Against Monopoly

defending the right to innovate

Is IP Property

Monopoly corrupts. Absolute monopoly corrupts absolutely.

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Dissecting Boldrin and Levine: An Alternate View of Intellectual Property

On Strike The Root one "John deLaubenfels" criticizes us IP critics.

I'll comment on one argument here:

Copies of an author's work can be made virtually for free; therefore they aren't "scarce"; therefore they have no value that anybody need respect. This line is not heavily stressed by B&L, but it is popular among anti-IP'ers and was apparently originally conceived by their darling, Stephan Kinsella. Nonsense! The actual worth of a work can be calculated as the sum of what each person on earth would willingly pay for a copy, if it could be obtained in no other way. This figure may fairly be said to represent the potential value the author has brought to the world. Subtract the cost of making copies for all purchasers, and we arrive at a return the author may hope to approach in a just society, assuming he's able to reach all potential buyers and is able to guess how much they're willing to pay. Note that this second number goes UP, not down, as the cost of making copies decreases. An interesting question for anyone who buys into the Kinsella argument would be: consider a product which requires physical raw materials to produce. Would it be "not stealing" to break into a store, take one, and leave in exchange only the cost of the raw materials and labor needed to produce it? The idea is as absurd as Kinsella's is for intellectual works.

First, I have stressed repeatedly that property rights are rights in the physical integrity of a resource, not in its value. Libertarianism does not mandate that people "respect the value" of property. Only that they do not invade its borders--use it without the owner's permission. So it is irrelevant whether a work, or copies of it, "have" a "value". The question is: are patterns and information ownable things? Are they the type of things that can be, that ought to be, property? The answer to this question does not turn on whether people value the pattern or information or copies or not.

As for the question: consider a product which requires physical raw materials to produce. Would it be "not stealing" to break into a store, take one, and leave in exchange only the cost of the raw materials and labor needed to produce it?"

Property rights are rights to the physical integrity of owned scarce resources. So it's stealing to take my product without my permission, since I own it. This is true whether or not the object "has value" or not; and it's true whether or not the thief leaves me partial (or even complete) restitution.

This entire line of reasoning is confused.

(Cross-posted on Mises Blog.)

The Tao of IP

When I saw the title of this Cato podcast--"Intellectual Property Versus Reason" (October 20, 2008)--I was hopeful and interested. Then I noticed it's an interview with the Nobel-winning, er, physicist Robert B. Laughlin, author of the new book, The Crime of Reason and the Closing of the Scientific Mind. Physicists and engineers are notoriously scientistic (see Yet More on Galambos; also Galambos and Other Nuts, Libertarian Activism--comments and C.P. Snow's "The Two Cultures" and Misesian Dualism). But, still, the title implied Laughlin thinks IP is, well, unreasonable (Cato scholars' IP positions seem to be mixed and largely utilitarian).

As I listened to the 16-minute podcast, I had a succession of impressions. For the first 6 or so minutes, I could not tell whether Laughlin was pro- or anti-IP. I know a bit about IP but I was not even sure what he was talking about much of the time. Oh, Laughlin is articulate enough--he speaks slowly, ponderously, and often pauses dramatically, as if struggling to pick just the right Deep Thoughts in response to Serious Questions--and even pronounces a French word or two properly. But soon it becomes obvious that his views on IP are just a mess, and he is, indeed, infected by the scientistic virus that physicists are susceptible to.

It soon become clear that Laughlin believes there is a tension between economic prosperity (which requires IP) and "human rights" (in particular the "right to learn," which IP impinges on). At first he seems to be very concerned that human rights will "give way" to IP and economic prosperity--even pessimistic about this--even while he himself seems to grant that we ought to be concerned about prosperity--and, thus, IP. So he's pessimistic that IP is infringing the human right to learn, yet he not only thinks nothing can or will be done to stop this--after all, we've now entered the information age, where IP rights are even more important to economic prosperity--he even seems to think that we should not abolish IP. We need to "supply the data" to "the legislature" (Congress), and achieve the right "balance", even though he admits he doesn't know what the right solution even is--it's "above my pay grade." Naturally, then, he doesn't blame the Congresscritters for how they have voted to date on IP issues, whether pro or con; their efforts are sincere and based on the best data possible. One wonders why he is depressed, or why he even wrote a book. I guess Nobel laureates can sell just about anything they slap their name on, which is reason enough.

I can't bring myself to read his book now, but from this interview it seems apparent that he holds a number of erroneous views: that both the state and the democratic process are legitimate, and that legislation is the right way to make law; that IP is pro-property rights; that IP is necessary for and promotes prosperity; that there is a conflict between human rights and economic rights; not to mention his implicit scientism. In his confused attempt to weigh in on legal and economic and policy issues he reminded me a bit of physicist Fritjof Capra's New Agey The Tao of Physics (hence the title of this post).

A few other things to note: from the Cato description of his book:

"Though we may feel inundated with information today, Nobel laureate Robert Laughlin argues that intellectual property laws and government security demands are increasingly restricting access to the most useful information. Government rules and businesses' legal pressures to sequester information threaten the development of new knowledge, he says. The rights of free people to investigate their world are threatened. Laughlin's fresh perspective and light, sometimes whimsical, bent do not mask the central warning of his readable book: that we risk bequeathing our heirs a world where knowledge is criminalized and our intellectual tradition of unfettered inquiry is lost."

So he sees IP as "criminalizing" knowledge ... yet is not completely opposed to it. So we need only a reasonable degree of criminalization of knowledge. I guess Laughlin chooses IP over reason... sometimes.

Publishers Weekly (from the Amazon.com listing) identifies some of the weaknesses in Laughlin's book:

"The provocative premise of this short book is that even as we appear to be awash in information, governments and industry are restricting access to knowledge by broadening the concept of intellectual property to include things as diverse as gene sequences and sales techniques. According to Laughlin, the right to learn is now aggressively opposed by intellectual property advocates, who want ideas elevated to the status of land, cars, and other physical assets so the their unauthorized acquisition can be prosecuted as theft. With examples drawn from nuclear physics, biotechnology and patent law, Laughlin, a Nobel laureate in physics, paints a troubling picture of a society in which the only information that is truly valuable in dollars and cents is controlled by a small number of individuals. But while Laughlin poses urgent questions, he provides neither in-depth analysis nor potential solutions. Many intriguing arguments--for example, that electronic technologies such as the Internet, which inundate us with useless information, are not instruments of knowledge dissemination at all but agencies of knowledge destruction--are offered but none are usefully explored.

So Laughlin views IP as "restricting access to knowledge"--if he instead viewed IP as an infringement of property rights, he would have a harder time making the mistake of thinking IP is on the side of economic prosperity and property rights. The "right to learn," whatever that is, is not any primary kind of right, and would seem to be jeopardized by government education and propaganda more than by patent and copyright. Again, IP undercuts and infringes property rights, and harms innovation (see here, here, here, here)--if he realized this, he would not set up the false alternative of prosperity versus human rights. And the idea that IP is more important in the information age is also flawed.

Kinsella Interview on Lew Rockwell Show podcast: Intellectual

A fifteen-minute interview by Lew Rockwell: Podcast #32; MP3 file (8.2MB). As Lew's site describes it, "Stephan Kinsella podcast on phony rights vs. real ones." We discussed mainly the moral, libertarian, propertarian, and state-related aspects of patent and copyright, and why there has been confusion about IP among libertarians.

More detailed discussion of these issues can be found on my libertarian publications page; see also my monograph Against Intellectual Property; and my speech and presentation, The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism.

Aharonian on Patent Trolls -- The Invalid Presumption of Patent Legitimacy

My comment posted on this Patently-O blog post: Greg Aharonian Discussed the WSJ's "Idiotic Article on Patent Tr-lls"

Aharonian writes: "Worse, this paragraph completely betrays free markets (something the Journal is glad to do when it is in the interests of its big company buddies), because it forgets the fact that a patent is an asset created by the government in exchange for an inventor's public disclosure of a new and useful invention. When the asset is so created, there is absolutely nothing freakin wrong with people doing with patents what they do with all other financial assets - buying, selling and exploiting them. To attack this practice is to attack free market economics."

In a sense, I agree with Aharonian: IF patents are a legitimate property right, then there is nothing wrong with using them. And Aharonian is right that there is nothing any worse about "trolls" than any normal patent holder. I have noted as much elsewhere: Patent Trolls and Empirical Thinking ("patent law simply does not require inventors to make or produce their inventions. And to attack "patent trolls" as somehow worse than those who do is confused"); The Coming Software Patent Apocalypse ("given a patent system, there's nothing wrong with patent trolls. It's a natural outcome and use of the system. Those who favor the system should stop whining about its predictable results"); Patent Law: Baby Steps ("One of their concerns [of the "Coalition for Patent Fairness" members] is "patent trolls - companies that exist primarily to make money from patents through litigation instead of commercialization"--but as I've noted, the hostility against patent trolls is misplaced. They are no different than any other patentee who takes advantage of the corrrupt and unjust patent system.").

But in another sense, I disagree with Aharonian, because it is not true that patents are a legitimate property right. In fact, they are at odds with genuine property rightss. (See my Against Intellectual Property; and Intellectual Property and the Support of the State). To expect the welfare-warfare state--which taxes, regulates, murders, invades, bombs, hampers, lies, steals, and jails, which impoverishes us and hampers the economy, which penalizes innocent behavior and wastes trillions of dollars--to expect this agency to "create" legitimate property rights or to add "wealth" to the economy--and by setting up a government bureaucracy to grant monopolies to applicants, under the oversight of the federal courts--is naive and confused beyond belief.

Tabarrok Review of Against Intellectual Monopoly

On Marginal Revolution, Alex Tabarrok reviews Boldrin & Levine's Against Intellectual Monopoly. According to Tabarrok, the book "is a relentless, pounding, take no prisoners attack on patent and copyright law.  It joins Lessig's Free Culture and Heller's The Gridlock Economy as an instant classic and a must-read on these issues. "

I don't know much about Tabarrok but as he has published in the libertarian journal Reason Papers, in The Free Market, and has writen some libertarian-ish sounding books published by the libertarian Independent Institute (and positively reviewed in the QJAE). So I assumed he was a libertarian. But here, though he seems to recognize some (practical) problems with patent and copyright, he doesn't want to abolish the state IP system altogether.

You see, "there is a Laffer curve for innovation - more appropriability increases innovation at first but innovation declines when appropriability extends too far." So though he agrees "with Boldrin and Levine that rent-seeking has put us on the wrong side of the Laffer curve for innovation," we should not abolish IP either. We need to try to "optimize" it, I suppose. Alas, "there is no invisible hand theorem which moves us automatically to the top of the curve".

So, though it's apparently politically impossible ever to "optimize" IP protection, to ensure that we are not "on the wrong side of the Laffer curve for innovation", and economically impossible to know we had reached this point anyway--nonetheless, wealth-maximizers like Tabarrok soldier on, advocating keeping a state-run IP system. So what should we do? "We need to reduce intellectual monopoly with patent reform, less copyright protection, and a greater use of patent substitutes like prizes." In the linked post, Tabarrok writes that he "might actually sign on to" The Medical Innovation Prize Fund Act of 2007, introduced by socialist Senator Bernie Sanders ... a bill which would not even abolish patents, but which would augment the patent system with a taxpayer-funded "medical innovation prize fund"--starting at "$80 billion per year, and increas[ing] with the growth in GDP"... ! Damn, $80 billion down the drain--puts my own little estimate that the patent system imposes around $28 billion in costs to shame!

Advocating state-funded "prizes" is about as unlibertarian as proposal as you'll see. And you don't need to do "marginal analysis" to figure that one out.


Update: Tabarrok here advocates using taxpayer funds to pay patentees to give up the patent rights that the federal government grants them. Why not just ... refrain from giving them the patent right in the first place? Because that would cause an "underproduction" of "innovation", by reducing "appropriability." Whatever. So he has to find a way to keep "appopriability high," and thus cannot give up a patent monopoly, or a tax-funded "subsitute" for it.

Anyway, note that the annual $80 billion taxpayer-subsidized fund--well, probably at least $82 billion by now, if we account for GDP growth since 2007, as Sanders and Tabarrok want to -- is for medical innovation only. This covers only a small slice of all patent innovation--in fact the "prize fund" also covers "non-patented products"--because, due to the patent system, "innovations without property rights are underfunded". So consider what this means. If we subsidize medical innovation to the tune of $82B a year, there is no reason not to subsidize other patentable--and even non-patentable--inventive areas. Hell, why stop there? Inventions are not the only types of innovation that should be rewarded. What about the copyright fields, like novels, painting, website design? And other areas of innovation, like boat hull designs and databases? And semiconductor maskworks, and trade secrets? And what about more fundamental research in the basic sciences? Let's see, I think the $82B for medical innovation is at most, say, 10% of all technical innovation. So we need another $820B for other technical fields. And surely the value of the artistic, boat hull design, semiconductor maskwork, and database works are at least on the same order of magnitude as the technicall innovations. So let's say it's another $ trillion, for $2 trillion. A year. To start. Now, what about basic science--physics, math, astronomy? Who can put a value on that? Well, I guess we have to--say, another cool $300B. And what about trademarks? My heavens, they are worth at least as much as patent and copyright, so let's add another trillion. So now we are up to $3.3 trillion. This is in addition to our current $2.5 trillion federal budget. So now the federal budget is, say, $6 trillion, out of about $14 trillion GDP. I'm sure our good marginal economists will assure us that this expenditure will increase appropriability--which will increase innovation, which will have a measurable value--and that this extra value will far exceed the $10 trillion or so that would need to be generated to just break even (assuming 35% of the extra wealth is taxed to replenish the $3.5T annual prize fund). Wow, what a great way to reach a $24 trillion GDP--just increase taxes by $3.5 trillion!! Genius! This never occurred to me. No wonder I'm not an economist.

Update 2:

And get this: according to the text of socialist Sanders's draft bill, the $80 billion+ taxpayer-funded "Fund for Medical Innovation Prizes" will be administed by a "Board of Trustees for the Fund for Medical Innovation Prizes," composed of 13 members serving 4-year terms. The 13 members of the Board are:

(1) the Administrator of the Centers for Medicare & Medicaid Services; (2) the Commissioner of Food and Drugs; (3) the Director of the National Institutes of Health; (4) the Director of the Centers for Disease Control and Prevention; and (5) nine individuals to be appointed by the President, with the advice and consent of the Senate, of which: (A) three representatives of the business sector; (B) three representatives of the private medical research and development sector, including at least one representative of the non-profit private medical research and development sector; and (C) three representatives of consumer and patient interests, including at least one representative of patients suffering from orphan diseases.
Each Board member will be paid at the equivalent of an annual salary of about $140k for daily service. They'll of course have expenses paid, and a staff, and budget to hire experts and consultants.

And every year, the Fund gets public funding equal to "0.6 percent of the gross 6 domestic product of the United States for the preceding fiscal year."

Jesus, this is pure evil.

(Cross-posted at Mises Blog)

P2P Foundation -- Against the artificial scarcity of IP law

In Against the artificial scarcity of IP law, Michel Bauwens has a nice summary of some of my own arguments against IP.

Kinsella's "Against Intellectual Property" monograph, related speeches and articles

Against Intellectual Property My 2001 article is now out in book form: Against Intellectual Property (Mises Institute, 2008). Of course, the Mises Institute offers a free PDF version online as well. And there is also a Scribd version.

Those interested in this might also find my article "There's No Such Thing as a Free Patent" of interest, plus my Austrian Scholars Conference 2008 Rothbard Memorial Lecture, "The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism" (originally titled "Rethinking IP Completely"), which is online. Here's the audio, the video, and the accompanying Powerpoint presentation (PPT, 32 MB; PDF version, 51 MB). The Google Video version is now available; embedded version below.

These and other material are available on my website.

IP Discussion on Free Talk Live

On the July 24, 2008 show of Free Talk Live, the excellent libertarian radio program, there was a lively and interesting IP discussion between host Ian and three callers, on the anti-IP side, and host Mark, on the mildly pro-IP side. It's interesting to see the sincere but confused and fumbling host Mark utterly unable to articulate a coherent defense, or even definition, of IP, especially in response to intelligent criticism by his callers. Anyway, the show is good and Mark and Ian are both great.

The recorded show (28M MP3) is about 2 hours long; the IP discussion starts at the 1:21:14 (or so) mark.

Rethinking IP Completely

My Austrian Scholars Conference 2008 Rothbard Memorial Lecture, "The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism" (originally titled "Rethinking IP Completely"), is now online. Here's the audio, the video, and the accompanying Powerpoint presentation (PPT, 32 MB; PDF version, 51 MB). Update: the Google Video version is now available; embedded version below.

"Pattern Privileges": Renaming IP

In a recent Mises blog post, Renaming Intellectual Property, I noted that in If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?, Techdirt writer Mike Masnick (who continually has excellent comments on IP policy) discusses various proposd replacements for the misleading term "intellectual property." Contenders include "intellectual monopoly," "intellectual privilege," "imaginary property," and "None of the Above." There are problems with each of these. Masnick concludes: "In general, because of common usage, I don't think it's bad to use the phrase "intellectual property" just so that people know what you're talking about -- but we should be careful to not use it in a way that reinforces the concept that it's property just like other kinds of property."

I tend to agree. What IP law does it give legal (positive) rights to people to try to protect or stimulate innovation or creation. It gives them rights in innovations, creations, recipes, or patterns. If one keeps in mind the distinction between natural and positive rights, then it's easy to see that laws do create legal rights, and of course all rights are, in the end, types of property rights. So IP laws do create (positive, or legal) (property) rights. And they do have to do with products of the mind, or intellect. So "intellectual property" rights seems fine to me, if one realizes that there is a difference between positive right (positive law) and natural rights (natural law).

Still, some ideas came to me (and I own them, I suppose). It would be nice to take the word "property" out, and just refer to the rights conveyed. Copyright gives authors of original works certain (legal) rights to their "works" or creations. Books, songs, paintings are regarded as "original works of authorship". There is an element of "creativity" to these things. Patents give certain (legal) rights to inventors of practical inventions--methods or processes for doing things (recipes) or arrangements of matter (designs). What do inventions and "works of authorship" have in common? One is practical, aimed at some gizmo or method that produces a practical result (a machine or process). Another is aimed at "creative" things--paintings, novels, songs. J. Neil Schulman, in his neo-Randian/Galambosian [I don't know if he would accept this label] IP theory groups them all under the term "logorights," where the "logo" refers to a "pattern". I think this is a pretty good description: a recipe is a type of pattern; as is the design for a practical machine or device. Likewise, original works like paintings, music, etc., are obviously representable digitally, as patterns. Copyright and patent law clearly grant rights ... to whom? To creators--inventors and authors--of "logos"--patterns, such as machine designs, process steps, or the patterns that represent the song, painting, etc.

So, as much as I disagree with Schulman's justification for "logorights," the term is a pretty good one--except that it is so arcane. A variation on it using more standard terms might be better: pattern rights, or perhaps innovation rights. Or, to make the label a bit less "neutral," replace "rights" with "monopolies" or "privileges," since that is what is being granted by the state. So we have "pattern monopolies" or "pattern privileges," "innovation rights" or "innovation privileges."

As I noted in my Austrian Scholars Conference 2008 talk, I think I like the term "pattern privileges" best.

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