Jan 022013

2012: The year Irish newspapers tried to destroy the web:

This year the Irish newspaper industry asserted, first tentatively and then without any equivocation, that links -just bare links like this one- belonged to them. They said that they had the right to be paid to be linked to. They said they had the right to set the rates for those links, as they had set rates in the past for other forms of licensing of their intellectual property. And then they started a campaign to lobby for unauthorised linking to be outlawed.

These assertions were not merely academic positions. The Newspaper Industry (all these newspapers) had its agent write out demanding money. They wrote to Women’s Aid, (amongst others) who became our clients when they received letters, emails and phone calls asserting that they needed to buy a licence because they had linked to articles in newspapers carrying positive stories about their fundraising efforts. These are the prices for linking they were supplied with:

1 – 5 €300.00
6 – 10 €500.00
11 – 15 €700.00
16 – 25 €950.00
26 – 50 €1,350.00
50 + Negotiable

They were quite clear in their demands. They told Women’s Aid “a licence is required to link directly to an online article even without uploading any of the content directly onto your own website.”

Recap: The Newspapers’ agent demanded an annual payment from a women’s domestic violence charity because they said they owned copyright in a link to the newspapers’ public website.

This isn’t the case of a collection agent going rogue.

The National Newspapers of Ireland is the representative body for Irish Newspaper Publishers.

Go read the rest of the article.

Many, many things irritate me about this abuse of intellectual property by Irish newspapers, but what really gets my goat is these news web sites could easily block deep linking via their webserver settings… but they choose not to do that. Why not? Obviously, because they actually want those deep links: they depend on that traffic. Still, their business model is failing. So, in a particularly nasty fit of short-sighted pragmatism, they’ve invented an utterly ridiculous legal claim of copyright infringement to compel those providers of traffic to pay them ridiculous sums of money after the fact. It’s just appalling.

The good news is that (1) I can’t imagine that any courts will uphold these claims and (2) if they do, the result will only be the utter obliteration of Irish newspapers from the face of the earth. You asked for it, brothers!

Rick Santorum on Free Speech

 Posted by on 24 January 2012 at 8:00 am  Election, Free Speech, Intellectual Property, Politics, Rick Santorum, SOPA/PIPA
Jan 242012

In this video, Rick Santorum answers a question on SOPA. He doesn’t express an opinion about the bill, but he does explain his view that he regards all rights as limited and subject to regulation, including free speech rights:

Here are some highlights, but I recommend listening to the whole video:

My general feeling is that we have a free market and a free market should work. But like any freedom, there has to be regulation. We’re not unlimited in any right, even rights that we have within our Constitution: they’re not unlimited rights. There is, and can be, limitations on that. Freedom of speech, there are things that you can’t say: you can’t cry “fire” in a crowded theater. There are limitations to all freedom: there are no absolute rights. There are rights that have responsibilities that come with them. If you abuse those rights — piracy — if you abuse those rights, then you have a consequence of abusing that right. …

I would make the case that … there are limits to freedom on the internet. The internet is a powerful source for good. And, as we all know, it has been a powerful source for bad in this country. So the idea that we should just “hands-off” — and it’s a moral-free zone, it’s a regulation free-zone, and that people should be able to do whatever they want — I don’t know of any other zone in America where that’s the case. Why should the internet be different than everything else?

So I would say that responsible, well-[something], discussed regulation — if there is abuse, taking someone’s private property — if there is abuse, as there is in pornography and a lot of other areas where we are destroying the moral fabric of our country — to say, “well, it’s just tough, let people to whatever they want — let a 12 year old — let them do whatever they want.”

There are limitations that have to be put in place because your free speech rights can be incredibly harmful to someone else. Your desire to go a grab something that doesn’t belong to you can be very harmful to someone else. …

Rick Santorum views liberty as mere license to indulge in whims, including stealing from others. That’s an utterly corrupt conception of rights. A person does not have the right to violate the rights of others! Yet on Santorum’s view, protecting intellectual property from theft is on par with banning pornography to protect the moral fabric of society. They’re both a matter of limiting rights to prevent harm to others.

Oy vey.

Theft of Intellectual Property

 Posted by on 27 December 2010 at 4:00 pm  Intellectual Property
Dec 272010

For those following the Atlas Shrugged Video Contest, I want to mention that one of the entries, “Sixth Sense” is now embroiled in a most unfortunate dispute over ownership. Jerry Johnson — who I’ve known online as an upright, thoughtful guy for many years — wrote a clear post post explaining the events: Abhay Kumar Steals Credit to Atlas Shrugged Video Contest Entry. My best wishes to Jerry; I can only hope that matters are resolved to his satisfaction.


Last month, Adam Mossoff gave a fantastic webcast on intellectual property. The content and style of the presentation was stellar, and I enjoyed the excitement of the live event even more than I expected. In fact, the presentation challenged a number of my conventional assumptions about intellectual property, e.g. about the DMCA. As a result, I’ll definitely approach these issues with more knowledge and care in the future due to the webcast.

So… I’m pleased to announce that the webcast — in the form of 1 hour and 34 minutes of streaming video — is now available for sale. It costs $50 to purchase. For that price, you’ll enjoy full access to the streaming video for at least two months. You’re welcome to share that streaming video with members of your own household, but not with anyone one else. You cannot download the video, nor any audio.

Here are two clips from the webcast itself. The first is part of the explanation of why all property is fundamentally intellectual property. The second concerns software patents, including time limits on patents.

And here’s the updated abstract:

Ayn Rand was the first philosopher to recognize that all property is at root intellectual property (IP), because all property comprises material values that are born of the human mind. In this webcast, Professor Mossoff explains this uniquely Objectivist defense of IP rights and answers questions submitted by the participants. First, he provides a brief overview of IP, explaining what it is and why it is properly defined as a property right that should be secured under the law. He then responds to questions from participants, covering such issues as the nature and justification for time limits on patents and copyrights, whether computer software should be patented, and the alleged problem of “patent trolls,” among other issues. Professor Mossoff’s discussion presents a sweeping analysis of IP rights, touching upon contemporary legal disputes and historical developments–all of which supports Rand’s view that all property rights, whether in land, factories, consumer goods, securities, or inventions and books, are made possible by innovators who first conceived of these new values.

To purchase the webcast, you simply need to send me $50, preferably via PayPal. If you do that, I’ll send you the instructions for viewing the webcast within 24 hours.

Or, if you would prefer to pay by check or money order, please submit this order form, then mail your payment of $50 for each webcast ordered to Diana Hsieh; P.O. Box 851; Sedalia, CO 80135. In that case, you can expect an e-mail with instructions for viewing the webcast in a week or two, once payment has been received.

To give the webcast as a gift to someone outside your own household, you need only purchase a copy for that purpose, then send that person the instructions for viewing it. Please do not view the webcast unless you have purchased a copy for yourself. (It’s an honor system.)

For in-person group events such as Objectivist club meetings, one person in the group must purchase the webcast for $50, then every person not of that household must pay $10 to attend the viewing. The extra people are not entitled to access the webcast after that group viewing. The $50 payment must be made in advance of the viewing, but the $10 for each additional viewer can be paid after the event. To pay for those additional viewers, please use this PayPal link or the order form.

Starting in January, I will be producing similar pledge-funded webcasts every month with various Objectivist intellectuals. While the details aren’t yet set in stone, they’re likely to happen in the middle of the month, on Mondays. In January, historian Eric Daniels will speak on the foundations of free speech. (Yay!) For that webcast, everyone who pledges will be welcome to ask questions beforehand and attend the live event. They’ll also have access to the streaming video for about two months. As usual, I’ll be announcing the details of that January webcast on NoodleFood and the OLists, likely after Christmas.

Oct 292010

Adam Mossoff’s work on patents was recently discussed in a Wall Street Journal blog post entitled What Smartphone Makers Can Learn From the Sewing Machine Patent War by David Zax. It begins:

The smartphone market is highly lucrative, has many competing players, and involves countless patents. In other words, it’s a recipe for lawsuits. In the last month alone, Microsoft lobbed a suit at Motorola, who in turn sued Apple. Nokia and HTC both have sued Apple, and Apple has sued both Nokia and HTC.

The web of competing claims on smartphone technology might seem a uniquely 21st-century problem. But according to legal scholar Adam Mossoff, the smartphone woes are reminiscent of a forgotten 19th century legal melee: the Sewing Machine War.

It’s a quick look into some fascinating history that’s very relevant to policy debates about patents today. So go read it!

If you’re interested in these thorny and crucial questions about intellectual property, I strongly recommend that you join Adam Mossoff’s upcoming webcast. You have until November 6th to pledge, and the details can be found in this post. This evening, I’ll set up Google Moderate for the people who pledged enough to participate in the asking of and voting on questions. (Those pledgers will get an e-mail from me with the URL.)

If you’d like to pledge, here’s the form:

I’m really excited about this lecture, and I do hope that you’ll join us!


I’m delighted to announce a new project that I’m helping to organize: the hosting of live online events (i.e. webcasts) with notable intellectuals and producers about their work. Even better, our first webcast will be law professor Adam Mossoff speaking on questions about intellectual property!

Even amongst its staunch defenders, the basis and limits of intellectual property are always hot topics. That was plain as day based on the long lines of people hoping to ask Professor Mossoff questions about the theoretical basis and practical implementation of intellectual property after his lecture at OCON this summer.

Here’s Professor Mossoff’s proposal for this webcast:

Ayn Rand was the first to recognize that all property is at root intellectual property. The law and history support Rand’s view that all property rights, whether in land, factories, consumer goods, securities, or inventions and books, are made possible by innovators who first conceived of these new values. Professor Mossoff will give a brief overview of the evidence supporting Rand’s view and answer questions about the theory, history, and law of intellectual property.

As that description suggests, the webcast will focus on answering your questions about intellectual property. It will last between 60 and 90 minutes.

In case you’re not familiar with Adam Mossoff — or his ground-breaking work on intellectual property — here’s a bit more about him:

Adam Mossoff is Professor of Law at George Mason University School of Law, where he teaches and writes in the areas of property and intellectual property law. His research focuses on the intersection between intellectual property law and property theory, and has published numerous articles on topics in patent law, property law, legal history and legal philosophy. He graduated with honors from the University of Chicago Law School.

You can find more on Professor Mossoff on his GMU faculty web page, and you can download many of his papers from his SSRN page. But mostly, I should say that Adam Mossoff’s lecture on intellectual property at OCON was fantastic, and he was particularly stellar in the Q&A. That’s why we’re so excited to have him as our first speaker.

If you want this lecture to take place, if you want to support Professor Mossoff’s extraordinary work, and if you want to help create a new outlet for the dissemination of intellectual ideas, please pledge. You can pledge whatever dollar amount this lecture is worth to you.

If enough people have pledged enough money by noon on November 6th to make this project worth producing, then I’ll email everyone who has committed, you’ll send the payment, and I’ll send you a private link to the lecture. The lecture will be recorded on the evening of Monday, November 15th. You’ll receive a link to the recorded version soon after that date.

That’s awesome, right? Right! But wait, there’s more! If you pledge $20 or more you can submit questions in advance of the event, see all questions submitted by others, and vote on the questions you most want to hear answers to in the lecture. (We’ll use Google Moderate for that.) Professor Mossoff will craft the bulk of his lecture around the questions and topics that people are interested in, provided that they’re consistent with his topic and theme.

In addition, a select number of people will be invited to participate in the live online event so you can watch it while it’s taking place, participate in the live chat, and ask questions of Professor Mossoff during the webcast. How do you participate live?

1) If you have made one of the top 10 highest pledges by the November 6th deadline you will be invited to the live online event.

2) Everyone is encouraged to invite their friends to pledge for this event. The top 10 people who have brought the most number of friends to join in the pledging will receive a personal invitation to the live event. (Hence, share this post on Facebook!)

(We might offer more options for the live event later.)

Do you want to pledge? I hope so! (If you were referred by a friend, please note his/her name in the comment field of your pledge. Also, even if you’re pledging less than $20, please include your questions in that field.)

If you have any problems with that embedded form, try this one. If you have any questions or suggestions, please feel free to post them in the comments.

Also, please note that Professor Mossoff cannot provide legal advice, and thus webcast questions should not concern, directly or indirectly, any legal disputes involving the questioner, either directly or indirectly.

Dec 092009

Over at the anarchist-libertarian Ludwig von Mises Institute, intellectual property lawyer Stephan Kinsella posted “An Objectivist Recants on IP.” The posting describes how someone named Bala was mixing it up in their discussion threads and eventually came to conclude that “An Objectivist cannot and should not support the notion of Intellectual Property because it violates fundamental Objectivist principles.”

Unsurprisingly, the culmination of Bala’s odyssey and the central point that cemented the illegitimacy of intellectual property in his mind is a common one voiced by libertarians opposed to intellectual property: the notion that intellectual property rights inherently conflict with material property rights.

Ideas and patterns, on the other hand, presented a problem when I tried to treat them as “property”. While there is no denying the value of ideas in human advancement, exclusion of other individuals from an idea or pattern necessarily involves the initiation of force. For instance, how else is A to prevent B from incorporating A’s idea in his B’s product other than to force himself upon B’s property and coerce B to prevent him from doing so, thus violating B’s Liberty? In effect, recognising ideas and patterns as property is tantamount to saying that A has a moral right to initiate force against B simply because he has coined an idea. Thus, as an Objectivist, classifying ideas and patterns as “property” takes me into dangerous territory where I am ready to label the initiation of force as legitimate.

This is ultimately based on confusion about which kinds of ideas do and don’t properly count as intellectual property, as well as confusion about what does and doesn’t constitute a rights-violation. I addressed this (and more) a few years back in “Don’t Steal This Article!“, an analysis of the strongest libertarian arguments I could find against the legitimacy of intellectual property:

The first thing to note is the plain fact that people are routinely prevented from using their material property when it would violate any right — so the protection of intellectual property rights would not be unique in so “controlling” other people in their use of their material property. For example, my neighbor’s person and property rights are not violated when he is not allowed to spontaneously whack me in the head with his fully-owned two-by-four. His rights are not violated in preventing him from using his tangible truck to pull up to my house and drive off with my entertainment center. We are all restricted from using our persons and property to violate the rights of others, and such restrictions do not themselves constitute an infringement of rights because nobody has the right to violate rights.

It is bad enough that these libertarian scholars ignore such an obvious point, but the evasion reaches full bloom in Kinsella’s explanation of the alleged “taking” caused by the appearance of intellectual property. The charge is that, as intellectual property comes into existence, liberty is lost in a magical transfer of partial ownership from the owners of material property to an author or inventor, thereby unjustly preventing them from doing something they were otherwise free to do with their own property. But in no sense is any ability, permission, or liberty lost. Recall that intellectual property rights protect the manufacture of creations — objects which did not and would not otherwise exist. Before a novel has been written, absolutely nobody has the power to publish it, so its being authored cannot remove any liberty previously enjoyed by printers. And before some better mousetrap is invented, nobody has the power to produce it — so its being invented cannot deny manufacturers any previously enjoyed freedom.

Indeed, far from losing any power or liberty, the options available to owners of material property only increase with the appearance of intellectual property: they are presented with at least the potential to use their property in the production of new, life-serving objects in collaboration with an inventor or artist.

Bala’s friends there at LvMI are definitely not helping him out. How many of the other issues with his account of Objectivism and IP can you see and (constructively) address?

Sep 232009

The Fall 2009 issue of The Undercurrent includes two excellent articles.

It’s Not Stealing Because I Don’t Want It to Be” by Rituparna Basu
Summary: FileSharing – Rationalization = Theft

Putting a Price on Freedom” by Noah Stahl
Summary: U.S. – Freedom = Disaster

A Stitch in Time

 Posted by on 6 May 2009 at 11:01 pm  Intellectual Property, Law
May 062009

George Mason law professor Adam Mossoff recently wrote me about his working paper on “the invention, patenting and commercialization of the sewing machine in the antebellum era.” The paper — “A Stitch in Time: The Rise and Fall of the Sewing Machine Patent Thicket” — can be freely downloaded from SSRN.

Here’s his abstract:

The invention of the sewing machine in the antebellum era was an achievement on par with the latest high-tech or pharmaceutical discovery today. This paper presents the first comprehensive empirical study by a legal scholar of the invention, patenting and commercialization of the sewing machine in the nineteenth century.

In so doing, it challenges many assumptions by courts and scholars today about the alleged efficiency-choking complexities of the modern patent system, revealing that complementary inventions, extensive patent litigation, so-called “patent trolls,” patent thickets, and privately formed patent pools have long been features of the American patent system reaching back to the antebellum era. This is particularly significant with respect to patent thickets, as there is a vigorous debate on whether patent thickets exist. The sewing machine patent thicket — called the “Sewing Machine War” — confirms that patent thickets are not just a theoretical construct. But the Sewing Machine War also reveals how patent-owners have strong incentives to resolve patent thickets.

In the case of the Sewing Machine War, these incentives prompted the formation of the first patent pool in American history — the Sewing Machine Combination. Even more important, this innovative contractual solution to the first patent thicket occurred at a time when patent-owners received strong legal protection of their property rights (injunctions), including even injunctions issued on behalf of Elias Howe, who was a “non-practicing entity” or “patent troll.” The Sewing Machine Combination ultimately spurred further commercial innovation that was essential to the success of the Industrial Revolution in the United States. Thus, the story of the invention of the sewing machine is a striking account of early American technological, commercial and legal ingenuity, which heralds important empirical lessons for understanding how the successful American patent system has weathered patent thickets and related problems.

He also mentioned to me the following:

Objectivists will appreciate this historical case study, because it’s a great concretization of the values made possible by the political and economic freedom secured to American citizens in the nineteenth century. All in all, it’s a fascinating tale of early American ingenuity in every aspect of modern life–in technology, law, and commerce.

The topic is currently under discussion at The Volokh Conspiracy, where Adam has been guest-blogging there for the past week on his paper. He has quite a few posts already, and you can find them all via the first post.

I’ve not yet read the paper, but I look forward to doing so… as I so often say these days… when I’m done the dissertation.

Also, I should mention that Adam is an occasional character on one of my favorite blogs — The Little Things, written by his wife Amy.

May 022006

DON’T STEAL THIS ARTICLE On the Libertarian Critique of Intellectual Property*

by Greg Perkins

Marxist scholars don’t have much interest in defending individual rights, private property, and free markets — so their antipathy to intellectual property rights in patent and copyright isn’t surprising. In contrast, there are a significant number of libertarian scholars who proclaim individual rights and free markets to be good and desirable, yet who share an antipathy to intellectual property. That is, they systematically defend material property rights while decrying intellectual property as a confused, destructive, and morally bankrupt idea that should be abolished for the protection of our true individual rights.

In making their case, these libertarian scholars1 cite a blizzard of puzzles and problems surrounding intellectual property. They see incoherency: how is it that, unlike all other rights, intellectual property rights should abruptly vanish after some set number of years? They see arbitrariness: why single out for reward the mental work behind the practical inventions of industry, but deny it for the mental effort behind the theoretical discoveries of science that make those inventions possible? Besides, they maintain, the line between invention and discovery is inherently vague and artificial. And they see a fundamental contradiction: inalienable rights cannot logically conflict with one another, but they find that intellectual property rights violate material property rights in an automatic and unchosen transfer of partial ownership to inventors and authors. Owners of paper and ink can use their property in certain ways only by permission of copyright holders; owners of metal and tools can use their property in certain ways only by permission of patent holders.

To resolve such issues, these libertarian scholars seek a theory of property that will firmly establish material property rights while excluding intellectual property.2 Stephan Kinsella explains its basis:

Let us take a step back and look afresh at the idea of property rights. Libertarians believe in property rights in tangible goods (resources). Why? What is it about tangible goods that makes them subjects for property rights? Why are tangible goods property?

A little reflection will show that it is these goods’ scarcity — the fact that there can be conflict over these goods by multiple human actors. The very possibility of conflict over a resource renders it scarce, giving rise to the need for ethical rules to govern its use. Thus, the fundamental social and ethical function of property rights is to prevent interpersonal conflict over scarce resources. …

Others [in addition to Hoppe] who recognize the importance of scarcity in defining what property is include Plant, Hume, Palmer, Rothbard, and Tucker.

Nature, then, contains things that are economically scarce. My use of such a thing conflicts with (excludes) your use of it, and vice versa. The function of property rights is to prevent interpersonal conflict over scarce resources, by allocating exclusive ownership of resources to specified individuals (owners).3

Thus Kinsella concludes that “[t]he problem with IP rights is that the ideal objects protected by IP rights are not scarce…” Property rights “are not applicable to things of infinite abundance, because there cannot be conflict over such things.”4 As our first patent examiner, Thomas Jefferson, put 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.”5

Finally, Kinsella points to the ironic twist that “IP laws create an artificial, unjustifiable scarcity” which “itself needs a justification.” On this last, he quotes Arnold Plant:

It is a peculiarity of property rights in patents (and copyrights) that they do not arise out of the scarcity of the objects which become appropriated. They are not a consequence of scarcity. They are the deliberate creation of statute law, and, whereas in general the institution of private property makes for the preservation of scarce goods, tending … to lead us “to make the most of them,” property rights in patents and copyrights make possible the creation of a scarcity of the products appropriated which could not otherwise be maintained.6

Other contemporary libertarian scholars echo the same ideas, and Tom Palmer’s analysis emphasizes the same essential points regarding the basis of property and our right to it:

The key to all of this is scarcity. … Tangible goods are clearly scarce in that there are conflicting uses. It is this scarcity that gives rise to property rights. Intellectual property rights, however, do not rest on a natural scarcity of goods, but on an ‘artificial, self created scarcity.’ That is to say, legislation or legal fiat limits the use of ideal objects in such a way as to create an artificial scarcity that, it is hoped, will generate greater revenues for innovators… But the attempt to generate profit opportunities by legislatively limiting access to certain ideal goods, and therefore to mimic the market processes governing the allocation of tangible goods, contains a fatal contradiction: It violates the rights to tangible goods, the very rights that provide the legal foundations with which markets begin.7

The above stands as the core theory offered in the libertarian case against intellectual property rights. What is particularly striking is that none of the contemporary heavyweights like Palmer and Kinsella grapple with the meaning of individual rights in general, nor their still-deeper basis in ethics, epistemology, and human nature. That is, their chief observation begs the question: is the splendid characteristic of conflict-prevention the central purpose of property rights, or merely a benefit — is it the cause or an effect? To determine this, we need to investigate the source of rights in general. These scholars seem hesitant to do so, but Ayn Rand wasn’t, and her perspective illuminates the central difficulty in their case: they have missed the essence of all rights.

* *
Rand noted that rights — including property rights — are ultimately based in the needs of man’s life: if a man is to live, he must be able to act to sustain his life. An objective morality defines the broad principles by which men must act to sustain their lives, and a proper government preserves the conditions required for men to do so when living among others. This is why Rand described a right as “a moral principle defining and sanctioning a man’s freedom of action in a social context.”8 More broadly, she explained,

“Rights” are a moral concept — the concept that provides a logical transition from the principles guiding an individual’s actions to the principles guiding his relationship with others — the concept that preserves and protects individual morality in a social context — the link between the moral code of a man and the legal code of a society, between ethics and politics. Individual rights are the means of subordinating society to moral law… The principle of man’s individual rights represented the extension of morality into the social system — as a limitation on the power of the state, as man’s protection against the brute force of the collective, as the subordination of might to right

There is only one fundamental right (all the others are its consequences or corollaries): a man’s right to his own life. Life is a process of self-sustaining and self-generated action; the right to life means the right to engage in self-sustaining and self-generated action — which means: the freedom to take all the actions required by the nature of a rational being for the support, the furtherance, the fulfillment and the enjoyment of his own life.9

The immediate corollaries of the right to life are the rights to liberty, property, and the pursuit of happiness. Each flows from an essential aspect of the Objectivist ethics, which is itself rooted in epistemology and the nature of man.10 Consider liberty. Reason is our basic means of survival and so rationality is our primary virtue; in general, we must have the liberty to grasp the nature of the world and act accordingly to live. That is, the right to liberty flows from a recognition of our primary virtue of rationality. And consider happiness. It is our emotional reward for achieving values over time, the emotional experience of living. The right to life entails the right to pursue and achieve values to serve our individual lives — and the concomitant right to the pursuit of our individual happiness. That is, the right to the pursuit of happiness flows from a recognition of the individualistic, egoistic nature of life and morality.

Finally, consider property. While other animals adjust themselves to nature, man adjusts nature to his own needs by creating the values that sustain his life — everything from food and shelter, to transport systems and communication networks, to medical technologies and art. We need to produce, keep, use, and dispose of values to serve our lives, and productiveness is the virtue by which we do so. The right to property flows from a recognition of the cardinal virtue of productiveness. Rand singled out the right to property as having special significance in the implementation of all rights:

The right to life is the source of all rights — and the right to property is their only implementation. Without property rights, no other rights are possible. Since man has to sustain his life by his own effort, the man who has no right to the product of his effort has no means to sustain his life. The man who produces while others dispose of his product, is a slave.11

This brief sketch of the Objectivist view of rights indicates why, contrary to the view of libertarians opposed to intellectual property, the essential basis of property is not scarcity — it is production. Their complaint that intellectual property is an oxymoron because ideas are not scarce in the same way as apples has no merit, for the concepts of property and ownership lie fundamentally in the need for men to produce and enjoy values in support of their lives — not merely in the narrower and subsidiary need to avoid conflict with one another in that enjoyment.

* *
Studying the most challenging puzzles and problems raised by libertarian scholars against intellectual property will help us to better understand the requirements of man’s life as the basis of rights in general, production as the basis of property in particular, and the role of the mind throughout. In each case we will dive below the surface to appreciate the implications of essential facts from ethics, epistemology, and the nature of man to enrich our understanding of intellectual property and reinforce the principles at play.

Consider the issue of recognizing inventions as intellectual property while excluding discoveries. Kinsella discusses how “the distinction between the protectable and the unprotectable is necessarily arbitrary” in his view:

[P]atents can be obtained only for so-called “practical applications” of ideas, but not for more abstract or theoretical ideas… But the distinction between creation and discovery is not clearcut or rigorous. Nor is it clear why such a distinction, even if clear, is ethically relevant in defining property rights… [I]t is arbitrary and unfair to reward more practical inventors and entertainment providers, such as the engineer and songwriter, and to leave more theoretical science and math researchers and philosophers unrewarded. The distinction is inherently vague, arbitrary, and unjust.12

To gain some purchase on this issue it is helpful to distinguish between wealth and other things we value in markets. Carefully drawing this contrast, economist George Reisman describes wealth as specifically material economic goods.13 Goods, as beneficial and life-preserving rather than merely any object; economic goods as against “free goods,” which are benefits that do not need to be created (such as air and sunlight); material economic goods as existing benefits to men’s lives — rather than potential economic goods, or mere proxies (like stocks and money) or means (like labor) or preconditions (like ideas). Labor and ideas are valued as economic goods, not because they are themselves wealth, but because they are the indispensable means to wealth.

The distinction between wealth and its preconditions lets us clarify the ethical significance of inventions: inventors use their understanding of nature (often involving discoveries made by scientists) to solve specific problems in human welfare. Inventors are not recognizing some general fact about reality, but creating a recipe for producing wealth, thereby enabling the production of specific life-serving objects which would not have existed without their mental work. The crucial distinction between discovery and invention lies in their object: facts of nature are what they are and exist waiting to be discovered, while inventions are objects which would not exist without a creator. So intellectual property rights are a recognition of a crucial precondition of the life-serving creation of wealth — and they are not, contrary to this complaint, a general reward for mental effort that is arbitrarily denied for some classes of thought.

Moreover, a failure to distinguish between practical invention and theoretical discovery in intellectual property protection would work directly against the very purpose of individual rights. It would be unjust and contrary to the requirements of man’s life to protect discoveries as intellectual property, by making possible the demand that people ignore facts and act on known falsehoods in lieu of paying for the privilege of living. It would mean people being prohibited from acting in accordance with a fact once it is known — including barring their taking life-sustaining actions and using that knowledge to create new, life-serving objects. In contrast, there is no injustice when inventors or artists peacefully withhold the use of their recipes for manufacturing things that could not otherwise exist. Indeed, injustice would lie in denying creators the right to set their terms for providing the necessary means to life-serving wealth.

* *
This brings us to the central problem cited by libertarians opposed to intellectual property: that intellectual property rights conflict with material property rights. Palmer introduces the issue this way:

Arguments such as Spooner’s and Rand’s encounter a fundamental problem. While they pay homage to the right of self-ownership, they restrict others’ uses of their own bodies in conjunction with resources to which they have full moral and legal rights.14

And I’ll let Kinsella flesh it out with his explanation of the exact nature of the alleged “taking” involved in intellectual property rights:

Let us recall that IP rights give to pattern-creators partial rights of control — ownership — over the tangible property of everyone else. The pattern-creator has partial ownership of others’ property, by virtue of his IP right, because he can prohibit them from performing certain actions with their own property. Author X, for example, can prohibit a third party, Y, from inscribing a certain pattern of words on Y‘s own blank pages with Y‘s own ink.

That is, by merely authoring an original expression of ideas, by merely thinking of and recording some original pattern of information, or by finding a new way to use his own property (recipe), the IP creator instantly, magically becomes a partial owner of others’ property. He has some say over how third parties can use their property. IP rights change the status quo by redistributing property from individuals of one class (tangible-property owners) to individuals of another (authors and inventors). Prima facie, therefore, IP law trespasses against or “takes” the property of tangible property owners, by transferring partial ownership to authors and inventors. It is this invasion and redistribution of property that must be justified in order for IP rights to be valid.15

The first thing to note is the plain fact that people are routinely prevented from using their material property when it would violate any right — so the protection of intellectual property rights would not be unique in so “controlling” other people in their use of their material property. For example, my neighbor’s person and property rights are not violated when he is not allowed to spontaneously whack me in the head with his fully-owned two-by-four. His rights are not violated in preventing him from using his tangible truck to pull up to my house and drive off with my entertainment center. We are all restricted from using our persons and property to violate the rights of others, and such restrictions do not themselves constitute an infringement of rights because nobody has the right to violate rights.

It is bad enough that these libertarian scholars ignore such an obvious point, but the evasion reaches full bloom in Kinsella’s explanation of the alleged “taking” caused by the appearance of intellectual property. The charge is that, as intellectual property comes into existence, liberty is lost in a magical transfer of partial ownership from the owners of material property to an author or inventor, thereby unjustly preventing them from doing something they were otherwise free to do with their own property. But in no sense is any ability, permission, or liberty lost. Recall that intellectual property rights protect the manufacture of creations — objects which did not and would not otherwise exist. Before a novel has been written, absolutely nobody has the power to publish it, so its being authored cannot remove any liberty previously enjoyed by printers. And before some better mousetrap is invented, nobody has the power to produce it — so its being invented cannot deny manufacturers any previously enjoyed freedom.

Indeed, far from losing any power or liberty, the options available to owners of material property only increase with the appearance of intellectual property: they are presented with at least the potential to use their property in the production of new, life-serving objects in collaboration with an inventor or artist.

* *
Finally, we turn to the subtlest issue we will explore: time limits. Libertarians opposed to intellectual property see unprincipled arbitrariness in protecting it for some given number of years; for if intellectual property is legitimate, why wouldn’t we provide unlimited protection as with material property? But they also note that if there were no time limits, then people would become mired in impossible record-keeping, drained by endless royalties, paralyzed in innovation. In the face of both limited and unlimited protection seeming unprincipled and heinously impractical, they reject intellectual property protection altogether — and this is further justified in light of their scarcity-based theory of property.

Certainly the practical point about the crushing burden of endless royalties and record-keeping is a useful sign that unlimited patent and copyright protection is a bad idea we should reject. But that alone does not constitute the full case against the idea; we also need to look to the nature of man’s life to identify what is wrong with unlimited intellectual property rights. Further, in seeing the trouble there, we can identify what gives rise to the need for time limits in the first place — and we can identify principles to guide us in the delicate challenge of determining just intellectual property durations which are not arbitrary.

Our starting point is the examination of what would be entailed in owners enjoying both material and intellectual property in perpetuity. First, recall that in discussing wealth as material economic goods we carefully distinguished it from its essential means (ideas, labor). In the present point, this distinction appears again in understanding material property rights as a claim on a specific amount of existing wealth, where intellectual property rights are a claim on limitless potential future wealth in the application of an idea.16

Regarding the former, Rand observed that material property “can be left to heirs, but it cannot remain in their effortless possession in perpetuity: the heirs can consume it or must earn its continued possession by their own productive work.”17 Value evaporates if a farmer neglects his land, an apartment owner neglects his building, or the owner of a business neglects its operation. Even a trust-fund baby must manage his investments lest they wither or be lost due to mismanagement — consider the recurring story of lottery winners who quickly find themselves back where they were before winning. People may enjoy a lucky “leg up” in accumulating wealth, but they must be productive to maintain and grow that value, or suffer its disappearance. That is, they must earn its continued possession by their own productive work. Even under such favorable circumstances, the specific basis in ethics of the right to property — the cardinal virtue of productiveness — continues to stand as a broad requirement.

In contrast, intellectual property cannot be so consumed and requires no productive effort on the part of its holder to maintain its value. No work would be demanded of an heir to intellectual property: he may continue to apply the idea to produce wealth, but he could just as well sit back and soak up royalties from others who use the idea to produce wealth. The owner of intellectual property need not earn its continued possession. Seeing the implications of this, Rand commented that if intellectual property were held in perpetuity, “it would lead to the opposite of the very principle on which it is based: it would lead, not to the earned reward of achievement, but to the unearned support of parasitism.”18 That is, a distant heir would effortlessly enjoy a share of the wealth being produced by others who alone are keeping the idea alive, embodying it in new life-serving goods. In the role of mere heir to intellectual property, one could not earn any part of that wealth. This follows from Rand’s point that

Intellectual achievement, in fact, cannot be transferred, just as intelligence, ability, or any other personal virtue cannot be transferred. All that can be transferred is the material results of an achievement, in the form of actually produced wealth. By the very nature of the right on which intellectual property is based — a man’s right to the product of his mind — that right ends with him. He cannot dispose of that which he cannot know or judge: the yet-unproduced, indirect, potential results of his achievement four generations — or four centuries — later.19

Thus by looking further into the meaning and purpose of property, we see how unlimited protection of intellectual property rights would not be analogous to unlimited material rights protection and would in fact be the very opposite in important ways.

Regarding the delicate challenge of determining specific limits for the protection of various classes of intellectual property, the scope of “fair use,” and so on: as with the above issues surrounding intellectual property, legal philosophers must look to politics, ethics, and the nature of man for the appropriate guiding principles to develop just implementations — not interfering with the freedom of creators to profit by their creations while at the same time not enabling parasites to burden the productive.

* *

Lest we be driven by the difficulty of that challenge into entirely abandoning intellectual property protection, we should note that just as unlimited intellectual property protection would encourage destructive parasitism in future heirs, the absence of intellectual property protection would encourage destructive parasitism in present manufacturers.

Abandoning intellectual property protection is saying that the author who invests thirteen years in writing a bestseller has no more right to profit from its sale than anybody else. It is saying the studio that risks $100 million on producing a blockbuster movie has no right to set the terms of its use to enjoy blockbuster profits, even though it retains the sole right to suffer the losses of a flop. The same is true for the labs that invest billions in developing mechanical, electronic, and virtual tools and toys that improve peoples’ lives. It is saying that biotech companies who risk vast fortunes and decades of sweat in striving to create life-saving drugs and population-sustaining crops should simply give away the benefits of their risk, toil, and dedicated genius.

It is true that the sudden abandonment of intellectual property rights would be a boon for manufacturers and customers, instigating a burst of wealth-creation as they deployed formerly protected ideas more freely. But this would be short-lived and stagnation would soon follow as those who might have risked, invested, toiled, and dedicated their genius to the next opportunity simply shrug. Creators would stand aside and not bother, or they would spend their minds on developing those (much more limited) things which aren’t easily copied and imitated. Having killed the proverbial goose that lays the golden eggs, countless life-serving creations would come more slowly or not at all. Why risk a billion dollars and half a lifetime attempting to develop a cure for cancer if others can profit by that achievement any way they see fit? Then decline would follow stagnation as shifting conditions in populations and resource availability bring new challenges that will go unmet.20

But again, disastrous practical results alone are not a full justification; they are only a (very strong) hint that there is a deeper explanation we must appreciate, an important fact we need to respect. In this case, the numbingly unjust and destructive results are ultimately caused by the denial of the crucial role of ideas in wealth-creation. Rand summarized it this way:

Every type of productive work involves a combination of mental and physical effort: of thought and of physical action to translate that thought into a material form. The proportion of these two elements varies in different types of work. At the lowest end of the scale, the mental effort required to perform unskilled manual labor is minimal. At the other end, what the patent and copyright laws acknowledge is the paramount role of mental effort in the production of material values; these laws protect the mind’s contribution in its purest form: the origination of an idea.21

* *
Looking below the surface to understand the role of reason in man’s life and its connection to property rights is essential to grasping the importance of intellectual property — and to achieving its proper implementation. But this is precisely what has gone missing in the accounts of libertarians against intellectual property. In a telling aside, Kinsella writes:

Even Rand once elevated patents over mere property rights in tangible goods, in her bizarre notion that “patents are the heart and core of property rights.”22 Can we really believe that there were no property rights respected before the 1800s, when patent rights became systematized?23

Consider: people employed reason before Aristotle systematized logic; they used geometry before Euclid organized the field; they lobbed rocks with catapults before Newton formulated the scientific principles by which missiles fly. There are countless cases where an implicit or partial understanding of a deep truth developed before some thinker explained and systematized it. Rand often commented that it was the advent of the Industrial Revolution that made it possible to fully appreciate the central role of reason in man’s life: it was there all along, but hard to see in such stark relief until that point in history. The crucial role of reason in production was not fully recognized until then, and so the essential role of the mind — of ideas — in wealth-creation was not yet fully grasped, either.

As the Industrial Revolution unfolded and it became easier to publish information and mass-produce objects for wide distribution, people began to grasp more fully the fundamental role of ideas in wealth-creation. They began attempting to protect the interests of the creators of ideas — in fits and starts, justified by troubled appeals to utilitarianism in the US24 and mystical appeals to extension of personality in Europe.25 But problematic justifications and inconsistent implementations do not invalidate the reality of intellectual property.

Now as we enjoy the rise of the information age, the critical role of reason in the life of man is more prominent than ever, and facing the implications squarely is paramount. So it can be no accident that in addressing a reader’s query about intellectual property, Rand opened her essay with an integrative statement reflecting this fundamental fact and inviting us to appreciate its fuller meaning. “Patents and copyrights are the legal implementation of the base of all property rights: a man’s right to the product of his mind.”26

Notes [*] After stumbling across yet another libertarian slamming the idea of intellectual property (one who was specifically taking Rand to task for her defense of IP in Capitalism: The Unknown Ideal), Axiomatic Magazine editor Don Watkins invited me to investigate the phenomenon. The following is the result of immersing myself in the strongest arguments I could find against the legitimacy of IP. [1] In this article I will rely on two noted contemporary scholars to speak for libertarians opposed to intellectual property: Tom G. Palmer and N. Stephan Kinsella. Each has produced an extensive survey covering the subject, drawing on the thoughts of a long line of historic libertarian thinkers. [2] Tom G. Palmer, “Are Patents and Copyrights Morally Justified?: The Philosophy of Property Rights and Ideal Objects,” Harvard Journal of Law and Public Policy, vol. 13, no. 3 (Summer 1990): 817-865, available online at http://tomgpalmer.com/wp-content/uploads/papers/palmer-morallyjustified-harvard-v13n3.pdf, 855. [3]Stephan Kinsella, “Against Intellectual Property,” Journal of Libertarian Studies, vol. 15, no.2 (Spring 2001):1-53, available online at http://www.mises.org/journals/jls/15_2/15_2_1.pdf, 19-20. [4] Kinsella, 22. [5] Thomas Jefferson to Isaac McPherson, Monticello, August 13, 1813, letter, in The Writings of Thomas Jefferson, vol. 13, ed. A.A. Lipscomb and A.E. Bergh (Washington, D.C.: Thomas Jefferson Memorial Association, 1904), pp. 326-38. [6] Kinsella, 23, from Arnold Plant, “The Economic Theory Concerning Patents for Inventions,” Selected Economic Essays and Addresses (London: Routledge & Kegan Paul, 1974), 36. [7] Palmer, 864. [8] Ayn Rand, “Man’s Rights,” Capitalism: The Unknown Ideal (New York: Signet, 1986), 321. Essay available online at http://www.aynrand.org/site/PageServer?pagename=arc_ayn_rand_man_rights. [9] Rand, “Man’s Rights,” 320-321. [10] Much in these two paragraphs is paraphrased from Leonard Peikoff, Objectivism: The Philosophy of Ayn Rand (New York: Plume, 1993), 354. [11] Rand, “Man’s Rights,” 322. [12] Kinsella, 15. [13] George Reisman, “Wealth and Goods,” Capitalism: A Treatise on Economics (Jameson Books, 1996), viewable online at http://capitalism.net/Capitalism/CAPITALISM%20Internet.pdf, 39-41. [14] Palmer, 827. [15] Kinsella, 25. [16] Rand, “Patents and Copyrights,” 132. [17] Rand, “Patents and Copyrights,” 131. [18] Rand, “Patents and Copyrights,” 131. [19] Rand, “Patents and Copyrights,” 132. [20] Reisman, “Diminishing Returns and the Need for Economic Progress,” 70-71. [21] Rand, “Copyrights and Patents,” 130. [22] Rand, “Patents and Copyrights,” 133. [23] Kinsella, 18. [24] The Constitution of the United States of America, available online at http://www.findlaw.com/casecode/constitution/, Article I Section 8. [25] Palmer, 835, 843, 862. [26] Rand, “Patents and Copyrights,” 130.

[updates: corrected broken links, removed distracting 'reader exercise' and moved intro/publication-credits to footnote.]

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