In a recent blog post, Leonard Read on Copyright and the Role of Ideas, I mentioned Leonard Read’s perspicacious comments on the topics of copyright and intellectual property, in his 1972 book To Free or Freeze, in the short chapter 18, “On Plagiarism.” That chapter ran today as a Mises Daily article: What Makes Ideas Different?

Of course it’s (legal) extortion; of course it’s a shakedown. Duh. Post by MG Siegler on Techcrunch:

Google On Microsoft’s Android Patent Tactics: It’s Extortion

Earlier today, Microsoft and Samsung disclosed that they reached a cross-licensing agreement over patents. The key point: it’s a bad blow to the notion that Android is free. Instead, it’s more like “free” with huge Android OEM partners like HTC and now Samsung agreeing to pay Microsoft to use Android. Google must be pissed off.

And they are. Here’s their statement:

“This is the same tactic we’ve seen time and again from Microsoft. Failing to succeed in the smartphone market, they are resorting to legal measures to extort profit from others’ achievements and hinder the pace of innovation. We remain focused on building new technology and supporting Android partners.”

Yes, they used the word “extort”. Wow.

Read more>>

It’s not technically extortion because it’s legal, but it’s otherwise the same. Just like taxation is theft except that it’s legal. Someone needs to read their Bastiat.

A promising new blog: The Patent Examiner, by the heroic Joe Mullin, which “focuses on tech-sector patent lawsuits—especially the widespread patent suits filed by companies that specialize in patent enforcement. These companies are sometimes known as “patent trolls,” but are also called non-practicing entities (NPEs), patent-holding companies, and other names.”

Tucker on Mises blog:

A new policy at Princeton prohibits (unless a special waver is granted) professors from assigning exclusive rights to publishers. This might at first appear to be a mandate but it is really a liberation. Professors have been browbeat for generations by publishers who demand all rights to an author’s work, which, under the law, they can keep for a lifetime. The new university rule makes it possible for the faculty to insist on a different policy. It is obviously true that faculty want open access and certainly do not want publishers to maintain exclusives to an author’s work. This policy might also help to crack the cartel and force a change of policy at major publishing outlets, which have been reluctant to change even in the digital age.

Amazon introduced a new tablet today, the Kindle Fire, which uses the “Silk” browser, which is discussed here, and in the video below. One smart thing Silk does to speed up web browsing as seen by the user of the Kindle Fire by “pre-loading” content into Amazon’s “cache” in its own “Amazon computer cloud” (i.e. Amazon’s servers)–and to optimize them for the Kindle Fire (e.g., a 3MB image is scaled down maybe to 50k because that would look the same on the Kindle Fire as a 3MB image, but could be transmitted more quickly). But to do this Amazon’s servers have to store copies of files obtained from other websites, including images (as explicitly stated at 3:07 to 3:26) and other files which, of course, are covered by copyright. At 3:54, it’s explained that if Amazon’s computing cloud sees you looking at the New York Times home page, and it predicts, based on other user statistics, that you are somewhat likely to next click on some NY Times subpage link, then the Amazon servers will go ahead and download that next link, and cache it, in case you do click on it next, so that it can serve it up more quickly.

Now this makes sense technically, but what it really means is Amazon’s servers are making copies of other people’s copyright-protected content: images, files, NYTimes web pages, and serving them up to Kindle Fire users as if the Amazon computer cloud servers are the host of those images. It is a bit like if Amazon ran a site called NYTimes2.com, and had its servers constantly copying content from NYtimes.com and duplicating it on NYTimes2.com, and serving up the content on NYTimes2.com (which was copied from NYTimes.com) to browsers. And who can think that would not summon a lawsuit?

Now, does the idea make technical sense? Yeah. It’s brilliant. Does it infringe copyright? Well, I guess we’ll see! But thank God copyright is there to promote innovation!

Update: In comments on Facebook and elsewhere, several people have asked whether this isn’t just “temporary” or “ephemeral” caching that somehow does not “count” as copyright infringement. I’m of course aware of various provisions of the 1998 Digital Millenium Copyright Act (DMCA) (I taught this in a computer/Internet law class for two years at a local law school in 1998-99 and have written in this general area)¹ There is a provision of the DMCA that purports to limit ISP liability for the purposes of caching (see 17 U.S.C. § 512(b); and Wikipedia articles on on this section and on web caching). For example, in the 2006 case Field v. Google (discussed here), a federal court ruled for Google when it was accused of copyright infringement because it was caching the plaintiff’s website and making a copy of it available on its search engine.

However, it is not immediately clear to me that the “caching” Amazon plans to do is the same as that done by Google or, in any case, that the “caching” is protected under the statute. Google is providing search results; it is not serving up web pages in place of the original host. And Section 512(b) of the DMCA, which concerns the practice of caching, specifies that “A service provider shall not be liable … for infringement of copyright by reason of the intermediate and temporary storage of material … ” It also provides conditions that must be met for this limitation of copyright liability to apply, including “the material … is transmitted to the subsequent users … without modification to its content….” What is “temporary”? The way I understand the amazon cloud working, it could store sites, pages, and files for months, or even longer. Is that temporary? And if a 50k version of an image is sent to the user instead of a 3MB version, is that a modification of the content? It seems to me that there is enough uncertainty here in the statutory language that some content provider or copyright troll wanting to cause trouble could make an argument against Amazon’s caching practices. Professor Tushnet in the comments to the Mises cross-post says that Amazon needs to “follow any rules that the originating website has about refreshing content” [which is in Sec. 512(b)(2)(B)] and observes that there is no reason to think Amazon will cache the files “forever.” It’s not clear to me that satisfying the rules for refreshing implies that “temporary” in the statute means “not forever.” If the files for a relatively static site, that changes rarely, are downloaded by the Amazon server, it could be serving up the files for a whole website or web page for months or more. This is compliant with the originating site’s rules on refreshing, perhaps, but is it “temporary”?

Professor Tushnet also says that that “automatic conversion for convenience into a different format or resolution is fine,” i.e., that there is no concern about modifying files, pointing to the case IO Group, Inc. v. Veoh Networks, Inc. Again, she may be right; but that case dealt with Sec. 512(c), not (b), so it’s not clear to me that Amazon’s scaling and optimizing of the stored files satisfies the “without modification” requirement of Sec. 512(b).

Professor Tushnet also says, “You could say that anything is uncertain until specifically litigated. But I don’t think that’s true, and I don’t think people should behave as if it is true; that just lets copyright expand ever further.” I appreciate this, but the problem with legislation as a general matter is that it is almost always inherently vague² and its provisions self-contradictory or contrary to those in other statutes or natural rights. When we have copyright trolls suing left and right, is it possible someone might sue Amazon for copyright infringement despite Amazon having good arguments that they qualify for the DMCA’s caching safe harbor rules? Sure. Is it possible Amazon would lose? I could be wrong, but it seems to me they could.

Now, I suspect Amazon’s lawyers have gone through this and think they have good arguments that their caching is not copyright infringement. But who knows? My point in this post was not that this is definitely copyright infringement–just that there is legal uncertainty, and it “could” be–that’s why I concluded the original post, “Does it infringe copyright? Well, I guess we’ll see!” If it turns out that it is, this just shows another problem with copyright: that it would prevent this kind of great technology. And even if it doesn’t prevent it, until we know for sure, there is legal uncertainty. And, of course, one problem with legislation is that it increases uncertainty (see my “Legislation and Law in a Free Society”).

[Mises]

1. See my articles “Copyright Infringement and Internet Service Providers,” “Are You Liable and What Can You Do About It” Colloquium for Internet Service Providers, June 11, 1996); “Whither Copyright Law? A Roadmap to Recent Changes in Copyright Law,”The Legal Intelligencer [Philadelphia], Sept. 4, 1997. [↩]
2. See John Hasnas, The Myth of the Rule of Law. [↩]

Update 2: 8 Acts of Pure Spite Happening Behind the Scenes of Marvel Movies — how copyright law is basically inducing Marvel to kill off X-men and mutants.

Update: Apparently Marvel and DC jointly applied for a trademark to the term “Super Heroes.” (From Wikipedia: “While the word “superhero” itself dates to at least 1917, the term “Super Heroes” is a typography-independent ‘descriptive’ USA trademark which is co-owned by DC Comics and Marvel Comics^[2]“)

Update (Re Hooverphonic):

guess why the amazing band Hooverphonic had to change their name from Hoover to Hooverphonic? You guessed it, evil IP law (trademark). And see https://t.co/WVJiBxAnVT Congrats IP socialist libertarians

— Stephan Kinsella (@NSKinsella) October 3, 2025

and Shuma-Gorath:

pic.twitter.com/aC4xGFAkHB

— Adam (@AncapAdam) October 3, 2025

***

I’ve noted before how copyright and trademark distort the market and culture (see The Effects of Patent and Copyright on Hollywood Movies; and Leveraging IP). Here are a few interesting–albeit sad–examples of the baleful effect of copyright on the comic book industry.

As background, be aware that the two big comic competitors for decades have been DC and Marvel. DC is the home of Superman, Batman, the Flash, the Green Lantern, and Wonder Woman. Marvel is the source of Spider-Man, the Hulk, Thor, the Fantastic Four, and so on.

The Superman character was created by Jerry Siegel and Joe Shuster in 1932, and sold to Detective Comics, Inc. (later DC Comics) in 1938. Superman debuted in Action Comics that year. A “similar” character, Captain Marvel, sometimes known as “Shazam!”, was originally published by Fawcett Comics, and created in 1939 by artist C. C. Beck and writer Bill Parker. Both are powerful, both have alter egos. But of course there are many differences. In any case, Captain Marvel is now a DC character. Wanna know why? Because, as the Captain Marvel wikipedia page explains:

Fawcett ceased publishing Captain Marvel-related comics in 1953, due in part to a copyright infringement suit from DC Comics alleging that Captain Marvel was an illegal infringement of Superman. In 1972, DC licensed the Marvel Family characters and returned them to publication, acquiring all rights to the characters by 1991. DC has since integrated Captain Marvel and the Marvel Family into their DC Universe….

Got that? DC killed  Fawcett’s “Captain Marvel” character, using copyright law, on the grounds that he was a copy of Superman. Evidently not too much of a copy, as they gobbled the wounded character up and then incorporated him into the DC universe–since he’s a distinct character, you see, and not a mere copy of Superman.

Interestingly, however, DC can no longer use “Captain Marvel” for comics featuring, er, Captain Marvel. This is because Marvel Comics has its own Captain Marvel which it secured trademark rights to during the copyright squabbling between DC and Fawcett over the DC Captain Marvel.

Marvel Comics trademarked their Captain Marvel comic book during the interim between the original Captain Marvel’s Fawcett years and DC years, DC Comics is unable to promote and market their Captain Marvel/Marvel Family properties under that name. Since 1972, DC has instead used the trademark Shazam! as the title of their comic books and thus the name under which they market and promote the character. Consequently, Captain Marvel himself is frequently erroneously referred to as “Shazam”.

Even though the Marvel character is not that popular, lore has it that Marvel publishes some kind of book featuring their Captain Marvel every year or two, just to keep their trademark alive so that DC can’t get it back.

In another copyright-superhero twist, the young or alternate version of Superman, known as Superboy, has also had name problems. The estate of one of Jerry Siegel, the original creators of Superman, sued DC claiming that it owned “the original ‘Superboy’ character” and that it “is an independent creation that used ideas from Jerry Siegel’s original rejected pitch and was created without his consent.” In 2006, a judge ruled “that Jerry Siegel’s heirs had the right to revoke their copyright assignment to Superboy and had successfully reclaimed the trademark to the name as of November 17, 2004.”

“Since the ruling, the name “Superboy” has rarely been used in print to refer to any version of the character,” and the Superboy character (in his current “Superboy-Prime” variation) started being referred to as Superman-Prime.

Ah, freedom of speech, wherefore art thou!

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

As Mises explained, controls breed controls.¹ But monopolies also breed monopolies.

First the state is granted a monopoly in dispensing justice.² Then, it uses this position to grant monopolies, such as patent and copyright, to favored recipients. These recipients are thus able to charge monopoly prices, and to establish oligopolized industries relatively immune from competition. This allows them to afford the purchase of more state monopolies (such as expensive patents) that smaller upstarts, newcomers, and competitors cannot, further entrenching their monopoly position.³ Barriers to entry are maintained, allowing the entrenched, established firms to reap monopoly profits. A portion of these profits are returned to the state in the form of legal bribes (campaign contributions) which keep the legislators from rocking the boat. And so the cycle continues.

This is not too surprising to libertarians used to seeing state corruption. What is surprising is the spectacle of some libertarians bending over backward to try to justify this, in the name of intellectual “property.”

[Mises]

1. “interventionism cannot work as a permanent system of society’s economic organization. The various measures recommended must necessarily bring about results which—from the point of view of their own advocates and the governments resorting to them—are more unsatisfactory than the previous state of affairs which they were designed to alter. If the government neither acquiesces in this outcome nor derives from it the conclusion that it is advisable to abstain from all such measures, it is forced to supplement its first steps by more and more interference until it has abolished private control of the means of production entirely and thus established socialism. The conduct of economic affairs, i.e., the determination of the purposes for which the factors of production should be employed, can ultimately be directed either by buying and abstention from buying on the part of consumers, or by government decrees. There is no middle way. Control is indivisible.” Mises, Economic Freedom and Interventionism, ch. 10. [↩]
2. Hoppe defines the state as: “What must an agent be able to do to qualify as a state? This agent must be able to insist that all conflicts among the inhabitants of a given territory be brought to him for ultimate decision-making or be subject to his final review. In particular, this agent must be able to insist that all conflicts involving himself be adjudicated by him or his agent. And implied in the power to exclude all others from acting as ultimate judge, as the second defining characteristic of a state, is the agent’s power to tax: to unilaterally determine the price that justice seekers must pay for his services. Based on this definition of a state, it is easy to understand why a desire to control a state might exist. For whoever is a monopolist of final arbitration within a given territory can make laws. And he who can legislate can also tax. Surely, this is an enviable position.” See The Nature of the State and Why Libertarians Hate It. [↩]
3. See, e.g., my posts Microsoft Copyrights –> Patent Dominance; The Schizo Feds: Patent Monopolies and the FTC. [↩]

Disturbing news from Mike Masnick at Techdirt:

US, EU, Canada, Japan, Australia & Others To Sign ACTA This Weekend, Despite Legal Concerns

from the failure dept

Despite serious Constitutional concerns in the US, and significant legal questions in the EU, it appears that the US and the EU, along with most of the other participants in the ACTA negotiations are planning to sign ACTA this weekend in Japan. In the US, this may very well lead to a Constitutional challenge. President Obama, via the USTR, is ignoring the Senate’s oversight concerning treaties, by pretending ACTA is not a treaty, but rather an “executive agreement.” Pretty much everyone else agrees that ACTA is a binding treaty — in fact, EU negotiators have been quite vocal on that point.

But even if this is considered “an executive agreement,” the President does not have the authority to sign an executive agreement concerning intellectual property issues. Executive agreements can only be signed if they cover issues solely under the President’s mandate. But intellectual property issues are clearly under Congress’s mandate, and nowhere in the Constitution is the President given a mandate over IP issues. This is a clear end-run around Congress, and seems likely to be unconstitutional.

What I really don’t get is why they’re making such an end-run. As we’ve seen with things like PROTECT IP, most of the Senate seems to have no problem propping up the entertainment industry’s legacy players with bogus laws and “greater enforcement.” It seems likely that ACTA would probably sail through the Senate with little problem. But the administration seems to not even want to have the slightest debate on the topic — which is greatly troubling, considering that the USTR negotiated the agreement in near total secrecy, refusing to allow public comment or debate (outside of leaks which it tried to block) until after the document was done.

The others that are listed as planning to sign the document are Japan, Australia, Canada, South Korea, Mexico, Morocco, New Zealand, Singapore and Switzerland. Basically all the countries who took part in the negotiations. The fact that Mexico is on that list is interesting, given that the Mexican Congress has already told the Mexican President that it will not ratify ACTA, and made it clear that Mexico needs Congress to ratify ACTA to have it go into effect. In other words, it sounds like Mexico is facing a similar executive run-around as in the US.

It’s pretty amazing. This isn’t even just about Presidents doing an end-run around the public, but around their own legislatures. And for what? A bailout of some legacy entertainment industry players who are unwilling to adapt.

Interesting NYTimes profiles of Brazilian novelist Paulo Coelho, “Best-Selling Author Gives Away His Work”:

A publishing industry that is being transformed by all things digital could learn some things from Paulo Coelho, the 64-year-old Brazilian novelist. Years ago he upended conventional wisdom in the book business by pirating his own work, making it available online in countries where it was not easily found, using the argument that ideas should be disseminated free. More recently he has proved that authors can successfully build their audiences by reaching out to readers directly through social media. He ignites conversations about his work by discussing it with his fans while he is writing.

Read more>>

Apparently, his publisher, HarperCollins, supported him in this tactic.

Wendy McElroy has a good, concise takedown of Obama’s recent patent reform law, The America Invents act, in today’s Freeman Online:

Patently Improper

by Wendy McElroy

Whether you agree with the original purpose of patents in America or believe (as I do) that all patents are improper, the America Invents Act is repellant.

Read more>>

I discussed the America Invents Act in detail in a recent Mises Academy Webinar, discussed here; audio is here and streaming below; the powerpoint slides are below.

[podcast]http://www.stephankinsella.com/wp-content/uploads/media/kinsella-mises-academy-w3-obamas_patent_reform.mp3[/podcast]

[Mises]

Mises blog; archived comments below.

Are discussed in Inside Counsel at Net neutrality rules finally published:

The FCC adopted three basic protections intended to prohibit providers from discriminating against legal Internet traffic and enforce transparency:

“First, transparency: fixed and mobile broadband providers must disclose the network management practices, performance characteristics, and commercial terms of their broadband services,” the commission wrote. “Second, no blocking: fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful websites, or block applications that compete with their voice or video telephony services. Third, no unreasonable discrimination: fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic.”

My take on the state’s imposition of “net neutrality” rules: Against Net Neutrality; Net Neutrality Developments; Libertarian Take on Net Neutrality; see also Harvard’s Yochai Benkler on Net Neutrality and Innovation; other posts on net neutrality. Bottom line: the idea that the state needs to protect us from the actions of private companies is just a smokescreen to hide the fact that the state itself gives these companies extra-market power in the first place by various state policies and laws such as FCC regulation of communications, IP law, and other policies; and that the state is the biggest threat to Internet freedom; of late it’s using the two-P’s–child porn and IP piracy–as an excuse to regulate the Internet.¹ How about the state impose net neutrality rules on itself, get out of the market and stop distorting it and giving companies oligopolistic powers that are prone to abuse (and that give the state an excuse to ride to the rescue and regulate to save us from a problem it created), and leave the free market alone?

[Mises]

archived comments:

 David Bratton September 26, 2011 at 2:51 pm

“using the two-P’s–child porn and IP piracy–as an excuse to regulate the Internet”

You forgot terrorism. So it’s three-P’s: Porn, Piracy, and Palestine.

Reply

 Politics Matters September 30, 2011 at 8:55 pm

On the subject of net neutrality, Bob Gibson, Executive Director of the University of Virginia’s Sorensen Institute for Political Leadership, recently said: “It’s a debate that is going on in the Congress, and it’s really: Is the Internet going to be something that everyone has free and open access to, or, is it going to be something that is sort of controlled? What we don’t need is a lot of government control in the businesses of the internet. I think what we need is more of what we have with National Public Radio, which is a really true and balanced set of reporting that unfortunately has become politicized. What we are seeing is a shift from “anything goes” on the Internet to a shift where major corporations are shaping the news outlets and buying up more and more of the news outlets and putting them under corporate control and one set of a small number of hands…. We need freeware, we need shareware, and we need open access. People need to be able to trust sources that they can find on the internet, rather than have them controlled in a small number of hands or by the government.” (Gibson appeared on the Charlottesville, VA, politics interview program Politics Matters with host and producer Jan Madeleine Paynter discussing journalism http://bit.ly/pm-gibson)

Reply

1. Re porn: British Historian On Porn And Internet Censorship: North Korea Is Right — The Internet Is Our Enemy; re piracy: Copyright and the End of Internet Freedom. [↩]

[NOTE: THIS POST IS NOW OUT OF DATE: SEE INSTEAD KOL164 | Obama’s Patent Reform: Improvement or Continuing Calamity?: Mises Academy (2011)]

Last  Friday, I conducted a Mises Academy Webinar discussing the America Invents Act, signed into law Sept. 16 by President Obama. I discussed the webinar in a Mises Daily article, Obama’s Patent Reform: Improvement or Continuing Calamity? and discussed the AIA in further detail in The American Invents Act and Patent Reform: The Good, the Meh, and the Ugly.

In the webinar, I:

1. summarized the basic problem with patent law from a free-market perspective;
2. presented a series of real patent reforms that could make significant improvement in patent law (short of abolition);
3. explained and critiqued the relevant changes made by the America Invents Act;
4. briefly summarized other imminent IP legislation and treaties on the horizon; and
5. responded to questions from attendees.

The audio of the webinar is available at: Kinsella Webinar: Obama’s Patent Reform (mp3), and streaming below; and the slides used are provided below as well.

[podcast]http://www.stephankinsella.com/wp-content/uploads/media/kinsella-mises-academy-w3-obamas_patent_reform.mp3[/podcast]

Samsung, Apple continue patent dispute: Rival companies filed claims over 3G licenses, tablet features:

Samsung Electronics and Apple Inc. continued their ongoing patent war Monday at hearings in Australia and the Netherlands.

If this is what people think capitalism is supposed to be about, no wonder they hate it.