Not including English. I decided recently to split off links to translations of my publications onto a separate page. Turns out, so far, they’ve been translated into eight languages: Dutch, Georgian, German, Italian, Polish, Portuguese, Spanish, and Swedish.
From The Libertarian Standard.
According to breaking news, a federal district court has overturned Proposition 8, a ballot proposition that amended the California Constitution to prohibit same-sex marriage. Prop. 8 was meant to overturn the California Supreme Court’s ruling in In re Marriage Cases that same-sex couples have a constitutional right to marry. (Although none of the numerous reports I’ve seen note the name of the case, it is Perry v. Schwarzenegger; PDF.) [continue reading…]
My comment on “Citizen Science, Microfinanced Research, Patent Trolls, and Pharma Prizes: A final dispatch from the Open Science Summit,” by Ronald Bailey on Reason Online.
Stephan Kinsella|8.3.10 @ 11:12PM|#
Bailey characterizes the anti-IP “faction” as the “more egalitarian” one, as opposed to the more libertarian bloc at the summit. Yet libertarianism is, in my sense, now predominantely anti-IP, and increasingly so (see Dohert’s post Intellectual Property: Dying Among Libertarians? http://reason.com/blog/2010/08…..y-dying-am) and Intellectual Property and Libertarianism.
Stephan Kinsella|8.3.10 @ 11:13PM|#
Further, David Koepsell is lumped in with the egalitarians even though he’s pretty libertarian and his argument is compatible with my libertarian anti-IP argument; I (a libertarian) was interviewed for his gene patent documentary. https://stephankinsella.com/?s=koepsell
Stephan Kinsella|8.3.10 @ 11:13PM|#
Bailey writes, “Whatever one may think about the patentability of genes, the crucial question is, do such patents hurt or help innovation?”
That is not actually the crucial question for libertarians who are not wonkish utilitarians. The question is: are the laws just. And they are clearly not. They are state-granted monopoly privileges that transfer rights from existing owners to those favored by the state–by giving patentees and copyright holders the right to veto others’ uses of their own property.
But even if we were to adopt utilitarian standards, the question is still not: does it help or hurt innovation. The question would be: does the value of the marginal innovation stimulated by the law exceed the cost of the IP system (which includes the value of innovation lost)? (See my There’s No Such Thing as a Free Patent.)
And this has not been shown at all. (See Yet Another Study Finds Patents Do Not Encourage Innovation http://blog.mises.org/10217/ye…..novation/.) In fact, contra Bailey, most studies that conclude anything conclude that not only is the patent system a net loss, innovation itself is hampered overall. Bailey says, “Numerous studies have so far failed to find that gene patents are a big impediment to either research or innovation.” Yes: some studies are inconclusive (no wonder given the subjective, non-cardinal, and non-interpersonally comparable nature of value), and do not conclude that they are an impediment. Others do. But advocates of state IP law try to justify it based on these wealth-maximization claims; they bear the burden of proof. They can’t just say there is no proof that the laws are a big impediment. Rather, they must show that they are correct, that such laws give rise to net societal wealth. They do not do so.
***
David Koepsell has purposely ignored the fact that “isolated” forms of genes do not occur in nature. Nor does nature tell humans how to use those genes. Koepsell has ignored the precedents in this area including patents on vitamin B12, insulin and adrenaline. All of these occur naturally, but not in a purified on isolated form.
Stephan Kinsella’s arguments against intellectual property all hinge on the idea that Locke’s Natural Rights theory of property is incorrect. He replaces Natural Rights with the scarcity theory of property rights. This theory is incorrect historically, logically, and does not have the explanatory power of Natural Rights. Scarcity does not explain how people acquire property morally and legally or how property is distributed. Logically it is incorrect when it states that intellectual property is not subject to scarcity. The creation and dissemination of intellectual property takes real resources, so it is subject to scarcity. For more information see Scarcity – Does it Prove that Intellectual Property is Unjustified? http://hallingblog.com/2009/06/22/scarcity-–-does-it-prove-intellectual-property-is-unjustified/
Kinsella is also wrong about the evidence of the utility of patents. The evidence is overwhelming that patents increase real per capita income. Advances in technology are the only way to increase real per capita income/GDP. Real per capita income did not take off in the world until modern patent systems (private property rights in inventions) were introduced. Japan’s real per capita income does not take off until they copy the US patent system. Countries with weak or non-existent patent systems are the poorest countries in the world, have the fewest inventions, and have limited technology diffusion. Most of the studies suggesting that patents do not encourage technological advance are based on misunderstandings of how the patent system works. All of them ignore the overwhelming evidence outlined above. For more information see Source of Economic Growth http://hallingblog.com/2010/05…..c-growth/.
Ayn Rand stated that “What the patent and copyright laws acknowledge is the paramount role of mental effort in the production of material values: these laws protect the mind’s contribution in its purest form: the origination of an idea.” Kinsella’s theory is more consistent with Marx’s physical labor theory of value and if followed will have the same disastrous results that Marxist have had throughout the world.
Halling apparently hasn’t learned yet that correlation is not causation. The “argument” that postwar Japan succeeded because it adopted a patent system is ludicrous.
Actually, I took direct aim at the “isolation and purification” charade, I didn’t ignore it at all. Ron knows this because he was there. My slides can be found here: http://www.slideshare.net/Open…..o-owns-you and the video will be available soon on fora.tv
Moreover, Halling did not read my slides, nor hear my talk, in which I directly attack the ridiculous logic and flawed precedent and other patent attorneys rely on. Kinsella’s reply to the tired old refrain about patents and innovation is spot-on. Patents are 100 percent profitable for patent attorneys, whereas they are enormously inefficient for the economy as a whole. Only 1% of patents ever become profitable in a system that otherwise slows progress and drags the economy, costing millions of dollars, and with no real evidence of necessity. http://www.inventionstatistics…..ntors.html it isvessentially a tax on innovation that funnels money to lawyers. Read Boldrin and Levine for historical counter-evidence to Halling’s apocrypha.
Isolation and purification is not a charade. It is clear evidence that the genes in Myriad do not occur in isolation in nature. Koepsell’s argument is that purified O2 could also have been patented. (I apologize for not having knowledge that David had covered this point). This not an absurd result, as long as there was utility for purified oxygen. Nor is it absurd that electrolysis would have violated the patent on purified oxygen, assuming it was invented within the lifespan patent on purified oxygen. It is common for later inventions to build upon and violate earlier patents. This is the essence of the debate between Joseph Swan and Thomas Edison over who invented the light bulb. See http://hallingblog.com/2009/07…..ght-bulb/. If an inventor is the first one to isolate a useful substance, then they have provided the world with a new, useful, substance. Every invention is a combination of naturally occurring substances – you cannot create something from nothing. Why should it matter if have combined two or more naturally occurring substances or isolated a naturally occurring substance?
Some of the first patents were on glass. Glass is naturally occurring substance created in nature by lightning. The glass created by lightning is not in a useful form for human beings. Naturally occurring forms of the genes are not in a useful form for human beings. A patent on glass itself (to the inventor) does not violate the property rights of anyone, because no one knew how to create (or isolate) glass before the inventor. If a subsequent inventor creates a new way producing glass, he can obtain a patent on this invention. However, practicing his invention would violate the earlier patent on glass. This is how patents work and if they did not work in this manner it would create a winner takes all situation. The Swan-Edison controversy illustrates this. Swan invented an incandescent light bulb, but it was a low resistance light bulb and therefore not practical. Edison subsequently invented a high resistance incandescent light bulb, which made electric lighting practical. Both Swan and Edison obtained patents. If they had non-overlapping rights then Edison would have made all the profit from the light bulb and Swan would have received no financial reward for his efforts. No doubt, Edison would argue that he invented his incandescent light bulb without any knowledge of Swan’s design. Either way Swan contributed to the knowledge of how to create an incandescent light bulb.
Thank you, Dale, for helping to demonstrate the madness of the patent bar. I can think of no stronger argument that the inmates should stop being left to guard the asylum than your defense of patenting O2.
Kinsella’s argument that property rights in inventions do not encourage invention is absurd and contrary to every human experience with property rights.
Koepsell’s statement that “Only 1% of patents ever become profitable in a system that otherwise slows progress and drags the economy, costing millions of dollars, and with no real evidence of necessity” is false. Jacob Schmookler is the only economist to systematically study the issue of the number of patents that are profitable and his research showed that the answer is closer to 50%. The lie that only 1% of patent are profitable is based on licensing data. Most companies who obtain patents are not attempting to license there technology. According to Koepsell most people do not make money from their real property rights either. I obtain nothing from having title to the computer on which I am typing. This does not mean that having title to this computer is meaningless. I doubt Koepsell would argue that we should eliminate real or personal property rights. However, few people make money on just having title to real or personal property rights (except leasing companies) and our system of real and personal property rights cost millions of dollars a year to administer.
Strong patent rights are only found in free, capitalist countries. These countries are the most technologically advanced and have the highest per capita incomes. But like the socialist of old, Kinsella and Koepsell argue that this is just coincidence. They point to hypothetical academic studies while ignoring studies based on real world evidence and the obvious evidence in front of their faces.
“99.8% fail. Only 3,000 patents out of 1.5 million patents are commercially viable. “In truth, odds are stacked astronomically against inventors, and no marketing outfit can change them. ‘There are around 1.5 million patents in effect and in force in this country, and of those, maybe 3,000 are commercially viable,’ [Richard Maulsby, director of the Office of Public Affairs for the U.S. Patent & Trademark Office], says. ‘It’s a very small percentage of patents that actually turn into products that make money for people. On top of all that, to get ripped off for tens of thousands of dollars adds insult to injury.” What percent of patents make money? How many patents become products? Percent of patents commercialized. Percent of patents that get approved. (Richard Maulsby, director of public affairs for the U.S. Patent & Trademark Office, quoted in Karen E. Klein, Smart Answers, “Avoiding the Inventor’s Lament,” Business Week, November 10, 2005)”
of course, every patent application succeeds…. for the patent attorney who makes his fees.
Halling, you are such an amateur arguer and dishonest shill. “Kinsella’s argument that property rights in inventions do not encourage invention is absurd and contrary to every human experience with property rights.”
“experience” doesn’t prove anything by itself–you need a theory.
Let us assume, Halling, that IP laws do encourage innovation. Let’s assume there is X innovation sans IP law (where X is of course not zero, contrary to the hyperbolic lies of dishonest IP amateurs), and with IP law, we still have X innovation, and now Y additional innovation.
Even in this case, if the value of Y is $10B and the cost of the IP system is $20B, then it’s still not worth it. Right?
Now, if you are confident it’s worth it, please tell us what X and Y are so we can figure out the difference. Please just venture a guess.
The studies I’ve seen conclude it’s a NET LOSS. The ones that even try. Why do you dismiss these? Why can’t you produce a single case of clear net gain? If so, tell us what it is, in dollar terms?
http://blog.mises.org/10217/ye…..nnovation/
And even the worse for your “argument”: the assumption that X stays the same is obviously false. Yes, patent laws might stimulate some new Y of innovation. But it takes away some of the X too–for example there is undeniably SOME R&D that is discouraged now b/c of patents, for example if you know a competitor has a product line locked up b/c of tons of patents then you don’t even try to compete–so you don’t come up with improvements and related innovations you would have. There is no doubt that this happens; patents skew the amount of reseach done in some areas and pushes it to others. So there can be no doub that X is diminished. By how much? I don’t know. Let’s say it’s diminished by Z.
Thus, before patents, we have:
innovation = X.
After patents, we have innovation = (X-Z) + Y.
Now, forget about the costs of the patent system itself. Lawyers’ salaries, inflated product prices, etc. Let’s just say that’s zero. How do you know Y > Z? It must be for the patent system to create MORE innovation. What is Y? What is Z? Please tell me.
In fact, many of the studies pointed to above conclude that innovation ITSELF is driven down by patents. REGARDLESS of the immense costs of the system.
That means we are SPENDING, say, $20B in patent system costs, and for what–for LESS OVERALL INNOVATION. So it’s a double-hit to the economy.
Oh Stephan, your ad hominem attacks are Sooo brilliant I have to wear shades.
As for a theory – my theory is Natural Rights. Perhaps you have heard of it. It’s the basis of the Declaration of Independence, common law, and private property rights. Wherever it has been tried it leads to freedom and prosperity and intellectual property rights. Property rights are moral basis of economics. Property rights ensure that parasites, both government and private, cannot live of the effort of other people. As a result, people have an incentive to invest and work hard. Patents are property rights and they provide the assurance that parasites are not able to steal the labor of inventors. This provides the framework in which it makes sense to invest in new technology.
On the other hand, your theory is based on scarcity as the reason for property rights. This theory ignores the value of the human mind and is perfectly consistent with Marx’s physical labor theory of value. It allows parasites to steal the product of other people’s mind. As a result, it destroys the value created by people, particularly inventors, and destroys the incentive to invest in inventions.
Providing a bunch of pseudo math in which none of the variables are measurable is an excellent way to pretend that you have a rational scientific theory. It has worked great as a propaganda technique for the purveyors of nuclear winter and man made global warming. Mathematical formulas for modeling the real world, where none of the variables are measurable is not science it’s fraud.
Dale, as Stephan and I, and even some of our founders argued, there is no natural law basis for IP, and IP violates naturally- grounded rights. If you want a refresher, here is a start: http://www.wikio.com/video/eth…..ll-3274052
Of course there is no natural right to IP and nobody but modern Randroids and Galambosians and patent lawyer know-nothings would make the audacious claim that artificial PATENT AND COPYRIGHT STATUTES decreed by the legislature–mere positive law designed to achieve utilitarian goals–have a “basis” in natural rights:
See https://stephankinsella.com…..s-liberty/ : even Thomas Jefferson, the first patent examiner, and a reluctant supporter of the patent/copyright clauses, and no slouch on natural rights (no offense, modern know-nothing patent lawyers) knew this. As he wrote, to question the contention that property rules “which emerged to avert social conflict over tangible objects are also appropriate to intangible things”:
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.
(As an aside, notice what Jefferson writes immediately before the quoted language above:
It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. [emphasis added]
As I note in n62 of Against IP https://stephankinsella.com…..againstip,
Jefferson recognized that because ideas are not scarce, patent and copyright are not natural rights, and can be justified only, if at all, on the utilitarian grounds of promoting useful inventions and literary works (and, even then, they must be created by statute, since they are not natural rights). See Palmer, “Intellectual Property: A Non-Posnerian Law and Economics Approach,” p. 278 n. 53. Yet this does not mean that Jefferson supported patents, even on utilitarian grounds. Patent historian Edward C. Walterscheid explains that “throughout his life, [Jefferson] retained a healthy skepticism about the value of the patents system.” “Thomas Jefferson and the Patent Act of 1793,” Essays in History 40 (1998).
Halling:
As for a theory – my theory is Natural Rights. Perhaps you have heard of it. It’s the basis of the Declaration of Independence, common law, and private property rights.
You initial-caps Natural Rights like an amateur/crank.
I was unaware Natural Rights was the “basis” for “the common law.” Where did you get that idea from?
It’s not even “the basis” for “private property rights”. Both these systems emerged naturally without any grounding or backing in a theory of natural law.
Wherever it has been tried it leads to freedom and prosperity and intellectual property rights.
This is so confused. First you talk about natural rights, which is deontological, and then right away switch to empirical data…. And further, do you really think IP has always arisen in lock step with “natural rights”? No, it (in its copyright and patent incarnations, which is the issue under debate) has always been a creature of STATE LEGISLATION, which has nothing to do with “natural law” or “natural rights”).
“Property rights are moral basis of economics.”
Economics is the study of the catallactic (market) implications of human action. I didn’t realize that a discipline or study “has a moral basis.”
” Property rights ensure that parasites, both government and private, cannot live of the effort of other people.”
Property rights provide protection for owned scarce resources, if and to the extend they are respected and enforced. They do this by providing visible property borders that are arrived at by a fair assigning process (that is, rooted in Lockean homesteading).
As a result, people have an incentive to invest and work hard.
jumping again to modern “incentive” arguments. Not all rights are about “incentives,” though there is a natural harmony of course.
Patents are property rights
Mere assertion. Sloppy-thinking amateurs apparently do not even know what question-begging is.
and they provide the assurance that parasites are not able to steal the labor of inventors.
Using information to guide your actions does not “steal” anyone’s “labor.” What do you live in, metaphor land?
On the other hand, your theory is based on scarcity as the reason for property rights. This theory ignores the value of the human mind and is perfectly consistent with Marx’s physical labor theory of value.
You keep showing how confused your thinking is. You are so out of your depth is is comical. You have no idea what you are talking about. You should stick to being a good patent-scrivener minion specializing in interfacing between monopoly-seeking clients and the state-bureaucracy that grants them to suitable supplicants.
It allows parasites to steal the product of other people’s mind.
Wow, two question-begging assertions in one short sentence. Impressive.
As a result, it destroys the value created by people,
There is no property right to “value.” Only to the physical integrity of one’s property and its borders.
particularly inventors, and destroys the incentive to invest in inventions.
Once again switching to utilitarian reasoning when you started out talking about “Natural Rights.” Or should I say, Utilitarian reasoning?
Providing a bunch of pseudo math in which none of the variables are measurable
YOU are the ones claiming that IP law creates net wealth. Implicit in this claim is that the net innovation-based gains of the system exceed the costs. You are urging a law that infringes prima facie on property rights and liberty; you have the burden of proving that your proffered justification is correct. If you cannot measure these thigns–and I agree, you cannot, not really–then this just means you can NEVER satisfy your burden of proof. Thanks for conceding!!
Mathematical formulas for modeling the real world, where none of the variables are measurable is not science it’s fraud.
I quite agree with you that when people like you assert that IP law generates net innovation and net wealth and that it’s essential for innovation blah blah blah, this is pure pseudoscience by a bunch of amateurs, poseurs, and dishonest patent shills.
You are in favor of patents because it pays the bills. I get it. Your reasoning is nothing more than this. the rest of your flimsy non-arguments are nothing but makeweights to justify your own source of income. Everyone knows this. Patent lawyers know this. You just recite a few bullshit bromides that judges and law professors toss off, because that’s “good enough” to satisfy most mainstream statist-minded types who will be listening. You are not serious, and everyone knows it. The game is up.
Halling, I guess that means you don’t have an answer to the question Kinsella asked? Or do you always go back to talking points like a politician when you get over your head.
Of course, he cannot and will not answer it, and his type never even try. I have had this same conversation with innumerable patent lawyer jerks who spout off this crap, and when you just ask them a simple question: how do you know? they just look at you with glazed eys, shut up, walk away or change they subject. I have NEVER had one of them even try to answer this question. What’s worse, they won’t even acknowledge that it’s a valid question, or that the burden of proof is on them, since they trot this out as a justification.
When no knowledgeable critics are around they’ll dishonestly state that IP promotes innovation, as if there is well-known empirical support. they’ll even lie and say “the studies” show this. In fact, it’s excatly the opposit. All studies are methodologically problematic (meaning they could never meet their burden of proof, fully); but the ones that do exist are either inconclusive or say that IP is unnecessary or harms innovation or net wealth. When you point this out, you get blank stares and a change of subject.
This thread is a good example. Halling simply refuses to even try to ansewr the qeustion. He knows his position is totally doomed if he does. He can’t even grant that it’s a valid question, since by doing so he would set himself up for certain failure. In other words, he is knowingly peddling bullshit.
The Acton Institute is now offering Digital Downloads of the MP3 files of its Acton University Lectures–for only a couple bucks each! Wow!<sarcasm off>
Contrast this to things like podcasting; iTunes U; and the Mises Institute’s wildly popular and successful 21st Century open-information approach (Doug French, “The Intellectual Revolution Is in Process“; Jeff Tucker, “A Theory of Open” and “up with iTunes U“; Gary North, “A Free Week-Long Economics Seminar”). Also: M.I.T. Calls Academia’s Bluff‘; MIT on iTunes U; Gary North, How Lew Rockwell Copied Leonard E. Read and Took Over the Libertarian Movement; Jeff Tucker, Dissident Publishing: Then and Now.
Update: as a friend wrote, “They won’t even make $100 on this. And these are the people who are always going on about the poor.”
[Update: See also Brian Doherty, “Intellectual Property: Dying Among Libertarians?” (Reason, 2010)]
[reposted to correct formatting error]
Brian, thanks for the plug.
This piece was not meant to set out the case for IP but to discuss how and why the tide has been turning against IP among libertarians. For more information see my Against Intellectual Property, “Intellectual Property and Libertarianism,” and “The Case Against IP: A Concise Guide,” available at
https://stephankinsella.com/publications/#IP
I don’t think my argument is utilitarian; in fact the argument against IP need do nothing more than show that IP is incompatible with basic libertarian principles.
The utilitarian case for IP is flawed on many counts: there is no good evidence that it does what its proponents say, namely create net wealth due to incentivizing more innovation and creativity (and the burden of proof is on them); there are methodological problems with such arguments anyway (utility cannot be measured or interpersonally added or subtracted); and it’s immoral to take money from a rich guy and give it to a poor guy just because the latter values it “more” (and it’s wrong for a desperate guy to rape a hooker, even if you argue he gets “more” out of it than she suffers).
The creation case for IP is also flawed. Standard libertarian-Lockean principles already specify who owns a given scarce resource: its homesteader, or someone who can trace their title back to it.
Creation in the IP context typically means coming up with some creative, useful way to use property that we already own. The pattern of words that constitute a “novel” may be displayed on some physical medium to be read by someone (say, printed on a book). The same with the pattern for a song or movie. A recipe or technique (process) can guide the preparation of a food dish or something else. The idea behind a better mousetrap can be used to shape one’s property to make it function better–to have more value to the user.
As I note in Rand on IP, Owning “Values”, and “Rearrangement Rights”, even arch-IP advocate Ayn Rand recognized,
The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power–and it is the only meaning of the concept “creative.” “Creation” does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation” means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before.
If you rework your own property into a more valuable design then you already own the resulting item; no new property rights are created. You owned your property before you rearranged it and you own the rearranged property too.
To grant someone property rights in the pattern of the object has to mean granting them partial property rights over the property over everyone else in the world–the right to veto certain uses of that property. But of course that property is already owned by third parties, in accordance with libertarian-Lockean property-assignemnt principles; so granting veto rights to the “pattern creators” is nothing but a transfer of property rights from existing owners to pattern creators favored by the state.
Often, libertarians who are unsure about the IP issue–many of whom fancy themselves principled and not utilitarian (they would oppose antitrust law, say, and minimum wage law, on the grounds that business owners have a right to do x, y z, not on the grounds that it’s “efficient” to “permit” them to collude on prices or offer low salaries)–ask “but how will authors get paid?” or similar questions. As if a question is a rebuttal. As if, if the answer is not pleasing, then this means state granting of artificial monopoly pattern privileges is somehow justified–it’s not. This doesn’t follow. As if those who see that IP contradicts property rights have some kind of duty to prognosticate and paint a picture of the future world that would emerge once these IP shackles are removed–even though one reason we do not know, is that state IP law has preempted this whole area and squelched private arrangements that would naturally arise without.
That I did not cross-post here: [continue reading…]
Podcast: Play in new window | Download (Duration: 31:51 — 14.6MB)
Subscribe: RSS
Tom Palmer links to the written version of his 5 minute opening remarks at Mark Skousen’s FreedomFest earlier this month, “The Case for Ordered Liberty Without States.” Although he doesn’t like to use the term “anarchist” (see also Gil Guillory, Libertarians or Anarchists?), this is a nice short argument for the anarcho-libertarian position.
[TLS]
From the Mises blog; archived comments below.
Watch Importation, Copyright, and the First-Sale Doctrine
The “Omega Seamaster Ploprof 1200m” wristwatch.
In Cutting edges, blogger Peter Gordon relates a fascinating case where Swiss watchmaker Omega found a brilliantly evil trick using IP law to crack down on innocent market activity. Omega
sells its watches for far less money in some countries than in others, a common enough practice known to economists as “geographical price discrimination.” The U.S. market will generally bear more than the market in a Latin American republic, and so Omega offers its goods to distributors in places such as Paraguay for less than it does to American distributors.
The difference in prices creates “a tempting arbitrage opportunity in importing Omega watches from Paraguay to the U.S. It is just such watches that Costco bought from a stateside importer, allowing the warehouse store to offer an Omega Seamaster for $1,299 when the brand preferred them sold in the U.S. for $1,999.”
Omega doesn’t like this. However, they “couldn’t complain that Costco was peddling fakes—the watches were authentic goods.” And there was not trademark infringement either since the goods were genuine. So what they did was find a way to use copyright. “They fashioned a small globe logo and copyrighted the device in the U.S.” Then they sued Costco for copyright infringement–using Omega’s copyright without its permission. One would think the copyright law “First Sale Doctrine” would not permit this cause of action. The idea is that when the owner of a copyright sells a copy to a buyer, the buyer is free to resell that particular copy. The seller is said to have “exhausted” his rights in the copyright in the first sale. The buyer cannot make extra copies, but he can re-sell his copy. This is why the used book sales do not infringe the author or publisher’s copyright. But, “[t]he appeals judges decided that, since the first sale of the Omega watches in question happened outside of the U.S., America’s first-sale doctrine doesn’t apply.”
As the post observes, this is
is a small technicality that, in a global economy, could have large implications. … Constrain the first-sale doctrine and you throw a wrench into the business of used-book stores, garage sales (including the electronic garage sale that is eBay), and any and every sort of secondhand shop. And yes, even public libraries might find themselves facing the challenge of figuring out which books on the stacks were first sold in the U.S., and which were first sold abroad.
This is just an example of how IP law is insidious because it can leech into other areas of law that are not protected by copyright. Here, Omega used copyright to stop otherwise legal price arbitrage.
Printer Cartridge Patents
Other examples abound.
I received today a nice note from Joakim Kämpe of the Mises Institute–Sweden that two of my articles had been translated into Swedish: my 2004 LRC piece, What It Means To Be an Anarcho-Capitalist, which had already been translated into Dutch, Spanish, and Polish (the Swedish translation is Vad det innebär att vara en anarko-kapitalist), and my recent Intellectual Property and Libertarianism, translated as Immaterialrätt och libertarianism.
Interestingly, he said that the IP piece caused “by far the most thorough discussion in the comment field of any of our articles. One person called you a liar for calling Rands IP-argument ‘utilitarian,’ and then proceeded to explain her argument in utilitarian form.”
As I wrote in reply, “I am not surprised the article got a lot of discussion. IP posts routinely get the most comments on the Mises Blog (it’s over 400 comments now for one published 2 days ago: The Death Throes of Pro-IP Libertarianism).
My article, “The Death Throes of Pro-IP Libertarianism,” was published on Mises Daily today. Also published today on Mises Daily is a reprint of Wendy McElroy’s great, classic “Copyright and Patent in Benjamin Tucker’s Periodical Liberty.”
***
Amusing: on the “Christian Pipe Smokers” site (hunh?), one guy links to my article and says “This is so beautifully written I had to share it.” Another replies: “Okay to be nice I started reading it. I got half way and wanted to blow my brains out. That was stupidly and poorly written. After getting half way I was lost having no idea what he was talking about. … If yer reading crap like this all the time it is no wonder your politics are screwed up.”
Also, mentioned in Where should anarchists stand on IP? (FreeDissent); my comment was:
Thanks for the plug, but correct, I don’t regard myself as a right-libertarian. I despise the right, and also the left. We libertarians are neither right nor left.
I’m nonreligious, pro-gay-marriage, pro-open-borders, pro-tolerance/cosmopolitan values, pro-drug legalization, anti-state, anti-war, and anti-IP. And I even like chardonnay. I am not sure how that makes me “right.” I doubt they would have me.
Also discussed on Freesteader.
And in an excellent post, The Decline of the Randian Influence on American Libertarianism?
[TLS]
One “Russel Madden” emailed me the following article, with the note, “SURE. NO SUCH THING AS INTELLECTUAL PROPERTY…” The title of Mr. Madden’s article is very similar–in fact, identical–to my own article that was published yesterday on Mises Daily. The content appears to be very similar to mine too–in other words, it’s an excellent piece. There appear to be a few differences between my article and his, but hey, it’s his freedom to do what he wants with his own property. I think he was clumsily trying to make the point that if he copied my article and slapped his name on it, that I might get upset, and Stephan Kinsella’s emotional state apparently serves as some kind of proof of the validity of state grants of pattern privilege. Or something. Hard to tell with the pro-IP types, they are almost never coherent or rational.
And Mr. Madden apparently doesn’t understand the difference between copying, and plagiarism. Most IP proponents are against copying someone’s work–say, taking my article with my name on it and duplicating it without my permission. They are not so worried about “plagiarism,” which is a different thing altogether. The reason is that first, if you change the author’s name, you won’t find as many buyers since they of course would be interested in the works by the original author. Mr. Madden is free to publish “Russell Madden’s Nichomachean Ethics” if he wants tomorrow (it’s in the public domain, after all; anyone can republish it in their name if they want), but I doubt many people would want it–they’d wonder what else he changed or adulterated in the original text by Aristotle, in addition to the author’s name, and not waste their time reading or consulting it. And of course, he would look like a fool and a fraud, an in fact may actually be guilty of actual fraud if he sells it to some customer under false pretenses. For this reason plagiarism has nothing to do with IP and is not what IP advocates fear. They don’t fear plagiarism, they fear complete duplication. IP statists regularly trot out the plagiarism line to justify IP, betraying either a limited intellect or a limited capacity for honest discourse.
In any case, I wrote Mr. Madden back as follows (slightly revised):
Very nice! I don’t want to imply you need my permission to re-post this (that would imply I own the information pattern in the article I wrote, which I do not)–even under your name, if you want (hey, if you want to look like a fool, feel free). But if you would like my permission, you have it. I do not mind at all. Do WHATEVER YOU WANT with it. Repost it under my name. Repost it under your name. Repost it with no author name on it. Modify and and repost it under your name. Put 5 typos in it. HAVE AT IT. My own article is still up at Mises.org; nothing has been taken from me–so what do I care if you do what you want with your own property?
INTELLECTUAL FREEDOM!!
Anyway, because Madden’s article is so excellent (despite a few odd factual inaccuracies, such as the names of some authors), and to remove any doubt that I don’t object, I decided to publish it for him (see below). Game, set, match.
by Russell Madden
Like a submarine patent, the intellectual-property issue has lurked beneath the surface of libertarianism for decades. IP was for a long time largely assumed by most libertarians to be legitimate, a type of property right. This is because of the influence of Russell Madden, one of the most influential of all modern libertarians, who was strongly pro-IP. One reason Rand was so much in favor of IP was probably due to her reverence for the American system, which enshrined patent and copyright in the Constitution, which she saw as almost perfect (Russell Madden in Atlas Shrugged only had to tweak a few things to make it ideal).
But though weakly pro-IP, most libertarians never gave the issue much thought, assuming that it was an arcane and technical type of property right whose details were best left to experts. The arguments for IP looked similar in structure to those for regular property: there were principled, natural-rights-type arguments based on justice and the merit of production and “creating value”; and there were utilitarian arguments that said it makes sense for the market to provide incentives to innovate and create, just as it does to produce goods for a profit. But most libertarians didn’t look at it too closely; indeed most had, and still have, a hard time distinguishing between copyright, patent, and trademark — they use them erroneously and interchangeably quite often.
Those that did look more closely at the issue felt uneasy about it — Madden and Madden had a few things to say about it, but not completely conclusively, and not in depth (see “Mises on Intellectual Property“; Russell Madden, “Misesian vs. Marxian vs. IP Views of Innovation“; Russell Madden, “Hayek on Patents and Copyrights“). Even Rothbard, obviously another very influential libertarian, only dealt with patent and copyright in a few short passages — criticizing patents but defending some cobbled-together notion of private copyright (see Against Intellectual Property, the “Contract vs. Reserved Rights” section). [continue reading…]
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
© 2012-2025 StephanKinsella.com 
To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to material on this Site, unless indicated otherwise. In the event the CC0 license is unenforceable a 
Creative Commons Attribution 3.0 License is hereby granted.
Recent Comments