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The Intellectual Property Quagmire: or, The Perils of Libertarian Creationism

The Intellectual Property Quagmire: or, The Perils of Libertarian Creationism



"The Intellectual Property Quagmire: or, The Perils of Libertarian Creationism," by Stephan Kinsella, Rothbard Memorial Lecture, Austrian Scholars Conference 2008 ...

"The Intellectual Property Quagmire: or, The Perils of Libertarian Creationism," by Stephan Kinsella, Rothbard Memorial Lecture, Austrian Scholars Conference 2008
Ludwig von Mises Institute, Auburn AL
March 13, 2008. Originally entitled Rethinking IP. Accompanying video/audio can be found at http://www.stephankinsella.com/media



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  • We live in a world of wonders—advances in science and technology and a large and diverse array of artistic and literary creations computers, automobiles, airplanes, the Internet, wireless communications, cell phones, color laser printers, plasma TVs, laser pointers Libertarians would emphasize that all creation, all innovation, all scientific achievements and discoveries, are individual accomplishments, and that free markets and free minds are necessary preconditions for individuals to thrive and prosper and achieve. But it is commonly believed that individual freedom is not sufficient – that IP law is responsible or necessary for innovation. Even many libertarians agree with this. After all, we support property rights; and “intellectual property” is just a subset of property rights. For this reason, many leftists seem to base their opposition to IP on their general hostility to property rights.
  • Both left, right, and libertarians all seem to agree that intellectual property rights are a type of property right, and thus favor, or oppose, IP based on whether they favor, or oppose, property rights.
  • What is a patent? What is a copyright?
  • Show exemplary patent
  • How are patents obtained? [diagrams] http://www.bromsun.com/practices/copyright-portfolio-development/flowchart.htm
  • http:// www.iptoday.com/poster.asp
  • http://www.uspto.gov/web/offices/com/hearings/software/analysis/ (see also this appendix: http://www.uspto.gov/web/offices/pac/dapp/pdf/ciig.pdf)
  • What results? [exemplary patents – Slides] You Better Not Rear-End Me!!
  • Patent for a swing
  • Patent for selecting vehicles with clean title history
  • Patent for Christmas three watering system
  • Patent for initiation apparatus of secret societies
  • Patent for cat exercising device
  • Patent for “pat on the back” device
  • Patent for “one-click” order purchasing network
  • Patent for hyper-light-speed antenna
  • Patent for sound-playing condom
  • Blah blha Sfdsdlkjfsdf
  • wkcd webcomic, http://xkcd.com/294/
  • Intellectual Property and the Property Rights Movement by Peter S. Menell: “The law has long treated land and intellectual property within the general rubric of “property.” The first use of the term “intellectual property” in a reported legal decision can be traced to an 1845 patent case in which the court observed that “a liberal construction … given to a patent” will encourage “ingenuity and perseverance” and “only in this way can we protect intellectual property, the labors of the mind, productions and interests as much a man’s own, and as much the fruit of his honest industry, as the wheat he cultivates, or the flocks he rears.” Prof. Justin Hughes, in a recent Southern California Law Review article, notes that “the courts and legislatures had regularly discussed copyrighted works as ‘property’ throughout the seventeenth, eighteenth, and early nineteenth centuries, with the adjectival concepts of ‘artistic,’ ‘literary,’ and ‘intellectual’ orbiting around the property notion.” Other good stuff from Menell: under “utilitarian approach”: showing why it’s different. Why would we ever think of it as “property” anyway? “ Professor Epstein and some other PRM advocates assert that the rules associated with real property (such as a strict right to exclude and restrictions on governmental interference) should govern intellectual property. Those scholars would shoehorn intellectual property into an idealized Blackstonian conception of property rights as exclusive and inviolate. Yet such a classification is more semantic than actual. The two fields derive from different philosophical foundations, embody different rules and institutions, and reflect different political constituencies…. Rather than emulate real property rules and institutions, intellectual property can best be understood as a malleable bundle of rights to be molded to promote the progress of science and the arts. Indeed, the various modes of intellectual property protection diverge significantly from Blackstone’s model of absolute rights — perpetual, exclusive, and inviolate. Two of the most prominent forms of intellectual property — patents and copyrights — protect works for limited durations (although in the case of copyrights, the term is quite long). Furthermore, exclusivity in the field of “intellectual property” is far less inviolate than it is in the traditional property domains. Intellectual property law comprises a system of policy levers that legislatures tailor and courts interpret in order to promote innovation and protect the integrity of markets in light of the ever-changing state of technology as well as social institutions. Patent law’s experimental use defense and various exceptions (e.g., severe restrictions on enforcement of medical procedure patents, prior user rights for business methods) limit the exclusivity of patent rights. Copyright law’s fair use doctrine, numerous compulsory licenses, and various exemptions significantly qualify the exclusivity of copyright interests. … … When Professor Epstein looks at intellectual property, he is struck by the “structural unity” with real property. He sees exclusivity and the right to transfer as the foundations undergirding both systems, while discounting the problems of fragmentation and concentration in both domains…. The PRM generally believes that most, if not all, tangible resources should be owned. Yet intellectual property law tends to operate from the opposite default — market failure justifies intellectual property protection and intellectual property rights should only be created to the extent needed to override appropriability problems. Patent law excludes protection for abstract concepts and scientific principles. Copyright law does not extend to unoriginal compilations, even when they require substantial effort. Patent and copyright aspire for knowledge to be unowned — in the public domain — after their term has expired. The same cannot be said for tangible property systems. A further structural difference between real and intellectual property relates to the nature of boundaries and the implications implications for transaction costs. Whereas tangible property can usually be defined with reasonable clarity and can be verified at relatively low cost, various types of intellectual property — especially software and business method patents — have notoriously fuzzy boundaries. Such boundary definition problems, and the due diligence, transaction, and dispute resolution costs that they entail, raise serious questions about the desirability of some types of intellectual property. Real and intellectual property differ significantly in terms of enforcement costs. Whereas land and other forms of tangible property can be enclosed and monitored, the flow of knowledge is particularly difficult to observe. For that reason, trade secrets are notoriously difficult to protect. Digital technology and the Internet have made the products of traditional content industries — sound recordings, sheet music, movies — much more vulnerable to unauthorized distribution. Professor Epstein’s equation of real and intellectual property skates over those significant differences.” Also “Thus, the growth of intellectual property seems unlikely to support the PRM ’s core agenda. Intellectual property has never fit the real property mold particularly well and the inherent attributes of intellectual resources as well as the increasingly interdependent nature of information ecosystems points away from the PRM’s conception of property. By expanding the property tent to encompass intellectual property, property rights enthusiasts run the risk of diluting the distinctive attributes of real property that brought it special attention at the founding of the nation. … Efforts to shoehorn legal protection for such resources into the real property mold will undoubtedly fail and may well hasten the demise of the rigid conception of private property rights in land and other tangible resources.” I.e., you can’t help but regulate IP. So if you treat it like one type of IP, you give ammunition to those who want to regulate real property.
  • Dangers of labor: 2.  Labor Theory of Value.  After Böhm-Bawerk demolished the idea, the labor theory of value, founded by Locke, creeps in the back door.  Ask libertarians to justify Private Property, they fall back on Locke: It is the result of their own labor, they say.  The libertarians and the Marxists share this in common.  Real Conservatives know that value comes from other (and Other) sources. (comments of Sid Cundiff , Jan. 21, 2008) F.A. Hayek, The Fatal Conceit: The Errors of Socialism (U. Chicago Press, 1989), p. 36 (“The difference between [copyrights and patents] and other kinds of property rights is this: while ownership of material goods guides the use 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 encyclopedias, dictionaries, textbooks, and other works of reference could not be produced if, once they existed, they could freely be reproduced. … Similarly, recurrent re-examninations 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”, citing Fritz Machlup, The Production and Distribution of Knowledge (1962)). ** Also: cite more from Machlup
  • Down with the state. Down with state law, and down with pattern privileges

The Intellectual Property Quagmire: or, The Perils of Libertarian Creationism The Intellectual Property Quagmire: or, The Perils of Libertarian Creationism Presentation Transcript