Disney to buy Marvel Comics for $4B. Disney "will acquire ownership more than 5,000 Marvel characters." The most popular ones, such as Spider-Man (who used to be my favorite until he swooned over Obama, revealing his fascist mindset), are not that old--Spider-Man was created in 1962. One can only imagine the Disney lobbying that we can expect when Spider-Man's term nears expiration...

[SK cross-post]

Canada is involved in a furious debate over copyright - the music lobby pushing for U.S. style DMCA restrictions, against a loose coalition including consumers and some musicians pushing for a more balanced rule including strong protection for fair use (called fair dealing in Canada). Michael Geist is blogging up a storm about some of the music industry shenanigans.

The long arm of Google is now reaching out to Europe to get changes in the treatment of out-of-print and orphan books in connection with its plan to digitize all books and sell them link here. The European Commission is proposing draft rules to make access easier and a single digital copyright to cover all of the EU rather than many, each with one of the member states. A hearing will be held next month in Brussels on Google's efforts to digitize major collections of books and the company's proposed settlement with book publishers in the United States. Public comment will be open until mid-November. So far, the proposal sounds like that in the United States, to create registries of orphan and out of print works so that companies like Google could reproduce works contained in the registry in exchange for paying money to a central authority that would redistribute the proceeds.

The news article implies that the European commissioner views the US settlement favorably. That would make the work of dissenters from the US deal more difficult. Nothing in the news story suggests that Google's lock on the sale of the digitized copies of books would be diminished so the problem of getting competition remains.

My comment on the debate between Randy Mayes and David Koepsell on human gene patents at the IEET was posted in "Are Libertarians for Intellectual Property?" (Institute for Ethics & Emerging Technologies, Aug. 26, 2009:

Mr. Koepsell,

I read with interest your comments above criticizing IP from a self-professed libertarian perspective. I am a libertarian and a practicing patent attorney and I too oppose patent rights (one of the few patent attorneys who dare to)--patents are, as you say, unnatural and artificial privileges granted by the state at the expense of real property rights. My website contains various articles, books, and speeches on this topic, including Against Intellectual Property, and my recent speech "Intellectual Property and Libertarianism." I'm also affiliated with the Mises Institute, so I suppose Mr. Mayes has my work in mind when he unfairly, uncharitably, and falsely disparages and dismisses us as "idealogues."

I heartily agree with you when you write that you are "consistently confused by "libertarians" who support a government-sponsored monopoly of any kind" and that patents "are the grant by a government of an artificial monopoly of the practice or sale of a useful art or product."

Given that you recognize this, it is not clear why you seem to draw back (at least in this post; I have not yet read your book, which I intend to do) from a more sweeping critique of patents in general. E.g., you write, "IP laws only conflict with notions of justice when they impinge on some other, grounded right, as I argue they do with the genetic commons." IP laws always impinge on property rights. That is their purpose and nature.

I must say I sympathize with your comments about conflicts of interest on the side of IP advocates--isn't it striking that almost every patent lawyer or big company that benefits from this state monopoly is in favor of the practice? You are right: the patent industry benefits patent lawyers, so of course they tend to mindlessly repeat the state propaganda that supports their profession's existence.

As for Mr. Mayes's comments, he writes:

"Your confusion related to libertarianism and what libertarians think is probably due to several reasons. What libertarians think is not universal. Libertarians at the Ludwig von Mises Institute are ideologues. They do not want the state involved period, so this provides an argument against patenting DNA for them. Civil libertarians are complaining about freedom of speech restrictions from patenting DNA, which is a week argument.

"Pragmatic or mainstream libertarians housed at the Cato Institute and CEI are interested in IP as an extension of individual rights. Ayn Rand regarded IP as the base of all property rights: a man's right to the product of his mind. In the process, freedom of speech issues arise as well as the monopoly issue which create the confusion. Since the right to own property is the most fundamental right for mainstream libertarians, this overrides the speech and monopoly issues."

Well, as for free speech, I grant you that it is more endangered by another state-granted pattern-privilege, patent law's cousin, copyright (see my post Book Banning Courtesy of Copyright Law). Some Cato scholars support IP rights, but not all (see the work of Tom Palmer, for example--are they idealogues too, now?). Ayn Rand's defense of IP was seriously confused, and she would never have granted that IP so important that it "overrides" "speech and monopoly issues." IP rights are not an extension of property rights; they quite obviously undercut and invade property rights--a patent gives a right to its holder to legally force someone else not to use their own property as they see fit.

As for the repeated claims by various defenders of IP and critics of Mr. Koepsell to the effect that patent protection is "needed" to "incentivize" various forms of innovation--Mr. Holman in his review refers to "the important role gene patents have played in incentivizing the development of life-saving therapeutics" as if this is obvious and uncontroversial--this is the same old bankrupt utilitarian reasoning that is triply flawed. First, as I point out in Against Intellectual Property, utilitarianism is morally flawed--you could justify all sorts of horrible policies, including legalized theft, this way; and it is methodologically flawed since it is based on the unscientific notion that utility can be cardinally measured and interpersonally compared (the insights of Austrian economics shows that this is not the case).

But even if we ignore the ethical and other problems with the utilitarian or wealth-maximization approach, it is bizarre that utilitarians are in favor of IP when they have not demonstrated that IP does increase overall wealth. They merely assume it does (or say they assume it does) and then base their policy views on this assumption. It is beyond dispute that the IP system imposes significant costs, in money terms alone not to mention liberty costs. The argument that the incentive provided by IP law stimulates additional innovation and creativity has not even been proven. It is entirely possible even likely, in my view that the IP system, in addition to imposing billions of dollars of cost on society, actually reduces or impedes innovation, adding damage to damage (see my post What are the Costs of the Patent System?).

But even if we assume that the IP system does stimulate some additional, valuable innovation, no one has established yet that the value of the purported gains is greater than the costs of the system. If you ask an advocate of IP how they know there is a net gain, you get silence (this is especially true of patent attorneys). They cannot even point to any study to support their utilitarian contention; they usually point to Art I, § 8 of the Constitution, as if the back-room dealings of politicians two centuries ago is some sort of evidence. In fact, as far as I've been able to tell, virtually every study that attempts to tally the costs and benefits of copyright or patent law either concludes that these schemes cost more than they are worth; or that they actually reduce innovation; or the study is inconclusive. There are no studies showing a net gain (see my post "Yet Another Study Finds Patents Do Not Encourage Innovation"; and, in this connection, I also highly recommend Boldrin and Levine's Against Intellectual Monopoly and their blog Against Monopoly, to which I contribute).

Instead, we hear repetitions of propaganda trotted out by the state to justify its artificial legislative schemes. But the truth is that anyone who accepts utilitarianism should, based on the available evidence, be opposed to IP. That they are not is telling--it is like those who claim to be environmentalists or fret about "global warming" but never advocate nuclear power, the obvious solution to the "problems" they pretend to be worried about.

Update: Interesting, I noticed you quoted one of your correspondents as having written "I spoke before the Pennsylvania Bar Association IP Section in Philly in 2007 and introduced them to the ontology of IP and social reality (used computers and software to make my points) and was greeted as a Galileo"--

I lived and worked in Philly in the late 90s and was a member of the IP section of the Pennsylvania Bar Association an indeed Founding editor (1997) of the PBA IP Law Newsletter (and Editor-in-Chief till 1999), I published in that journal an article entitled "Is Intellectual Property Legitimate?" (Winter 1998, later republished in the Federalist Society's newsletter).

Update II: A patent attorney who gets it!

[Cross-posted at StephanKinsella.com]

From Mises Blog:

Intellectual property is the principle that the creator of an idea has a right to certain controls over all the physical forms in which his idea is recorded. The extent of this control may be different depending on whether the idea is considered copyrighted, patented, or trademarked, but the essential principle is the same in all cases. This presumed right of the creator of an idea is often believed to be similar to the right that a homesteader has to land he has settled, but the analogy is false. Intellectual property is necessarily a statist doctrine. FULL ARTICLE By Daniel Krawisz

I reprint below (with permission) an email from Prashant Singh Pawar:

Hi Mr Kinsella,

I am a long time opponent of patents and Intellectual Property rights (to a great part because of your work), but something always bothered me and that was the 'innovation' argument by the patent supporters. I could always see both the sides of the arguments, yet was never sure which side is right. I can see that without patents there is no incentive to develop a technology with a large investment, on the other hand, without patents, there is probably no need of a large investment.

I can see that patents make companies develop new things which without patents they wouldn't do, but at the same time patents prevent companies from doing things which they would have without patents. I found this thing common across all the anti-IP and pro-IP work I have read that they both talk about the kinds of innovations they would promote and other side would demote, but there is no clear distinction between the kinds of innovation they are talking about.

So I finally came up with the terms 'Horizontal innovation', and 'Vertical Innovation'. Horizontal Innovation is when a parallel technology is discovered (usually to avoid patent infringement). For example if a company develops a flying car using (say) hydrolic expansion, and they get a patent of it, another company develops (or has to develop) a flying car technology by using Thermo-plazma radiator engine. Both these technologies achieve the same end, they enable a car to fly, so this is horizontal innovation. This is what patent proponents talk about being squashed when they say innovation will be reduced when patents are removed. There will not be Google G1 phone,Blackberry and iPhone if there were no IP rights.

Vertical innovation is when a technology is built top of another technology merely by adding a new element to it. For example if you develop a Car which can travel on water, and I take that car, and add a Sail to it to make it use wind then that's called a vertical innovation. With patents, only the patent holder can think of adding a sail on the boat-car and sell it, without patents, innovations will be done all over the world by every kind of boat and car enthusiast. There will be only one smart phone in this world, but it will be having numerous variants, such as a Google gPhone (synced with google services), a Microsoft mPhone (synced with microsoft services), and so on.

Patents promote horizontal innovation, but restrict vertical innovation. Without patents we will have more vertical innovation but less horizontal innovation. Even if Horizontal and Vertical Innovations are equally good in terms of their merits, one thing is clear, without patents, a lot more people will be able to use the technology, this is some place where a patent-less society will beat a pro-patent society hands down.

Just like if words were copyrighted, and you required a license to use the words, we would have had a LOT of innovation (horizontal) in terms of development of language and you required a license from John Locke's estate to use the term 'liberty', there would have been billions of words in English (a lot of them doing the same thing what others do), but a lot less number of people would be educated, and most of our brain cells would have been wasted on keeping track of 15 different terms for 'liberty', and 'passion'.

I described everything in detail in my article (its completely different from this mail). Please take a look at it, and let me know of your thoughts on it.

Patents: Horizontal vs Vertical Innovation

[Cross-posted at StephanKinsella.com]

A nice post by the Economic Logician (well I think it's nice since he's nice to us).

Have you noticed how the grip on intellectual property law keeps expanding: copyright periods lengthen, the scope of patentable "innovations" widens, and the enforcement of intellectual property become the topic of international trade negotiations. But should we expect this?

The post is here.

I've noted before this nutty purported idea of hyper-IPer Andrew Galambos (see Galambos and Other Nuts; Against Intellectual Property, p. 27): Galambos

took his own ideas to ridiculous lengths dropping a nickel in a fund box every time he used the word "liberty" as a royalty to the descendants of Thomas Paine, the alleged "inventor" of the word "liberty"; and changing his original name from Joseph Andrew Galambos (Jr., presumably) to Andrew Joseph Galambos, to avoid infringing his identically-named father's rights to the name.

Now, this seems quite sensible. Galambos is right: every time you use "liberty," you should drop a nickel in the Thomas Paine Descendant Royalty box.

But I realized this the other day that since this nickel-depositing was Galambos's idea, then when you drop your nickel, you now must compensate Galambos himself. 15% seems like a reasonable commission; so in addition to the nickel for Paine, you better drop 2.25 cents in a box for Galambos's heirs.

But there's one more snag. The idea of recognizing that Galambos should be rewarded for his idea of rewarding word-coiners is my idea. So in addition to the 17.25 cents above, you need to send me an extra 0.3375 cents each time you pay Galambos's heirs their 2.25 cents.

[stephankinsella.com crosspost]

Mike Masnick at Techdirt has put together a nice reading list on "intellectual property. link here. For those of us who were brought up brain washed on the constitutional sanctity of patents and copyrights, and have since learned better, it is cheering to know that there is this much available in print.

His site also has a nice quote from one of the great critics and professors of English literature. In a word, memorable:

During the course of this long volume I have undoubtedly plagiarized from many sources--to use the ugly term that did not bother Shakespeare's age. I doubt whether any criticism or cultural history has ever been written without such plagiary, which inevitably results from assimilating the contributions of your countless fellow-workers, past and present. The true function of scholarship as a society is not to stake out claims on which others must not trespass, but to provide a community of knowledge in which others may share." -F.O. Matthiessen, American Renaissance 1941 link here

The problem of unauthorized book sequels have been with us since the beginning of copyright. Charles McGrath brings us up to date on it link here. By his account, if the originator doesn't object, the sequel writer can get away with it. If not, he can be made to pay or be banned completely. The problem seems to be showing that the sequel is transformative. That obviously is in the eye of the beholder and judges don't seem to be very sympathetic and may not recognize the point. It is clear that the sequel writer wants to capitalize on the popularity of the original but is also paying a form of homage and sends readers back to the original. Unfortunately, author ego gets heavily engaged and appears to prevail in the courts.

It would be hard to write a clarification of copyright that might serve the public interest as well as the originator's. To me it seems that the possible net harm of a sequel, even a bad one, is so small as to warrant allowing them all.

It would be a good move, short of drastically shortening the validity of copyright or abolishing it entirely.