On GMO patent infestation, Kent Hastings comments on my IP views and those of J. Neil Schulman. Schulman responded:

My article "Informational Property: Logorights" begins by specifically disclaiming any state grants of monopoly. The concept stands or falls on its natural-property-rights arguments. Neither Samuel Edward Konkin III or Stephan Kinsella or anyone else has ever successfully answered the challenge I raised in my article, that without the identity of a thing being real enough to make it claimable as property, there would be nothing identifiable existing to be copied in the first place.

This is not arcane. It's just being pointedly ignored and Kinsella's attempts to change the subject don't make me forget what I wrote.

My response is as follows [my other comments on Schulman's logorights idea may be found in Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean Homesteading; Renaming Intellectual Property; and pp. 16, 26 et pass. of my Against Intellectual Property]:

Neil, I said your term "logorights" is somewhat arcane, not your theory, and there was no disrespect implied.

I think you are just wrong to assume that "having an identity" is a sufficient condition for being subject to property rights.

Consider: one has no property right the value of one's property, as Hoppe and Rothbard have argued (see Sheldon Richman on Intellectual Property versus Liberty); and likewise, one has no property right in the "identity" of one's property.

The reason is that owning value, patterns, identify gives you an ownership right in others' already-owned property. Saying you own the "identity" of a thing you own is another way of saying you own the pattern by which it is arranged-which is a disguised way of saying you have ownership rights in things everyone else owns. The standard Lockean account of property accepted by most libertarians says that the person who appropriates a previously unowned scarce resource becomes its owner. The IP advocate, of which you are one, says that if A thinks of a unique way to use his property or a unique pattern to impose on his own property, this act of intellectual innovation magically gives him partial ownership rights in property already owned by others. It lets you tell B how he can use his own property, even though B is the appropriator and by Lockean principles only B should be the owner. Granting A an IP right just means some of B's rights of control are transferred to A-it's a transfer of wealth or property, and it's incompatible with libertarian property rights.

The mistake Rand made was thinking "anything you create" is property, without first asking if the thing created is the type of thing that is subject to property in the first place. In fact, creation is neither necessary nor sufficient since if you create some new pattern using others' property you are not its owner; and if you impose a new pattern on property you own, then you own the transformed thing since you already owned the stuff of which it's made. A focus on creation as a source of ownership is the mistake made here. Creation is a source of wealth, sure, but not of ownership, since you can only create using things you already own.

Tibor Machan makes a similar mistake to your "identify" view when he assumes that many "ontological" types of things can be property-the mistake is in assuming that the way we conceptually and terminologically understand the world has some metaphysical basis that translates into property rights. By this view any concept we come up with to "identify" things that is successful, has magically created a new class of property. I find the concept "poem" useful-it is conceptually valid.. poems "have" "identity"-voila, they must be property!

I don't agree with this way of making rights depend on what concepts we have or how we identify and understand things in the world. Just because we can call something by a word, or call it a "thing," does not mean it is ownable. In fact, all ownership rights are enforced in physical terms against scarce resources; which means that granting rights in anything else has to undermine and dilute real rights in real things.

[Cross-posted on SK and Mises Blog]

From a post by Joe Mullin: Centocor v. Abbott: Biggest Patent Verdict Ever.:

This afternoon, a jury in Marshall, Texas, awarded the largest patent verdict in history: Abbott Laboratories must pay $1.67 billion to Centocor, a subsidiary of Johnson & Johnson, because its Humira arthritis treatment infringes U.S. Patent No. 7,070,775. ... The jury deliberated for five hours before issuing the verdict, which specifies $1.17 billion for lost profits and $504 million as a reasonable royalty.

As I noted here, referring to a $1.92 million verdict against Jammie Thomas for "illegally" sharing 24 songs, "The pro-IP libertarians ought to hang their heads in shame. If they support this result, it's unthinkably evil. If they oppose it-well, they really can't, can they, since this is the result of having a state-run IP system-of having a state at all."

[Cross-posted at StephanKinsella.com and Mises blog]

The recent issue of IP Law & Business has a fascinating Q&A with Harvard law professor Charles Nesson, who is representing Joel Tenenbaum, a 25-year-old doctoral student being sued by five record companies under the Digital Theft Deterrence and Copyright Act of 1999. Tenenbaum refused to settle, and Nesson is arguing "that the law is unconstitutional because it allows for 'grossly excessive' awards."

While it's demeaning to have to hope for a just statutory interpretation by fake judges appointed by the criminal state of an artificial positive law enacted by "law"-makers of another department of the same criminal gang, it's heartening to see some people fighting back, and some otherwise mainstream legal professionals fighting for them. I doubt Nesson is a libertarian or against IP completely, but some of his comments are great. For example, he says,

"With the Net, there are artists who are figuring out ways to profit without using this clout of the copyright law. ... I believe the recording companies have great skills to offer artists, and there may need to be some reshuffling in the way those skills are passed around and the ways in which revenue is returned. ... If you see the United States in a competition with other nations in a digital world, and you think the best asset you have for the future are your own children, who will become the digerati, who think imaginatively in that environment, you will be against the idea that you use the law, the power of the state, to make those learners fearful of clicking on the Net."

(Aside: I also like how the same publication refers to a recent patent settlement as a "tax": Intuit Taxed $120 Million by Intellectual Ventures.)

[Cross-posted at SK and Mises]

The Supreme Court has declined to take an appeal of a case that held that Cablevision does not infringe copyright by providing a "remote DVR" service to its customers--the court reasoned that it is the customers, not Cablevision, who are making copies of programs, which they are permitted to do (if Cablevision were the one "making" the copies, it would be "more akin to video-on-demand, for which they negotiate licensing fees with cable providers"). The upshot is that consumers won't need to have a DVR box in their homes to record shows; they will be hosted on the servers of the cable or other provider. If only there were not a copyright statute in place in the first place, the courts would not have to engage in contorted reasoning to achieve just results.

[Cross-posted at LRC and StephanKinsella.com]

You would think libertarians would be unambiguously for freedom of speech. In Intellectual Property vs. Creative Freedom, Cathy Young discusses a literal book banning by a federal judge: he has temporarily enjoined "publication of a novel called 60 Years Later: Coming Through the Rye," based on copyright claims by "J. D. Salinger, author of the 1951 classic Catcher in the Rye." The judge is expected to decide soon whether to make the ban permanent. Yes, this is all because of copyright.

Copyright now lasts well over 100 years, due to continual copyright extension over the years--as Young notes, "When copyright legislation was first passed in the United States in 1790, the term of copyright lasted for 14 years, with the option of renewal for another 14."

Does Ms. Young want to abolish copyright, this obvious threat to freedom of press? Or at least return to the 14 + 14 year system? Why, no. She has figured out the optimal way to handle this: "Personally, I would support a term of 50 years, with a portion of revenues from any derivative work published thereafter going to the original author." Fifty years. Where she gets this number is anybody's guess.

This is libertarianism?

[Cross-posted at StephanKinsella.com]

A report by Joe Mullin on the sad plight of Fotki and other photo-sharing sights being targeted by patent-wielder FotoMedia. When will IP supporters realize asserting patents is, in the words of the Fotki's Igor Shoifot, "evil."

[Cross-posted at StephanKinsella.com]

Sheldon Richman has a great "TGIF" ["The Goal Is Freedom," but released on a Friday--get it?] column out today, Intellectual 'Property' Versus Real Property: What Are Copyrights and what do they mean for Liberty?. For a very short column, it's packed with great insights.

Admirably, Richman focuses on justice rather than more utilitarian concerns such as incentive effects:

The crux of the issue is this: Do IP laws protect legitimately ownable things? One's view of the laws will proceed from one's answer to that question, and that's what I will concentrate on here. I leave for another time the issue of incentives. I do so because the justice of a claim must be decided before we consider the specific incentives and disincentives that flow from our decision.

Of course, a principled focus does not mean one doesn't care about consequences; as Richman adds parenthetically, "(No, this does not make me a "nonconsequentialist." Consequences figure in our basic conception of justice.)"

Richman concludes that IP is difficult

to square with traditional property rights. When one acquires a copyright or a patent, what one really acquires is the power to stop other people from doing certain things with what is indisputably their own property. One can say that a copyright holder doesn't actually own anything but the legal authority to stop other people from using their own equipment to copy a book or CD they purchased. And one who holds a patent on the widget actually only has permission to call on the state to stop others from manufacturing and selling widgets in factories they own.

Yes, this is the crux of the issue. IP amounts to trespass, or redistribution of property.

Richman quotes Thomas Jefferson 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]

This argument here seems similar to the mutualist occupancy view of property. As mutualist Kevin Carson writes:

For mutualists, occupancy and use is the only legitimate standard for establishing ownership of land, regardless of how many times it has changed hands. An existing owner may transfer ownership by sale or gift; but the new owner may establish legitimate title to the land only by his own occupancy and use. A change in occupancy will amount to a change in ownership. . . . The actual occupant is considered the owner of a tract of land, and any attempt to collect rent by a self-styled ["absentee"] landlord is regarded as a violent invasion of the possessor's absolute right of property. [emphasis added]

Thus, for mutualism, the "actual occupant" is the "owner"; the "possessor" has the right of property. If a homesteader of land stops personally using or occupying it, he loses his ownership. Carson thinks this is compatible with libertarianism: here he writes "[A]ll property rights theories, including Lockean, make provision for adverse possession and constructive abandonment of property. They differ only in degree, rather than kind: in the "stickiness" of property. . . . There is a large element of convention in any property rights system Georgist, mutualist, and both proviso and nonproviso Lockeanism in determining what constitutes transfer and abandonment."

I have a forthcoming criticism of Carson's notion that mutualist occupancy is a type of libertarianism; I believe it is antithetical to libertarianism--libertarianism is Lockean. But suffice it to say for now that for an anti-mutualist libertarian, Jefferson's comments above at first glance seem uncomfortbly close to mutualism. However, I think Jefferson's comments here are not really so bad, for two reasons. First, I think Jefferson was trying to make even the argument for normal property seem a bit weak, so that IP seems even weaker by contrast. Second, he only denies that there is a natural right to hold property beyond occupancy--but he is not opposed to property being owned beyond occupancy, at least in an advanced society, unlike mutualists who think occupancy is a requirement even in mutuatopia.)

Back to Richman. He has a section dealing with a crucial mistake made by many proponents of IP: their explicit, or implicit, notion that creation is a source of ownership. Why do "so many advocates of freedom" support IP, even though it amounts to applying rules applicable to scarce, tangible resources, to non-scarce, intangible ideas where no conflict is possible?

A key reason is the importance attached to the act of creation. If someone writes or composes an original work or invents something new, the argument goes, he or she should own it because it would not have existed without the creator. I submit, however, that as important as creativity is to human flourishing, it is not the source of ownership of produced goods.

So what is the source? Prior ownership of the inputs through purchase, gift, or original appropriation. This is sufficient to establish ownership of the output. Ideas contribute no necessary additional factor. If I build a model airplane out of wood and glue, I own it not because of any idea in my head, but because I owned the wood, the glue, and myself.

(Richman is right on. I've written on this exact issue before: see Against Intellectual Property, pp. 36 et seq.; Libertarian Creationism; Rethinking IP Completely; and my ASC talk and related material linked here.) I like Richman's insight here that creation is not the source of ownership; rather, that the source of ownership is "Prior ownership of the inputs through purchase, gift, or original appropriation." In this connection, as I noted in Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors, Hans-Hermann Hoppe writes in his classic article Banking, Nation States and International Politics: A Sociological Reconstruction of the Present Economic Order:

One can acquire and increase wealth either through homesteading, production and contractual exchange, or by expropriating and exploiting homesteaders, producers, or contractual exchangers. There are no other ways.

Note that Hoppe here acknowledges that "production" is a means of gaining "wealth". But this does not mean that creation is an independent source of ownership or rights--production is not the creation of new matter; it is the transformation of things from one form to another; things one necessarily already owns. Therefore, the resulting more valuable finished products--the results of one's labor applied to one's property--give the owner greater wealth, but not additional property rights. If I carve a statue out of my stone, I already owned the stone, so I naturally own the resulting statue; what has changed is that I have transformed my property into a new configuration that is worth more to me, and possibly to others. (This is discussed further in Owning Thoughts and Labor.) (Similarly, if two people trade goods, each is now better off--i.e., the trade has created wealth, without creating new things--already-owned things were what was traded.)

***

Finally--Richman also highlights Kevin Carson's view that, because of "[t]he growing importance of human capital [i.e., the ideas in people's heads], and the implosion of capital outlay costs required to enter the market," the free society and competitive economy require an end to intellectual "property." (Richman observed to me that he was impressed Prychitko had written on this back in 1991, as noted in Carson's piece.)

[Cross-posted at Mises Blog]

The post Animal Abuse mentions the state's use of "DVD-sniffing anti-piracy dogs."

Res ipsa loquitur.

There's been much talk lately of the imminent death of copyright, due in part to the increasing digitization of information and media, the Internet, large bandwidth, and encryption. Nora Ephron, for example, recently observed, "We're in the last days of copyright, if you want to be grim about it...." And see The Death of Copyright, Item #241, Encryption, Strong Privacy, and the Death of Copyright, The Death of Copyright, and many other such comments.

Imagine a world 150, 200, 500 years from now--when virtually every work of art, every novel, ever movie, song, and recording ever produced until today--and many years after--is public domain. Now imagine you want to play muzak in your elevators, or nice background music in your dental office, or car repair waiting room, or restaurant. Or imagine you want to publish a book (or website) of great paintings. If you want to do these things today, most of the works you'd be intersted in are still covered by copyright. Sure, there are older recordings on scratchy 78 rpm LPs, and musty tomes from the time of the Civil War or earlier--but modern stuff, in color, stereo, hi-fi, with modern acting and special effects--most is still subject to copyright. So to play muzak in your elevator or pipe in nice background music to the ceiling speakers of your waiting room, you have to pay annoying royalties each month.

But even now we are starting to see, with the advent of Google Books, The Internet Archive, and Gutenberg, and so on, increasingly modern books entering the public domain. Imagine 400 years from now, and every movie, song, painting, novel published from the dawn of time, every movie made in the 20th and 21st and 22nd centuries, plus hundreds of thousands or even millions of songs, photographs, paintings, ... and the last 100 years or so is still locked up. Now let's say you want to put up a website the 10,000 great paintings; or stream a music or movie station playing great songs and films--will you pay out the nose for the rights to publish the recent stuff? Well, maybe, but if you have an almost unending cornucopia of great, free stuff to choose from--methinks this might exert a strong downward pressure on the ability of copyright holders to extort much money from you. (And this is disregarding practical problems they face, such as some kid downloading all the world's media into his petabyte thumb drive in 17 seconds via a totally secure encrypted link.)

Kevin Carson has just released his Intellectual Property--A Libertarian Critique. I haven't had a chance to read all of it yet, but from a quick skim it looks good, and with a title like this--and given that IP is turning out to be an insidious tool wielded by the state to destroy and re-route wealth--it's worth looking into.