StephanKinsella.com

From Mises blog; archived comments below.

No, not me. Michael F. Martin, a patent attorney with Drinker Biddle. The March 2010 issue of Liberty (which also features a letters exchange regarding my December 2009 Liberty article, Intellectual Property and Libertarianism) features the following guest reflection by Mr. Martin:

Sane and sound — “The hallmark of sanity is to remain firmly tethered to reality,” said the federal judge to the parties of a patent infringement litigation between a large Canadian computer company and a small, patent holding company (a.k.a. “patent troll”) after a jury had found the computer company liable for infringement. The computer company in question? Research In Motion, makers of the Blackberry. The case finally settled for $612.5 million.

That was March 2006. In May 2006 there followed the Supreme Court’s announcement of its decision in the case of eBay v. MercExchange. In eBay, the Supreme Court overturned the Federal Circuit rule that permanent injunctions should issue against patent infringers “absent exceptional circumstances.” Many large companies in the software industry, which tend to be defendants, have hoped that eBay would put an end to “patent trolls” and their own patent infringement liability. Indeed, since eBay only a handful of injunctions have issued to patent owners who do not practice their invention. “But,” wrote the Supreme Court in eBay, “traditional equitable principles do not permit such broad classifications.” And thus, just over three years later, on Dec. 22, 2009, the Federal Circuit upheld an injunction and award of $290 million in damages for patent infringement — this time to a small Canadian startup, i4i Inc. The defendant was Microsoft Corporation, maker of Microsoft Word, which had incorporated into its software an XML editor patented by the startup.

The difference between the cases? Unlike the “patent trolls” in the earlier cases against RIM and eBay, one of the inventors behind the i4i patents, Michael Vulpe, was also an entrepreneur, who had started a business to commercialize the patented concepts. [continue reading…]

See “Libertarians” Who Object to “Self-Ownership”.

My article “Intellectual Property and Libertarianism” was published in the December, 2009 issue of Liberty; the March 2010 issue features the following exchange in the “Letters” section. [See archived comments below from the Mises Blog version of this post]

[Update: See Roderick Long’s excellent response to the type of argument Yeager makes below, in his post This Self Is Mine. See also my post “Libertarians” Who Object to “Self-Ownership”]

Philosophizing IP

Thanks to Stephan Kinsella for questioning the justice of intellectual property (“Intellectual Property and Libertarianism,” December 2009). Like many libertarians, he posits property rights as the foundation of libertarian political theory, and suggests that because it is a derivative concept, we stop calling the nonaggression principle an “axiom.” So far so good. But Anthony de Jasay suggests that the concept of “property” itself should in turn be considered derivative, from the still more fundamental principle of liberty of contract. De Jasay also defines “rights” and “liberties” more carefully and usefully than most libertarians, who use these loaded words all too loosely — Kinsella included. (See de Jasay’s “Choice, Contract, Consent,” or “Before Resorting to Politics,” reprinted in “Against Politics.”) [continue reading…]

[From my Webnote series]

From the comments to Reducing the Cost of IP Law [archived Mises blog comments] (see also my related post The Non-Aggression Principle as a Limit on Action, Not on Property Rights):

Russ:

“…You are (in effect) assuming that only scarce (and hence physical) entities can be “property” in order to “prove” that ideas and patterns cannot be “property”.”

I agree, Stephan. In Randian terms, you are smuggling in as an assumption that which is to be proved; that only scarce goods can qualify as property. In your own terms, you’re begging the question, every bit as much as you accuse others of doing.

Kerem: “How is, “IP is not valid because it infringes on the property rights of others” is an independent argument when it depends on the never proven but often assumed assertion that only scarce things can be property?”

It does not assume that ONLY scarce things are property, but it assumes that scarce things ARE property–don’t we all agree on this? The one that is up for debate is property in anything else. My contention is that assigning rights in non-scarce things necessarily undermines rights in scarce things. Since we all agree with rights in scarce things, we should oppose the type of rights-inflation that undermines this. [continue reading…]

[From my Webnote series]

[See also IP and Aggression as Limits on Property Rights: How They Differ; and Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023): ch. 15, “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward,” Part IV.H, ch. 2, “What Libertarianism Is,” the section at n.52, “Property as a Right to Exclude”; also ch. 8, “Causation and Aggression,” text at n.3.]

[Update: see also Tom G. Palmer, “Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects,” Harvard Journal of Law & Public Policy 13, no. 3 (Summer 1990), available at tomgpalmer.com, pp. 830–31:

To those who might argue that any form of property limits liberty in some way, Jan Narveson responds:

This is to talk as though the ‘restrictions’ involved in ownership were nothing but that. But that’s absurd! The essence of my having an Apple Macintosh is that I have one, at my disposal when and as I wish, which latter of course requires that you not be able simply to use it any time you like; it’s not that you can’t have one unless I say so. [Quoting Jan Narveson, The Libertarian Idea (Temple University Press, 1988) at 77]

J.C. Lester, who pretends to be a libertarian anarchist yet supports intellectual property, makes the same argument criticized in this post. In Escape from Leviathan, he writes:

Intellectual property, we are told (281) [by Tom Palmer], conflicts with physical property and self-ownership. However, all forms of ownership constrain other forms of ownership. It is no more a valid argument against intellectual property that it restricts some things one can do with one’s person and physical property than it is that physical property limits what we can do with our bodies. If I may not walk onto your land without your permission, for instance, that does not mean that I do not own my body. Neither does it if I cannot play your music without your permission.]

From a discussion with “Russ”:

If IP really were a valid right, then a person would have “a right to use force against another to prevent them from using their own property to reproduce the aforementioned creator’s work”. That’s what the word “property” implies! For instance, let’s say that you own a gun. Let’s say that I own a dog. By virtue of my ownership of the dog, I do have the right to use force against you to prevent you from using your own property (your gun) in any way you might wish (e.g. if you wish to shoot my dog with your gun). Similarly, any property right implies the right to use force to limit what another can do with their own property.

Sure. And if chattel slavery were valid, the whipping of one’s slave would not be aggression. And if pigs had wings they could fly. But chattel slavery is not valid, and pigs do not have wings—and IP is also not valid.

Your mistake seems to be the assumption that property rights give you the right to do anything whatsoever with your property.

No, the assumption is only that you may engage in whatever action you wish, except those that invade the borders of others’ property—where “property” is conceived of in the Lockean sense of scarce resources homesteaded by appropriation, based on the first-comer has better title than the latecomer principle.

The fact that some actions are impermissible because they are invasions of others’ property rights has nothing to do with any “limitation” on one’s own property. You may not commit murder, whatever the means—whether it’s your gun or not. The limitation on action is not a limitation on property rights. In fact actions are limited because of others’ property rights!

They don’t. The right to swing your baseball bat ends where my front window begins. Similar, if IP rights were valid, your right to use your computer would end where my IP rights begin. Your argument just says that IP rights are invalid, because the limitations they necessarily impose on others’ property are invalid. But the limitations that IP rights impose are no different than the limitations that classical property rights impose.

Wrong. The limitations you are speaking of are not a property rights limitation but rather a limitation on one’s actions.

If these limitations are wrong, and invalidate IP, they also invalidate classical property rights.

If you want to keep classical property rights, which it seems you do, you need to come up with another reason why IP rights are invalid. I prefer an argument that is based on the fact that material objects are scarce goods, while patterns of ones and zeroes are not.

Because the question always comes down to: who owns this scarce resource–e.g., in a typical IP case, the IP “owner” claims the right to prevent A from using a scarce resource A himself homesteaded or acquired contractually from a homesteader. He claims the right to prevent this use even though A’s use—his action—does not invade any borders of A’s property. It is very different than your typical prohibition on murder etc.’

Update: for an example of this confusion, see the comments here (duplicated here), where one “ABR” disagrees with my view that we are self-owners. He writes:

Kinsella writes earlier: “The libertarian view is that each person completely owns his own body—at least initially, until something changes this, such as if he commits some crime by which he forfeits or loses some of his rights.” This statement is misleading. Under libertarianism, a person is not allowed to strike another person aggressively. Nor is a person allowed to trespass on another person’s land. Effectively, others are constraining the behaviour of each person. A person does not completely own his own body.

I.e. the fact that you cannot use your body to invade another’s body (because he owns it) somehow means you do not own your body. Not so. The action of invading another’s body is prohibited because he does own his body; his body-ownership is a limit on what actions I can take; it is not a limit on my property rights in my body; in fact my property rights in my body mean that this other person also may not invade the borders of my body without my consent. I explain this in my reply here, which reads in pertinent part:

Saying I don’t completely own my body because I may not murder other people is ridiculous. If I own my body, it implies others similar situated also own their bodies; so the impermissibility of my using my owned body to harm someone else’s own body is an implication of my own self-ownership, it does not undercut it! (I am reminded here of Rand’s attack on (the idealistic version of) Kant who said reason was inefficacious because it had a certain nature! how absurd).

…

But B is already being told what he can and cannot do with his property. He cannot launch rockets against his neighbour. He cannot start fires on his property that spread to his neighbours’ property. A restriction on B not to print Atlas Shrugged is merely one of many restrictions he faces.

The prohibition on B harming A’s property has nothing to do with B’s property. It is not a limitation on B’s property rights. B may not invade A’s property borders with any means, whether they are owned by B or not. And the reason he may not, is because of property rights—A’s property rights. But if A has them, so does B.

The reason, however, that B may not invade A’s land is because it is A’s property. You cannot just say that this means it’s okay to prevent B from using his own property in certain peaceful ways, unless you show that it violates A’s property rights. To say that it does in the case of B just using his property according to a certain pattern or recipe, is to presuppose that A has a property right in patterns. Which begs the question.

Update: Elsewhere I point out that “a property right is not a right to use a resource, but a right to exclude others from using a resource. In practical terms this gives the owner the ability to use it as he sees fit so long as he is not using trespassing on others’ property rights.” ¹

Interestingly, George Mavrodes writes:

I propose to say that a certain agent owns a certain object if and only if he has the right to decide upon the disposition to be made of that object. And I will say that the owner’s having such a right entails at least two things: (1) the fact that the owner has disposed of the object in a way contrary to some other human agent’s preference is not, per se, evidence that the owner has done something which he ought not, and (2) the fact that some other human agent has disposed of the object in a way contrary to the owner’s preference is, per se, evidence that this other agent has done what he ought not. ²

This way of putting it is compatible with my approach here. The second part refers to the owner’s right to exclude others. The first implies that the owner using his property is not per se a violation of others’ rights (this is why ownership of a resource and the right and ability to exclude others implies, in most cases, the practical ability or capacity to use the resource), but it does not rule out that the use of the owned resource, by the owner, might in some cases be wrong. That is, merely owning a resource does not give the owner a blanket right to use it, since some uses violate others’ property rights. Keeping this in mind helps one from being lulled by the false formulation that property rights are limited by other property rights—and, thus, if IP rights limits normal property rights, that doesn’t show that IP rights are illegitimate; after all, all property rights limit other property rights! Or so the “reasoning” goes. But property rights do not limit other property rights; property rights limit others actions (and thus, do not directly give one a right to use one’s property as one sees fit; it simply prevents others from using it, without one’s permission). This is a subtle point and for some people, initially hard to grasp; but it is profoundly important.

***

Published: December 30, 2009 3:20 AM

• Stephan Kinsella

Gil: “If I can’t spray a hail of bullets into a crowd of innocent people then I don’t fully own my machine gun.”

No. The prohibition on your shooting bullets is not a limitation on your ownership of your gun. It’s a limitation on what action you can perform–whether the action uses your own gun and bullets or those of another person. Ownership has nothing to do with hit. (See my comments here.) The reason I may not shoot people (with whatever gun) is just a specific application of the general notion that I may not act so as to cause the invasion of the borders of another’s property; I may not invade their property borders; I may not interfere with the physical integrity of their property; I may not use their property without their consent. I may not trespass. All these things are actions that employ some means, of course, but the means need not be owned by me, and it is irrelevant whether they are (see also Intellectual Property and the Structure of Human Action). So the prohibition on my action is a result of presupposing the validity of property rights in scarce resources.

For you to make an analogous case about IP, to argue that my putting a pattern on my own DVD may also be prohibited, you have to argue that the action itself is trespass. That is, that my impatterning my own DVD somehow invades the borders of someone else’s property right.There are only two ways this is so. First, if the DVD is not my property. But this is false, per assumption. The other way is if my action somehow invades the borders of some other scarce resource that another person owns. But clearly it does not. I am not interfering whatsoever in your ability to use your own body and resources.

The only remaining way out of this is to say well, it doesn’t trespass against any physical property you own, but it does trespass against your property in a certain idea, since it prevents you from using and exploiting that abstract, disembodied idea as you see fit—it uses the idea without your permission. And this is true. It does use the idea without your permission. But this is only trespass if you own the idea. Which is the question under consideration when IP rights is debated: so it’s merely a circular, question-begging assumption. It is a totally invalid argument.

Published: January 21, 2010 2:59 PM

• Silas Barta
  

  The prohibition on your shooting bullets is not a limitation on your ownership of your gun. It’s a limitation on what action you can perform–whether the action uses your own gun and bullets or those of another person …

  Any argument that merely involves relabeling things is an automatic fail.

  (Which includes the quoted one above)

  If I can’t do X with my machine gun, that is a limitation on my right to use the machine gun. It doesn’t matter if it arises from someone else’s rights, or the lack of a specific right to do X.

  If you want to make a crucial, insightful argument, these relabeling tricks just don’t work.

  Published: January 21, 2010 3:16 PM

• Stephan Kinsella

Person,

If I can’t do X with my machine gun, that is a limitation on my right to use the machine gun. It doesn’t matter if it arises from someone else’s rights, or the lack of a specific right to do X.

If you want to make a crucial, insightful argument, these relabeling tricks just don’t work.

Silas, the trick is in people who say that there is nothing wrong with IP’s infringement of property rights since after all, your property rights are limited in all sorts of ways. This is a common argument; and it is wrong.

The reason I am not able to use my bullets to kill you is because using them in this manner invades the borders of your own property–your body. Using my blank DVD to impattern it in a certain way, however, does not use your body or other scarce resources, so you can’t say the two limitations are analogous. To make them analogous you have to presuppose that you own the pattern itself, which is question-begging.

Now do you get it?

Published: January 21, 2010 3:50 PM

• Peter Surda

Grudgingly, I have to agree with Silas. The argument presented this way is circular. It might be in future possible for me or someone else to “fix” this problem, however so far the approach has failed.

There is a slightly similar issue however, one that Silas has failed to address. The only way to conclude that trespass in IP occurred is to observe the trespasser. With rival goods, including EM transmissions, this is not necessary, because a trespass on those leads to an observable change occurring at objects in the rightful owners’ possession or at their premises. For example, a stolen car is observable by the lack of the car in the parking space. EM interference is observable by receiving a different wave than the one expected.

Besides the practical question of how to monitor everyone, there is a more fundamental problem. If the only way to conclude trespass is that the trespasser performs a certain action (regardless of his location), any action whatsoever can be claimed to be a trespass. Why is “copying” singled out as the only action that leads to such conclusion? Why not any writing? Why not any attempt to create a machine, or a drug? Why not laying on one’s bed? Or blowing one’s nose?

Published: January 21, 2010 3:59 PM

• Stephan Kinsella

Surda, what argument is circular? I disagree, if you are talking about mine about action etc. To say an action (or use of property, whatever) is prohibited because it infringes on the property of others, in typical cases such as trespass, does indeed presuppose the validity of property rights in scarce resources. It presupposes only that invasion of the borders of others’ owned scarce resources, is prohibited. Thus, if we assume both sides to the debate accept this, it does not follow that we have to accept that it’s okay to prohibit a use of property that does NOT amount to such trespass. This argument is not circular in the slightest. The argument simply points out that B does not follow from A.

Published: January 21, 2010 4:28 PM

See also Lamont Rodgers, Self-Ownership and Justice in Acquisition, Reason Papers:

Thus, Mack writes, “The existence of this constraint against Harry’s inserting his knife into Sally’s chest does not at all show that Harry has anything less than full ownership of his knife.”32 This is because the property right is itself constrained by the self-ownership of others. So the owner of the water hole owns it, even though he cannot preclude the travelers from drinking from it. The owner may well have a right to demand compensation for the access, but he cannot fully exercise his right to exclude people from the hole.

1. See Stephan Kinsella, “Against Intellectual Property After Twenty Years,” in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), p.421 n.62; see also “What Libertarianism Is,” in the same volume, p. 32. [↩]
2. George Mavrodes, “Property,” in Samuel L. Blumenfeld, Property in a Humane Economy (LaSalle, Ill.: Open Court, 1974), p. 184. [↩]
3. See also KOL021 | “Libertarian Legal Theory: Property, Conflict, and Society, Lecture 4: Causation, Aggression, Responsibility” (Mises Academy, 2011), transcript at 1:08:41; KOL019 | “Libertarian Legal Theory: Property, Conflict, and Society, Lecture 2: Libertarian Basics: Rights and Law-Continued” (Mises Academy, 2011), at 49:55. [↩]

Latest notable terms from this week’s Slate Culture Gabfest and Slate Political Gabfest (feel free to email me suggestions or leave them in the comments to the main page). Dana was the host for Culture Gabfest this week, filling in for Steve Metcalf; she did a great job. It’s become my favorite podcast, overtaking the Political Gabfest (in part because I disagree so much politically with the leftish politics of the latter–though Plotz can surprise, e.g. with his “contrarian” views on gridlock, the campaign finance decision, etc., while Emily routinely takes the mainstream, statist line at the same time she adopts the superior liberal “more-tolerant” pose). [continue reading…]

It’s widely believed–even by Nolan Chart libertarians–that the left and liberals in America are better on civil liberties than are conservatives. I’ve long believed that this is false: that both are terrible, and that if anything, the left is as bad as, or even worse than, modern American conservatives on civil liberties. (See my posts Everything you need to know about Judge Alito — Or, Good and Bad Judicial Activism; Left Socialists vs. Right Socialists; Liberals vs. Conservatives; Conservatives and Liberals; Liberals and Free Speech.) This is borne out again in a recent Supreme Court decision striking down campaign finance laws as being censorship in violation of the First Amendment. Predictably, the four left-liberal members of the Court dissented.

A better decision would have struck the federal McCain-Feingold law down without reference to the First Amendment, on the grounds that there is no power authorized in the Constitution to enact the law in the first place–after all, such a law would have been as unconstitutional in 1790 (before the Bill of Rights was ratified) as in 1791 [see The Unique American Federal Government and the work of Professor McAffee discussed in The Great Gun Decision: Dissent and in On States’ “Rights”]. [continue reading…]

A few related older LRC posts:

Re: Left Socialists vs. Right Socialists

Conservative Erick Erickson argues that, ironically, it’s Ted Kennedy’s fault that Obamacare may be dead:

Erick Erickson, the founder of the influential conservative blog RedState, is tying Republican Scott Brown’s victory in the Massachusetts special Senate election directly to the late Democratic Sen. Ted Kennedy, who held the seat.

Soon after Brown’s upset win over Democratic Attorney General Martha Coakley, Erickson said on CNN that if Kennedy, who had battled brain cancer, had not wanted to be a “martyr,” Democrats could have kept his seat.

“If Ted Kennedy had decided to resign, or retire, when he found out just how bad his health was, instead of wanting to be a martyr for the cause, the Democrats wouldn’t be in this position,” Erickson said.

HT Pat Tinsley, who writes,

I love it — Kennedy may have sabotaged his own beloved healthcare reform”!

Another irony in the Brown election is that a special election had to be held in the first place. The Democrats changed the state rule to prevent a sitting Governor from appointing the replacement to fill out the remaining term of a senator who left the Senate. Instead a Special election would be held. The change was made to prevent the then Republican Governor from filling Kerry’s seat when he left to assume the Presidency. Of course Kerry lost to Bush but the rule was never changed back and so they all had to live with the special election instead of having Deval Patrick be able to appoint a permanent replacement instead of the temporary Paul Kirk.

[LRC]

From LRC, 2005:

Re: Everything you need to know about Judge Alito — Or, Good and Bad Judicial Activism

Peter–the Barnett quote in your post is apt. If “judicial restraint” means a Rooseveltian judicial deference to unconstitutional New Deal legislation, then judicial restraint is not a good thing.

From the libertarian point of view, the federal Constitution as written is fairly libertarian, at least compared to the leviathan state into which the original central government has morphed. It is for this reason that we want judges to adhere to the strict text of the Constitution: because it is a way to help hold the federal government to its original, more-limited scheme. “Originalism” then–or opposition to activism–has primarily an instrumental value (as I argued in this Hastings Constitutional Law Quarterly review essay–which I wrote, coincidentally enough, after the journal approached me, at Professor Barnett’s suggestion). Because our Constitution is relatively libertarian, we want the federal government to abide by the limits the Constitution places on it. In such a context, activism is likely to be a lead to unlibertarian results because it will mean invention of new powers or relaxations on the limits placed on the state. We can hardly be surprised that the judicial branch of the state tends to decide in a pro-state manner; but to the extent judges feel bound by the text of the Constitution, the state’s growth will be somewhat impeded (albeit, one disadvantage of such as system is that giving some lip service to the “rule of law” cover or myth helps to legitimize the state’s actions). [continue reading…]

I worked with patent lawyer Steve Mendelsohn when I practiced law in the mid-1990s at Schnader Harrison in Philadelphia. He was a witty writer; one of his funnier pieces is this one, “Confessions of a Law School Asshole,” published when he was a law student at U. Penn in The Penn Law Forum (Sept. 26, 1990). I love his description of “asshole bingo,” and his question in class, “What’s a magistrate?”

I was interviewed yesterday by Mark Edge, as part of his “Edgington Post Interview Series,” for his Free Talk Live radio show, about my Mises Daily article, “Reducing the Cost of IP Law.” The interview is lasts about 35 minutes, and starts at 2:02:36 in the Jan. 20, 2010 show (MP3). Edge conducted an excellent interview–very informed and interesting. And, like many others, he’s come around to the anti-IP position.

[Mises; AM]

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