StephanKinsella.com

This is funny (NOGap).

A recent MacBreak Weekly podcast had a very cool recommendation: The Forbidden City: Beyond Space and Time, and I learned about a nice iPhone/mobile phone app, Shoot It!, in a recent GeekBrief episode.

Forbidden City is an application for all platforms, providing an amazing “3D Virtual World of the Forbidden City in Beijing.” China and IBM apparently spent $2M developing this free application.

Shoot It! allows you to create a postcard from your iPhone from any picture in your phone, and have it mailed to whoever you want, for a modest fee. I plan to use this from now on, on vacation, instead of buying a postcard, addressing, buying a stamp, and finding a post office. The only drawback that I see is they don’t include a way to upload a picture from your computer to your account — you have to use your phone. That’s stupid. If I have a nice pic I took with a camera on vacation, I have to first put it on the computer, then sync with the iphone to get it on there, or email it to myself and save the email attachment to my iPhone photo library, and then use Shoot It!. I can’t see why they won’t let you do it from the website interface as well; but this will probably be fixed and in any event is just a minor annoyance.

[Update: see various biographical pieces on my publications page, including Alan D. Bergman, Adopting Liberty: The Stephan Kinsella Story (2025).]

Gary North delivered a wonderful lecture last month during Mises University 2009 (the same day I gave my own speech), “Calling and Career as an Austrian School Scholar” (a shorter version of this was in the LRC podcast 127. Gary North: Making a Difference, Making a Living, which is also excellent).  North talks calling and occupation. Calling is “the most important thing you can do with your life in which you are most difficult to replace.” Occupation is “how you put food on the table.” Occasionally they are the same, but often not; but there is no reason not to arrange your life so as to have both. He talks about how to combine them or at least have both in your life, and centers his talk around some examples, notably Burt Blumert and William Volker.

Also see Paul Graham’s “What You’ll Wish You’d Known (“I wrote this talk for a high school. I never actually gave it, because the school authorities vetoed the plan to invite me.”)

Update: see also this video by Scott Galloway. A friend said: “I love his takes on “balance” and “follow your passion” being bullshit, which, while I think most people my age know it, few seem to explicitly say it and teach it to young people.”

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Chomsky on Libertarianism and Its Meaning from Leiter blog.

Libertarian Papers was launched in late January, 2009. The Editorial Board and I are extremely pleased with our progress to date. At this point it is appropriate to briefly assess our first half-year.

First, we were lucky to acquire such an outstanding Editorial Board, with world-class scholars working in the libertarian tradition–a veritable who’s who of Austro-libertarianism. Second, with the generous support of the Mises Institute, we were able to design this handsome and useful website in a short time.

The journal is already included in a number of leading indexing/abstracting services, including Ulrich’s Periodicals Directory; Cabell’s Directory of Publishing Opportunities; International Political Science Abstracts; The Philosopher’s Index; Mises Institute Literature Index; Directory of Open Access Journals; HeinOnline; EBSCOhost; and Gale/Cengage. And we have already established the O.P. Alford III Prize in Libertarian Scholarship, a $1000 prize awarded annually to the best article published in Libertarian Papers in the preceding calendar year.

Just as we hoped, the online format of Libertarian Papers has given us the flexibility, speed, and accessibility readers–and authors–love. I am personally most proud of the quality and variety of the 35 articles we have published to date, which include submissions from young and independent scholars–as well as from established libertarian intellectuals such as Narveson, Higgs, van Dun, Salin, Kukathas, Block, and Machan. And, astoundingly, in our first half year we have published five previously unpublished (or, in the case of Leoni, obscure and unavailable) works by towering thinkers such as Mises, Rothbard, Bruno Leoni, and Adolf Reinach.

Further, although we are an online journal, we have produced our first print archive covering the first 17 articles; a second print archive is in the works. And incredibly, we have recruited an army of libertarian volunteers to turn many of our articles into audio versions for our free podcast, and to help copyedit articles. These (mostly young/student) libertarians are amazing, and give reason for optimism about the future in these dark times.

My personal gratitude, therefore, to our Editorial Board, outside referees, volunteer podcast narrators and copyeditors, the Mises Institute, authors, readers, and other supporters.

Stay tuned for things to come! As always, comments and suggestions–and submissions–are welcome.

Yours in liberty, Stephan Kinsella

[Cross-posted at LP and Mises blog]

Update: See also Adolf Reinach, J. N. Mohanty, “Kant’s Interpretation of Hume’s Problem,” The Southwestern Journal of Philosophy, Vol. 7, No. 2, HUME ISSUE (SUMMER, 1976), pp. 161-188 (twitter: “Reinach wrote an essay that explains Hume as coherent with rationalism in the same way Mises was, a non-Kantian (i.e. non-transcendental) rationalist.”)

Libertarian Papers, Vol. 1 (2009), Art. No. 35: “On The Concept of Causality in the Criminal Law,” by Adolf Reinach.

Abstract: Adolf Reinach (1883–1917) was a German phenomenologist and legal theorist. This is a previously-unpublished translation (by Dr. Berit Brogaard) of Reinach’s 1905 dissertation for his PhD earned under Theodor Lipps at the University of Munich, which was published as “Über den Ursachenbegriff im geltenden Strafrecht” (Leipzig: J. A. Barth 1905), and reprinted in Adolf Reinach, Sämtliche Werke. Textkritische Ausgabe [Collected Works: Critical Edition], Karl Schuhmann & Barry Smith, eds., 2 vols. (Munich: Philosophia Verlag, 1989), pp. 1–43.

For further information on Reinach, see Karl Schumann & Barry Smith, “Adolf Reinach: An Intellectual Biography,” in K. Mulligan, ed., Speech Act and Sachverhalt: Reinach and the Foundations of Realist Phenomenology (Dordrecht/Boston/Lancaster: Nijhoff, 1987), pp. 1–27; and “Papers on Adolf Reinach.” In addition, Reinach’s thought was examined in a symposium on “Austrian Law and Economics: The Contributions of Reinach and Rothbard” held at the Ludwig von Mises Institute on March 29–30, 2001, papers resulting from which were published in Vol. 7, no. 4 (Winter 2004) of the Quarterly Journal of Austrian Economics.

[Mises cross-post]

In addition to various articles, speaking engagements, and blogposts, plus editing my own websites StephanKinsella.com and KinsellaLaw.com, plus HansHoppe.com, WalterBlock.com, and the Property and Freedom Society’s website, not to mention Libertarian Papers, which I established earlier this year, I just published Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe (Mises Institute, 2009; co-edited with Jörg Guido Hülsmann), which includes my chapter “What Libertarianism Is.” I also expect to publish next year an integrated collection of articles, entitled The Ethics of Action: Fundamentals of Libertarian Legal Theory.

On the legal front, in addition to continuing to edit the Oxford University Press legal treatises Trademark Practice and Forms, World Online Business Law, and Digest of Commercial Laws of the World, each of which has multiple releases (updates) each year, I am also working with my co-author Noah Rubins to publish next year the second edition of our book International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford University Press, forthcoming 2010; with Noah Rubins). I am also working with Greg Rome on Louisiana Civil Law Dictionary ([publisher not determined], forthcoming 2010).

Whew!

As noted on Patently-O, the Supreme Court is set to address a question about the patentability of certain “processes”–whether the process has to be “tied” to a particular machine or apparatus, or transform a particular article into a different state or thing (“machine-or-transformation” test), to be eligible for patenting.

Now, I append below a summary of the various positions taken by various briefs filed in this case. The recommendations are all over the place. Examples like this should be considered by those libertarians who advocate IP and who think that “the courts” could just figure out the gray areas easily. They do not seem to realize this is purely artificial law, giving rise to insoluble questions–when the goal of the court is not to do justice, but to construe a decree of a legislature, you cannot expect just, or predictable, results. (For more on this, see my Legislation and the Discovery of Law in a Free Society, pp. 151 et seq.) As Kafka wrote, “Justice must stand quite still, or else the scales will waver and a just verdict will become impossible.”

• Yahoo (Bilski – Yahoo! Amicus Brief (S.Ct) (as filed) (8-6-09).pdf) The focus on physicality does not make sense in today’s technology.
• IBM (08-964 IBM.pdf) The proper test looks for a “technological contribution.”
• Regulatory Data Corp ( 08-964 Regulatory Datacorp et al..pdf) Brief by John Duffy focuses directly on the historical importance of the statutory test. “The government is now asking this Court to impose a formalistic restriction on definition of “process” that would create an unprecedented and uncertain judicial limitation on patentable subject matter. This Court should reject that invitation just as it did more than a third of a century ago, when the government unsuccessfully advanced the very same argument. See Gottschalk v. Benson, 409 U.S. 63, 71 (1972).”
• Accenture (08-964 tsac Accenture and Pitney Bowes, Inc.pdf) Machine or transformation test is not a reliable indicator of anything relevant.
  
• Austin IP Law Ass’n ( 08-964 Austin Intellectual Property Law Association.pdf) The patent statute explicitly defines process quite broadly in Section 100(b). The Federal Circuit’s version of “process” in 35 U.S.C. § 101 is far narrower than the broad definition of “process” in 35 U.S.C. § 100(b) (2008).
• Double Rock and other IP entities (08-964tsacdoublerockcorporation.pdf) The Federal Circuit test conflicts with Supreme Court precedent and Congressional intent.
• Law Professors [Lemley et al.] (08-964ac20lawandbusinessprofessors.pdf) The distinction on patentable subject matter should be based on the distinction between applied and abstract inventions. Bilski’s claims fail this test.
• Chakrabarty (08-964 Chakrabarty.pdf) Brief by Scott Kieff and Richard Epstein argue that patent rights operate “like a beacon in the dark” to start conversations between innovative entities and potential users.
• Franklin Pierce Law Center (Bilski.pdf) Court should adopt the “useful, concrete, and tangible result” test.
• TeleCommunication Systems (08-964nsactelecommunicationsystemsinc.pdf) Subject matter eligibility should be predictably broad.
• BIO, AdvaMed, WARF and U of Calif (08-964 tsac Biotechnology Industry Organization et al..pdf) Any decision should be clear that biotechnology is patentable.
• Conejo Valley Bar Ass’n (08-964.ac.Conejo Valley Bar Association.pdf) The substantive elements of the patent act (102, 103, and 112) do all the necessary work.
• Novartis (08-964tsacNovartisCorporation.pdf) A process of diagnosis should be patentable.
• Dr. McDonough (08-964_PetitionerAmCuTMcDounough.pdf) “American innovation is not confined to Industrial Age mousetraps and other cleverly contrived gadgets. The modern economic agent is more likely to encounter innovation today in the services they consume than in the contraptions they use. The present amicus curiae suggests that the decision of the Federal Circuit in this case is an attempt to apply an Industrial Age standard to address a perceived Services Age problem, a problem that the present amicus curiae suggests does not exist.”
• State of Oregon (08-964_NeutralAmCuOregon.pdf) (The Patent Hawk filed this brief on behalf of all Oregonians – although apparently without any official state approval) The brief makes an important point: Although Section 101 comes first in the statute, it does not make sense to use it as a screening tool at the PTO. Rather, the PTO’s skills are in comparisons of prior art and ensuring that the elements of Section 112 have been satisfied.
• Chicago IP Law Ass’n (08-964 ac Intellectual Property Association of Chicago.pdf) There are strong parallels here with KSR; CAFC rule is too rigid.
• Borland (Amicus Curiae Brief (Borland Software Corporation).pdf) The CAFC test does not properly follow Supreme Court precedent.
• Time Systems (08-964 ac On Time Systems.pdf) Some abstract ideas should be patentable.
• Monogram BioSciences and Genomic Health (08-964 ac Monogram Biosciences Inc.pdf) Patentable processes can be non-physical.
• Sachs and Brownstone (08-964 ac Robert R. Sachs.pdf) The CAFC test is limits the patenting of software, and a bad result.
• Boston Patent Law Association (08-964tsacbostonpatentlaw.pdf) A broad scope of patentable subject matter better preserves the health of an innovative culture; many landmark inventions fail the Federal Circuit’s Bilski test.
• Georgia Biomedical Partnership, Inc. (08-964 Georgia Biomedical Partnership Inc.pdf) The Supreme Court has consistently refused to offer a “rigid” test.
• Dolby Labs (08-964 Dolby Laboratories et al..pdf) The important thing is to settle expectations.
• Teles AG ( 08-964 Teles AG.pdf) Subject matter eligibility should be “dynamic.” “Further, the global nature of today’s economy strongly recommends that the United States patent system be harmonized with robust patent systems of other nations wherever possible.”
• Medtronic (08-964 Medtronic.pdf) Provides specific examples of medical innovations that may be unpatentable under the Federal Circuit test
• Houston IPLA (08-964 Houston IP Law Assoc..pdf) The test negatively impacts Dell’s “build-to-order” patent (5,963,743) ; AT&T’s linear programming patent (4,744,028); and Sperry Corporation’s LZW compression patent (4,558,302).
• Intellectual Property Owners (08-964acintellectualproperty.pdf) Machine or transformation test is not the only test; In its transformation test for signals, the CAFC “unduly focuses on the contents of the data . . . rather than the manner in which those signals are generated;” a general purpose computer should be considered a “particular machine.”
• AIPLA ( 08-964 American Intellectual Property Law Association.pdf) A new exclusionary test is not needed.
• Houston IPLA (08-964 Houston IP Law Assoc..pdf) The test negatively impacts Dell’s “build-to-order” patent (5,963,743) ; AT&T’s linear programming patent (4,744,028); and Sperry Corporation’s LZW compression patent (4,558,302).
• Armanta, Asentinel, Cybersource, and Hooked Wireless (08-964 Entrepreneurial Software Companies.pdf) Questions of patentability are causing software companies to lose value.
• Mr. Meiers ( 08-964 Raymond C. Meiers.pdf) A patentable invention “applies manifestations of nature and achieves a useful result.” This is the tripartite system.
• Univ. South Florida ( 08-964 University of South Florida.pdf)
• Awaken IP ( 08-964 AwakenIP.pdf) The CAFC test is unworkable and is as bad as the vague idea/expression dichotomy of copyright.
• BSA ( 08-964 Business Software Alliance.pdf) Section 101 has been consistently and correctly interpreted to cover software innovations.
• PhRMA, etc. ( 08-964 PhRMA et al..pdf) Medical processes should be patentable.”
• Caris Diagnostics ( 08-964 Caris Diagnostics, Inc.pdf) Diagnostic method patents are important and have been called into question by Bilski.
• AIPPI (TooBig) A flexible test is better, and TRIPS requires a flexible standard.
• FICPI ( 08-964 FICPI.pdf) “The § 101 analysis should focus on the section’s substantive utilitarian requirement, rather than retrospectively attempting to rigidly define the categories of patentable subject matter without the foresight of the particular form technological innovations may take in the future.

[Against Monopoly crosspost; C4SIF]

From Jorge Valin:

• El contrato Yellow Dog: ¡Volvámoslo a instaurar! por Walter Block.
• Ciudadanos armados significan una ciudad segura por John R. Lott, Jr.
• El significado de la seguridad por Llewellyn H. Rockwell, Jr.
• El mercado, y no los sindicatos, nos han provisto de tiempo libre por Thomas J. DiLorenzo.
• Una constitución atea para Europa por Robert Sirico.
• ¿Qué es la democracia? por Jude Blanchette.
• Un Futuro de Paz y Capitalismo por Murray N. Rothbard.
• Nicolás Oresme y el primer tratado monetario por Jörg Guido Hülsmann.
• Manual básico del empleo y desempleo por Walter Block.
• El Estado, en pocas palabras por Brad Edmonds.

For more Spanish translations of libertarian articles, see WalterBlock.com, HansHoppe.com, StephanKinsella.com.

Moral Panics and the Copyright Wars, by copyright lawyer William Patry (see his related blog), is forthcoming next month. Currently Senior Copyright Counsel at Google, Inc., Patry had a well-known copyright law blog, which he terminated last year, because he found the current state of copyright law too depressing to blog abou (as I posted about previously). So one might hope for a decent take on the copyright issue, especially given this comment on Amazon by the heroic IP foe Mike Masnick of TechDirt:

Patry’s insight into copyright law itself has long been established, but with this book he takes us deep into how the debate surrounding copyright law has been twisted and distorted. This is a must-read for anyone looking to understand the real issues in the copyright debate, both from the business-model and policy perspectives.

Alas, from the summary alone one can tell it will be a disappointment:

A centrist and believer in appropriately balanced copyright laws, Patry concludes that calls for strong copyright laws, just like calls for weak copyright laws, miss the point entirely: the only laws we need are effective laws, laws that further the purpose of encouraging the creation of new works and learning. Our current regime, unfortunately, creates too many bad incentives, leading to bad conduct. Just as President Obama has called for re-tooling and re-imagining the auto industry, Patry calls for a remaking of our copyright laws so that they may once again be respected.

Terrible. Sure, he’s right that, as the Amazon description indicates, “copyright is a utilitarian government program–not a property or moral right.” But why does he think that copyright is not a natural or moral right? Because the Supreme Court has said so! As he wrote here, “In the United States, copyright is not a natural right, since the Supreme Court has said so twice, first in 1834 in Wheaton v. Peters, and then in 1932 in Fox Film Corp. v. Doyal”; see criticism here. Just another legal positivist. So he of course would think that, “As a government program, copyright must be regulated and held accountable to ensure it is serving its public purpose.” Whatever.

Update: I got the book (the book’s publisher, Oxford, is also mine and so sent me a copy gratis). It looks like a carefully done and well written work. It looks like it provides lots of ammo for our side–pointing out problems, excesses, abuses, fallacious pro-copyright arguments, and showing how it does not accomplish the goals set.

But it is a bit meandering, not grounded in any coherent or fundamental principles; it accepts too many positivist and statist bromides; and worst, it accepts the basic legitimacy of the state’s encouraging innovation by such tricks. On the other hand, it at least argues that the test should be whether it does create the extra wealth it claims to, and that the burden is on those who advocate copyright; so in a way it leaves the door open to total abolition (I think; haven’t read the whole thing).

[Against Monopoly cross-post]

Update: see my comment on Mises Blog here:

William Patry:

Stephan, I had tried to post on your previous review of the book on the other blog you post on, but you rejected it; so much for intelligent and civil comments I guess. I hope you will post this.

Bill, as discussed privately with you, I didn’t block you (and indeed don’t have such authority on the Against Monopoly blog which had the post you refer to. I do not think David Levine, proprietor of that site, would block your comment either. There must be a technical problem; my apologies for the impression this apparently made on you regarding my posture toward you and your book.

Let me make some preliminary comments before replying to some of your particular points. First, as I noted, your book looks to be a “carefully done and well written work. It looks like it provides lots of ammo for our side–pointing out problems, excesses, abuses, fallacious pro-copyright arguments, and showing how it does not accomplish the goals set.”

For this I am grateful and hopeful, and this is the reason it is on my reading shelf right now. I hope to extract useful arguments from it.

(By the way, I can understand your having no use for my own IP work which is based on libertarian principles you probably don’t share, but I am a bit surprised you did not so much as cite any of Levine and Boldrin’s work which is the seminal work in this field on utilitarian and practical aspects of IP; the online version was online as of Jan. 2008 and preliminary versions years before that.)

Second, I was clear that I had not read your book yet, and indeed was initially hopeful based on the endorsement of Mike Masnick who is himself heroic and very principled, clear-headed, and even radical on the IP issue. But, as I noted, it appeared from quotes from the book that your case is weaker than it could be due to acceptance of too many flawed mainstream assumptions. Again, I have not completed your book and hope to be proven wrong.

The main problem with copyright is a principled one. Copyright violates property rights. It is really that simple. Further, it is nothing but a grant of privilege from a criminal state–the handing out of favors by the mafia in charge to preferred recipients at the expense of others. Third, the utilitarian, wealth-maximizing case made for copyright is flawed ethically and economically; it is impossible to justify copyright on utilitarian grounds, no matter what the evidence. Finally, as a decidedly secondary or maybe even tertiary mark against copyright, one can note that–even if we turn a blind eye to the violation of property rights, the criminality of the state and all state legislation, to the moral and other problems with the wealth-maximization basis for copyright–the advocates of copyright have not shown that the benefit outweights the cost.

Now, I am all in favor of incrementalism. I don’t mind even focusing on a tertiary issue like this (I do this in my There’s No Such Thing as a Free Patent). I wouldn’t even mind simply using this focus to argue that at the very least the copyright term should be reduced, as I do in a forthcoming article on how to improve the IP system. But in doing so one does not need to grant the validity of their utilitarian case; and one does not need to admit that some copyright term, some copyright law, is obviously needed–even if it’s radically reduced from what we have now. It concedes too much. In fact, if you concede that any copyright law or term at all is legitimate and “needed,” you have lost your case, in my view: because it throws the principled approach out the window; and it grants the validity of the wealth-maximization approach. Once you do this, all bets are off, because there really are methodological problems with utilitarianism. (See Rothbard’s Toward a Reconstruction of Utility and Welfare Economics.) Only a clear, principled approach with awareness of the ethical issues involved and the key fallacies used repeatedly by those pushing IP propaganda can avoid their traps. The only solution is to make it clear that the burden of proof is on them. Now the truth is they can never satisfy it–they can never show that there is some net benefit to society. All methods of estimating this are systematically flawed (value is not cardinal, it is ordinal; and it cannot be interpersonally compared much less measured and summed up in cardinal terms). (And even if they could somehow “show” this, it’s still irrelevant, as it’s still immoral.) But as long as the burden of proof is on them, it doesn’t matter if they can’t prove their case because all the studies happen to be against them, or because any study has inherent flaws.

But back to incrementalism: if someone just avoided the whole issue and said, “look, let’s approach the state’s law on its own terms: even assuming its goals are valid, does it achieve them?”, etc., this is fine. I do the same in my writing. But I never admit their assumptions are correct. I’m just saying even if you accept their utilitarian rationale, where’s the proof? And note that this means that even accepting the wealth-maximization rationale for copyright, the default presumption is no copyright, zero years–unless and until the advocates of copyright can show decisively that a given proposed system would clearly produce a signficant “net gain”. Until they have done so, the default position even for the incrementalist has to be no copyright. If, instead, you say, “well, let’s have a more reasonable system–say, 10 years–one that works; of course we need some copyright system”–if you grant this, even when there is no evidence even for this truncated copyright system, then you have lost because you are admitting that “copyright system X” is justifiable based on intuitions, hunches, and feelings of “reasonableness.” And if you grant this, you have no ground to challenge their view that a 100 year term is “reasonable.”

Further, given that I’m a libertarian–and I’m a libertarian for a reason–of course I cannot help but see any approach to this issue as helpless confused or unprincipled if it is not based on libertarian principles… unless it is very narrow and does not concede ground to the enemy.

So, when you say:

I reject your conclusion that the book “is a bit meandering, not grounded in any coherent or fundamental principles; it accepts too many positivist and statist bromides; and worst, it accepts the basic legitimacy of the state’s encouraging innovation by such tricks.”

What you really mean is that I don’t have the same view of copyright as you do. My views are clear and coherent, you just don’t like them.

Well, true–I don’t like them because they are based on the wrong principles (in my view). Despite your protestations I do not see that your thesis is grounded in fundamental principles–and by this of course I mean normative principles, since you are in fact making a normative criticism, not merely engaging in positive law discourse.

You write,

My view is that copyright in common law countries is entirely positive law and was created in order to further socially useful goals. My view is in fact correct, as a matter of law. There is zero doubt about this.

Actually I disagree with you. It was not created to further “socially useful goals.” In fact, no state law is. Now sure, there is a stated purpose of copyright law. That does not mean it is its real purpose. Likewise, the stated purpose of the “Protect America Act” is, well, to protect America. But of course that is not its real purpose. We must be careful not to conflate the window-dressing the state puts on its laws to obtain the silent acquiescence of the sheeple with the truth. That said, I agree that we can use the stated objectives of legislation rhetorically against the state to try to hold them to the lip service they give to the law.

You don’t like that the law is as it is.

This is correct; and neither do you, apparently–and good for you. You appear to be better than 99% of our IP attorney colleagues. I am very glad you are arguing from an informed position to radically reduce copyright term.

I am perfectly fine with that; dissent and loyal opposition are noble callings, and I am a dissenter and opposition on a number of issues. But you have to be honest and accept that your view is contrary to what the law is.

Of course. I have always accepted the idea that positive law and justified or libertarian law are not the same thing.

Don’t criticize me for accurately stating the current state of affairs.

I am not, in the slightest. My understanding is that you are in favor of having a copyright system. This is a normative position. It goes beyond merely recognizing that we have copyright law. As the blurb for your book states, “Patry concludes that calls for strong copyright laws, just like calls for weak copyright laws, miss the point entirely: the only laws we need are effective laws, laws that further the purpose of encouraging the creation of new works and learning. … Patry calls for a remaking of our copyright laws so that they may once again be respected.”

Now, if this is inaccurate–fine. But if it’s not, you oppose calls to weaken copyright law. Why? It is not justified, even on utilitarian grounds. No one has shown that even a 10 year copyright term generates net wealth. Do you disagree? If not, can you produce the proof or study? And if you can’t, why wouldn’t you agree that the default position is then that we should have no copyright law (and one way to get there is to make it weaker), at least until someone can show that a truncated or minimalist copyright system is justified? Why would you oppose weakening it?

Further, I disagree with your wanting copyright law to “be respected.” Why would anyone want this unless he admitted the basic normative legitimacy of the criminal state and its edicts including copyright legislation? If copyright law in its current form is unjust, as you seem to think it is, one way to reduce this unjustness is to persuade the evil congresscritters who enacted it in the first place to “do the right thing” and adopt a good law–a pipe dream, of course. They are not interested in justice. Anyway, this is one approach–a futile one, in some ways, but I’m glad some of us are obstinate enough to keep fighting anyway. But a second approach would be to urge disrespect for the law and the state. The more people see that the emperor is naked, the less able is the state to trample our rights–yes, in the name of the abomination that is copyright law.

We share a view that copyright should be means tested, and only differ in my view that copyright can in some cases meet such a test.

To my knowledge there is no study demonstrating this (see Yet Another Study Finds Patents Do Not Encourage Innovation). Maybe you do one in your book, but I haven’t found it yet, if so. Maybe you cite one in your book that I’m unaware of. If so, maybe you can point it out here.

Let me reiterate that no disrespect is intended by my (admittedly blunt–but honest and sincere) comments. I do respect your work and your pushing in the right (as I see it) direction, even if I do disagree with you on some aspects of this issue and think your argument could be strengthened by taking into account some of the concerns such as I have pointed out above and in other writing. I look forward to seeing what you produce and what effects your book has, and welcome any further dialogue with you. In particular, I have tried as best I can to concisely set out the essence of the libertarian perspective on IP in The Case Against IP: A Concise Guide. If you are interested in what we think about his and how our very principled, pro-individualism, pro-freedom, pro-property rights, informed-by-sound-economics and informed-by-sober-assessment-of-politics bears on this issue, I urge you to take a look at this, and again, would welcome your feedback and discussion.

***

Addendum: In case you missed it, I had an extended comment about this on my blog, which I reproduce below:

Someone wrote me that my comments on Patry’s book are premature, that the description is misleading and that I will like and agree with most of it. My edited comments:

***

You are right, I haven’t read it. But I saw enough red flags for grave concern.

You say that I might not agree with all of Patry’s book–I don’t have a problem with not agreeing. It’s that the approach most people take is bankrupt. Unless you have clear property rights principles–i.e. are basically a libertarian–there is no way to be very good on this. Only a few utilitarians are good–like Boldrin and Levine. Any honest, intelligent, informed utilitarian would be against copyright, not want to “improve” it.

I realize his book focuses on how copyright holders have twisted the law in their own interest. But look: I am an anarchist. I think the whole system is corrupt. I am not surprised that people “twist” it. That’s part of the system. People who expect it not to be twisted are naive. In fact it’s twisted by virtue of being state law. It’s impossible not to be twisted; it’s impossible for people to ignore incentives to twist it even further. As Mises wrote in Human Action, “No socialist author ever gave a thought to the possibility that the abstract entity which he wants to vest with unlimited power—whether it is called humanity, society, nation, state, or government—could act in a way of which he himself disapproves.”

In my view talk about how the system has been “abused” only serves to reinforce the state propaganda that the state is basically legitimate, that the basic system is “good” but has been corrupted. This is all nonsense. It just serves to keep the state in power and to perpetuate the myth that the system is basically legitimate and fair. It’s not. The state is quite literally just a mafia gang–the only difference being that it is largely perceived (falsely) as legitimate, partly because the people are so stupid and have been bamboozled by state propaganda–so the state cloaks its criminal actions with just enough of a veneer of legitimacy to keep up the pretense, to go on deluding the stupid populace that it’s really “their agent” and there for “their good.” It’s all just a big scheme.

The problem is not that copyright holders have twisted the law. The basic system, even without “ridiculous” twisting, violates individual rights.

You claim that the description on Amazon is misleading, that the book is all about how copyright law is consistently and repeatedly abused. Well, I hope so. I agree that pointing out abuses and excesses of the system is worthwhile. And if he calls for a shorter copyright term (say), that is an improvement, though in doing so he undercuts the principled case against it.

But the blurb does say he’s a centrist. That he is a “believer in appropriately balanced copyright laws”. Unless this is flat out mistaken, I believe it’s impossible for him to have a sound critique–given such a confused, unprincipled view (though yes, he could be good enough to point out bad consequences of the current system, as a reporter).

The blurb says: “Patry concludes that calls for strong copyright laws, just like calls for weak copyright laws, miss the point entirely”

If this is true, he’s against weak copyright law. This is terrible. The copyright law should be weaker. Even someone merely chronicling its abuses should see that this is an obvious response to that abuse.

“the only laws we need are effective laws, laws that further the purpose of encouraging the creation of new works and learning”

This seems to buy into the false notion that utilitarian concerns are what should drive law. It buys into the Constitution as legitimate and sensible. It’s neither.

“Our current regime, unfortunately, creates too many bad incentives, leading to bad conduct.”

If he is, as appears, just a mainstream statist (supporter of the state and our democratic-welfarist-socialist system), such critiques sound hollow. It’s like Bush or Obama talking about saving a million dollars in a pork bill, in the midst of trillion dollar boondoggles. It avoids making a radical critique of the regime per se.

“Patry calls for a remaking of our copyright laws so that they may once again be respected”

I do not want our copyright laws to be respected. I want them to be ridiculed and seen as what they are: illegitimate, arbitrary decrees by a criminal gang, issued at the behest of special interest lobbying groups. I realize that the criminal state survives on the false perception of legitimacy: I want this illusion to be burst. I don’t want the state or its laws to be respected. The only way civilization will advance is to throw off the shackles of its pathetic allegiance to the state–the entity that harms them most. We have a societal case of Stockholm syndrome.

Anyway–I’ll read the book and gladly print a retraction in the happy event that I’m wrong.

The twelfth virtue–and the way the author arrives at it–kind of freaks me out. And it reminds me–a bit–of the hypothetical approach of argumentation ethics and the recognition of the grundnorms as the source of all rights:

Twelve Virtues of Rationality

by Eliezer S. Yudkowsky

The first virtue is curiosity. A burning itch to know is higher than a solemn vow to pursue truth. To feel the burning itch of curiosity requires both that you be ignorant, and that you desire to relinquish your ignorance. If in your heart you believe you already know, or if in your heart you do not wish to know, then your questioning will be purposeless and your skills without direction. Curiosity seeks to annihilate itself; there is no curiosity that does not want an answer. The glory of glorious mystery is to be solved, after which it ceases to be mystery. Be wary of those who speak of being open-minded and modestly confess their ignorance. There is a time to confess your ignorance and a time to relinquish your ignorance.

The second virtue is relinquishment. P. C. Hodgell said: “That which can be destroyed by the truth should be.” Do not flinch from experiences that might destroy your beliefs. The thought you cannot think controls you more than thoughts you speak aloud. Submit yourself to ordeals and test yourself in fire. Relinquish the emotion which rests upon a mistaken belief, and seek to feel fully that emotion which fits the facts. If the iron approaches your face, and you believe it is hot, and it is cool, the Way opposes your fear. If the iron approaches your face, and you believe it is cool, and it is hot, the Way opposes your calm. Evaluate your beliefs first and then arrive at your emotions. Let yourself say: “If the iron is hot, I desire to believe it is hot, and if it is cool, I desire to believe it is cool.” Beware lest you become attached to beliefs you may not want.

The third virtue is lightness. Let the winds of evidence blow you about as though you are a leaf, with no direction of your own. Beware lest you fight a rearguard retreat against the evidence, grudgingly conceding each foot of ground only when forced, feeling cheated. Surrender to the truth as quickly as you can. Do this the instant you realize what you are resisting; the instant you can see from which quarter the winds of evidence are blowing against you. Be faithless to your cause and betray it to a stronger enemy. If you regard evidence as a constraint and seek to free yourself, you sell yourself into the chains of your whims. For you cannot make a true map of a city by sitting in your bedroom with your eyes shut and drawing lines upon paper according to impulse. You must walk through the city and draw lines on paper that correspond to what you see. If, seeing the city unclearly, you think that you can shift a line just a little to the right, just a little to the left, according to your caprice, this is just the same mistake.

The fourth virtue is evenness. One who wishes to believe says, “Does the evidence permit me to believe?” One who wishes to disbelieve asks, “Does the evidence force me to believe?” Beware lest you place huge burdens of proof only on propositions you dislike, and then defend yourself by saying: “But it is good to be skeptical.” If you attend only to favorable evidence, picking and choosing from your gathered data, then the more data you gather, the less you know. If you are selective about which arguments you inspect for flaws, or how hard you inspect for flaws, then every flaw you learn how to detect makes you that much stupider. If you first write at the bottom of a sheet of paper, “And therefore, the sky is green!”, it does not matter what arguments you write above it afterward; the conclusion is already written, and it is already correct or already wrong. To be clever in argument is not rationality but rationalization. Intelligence, to be useful, must be used for something other than defeating itself. Listen to hypotheses as they plead their cases before you, but remember that you are not a hypothesis, you are the judge. Therefore do not seek to argue for one side or another, for if you knew your destination, you would already be there.

The fifth virtue is argument. Those who wish to fail must first prevent their friends from helping them. Those who smile wisely and say: “I will not argue” remove themselves from help, and withdraw from the communal effort. In argument strive for exact honesty, for the sake of others and also yourself: The part of yourself that distorts what you say to others also distorts your own thoughts. Do not believe you do others a favor if you accept their arguments; the favor is to you. Do not think that fairness to all sides means balancing yourself evenly between positions; truth is not handed out in equal portions before the start of a debate. You cannot move forward on factual questions by fighting with fists or insults. Seek a test that lets reality judge between you.

The sixth virtue is empiricism. The roots of knowledge are in observation and its fruit is prediction. What tree grows without roots? What tree nourishes us without fruit? If a tree falls in a forest and no one hears it, does it make a sound? One says, “Yes it does, for it makes vibrations in the air.” Another says, “No it does not, for there is no auditory processing in any brain.” Though they argue, one saying “Yes”, and one saying “No”, the two do not anticipate any different experience of the forest. Do not ask which beliefs to profess, but which experiences to anticipate. Always know which difference of experience you argue about. Do not let the argument wander and become about something else, such as someone’s virtue as a rationalist. Jerry Cleaver said: “What does you in is not failure to apply some high-level, intricate, complicated technique. It’s overlooking the basics. Not keeping your eye on the ball.” Do not be blinded by words. When words are subtracted, anticipation remains.

The seventh virtue is simplicity. Antoine de Saint-Exupéry said: “Perfection is achieved not when there is nothing left to add, but when there is nothing left to take away.” Simplicity is virtuous in belief, design, planning, and justification. When you profess a huge belief with many details, each additional detail is another chance for the belief to be wrong. Each specification adds to your burden; if you can lighten your burden you must do so. There is no straw that lacks the power to break your back. Of artifacts it is said: The most reliable gear is the one that is designed out of the machine. Of plans: A tangled web breaks. A chain of a thousand links will arrive at a correct conclusion if every step is correct, but if one step is wrong it may carry you anywhere. In mathematics a mountain of good deeds cannot atone for a single sin. Therefore, be careful on every step.

The eighth virtue is humility. To be humble is to take specific actions in anticipation of your own errors. To confess your fallibility and then do nothing about it is not humble; it is boasting of your modesty. Who are most humble? Those who most skillfully prepare for the deepest and most catastrophic errors in their own beliefs and plans. Because this world contains many whose grasp of rationality is abysmal, beginning students of rationality win arguments and acquire an exaggerated view of their own abilities. But it is useless to be superior: Life is not graded on a curve. The best physicist in ancient Greece could not calculate the path of a falling apple. There is no guarantee that adequacy is possible given your hardest effort; therefore spare no thought for whether others are doing worse. If you compare yourself to others you will not see the biases that all humans share. To be human is to make ten thousand errors. No one in this world achieves perfection.

The ninth virtue is perfectionism. The more errors you correct in yourself, the more you notice. As your mind becomes more silent, you hear more noise. When you notice an error in yourself, this signals your readiness to seek advancement to the next level. If you tolerate the error rather than correcting it, you will not advance to the next level and you will not gain the skill to notice new errors. In every art, if you do not seek perfection you will halt before taking your first steps. If perfection is impossible that is no excuse for not trying. Hold yourself to the highest standard you can imagine, and look for one still higher. Do not be content with the answer that is almost right; seek one that is exactly right.

The tenth virtue is precision. One comes and says: The quantity is between 1 and 100. Another says: the quantity is between 40 and 50. If the quantity is 42 they are both correct, but the second prediction was more useful and exposed itself to a stricter test. What is true of one apple may not be true of another apple; thus more can be said about a single apple than about all the apples in the world. The narrowest statements slice deepest, the cutting edge of the blade. As with the map, so too with the art of mapmaking: The Way is a precise Art. Do not walk to the truth, but dance. On each and every step of that dance your foot comes down in exactly the right spot. Each piece of evidence shifts your beliefs by exactly the right amount, neither more nor less. What is exactly the right amount? To calculate this you must study probability theory. Even if you cannot do the math, knowing that the math exists tells you that the dance step is precise and has no room in it for your whims.

The eleventh virtue is scholarship. Study many sciences and absorb their power as your own. Each field that you consume makes you larger. If you swallow enough sciences the gaps between them will diminish and your knowledge will become a unified whole. If you are gluttonous you will become vaster than mountains. It is especially important to eat math and science which impinges upon rationality: Evolutionary psychology, heuristics and biases, social psychology, probability theory, decision theory. But these cannot be the only fields you study. The Art must have a purpose other than itself, or it collapses into infinite recursion.

Before these eleven virtues is a virtue which is nameless.

Miyamoto Musashi wrote, in The Book of Five Rings:

“The primary thing when you take a sword in your hands is your intention to cut the enemy, whatever the means. Whenever you parry, hit, spring, strike or touch the enemy’s cutting sword, you must cut the enemy in the same movement. It is essential to attain this. If you think only of hitting, springing, striking or touching the enemy, you will not be able actually to cut him. More than anything, you must be thinking of carrying your movement through to cutting him.”

Every step of your reasoning must cut through to the correct answer in the same movement. More than anything, you must think of carrying your map through to reflecting the territory.

If you fail to achieve a correct answer, it is futile to protest that you acted with propriety.

How can you improve your conception of rationality? Not by saying to yourself, “It is my duty to be rational.” By this you only enshrine your mistaken conception. Perhaps your conception of rationality is that it is rational to believe the words of the Great Teacher, and the Great Teacher says, “The sky is green,” and you look up at the sky and see blue. If you think: “It may look like the sky is blue, but rationality is to believe the words of the Great Teacher,” you lose a chance to discover your mistake.

Do not ask whether it is “the Way” to do this or that. Ask whether the sky is blue or green. If you speak overmuch of the Way you will not attain it.

You may try to name the highest principle with names such as “the map that reflects the territory” or “experience of success and failure” or “Bayesian decision theory”. But perhaps you describe incorrectly the nameless virtue. How will you discover your mistake? Not by comparing your description to itself, but by comparing it to that which you did not name.

If for many years you practice the techniques and submit yourself to strict constraints, it may be that you will glimpse the center. Then you will see how all techniques are one technique, and you will move correctly without feeling constrained. Musashi wrote: “When you appreciate the power of nature, knowing the rhythm of any situation, you will be able to hit the enemy naturally and strike naturally. All this is the Way of the Void.”

These then are twelve virtues of rationality:

Curiosity, relinquishment, lightness, evenness, argument, empiricism, simplicity, humility, perfectionism, precision, scholarship, and the void.