[From my Webnote series]
As noted here, “Ayn Rand’s newsletters used to end with a “Horror File” of monstrous but true quotations.”
Along those lines, it’s time to collect some choice trademark horror stories in one place. The main post will be here, on the Mises Blog, but I’ll cross-post the initial post here too. But look there for updates (or to add suggestions in the comments). (Update: I might as well also list here similar examples from patent, copyright, and even trade secret. See below.)
For examples related to defamation, see Defamation as a Type of Intellectual Property.
Trademark
As noted in Trademark versus Copyright and Patent, or: Is All IP Evil?, it’s not only patent and copyright that are unlibertarian and unjust. Modern trademark law is as well. I deal with tradmark rights on pp. 58-59 of Against Intellectual Property, and also in some detail in Reply to Van Dun: Non-Aggression and Title Transfer (esp. pp. 59-63). In my view, extensions of trademark law–rights against “trademark dilution” and cybersquatting, etc.–are obviously invalid. Further, federal trademark law is problematic since it is not authorized in the Constitution.
But even if federal trademark law were abolished, as well as modern extensions such as rights against trademark dilution, even common law trademark is problematic, for three primary reasons. First, it is enforced by the state, which gets everything wrong. Second (see First), the test of “consumer confusion” is usually applied ridiculously, treating consumers like indiscriminating idiots. Third, and worst of all, the right at issue is the right of the defrauded consumer, not the competitor. Trademark law ought to be reformed by abolishing the right of trademark “owners” to sue “infringers” (except perhaps as proxy for customers, when consent can be presumed or proved–as I discuss in this interview: Free Talk Live Interview on Reducing IP Costs (Jan. 20, 2010)), and treating this as a case of the customer’s right to sue a vendor who defrauds him as to the nature of the good purchased. Some might argue that this is only a minor change, but it is not: such a change would make it clear that “knockoffs” are usually not a violation of anyone’s rights: the buyer of a $10 “Rolex” is almost never defrauded–he knows what he’s getting. Yet by giving an enforceable trademark right to the user of a mark, he can sue knockoff companies even though their customers are not defrauded and in fact are perfectly happy to buy the knockoff products.
The other fallacy is the view at work here that there is no such thing as reputation, or even identity, absent trademark law. But this is incorrect. Of course people and firms can have reputations even if trademark law is nonexistent. All that is required is that people be able to identify other people and firms, and communicate. Pro-trademark arguments often implicitly assume that this is not possible, absent state-enforced trademark law, which is ridiculous.
In any event, on to a collection of trademark outrages for the horror files (some of these are also listed in Reducing the Cost of IP Law):
- Lululemon’s Costco lawsuit is a MESS (trade dress)
- Court Orders Dean Guitars to Stop Production of Various Models After Losing Legal Battle Against Gibson
- Court Says U Of Southern California Only One Who Can Use USC; Sorry U Of South Carolina
- Who Dat? America’s National Football League causes outrage over catchphrase ban
- What’s Next–Trademarking Language? Don’t be *Ridiculous*!
- South Butt David versus North Face Goliath
- Lou Carlozo, Teen’s charity name draws the McIre of McDonald’s, Wallet Pop (Jan. 17, 2010) (McDonadl’s claims Lauren McClusky’s use of “McFest” for the name of a series of charity concerts she puts on infringes its “McFamily” brand)
- Budweiser trademark dispute (see also Chip Wood, A Bully-Boy Beer Brewer, Straight Talk (Oct. 16, 2007))
- 9th Circuit Appeals Court Says Its Ok To Criticize Trademarks After All, Against Monopoly (Sept. 26, 2007)
- Kinsella, Trademarks and Free Speech, Mises Blog (Aug. 8, 2007)
- idem, Beemer must be next… (BMW, Trademarks, and the letter “M”), Mises Blog (Mar. 20, 2007)
- idem, Hypocritical Apple (Trademark), Mises Blog (Jan. 11, 2007)
- ECJ: “Parmesian” Infringes PDO for “Parmigiano Reggiano,” I/P Updates (Feb. 27, 2008)
- Mike Masnick, Engadget Mobile Threatened For Using T-Mobile’s Trademarked Magenta, Techdirt (Mar. 31, 2008)
Patent
Taken (in part) from my article Radical Patent Reform Is Not on the Way, Appendix: Examples of Outrageous Patents and Judgments:
Examples of (at least apparently) ridiculous patents and patent applications abound (more at PatentLawPractice):
- Epson boobytrapped its printers
- Amazon’s “one-click” patent, asserted against rival Barnes & Noble;
- Cendant’s assertion that Amazon violated Cendant’s patent monopoly on recommending books to customers (since settled);
- The attempt of Dustin Stamper, Bush’s Top Economist, to secure a patent regarding an application for a System And Method For Multi-State Tax Analysis, which claims “a method, comprising: creating one or more alternate entity structures based on a base entity structure, the base entity structure comprising one or more entities; determining a tax liability for each alternate entity structure and the base entity structure; and generating a result based on comparing each of the determined tax liabilities”;
- Apple’s patent application for digital Karaoke;
- the suit against Facebook by the holder of a patent for a “system for creating a community for users with common interests to interact in”;
- the “absurdly broad patent [issued to Blackboard] for common uses of technology if that technology is employed in the context of education” (see also Patent Office Rejects Blackboard E-Learning Patent One Month After It Wins Lawsuit, Techdirt (Mar. 31, 2008);
- Compton’s (now Encyclopedia Britannica’s) patent that “broadly cover[s] any multimedia database allowing users to simultaneously search for text, graphics, and sounds — basic features found in virtually every multimedia product on the market”;
- Carfax’s patent on a “method for perusing selected vehicles having a clean title history”;
- Acacia’s patent for putting a unique transaction number on a receipt;[26]
- Pat. No. 6,368,227, covering swinging sideways on a swing;
The Supreme Court, in the 1882 case Atlantic Works v. Brady, 107 US 192, itself lists examples of patents issued to “gadgets that obviously have had no place in the constitutional scheme of advancing scientific knowledge … the simplest of devices.” These included
- a particular doorknob made of clay rather than metal or wood, where differently shaped doorknobs had previously been made of clay;
- making collars of parchment paper where linen paper and linen had previously been used;
- a method for preserving fish by freezing them in a container that operates in the same manner as an ice-cream freezer.
- rubber caps put on wood pencils to serve as erasers;
- inserting a piece of rubber in a slot in the end of a wood pencil to serve as an eraser;
- a stamp for impressing initials in the side of a plug of tobacco;
- a hose reel of large diameter so that water may flow through the hose while it is wound on the reel;
- putting rollers on a machine to make it movable;
- using flat cord instead of round cord for the loop at the end of suspenders;
- placing rubber hand grips on bicycle handlebars;
- an oval rather than cylindrical toilet paper roll, to facilitate tearing off strips.
Below are a few notable or recent examples of large, significant, troubling, or apparently outrageous injunctions, damages awards, and the like:
- In Stent Patent War, Boston Scientific Caves (Again), Agrees to Pay Johnson & Johnson $1.725 Billion to Settle Three Cases;
- Qualcomm has been enjoined from importing chips that help conserve power in cell phones (discussion; latest developments). See also Eric Bangeman, ITC to Bar Import of New Handsets in Patent Dustup, ars technica (June 7, 2007); Nokia’s Patent-Licensing Case against Qualcomm Dropped by Dutch Court, engadget (Nov. 14, 2007); Broadcom Wins Major Injunction against Qualcomm, engadget (Dec. 31, 2007); ITC Upholds Ruling, Reiterates that Nokia Didn’t Violate Qualcomm Patents, engadget (Feb. 29, 2008).
- Texas-Sized Patent Win, Texas Lawyer (Feb. 21, 2008). A New Jersey doctor was awarded $432 Million as a “reasonable royalty” against Boston Scientific for infringing his “Method and Apparatus for Managing Macromolecular Distribution.”
- Smartphones Patented … Just About Everyone Sued 1 Minute After Patent Issued, Techdirt (Jan. 24, 2008).
- Farmer David Reaps What He Has Sown: A Patent Suit, Patent Baristas (Feb. 13, 2008) Even though “the practice of saving seeds after a harvest to plant the next season is as old as farming itself,” patents prevent farmers from saving patented seeds.
- Apple, Starbucks Sued over Custom Music Gift Cards, AppleInsider (Feb. 20, 2008) A Utah couple sue Apple and Starbucks over their “‘Song of the Day’ promotion, which offers Starbucks customers a iTunes gift card for a complimentary, pre-selected song download.” The suit is based on a patent on a “retail point of sale for online merchandising” which allows customers to buy a gift card from a brick-and-mortar store and then go home and redeem the card online.
- Apple Sued Over Caller ID on the iPhone, Techdirt (Feb. 27, 2008). The patent is on “matching up the phone number of an incoming call with a local contact database to display who is calling.”
- The new 802.11n Wi-Fi standard (which promises to significantly increase Wi-Fi speed and range) is in jeopardy due to patent threats. See Bill Ray, Next Generation Wi-Fi Mired in Patent Fears, The Register (Sept. 21, 2007).
- SanDisk Sues 25 Companies for Patent Infringement: “Suits have been filed against 25 companies by the SanDisk corporation this week, as the company looks to stop businesses from shipping products it alleges are infringing on its work. SanDisk has filed suits against everyone from MP3 player manufacturers to USB hard drive creators. The list of defendants is staggering, and MacWorld notes if Sandisk succeeds it could have repercussions outside of the courtroom.… The court … complaints could affect the prices and availability of products made by companies targeted in the suit if SanDisk wins and the companies are barred from importing products into the U.S.”
- Patent Office Upholds Tivo’s “Time Warp” Patent, EchoStar Not so Happy, engadget (Nov. 29, 2007); see also Tivo Inc. v. EchoStar Communications Corp. (S. D. Tex., Dec. 2, 2006); and TiVo Wins on Appeal: Permanent Injunction against EchoStar to be Reinstated, Patently-O (Jan. 31, 2008).
- Jacqui Cheng, U R SUED: Patent Holding Company Targets 131 Companies over SMS patents, ars technica (Nov. 13, 2007).
- The International Trade Commission (ITC) may ban imports of many popular hard drives that “are alleged to infringe on patents owned by California residents Steven and Mary Reiber related to a ‘Dissipative ceramic bonding tool tip.'” Jacqui Cheng, Hard Times for Hard Drives: US May Ban Popular Imports, ars technica (Oct. 11, 2007).
- The VoIP phone service Vonage may be put out of business by patents. Sprint recently won a patent case against Vonage in which $69.5 million was awarded in damages. Sprint had planned “to ask the court to permanently ban Vonage from using its patented technology,” but the case was subsequently settled for $80 million. However, in a separate patent lawsuit between Verizon and Vonage, the jury found that Vonage had violated three Verizon patents, and awarded Verizon $58 million in damages plus ongoing royalties. Vonage claims it has developed workarounds for two of the patents. See Kim Hart, Sprint Wins Patent Case Against Vonage: Reston Firm Awarded $69.5 Million in Second Blow to Internet Phone Company, Washington Post (Sept. 26, 2007); Peter Svensson, Vonage Settles Patent Suit with Sprint, BusinessWeek (Oct. 8, 2007). Latest: Vonage Settles with Verizon, Owes Up to $117.5 Million; Vonage, Nortel Call a Truce — No Cash Changing Hands, engadget (Dec. 31, 2007).
- Kinsella, Revolutionary Television Design Killed by Patents (2007).
- BlackBerry’s manufacturer, RIM, was forced to cough up $612.5 million after NTP used patent law to threaten to shut RIM down.
- Microsoft was on the receiving end of a $1.5 billion jury verdict for infringing an MP3 patent held by Alcatel-Lucent (which was recently overturned).
- After Kodak sought more than $1 billion in damages from Sun Microsystems for patent infringement, Kodak finally settled for $92 million. (And according to one colleague, the verdict resulted “in the immediate shutdown of Kodak’s entire instant photography division, with the immediate loss of 800 jobs. And, some say, the eventual failure of Polaroid due to lack of any real competition to keep them on their toes!”)
- In another recent case, Freedom Wireless obtained a $150 million damages award against Boston Communications Group, Inc., which at the time had revenues of only about $100 million. In this case, the judge also refused to stay the injunction issues against BCGI (and by extension, its customers) pending appeal.
- Smith International was forced to pay Hughes Tool Company $204.8 million for infringement upon Hughes’s patent for an “O-ring seal” rock bit, which led to Smith filing for chapter 11 bankruptcy protection (this was in 1986, when $200 million was considered a large patent verdict).
- As of March 2003, the top 5 patent infringement damage awards ranged from $873 million (Polaroid v. Kodak, 1991) to $204.8 million (Hughes Tool v. Smith International, 1986). The top 5 patent settlements ranged from $1 billion to $300 million. Damage Awards and Settlements, IP Today (March 2003)
; see also Gregory Aharonian, Patent/Copyright Infringement Lawsuits/Licensing Awards. Sadly, a $200 million verdict seems normal nowadays. The recent $156 million patent-infringement verdict against AT&T, for example — which could possibly be trebled by the judge — now looks like small potatoes. - Other recent cases include a $1.67 billion patent infringement verdict in favor of Johnson & Johnson against Abbott; a $400 million settlement paid to Abbot, by Medtronic, regarding stent devices; and a $716 million settlement paid to Johnson & Johnson by Boston Scientific (cardiac stents again).
Copyright
Some of these are also listed in Reducing the Cost of IP Law:
- When is cosplay a crime?, Planet Money, July 17, 2025
- Atlas Hefts: The Sequel!
- Disney makes day care centers remove Mickey Mouse murals (2)
- Miles Davis Tattoo Suit Pits Copyright Against Body Autonomy; A Photographer Is Suing Tattoo Artist Kat Von D After She Inked His Portrait of Miles Davis on a Friend’s Body; Guy Who Did Mike Tyson’s Tattoo Sues Warner Bros. For Copyright Infringement; Maori Angry About Mike Tyson’s Tattoo Artist Claiming To Own Maori-Inspired Design
- RIAA Wants $1.5 Million Per CD Copied, Slashdot (Jan. 30, 2008);
- Ford Slaps Brand Enthusiasts, Returns Love With Legal Punch, AdRants (Jan. 14, 2008) (Ford Motor Company claims that they hold the rights to any image of a Ford vehicle, even if it’s a picture you took of your own car);
- Jacqueline L. Salmon, NFL Pulls Plug On Big-Screen Church Parties For Super Bowl, Washington Post (Feb. 1, 2008) (NFL prohibits churches from having Super Bowl gatherings on TV sets or screens larger than 55 inches);
- Internet pirates could be banned from web, Telegraph (Feb. 12, 2008) (British proposal to punish individuals who illegally download music by banning them from the Internet); John Tehranian, Infringement Nation: Copyright Reform and the Law/Norm Gap, Utah L. Rev. (forthcoming; SSRN);
- Cory Doctorow, Infringement Nation: we are all mega-crooks, Boing Boing (Nov. 17, 2007);
- Court Says You Can Copyright A Cease-And-Desist Letter, Techdirt (Jan. 25, 2008);
- Kinsella, Battling the Copyright Monster, Mises Blog (June 19, 2006);
- dem, Copyright Kills Amazing Music Project, Mises Blog (Jan. 2, 2008);
- idem, “Fair Use” and Copyright, Mises Blog (Aug. 17, 2007);
- idem, Copyrights and Dancing, Mises Blog (Feb. 20, 2007);
- idem, The “tolerated use” of copyrighted works, Mises Blog (Oct. 27, 2006);
- idem, Copyright and Birthday Cakes, Mises Blog (June 16, 2005);
- idem, Heroic Google Fighting Copyright Morass, Mises Blog (June 2, 2005);
- idem, Copyright Gone Mad, Mises Blog (Apr. 14, 2005);
- idem, Copyright and Freedom of Speech, Mises Blog (Nov. 8, 2004).
See also:
- Joost Smiers & Marieke van Schijndel, Imagine a World Without Copyright, International Herald Tribune (Sat. Oct. 8, 2005);
- Jessica Litman, Revising Copyright Law for the Information Age, 75 Oreg. L. Rev. 19 (1996);
- Kinsella, Copyrights in Fashion Designs?, Mises Blog (Sep. 27, 2006);
- Kinsella, Britain’s Copyright Laws, Based on a 300-Year-Old Statute, Desperately Need Reshaping for the Digital Age, Mises Blog (Nov. 2, 2006).
- For a humorous parody of copyright abuses by the RIAA, see CD Liner Notes of the Distant Present, Something Awful (Jan. 3, 2008).
Trade Secret
Even trade secret law, the least objectionable of the four main types of IP, has been corrupted by the state.
Mark Hubbard
Reputation rights are not usually classified as IP rights, but they are similarly unjust
So we’re not really talking about IP, but we’ll skew the argument to fit the agenda anyway?
And that aside, again the argument seems to be, a single lawyer – who you admit is incompetent – is being sued unjustly, so we must ditch the whole body of laws, and the concept of property?
(Even I know numerous people, including solicitors, who have been unjustly sued, and none of them regarding IP, but no one used this to raise an argument to abolish the various areas of law concerned. Twenty first century business is complex.)
But I’m more interested in our unfinished business from the South Butt thread, I would especially be interested in your impressions on my latter comment regarding your illogical IP/Welfare comparison.
Kinsella said:
Creation is not an independent source of rights, becuase it leads to the notion that any THING you can think of can be owned;
You forget chronology: you have to prove you had the thought first. After that, I have no problem with this as a starting position. At least it doesn’t mean throwing away the notion of property rights in the entirety, and with it, liberty. Your argument often seems to be, ‘oh, this is rent with complexity’, therefore lets just do away with the notion of property ownership, per se. And I guess you’re right, if you don’t own anything, you cannot have it stolen. But you won’t find freedom in that.
Yes, there will be ludicrous cases, but that’s why we have law courts. In New Zealand I believe there has been a case where a company attempted IP over a colour: they didn’t win. Of course the problem in an anarchist society is that you’ve done away with the rule of law, and hence, law courts (have you?)
I asked another poster on another thread how could two ‘voluntaryists’, as he called them, enforce a contract: I never received an answer.
but it cannot; this inflation of rights destroys real rights (as Rand realized regarding positive welfare rights).
Wrong.
Welfare is to claim an entitlement to that which is owned by others, and for which they had worked for, and is reprehensible because of that. It is State sanctioned theft, an example of modern Statism out of control.
However, IP is a claim of ownership of the ‘products of mans mind’, an entirely different proposition. Whereas, I would like to point out, the view that the IP creator must sustain the whole cost of production, but then be left to see it being squandered by others taking the benefits, is a concept solely belonging to a welfare ethic.
The anti-IP argument is always thusly socialist and falsely philanthropic.
Published: January 26, 2010 10:15 PM
Stephan Kinsella
Hubbard, I’ve long maintained that defamation law is a species of IP law; and of course, the Objectivists support reputation rights on the same grounds that they support IP rights, so this is no surprise.
I never said Quinn is an incompetent attorney; I suspect he is competent. He is very bad at arguing philosophically in defense of his favored policy.
Published: January 26, 2010 11:01 PM
Mark Hubbard
But just because he is being sued unjustly, why use that as an argument against IP (that is, property rights)?
If a bunch of anarchists decide to set me up, steal a car and park it in my garage so I get unjustly prosecuted and even convicted of theft, do we then advocate for car theft to be not against the law?
Arguing for just that seems to be your rationale here.
Published: January 26, 2010 11:19 PM
Stephan Kinsella
Hubbard, This is an illustration of a lawsuit based on an unjust law. It’s just ironic and interesting that it’s used against someone who is in favor of such laws. (I doubt Quinn is even opposed to reputation rights or lawsuits based on “unfair competition” like the suit against him. Good for him!)
Published: January 26, 2010 11:33 PM
Cosmin
Mark Hubbard, you’re so pathetic it’s funny. You talk about unfinished business? You ran away from this thread: http://blog.mises.org/archives/011521.asp like a coward. I answered your claims and asked you many questions and you didn’t have a rebuttal for a single one of them.
Published: January 26, 2010 11:42 PM
Mark Hubbard
Cosmin, I answered to your questions here, as it happens:
http://www.solopassion.com/node/7285#comment-83773
You just have to consider chronology.
Kinsella: no, more than just ‘ironic and interesting’ you posted as part of an agenda. That ‘unjust law’.
Published: January 26, 2010 11:51 PM
Russ
Mark,
Two questions.
1) I assume that you are not a utilitarian. Is this true?
2) Do you believe that people have a duty to support businessmen who come up with unprofitable business plans?
Published: January 26, 2010 11:56 PM
Mark Hubbard
Definitely not utilitarian (unlike the anti-IP promoters).
No, people have no duty whatsoever to support businessmen who come up with unprofitable business plans.
Nothing to do with IP though.
Published: January 27, 2010 12:07 AM
Cosmin
Mark Hubbard, for someone so hung up on chronology, you seem to have problems with dates and time. The comment you point to was written on Sat, 2010-01-23 06:32
I debunked it in a post written on January 25, 2010 3:16 AM
You have no rebuttal.
There’s also your assertion that gang would run riot in anarchy that I’ve discredited, as well as your claim that anti-IPers believe in a hive mind (which is actually what you endorse).
Published: January 27, 2010 12:12 AM
Russ
Mark Hubbard wrote:
“Definitely not utilitarian (unlike the anti-IP promoters).
No, people have no duty whatsoever to support businessmen who come up with unprofitable business plans.
Nothing to do with IP though.”
I think it does. I see two main arguments for IP. Those are the utilitarian argument, and the deontological argument or argument from duty.
The utilitarian argument says that we should consider IP property because without it, the IP that “we” (a collective) “need” (a subjective assessment) won’t get made. Obviously, I think a utilitarian argument poses problems for an Objectivist.
(Note that even arguments for normal property that supposedly are based on metaphysics, such as theories based on scarcity, are utilitarian at root, because they assume that a system that works is better than one that doesn’t.)
The deontological argument says that patterns or ideas should be considered property (and thus should be bought from their creators) because the people who benefit have a duty or obligation to reward the people who create it. So, even though a business plan involving selling something that is easily copyable is pretty obviously not a very good business plan, those who benefit from the patterns/ideas are obligated to prop up the business plan. Those who don’t are unethical. A duty-based theory should also pose problems for an Objectivist.
Your post seem to indicate that your idea of IP is part utilitarian (we won’t have the IP we need/want without it) and part deontological (we owe it to the creators to pay them for their ideas, even though it’s not our fault that their business plans are stupidly based on the idea of selling easily copyable things).
As for your “causality” argument, it seems to be: patterns exist do to a person causing them to exist, therefore we owe it to those people to reward them if we benefit from their creations. This is 1) a non sequitur, and 2) deontological.
What say ye?
Published: January 27, 2010 12:38 AM
Russ
“…patterns exist *do* to a person causing them to exist…”
Should be “due”, not “do”. Doh!
Published: January 27, 2010 12:47 AM
Silas Barta
@Mark_Hubbard:
LOL … you’re new here, aren’t you? This is pretty much par for the course in terms of IP posts on the Mises blog. “Oh, look at this absurd application of IP law. Obviously IP is *inherently* unjust.”
You could just as easily say, “Oh, look at this case where a court ruled that farmers have the right to gun down aircraft flying over their land, obviously property in land is stupid and unjust.” But then it would be obvious how poor the argument is.
People do, of course, make good arguments against IP here, but a lot of their anti-IP friends refuse to call them on it. (Russ and Peter_Surda are notable in criticizing bad arguments against IP, despite being against it themselves. Stephan_Kinsella, not so much.)
Published: January 27, 2010 11:53 AM
Peter Surda
Thank you for your kind words Silas. My only goal in the participation in IP debates is to find the truth (or, as close as a falsificationist can get to the truth). A very difficult endeavour indeed. I don’t particularly care, on personal level, if IP is valid or not, as long as I don’t get sued for writing software, so I dislike software patents and anti-circumvention provisions. But at least I don’t think any libertarian, pro or anti-IP, supports the latter, and the former don’t exist in EU.
Published: January 27, 2010 12:22 PM
ABR
On the term ‘utilitarian’:
As I understand it, a utilitarian wants the State to act in ways that favour the greater good. Mises and Hayek have demonstrated why this approach backfires economically. Ethically, this system is utterly bankrupt.
Now let’s move away from the State to voluntary agreements. If I and five others wish to enact some sort of IP agreement between us, we might be acting according to some ethical approach, but more likely we’re acting out of self-interest.
Is this agreement utilitarian? I don’t think so.
If I and five other neighbours agree that we each own the land we’ve homesteaded, we might be acting according to some ethical approach, but more likely we’re acting out of self-interest.
Is this agreement utilitarian? I don’t think so.
Published: January 27, 2010 12:57 PM
Mark Hubbard
Your post seem to indicate that your idea of IP is part utilitarian (we won’t have the IP we need/want without it)
No Russ. Yes, that will happen, but I work solely on the principle that IP is property, and there will be no freedom possible, where there are no property rights, or where same have been destroyed.
And I see many arguments against IP here made on the ground that the abolishment of IP would lead to constant innovation and the advancement of man – I call it the Marxist Fantasist Anarchist Gang.
Published: January 27, 2010 1:19 PM
Stephan Kinsella
Surda
“Thank you for your kind words Silas. My only goal in the participation in IP debates is to find the truth (or, as close as a falsificationist can get to the truth). A very difficult endeavour indeed. I don’t particularly care, on personal level, if IP is valid or not, as long as I don’t get sued for writing software, so I dislike software patents and anti-circumvention provisions.”
My own interest is even less than neutral: I have an intrest in arguing for IP. I even started out trying this. I finally conceded it couldn’t be done after trying to find a way around this.
Published: January 27, 2010 2:35 PM
Jay Lakner
Mark Hubbard wrote:
“I work solely on the principle that IP is property”
But this is exactly what most anti-IP people are disputing You have not demonstrated why patterns and ideas should be considered a form of property in the first place.
“Chronology” is not a sufficient justification for IP. This point has been refuted over and over again in the past. Causality alone is not a sufficient requirement for property. If it was, then absurd conclusions abound. To use a couple of recent examples, parents would own their children and the Soviet Union would co-own Atlas Shrugged.
Going back to my Harry Potter example, JK Rowling would co-own everything I do that has any link to the novel. For example, if the novel inspires me to write my own novel or compose a piece of music or draw a painting, then JK Rowling now co-owns these things.
Using causality as the only measure of “property” leads to a highly dysfunctional society. Clearly there is more to “property” than just causality (or chronology as you put it).
Mark Hubbard, ask yourself this:
What is the purpose of us even having the concept of “property” in the first place?
Published: January 27, 2010 2:46 PM
Mark Hubbard
Jay, the first part of your post is an absurdity, like the Dr Who’ish discussion you’re wanting to have on SOLO. But:
What is the purpose of us even having the concept of “property” in the first place?
I’m still trying to figure out what, if anything, you do believe in as far as philosophy goes: I just assume people on this site, including Kinsella, are freedom lovers, and property rights are a-priori to freedom being had – I believe the anarchists are wholly incapable of achieving same, the defining difference between them and myself (objectivist) is that I believe in a place for government, whereas Kinsella believes all governments are aggressors – but, for you to even ask this, I’m now far more interested in your answer to this question – and you know what mine is?
Or is this another exercise in intellectual striptease?
Published: January 27, 2010 3:14 PM
Seattle
Hubbard, you still haven’t answered Mr. Kinsella’s question: Does this “Small State” of yours have the ability to deny others from also carrying out justice? If it does, then it is very clearly an aggressor. If not, then you’re not talking about what we commonly call a “State” here, you’re just talking about a PDA.
Published: January 27, 2010 3:50 PM
Jay Lakner
Mark Hubbard wrote:
“property rights are a-priori to freedom being had”
This is, in a way, correct.
Property rights are required in order for freedom to work. So why is it then that ideas and patterns need to be considered a form of property?
It is very easy to show why tangible materials need to be considered property … because no two individuals can alter the integrity (via consumption or general use) of the same tangible item at the same time.
But, if we are going to consider patterns and ideas to be property also, we would need to show why this is a requirement for freedom of action.
Anti-IP people argue that this has never been done. Anti-IP people argue that, since multiple ideas and patterns can be employed simultaneously, then they do not need to be considered forms of property.
Furthermore they demonstrate that, if ideas and patterns are considered property, the conclusions lead to less freedom. And therefore conclude that ideas and patterns should not be considered forms of property.
Published: January 27, 2010 4:16 PM
Mark Hubbard
Haven’t we done this?
The city of Seattle said: Does this “Small State” of yours have the ability to deny others from also carrying out justice? If it does, then it is very clearly an aggressor. If not, then you’re not talking about what we commonly call a “State” here, you’re just talking about a PDA.
I’ve got this feeling what you call a PDA (?) is probably just a minarchist state – if you had any sense, that’s what it would be. But to ignore that and answer your question, reposting myself from another thread, what I mean by legitimate government is this:
Note this bit: … and their vote should be restricted to conferring a mandate to uphold freedom, not extended to a mandate to deny it
The financing of this government is voluntary, not taxation. What holds a government to the mandate of freedom, a non-aggressor, is a constitution, such as the constitution for New Freeland (try actually reading it):
http://www.freeradical.co.nz/content/constitution/index.php
And yes, when the state goes beyond that mandate, then revolution is proper – I’m sure you know Thomas Jefferson’s quotation after Shay’s rebellion:
‘God forbid we should ever be twenty years without such a rebellion. What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take up arms. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.'”
According to this it is self-evidently obvious all of our western democratic states are way, way beyond their mandate, and we are well past the time for a Second Declaration of Independence – here it is:
http://www.solopassion.com/node/7231
Quote:
How can I be more specific than this. There is still a necessity for government to fulfill the mandate of my first quotation, including protecting property rights, and IP: the alternative is lawlessness and gang rule.
Now, speaking of unanswered questions, I have asked twice now, but still no one has answered for me, how do two ‘voluntaryists’ enforce contract with each other?
[By the way, unrelated to anything on this thread or any other, did anybody here ever use to follow the blog of a US libertarian called Claire Woolfe? She’s been offline now for about two years.]
Published: January 27, 2010 4:36 PM
Mark Hubbard
Jay, for the reasons given on SOLO I do not hold with the scarcity argument. It is ‘after the event’, the IP has already been created.
Other than that, your ‘action’ argument is splitting definitional hairs which at this stage I’m not interested in.
Published: January 27, 2010 4:43 PM
Jay Lakner
Mark Hubbard wrote:
“how do two ‘voluntaryists’ enforce contract with each other?”
In an anarchy, each one would likely be members of a PDA. If one of them breaks contract, the other consults their PDA who will act on the matter. A possible solution could be the following:
The PDA will contact the PDA of the offender and they will sort it out. The case may need to go to an arbiter to make a decision. The arbiter, of course, is a private arbitration firm whom the two PDAs have agreed to abide by the decision of.
It might not be much different than the current system except that both the police and the courts are private businesses rather than a state-run monopolies.
I am not the best one to explain all this though. There is plenty of literature on the subject on this very site. (The Private Production of Defense is one book I know of) Have a look around and read up on it.
Published: January 27, 2010 4:51 PM
Michael A. Clem
Of course the problem in an anarchist society is that you’ve done away with the rule of law, and hence, law courts (have you?)
Not true–anarchism simply does away with government courts and legislation. Many blog posts and arguments have been presented that talk about law and legal systems in anarchism, with reference to common law, customary law, and polycentric law. I believe that Stephan himself has written some material on the subject.
Published: January 27, 2010 4:55 PM
Mark Hubbard
The PDA sounds like a bureaucratic nightmare!
Why not just use a properly mandated minarchist government as I have posted on above?
Published: January 27, 2010 4:56 PM
Michael A. Clem
Arguments against minarchism have been extensive on other posts–do you really want to clutter this thread with tangential or even irrelevant posts? PDA’s, by the way, are only one possible model of an anarchistic legal system, and are, to my mind, the term is simply a shortcut to “the market for law and justice”, since the market can provide a wide variety of solutions and means, and not just one particular business model.
Published: January 27, 2010 5:07 PM
Mark Hubbard
Michael: my post above regarding the mandate of a government in a minarchy. What issues would you have with such?
Published: January 27, 2010 5:08 PM
newson
The PDA sounds like a bureaucratic nightmare!
yep. better the one-world homogeneous legal regime! oh, but the good one, of course, with the nice leaders who read von mises and rand. i have a dream…
Published: January 27, 2010 5:12 PM
mpolzkill
Michael,
Yes he probably really does want to clutter every forum. “Proceeding boldly against evil”, don’t cha know. Got to hand it to you, you guys really are patient with this braying….I don’t know how you do it.
Published: January 27, 2010 5:14 PM
Mark Hubbard
newson, read my post here, actually read it:
http://blog.mises.org/archives/011544.asp#c657548
Now tell me exactly what problem you have with that?
And you do know, as an anarchist in Anarchy Land, with no objective law, and PDA’s, that the time you’re not serving the local militia, by the look of things, you’re going to be wrapped up in an interminable round of committees.
In fact, taking the lead from the argument in this header post, I can hypothesise the argument of Allesnik in Anarchy Land:
‘Oh look, PDA John has filed this suite against PDA Amy, but there’s a counterclaim from PDA Tom, pending the suite against PDA Elizabeth, what, John’s just been shot by Tom’s militia.
Jeez, this is all so complex, I think we ought’a chuck this whole PDA nightmare out and get back to a sensible minarchy, bounded by a mandate of freedom.’
Published: January 27, 2010 5:21 PM
Jay Lakner
Mark Hubbard wrote:
“Jay, for the reasons given on SOLO I do not hold with the scarcity argument. It is ‘after the event’, the IP has already been created.”
How do I explain this to you?
“Scarcity” is the condition which decides what can and cannot be considered to be property in the first place.
It is not “after the fact”. Scarcity is a fundamental attribute of tangible materials.
When you say “the IP has already been created”, what you are really saying is that a possible way in which tangible materials can be arranged has been discovered.
Now, how do we decide if this “possible arrangement” should be considered property or not?
We need to look at man’s freedom of action.
If it was an orange then there would be no question. One man eating that orange prevents all others eating it. Eating the orange therefore negatively interferes with the actions of other men … it deprives them of the chance of eating that orange. Therefore, in order to allow peaceful cooperation and freedom of action, we would need to consider that orange to be a form of property.
But this is not a tangible good that we are dealing with. We are dealing with a possible arrangement that tangible goods can take. Does one man configuring their tangible materials into this possible arrangement interfere with the ability of other men to configure their tangible materials into that possible arrangement? No. The freedom of action of other men has not been hindered one single bit. Therefore ideas and patterns do not need to be considered a form of “property”.
Remember, it was you that said “property rights are a-priori to freedom being had”.
“Other than that, your ‘action’ argument is splitting definitional hairs which at this stage I’m not interested in.”
It’s not an “action argument”. I am working from Ayn Rand’s own premises and trying to conclude whether patterns and ideas can be considered property or not. It’s called inductive reasoning. Your reaction to all of it (including Bala’s reasoning) demonstrates that you don’t yet understand the fundamentals of Objectivism. You seem to agree with many of their conclusions but you don’t understand the axioms and the chain of reasoning that lead to those conclusions. If you understood this, you would realise the importance of what I’m doing in that thread. I have not even revealed the argument against IP in that thread yet – we haven’t gotten to it yet. Care to answer my questions in that thread and hurry the process along a bit?
Published: January 27, 2010 5:24 PM
Michael A. Clem
Seriously? Really, this has been covered extensively, and with an Objectivist arguing the point, as well.
A government, even a minarchist government limited exclusively to the protection of rights (no public education, welfare, government healthcare and other such nonsense), would still require a monopoly on such protection of rights, and thus would require involuntary payments (taxation) to support the system. Without such a monopoly, I fail to see how it could be considered a “government”, without a broad reinterpretation of the term.
Monopolies in an industry and involuntary taxation call for the initiation of force, thus making even the minarchist government a protection racket of sorts–violating rights in order to protect rights.
Secondary arguments include such things as the corruption and abuse of power, due to lack of competition, and the flawed concept that there must be some “Final Authority” on all matters legal, which is just another way of saying that some person or persons have an absolute authority over others.
This abuse of power extends not only to the misapplication of law by law enforcement agents, but also to the creation of the laws themselves. It is my contention that proper and just laws are discovered, as it was in common law, and not legislated.
Even if the Objectivists manage to discover truly objective principles to base Objective laws upon (a dubious prospect at this point in time), such laws must win out on the marketplace, not be imposed upon by coercion.
Published: January 27, 2010 5:26 PM
Jay Lakner
Mark Hubbard wrote:
“The PDA sounds like a bureaucratic nightmare!”
Actually, it doesn’t. Remember, there would be many PDAs competing for customers. Highly inefficient PDAs would not get customers and go bankrupt. It is in the PDA’s best interest to solve problems as quickly and efficiently as possible.
Protection is a form of insurance. It stands to reason that it will be the big insurance companies that become the leading PDAs. Business will most likely go along similar lines to how insurance companies deal with each other at present. The process will be much quicker and cheaper than the current police/courts system as it is in everyone’s best interest to clear up conflicts as quickly as possible.
Once again, I am not the best person to be explaining all this. Find some books on the private production of defense and do some reading. They will answer all your questions. If you find problems and contradictions during your personal research, only then come on here an voice them.
Published: January 27, 2010 5:37 PM
mpolzkill
Mr. Libertarian here, Mr. Free-Markets. Always the same song from everyone who can’t understand how markets work. You need libertarian kindergarden, Hubbard, but your ego probably won’t allow it. Try reading “I Pencil”. And try to find the proper forum for whatever question you have.
Published: January 27, 2010 5:47 PM
Russ
Mark Hubbard wrote:
“Russ wrote: “Your post seem to indicate that your idea of IP is part utilitarian (we won’t have the IP we need/want without it).”
No Russ. Yes, that will happen, but I work solely on the principle that IP is property, and there will be no freedom possible, where there are no property rights, or where same have been destroyed.”
Saying that we need IP because without it we won’t have freedom is still a utilitarian argument.
I agree that property rights are needed for freedom. So does everybody else here, AFAICT. Who here is opposed to *all* property rights? Nobody that I know of. Some of us just don’t believe that patterns or ideas qualify as property.
So you work from the principle that IP is property? How do you justify that? Causality isn’t enough; property does not obviously follow from causality, so harping about causality is just a non sequitur. And freedom and physical property can still exist without IP, so that idea doesn’t work. Do you expect people to simply accept IP as an axiom?
“And I see many arguments against IP here made on the ground that the abolishment of IP would lead to constant innovation and the advancement of man – I call it the Marxist Fantasist Anarchist Gang.”
Yes, some of us use utilitarian arguments. But we aren’t Objectivists.
Published: January 27, 2010 6:36 PM
newson
mark hubbard says:
“The financing of this government is voluntary, not taxation…”
…and then has the gall to call anarchists utopian dreamers!
Published: January 27, 2010 8:27 PM
Peter
I work solely on the principle that IP is property, and there will be no freedom possible, where there are no property rights, or where same have been destroyed.
But not just _any_ property. Once upon a time, certain people were regarded as property. The world is better off not having that “property”, don’t you agree?
Published: January 28, 2010 12:52 AM
Mark Hubbard
So owning my IP is the same as owning a black slave?
Jeez. As I said, fantasist. Not only absurd, but if I didn’t have such a thick skin, that was probably offensive.
By the way, lack of IP turns the creator into a slave. The creator has to take on the whole cost of production, only to see this squandered as every second-hander gets to take the benefits.
Don’t you agree Peter?
Published: January 28, 2010 2:41 AM
newson
creativity in finding ways to get paid for creativity, now that’s an idea.
if the “creator” has so little nous to turn this enormous latent ability into fame, dollars, peer recognition, altruism (randian-baiting), or to engage someone who can, why should the taxpayers get slugged?
Published: January 28, 2010 3:15 AM
Peter Surda
Dear Stephan,
I did not mean to imply that you have a hidden agenda or are not being honest. I apologise if it sounded that way. However, in my humble opinion, some of your arguments have holes in it. That does not necessarily mean that the conclusions are incorrect (they probably aren’t), but it gives the IP proponents ammunition and shifts the focus of the argument into areas that are, in my opinion, irrelevant.
Published: January 28, 2010 3:37 AM
Peter Surda
Dear Jay,
> JK Rowling would co-own everything I do that has
> any link to the novel.
Actually, that is not even the final result. In the next causality iteration, Harry Potter is a “ripoff” of Ender’s Game (which predates HP by some 10 years), so, according to the causality theory, the money should go to Card and not to Rowling. There’s no obvious way to stop the causality, infinite iterations would cause a web of links that is impossible to follow.
Published: January 28, 2010 3:43 AM
Peter Surda
Dear Mark,
> Jay, the first part of your post is an absurdity,
Yet, it is the logical conclusion of your claims.
Published: January 28, 2010 3:46 AM
Peter Surda
Dear Mark,
> If freedom is the absence of compulsion, then a
> free society must have laws ….
But why do these laws need to be provided by a monopolist?
> It should be chosen and financed by the citizens …
So what if they choose a different provider? Either the “state” can’t deny this new provider from offering services too, and then it wouldn’t be a state but a PDA (Private Defence Agency). If it denies, it’s an agressor and contradicts the definition.
Published: January 28, 2010 4:16 AM
Peter
So owning my IP is the same as owning a black slave?
The slave owner might have said “so owning my slave is the same as owning an idea?” The first thing a responder has to question is: what do you mean “your” slave? Phrasing it that way assumes your side of the argument. He’s not “your slave” at all; he’s a free person; people aren’t legitimate property, and you only “own” him, so-called, because you coerce him. Which is wrong.
Yes; same argument applies to “your IP”. (Stop coercing people, Mark!)
By the way, lack of IP turns the creator into a slave. The creator has to take on the whole cost of production, only to see this squandered as every second-hander gets to take the benefits.
Don’t you agree Peter?
No, not at all. Why does the creator “have to” do that? Who’s got a gun to his head?
Published: January 28, 2010 4:23 AM
Mark Hubbard
Who’s got a gun to his head?
The first consumer, for example in the case of copyright, to buy the physical book, scan it, upload to bittorrent.
That’s a gun to the head of the writer. Forget objectivism, forget anarchism, forget all the isms: people who don’t understand that are missing something basic in their make-ups: what our grandfathers would have called moral fibre.
Published: January 28, 2010 1:04 PM
mpolzkill
Hubbard, words strings of words aren’t random sounds that vaguely mean “good” or “bad”. “Gun to the head” means that there will be a bullet in your head (or something equally severe) if you don’t do what you are told, literally. No one could be this incredibly idiotic and still get on a computer and type. You are a crass and (fortunately) totally incompetent propagandist. “You are awarded no points, and may god have mercy on your soul.”
Published: January 28, 2010 1:21 PM
mpolzkill
“Words, AND strings of words”
Published: January 28, 2010 1:24 PM
Mark Hubbard
“Words, AND strings of words”
Yeah, I know, the Post-Modern Anarchist gang rules, language has no meaning for in Anarchy Land there is neither ownership nor meaning … the position of those madmen, Lacan, Foucault and Derrida.
It’s rot, of course, mossykill, the fact we are communicating here so well proves it. What’s it like living with such a nihilistic view of existence?
Published: January 28, 2010 1:38 PM
mpolzkill
I stand corrected.
Published: January 28, 2010 1:47 PM
Jay Lakner
Mark Hubbard,
It is one thing if you think copying is immoral. But that does not mean that we should necessarily impose laws against it.
Most people think lying is immoral. I assume you do too. So why are you not asking for laws to ban lying?
It’s exactly this sort of thinking that resulted in the anti-drug laws, blackmail laws, minimum wage laws, anti-prostitution laws, anti-gambling laws, and all other manner of illogical restrictions on the freedom of the individual.
Every law comes under the following three categories:
1. Laws that prohibit actions that violate the right to life.
2. Laws that, due to their prohibition of actions, violate the right to life.
3. Nonsensical laws.
Category 1 laws are the sort of laws we want. They lead to the peaceful cooperation of society.
Category 2 laws are the sort of laws we need to prevent. They are an attack on the freedom of individuals.
Category 3 can be ignored. It is reserved for laws that are internally contradictory, have no effect, or are simply nonsensical. Obviously we have no need for laws of this kind.
To determine whether a law is category 1 or category 2, we need to logically demonstrate why the prohibited action violates the right to life.
It has been shown many times that destruction of property and theft are violations of an individual’s right to life. But it has never been demonstrated that copying is a violation of a person’s right to life.
In fact, using Objectivist premises, it can be demonstrated that PREVENTING copying is a violation of another’s right to life (both myself and Bala did this on that SOLO site). Hence, laws against copying are category 2 laws.
Therefore, however immoral you or anyone else may personally believe it to be, society should not enact laws to prevent copying.
Published: January 28, 2010 2:07 PM
Mark Hubbard
You don’t speak to the issue Jay. As you know, there is a much more fundamental issue here, being, that the anti-IP lobby are seeking to destroy the notion of property. Nothing less.
A freedom movement has nowhere to go from that point.
Published: January 28, 2010 2:20 PM
Jay Lakner
Mark Hubbard,
I stand corrected. You’ve clearly shown that you don’t believe lying to be immoral. My bad.
Published: January 28, 2010 2:34 PM
Mark Hubbard
And now you turn as slippery as Kinsella. You seem to want to imply from time to time you have no real agenda – nor philosophy – but an agenda you surely do.
Yes, lying is immoral, as is file sharing, as is advocacy of no-IP.
Published: January 28, 2010 2:54 PM
Jay Lakner
Mark Hubbard wrote:
“As you know, there is a much more fundamental issue here, being, that the anti-IP lobby are seeking to destroy the notion of property. Nothing less.”
This is a lie. And you know it. You know very well that the anti-IP lobby are not seeking to destroy the notion of property. The anti-IP lobby are simply questioning the legitimacy of patterns and ideas as a form of property. But everyone here in the anti-IP camp are in full support of property. You know that.
You make a statement you know not to be true and then say you believe lying to be immoral.
Own up to the fact that the anti-IP crowd are not the group of immoral thieves you first thought them to be. They are making logical arguments.
I don’t make wild accusations of the pro-IP camp being in some conspiracy to promote facism. I have sort to understand their opinion and I respect their attempts to logically demonstrate it. I disagree with them, but I understand how and why they came to their conclusions.
It would be far more intellectually constructive for all parties if you shared the same attitude.
p.s. The lie comment was actually an attempt at humor. I guess it failed miserably.
p.p.s. Yes I do have an agenda. No it is not world domination. I am simply seeking the truth.
Published: January 28, 2010 3:22 PM
antiip
@Mark Hubbard:
Please think about the following situation:
Person P lives alone on an island (island 1). There are some objects on this island. Person P owns them.
These are:
A piece of paper
A pencil
some wood
some metal
some tools
Person X lives on another island (island 2), on which there live many more people. There also does exist some kind of minarchist government (including a patent office and laws regulating copyright).
Person X writes a novel and invents a new gimmick, which consists of metal and wood. He gets a patent for the from the patent office.
What about person P now?
1) Did he lose some rights to his property because person X got a patent on island 2? Isn’t he allowed to combine the objects he has on any possible and imaginable way anymore?
2) Isn’t he allowed anymore to write anything down on his piece of paper that he wants?
3) Do you really think that property rights are not absolute, even if someone lived on an island alone?
Please answer those questions. Please do not try to circumvent them. Lying is not moral.
Published: January 29, 2010 6:57 AM