it is.

REPLY

Kid Salami October 7, 2011 at 12:22 pm

Imagine we’re in the pre-industrial revolution world, where factories or other entities that spew some kind of measureable pollutant don’t exist. Someone builds a factory making shoes that emits smoke that turns my washing black.

This idea of pollutants is entirely new – i speak to my PDA man and I’m told I can sue the factory owner for damages or apply to some local group that has agreed with the factory to act as an intermediary to reimburse people who are directly bothered by it or whatever. That is, other people in my area have some to some arrangement.

Surely I can argue that the requirement to do ANYTHING is “partial control” of time and property (ie. my paper and my ink to submit the documents)?

Why can’t I just demand (through whatever PDA or other legal mechanism that is in place) that this man be stopped under threat of force from emitting smoke and thereby “invading the borders of my property” (and so indirectly insist we all stick to bare feet so that I can have clean linen)? Surely ignoring my demand is “aggressing” against me.

Or, is there some “exception” that creeps into the rules to allow for the fact that people like shoes? If so, what is the criteria on which the validity of these “exceptions” might be discussed?

REPLY

Peter Surda October 7, 2011 at 12:59 pm

Kid Salami,

Why can’t I just demand (through whatever PDA or other legal mechanism that is in place) that this man be stopped under threat of force from emitting smoke and thereby “invading the borders of my property” (and so indirectly insist we all stick to bare feet so that I can have clean linen)?

Sure, why not? Who’s claiming you can’t?

REPLY

Kid Salami October 7, 2011 at 1:40 pm

No’one – just checking.

1. George Mason Law & Economics Research Paper No. 11-27; forthcoming in Competition Policy and Patent Law Under Uncertainty: Regulating Innovation, Geoffrey A. Manne, Joshua D. Wright, eds., Cambridge University Press, 2011. [↩]
2. See my post Logical and Legal Positivism. [↩]
3. See my “Legislation and Law in a Free Society.” [↩]
4. See my post Intellectual Properganda. [↩]
5. Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (New York: Penguin, 2004). [↩]

Related:

• Price Controls, Antitrust, and Patents (July 2011)
• Antitrust vs. Trademark Law (June 2011)
• The Schizo Feds: Patent Monopolies and the FTC (Aug. 2006)
• IP vs. Antitrust (Sept. 2005)
• The Microsoft-Apple Gesture Oligopoly
• Controls breed controls, Monopolies breed monopolies

I’ve noted before that various state policies–some ostensibly anti-big-business, such as pro-union legislation, minimum wage, taxes, FDA regulations, tariffs, employment regulations–help big business and decreases competition. This is also true for patent and copyright, which also help to breed these oligopolies of large companies with large IP warchests, which erect barriers to entry, harm the consumer, reduce competition, and gives rise to oligopolies.¹

A good recent example of this are recent patents by Microsoft and Apple on various types of “gestures” used to control smartphones, game systems, and the like. This obviously makes it harder for outsiders to compete in these spaces because they would be hobbled by being prevented from implementing competing features in competing devices.

1. Controls breed controls, Monopolies breed monopolies; Nortel Patents Sold for $4.5 Billion to Consortium Which Includes Apple; Apple vs. Microsoft: Which Benefits more from Intellectual Property?; Patent Cross-Licensing Creates Barriers to Entry. [↩]

From Mike Masnick: Patent Troll Says Anyone Using WiFi Infringes; Won’t Sue Individuals ‘At This Stage’. Excerpt:

… While its initial lawsuits against coffee shops and restaurants did focus on the central corporations, with the hotels, Innovatio appears to be focusing on individual franchisees. Yes, the small businesses who own individual hotels and probably have no idea how to deal with a patent infringement lawsuit — all because they dared to offer WiFisomewhere in their hotels. To make it “easy” of course, Innovatio’s lawyers will let them settle for between $2,300 and $5,000. In almost every case, that’s going to be cheaper than hiring a lawyer to just get started dealing with this — which I’m sure is exactly what Innovatio intends.The company is represented by the infamous law firm of Niro, Haller & Niro, which is the firm that originally inspired the term “patent troll.” The lawyer representing the company, Matthew McAndrews, seems to imply that the company believes the patents cover everyone who has a home WiFi setup, but they don’t plan to go after such folks right now, for “strategic” reasons:

“Innovatio has made a strategic and business judgment at this stage that it doesn’t intend to pursue [lawsuits on the basis of] residential use of WiFi,” McAndrews said during a phone conversation last week.

And while that certainly could change, you may be relieved (or probably not) to learn that McAndrews does not “perceive” such a “strategic” decision will change. However, later in the article, he seems to indicate otherwise:

Ultimately, he said, Innovatio’s “plan is to license this portfolio to the fullest extent possible. That would include anyone who’s wireless networking.”

What would be poetic justice would be if Innovatio were to personally sue every Objectivist and pro-IP libertarian who has a home wifi system. Think they’d wake up to the injustice of IP then?

As Mike Masnick explains in As Countries Sign ACTA, Many Finally Admit Their Copyright Laws Will Need To Change, Obama has signed the dreaded ACTA by executive fiat. Disgusting. It’s being treated like a treaty, but the Senate did not have to approve it.

Further ACTA posts.

A most recent episode of This Week in Law discussed How to write the nastiest copyright notice possible. This concerns Paul Zukofsky, son of authors Louis and Celia Zukofsky, and his attempt to exert extreme control over his parents’ work using a very narrow interpretation of fair use. As noted here, “Among its finer moments is one passage in which he plainly discourages the reader from studying his father’s works and another in which he threatens to sue graduate students who do not heed his warning.” The full text of the note is reproduced here. Deven Desai, in Ozymandias Lessons for Copyright, provides further criticism of Paul Zukofsky’s position.

Read more>>

From TechCrunch:

Loopt In Process Of Receiving Broad Patent Covering Location-Based Ads

Location-based service Loopt has been allowed its first patent, and it could be a big one.

From Skip Oliva:

New Hampshire Group Seeks State Monopoly on the Word “Libertarian”

The Libertarian Party of New Hampshire has petitioned the US Supreme Court to reverse the New Hampshire secretary of state and two lower courts that previously rejected the party’s claim to have exclusive right to use the word “Libertarian” in connection with political candidates appearing on the state’s presidential ballot. The LPNH, joined by 2008 national Libertarian Party nominees Bob Barr and Wayne Allen Root, objected to the inclusion of a rival Libertarian ticket on the last presidential election ballot. The LPNH said that decision violated its constitutional rights under the First and Fourteenth Amendments.

George Phillies and Christopher Bennett unsuccessfully sought the national LP’s presidential and vice-presidential nominations. Nonetheless, they successfully petitioned to appear on New Hampshire’s general election ballot. The LPNH is not a recognized political party under state law, so the Barr-Root ticket had to qualify using the same petition process as the Phillies-Bennett ticket. The secretary of state produced a ballot listing both tickets under their preferred description of “Libertarian.” Both tickets were listed under “Other Candidates” along with the ticket of Ralph Nader and Matt Gonzalez, who were described as “Independent.”

The Democratic and Republican parties, which are recognized under state law, have the right to exclusive use of their names on the general election ballot. The LPNH does not, according to the First Circuit Court of Appeals, which rejected the group’s lawsuit this past July. Notably, the LPNH did not challenge the discriminatory state laws that confer special privileges upon the “recognized” parties; rather, the LPNH said it was entitled to the same privilege to exclude any other independent candidate from using the label “Libertarian” on the state ballot. In its petition to the Supreme Court, the LPNH said New Hampshire had no legitimate state interest in allowing the Phillies-Bennett ticket to use the “Libertarian” label, which had the effect of “confusing” voters and “diluting” the LPNH’s overall vote:

[P]ermitting rival sets of candidates for president and vice president to be listed with the “Libertarian” appellation in the “Other Candidates” column on the New Hampshire ballot operates to encourage factionalism, to foster vote dilution, to diminish order in the electoral process, and to promote frivolous candidacies. (emphasis in original)

The dilution argument is comical. In the 2008 general election, the Barr-Root ticket received 2,217 votes versus 531 votes for the Phillies-Bennet ticket. Even combined, the Libertarian tickets would have still finished in fourth place behind the Nader-Gonzalez ticket and well behind the Obama-Biden and McCain-Palin tickets. Furthermore, the dilution had no effect on the LPNH’s ability to attain “recognized” party status. Under state law, a party must receive at least 3% of the votes cast for governor to obtain official status. There was only one “Libertarian” candidate on the 2008 gubernatorial ballot, who received about 2.1% of the vote.

The larger constitutional issue, according to the LPNH, is that the presence of the other “Libertarian” ticket somehow violates the First Amendment’s prohibition on state interference with free speech and free association:

[P]lacing the Libertarian nominees and their unsuccessful rivals for the nomination on the same footing by identifying them only as “Libertarian” subverts the political and associational message inherent in listing a candidate on the ballot as a representative of his or her party.

The First Circuit previously considered and rejected this argument:

What the [LPNH] appears to be arguing is that it had a free speech right to use the ballot to advertise who its nominees were. But the Supreme Court in Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997), expressly rejected the argument that a party “has a right to use the ballot itself to send a particularized message, to its candidate and to the voters, about the nature of its support for the candidate.”

[…]

Even if we assume arguendo that the Libertarian Party has some interest in preventing voter confusion of its nominated candidates with other candidates who also espouse Libertarian ideals, the question of whether it may enlist state officials to prevent such confusion is one we need not reach on the facts before us. Here, the Libertarian Party has made no claim that Phillies and Bennett were not in fact Libertarians or that the ballot was otherwise inaccurate. And it has provided no evidence that the ballot misled voters in any way. On its face, the ballot did not itself indicate that Phillies and Bennett were the nominees of the Libertarian Party. It identified them, as well as Barr and Root, merely as Libertarian.

It’s hard to find fault with the First Circuit’s logic. While it may be unfair that the LPNH doesn’t have the same ballot access as the Democratic and Republican parties, there is no constitutional “right” to demand what amounts to an intellectual-property monopoly over the use of the word “Libertarian” on a ballot where two tickets qualified using an identical process. Phillies and Bennett had just as much right to use the word as the Barr and Root.

And it’s especially disturbing that any group calling itself “Libertarian” would resort to litigation based on such a distorted reading of the Constitution. There’s nothing principled about using the state to censor competing speakers. The LPNH should be working to eliminate, not extend, state privileges. The last thing any group of libertarians should be known for is demanding a state monopoly over words.

This piece is from the magazine LinuxUser:

Software patents – a protection racket?

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This article is part of the trend of more and more people seeing that something is wrong with IP. But like most conventionalist criticisms, it’s unprincipled and confused. It misses the boat. The author does not challenge the notion that patents ought to be granted for truly “original” inventions:

In theory, patents are granted only after strenuous tests of originality and appropriateness have been met, and should only be conferred on inventions that are entirely original, are not obvious, and have the potential to radically transform the way things are done. In practice, the bar has been lowered to allow a proliferation of trivial and contestable patents, especially, but not only, in the area of software and business method patents.

Nobody seriously believes that any of the companies or individuals accused of infringement has practised industrial sabotage or stolen the ‘property’ of anybody else. The purpose of these actions has been to make a fast buck or to inhibit competition. Ownership of software patents is not about innovation or originality.