In his great (1995) article The Libertarian Case Against Intellectual Property Rights. This was published in the great, but obscure, journal formulations (1993-2000), the archives of which are online. See also Long’s Owning Ideas Means Owning People; Thoughtcrime; Bear Becomes Mushroom; Trout Implicated; Comments on Bedirhanoğlu and Schaefer.

From The Fatal Conceit, 1988 (p. 35) :

The difference between these and other kinds of property rights is this: while ownership of material goods guides the user of scarce means to their most important uses, in the case of immaterial goods such as literary productions and technological inventions the ability to produce them is also limited, yet once they have come into existence, they can be indefinitely multiplied and can be made scarce only by law in order to create an inducement to produce such ideas. Yet it is not obvious that such forced scarcity is the most effective way to stimulate the human creative process. I doubt whether there exists a single great work of literature which we would not possess had the author been unable to obtain an exclusive copyright for it; it seems to me that the case for copyright must rest almost entirely on the circumstance that such exceedingly useful works as encyclopaedias, dictionaries, textbooks and other works of reference could not be produced if, once they existed, they could freely be reproduced.

Similarly, recurrent re-examinations of the problem have not demonstrated that the obtainability of patents of invention actually enhances the flow of new technical knowledge rather than leading to wasteful concentration of research on problems whose solution in the near future can be foreseen and where, in consequence of the law, anyone who hits upon a solution a moment before the next gains the right to its exclusive use for a prolonged period.

See Jeff Tucker,  “Hayek on Patents and Copyrights“; also his post “Misesian vs. Marxian vs. IP Views of Innovation“.

In Microsoft’s Odd Couple in Vanity Fair, Microsoft co-founder Paul Allen

The Altair was little more than a bare-bones box with a C.P.U.-on-a-chip inside. It had no hard drive, no floppy disk, no place to edit or store programs.

We moved into Harvard’s Aiken Computation Lab, on Oxford Street, a one-story concrete building with an under-utilized time-sharing system. The clock was ticking on us from the start. Bill had told Ed Roberts, MITS’S co-founder and C.E.O., that our BASIC was nearly complete, and Ed said he’d like to see it in a month or so, when in point of fact we didn’t even have an 8080 instruction manual.

In building our homegrown basic, we borrowed bits and pieces of our design from previous versions, a long-standing software tradition. Languages evolve; ideas blend together; in computer technology, we all stand on others’ shoulders.

Of course, this is true of all creativity and innovation. We learn, tweak, remix, compete, emulate. Yet IP law tries to stop this.

Related posts: Steal Like An Artist; Everything is a Remix.

[H/t Vijay Boyapati]

Modern IP almost makes you think we live in Bizarro world. As Mike Masnick reports at Techdirt:

You may recall last fall we wrote about one of Dan Bull’s excellent tracks commenting on copyright issues, called Death Of ACTA.

… he noted with a bit of irony recently that the song on Mediafire was taken down due to a copyright claim. Considering the whole song is about the overreaching efforts of copyright as censorship, this seems pretty ironic.

Dan was kind enough to forward on the takedown message… and it’s a total mess. There’s simply no useful info in it other than that a French company called TF1 wants the file (and a bunch of others) off of Mediafire as quickly as possible. Now, it’s not clear what the issue is here, but it’s not difficult to take a guess. “Death of ACTA” is obviously a play on Jay-Z’s “Death of Autotune” Jay-Z’s song features prominently a sample of the song “In the Space” by French film composers Janko Nilovic and Dave Sarkys. It’s quite likely that Jay-Z licensed the sample. Not surprisingly, Dan Bull did not, but that’s the nature of creating a parody song.

Also, since all of this is happening in Europe, there aren’t fair use laws. Dan would probably have a stronger argument in the US. In Europe, it’s a bit more of a crap shoot. Of course, the whole thing is pretty silly if you think about it. Is there any less demand for “In the Space,” due to Dan’s song? Anyone who suggests that’s the case is not in touch with reality.

In the end, though, how ridiculous is it that a song that’s all about the excessive nature of copyright law ends up being subject to a takedown notice itself? It seems to encapsulate everything that the song is talking about as being ridiculous concerning copyright law.
Read more>>

In my posts Update: Patents Kill: Compulsory Licenses and Genzyme’s Life Saving Drug and Patents Kill: Compulsory Licenses and Genzyme’s Life Saving Drug, I noted that, due to the monopoly granted by patent, people suffering from the genetic illness Fabry disease are unable to obtain the drug Fabrazyme, which is in short supply because the sole, monopolistic manufacturer, Genzyme, can’t make enough quickly enough–and no one else is permitted to make it due to the patent.

In the latest round of this saga, lawyer Allen Black, representing two of the victims pro bono, filed a petition for “march-in” rights with the Secretary of the Department of Health and Human Services, requesting that the DHHS provide a license in order to manufacture Fabrazyme. Sadly, the NIH denied the march-in request in December. But, as Black explained in an email,

the NIH denied the petitioners march-in request stating that they did not believe that allowing other manufacturers to make the patented product would remedy the shortage because administrative laws of its sister agency (the FDA) make it impossible to timely manufacture the drug.

Or, as Black’s press release notes, “the NIH stated that the FDA regulations prevented a manufacturer from entering the market in time to remedy the current shortage.”

So: government issued patent monopolies cause a shortage. The government that grants these odious monopolies has statutory authority to issue compulsory licenses–i.e., to partially weaken the monopoly privilege they previously granted. But they choose not to here, because the FDA’s regulations would prevent any competitors from using the license in time to meet the shortage. This resembles the law school hypos about cause-in-fact (sometimes called “but-for” causation): if A and B both shoot C at the same time, A can say he is not a cause-in-fact of C’s death since even if he had not pulled the trigger, B’s bullet would have killed C. Of course, B can make the same argument. If such legal legerdemain is permitted, both A and C could avoid responsibility by pointing the blame at each other. The proper approach is to consider A and B to both be C’s murderer. And so it is here: the combined effect of the FDA and patent office is killing people–in other words, the American central state.

[Mises]

From Reuters:

WASHINGTON (Reuters) – A bipartisan group of lawmakers from both chambers of Congress on Monday vowed to pass legislation giving the U.S. Justice Department new authority to go after foreign and domestic websites that sell pirated music and movies and counterfeit goods.

“Online infringement and the sale of counterfeit goods cost American creators, producers, and businesses billions of dollars and results in the loss of hundreds of thousands of jobs,” Senate Judiciary Committee Chairman Patrick Leahy, a Democrat, told reporters.

Intellectual property theft is “one of the greatest threats to our economy today” because of the big role that copyrights, patents and trademarks play in boosting U.S. exports and productivity, said House of Representatives Judiciary Committee Chairman Lamar Smith, a Republican.

“If we’re going to have a healthy economy, we need to have a healthy IP sector,” Smith said.

Leahy said he would push forward with a new version of a “rogue websites” bill that cleared his committee last year by a vote of 19-O but did not get a vote in the full Senate.

Read more>>

Great post by Joe Mullin from a couple years back:

Patent defendants aren’t copycats. So who’s the real inventor here?

First, the basics. One big difference between patents and other kinds of intellectual property, like copyrights and trademarks, is that patent-holders who want to sue someone for infringement don’t have to show that their patents or their products were actually copied by the defendant. In fact, the issue of copying is legally irrelevant when determining whether or not someone infringed a patent. (It is relevant to willfulness—more on that below.) The flip side of that rule is that a defendant company can have a really nice story about they did their own research, invention, and development—but it doesn’t matter one bit, legally speaking. Such “independent invention” stories are no defense.

“No one seems to know whether patent infringement defendants are in fact unscrupulous copyists or independent developers,” writes Lemley. So he and his partner went on a hunt looking for copycats in patent disputes. How much copying did they find? Not much at all.

The researchers studied 193 patent cases and found only 21 of them—that’s 10.9 percent—that contained even an allegation of any copying, whether that’s copying from a patent or from a patent-holder’s commercial product.

And here’s the kicker: more than half of the copying allegations they did find were from pharmaceutical and chemical cases. Remember that a big chunk of patent litigation involves branded drug companies fighting generic drug makers to determine when generic drugs can be marketed—and generic drug companies, of course, are legally required to make exact copies of a branded drug. So there’s good reason to consider pharma/chemical cases separately.

Once you set aside life sciences, copying in patent law goes from rare to almost nonexistent. Of the 193 cases analyzed, 76 were disputes over non-software computer related patents: only two of those cases included allegations of copying. Software patents were litigated in 67 lawsuits: again, only two plaintiffs alleged copying. To put it another way, in computers and software, less than 3% of the patent lawsuits studied involved allegations of copying, and less than 1% involved proof of copying. (see charts by industry on pages 27-28 of the paper.)

Maybe the allegations didn’t show up in the documents they checked? Possible, but not too likely.  Plaintiffs have good reasons to put any copying allegations or evidence they have on the record. Such evidence makes defendants look bad and can get plaintiffs enhanced damages for willfulness, even though it is not relevant to whether or not infringement took place.

But Americans tend to believe that patent lawsuits are about copying—and they believe there’s a whole lot of copying going on. These beliefs persist, even though most defendants aren’t copying—and aren’t even accused of copying—and often have never heard of the patent-holder or his alleged inventions.

Those who favor strong patent rights often wave the banner of the “independent inventor.” I’ve heard many patent holders—and many patent lawyers—praise strong patents as needed to protect inventors’ rights. But when we look at the litigation landscape—the public record of how patents are actually used—we find strong evidence that nearly all accused infringers developed their technology on their own.

So, who are the nation’s “independent inventors?” Are they patent-holders busy denouncing patent reform? Or are they the people and companies who must defend themselves against lawsuits brought by those patent-holders?

If independent invention was a defense against a patent infringement allegation, the data suggests we would see a sharp drop in patent litigation. Would it be a 90 percent drop-off? That’s not an unreasonable guess, but it’s tough to know for sure. As Lemley pointed out to me, such a change could encourage some to file on more dubious claims, or could lead to more licensing as opposed to litigation.

Now, about willfulness: While copying is irrelevant to proving infringement, it is relevant to proving willfulness, and a finding of willfulness can result in triple damages for a patent-holder. So patent plaintiffs have a very strong incentive to put any copying evidence they find on the record. (That incentive lends more weight to the study’s findings; if anything, they may have overstated the frequency of copying in patent disputes.)

But willfull infringement is not the same as copying. A patent-holder merely has to give notice of a patent to allege willfullness; so a willfulness accusation isn’t so much a patent-holder saying “You copied me!” as it is: “You knew that I had a valid patent and you were infringing it.” We can also imagine a scenario where copying is alleged but willfulness is not—for example, a defendant who deliberately copied someone else’s product, but didn’t know that it was patented. Willfulness allegations, unlike copying allegations, are very common, and willfulness was alleged in 81 percent of the cases in this study.

Some of Lemley and Cotropia’s conclusions:

• The use of terms like “theft” and even “piracy” is wholly unjustified in the patent debate. Calling patent defendants “copyists” or thieves “is simply inaccurate,” write the researchers.
• Courts are awarding greater and greater sums as a “reasonable royalty,” in part to deter future patent infringement. But that makes little sense. We can’t have deterrence when “the overwhelming majority of defendants are independent developers who were unaware of the existence of the patent when they made their product design decisions.”
• Not all patent licenses are just payouts to avoid or end litigation: some patent licensing does involve the actual giving of technology. But modern patent litigation, by and large, isn’t about “policing failed efforts at technology transfer.” It’s about patent owners trying “to enforce their right of exclusivity or to collect revenue from independent creators.”

More interesting findings:

• The public notice function that patents are supposed to serve? Doesn’t really exist. Lemley writes: “A variety of evidence already suggests that scientists in most industries rarely read patents, and that even if they did those patents aren’t a particularly good means of conveying technical information.” (Lemley’s 2007 paper “Ignoring Patents” has more on that.)
• Nearly 70% of plaintiffs don’t even claim the defendant knew about the patent before the lawsuit. (The day you gave a defendant notice of your patent is the day willfullness damages start accruing—so again, it’s possible, but unlikely, that these facts are missing from court records.)
• Did plaintiffs find copying after discovery? Very few did. Lemley & Cotropia analyzed 98 amended complaints from their dataset; only two of the amended complaints added a copying allegation; only three of were amended to add a willfullness allegation.
• Very few cases included non-patent allegations that might indicate copying. Of the 193 cases, only ten (5.2%) had complaints that mentioned a prior business relationship between the parties; only five (2.6%) included an allegation of misappropriating trade secrets; and only two cases (1%) involved an allegation of infringement by departing employees.
• Lemley & Cotropia found similar results with other methods. For example, they also analyzed judge’s opinions in 1,871 patent cases. Within that, they looked specifically at 226 of those opinions in which a judge ruled on willfullness (where plaintiffs have a strong incentive to bring up any copying evidence.)  Copying was only mentioned or implied in 40 of those cases (17.7%).

To be sure, this study won’t be the final word on copying in patent law, and I’m certainly interested in doing more reporting in this area. And I’ve started making questions about copying—or the lack thereof—part of my standard questions when reporting on patent disputes.

Note to readers: Thanks for your patience during my radio silence the past few weeks! Lots of changes are underway for IPLB’s web site and that has kept me very busy, but I now blog onwards.

Photo via wikimedia: “Bell speaking into telephone,” 1876.

From Mises blog, Nov. 2009:

[Update: see also KOL207 | Patent, Copyright, and Trademark Are Not About Plagiarism, Theft, Fraud, or Contract]

Common Misconceptions about Plagiarism and Patents: A Call for an Independent Inventor Defense

Defenders of patents commonly say they are against innovators’ ideas being “stolen” or “plagiarized.” This implies that patents simply permit an innovator to sue those who copy his idea. This position betrays either disingenuity or ignorance about patent law. Let me explain.

Under copyright law, someone who independently creates an original work similar to another author’s original work is not liable for copyright infringement, since the independent creation is not a reproduction of the other author’s work. Thus, for example, a copyright defendant can try to show he never had access to the other’s work, as a defense. The reason for this is that the fundamental copyright is, well, a right to copy one’s original creative work. By the nature of creative works that are subject to copyright, it is very unlikely someone would independently create the same novel, say, or painting, as another author. (And if copyright only protected literal copying, it would be much less a problem; but unfortunately it protects a bundle of rights including also the right to make “derivative works“.) But, in the rare case where author 2 independently creates a work very similar to that of author 1, it is not an infringement of author 1?s copyright, since author 2 did not copy anything.

Patent law is different. Very different. Most defenders of IP do not seem to be aware of this difference–one reason they should not be opining in favor of legal regimes they know little about. When patent defenders say that patent abolitionists are in favor of plagiarism and idea theft, they imply that patent law is like copyright law–that it simply prevents people from copying others’ ideas.
Not so. To prove copyright infringement you have to show an actual copying of the work. But to prove patent infringement, the patentee need only prove that the accused infringer makes, uses, sells, or offers to sell, or imports the patented invention–that is, a device or method that is described in at least one of the “claims” of the patent. It doesn’t matter if the infringer invented it independently. It doesn’t even matter if the infringer invented it before the patentee. Got that? Someone who previously invented the same thing and is using the idea in secret can actually be liable for infringing the patent granted to the second inventor. If a later person independently invents the same idea that was previously patented by another, this is also no defense. Prior use or independent invention are not a defense.

Obviously, it should be. The Intellectual Property and Communications Omnibus Reform Act of 1999 did add a limited first inventor (prior user) defense for prior commercial users of “business methods“–see 35 U.S.C. § 273–but not a general one. Justice obviously requires that, at the very least, a general independent inventor defense be added to the patent system. To blunt its sharp, unjust edges. In particular, a defense should be provided for those who are prior users of, or who independently invent, an invention patented by someone else. This would greatly reduce the cost of the patent system since one difficulty faced by companies is that they do not know what patents they might infringe. If someone learns of an invention from another’s patent, at least they are aware of the risk and can possibly approach the patentee for a license. But quite often a company independently comes up with various designs and processes while developing a product, which designs and processes had been previously patented by someone else. If the goal of patent law is to reward invention, it should be sufficient to permit patentees to sue people who actually learned of the idea from the patent–just as copyright infringement exists when someone reproduced another’s work but not when it is independently created. A broad prior user right defense should be established, as well as an independent inventor defense that even a later inventor could use. (Pending patent reform legislation originally proposed to broaden the existing prior user defense by eliminating the business method patent limitation so that users of all types of inventions would have been able to use the defense, but this was removed from later versions of the bill. The Council on Foreign Relations study, “Reforming the U.S. Patent System: Getting the Incentives Right,” recommends a prior-user right be adopted; James Bessen & Michael J. Meurer, Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk (Princeton University Press, 2008), recommend an independent inventor defense–see the Introduction.)

Even pro-IP libertarians usually reluctantly agree that independent invention should be a defense, once you dispel their ignorance about the system they for some reason support (well, the reason is not that hard to see–it’s lingering state-indoctrination, or some form of statism such as minarchism, or some unprincipled, incoherent grounds like utilitarianism). This is one of the aspects of arguing IP policy that infuriates me. Whenever you point one of these things out to a libertarian defender of IP, he will usually say, “well, I don’t support that.” So you say, “well, what do you support?” The answer is basically, “Hey, I’m not a patent lawyer; that’s just a detail.” I.e., they are in favor of some ideal patent system; not the current, statist one (though they oppose abolishing it or weaking it!), but a “libertarian” one (as if one could imagine a patent system concocted by decentralized courts without legislative power! [on this see my Legislation and the Discovery of Law in a Free Society]). In other words, they don’t know what in the heck they are even talking about. They can’t describe the system they favor, and are not willing to abandon a statist system they admit is unjust.

And they seem blithely unaware that removing the obvious, “problematic” features of patent law would largely gut it, resulting in an emaciated, weak patent system–a change that would be attacked by mainstream IP advocates as “harming innovation,” in the same way that these libertarian patenteers criticize us patent abolitionists. Libertarian IP advocates are schizophrenic. They shy away from the obvious injustices of patent law, and would favor reforms that most normal IP proponents would recoil in horror from; while they try to maintain the facade that they support IP because they support innovation and inventors’ “rights”, even though they cannot tell you what their ideal libertarian patent system even looks like.

Don’t believe me that providing an (obviously just) “independent inventor” defense would gut the patent system? I’ve been practicing patent law since 1993. I have lost count of the number of times I’ve been called upon by a client to analyze a patent that has come to the client’s attention, that concerns it. What typically happens is this. Company A is producing or developing a product. They hear a rumour from a customer “Hey, I think that Company B has a patent on something similar to this.” Or, they get a letter from Company B saying, “Hi, we attach a copy of our latest patent for your interest! If you want to discuss licensing, give us a call! <smiley face! we’re all friends! it’s all good! Don’t file a declaratory judgment action against us, please! We wouldn’t want to give you cause to sue us first, robbing us of the chance to choose the venue! <double-smiley-face> Love, Company B”. So Company A calls me, says, “can you take a look at this patent? Are we in trouble? Are we infringing? Is the patent valid? If so, can we change our design to get around it? We’ll be happy to pay your $30k fee for an analysis and opinion.” Such a productive use of precious capital!

Now, what I want to emphasize here is that: in all the umpteen times I’ve done this over the last 15 or so years, I have never, ever, even once, seen a case where the client’s engineers copied the patented invention. In every case that I can recall, the company designed its product on its own–using available technology, to meet the market demands–and then only later were made aware of some patent buried among millions in the bowels of the patent office. Then they panic, worrying that they might be shut down by an injunction by a competitor, or sued into the ground (for examples see my Radical Patent Reform Is Not on the Way).

No doubt in some cases there is copying. An entrepreneur espies a popular product, and makes a similar one; lo and behold, it turns out there were some patents, and so he is sued. Still unjust–what is wrong with emulation, competition, and learning?!–but still, sure, in some cases, there is copying. But there can be no doubt that millions and millions of dollars are lost on attorneys’ fees alone, not to mention the cost of changing designs to avoid infringement, or foregoing development in a field crowded with patents or rife with uncertainty, in cases where the victim was not copying or even learning anything from the company that just happens to hold a red-ribbon adorned manilla certificate issued by a technocratic bureaucracy of the criminal central state. Add an independent inventor defense, and a lot of the work done by lawyers like me would dry up–meaning a more efficient economy, lower priced goods, more competition and innovation, more innovative freedom, more breathing room.

This is a type of reform that most libertarian patent advocates, in my experience, begrudgingly agree to. And it would gut the patent system. The caterwauling of the patent bar, deprived of half their federal law-sponsored teats, would reach a deafening crescendo. Large companies that rely on the inchoate threat of patent lawsuits to squelch competition and keep small innovators down, would increase their bribes to DC, fearful of barriers to entry falling.

So why not come all the way with us, my fellow libertarians? You see the injustices of the patent system, and usually agree with our concrete criticisms of them. You are not sure of what a good patent system would even look like. The current one is undeniably a mess. And it’s just an arbitrary fake-law scheme enacted by an obviously incompetent, evil, illegitimate, and criminal state. Why in the world would a libertarian support this? Besides, by advocating such reforms you are going to be lumped in with us “enemies of innovation” by the vested IP interests. So if you are doing the time, you might as well do the crime.

Update: See Mike Masnick’s excellent posts, Calling For An Independent Invention Defense In Patents and If Patents Are Supposed To Support The Independent Inventor, Why Isn’t There An Independent Invention Defense?, the latter of which mentions a great post by Joe Mullin, Patent defendants aren’t copycats. So who’s the real inventor here?

I’ve discussed before the practice of defensive patenting and defensive patent publishing–companies acquire patents or publish their trade secrets to prevent others from suing them for patent infringement (or to prevent them from patenting the same idea). This results in huge waste, as companies acquire patents simply to ward off lawsuits; it erects barriers to entry to smaller firms who do not have a big enough patent arsenal to be protected or to enter into cross-licensing arrangements with existing patent holders; and it forces smaller companies to make public information they would prefer to keep secret.¹

Google explicitly admits it’s doing this in Patents and innovation, which describes its “bid for Nortel’s patent portfolio in the company’s bankruptcy auction.” If they win, they will likely spend hundreds of millions of dollars simply to “create a disincentive for others to sue Google” so that Google will be allowed to “continue to innovate.” What a sad waste of resources. And what about all the smaller companies and innovators and entrepreneurs who cannot afford to acquire a defensive patent arsenal? They are naked before the power of IP holders. I continue to be astonished when I find libertarians who support IP and think that it is compatible with property rights and the free market.

Google also notes that it has “long argued in favor of real patent reform,” and in that linked post they say they are “optimistic” about the chance for patent reform in 2009. Well it looks like patent reform may actually happen in 2011–but there is no reason whatsoever to be optimistic about it, as I note in Patent Reform is Here! O Joy! and Prior User Rights and Patent Reform.

[Mises]

1. See Jefferson on Anonymous Defensive Patent Publishing; Defensive Patent Publishing. [↩]

From Mises blog in 2007:

Let’s Bring Back the Good Old Days of English Patents

August 31, 2007 by Stephan Kinsella

It’s somewhat striking that modern libertarian advocates of patent rights seem blithely unaware of the utterly monopolistic, completely unlibertarian origin of “patent grants” by English monarchs. At the very least, they ought to be a bit uncomfortable that patents arose in this manner.

[Note: Update: Patent-Seeking as a Defensive Move — Then, and Now]

Interestingly, as reported by the Patently-O Patent Law Blog (The Roots of Patent Policy: Rethinking Early English Patent Policy),

Dr. Chris Dent, an Australian Researcher, has written an interesting new paper on the history and value of original English patents. Although invention was not the basis of the patent grant, Dent argues that they may still have been based on sound public policy goals.

Dent concedes (from Patently-O’s synopsis) that “The manner in which the early modern English monarchs–Elizabeth I and James I–granted patents of monopoly is not seen in a good light in current legal discourse. There are many tales of the nepotism that was, allegedly, rife and the public outrage at the abuses of the Crown–circumstances that only ended with the “triumph” of the Statute of Monopolies in 1624.” Right. No surprise.

However, argues Dent, “This simplistic understanding does not do justice to the good intentions of Elizabeth and James; and, to an extent, may be inaccurate.” Amazing! The opposition to nepotistic and utterly unjustified state monopoly grants is “simplistic,” and does not “do justice” to the monarchs’ “good intentions”. Ha! Dent actually argues that

three key policy objectives informed the monopolies awarded by the two monarchs. … These goals–increased employment levels, an improved balance of trade with other countries and the better regulation of industries–not only appear to be modern, but also may be understood to have been fundamental to the modernisation of English society and its economy. Examples of these goals in practice include the granting of monopolies for water pumping inventions to more effectively mine for minerals (increasing both goods production and employment); grants for the establishment of local industries, based on imported technical knowledge, to reduce the reliance on foreign goods; and the regulation of manufacturers to improve the quality of goods available for sale. Economic historians note that the English economy underwent significant change in the 16th and 17th centuries; this change may have been, in part, a result of the policy actions of the Executive of the time. Actions that included the grant to individuals and companies of the now-maligned grants of monopolies.

So here we have it: not only is the monopolistic origin of our modern invention-based patent system not embarrassing, it was a good thing, similar to our modern legislative “tweaks” of “unbridled” capitalism. Seen in this light, modern patents and ancient ones have a lot in common.

From the Mises blow; archived comments below.

Tyler Cowen has an interesting post up, What determined the playing length of an audio CD? Turns out Sony wanted a smaller diameter CD at first, but soon settled on a 120mm diameter so that the 74 minute version of Beethoven’s Ninth Symphony (the favorite piece of a Sony VP’s wife) could fit on a single CD. Interesting story, but the 74 minute length, and corresponding physical diameter of the CD, is not really arbitrary.

This reminded me of the quirky origins of the patent term. The patent term is currently approximately 17 years–20 years from the date of filing, once the patent issues (which typically takes about 3 years from filing to issue). The English Statute of Monopolies of 1623 (enacted 1624), one of the main historical basis for modern patent law, provided for a fourteen year patent term (the Statute of Anne of 1709 (enacted 1710), the first modern copyright statute, also provided a copyright of fourteen years; modern copyright lasts 70 years past the death of the author). Why fourteen years? As explained by Fritz Machlup in An Economic Review of the Patent System (p. 9):

The duration of patents has been determined by historical precedent and political compromise. The 14-year term of the English patents after 1624 was based on the idea that 2 sets of apprentices should, in 7 years each, be trained in the new techniques, though a prolongation by another 7 years was to be allowed in exceptional cases.¹

In other words, the patent term’s origin is utterly arbitrary and bizarre, and has no bearing on anything to do with modern life. The current patent term of about 17 years, and the current copyright term of roughly 100 years, are also completely arbitrary. There is no evidence whatsoever that these are optimal terms; that there even are any optimal terms. It seems obvious that IP terms should either be zero, or perpetual: the former, if IP is not really property; the latter, if IP is really a libertarian property right. People familiar with my views know which side I would take.

[Mises post]

archived comments:

Wildberry April 4, 2011 at 12:29 pm

Stephan,

You use the word “arbitrary” as an invective.

The terms of both patents and copyrights are arbitrary, and that is why they have been subject to legislative reform. Since property is a human device, it is subject to human judgment, which is fallable.

The relationship to the apprentice term is no more arbitrary than the width of rail lines, which can be historically traced to the width of two horses’ asses pulling in tandem. Last time I looked this is no longer relevant to modern times, yet had design implications for the space shuttle.

In the SCOTA case on the Bono Act, the proposed copyright term extension was justified on the basis of the rule against perpetuities, and the 99 year lease, as each of the tree examples amount to about 100 years. Based on this similarity, the court found that 99 years had a rational basis.

I disagree with the current copyright term, and as was pointed out in an amicus brief in that case, life +70years is roughly equivalent to perpetual, which was never intended by the framers. Historical records apparently indicate that with the original term of 14 years with one renewal of the same length, very few were actually extended.

I presume this is because in the case of a living author, after 14 years the work has little economic legs left, or it never took off in the first place. I believe the last extension of the CTEA benefited almost exclusively those owners of those copyrights that were about to expire, such as Disney, etc. As I have said before, mercantilism, like rape, is always bad. I think we agree on this.

In my view, since the granting of IP rights are arbitrary anyway, and based on economic policy, it might be worthwhile to explore the following from an economics perspective:

1) Base the term on the characteristics of the economic pattern of the work, i.e. a book that is published today earns 95% of the lifetime revenue in the first 10-15 years, so perhaps the original term length makes some sense. In patent, the nature of the invention and how it operates in the economy should be a factor in setting the term.

2) The time after death should be eliminated or shortened. Since the author is dead, it is no longer possible to incentivize him to write more books. It is a matter for his estate, and so decisions about licensing, etc. should not be included in the economic interest that survives him. Perhaps a constructive trust combined with mandatory licensing, to avoid problems like the Salinger case. Although it may make sense to prohibit mandatory licensing while the author is alive, since he may have his own plans, once dead, licensing should be mandatory but negotiated by the heirs and perhaps mediated or arbitrated by the court.

With regard to prior invention, I think you make too big a deal over this. In copyrights, I suspect it rarely legitimately comes up, and only in the case perhaps of derivative works. I think the most common is in music composition, but this is a rare case and could be handled legally.

The one aspect I agree with you about is the case where an inventor is ignorant of prior art and independently develops and unknowingly infringes on a patent. Although perhaps the burden should be on the prior inventor to prove lack of access (which might prove difficult today), I still suspect the number of actual cases is small. Do you have number?

Something simple, akin to the requirement of registration and notice in copyright publishing, would be sufficient. Posting art in a public site would give notice to patent holders of contemporary invention without having to apply for patent protection. Patent holders or applicants could search for postings. New patents would be disallowed on the basis of prior art without the need for defensive patents. Perhaps a time limitation could be imposed on a patent holder to provide infringement notice or they are estopped.

In any case, like in the areas of banking, once you start looking at how the system is being misused and abused, the process of returning to first principles can proceed. Your general insistence on abolition generally curtails discussions along these lines, but I appreciate your posting on this subject here.

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Stephan Kinsella April 4, 2011 at 4:24 pm

WE need railroads to have *some* width. Whether it’s 4.5 or 5.2 feet does not matter, probably–but some number is needed, and it is definitely between 0 and infinity. So we pick one that works, and stick with it. This way we avoid the Buridian’s ass problem.

Likewise if Blackacre and Greenacre are adjoining tracts we know there is some part that is Blackacre and some that is Greenacre, but right at the border it might get fuzzy. So the owners might build a few feet away from the border to avoid any possible uncertainty. The better and more advances is the legal system, records, survey equipment, the more precisely and accurately can the border be drawn, thus enhancing legal certainty and allowing ever more of the resource to be used productively.

The problem in the case of patent (say) is that we do not know that 0 and infinity are unacceptable and that we need some number in the middle. We do not know that there is a bell curve between zero and infinity. Some IP types think the term should be perpetual. For them, the longer, the better, just like a perpetual term for ownership of your house is better than a 50 year term and far better than a 1 year term.

For most wealth-maximizer types, they say that patents enhance innovation, but they seem to realize there is a cost. But they must believe that the wealth that a 17 year patent term generates are far greater than the costs. They must believe that at some longer term, like 50 years, the costs would exceed the benefits. Yet they have no evidence at all for either contention. They do not konw where the peak of this bell curve is (whehter at 2 or 5 or 17 or 50 years); or, more importantly, whether there even IS a bell curve: it could be that the cost of a patent system ALAWYS outweigh the supposed benefits, so that zero is in fact optimal.

My view is that we should be principled, not utilitarians. But even if you go the wealth-maximizing route, you ought to start with a presumption of liberty: since it is obvious IP law imposes some costs on society, the economy, innovation, and indivudals, one must oppose it unless proponents can satisfy their burden of proof and demonstrate that the benefits (at some term and scope) DO actually clearly outweigh the costs. They have not been able to do this in 200 years. Maybe someone will finally succeed in doing this in 2017. Until then–we should urge a zero year term to reduce the apparent and actual costs of this abominable system.

In the SCOTA case on the Bono Act, the proposed copyright term extension was justified on the basis of the rule against perpetuities, and the 99 year lease, as each of the tree examples amount to about 100 years. Based on this similarity, the court found that 99 years had a rational basis.

This is just nonsense. So what if it “has a rational basis”? Whatever that means. It’s not justified. Who cares what the “court found”?

I disagree with the current copyright term, and as was pointed out in an amicus brief in that case, life +70years is roughly equivalent to perpetual, which was never intended by the framers.

Who cares about the framers’ intent? Maybe they were wrong.

1) Base the term on the characteristics of the economic pattern of the work, i.e. a book that is published today earns 95% of the lifetime revenue in the first 10-15 years, so perhaps the original term length makes some sense. In patent, the nature of the invention and how it operates in the economy should be a factor in setting the term.

omg this is so horrible. I can hardly bear to read this.

With regard to prior invention, I think you make too big a deal over this. In copyrights, I suspect it rarely legitimately comes up, and only in the case perhaps of derivative works.

which is an important case.

The one aspect I agree with you about is the case where an inventor is ignorant of prior art and independently develops and unknowingly infringes on a patent. Although perhaps the burden should be on the prior inventor to prove lack of access (which might prove difficult today), I still suspect the number of actual cases is small. Do you have number?

see http://blog.mises.org/11076/common-misconceptions-about-plagiarism-and-patents-a-call-for-an-independent-inventor-defense/
and
http://thepriorart.typepad.com/the_prior_art/2009/02/copying-in-patent-law.html
“The researchers studied 193 patent cases and found only 21 of them—that’s 10.9 percent—that contained even an allegation of any copying, whether that’s copying from a patent or from a patent-holder’s commercial product. ”

Something simple, akin to the requirement of registration and notice in copyright publishing, would be sufficient. Posting art in a public site would give notice to patent holders of contemporary invention without having to apply for patent protection. Patent holders or applicants could search for postings. New patents would be disallowed on the basis of prior art without the need for defensive patents. Perhaps a time limitation could be imposed on a patent holder to provide infringement notice or they are estopped.

In any case, like in the areas of banking, once you start looking at how the system is being misused and abused, the process of returning to first principles can proceed. Your general insistence on abolition generally curtails discussions along these lines, but I appreciate your posting on this subject here.

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Joseph K April 4, 2011 at 1:07 pm

I can’t agree with you that the optimal length is either zero or infinite. Patents and copyrights create both encourage and discourage innovation, namely they have costs and benefits. The longer the term of the copyright or patent the bigger the costs. For example, the legal costs of patents increase the longer the term; longer copyrights encourage copyright-holders to live off past successes rather than create new content; and so on. And the marginal costs only increase as the term increases. A longer patent or copyright term also increases the benefit but with declining marginal return. For example, if a book makes 95% of its revenue in the first 12 years, then doubling a copyright term from 12 years to 24 years will give very little added revenue and thus very little added encouragement. Thus, the ideal length of time would give the highest differential between benefit and cost. Looked at from this perspective, it becomes pretty apparent that the ideal length of time is pretty short, if at all greater than zero.

Now, I’m in your camp, thinking that the ideal length is probably zero, but that’s just because I think the costs always outweigh the benefits.

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Wildberry April 4, 2011 at 2:00 pm

@ Joseph K April 4, 2011 at 1:07 pm

Why zero? If it was zero, then producers would ALWAYS be producing for an external economy. The question is at what cost to internalize that externality? Property rights have traditionally been developed for that purpose; to internalize costs/benefits while reducing transaction costs between parties. This is the question explored by Coase and others.

If the dual purpose of IP is incentives and disclosure, then much beyond a author/inventor’s lifetime makes no sense, or perhaps only when the “creation” is near the time of death.

Perhaps life or 20 years, whichever is greater?

Also, why do you think costs always outweigh benefits?

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iawai April 4, 2011 at 4:00 pm

Spoken like a true central planner. Who is burdened with “internalizing [positive] external economies”? The producer or “everyone”?

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Wildberry April 4, 2011 at 6:16 pm

@ iawai April 4, 2011 at 4:00 pm

Cooperating humans come up with things like this.

What does this have to do with central planning. Are you implying I’m a communist?

Parties to a transaction have to deal with externalities, which leads to the concept of private property. When the cost of negotiation is high, property rights naturally arise. If they are low, it is generally left to bargaining between paties. See Coase.

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Anti-IP Libertarian April 4, 2011 at 6:35 pm

“Are you implying I’m a communist?”

You have aspects of communist/socialist arguments there.

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iawai April 4, 2011 at 6:44 pm

I entirely support those individuals who seek mutual benefit to cooperate in coming up with rules that bind only themselves. You imply that some sort of general rule will bind all parties.

“When the cost of negotiation is high, property rights naturally arise. If they are low, it is generally left to bargaining between paties. See Coase.”

Um, transaction costs being high or low does not bear on whether solutions to disputes are based on “property rights” or “bargaining”. Coase said if there are NO transactions costs, it doesn’t matter where rights are allocated, the pareto optimum solution will be found. The Coase lesson says that when there are positive transaction costs, of whatever sort, the property rights in a dispute should be granted to the party opposite the one with lower transactions costs, to burden the least-cost avoider.

Coase said a lot of things, but I don’t see how they apply to what you are trying to say.

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Wildberry April 4, 2011 at 7:08 pm

@ iawai April 4, 2011 at 6:44 pm

You imply that some sort of general rule will bind all parties.

Property rights are a general rule, and apply to everyone within the social jurisdiction. They do not depend on privity in contract.

Um, transaction costs being high or low does not bear on whether solutions to disputes are based on “property rights” or “bargaining”.

I disagree. He demonstrates that high transactions costs imply that property rights assignemt are more efficient. Where bargaining is efficient, no property rights are required. His entier thesis is dealing with the “social cost” externalities calculation.

Anti-IP Libertarian April 4, 2011 at 7:36 pm

“Property rights are a general rule, and apply to everyone within the social jurisdiction. ”

Wrong. Property rights apply to everyone. Not only within a “social jurisdiction”.
If people allow others to use their property and call that communal so be it.
But there is no such thing as “social jurisdiction” which decides what is right and what is wrong. Your standing has nothing to do with libertarianism if you put property right on a relative level.

Regarding Coase: His theorem is not about what is right or wrong but about what he deems efficient. Do not mix those both parts.

Anti-IP Libertarian April 4, 2011 at 6:09 pm

Oh, so you also support ideas on limiting real property rights (after all if one accepts utilitarian arguments on one field he has to accept them on others to argue CONSISTENTLY)?

On another thread I read that you believe in state property (you mentioned three property types of which one was state property). I think that says it all.

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Sione April 6, 2011 at 2:35 am

Anti-IP Libertarian

“On another thread I read that you believe in state property (you mentioned three property types of which one was state property). I think that says it all.”

Yes. It does.

Sione

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Peter Surda April 4, 2011 at 6:14 pm

Wildberry,

If it was zero, then producers would ALWAYS be producing for an external economy.

As long as the property rights give everyone at least something (i.e. there is no slavery), producers always have a non-zero external economy and non-zero internal economy.

If you think otherwise, you would need to demonstrate a situation where we have IP and no external economy. Would you care to do so?

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Wildberry April 4, 2011 at 6:25 pm

@Peter Surda April 4, 2011 at 6:14 pm

You are still not actually reading my writing, but at least this is coherent.

If it was ZERO, then producers would ALWAYS be producing for an external economy.

So yes,

“As long as the property rights give everyone at least something (i.e. there is no slavery) [*i.e. IT IS NOT ZERO*], producers always have a non-zero external economy and non-zero internal economy.

So no, I do not think otherwise. Zero is slavery, which will be rejected by producers.

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Anthony April 5, 2011 at 12:08 am

Wildberry,

How can you insist that without IP producers retain no benefit from their inventions/creations? Can you even conceive of a single example in which a person created something and got absolutely nothing for it? That means they got not $1 in sales, no increased fame, no increased expertise or skill, nor even any personal satisfaction out of creating. If any one of the benefits above applies the producer is not limited to an “external economy”, they are benefiting personally from their actions, even if not to the extent you deem appropriate.

There is no need for an elaborate set of ad hoc laws and rules to internalize positive externalities… producers are perfectly capable of finding a way to benefit from their production without IP, as they have done before IP and as they have continued to do today in IP free areas like fashion.

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Wildberry April 5, 2011 at 8:00 am

@Anthony April 5, 2011 at 12:08 am

It is not necessary that the benefit be zero, only, as Mises says, “for the most part”.

You explain to me how the author will derive the benefits for authorship if mere disclosure severs that ownership.

You cannot use fashion as an example any more than you can ideas. Neither are subjects of current laws, for good reasons.

Assume you are an author with an original manuscript, say a technical manual that was very costly to produce. How do you internalize the benefit in the absence of some IP protection? Give me an example.

Peter Surda April 5, 2011 at 8:50 am

Wildberry,

as you undoubtedly know by now, I’ve been a software engineer my whole career. Yet, I cannot recall a situation where my income required that people are prevented from copying the software that I wrote. It is possible that there have been isolated occurrences where people were prevented from copying it, because my career predates my IP opposition and I was not paying attention to it, but even if they existed they would not significantly influence the outcome.

That alone refutes your nonsense.

Stephan Kinsella April 5, 2011 at 11:27 am

Wildberry:

You cannot use fashion as an example any more than you can ideas. Neither are subjects of current laws, for good reasons.

so… you happen to be opposed to the push to add fashion IP protection? Or will you say that there is “good reason” for fashion protection once Congress makes it so, like a good little legal positivist lapdog?

Wildberry April 5, 2011 at 1:06 pm

@ Stephan Kinsella April 5, 2011 at 11:27 am

so… you happen to be opposed to the push to add fashion IP protection? Or will you say that there is “good reason” for fashion protection once Congress makes it so, like a good little legal positivist lapdog?

I understand the issue with fashion is one of separating the design element from the useful object, leading to an encroachment into the pubic domain of useful objects.

That rests on a policy objective that is supported by sound reasoning. Is the concept of “good reasons” now prohibited, even if they come from someone you consider a “lap dog”, whatever that means?

As I have said before, mercantilism is always bad, whether in the service of copyright extensions, or other encroachments in the public domain protection policy.

I think this position is supportable for good reasons. And you?

Peter Surda April 5, 2011 at 8:45 am

Wildberry,

You are still not actually reading my writing, but at least this is coherent.

I am reading and unlike you I am able to participate in a debate and produce a coherent argument.

You said that if patent length was zero, producers would always be producing for an external economy. I said that regardless of patent length, as long as noone is enslaved, i.e everyone has some rights, for example physical property rights, a part of the outcome of their work is external economy and a part is an internal economy. Therefore, your argument is a non-sequitur. Just like in the previous cases, you made up an empty set (zero length patents = nonexistence of internal economy) and are complaining about it.

I also posted you a question, which, when answered, would refute my argument. Again, just like in other cases, you did not answer it.

Zero is slavery, which will be rejected by producers.

So, if you have the option between performing an action and not performing it, and cannot find a way of profiting from it, it means that noone can? Also, if you think that you can only make an action X profitable if other people are prevented by force from performing action Y, does that justify that force?

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Mike Sproul April 4, 2011 at 4:33 pm

I remember reading somewhere (?) that Thomas Jefferson recommended the 17-year term because that was the length of a generation in his time, and he felt that future generations should not be held to contracts made by the previous generation.

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Sione April 6, 2011 at 2:38 pm

Mike

He was discussing government debt. Jefferson said that the borrowings of govt could not morally be passed onto the shoulders of future generations for repayment. Those yet born, or those who were mere children when govt borrowed money had no influence and no power over the decision to borrow. Therefore, he thought, they should not be expected to pay for something they had nothing to do with. The debt should be put aside, unpaid.

Being consistent with application of his principles, it is clear that govt should not be able to borrow at all. The vast majority of people have nothing to do with and no control over such decisions, hence they can hardly be expected to be liable for them. Jefferson knew this and did argue along those lines. Let those who want govt to borrow give the guarantees. Let them be responsible for the repayment. leave everyone else unencumbered.

Sione

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Anti-IP Libertarian April 4, 2011 at 6:04 pm

@Wildberry: Do not be evasive but just answer these questions:

Why limit copyright terms? Why limit patent terms?
After all if those both were property rights, than why should there be a time limit?

Why only an “IP right” to certain areas of information arrangements (eg “creating” a story)? Why shouldn’t someone who invests many hours in designing his garden in a special way have the same rights to this design as someone who invests many hours in designing a story or technical gadget?

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Nuke Gray April 5, 2011 at 12:29 am

My reply is really quite simple, and in conformity with property rights.
I am a minarchist, and I think that local governments should remain the owners of PUBLIC property. I also think that such governments should be comprised of, and represent, volunteer citizens, who can all vote for laws over, and only affecting, PUBLIC property. Individuals who wanted to use such public properties, like the roads and the airways, would need permission or a licence (like cars now need for roads) to use it. On your own property, you set the rules; on public, or citizens’, property, the citizens vote on the rules. you could licence your garden design for public use, but not private. The public authorities would need to pay you if they really liked your design and wanted to copy it on public land. I advocate private monarchies within a public democracy- and IP would apply to the public realm. Since I think someone will end up owning the roads, and thus controlling public space, I advocate a system which incorporates this belief.

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Anti-IP Libertarian April 5, 2011 at 1:20 pm

So you think a local aggressor called government is better than another local aggressor called crime syndicate by the government? From an individual perspective: How do you distinguish them?

How does “public property” evolve? Who is to decide what “public” property is and what not?

Or is minarchism just the same as communism, only on a smaller scale?

Btw you did not really answer any of my questions: What has IP to do with “public” property?

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Nuke Gray April 5, 2011 at 8:21 pm

As I tried to explain, we would be a part of the government! We would not elect politicians to rule over us, but we would all have a share in ruling! And we could do away with leaders if everything was then predicated on seniority- individuals who had been citizens for the longest time could then be called ‘leader’, or mayor, whatever. Those next longest-term would be the council, if such a body was needed. They could direct the various volunteer services, themselves having been volunteers.
What has IP to do with ‘public’ property?- it would be modified to become a licence for advertising over public property. Public services would buy and use IP-licenced products only, and would only allow such goods to be advertised over public airways. Only copyright-protected books would be found in public libraries, etc.
As for private/public borders, I use the common definition- that land is held as property, and that my house is private property, but roads are public, etc.

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Anti-IP Libertarian April 6, 2011 at 2:26 pm

You only have to understand that there is no “we” unless it is based on free will and property rights.

Minarchism is not based on the free will and property rights of the people included. It is a form of statism.

Whether this statism includes many regulated areas or not is irrelevant for the question if it is legitimate. Theft is theft whether you take 1000$ or more.

So please answer this: What if someone does not want to accept the territorial monopoly of your government?

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Nuke Gray April 6, 2011 at 7:33 pm

Really? what would this mean? Is that someone an invader- the militia can deal with that! Is that someone a person who wants to use a piece of public property, like a road, but not abide by the rules of the road? Road patrols can deal with that. Is that someone a person who does not want to be a citizen? Citizenship should be voluntary, so no-one would be compelled to be a citizen. So long as that someone abided by the rules of public property, he/she could travel through public property as a guest. Citizens can vote and participate in local politics, guests can’t.

Anti-IP Libertarian April 7, 2011 at 1:38 pm

No, that someone is a private owner eg of land in that area.

How do you define “public property”?

How does something become “public” property?

How is your idea different from ancap?

Nuke Gray April 7, 2011 at 7:31 pm

I use the dictionary definition of private versus public property. As for acquiring land for public use, governments would be just like any other company- they would have to compete to buy the land without being able to compel a ‘sale’ or an outcome- or a price. Once bought, the local government could then dictate the terms of the use of its’ property, called public property.
If someone did not want to be a citizen, one would not be compelled.
As for patents and copyright, as explained in my previous posts, local governments could control what is advertised across its’ properties, and thus could licence items and expressions of ideas, and only buy licenced goods for itself.

Wildberry April 8, 2011 at 11:19 am

@Nuke Gray April 7, 2011 at 7:31 pm

I catch your drift, here. Let me ask, how do you deal with the issue of “balkanization” in your vision?

It seems that you have all jurisdictions being reduced to the local level, as the largest scale of social organization, and at the individual level, you have the abiltiy to opt out.

How does anyone figure out what the local laws will be, or what to expect form an individual, as one travels from point A to point B?

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Eleutherist April 10, 2011 at 3:23 am

This is Nuke, from my home address (Eleutherist). I notice this amazing device in Australia, which you may have heard of, called a ‘speed sign’. It is a notice-board with a speed limit on it, and when I go from point A to point B, I utilize them. I change my car speed to suit whatever local road speed I see. Feel free to use these devices in America!
As for other rules, one could inquire at town hall, or over the internet. I am surprised more people don’t use the net, but they will, and future citizens could find out the rules from it.

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Wildberry April 10, 2011 at 1:14 pm

OK, that’s good for speed limits, but what about all the other assumptions one generally makes with regard to the prevailing laws? Your response was amusing, but does not really address the issue.

The issue is size, scale and diversity of the jurisdictions, and how they manage to prevent the need to pull out the codes for an area if you are visiting another town.

The alternative is a “common code of laws” which even Rothbard acknowleged would be necessary.

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Nuke Gray April 10, 2011 at 7:34 pm

You mentioned ‘Balkanisation’, but I always think ‘Cantonisation’, as in Switzerland. Switzerland is a country with strong cantons, and democratic traditions, and the country manages to get along fine, despite having a weak center. Sure, they don’t speak English, but they seem to do very well. I think you would find the answer in that example.
Another possibility is to have differing grades of conferences. If Australia adopted this system, then the different counties (And Shire!) that make up the area called Sydney could send heralds and delegates to conferences to discuss common problems and to suggest solutions. These conferences could send heralds to State conventions, and the State Conventions could send delegates to National Conventions. None of these conventions would be legally binding, but they would allow common values and codes to be formulated.
And another binding element could be war-games. The individual militias could compete at various levels, regularly, replacing sport with token wars, in practice for local co-operation if the land was invaded. (And I sometimes think that if you really needed a bureaucracy, you should only hire from winners of such contests- a nobility based on proven merit, as it were.)

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1. See also Cato’s Simon Lester & Huan Zhu, “Rethinking the Length of Patent Terms,” American U. Int’l L. Rev. 34, no. 4 (2019): 787–806; C. Michael White, “Why a Seventeen Year Patent,” J. Pat. Off. Soc’y 38, no. 12 (December 1956): 839–59, p. 841; Dale A. Nance, “Foreword: Owning Ideas,” Harv. J. L. & Pub. Pol’y 13, no. 3 (Summer 1990): 757–74, p. 760. [↩]

The Imprisoner’s Dilemma is a fascinating interview by Jeff Tucker of Austrian economist Dan D’Amico about the prison in economics. Near the end interview they discuss the intersection between IP and prisons (22:45-). Interesting stuff.

Interesting talk by author Tarrin Lupo on various aspects of self-publishing, given at the Agora I/O “unconference”.