The two books motivating this blog are available for free online and can be bought in hard copy. Apparently, they are selling well, which proves that one can make money from providing free books. Following this model (possibly independently developed, we do not know as this model was not patented), Flat World Knowledge is now starting to offer textbooks. Print copies are less expensive than the "traditional" outlets, and pdfs can be downloaded for free.

The catalog is small so far and concentrated on Economics and Business, but there are some good names. I find it quite interesting that Business books are listed, as I found faculty in business schools generally very skeptical that one can provide a good service at no cost.

Ryan Paul writes "Microsoft has filed a patent infringement lawsuit against TomTom alleging that the device maker's products, including some that are Linux-based, infringe on patents related to Microsoft's FAT32 filesystem. This marks the first time that Microsoft has enforced its FAT patents against the Linux platform, a move that some free software advocates have long feared could be disastrous link here."

Such a move has long been expected, and from time to time, MS has made noises about its software patents being infringed but then didn't pursue it. This raises the possibility that MS feels more threatened than in the past by competition from Linux.

The choice of TomTom, a small firm, as the target suggests that MS thinks it is likely to fold and would like to have a precedent. Is it possible that MS also believes software patents may not be solid?

As most of us here believe, software patents are a particularly outrageous creation of the courts among the group of dubious extensions of intellectual property. Some public outrage is needed here.

As reported by Newsweek, a much more efficient way to produce artemisinin, which has a 90% cure rate for malaria, has been found by Berkeley chemical engineer Jay Keasling. Interestingly, he has no intention to get rich from it and has also made sure no one else will. The new drug will be marketed in 2010 at cost. Note, though, that he still patented his discovery. A better commitment would have been to let anyone use it.

There are currently large efforts to make malaria prevention and treatment affordable, but unfortunately this is not quite sufficient, as my research with Doug Gollin shows. A larger problem is that prevention is not efficient enough, so that even at minimal costs you still have substantial malarial prevalence and large impacts on economies. Cost reductions like the one Keasling is generating will have an impact on the economic consequences of the disease, but unfortunately not its spread. It may in fact increase it, as people will find it less useful to protect themselves.

Roy Blount Jr, the president of the Writers Guild, opines that authors ought to have a property right to the oral rendering of their written works, although he would not charge the blind link here. This apparently has been provoked by the ability of new technology to render computer text into intelligible, almost-human-voice quality. If I record a human reading my written work, the reader and I will be paid, but if a machine does it, I won't. So, " people who want to keep on doing creative things for a living must be duly vigilant about any new means of transmitting their work."

Apparently no one seems to be worried about the constant expansion of property rights, even seemingly absurd ones. I have no doubt that the government has the power to create the right, just as it has the power to define and enforce all property rights, but why is this extension justified?

Blount's clinching argument is, "For the record: no, the Authors Guild does not expect royalties from anybody doing non-commercial performances of "Goodnight Moon." If parents want to send their children off to bed with the voice of Kindle 2, however, it's another matter." How generous of him!

This issue is raised by the Kindle 2, which has oral as well as visual output. The next thing, the authors will want is a counter on the machine, to record each time a reading takes place so the author can be paid his due.

Like other IP creators, authors seem to want to get their piece of any new technology that comes along, even when it vastly decreases the cost of delivering their work and adds to their net income. It will only stop when consumers vote out the rascals who pass these extensions into law or the judges who redefine the right.

This issue is raised by the Kindle 2, which has oral as well as visual output. The next thing, the authors will want is a counter on the machine, to record each time a reading takes place so the author can be paid his due.

Like other IP creators, authors seem to want to get their piece of any new technology that comes along, even when it vastly decreases the cost of delivering their work. It will only stop when consumers vote out the rascals who pass these extensions into law or the judges who redefine the right.

Some here might be interested in the remarks on IP by the greatest economist of all time (though Boldrin and Levine will no doubt disagree with this characterization!), Mises:

In this comment on a post here, I was accused of hiding or avoiding mention of one of Mises's comments about copyrights and patents. I suppose the commentor was unaware of my extensive quotes of Mises in this comment on another thread, which quoted a large deal of Mises's remarks on IP, including the one in question. So much for suppression. Since this extensive comment is buried on a thread, I reprint it below as a standalone post.

As I noted in Against Intellectual Property (n. 38), "Mises expressed no opinion on the issue, merely drawing the economic implications from the presence or absence of such laws."

Here are Mises's words:

The External Economies of Intellectual Creation

The extreme case of external economies is shown in the "production" of the intellectual groundwork of every kind of processing and constructing. The characteristic mark of formulas, i.e., the mental devices directing the technological procedures, is the inexhaustibility of the services they render. These services are consequently not scarce, and there is no need to economize their employment. Those considerations that resulted in the establishment of the institution of private ownership of economic goods did not refer to them. They remained outside the sphere of private property not because they are immaterial, intangible, and impalpable, but because their serviceableness cannot be exhausted.

People began to realize only later that this state of affairs has its drawbacks too. It places the producers of such formulas--especially the inventors of technological procedures and authors and composers--in a peculiar position. They are burdened with the cost of production, while the services of the product they have created can be gratuitously enjoyed by everybody. What they produce is for them entirely or almost entirely external economies.

If there are neither copyrights nor patents, the inventors and authors are in the position of an entrepreneur. They have a temporary advantage as against other people. As they start sooner in utilizing their invention or their manuscript themselves or in making it available for use to other people (manufacturers or publishers), they have the chance to earn profits in the time interval until everybody can likewise utilize it. As soon as the invention or the content of the book are publicly known, they become "free goods" and the inventor or author has only his glory.

The problem involved has nothing to do with the activities of the creative genius. These pioneers and originators of things unheard of do not produce and work in the sense in which these terms are employed in dealing with the affairs of other people. They do not let themselves be influenced by the response their work meets on the part of their contemporaries. They do not wait for encouragement.[13]

It is different with the broad class of professional intellectuals whose services society cannot do without. We may disregard the problem of second-rate authors of poems, fiction, and plays and second-rate composers and need not inquire whether it would be a serious disadvantage for mankind to lack the products of their efforts. But it is obvious that handing down knowledge to the rising generation and [p. 662] familiarizing the acting individuals with the amount of knowledge they need for the realization of their plans require textbooks, manuals, handbooks, and other nonfiction works. It is unlikely that people would undertake the laborious task of writing such publications if everyone were free to reproduce them. This is still more manifest in the field of technological invention and discovery. The extensive experimentation necessary for such achievements is often very expensive. It is very probable that technological progress would be seriously retarded if, for the inventor and for those who defray the expenses incurred by his experimentation, the results obtained were nothing but external economies.

Patents and copyrights are results of the legal evolution of the last centuries. Their place in the traditional body of property rights is still controversial. People look askance at them and deem them irregular. They are considered privileges, a vestige of the rudimentary period of their evolution when legal protection was accorded to authors and investors only by virtue of an exceptional privilege granted by the authorities. They are suspect, as they are lucrative only if they make it possible to sell at monopoly prices. [14]. Moreover, the fairness of patent laws is contested on the ground that they reward only those who put the finishing touch leading to practical utilization of achievements of many predecessors. these precursors go empty-handed although their main contribution to the final result was often much more weighty than that of the patentee.

It is beyond the scope of catallactics to enter into an examination of the arguments brought forward for and against the institution of copyrights and patents. It has merely to stress the point that this is a problem of delimitation of property rights and that with the abolition of patents and copyrights authors and inventors would for the most part be producers of external economies.

and here:

The Creative Genius

Far above the millions that come and pass away tower the pioneers, the men whose deeds and ideas cut out new paths for mankind. For the pioneering genius [12] to create is the essence of life. To live means for him to create.

The activities of these prodigious men cannot be fully subsumed under the praxeological concept of labor. They are not labor because they are for the genius not means, but ends in themselves. He lives in creating and inventing. For him there is not leisure, only intermissions of temporary sterility and frustration. His incentive is not the desire to bring about a result, but the act of producing it. The accomplishment gratifies him neither mediately nor immediately. It does not gratify him mediately because his fellow men at best are unconcerned about it, more often even greet it with taunts, sneers, and persecution. Many a genius could have used his gifts to render his life agreeable and joyful; he did not even consider such a possibility and chose the thorny path without hesitation. The genius wants to accomplish what he considers his mission, even if he knows that he moves toward his own disaster.

Neither does the genius derive immediate gratification from his creative activities. Creating is for him agony and torment, a ceaseless excruciating struggle against internal and external obstacles; it consumes and crushes him. The Austrian poet Grillparzer has depicted this in a touching poem "Farewell to Gastein." [13] We may assume that in writing it he thought not only of his own sorrows and tribulations but also of the greater sufferings of a much greater man, of Beethoven, whose fate resembled his own and whom he understood, through devoted affection and sympathetic appreciation, better than any other of his contemporaries. Nietzsche compared himself to the flame that insatiably consumes and destroys itself.[14] Such agonies are phenomena which have nothing in common with the connotations generally attached to the notions of work and labor, production and success, breadwinning and enjoyment of life.

The achievements of the creative innovator, his thoughts and theories, his poems, paintings, and compositions, cannot be classified praxeologically as products of labor. They are not the outcome of [p. 140] the employment of labor which could have been devoted to the production of other amenities for the "production" of a masterpiece of philosophy, art, or literature. Thinkers, poets, and artists are sometimes unfit to accomplish any other work. At any rate, the time and toil which they devote to creative activities are not withheld from employment for other purposes. Conditions may sometimes doom to sterility a man who would have had the power to bring forth things unheard of; they may leave him no alternative other than to die from starvation or to use all his forces in the struggle for mere physical survival. But if the genius succeeds in achieving his goals, nobody but himself pays the "costs" incurred. Goethe was perhaps in some respects hampered by his functions at the court of Weimar. But certainly he would not have accomplished more in his official duties as minister of state, theater manager, and administrator of mines if he had not written his plays, poems, and novels.

and here:

The special conditions and circumstances required for the emergence of monopoly prices and their catallactic features are: ... 11. The monopolized good by whose partial withholding from the market the monopoly prices are made to prevail can be either a good of the lowest order or a good of a higher order, a factor of production. It may consist in the control of the technological knowledge required for production, the "recipe." Such recipes are as a rule free goods as their ability to produce definite effects is unlimited. They can become economic goods only if they are monopolized and their use is restricted. Any price paid for the services rendered by a recipe is always a monopoly price. It is immaterial whether the restriction of a recipe's use is made possible by institutional conditions--such as patents and copyright laws--or by the fact that a formula is kept secret and other people fail to guess it.

The complementary factor of production the monopolization of which can result in the establishment of monopoly prices may also consist in a man's opportunity to make his cooperation in the production of a good known to consumers who attribute to this cooperation a special significance. This opportunity may be given either by the nature of the commodities or services in question or by institutional provisions such as protection of trademarks. The reasons why the consumers value the contribution of a man or a firm so highly are manifold. They may be: special confidence placed on the individual or firm concerned on account of previous experience[15]; merely baseless prejudice or error; snobbishness; magic or metaphysical prepossessions whose groundlessness is ridiculed by more reasonable people. A drug marked by a trademark may not differ in its chemical structure and its physiological efficacy from other compounds not marked with the same label. However, if the buyers attach a special significance to this label and are ready to pay higher prices for the [p. 365] product marked with it, the seller can, provided the configuration of demand is propitious, reap monopoly prices.

The monopoly which enables the monopolist to restrict the amount offered without counteraction on the part of other people can consist in the greater productivity of a factor which he has at his disposal as against the lower productivity of the corresponding factor at the disposal of his potential competitors. If the margin between the higher productivity of his supply of the monopolized factor and that of his potential competitors is broad enough for the emergence of a monopoly price, a situation results which we may call margin monopoly[16].

... In the long run such a national cartel cannot preserve its monopolistic position if entrance into its branch of production is free to newcomers. The monopolized factor the services of which the cartel restricts (as far as the domestic market is concerned) for the sake of monopoly prices is a geographical condition which can easily be duplicated by every new investor who establishes a new plant within the borders of Atlantis. Under modern industrial conditions, the characteristic feature of which is steady technological progress, the latest plant will as a rule be more efficient than the older plants and produce at lower average costs. The incentive to prospective newcomers is therefore twofold. It consists not only in the monopoly gain of the cartel members, but also in the possibility of outstripping them by lower costs of production.

Here again institutions come to the aid of the old firms that form the cartel. The patents give them a legal monopoly which nobody may infringe. Of course, only some of their production processes may be protected by patents. But a competitor who is prevented from resorting to these processes and to the production of the articles concerned may be handicapped in such a serious way that he cannot consider entrance into the field of the cartelized industry.

The owner of a patent enjoys a legal monopoly which, other conditions being propitious, can be used for the attainment of monopoly prices. Beyond the field covered by the patent itself a patent may render auxiliary services in the establishment and preservation of margin monopoly where the primary institutional conditions for the emergence of such a monopoly prevail.

and here:

Another popular fallacy refers to the alleged suppression of useful patents. A patent is a legal monopoly granted for a limited number of years to the inventor of a new contrivance. At this point we are not concerned with the question whether or not it is a good policy to grant such exclusive privileges to inventors.[14] We have to deal only with the assertion that "big business" misuses the patent system to withhold from the public benefits it could derive from technological improvement.

In granting a patent to an inventor the authorities do not investigate the invention's economic significance. They are concerned merely with the priority of the idea and limit their examination to technological problems. They deal with the same impartial scrupulousness with an invention which revolutionizes a whole industry and with some trifling gadget, the uselessness of which is obvious. Thus patent protection is provided to a vast number of quite worthless inventions. Their authors are ready to overrate the importance of their contribution to the progress of technological knowledge and build exaggerated hopes upon the material gain it could bring them. Disappointed, they grumble about the absurdity of an economic system that deprives the people of the benefit of technological progress.

and here:

The convincing power of the productivity argument is in fact so irresistible that the advocates of socialism were forced to abandon their old tactics and to resort to new methods. They are eager to divert attention from the productivity issue by throwing into relief the monopoly problem. All contemporary socialist manifestoes expatiate on monopoly power. Statesmen and professors try to outdo one another in depicting the evils of monopoly. Our age is called the age of monopoly capitalism. The foremost argument advanced today in favor of socialism is the reference to monopoly.

Now, it is true that the emergence of monopoly prices (not of monopoly as such without monopoly prices) creates a discrepancy between the interests of the monopolist and those of the consumers. The monopolist does not employ the monopolized good according to the wishes of the consumers. As far as there are monopoly prices, the interests of the monopolists take precedence over those of the public and the democracy of the market is restricted. with regard to monopoly prices there is not harmony, but conflict of interests.

It is possible to contest these statements with regard to the monopoly prices received in the sale of articles under patents and copyrights. One may argue that in the absence of patent and copyright legislation these books, compositions, and technological innovations would never have come into existence. The public pays monopoly prices for things it would not have enjoyed at all under competitive prices. However, we may fairly disregard this issue. It has little to do with the great monopoly controversy of our day. When people deal with the evils of monopoly, they imply that there prevails within the unhampered [p. 681] market economy a general and inevitable tendency toward the substitution of monopoly prices for competitive prices. This is, they say, a characteristic mark of "mature" or "late" capitalism. Whatever conditions may have been in the earlier stages of capitalist evolution and whatever one may think about the validity of the classical economists' statements concerning the harmony of the rightly understood interests, today there is no longer any question of such a harmony.

Note from a reader (see also my post Copyrights and Dancing):

Dear Mr. Kinsella,

I have yet to read your book or the Boldrin and Levine book, but just reading your blog posts [e.g. There are No Good Arguments for Intellectual Property; What's Wrong with Theft?] and the discussions they generate has convinced me of your position. It seems to me that the only question worth considering is Are ideas property? If an IP proponent could give a good answer to this question, we could have a good debate. But the replies to your argument seem desperate and incoherent. I'm an amateur choreographer so I know that IP is not necessary for creation. Dancers take movement where ever we can find it. The first person to get a copyright on walking would own the dance community and the world, in fact. The first routine I put together used movement from several other performers. If IP were to apply to dance, all dance communities would die the next day. The dance community is experiencing the wrath of IP regarding music, however. We have had problems with the music that we use. Promoters who videotape our performances are reluctant to sell the DVDs because the artists might sue the promoters if their music is used. YouTube is censoring videos in which it can recognize the music in the background. I find this ridiculous. If I have already paid my $0.99 for your song and created a visual expression of the music, from whence do you get the right to now "own" my expression of your song? I think that my dance experience instilled in me a skepticism about IP, but still I find your intellectual arguments indisputable.

Yours,

[C.E.]

[cross-posted on Mises Blog]

There are some decent arguments out there that argue in favor of a state, welfare rights, war, democracy, drug laws, and so on. They are all flawed, since libertarianism is right, but there are coherent, honest arguments that we libertarians have to grapple with.

But it is striking that there are no decent arguments for IP--as Manuel Lora remarked to me, "You know, I haven't seen a good pro IP article ever." This is true. One sees the same incoherent or insincere claims made over and over, such as:

1. It's in the constitution (argument from authority; legal positivism)
2. Intellectual property is called property! (argument by definition?)
3. No movies would be made and kids would die without medicine (artworks and medicine have been produced for ages without IP law; and where's the evidence?)
4. If you "create" something you own it (despite all the exceptions, and despite the fact that creation is neither necessary nor sufficient for ownership; despite the fact that you either limit these rights in scope or time arbitrarily, or you extent them to infinity, choking off rights in real things and forcing life and commerce to a screeching halt)
5. It generates net wealth--more value than its cost (no evidence, ever, for this contention--just assumptions; not to mention the problem of utilitarian summing of values)
6. IP infringement is "theft" (even though the owner still has his property and ideas, and even though IP infringement is just learning and emulating)
7. People "could" create variants of IP via private contracts... therefore artifical patent granting bureaucracies legislated by a criminal state are ... justified?)

There are other arguments, I suppose, but they are so incoherent as to defy description. They often involve crankish initial caps, like Property and Rights, the Internet equivalent of crayons.

I have truly never seen a coherent, good argument for IP. The advocates are either utilitarian, with all the problems that accompany that (not to mention they never have any evidence for their claims); or the advocate a more "principled", rights-based type of IP that, if taken seriously, would completely undermine all real property rights and make life on earth impossible, so they retreat from this and impose arbitrary, senseless limits on it. What a kluge.

In a recent discussion, What's Wrong With Theft?, one of the IP advocates, when pushed into a corner, ended up arguing that rights to own property include the right to control all "access to" and "interactions with" one's property--and that "interactions" include observing or knowing about or learning facts about the things owned by someone, and that when you use this knowledge you are "interacting with" the property, and thus "stealing" it (even though the owner still has it). So here we have it: IP means "interaction rights." Wow. This is how kooky all IP arguments ultimately are.

As I noted in Copypats, many non-specialists and proponents of IP erroneously believe that copying is an element of patent infringement--they conceive of the typical patent infringer as some bad guy who knocked off, or "stole," the patentee-inventor's idea. They are usually unaware that proving copying is neither necessary nor sufficient to prove patent infringement. It's not necessary because even an independent inventor can be guilty of patent infringement. It's not sufficient because the patent may be invalid, or the copier may make changes to "design around" the patented invention (which is encouraged by patent policy--that's one reason the patent is published).

But it is common to charge the patent infringer, especially the idea copier, with theft--he stole the idea, it is said. But if we think about standard cases of theft that we all agree are criticizeable, what is it about them that we object to? Is it that the thief now has a bicycle? Or is it that the owner now doesn't have his bicycle?

Of course it is the latter. If you have a bike, or car, or log cabin, or corn crop, and I could gaze at it from afar, blink my eyes, and conjur up a similar bike, car, cabin, or crop for myself, I do not steal your things. But if I take your bike or car from you, or oust you from home and farm, you no longer have the things you formerly possessed and owned. That is the damage done to you by theft. This corresponds nicely to the very nature and function of property rights: the need for them arises when people need to use scarce resources as means to act in the world, and appropriate unowned ones. The scarce nature of these things is such that use by one person excludes that by another; the goods are rivalrous. (More on this in How We Come to Own Ourselves; Defending Argumentation Ethics; Owning Thoughts and Labor.)

But copying or emulating someone else's idea is not "taking" it from them; it is not theft. The originator of a given pattern still has his idea, and is free to use it in guiding his action and using or transforming his own property. This is why all arguments in favor of IP (and reputation rights) ultimately end up falling prey to the notion that there are property rights in the value of property, rather than in its physical integrity. But this view is fallacious, as shown by Hoppe and others.

This excellent New York Times article describes how the licenses for GE seeds are preventing scientists from studying them.

Pollack, Andrew. 2009. "Crop Scientists Say Biotechnology Seed Companies Are Thwarting Research." New York Times (19 February).

"Biotechnology companies are keeping university scientists from fully researching the effectiveness and environmental impact of the industry's genetically modified crops, according to an unusual complaint issued by a group of those scientists. "No truly independent research can be legally conducted on many critical questions," the scientists wrote in a statement submitted to the Environmental Protection Agency. The E.P.A. is seeking public comments for scientific meetings it will hold next week on biotech crops."

"The researchers, 26 corn-insect specialists, withheld their names because they feared being cut off from research by the companies. But several of them agreed in interviews to have their names used. The problem, the scientists say, is that farmers and other buyers of genetically engineered seeds have to sign an agreement meant to ensure that growers honor company patent rights and environmental regulations. But the agreements also prohibit growing the crops for research purposes. So while university scientists can freely buy pesticides or conventional seeds for their research, they cannot do that with genetically engineered seeds. Instead, they must seek permission from the seed companies. And sometimes that permission is denied or the company insists on reviewing any findings before they can be published, they say. Such agreements have long been a problem, the scientists said, but they are going public now because frustration has been building. "If a company can control the research that appears in the public domain, they can reduce the potential negatives that can come out of any research," said Ken Ostlie, an entomologist at the University of Minnesota, who was one of the scientists who had signed the statement."

"The companies "have the potential to launder the data, the information that is submitted to E.P.A.," said Elson J. Shields, a professor of entomology at Cornell."

"The growers' agreement from Syngenta not only prohibits research in general but specifically says a seed buyer cannot compare Syngenta's product with any rival crop. Dr. Ostlie, at the University of Minnesota, said he had permission from three companies in 2007 to compare how well their insect-resistant corn varieties fared against the rootworms found in his state. But in 2008, Syngenta, one of the three companies, withdrew its permission and the study had to stop. "The company just decided it was not in its best interest to let it continue," Dr. Ostlie said."

"Mark A. Boetel, associate professor of entomology at North Dakota State University, said that before genetically engineered sugar beet seeds were sold to farmers for the first time last year, he wanted to test how the crop would react to an insecticide treatment. But the university could not come to an agreement with the companies responsible, Monsanto and Syngenta, over publishing and intellectual property rights. Chris DiFonzo, an entomologist at Michigan State University, said that when she conducted surveys of insects, she avoided fields with transgenic crops because her presence would put the farmer in violation of the grower's agreement."

"Dr. Shields of Cornell said financing for agricultural research had gradually shifted from the public sector to the private sector. That makes many scientists at universities dependent on financing or technical cooperation from the big seed companies. "People are afraid of being blacklisted," he said. "If your sole job is to work on corn insects and you need the latest corn varieties and the companies decide not to give it to you, you can't do your job"."