Inspired by brilliant Techdirt page Hello! You’ve Been Referred Here Because You’re Wrong About Section 230 Of The Communications Decency Act, welcome to—
Hello! You’ve Been Referred Here Because You’re Wrong About Intellectual Property
This is a dynamically growing list. I will add references as I go along, often to material at C4SIF’s Resources and Against Intellectual Property and Supplementary Material pages—
Jumps to Topics
- Without IP, authors can’t make money
- If you oppose IP you support plagiarism; copying others is fraud or contract breach
- You can’t oppose IP without opposing contract; IP simply flows from contracts
- IP can’t be socialistic, since the Soviet Union didn’t recognize IP law
- IP isn’t about owning ideas; those who oppose ownership of ideas are commies
- You can sell information and ideas so you must own them
Without IP, authors can’t make money:
- Profiting without IP;
- “Conversation with an author about copyright and publishing in a free society” (Jan. 23, 2012)
- Do Business Without Intellectual Property (Liberty.me, 2014)
- “Innovations that Thrive without IP,” StephanKinsella.com (Aug. 9, 2010)
- “Examples of Ways Content Creators Can Profit Without Intellectual Property,” StephanKinsella.com (July 28, 2010)
- “The Creator-Endorsed Mark as an Alternative to Copyright,” Mises Economics Blog (July 15, 2010)
If you oppose IP you support plagiarism; copying others is fraud or contract breach:
- Kinsella, “Common Misconceptions about Plagiarism and Patents: A Call for an Independent Inventor Defense,” Mises Economics Blog (Nov. 21, 2009); Kinsella, “KOL207 | Patent, Copyright, and Trademark Are Not About Plagiarism, Theft, Fraud, or Contract,” Kinsella on Liberty Podcast (Feb. 21, 2016)
- See also this facebook post, which states:
Libertarian Answer Man timePLAGIARISM, CONTRACT, FRAUDGood Ole Walter Block fielded a question about plagiarism: “What is your take on plagiarism and intellectual property rights?”Walter stated that he is against IP, like I am, and that plagiarism seems to be a type of contract violation, and asked me for my take. Instead of keeping my brilliance restricted to a narrow audience of two, I munificently share it with the world below.***I’d say plagiarism is the action of passing off someone else’s work as your own–that is, not giving proper attribution credit for long quotes, or pretending you are the original author of of some creative work–usually artistic, the type of work usually nowadays covered by copyright. So in essence it’s a form of dishonest.It is commonly believed that plagiarism has something to do with copyright law, so that if you oppose copyright, you are “in favor of” plagiarism. This is completely wrong and confused; they have nothing to do with each other. For example if I plagiarize the Bible or Great Expectations I am not violating copyright (they are out of copyright or in the case of the bible, never was). And if I sell a copy of Harry Potty with J.K. Rowling’s name on it, I am not plagiarizing at all, but I am violating copyright.Some libertarians implicitly (and mistakenly) link copyright and plagiarism by arguing that if you oppose plagiarism then this means you favor IP rights. This is disingenuous and just wrong.Many libertarians, even those who oppose copyright and IP (like Walter), are far too quick to say something like “plagiarism is fraud” or “plagiarism is contract breach.” At root, plagiarism is just *dishonesty*, or, failure to give appropriation attribution according to the scholarly citation standards of a given community. This is all it is. Libertarians should well know that lying or dishonesty is not per se unlibertarian at all, and it is not necessarily fraud or contract breach. It *can be* but it is not *per se*.As for fraud, we have to have a careful, coherent theory of what fraud is and why it’s a type of aggression, to know what types of acts are fraudulent. You can’t just assume “dishonestly=fraud” as many libertarians lazily and sloppily do. See my post Fraud, Restitution, and Retaliation: The Libertarian Approach https://www.stephankinsella.com/…/fraud-restitution…/.For example suppose I sell Harry Potter, the Bible, or Great Expectations, with my name on it. If someone buys one of these books from me, have I committed fraud? I mean was the consumer really deceived? What moron doesn’t know that Stephan Kinsella is NOT the author of these books? And whatever happened to the normal libertarian notion of caveat emptor–let the buyer beware? Buyers who know or should know of some fact ought not be able to complain about it later. That said, in the appropriately narrow case with sufficient relevant factors, selling some item and deceiving the buyer about the nature of the item (including its authorship), if this is a material factor in the purchase and if the buyer has no reason to know or should know that the seller is lying, then I suppose a fraud or contract breach case can be made out. But note that even if this is the case, this has nothing to do with IP or copyright, as pro-IP people dishoneslty argue.And as for contract–again, like with fraud, even with conventional contract law views, you’d have to show a material breach of contract and actual damages. But I would add one other thing. The proper view of contract is the Rothbard-Evers title-transfer theory of contract. In this view of contrat, there is *no such thing as breach of contract*, since contract is NOT viewed as enforceable promises, but merely as a set of reciprocal, mutual, and conditional title transfers. A contract merely results in transfers of title to owned resources based on some future conditions being met or not. See A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability, — https://mises.org/…/libertarian-theory-contract-title… and also The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types of Aggression http://www.stephankinsella.com/…/the-problem-with…/For example in conventional contract theory if I promise to paint your home then this is viewed as a set of mutual binding obligations: I have an obligation to paint your home; you have an obligation to pay me $1000. If I fail to paint I am in breach and owe you consequential damages. If you fail to pay me, same thing. Both breaches can be enforced by awards of damages–in essence, a court ordered transfer of money from one party to the other. If I paint and you refuse to pay, the court will transfer $1000 of your money to me. If I fail to paint, then if the “damages” to you are $300 (say, it ruined a party you were going to have), then the court will transfer $300 of my money to you.This means that the contract *really* can be viewed as two conditional title transfers, instead of binding promises: I transfer $300 to you if I DO NOT paint; you transfer $1000 to me if I DO paint. So in this view, there is simply no such thing as breach of contract; there are only pre-specified title transfers. This is similar to the chicago view of “efficient breach of contract” but far superior to it, conceptually cleaner and more libertarian. but see e.g. https://en.wikipedia.org/wiki/Efficient_breachBest, Stephan
You can’t oppose IP without opposing contract; IP simply flows from contracts:
- See Against IP, the section “IP as Contract” and the subsections “The Limits of Contract” and “Contract vs. Reserved Rights”.
- See also my 2011 Mises Academy course on IP, Lecture 6 (in particular, see slide 12; or see the transcript there and search for mousetrap; or go to 45:10 in the video )
- See also Leonard Peikoff on IP here (go to 5:41). Peikoff thinks that whether reading books in a library or buying a used book violates the copyright of the author depends on the contract of sale. Thus he appears to be making an argument similar to Rothbard who thought you could have some type of contractual copyright (in inventions, oddly) system. He doesn’t seem to understand Rand’s own argument for IP, which is not based on contract.
- See also Wendy McElroy, The Last Gasp of Copyright Dies Within Me
- Also explained in detail here: Bryan Caplan’s view on Slavery Contracts and IP
- See also Richard O. Hammer: Intellectual Property Rights Viewed As Contracts
- Also discussed in the transcripts and podcasts here: KOL326 | Scottish Liberty Podcast: Discussing the Mossoff-Sammeroff IP Debate, Take 1: Under the Influence…; KOL234 | Vin Armani Show: Live from London: Kinsella vs. Craig Wright on Intellectual Property; KOL174 | “Rethinking Intellectual Property: History, Theory, and Economics: Lecture 3: Examining the Utilitarian Case for IP” (Mises Academy, 2011); KOL076 | IP Debate with Chris LeRoux; and KOL 038 | Debate with Robert Wenzel on Intellectual Property
- See also Adam Mossoff, a pro-IP Objectivist law professor: “one can try to create through contracts some of the protections provided by the concept of an IP right, but it is impossible to create all of them” (emphasis added). “Intellectual Property,” in The Routledge Companion to Libertarianism (Matt Zwolinski & Benjamin Ferguson, eds., 2022), at p. 482, n.2.
IP can’t be socialistic, since the Soviet Union didn’t recognize IP law:
- Socialism is the institutionalized interference with private property rights. (See Hoppe, TSC, chs. 1-2) IP infringes property rights, so is socialistic. (Intellectual Property Rights as Negative Servitudes)
- Some IP proponents assert that communist countries don’t respect IP, so it can’t be socialistic. (E.g. this John Ryker character in the comments here.) The Soviet Union in fact ratified the Paris Convention (re patents) in 1965 and the Universal Copyright Convention in 1973. All the official communist states today—Laos, Vietnam, Cuba—plus semi-communist China, and totalitarian North Korea, are all signatories to international patent and copyright treaties which requires them to have and enforce patent and copyright law in their countries. This is no surprise since, as noted, IP is socialistic and violates property rights, and these countries have no love or respect for property rights. See Justin Hughes, “The Philosophy of Intellectual Property,” Georgetown L. J. 77, no. 2 (Dec. 1988): 287–366, p. 293 (“even socialist economies either have recognized roughly similar parameters to intellectual property or at least have averred their subscription to the general idea of legal regimes for copyright, trademark, and patent.”).
- Another example: “A Communist would be in favour of no I.P. because he believe the products of everyone should be available to anyone else.”
- See also Intellectual Property as a Type of Property: The Russian Federation Law and Legal Doctrine, by V. Vasilyev [PDF]
- And see the retard “Francois Tremblay,” or whatever his real name is, arguing for a variant of IP he calls intellectual ownership (IO) from a libertarian socialist point of view: “The case for socialist intellectual ownership.” You can’t make this shit up.
IP isn’t about owning ideas; those who oppose ownership of ideas are commies
- About half the IP proponents argue that ideas can be owned. After all, they are the product of the mind, the “fruits of one’s labor,” useful, and you can “sell” ideas. And after all we know that if you can sell something, you must own it! [The “If you own something, that implies that you can sell it; if you sell something, that implies you must own it first” Fallacies] If you oppose property rights in ideas, you believe in communal ownership of them, so you are a commie! And then the other half of IP proponents get indignant if you accuse them of believing in property rights in ideas. “Not at all!” they retort. We only believe in property rights in the application of ideas, or “the implementation of” ideas. Whatever that means.
- I intend to collect here someday samples of these schizo IP proponents conflicting claims. For now, take my word for it.
- Someone saying IP does not protect ideas (“Why consult Kinsella? He’s been lying about ‘ideas’ being copyrighted for years. No idea has ever been copyrighted. All copyright requires a physical object.”); and another one (“intellectual property is … the exclusive right to use this specific idea that one has created”)
- Someone saying ideas have to be protected (“If you attempt to pass off your sentence as your work then yes, you have stolen from me, rather than imitated or copied me. The idea is the thing at stake, not the pen and paper.”); and another one (“A specific creative idea someone creates themselves, belongs to them.”); another one (“information”: “A dangerous faction of intellectual communism is spreading amongst libertarians that wants to eliminate the ownership of information and communalize all information”); and here (Silas Barta: “Then why can’t you say the same thing about ideas? That is, the first person to establish themself using a particular idea adopts that idea as their identity like the trademarks you describe.”); but see Silas Barta here, contradicting himself (“The problem with this line of reasoning, is that creators (and their assigns) do not claim to own “the information”, except in a metaphorical sense. They are making specific claims about others’ moral right to instantiate it, which is different. “.
- See e.g., “intellectual property may be defined as embracing rights to novel ideas as contained in tangible products of cognitive effort.” Dale A. Nance, “Foreword: Owning Ideas,” in “Symposium: Intellectual Property,” Harvard Journal of Law & Public Policy 13, no. 3 (Summer 1990): 757.”
- See also Edwin C. Hettinger, “Justifying Intellectual Property,” Philosophy & Public Affairs 18, no. 1 (Winter 1989): 31–52, at 32: “It is commonly said that one cannot patent or copyright ideas. One copyrights “original works of authorship,” including writings, music, drawings, dances, computer programs, and movies; one may not copyright ideas, concepts, principles, facts, or knowledge. Expressions of ideas are copyrightable; ideas themselves are not. While useful, this notion of separating the content of an idea from its style of presentation is not unproblematic”
- See also Oren Bracha, Owning Ideas: The Intellectual Origins of American Intellectual Property, 1790–1909 (Cambridge 2016); idem, Oren Bracha, “Owning Ideas: A History of Anglo-American Intellectual Property” (June 2005) (unpublished Ph.D dissertation, Harvard Law School)
“Intellectual property also may be thought of as the use or the value of an idea.” Justin Hughes, “The Philosophy of Intellectual Property,” Georgetown L. J. 77, no. 2 (Dec. 1988): 287–366, p. 294.