Latest Libertarian Papers article: 29. “The Rocky Road to Paradise: Why Economic Liberalization is Interrupted” by David Barker
Abstract: Despite evidence that free market policies improve overall welfare, much of the world is making little progress in reducing state economic controls. Short-term transition costs may be the reason. A simple model demonstrates that it may be rational to weight these costs more heavily than the long-term bene?ts of economic freedom.
On episode 70 of Objectivist Leonard Peikoff’s podcast (which I listen to from time to time and often enjoy), he informs us that it’s rational to mourn the death of a celebrity like Michael Jackson, even though (or even if) he also did terrible things, if he was a musical genius and if that matters to you. Whew.
He also responds to a question about someone filming an interview where there is a painting hanging over a mantle in the background. The questioner, an anarchist, asks if this is right; and if so, why shouldn’t the director also have to pay royalties to the person who painted the wall itself over the mantle.
In Peikoff’s reply he denigrates anarchists as those who don’t believe in rights (see his weak Anarchism is evil, claiming that anarchism is a form of “subjectivism”); he cavalierly dismisses the “ridiculous” notion that the painter of the wall deserves royalties–after all, he does nothing original; he just uses methods and paint invented “by others” (one wonders why he is entitled to paint the wall at all, according to Objectivist notions on IP). But he never answers the question of why, or even whether, the documentary maker should have to pay royalties to the artist who painted the painting. And he sets out a typically confused justification of IP as having to do with people who invent something “original” that “has” “marketable value.” Whatever. Here are some other notes on earlier shows, adapted from emails to friends about this.
On Attending Church and Being a Bridesmaid, Tenure, and Drugs for Grief; and the Morality of Show Notes
On the podcast around May 20, 2009–although he previously said it’s okay to be a bridesmaid at a religious wedding, he now says it’s immoral to play an instrument for money at a wedding–you are aiding and abetting immorality! Harumph. Also: he claims tenure to be “immoral.” He said in another one around this time that it’s moral to take psychotropic drugs to help you deal with extreme grief. A listener wrote in to ask if he could add show notes on his site, but Peikoff said he’s doing the show for free and has no time; and doesn’t trust anyone else, since they might make a mistake.
Is it Irrational to be Fat? Masturbation; Attending Church
On episode 51 or 52, I think, he answers the question of whether you can be an Objectivist if you are very fat; and then he answers another one about masturbation, opining on its philosophical benefits.
Peikoff also says that it’s okay for an Objectivist to go to a religious ceremony, even do the kneeling, following along in saying prayers, etc.
They have an answer for everything!
Abortion
On another podcast, he or his participants discuss abortion–and make the standard offhand Randroid comment that you can never outlaw abortion even at late stage, even if fetus is viable, because it’s inside the woman–and “dependent” on her. Note that they also think it’s okay to kill civilians in bombing their enemy government, and presumably to kill a hostage held by a bad guy, to save yourself. But it seems to me this is inconsistent. If we assume the baby is late-stage enough to clearly have rights, then what is the relevance that it “is” “dependent” on the mom? So what. It seems to me the mom is analogous to the hostage: you have to kill the hostage to save yourself (or some loved one). Likewise, what if you have to kill the mom (actualy, do less: just restrain her actions, prevent her from aborting) to save the baby?
Update: see Objectivist Hate Fest
Objectivism hates God more than gays; prostitution and sex
Around Nov. 2008, Peikoff pontificates on the gay marriage vote in California. He says both sides are wrong, but if forced to choose he would choose the pro-gay-marriage side, since letting gays marry is trivial, but the religious types are a serious threat, blah blah blah.
He also repeated his bizarre claim that there is no purpose to prostitution since (a) the purpose of sex is some intimate sexual union; and (b) if all you want is physical pleasure, you can just “take care of that yourself”.
What is bizarre IMO is his repeated insistence in several podcasts that the purely physical pleasure derived from masturbation is “as good as” that derived from, say, sex with a call girl. “The orgasmic climax is the same.” Uhh, okay.
Peikoff on Circumcision (whim-worshipping!), Down’s Children (Immoral!), and dualism (ehhh, depends); Lying
On the 10/27 podcast Peikoff comments about circumcision that he’s against it, it’s mutilation, (see around 5:19-). There is no legitimate reason–it’s either “primitive religion, abject conformity, or the evil of destructiveness.” Uh, the evil of destructiveness…??
At 11:25 he addresses free will and dualism. He says that he rejects dualism in the Platonic sense of “opposing” realms. But he also rejects monism if it’s the type that makes you choose–either the material world is real (materialism) and the conscience is just an illusion; or the idea that only consciousness is real (idealism). rather, they are “dualists” in the sense of agreeing that there are two things (matter, causal things; and consciousness, or the will, teleology), but they are integrated, and not opposed to each other, and have “different characteristics–gravity will make your body drop, but not your “mind”. Now note that this is eerily similar to Hoppe’s own dualistic approach and his realistic reformation of MIsesian epistemolgoy–basically the same thing. Of course Hoppe would not say the teleological and causal realms are “opposed” to each other. 1
Note also then Peikoff, after saying that the faculty of perception is a different “kind of thing” than “matter,” and has “different characteristics” (it doesn’t fall due to gravity like a ball would), he says that “and ONE of the attributes of consciousness is that it has free will”. Wow, how easy! This is very similar to Machan’s “ontological” argument regarding this issue (and Kelley too), when they just assert downward causation; and also Machan’s approach to IP. After all, there are “ontologically” different types of “entities,” each having different “attributes.” We “create” some of these “things,” and “therefore” “own” them, just as you own material things you appropriate. Why not just let there be ownership rights in all “kinds” of ontological “things”? What’s it harm? (In my view, this is similar to liberals’ rights-inflation–how inventing new, positive rights is not free; it comes at the expense of negative, natural rights.) It’s a way of brushing the problem under the table.
BTW in the 11/3 podcast, Peikoff (at about 6:25) declaims it to be immoral to carry a Down’s Syndrome baby to term–based in part on the idea that it is not self-supporting (productive). He thus adopts the Provenzo-Hsieh horrible quasi-euthenestic approach they share.
At 4:58: Peikoff justifies his view that lying is okay to protect your privacy–the reason being that if you just refuse to answer or say “none of your business” in some contexts, that is tantamount to an admission. This reminds me of Randy Barnett’s view that it’s not fraudulent or vitiates an agreement if one party lies about some aspect of the purchase–in his Rational Bargaining Theory and Contract: Default Rules, Hypothetical Consent, the Duty to Disclose, and Fraud:
Once again the issue involves the meaning of silence. To fail to disclose some fact is to remain silent about it. Those who favor a duty to disclose contend that sometimes such silence can constitute a fraudulent misrepresentation. This implication of silence is graphically highlighted in the Laidlaw case by the buyer’s silence in the face of the seller’s direct question concerning whether the buyer had any information that would affect the price of tobacco. The buyer’s silence conveyed a false representation that the buyer had no such information. Was this intentional misrepresentation fraudulent? I say no.
On the Patriot Act:
In the podcast around Sept. 13, 2008 he seems to oppose the PATRIOT act and spying on civilians… and offhandedly criticizes Bush for the way he’s fighting the war on terror, in part because Bush he hasn’t “declared” the war. If he had, that woul be different, … but “you have to do that”… a bizarre legalistic viewpoint I’ve heard other Randians make.
On Masturbation (around Sept. 3, 2008):
On this one, asked him about going to a prostitute for pure physical pleasure, or for conversation. Peikoff says that you can’t have real conversation with her, so that’s not the reason. And he says, as for pure pleasure, self-pleasure should suffice. Well, okay then! He had some dismissive comment that masturbation is as good as “rubbing on someone else” if you just want “mere” physical pleasure. Incredible.
On Ethics for Terminal People (Aug. 18, 2008):
In this one, he has some bizarre comments about ethics for dying people. Someone asked him about someone, say, with a tumor and months to live–why shoudln’t he take a huge loan out that he can’t repay, or kill an enemy. (Peikoff also does a decent job criticizing Aristotle’s idea of the “mean.”) Peikoff says that ethics is not for the dying. It’s for the living who have long-range projects. Then he tries to weasel out of it by saying why would the guy want the money anyway. Well, okay, maybe he wants it for a kid. And maybe he wants to kill some scoundrel who is dating his daughter and sure to ruin her life. He also says that society itself would still have a justification in stopping the a-moral ethics-less terminal guy from committing crimes.
Peikoff says that most of the time since you led a moral life, being moral is ingrained so you would not wan to do it. But then he says, bizarrely, that in some cases, e.g. where you could kill some bad person–no time to wait for the justice system to operate, or someone you really want to help–then you “should take advantage of the inapplicability of morality, he can get away with it”. !!! You “should” “take advantage of the inapplicability of moraltiy” ?! To “get away with it” to achieve what you want? This is just so screwed up on so many levels.
On Bridge and Philosophy (around Aug. 13, 2008):
Peikoff says bridge is a lot more difficult mentally than philosophy.
Other Peikoffiana: I recall that one of his audiotaped debates or lectures from years back, he stammered for a term to use for some vile person, and said “these …. these …. entities.”; and see my posts Rand on Collateral Damage; Objectivism Schism Form Letter; The Ignoramus Division of Randianism; Centralist, Pro-War Objectvists on Paul; Trouble in Paradise: Objectivists on Voting for Democrats; see also Diana Hsieh’s post Leonard Peikoff’s Podcasts.
Peikoff is good on some things too, such as the rise of the Nazis and Hitler, e.g. see p. 15 et pass of The Ominous Parallels; also excerpted here; on axioms etc., pp. 11-12 of OPAR. And I think he said once in response to a quesiton about when we were gonna respect the rights of mosquitos–“when they ask for them”!
He also tells a funny joke in one episode:
Q: What do you get when you drop a piano down a mine shaft?
A: “A Flat Minor.”
Objectivism and War by Neil Parille
Re Charles Featherston’s LRC blog post:
This is sick and incredible. Look, I understand the Objectivist logic behind the right to abort. Sick though it is… unprincipled though it is (Rand herself waved off the crucial question of late-term abortion by saying that was “another matter”). But look at this vile stuff. They actually seem to believe there is a moral obligation to abort–to “squelch”–an “unhealthy fetus”–unless you are very rich, I guess. Look at this!! It’s incredible:
Provenzo:
So in the anti-abortion advocate’s eyes, a parent’s desire to raise healthy children by squelching unhealthy fetuses while the are still in the womb is little more than a pernicious quest, but it is not considered a pernicious quest to knowingly bring severely disabled children into this world. On the contrary, such a choice is held out as an great example of upstanding morality.
Diana Hsieh says it’s the “worship of retardation” (?!):
they want to create more mentally defective and perpetually dependent children by outlawing abortion.
The people who worship retardation reject human reason as a value. They’re as anti-man as the deep ecologists who regard mankind as a cancer on the earth.
Frankly, one wonders why such people don’t lobotomize themselves, if retardation is such a boon to their fellow man.
Update: In a recent Peikoff Podcast he says that if you have a retarded son and a normal son, you should love the normal one more:
Should a father love equally a son with mental retardation and a normal one?
Update:
“Onkar’s hostility toward Craig intensified in April 2010, when Craig privately criticized an article that Onkar had published at Division of Labour. In the article, Onkar attempted to apply Ayn Rand’s philosophy to Adam Smith’s thought experiment about whether “a man of humanity” in Europe would cut off his pinky finger to avert an earthquake in China that otherwise would kill a hundred million Chinamen. Onkar said that according to Objectivism the man should not cut off his pinky, that he should instead let the earthquake kill the hundred million Chinamen:
Rand’s ethics would pronounce the action [cutting off his pinky] immoral…. Rand argues that a morality that denigrates the individual and demands his sacrifice for the “greater good” is responsible, more than any other single factor, for the bloodshed and destruction of millions of individuals throughout Western history…. Rand knew that in rejecting self-sacrifice, she would be smeared as advocating sacrifice of others to self. Reject the ideal that you should slice off your finger for the sake of others, and you must be claiming that you should slice off other people’s fingers for your sake. “Man was forced to accept masochism as his ideal—under the threat that sadism was his only alternative. This was the greatest fraud ever perpetrated on mankind.””
Update:
As mentioned on episode 53 of Leonard Peikoff’s podcast, this poem, by Badger Clark, was one of Rand’s favorites:
My fathers sleep on the sunrise plains,
And each one sleeps alone.
Their trails may dim to the grass and rains,
For I choose to make my own.
I lay proud claim to their blood and name,
But I lean on no dead kin;
My name is mine, for the praise or scorn,
And the world began when I was born
And the world is mine to win.
They built high towns on their old log sills,
Where the great, slow rivers gleamed,
But with new, live rock from the savage hills
I’ll build as they only dreamed.
The smoke scarce dies where the trail camp
lies,
Till the rails glint down the pass;
The desert springs into fruit and wheat
And I lay the stones of a solid street
Over yesterday’s untrod grass.
I waste no thought on my neighbor’s birth
Or the way he makes his prayer.
I grant him a white man’s room on earth
If his game is only square.
While he plays it straight I’ll call him mate;
If he cheats I drop him flat.
Old class and rank are a wornout lie,
For all clean men are as good as I,
And a king is only that.
I dream no dreams of a nurse-maid state
That will spoon me out my food.
A stout heart sings in the fray with fate
And the shock and sweat are good.
From noon to noon all the earthly boon
That I ask my God to spare
Is a little daily bread in store,
With the room to fight the strong for more,
And the weak shall get their share.
The sunrise plains are a tender haze
And the sunset seas are gray,
But I stand here, where the bright skies blaze
Over me and the big today.
What good to me is a vague “maybe”
Or a mournful “might have been,”
For the sun wheels swift from morn to morn
And the world began when I was born
And the world is mine to win.
From an Objectivist blog. This demonstrates that the Objectivists will even grant you that all states are criminal, but this doesn’t phase them from their pollyana belief that we still need states:
By Don: If you have ever debated the issue of limited government versus anarchy with an anarchist, you have undoubtedly run into this argument: “Every government in history has violated individual rights, so what grounds do you have for believing there could be a government that doesn’t?”
In fact, our own Stephan Kinsella raised this point in his current discussion with Dave Harrison. He said, “All of our experience and history shows all states to ride roughshod over citizens’ rights.”
(Dave’s response was perfect: “To some extent or another, depending on the state. And therefore what?”)
You may have heard that Obama’s TelePrompTer–or TOTUS–fell and crashed during a speech by POTUS. TOTUS reports on his blog that he’s doing fine.
From this post:
Stephan Kinsella on July 13, 2009 at 11:09 pm
You rattled my cage, Sir Roderick?
I am not sure what the question is. You’re not completely right, or wrong. I poke fun; I use colorful examples; I mock things I think mockworthy; and when I detect ambiguity or confusion in a position caused by the person expounding it (and often used disingenuously by them), I sometimes select an interpretation of their cloudy views that he may or may not agree with–how would we know, if they are so murky and conflicted–to challenge them to clarify, deny, expound, etc. It’s a sort of Socratic way of getting people to reveal views that are for some reason kept hidden or unclear.
In addition, sometimes when one makes a narrow point, as I often do, people leap to all sorts of assumptions, because they have difficulty with reading comprehension, or because they are reverse racists or cosmotards.
I have trouble taking the left-libertarian program seriously; it is only because of the very few of them, like you, Roderick, who are serious, formidable, sound thinkers, and not dated caricatures, that I sometimes think it may be worthwhile to try to find common ground, correct misimpressions, etc.
Stephan Kinsella on July 13, 2009 at 11:33 pm
BTW I don’t “conflate” Marxists with left-libertarians; if anything they do this themselves by trying to use the word, um, socialist to refer to libertarianism.
In my own view this whole debate is almost as confused as the one that plagues mainstream thinking about the left-right axis. I have always found that useless and engendering confusion; and I think a similar thing is at work in those who want to insist on the usefulness of the left-right libertarian “axis”; and this is exacerbated or linked in with the confusion surrounding the semantically confused and non-rigorous “thick” arguments, IMHO.
But in my mind, the so-called “left” libertarians, such as Roderick, are just libertarians, and damn good solid ones, with a few different interests, research programs, insights, or emphasis. (And as far as this goes I myself might not inaccurately be called a “left” libertarian by some; if this had much utility.) And then you have others such as mutualist etc., who deviate so much from standard libertarian views that I think it is in many cases doubtful whether the libertarian label should be applied. And it is some of these who do explicitly praise Marx and whose thought is, excuse me, riddled with all sort of leftist-Marxian economic nonsense. One of them told me Mises and Marx are about on an equal plane for him; each had his own weaknesses and insights to draw from. I have not been persuaded that it is bad form to recognize connections to Marxian thought.
2008 Mises post:
August 7, 2008 12:34 AM by Stephan Kinsella | Other posts by Stephan Kinsella | Comments (79)
Recently, re-listening to the 1991 lecture “Ayn Rand, Intellectual Property Rights, and Human Liberty,” by Objectivist attorney Murray Franck, I was struck by one of quotes given in defense of IP. During his lecture, Franck reads (most of) the following quote approvingly:
When we come to weigh the rights of the several sorts of property which can be held by man, and in this judgment take into consideration only the absolute question of justice, leaving out the limitations of expediency and prejudice, it will be clearly seen that intellectual property is after all the only absolute possession in the world. The man who brings out of the nothingness the child of his thoughts has rights therein which cannot belong to any other sort of property. Land or chattels are pre-existing in some form, and the rights therein are limited in many ways, and are held in the great service of the world, but the inventor of a book or other contrivance of thought holds his property, as a god holds it, by right of creation; with his silence or inaction the sustenance and advance of millions yet to be may vanish into the great darkness again. His brain has brought the seed out of the infinite, planted it in good soil, tended it with the care that only the sower can feel. Surely the world should not deny him a share of the increase he has brought about, and if he, giving the reversion of his property for all time to his race, is granted the product of his creation for half a score of years, he should surely be secured against being plundered by the law as well as by the lawless.
Franck says the quote is from one “Forvold Solberg” [sp?], “a former register of copyrights”, but my google-fu indicates that the author is one Nathan Shaler, Professor of paleontology and geology at Harvard from 1869-1906, in his Thoughts on the Nature of Intellectual Property, and Its Importance to the State (1878). It’s perhaps a bit ironic that the author quoted approvingly by an Objectivist in support of IP was a racist, one-time Creationist, and author of a book about some idea’s “importance to the state”!
In any event, the latter part of the quote is extremely utilitarian: “the world” should give the innovator or creator “a share” of the wealth he contributes… by giving him a monopoly on it for about ten (“half a score”) years. [For some other choice quotes by Franck during the lecture, he recounts that when he met Rand, when she learned he was an IP lawyer, she told him, “Intellectual property is the most important field of law.” Franck also writes: “Man requires property rights to survive, physically and spiritually. That is, as a full-blown man. In the words of Citibank, ‘to succeed, not just survive.’ As we have discussed, if the creator’s rights are not protected, his survival is jeopardized. If another can market his creation, the creator is deprived of the money he wold otherwise earn. That is, his means of production through trade, and therefore of survival. In effect, the creator’s personality has been destroyed. For if the infringer can market without the creator’s permission, he has substituted the creator’s life in the market place by substituting the results of the creator’s energy, thought, time, and action. Creation is the criterion of earning and therefore of ownership.”]
The first part–about how inventors are “like gods” calls to mind Rand’s embarrassing justification for smoking–that it’s symbolic of fire “tamed” at man’s fingertips.
The quote also emphasizes very explicitly that Randians and other IP advocates believe “creation” is an independent source of rights: you hold your intellectual creation like a god, “by right of creation.”
I note also that Franck says in the lecture that copyrights should survive in perpetuity.
Incidentally, I graduated from law school in 1991, the year of this lecture, and listened to it soon after, about the time I was beginning to practice IP law (1993 or so). I had recently morphed from an initial flirtation with Objectivism to Rothbardian anarcho-libertarianism. I was very interested in this lecture, since I had long struggled with Rand’s weak justification of intellectual property–which was especially troubling since she claimed that “patents are the heart and core of property rights.” The lecture failed to convince me; I kept searching for better justifications of IP than I’d seen from Randians. After shooting blanks for a few years, I finally came to the realization that I was unable to find a justification for IP … because it’s unjustifiable and contrary to individual rights. By 1995 I had reached my current views on IP, as can be seen in this exchange between me, Franck, and David Kelley, in the IOS Journal: Murray I. Franck, “Intellectual Property Rights: Are Intangibles True Property,” IOS Journal 5, no. 1 (April 1995); Kinsella, Letter on Intellectual Property Rights, IOS Journal 5, no. 2 (June 1995), pp. 12-13; David Kelley, “Response to Kinsella,” IOS Journal 5, no. 2 (June 1995), p. 13; and Murray I. Franck, “Intellectual and Personality Property,” IOS Journal 5, no. 3 September 1995), p. 7 (all of these except the first are here; I find only this bad link to Franck’s first piece).
On occasion you get some defender of patents who is upset when we use the m-word to describe these artificial state-granted monopoly rights. For example here one Dale Halling, a patent attorney (surprise!) posts about “The Myth that Patents are a Monopoly” and writes, ” People who suggest a patent is a monopoly are not being intellectually honest and perpetuating a myth to advance a political agenda.”
Well, let’s see. First, see my post Epstein and Patents, noting that the pro-patent Epstein writes:
Patented goods are subject to a lawful monopoly created by the state in order to induce their creation. No one thinks that new pharmaceutical drugs will be invented by private firms that cannot receive a rate of return sufficient to recover [various costs]. … The legal monopoly granted by the patent is the only mechanism that allows the producer to recover those fixed costs….
Is the pro-patent Epstein being dishonest?
And see my comments (1, 2) on The Three Stages of Invention post, excerpted below:
First, as to whether patents are monopoly grants–hell, even the feds admit this: “Section 154 and related provisions [e.g. Sec. 271] obviously are intended to grant a patentee a monopoly only over the United States market….” U.S. Supreme Court, Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518 (1972). See also: King Instr. v. Perego, by the Court of Appeals for the Federal Circuit (“Congress made the policy choice that the “carrot” of an exclusive market for the patented goods would encourage patentees to commercialize the protected inventions so that the public would enjoy the benefits of the new technology during the patent term in exchange for granting a limited patent monopoly. In other words, the public expected benefits during “‘the embarrassment of an exclusive patent as Jefferson put it.'” Graham v. John Deere Co., 383 U.S. 1, 10-11 (1966).)
See also Engel Ind. v. Lockformer Co. (“We hold that the disputed royalties provisions do not inappropriately extend the patent monopoly to unpatented parts of the patented system”); Carborundum Co. v. Molten Metal Eq. Co. (“A patentee, in demanding and receiving full compensation for the wrongful use of his invention in devices made and sold by a manufacturer adopts the sales as though made by himself, and therefore, necessarily licenses the use of the devices, and frees them from the monopoly of the patent.”)
And: Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947):
The Florida statute is aimed directly at the promotion of intellectual creation by substantially restricting the public’s ability to exploit ideas that the patent system mandates shall be free for all to use. Like the interpretation of Illinois unfair competition law in Sears and Compco, the Florida statute represents a break with the tradition of peaceful coexistence between state market regulation and federal patent policy. The Florida law substantially restricts the public’s ability to exploit an unpatented design in general circulation, raising the specter of state-created monopolies in a host of useful shapes and processes for which patent protection has been denied or is otherwise unobtainable. It thus enters a field of regulation which the patent laws have reserved to Congress. The patent statute’s careful balance between public right and private monopoly to promote certain creative activity is a “scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.”
Brenner v. Manson, 383 U.S. 519 (1966):
Whatever weight is attached to the value of encouraging disclosure and of inhibiting secrecy, we believe a more compelling consideration is that a process patent in the chemical field, which has not been developed and pointed to the degree of specific utility, creates a monopoly of knowledge which should be granted only if clearly commanded by the statute. Until the process claim has been reduced to production of a product shown to be useful, the metes and bounds of that monopoly are not capable of precise delineation. It may engross a vast, unknown, and perhaps unknowable area. Such a patent may confer power to block off whole areas of scientific development, without compensating benefit to the public. The basic quid pro quo contemplated by the Constitution and the Congress for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility. Unless and until a process is refined and developed to this point — where specific benefit exists in currently available form – there is insufficient justification for permitting an applicant to engross what may prove to be a broad field.
Diamond v. Chakrabarty, S.Ct. (1980), Brennan’s dissent:
I agree with the Court that the question before us is a narrow one. Neither the future of scientific research, nor even the ability of respondent Chakrabarty to reap some monopoly profits from his pioneering work, is at stake. Patents on the processes by which he has produced and employed the new living organism are not contested. The only question we need decide is whether Congress, exercising its authority under Art. I, 8, of the Constitution, intended that he be able to secure a monopoly on the living organism itself, no matter how produced or how used.
Now you can argue that patent holders do not necessarily have “monopoly power” (see The Importance of Patents for Economic Development – 1999, by Prof. William Hennessey), but as Rothbard et al. have pointed out, the government’s concept of monopoly is flawed; the only issue that matters is whether there is a legal monopoly granted. See, e.g., Hoppe, A Theory of Socialism and Capitalism, ch. 9, pp. 185-86:
The monopoly problem as a special problem of markets requiring state action to be resolved does not exist. In fact, only when the state enters the scene does a real, nonillusory problem of monopoly and monopoly prices emerge. The state is the only enterprise whose prices and business practices can be conceptually distinguished from all other prices and practices, and whose prices and practices can be called “too high” or “exploitative” in a completely objective, nonarbitrary way. These are prices and practices which consumers are not voluntarily willing to pay and accept, but which instead are forced upon them through threats of violence.
See also Rothbard, Man, Economy, and State (with Power and Market): “The only viable definition of monopoly is a grant of privilege from the government.”
Now it is, indeed, clear that a patent is a monopoly grant to someone that permits them to charge above-market prices; this is exactly the goal of the patent law: to provide this monopoly profit to inventors so as to incentivize them to innovate and file for patents. And it is why, for example, Blackberry paid over $600 million to NTP in a recent patent suit; and it is why consumers will have to pay more for Blackberry services than they otherwise would, etc. Did NTP have “monopoly power” as defined by the government’s antitrust scheme? I don’t know. Probably not. But did they extort RIM/Blackberry by use of the government-granted patent monopoly? Of course.
See also Arnold Plant, The Economic Theory Concerning Patents for Inventions, sections 16, 19, 20, 24:
The patent system may, on the one hand, be expected to affect the making of inventions in two ways. The first is to divert inventive activity into those fields in which the monopoly grant will be expected to prove most remunerative. It may, secondly, affect the total amount of inventive activity.
… the utilitarians assumed that the patent system was responsible for the greater part of inventing activity. The question which they one and all failed to ask themselves, however, is what these people would otherwise be doing if the patent system were not diverting their attention by the offer of monopolistic profits to the task of inventing. By what system of economic calculus were they enabled to conclude so definitely that the gain of any inventions that they might make would not be offset by the loss of other output? By no stretch of the imagination can the inventing class be assumed to be otherwise unemployable. Other product which is foregone when scarce factors are diverted in this way completely escaped their attention.
… at the beginning of this century Professor J. B. Clark was still writing: “If the patented article is something which society without a patent system would not have secured at all – the inventor’s monopoly hurts nobody… His gains consist in something which no one loses, even while he enjoys them.”? No inkling here that the patent inducement to invent diverts scarce human effort from other production, and that the subsequent exploitation of patents again interferes with the disposition of scarce factors which would obtain under competitive conditions.
… It seems unquestionable not only that a very considerable volume of inventive activity must definitely be induced by price conditions, but also that that activity is diverted by price movements from other types of endeavour as well as from other fields of invention. Entrepreneurs faced with new difficulties or with new opportunities will divert not only their own attention, but that of every technician who can be spared, from the business of routine production to that of urgent innovation. They will not rely exclusively upon those types of professional inventors whose autonomous output pours out in a stream of unvarying size, and some of whom may be prepared, in return for the inducements which the entrepreneurs can offer, to transfer their spontaneous activity to their service. It cannot be assumed that all who are capable of innovation spend their whole lives in inventing. Many of them are also able administrators and production controllers; some in the past have been clergymen and barbers, and in our own time there is a steady flow of technicians from the research laboratories of pure science into those of industrial invention and out again. … The patent system … enables those who “have the monopoly of the right to use a patented invention to raise the price of using it … and in that way to derive a larger profit from the invention than they could otherwise obtain. The effect must surely be to induce a considerable volume of activity to be diverted from other spheres to the attempt to make inventions of a patentable type. [emphasis added]
See also Rothbard, Man, Economy, and State, ch. 10, sec. 7:
It is by no means self-evident that patents encourage an increased absolute quantity of research expenditures. But certainly patents distort the type of research expenditure being conducted. . . . Research expenditures are therefore overstimulated in the early stages before anyone has a patent, and they are unduly restricted in the period after the patent is received. In addition, some inventions are considered patentable, while others are not. The patent system then has the further effect of artificially stimulating research expenditures in the patentable areas, while artificially restricting research in the nonpatentable areas.
Update: See “Ideas Need Protection: Abolishing Intellectual-property Patents Would Hurt Innovation: A Middle Ground Is Needed,” by William F. Shughart II, a senior fellow with the Independent Institute, The Baltimore Sun (Dec. 21, 2009):
Granting a temporary monopoly to the rare breakthrough is necessary, therefore, to provide its inventor with an opportunity to earn a return on the investment that led to the new idea – and to encourage additional such investments. Such protection is especially important in the pharmaceutical industry, where, in its absence, new drugs could be duplicated by competitors, and the incentive to invest would disappear, stifling the discovery process.
To paraphrase the late economist Joan Robinson, patents and copyrights slow down the diffusion of new ideas for a reason: to ensure there will be more new ideas to diffuse.
Update: It is interesting to note that one of the first patent statutes was England’s Statute of Monopolies of 1623.
[Mises cross-post; AgainstMonopoly cross-post]
From LRC blog 2003
Re Lew Rockwell’s latest post about Richard Epstein’s pro-patent comments–Epstein writes, “‘Patented goods are subject to a lawful monopoly created by the state in order to induce their creation. No one thinks that new pharmaceutical drugs will be invented by private firms that cannot receive a rate of return sufficient to recover [various costs]. … ‘The legal monopoly granted by the patent is the only mechanism that allows the producer to recover those fixed costs….”
Obviously, this is a utilitarian argument; Austrians and libertarians are well aware of the economic and ethical problems that plague utilitarianism. But besides this, another problem with Epstein’s argument is that there is no logical stopping point. For it is not that “drugs” either will, or will not, be produced. By Epstein’s logic, there will still be some drugs that will not be produced, namely those whose cost can’t be recovered even with patent profits. The current patent term is about 20 years. If it were longer, more monopoly profit could be obtained, thus allowing more drugs, currently not produced, at the margin, to be profitable. So let’s extend the term to 30 years. Or 40. And so on. But why stop there? Why not impose criminal liability for infringement of patent rights–say, life in prison or the death sentence. We could also lower the statutory standards for obtaining a patent, so that more drugs would be subsidized by the patent monopoly. We could triple the budget and salaries for the Patent Office, so that patents are issued more quickly (they take 2-3 or more years, now).
What’s more, even the strongest patent rights in the world simply might not give enough extra profits to justify the generation of some “really useful” drugs. So by using the standard utilitarian reasoning underlying Epstein’s advocacy of patent law (and also undergirding his defense of the power of eminent domain in his book Takings), why not let some administrative commission dole out taxpayer-funded subsidies to the pharmaceutical industry. Yes, taxpayers would be harmed (just as private property owners are harmed by patent law–as the drive to outlaw reimported medicines attests), but drugs that would not otherwise be invented, would be. Presumably the “value” of these drugs would “exceed” the “value” (to whom?) of the money taken from taxpayers.
I better shut up. They might not realize I’m being sarcastic.
Stephan Kinsella is a libertarian writer and retired patent attorney in Houston, Texas. He has published widely on various areas of libertarian legal theory and on legal topics such as intellectual property law and international law. His publications include Legal Foundations of a Free Society (Papinian Press, 2023), Against Intellectual Property (Mises Institute, 2008), International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford, 2020), and The Universal Principles of Liberty (2025).
My Failed Libertarian Speaking Hiatus; Memories of Mises Institute and Other Events, 1988–20192025
However, there is an extent to which I think that the social anarchists have a legitimate complaint about anarcho-capitalism in terms of historicity
Well, there were forerunners of anarcho-capitalism around in the 19th century (people like Molinari and Donisthorpe, for example — who also influenced Rothbard, incidentally), and Tucker was willing to call them anarchists; so I don’t think it’s quite true that it just pops up out of nowhere in the 1960s. And even if it had — I’m not sure that historical connection to paradigm cases is essential to defining something as anarchism. Certainly most anarchists are happy enough to identify someone like Bao Jingyan as an anarchist despite an ever greater lack of historical connection.
And when I see Kinsella conflating the libertarian left (and all libertarian socialists) with Marxists
Well, when Kinsella does that it’s a little different from when, say, Reisman does it. Kinsella has an in-your-face rhetorical style that tends to exaggerate or overstate what he actually believes. Or so I conclude after a decade or so of arguing with him. When you call him on the more extreme claims he usually backs down (at least if you call him on them in a friendly way; if you call him on them in an unfriendly way he morphs into the Joker and starts throwing his feces).
C’mon, Stephan, if you’re reading this — you can’t deny it.