Intellectual property rights

Tom Burroughes's picture
Submitted by Tom Burroughes on Fri, 2012-04-20 08:40

As I expected, the issue of intellectual property rights gets objectivists, and others in the the broad free market/classical liberal school really fired up. In my piece about natural rights, I briefly mentioned it, and it had the predictable effect. http://www.solopassion.com/nod...

I think this is a massively important issue to get right, precisely because it involves people who on 90 per cent of other issues are in the trenches, fighting the same side. And as an Objectivist pal of mine said to me once, ultimately, all property is intellectual in one sense.

For instance, here is what I was going to say in response to Shayne and others, but here it is here:

"Shayne, your locus of interference point is one point of the issue that really matters, because for some classical liberals, the only real defence of property rights they give is the "non-initiation-of-force" principle, which relates to the "physical property is scarce, so we have to resolve boundary disputes", version."

But remember that for Rand, and those in that broad tradition including Locke, Rothbard, Spooner , and so on, it was the need to have secure protection for the things/inventions/creations that one has produced by mental/physical effort that is the key for justifying IP. (The objectivist writer Greg Perkins gives such a defence. http://www.philosophyinaction....)

And the reason for such protection is that property is central to the means by which man can survive and flourish. It is not just about resolving boundary disputes, but about LIFE.

However, I do think the independent inventor issue is a very difficult one for the defence of patents, which is why I would like to see Michael's comments on it. After all, taking up the point made by Greg Perkins, if I have the right to produce and create to sustain my life, the fact that the things I devise might have been invented also by someone else, hundreds of miles away, say, is irrelevant. I am not taking from him because - and this is the kicker - ideas are not diminished when they are held in the heads of more than one person. Quite the opposite.

Now IP defenders will say, "Well, the guy should have checked the patent records first, just as if a property developer in the condo business should have checked the title deeds". But is that really going to work? For example, a key definition of a patentable invention is that it should be "non-obvious", but I read about how a lot of actually pretty obvious stuff can get patented, or at least people attempt to do so. And in the software business, it appears that a lot of very similar things are patented, and in vast numbers, all the time. Keeping track of this is a serious headache and one key requirement for a good, coherent legal system is that it should be easy to understand, not a bewildering mass.

Now I think I'd like to see this issue resolved, or debated out, because it is a real bugbear for me and I don't see an easy way out yet.


prima facie

kinsella's picture

tom:

Stephan, I don't accept that there is a prima facie case to say that IP interferes with property rights, since, as you can see on this board, some people regard IP as a legitimate property right, as say, physical property.

but that is question begging.

locke and labor

kinsella's picture

Tom:

Which is why, for example, some people feel there is a need to look for other ways to ground property rights, including notions such as Lockean "labour mixing", etc, etc. (And such ideas can lead to support for IP).

the focus on labor is misplaced too. See http://c4sif.org/2012/03/2012/...

this is why neo-objectivists like Adam Mossoff are so desperate to rehabilitate this confused aspect of Lockean thought , -- they realize the Objectivst case for IP depends on it. But it cannot be done. Hume was right. YOu cannot own labor. see mossoff
Saving Locke from Marx: The Labor Theory of Value in Intellectual Property Theory

http://papers.ssrn.com/sol3/pa...

Mossoff is TTH (trying too hard)

Stephan, I don't accept that

Tom Burroughes's picture

Stephan, I don't accept that there is a prima facie case to say that IP interferes with property rights, since, as you can see on this board, some people regard IP as a legitimate property right, as say, physical property.

copying etc.

kinsella's picture

Tom:

"YEs, it's "okay", assuming there are no contractual provisions to the contrary. why would it not be "okay" to use and modify and sell information that others have made public? Remember there is no private property right to a profit, or to the money in your prospective customers' pockets. To say that there is leads to protectionism and mercantilism (whcih patent arose from)."

Copying a book and selling it is not "modification". It is copying. If I "modify" a book it means I would change the plot a bit, or the names, or the action sequences, etc.

it's all on a spectrum, and remember, copyright includes not only prohibitions against literal reproduction, but against "substantial" reproduction AND making of "derivative works." In any case: what is wrong with copying? we all copy, all the time.

As for the point of contractual provisions, as I said when I referred to new technologies, there would be no reason why the author of a book and his publisher could not use encryption and other devices to prevent people from ripping off the book without prior consent.

NO reason except market reality. you might alienate customers. they would rather DRM free stuff, and most people will not agree to draconian penalties for "misusing" some work they buy for $5.

If I bought a book on the basis of agreeing not to copy it and sell copies on, I would have no grounds for subsequent complaint.

but this is contract, not IP.

"Something's being a "disaster" is not a libertarian argument"

That's wrong. I think we need to consider the broad consequences of something when acting, and that includes abolition of IP.

I tentatively agree, but you can't just say "it's a disaster." that is vague.

As a libertarian, I think it is important to look not just at principles (justice, liberty, etc) but the results of pushing for them when that might mean huge disruption. (I am not a revolutionary who wants to "bomb the village in order to save it").

Agree with all this. but look, in 1850 would you say that about chattel slavery in the antebellum US? Or would you be an abolitionist? I view IP as very similar.

After all, it is much easier to persuade people of your views if you can convincingly show that a world without government-enforced IP is not just free and just, but prosperous.

that's one reason for www.c4sif.org and for empirical/consequentialist arguments. but it's pedagogical/strategic, mostly.

A lot of people attack IP on consequentialist grounds (saying it actually hampers innovation, makes drugs more expensive, or whatever). People cannot have it both ways. If people use utilitarian arguments to attack IP, and then I show how, in some cases, abolition can be a disaster, you cannot turn around and say, "oh, consequences don't matter, it is the principle that counts". That's not consistent.

this is the problem with a utilitarian approach, which I also criticize. you would think Objectivists would have sympathy for a principled, pro-rights, pro-property approach, as I have.

I actually agree with Shayne!

Tom Burroughes's picture

Shayne writes:

"The concept of "scarcity" is an untenable foundation for property rights. There is no clear path from this concept to the root actual root concept: wrongful interference with the life of another. It's not only untenable it's outright silly: imagine that we have an apple tree that has so many apples on it that the few people in the area can't possibly eat them all. They aren't "scarce" in any sensible definition of the word. Yet, it's still a violation of rights to grab your apple out of your hands."

Well said!

Which is why, for example, some people feel there is a need to look for other ways to ground property rights, including notions such as Lockean "labour mixing", etc, etc. (And such ideas can lead to support for IP).

BTW Shayne, let me get this straight: you are against patents, but in favour of copyright, yes? What for you is the key difference? If you consider what Stephan Kinsella is saying, once any kind of idea/creation is out there in the public domain and is in our heads, so to speak, then no property rights can exist, since to enforce IP is like a form of mind control. But then the issue comes up of what we mean by "public domain".

Consider the following: You write a book (say about the ideas of natural rights). You get a firm to publish 2,000 copies. They sell over a period of 12 months. Now some of those buyers talk about your ideas to their pals, and gradually, more and more people hear about your, hear you talk at bookstores, maybe see you talk about your works on podcasts, or whatever. Even so, the vast majority of the human population don't know about your book. So in that sense, it is not in the "public domain". And if you try and produce a second edition, but find out that another publisher has copied your book and is now selling it, or that someone you don't like is giving away free copies to deliberately undermine you, is that fair? I would suspect not, since that person would be denying you the chance to enlighten a whole new set of readers.

That is why this issue of "public domain" is so key. It is simply not the case, as I think people like Stephan seem to suggest, that as soon as an idea is expressed by a person, that that idea immediately enters the "public domain" and can no longer form any basis for property, as in the form of a book or invention.

Sorry if I am rambling!

IP is killing Objectivism

kinsella's picture

I am not sure if IP as such is "killing objectivism", as you state. Rand's ideas and influence, judging by sales of her books in recent years, seems to be growing, not falling. Of course, that does not mean that there is not, still, furious debate about some of her ideas.

it's all ceteris paribus. Atlas would have been made into a movie long ago i not for IP. http://blog.mises.org/15032/at....

I mean you could argue that taxes are not a big deal since we are all in the west doing okay. but we are poorer than we would have been, absent statism. See e.g. http://www.stephankinsella.com... -- L. Neil Smith quesitons just how much richer we would be in a free society (his answer: at least eight times).

Look, IP is your equivalent of Ahab's white whale, and I have followed your arguments about it for some time and even find some of what you say to be persuasive and well reasoned, but I am not yet ready to make the leap as some of the arguments for IP still strike me as compelling.

at least you should recognize the burden is on those who want to justify IP. since it obviously prima facie interferes with property rights. Who has a clear, coherent, convincince case for IP, that is fleshed out, and compatible with libertarian property rights?

There is so much here that

Tom Burroughes's picture

There is so much here that needs to be dissected, and I don't have the time, so I will focus on a few points:

YEs, it's "okay", assuming there are no contractual provisions to the contrary. why would it not be "okay" to use and modify and sell information that others have made public? Remember there is no private property right to a profit, or to the money in your prospective customers' pockets. To say that there is leads to protectionism and mercantilism (whcih patent arose from).

Copying a book and selling it is not "modification". It is copying. If I "modify" a book it means I would change the plot a bit, or the names, or the action sequences, etc.

As for the point of contractual provisions, as I said when I referred to new technologies, there would be no reason why the author of a book and his publisher could not use encryption and other devices to prevent people from ripping off the book without prior consent. If I bought a book on the basis of agreeing not to copy it and sell copies on, I would have no grounds for subsequent complaint. (Of course, in practice, getting people to honour or enforce such things is another issue, but that applies to all sorts of laws, not just about IP).

"Something's being a "disaster" is not a libertarian argument"

That's wrong. I think we need to consider the broad consequences of something when acting, and that includes abolition of IP. As a libertarian, I think it is important to look not just at principles (justice, liberty, etc) but the results of pushing for them when that might mean huge disruption. (I am not a revolutionary who wants to "bomb the village in order to save it"). After all, it is much easier to persuade people of your views if you can convincingly show that a world without government-enforced IP is not just free and just, but prosperous.

A lot of people attack IP on consequentialist grounds (saying it actually hampers innovation, makes drugs more expensive, or whatever). People cannot have it both ways. If people use utilitarian arguments to attack IP, and then I show how, in some cases, abolition can be a disaster, you cannot turn around and say, "oh, consequences don't matter, it is the principle that counts". That's not consistent.

I am not sure if IP as such

Tom Burroughes's picture

I am not sure if IP as such is "killing objectivism", as you state. Rand's ideas and influence, judging by sales of her books in recent years, seems to be growing, not falling. Of course, that does not mean that there is not, still, furious debate about some of her ideas.

Look, IP is your equivalent of Ahab's white whale, and I have followed your arguments about it for some time and even find some of what you say to be persuasive and well reasoned, but I am not yet ready to make the leap as some of the arguments for IP still strike me as compelling.

Liebowitz, drugs

kinsella's picture

Tom:

Re Liebowicz: he writes

Intellectual property is normally defined as the set of products protected under laws associated with copyright, patent, trademark, industrial design, and trade secrets. The U.S. Constitution expressly allows for intellectual property protection, albeit for a limited time, in the form of protection of “writings and discoveries” in order to promote “science and useful arts.”

it's not the products proteced by patent law etc. It's the laws and legal rights themselves. Likewise, property refers to a reflation between an owner and a scarce resource; the owner has a property right in the resource. Though colloquial language often calls the object of property rights "property," which can be confusing. Further, if he defines IP as he does, then the constitution does not allow for it--only for patent and copyright, a subset of IP. Not for trademark or trade secret. Or database rights. Or moral rights. Or semiconductor maskwork protection. Or boat hull designs. Or reputation rights.

"Look, if I start a new business, say a drug store, I might not like it if CVS or Walmart sets up a competing store across the street. So what? I don't have to like it. If I have a girlfriend I don't want you to "steal" her. But I have no property right in her. If I tell the world a story then I am revealing information, making it public. I am enabling people to copy, remix, build on it, etc. Just as if I start a new business, and it's profitable, I am broadcasting to the world "hey, this type of business works! you can make profit! Come compete with me!"

So you are saying that it's okay to directly copy, say, a book that was produced by someone else and sell it as soon as the original author has put it out, even while the first editions are still hitting the stores, therby seriously denting whatever chance the author has to make some money, or even break even.

YEs, it's "okay", assuming there are no contractual provisions to the contrary. why would it not be "okay" to use and modify and sell information that others have made public? Remember there is no private property right to a profit, or to the money in your prospective customers' pockets. To say that there is leads to protectionism and mercantilism (whcih patent arose from).

I suppose one way to defeat this sort of thing would be for authors, particularly in this digital age, to use encryption and other techniques to make it harder for people to copy their stuff immediately without some form of payment. In our age of Kindles and so on, this is going to happen.

I think they can try it but it's increasingly difficult as a purchaser wants DRM free information. See http://c4sif.org/2012/04/copyr...

Of course, if you start a new business and it is a roaring success, others will copy and nothing wrong with that. Say you start a furniture store selling unusual designs and it does well. Another might copy that. But that is hardly the same as, say, copying a 700-page book, word for word, copying exactly the same plot, characters, etc,

IT's not "the same" but it's not different in any relevant respect.

and then selling it without any intent to pay something to the original author, at least not initially. This seems to be at odds with the "independent" creation argument that is often brought up, since the likelihood that I could independently come up with exactly the same book is remote.

no creation is fully independent; everyone borrows from and adds to ideas they absorb from the commons. but this too is irrelevant: evne if you come up with some 100%unique idea 100% on your own, if you MAKE IT PUBLIC then others NOW KNOW IT.

Okay, other points:

"You are question begging, by assuming the power or right to "waive", which rests on the assumpiont that you have the right NOT to. Which presupposes that there are IP rights. Arguments for IP routinely do this: they engage in question-begging."

No question-begging here. It is pretty clear, as I said, that regardless of whether IP exists or not, smart people realise the benefits of creating goodwill, and waivers and free samples are a part of that and remain so. That's all I meant. I know that you oppose all forms of IP.

But there is no need for a waiver unless there are IP rights. Such waivers would be totally meaningless in an IP free world.

Why does Tylenol sell for twice the price of generic acetimenophin? Bayer Aspirin? etc.

Because the patent hasn't run out on these drugs,

wrong. there could not be generics if the patents had not run out. aspirin is decades old. acetimenophon too.

and presumably, the makers of said want to recoup their costs ahead of the expected expiry of said. As someone who used to report on the stock market, it is a clear pattern to watch pharma firms keeping prices of their IP-protected drugs higher than generic ones but then having to cut those prices once the patents expired. And given the need - which Boldrin and Levine accept - to recoup development costs, this shows patents working as they should.

there is no "need" in the libertarian sense. and patents do not work as they should. the entire federal regulatory framework hobbles companies: FDA, taxes, regulations, IP. It all acts as a huge distortion on the economy and business and innovation, and a huge drag.

Being the radical capitalist you are, Stephan, I am sure you agree that the best thing that could happen to the drugs business would be an end to the absurdly long trials system now in force, not to mention the uber-caution of the EPA.

I think you mean FDA. Yes. I would abolish it. But I think the IP system is even worse. If I could abolish patents or the FDA, I would abolish patents first. Then the FDA. but both are horrible.

Again, B&L write about this issue in their book. Scrapping patents on drugs without also hacking away the regulatory monolith would be a disaster.

Something's being a "disaster" is not a libertarian argument. People say getting rid of social security would be a "disaster" too. this is irrelevant. I agree we should abolish FDA but we should not keep patents so long as there is an FDA. both are independent evils and getting rid of either would be GOOD.

Stephan has a point

Shayne Wissler's picture

They have worse than clout. They are actually rewriting history. See my Amazon review here:

http://www.amazon.com/review/R...

IP is killing Objectivism

kinsella's picture

as I explain in http://www.stephankinsella.com... As I noted in Objectivism: Leonard Peikoff vs. the World, the Objectivist world is being shaken by the latest schisms and excommunications, regarding ARI founder and Rand heir Leonard Peikoff's denunciation of former ARI board member John McCaskey. Diana Hsieh and her husband have weighed in with overwrought "final thoughts" in Closing Thoughts on ARI, Peikoff, and McCaskey (they closed comments and refuse to state their final decision about ARI and Peikoff's treatment of McCaskey), as have others. Most interesting was Robert Tracinski's Anthemgate, and Michael Stuart Kelley's comments on that piece, Thoughts On Tracinski's Anthemgate Article. This latest scandal concerns Peikoff's apparently unfair insistence on his right to determine what Objectivism is and his use of his influence to eject McCaskey. This is threatening to make ARI and Objectivism even more marginalized and to splinter and harm that movement. As Tracinski notes:

Early this month, John McCaskey resigned from the board of directors of the Ayn Rand Institute and from the Anthem Foundation for Objectivist Scholarship, which McCaskey founded to promote the training and hiring of Objectivists in academia. McCaskey resigned after his removal was demanded by Leonard Peikoff, Ayn Rand's student and heir, who does not sit on the board but, through his control of Ayn Rand's name and intellectual property rights, holds enormous clout over the Institute's actions.

In other words, the existence of IP rights is helping to kill Objectivism. A bit ironic given Rand's and Objectivists' endorsement of IP rights and IP law. One Objectivist even noticed this--a commentator on Objectivist Living notes:

Those who so readily dismiss libertarians who are questioning the soundness of the monopolies-by-law called "intellectual property" should think a few times about what deadening effects will continue to result from Rand's copyrights remaining in the Peikoff family. For most of the rest of this century, by the way. Yes, decrying the abuses Peikoff makes with them is a consequentialist argument. Nonetheless, he wouldn't have that position to abuse Rand's legacy if copyrights were even reined back to less outrageous proportions, let alone questioned in full.

"Scarcity" is an untenable foundation for property rights

Shayne Wissler's picture

The concept of "scarcity" is an untenable foundation for property rights. There is no clear path from this concept to the root actual root concept: wrongful interference with the life of another. It's not only untenable it's outright silly: imagine that we have an apple tree that has so many apples on it that the few people in the area can't possibly eat them all. They aren't "scarce" in any sensible definition of the word. Yet, it's still a violation of rights to grab your apple out of your hands.

Of course, many people who use "scarcity" arguments generally don't apply the concept in this sensible manner. Rather, they would probably say "if it exists, it's scarce, because there's not an infinite supply." I.e., "non-scarce goods" refers to exactly nothing that actually exists, and "scarce" has become another word for "existent." This pointless duplication of terminology is a symptom of philosophical flailing. Or, they would say "if you have the apple, it is your apple, not an apple, and qua being yours it is scarce." This is question-begging, for it has sneaked in the concept of property (the idea of something being "yours") in trying to explain the concept of property.

The right foundation for property rights is use. If you are using a given object or medium, and someone else starts using it in a way that interferes with your use (in a long-range sense), then that is a violation of your property rights, precisely because it interferes with you qua living organism. To root property rights in use is to root them in science and biology.

This sort of concept gives no aid whatever to IP arguments of course. The term itself -- "intellectual property" -- smacks of sneaky dishonesty. Any barbarian has an intuitive idea of actual property -- "I was using it [i.e., something that exists] first" is a natural sentiment regardless of whether it was verbalized or not. But what kind of creature thinks "I thought of having it first", and then uses that as a foundation for taking real property? Only criminals. In any case, "I thought of it first" is a wholly different kind of object than real material property, it shouldn't be called or compared to real property, but rather, if it be legitimate, then it needs its own argument rooted in man's biological reality. The word "copyright" is not offensive in this manner, for it refers to "a right associated with copying." It doesn't try to make a bogus and dishonest metaphor.

More on empirical arguments for those who care

kinsella's picture

From a forthcoming law review article (links to most of the footnoted material are at www.c4sif.org/resources) (for further links and similar quotes, see http://c4sif.org/2011/05/the-e...)

as far as I’ve been able to tell, every study that attempts to tally the costs and benefits of copyright or patent law concludes either that these schemes cost more than they are worth, or that they actually reduce innovation, or that the research is inconclusive. There are no studies unambiguously showing a net societal gain.[1] There are only repetitions of state propaganda.

The Founders only had a hunch that copyrights and patents might “promote the Progress of Science and useful Arts”[2]—that the cost of this system would be “worth it.” But they had no serious evidence. A hundred and fifty years later there was still none. In an exhaustive 1958 study prepared for the U.S. Senate Subcommittee On Patents, Trademarks & Copyrights, economist Fritz Machlup concluded:

"No economist, on the basis of present knowledge, could possibly state with certainty that the patent system, as it now operates, confers a net benefit or a net loss upon society. The best he can do is to state assumptions and make guesses about the extent to which reality corresponds to these assumptions. … If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one."[3]

And the empirical case for patents has not been shored up at all in the last fifty years. As George Priest wrote in 1986, “[I]n the current state of knowledge, economists know almost nothing about the effect on social welfare of the patent system or of other systems of intellectual property.”[4] Similar comments are echoed by other researchers. François Lévêque and Yann Ménière, for example, of the Ecole des mines de Paris (an engineering university), observed in 2004:

"The abolition or preservation of intellectual property protection is … not just a purely theoretical question. To decide on it from an economic viewpoint, we must be able to assess all the consequences of protection and determine whether the total favorable effects for society outweigh the total negative effects. Unfortunately, this exercise [an economic analysis of the cost and benefits of intellectual property] is no more within our reach today than it was in Machlup’s day [1950s]."[5]

More recently, Boston University Law School Professors (and economists) Michael Meurer and Jim Bessen conclude that on average, the patent system discourages innovation. As they write: “it seems unlikely that patents today are an effective policy instrument to encourage innovation overall” (p. 216). To the contrary, it seems clear that nowadays “patents place a drag on innovation” (p. 146). In short, “the patent system fails on its own terms” (p. 145).[6]

The Founders’ hunch about IP was wrong. Copyright and patent are not necessary for creative or artistic works, invention, and innovation. They do not even encourage it. These monopoly privileges enrich some at the expense of others, distort the market and culture, and impoverish us all.[7] Given the available evidence, anyone who accepts utilitarianism should be opposed to patent and copyright.[8]

 
[1]See Stephan Kinsella, “Yet Another Study Finds Patents Do Not Encourage Innovation,” Mises Economics Blog (July 2, 2009).
[2]U.S. Const., Art. I, Sec. 8, Cl. 8. For more background on the origins of copyright in America, see references in note 53, supra.
[3]Fritz Machlup, An Economic Review of the Patent System 79-80 (1958), c4sif.org/resources.
[4]George Priest, “What Economists Can Tell Lawyers About Intellectual Property,” 8 Res. L. & Econ. 19 (1986).
[5]François Lévêque & Yann Ménière, The Economics of Patents and Copyrights 102 (2004), available at www.bepress.com/cgi/viewcontent.cgi?article=1001&context=leveque.
[6]James Bessen & Michael J. Meurer, Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk (2008, excerpts available at researchoninnovation.org/dopatentswork/).
[7]See, e.g., Stephan Kinsella, “Leveraging IP,” Mises Economics Blog (Aug. 1, 2010); and idem, “Milton Friedman on the Distorting Effect of Patents,” C4SIF Blog (July 3, 2011).
[8]Another problem with the wealth-maximization approach is that it has no logical stopping point. If adding (and increasing) IP protection is a cost worth paying to stimulate additional innovation and creation over what would occur on a free market—that is, if the amount of innovation and creation absent IP law is not enough, then how do we know that we have enough now, under a system of patent and copyright? Maybe the penalties or terms should be increased: impose capital punishment, triple the patent and copyright term. And what if there still is not enough? Why don’t we expropriate taxpayer funds and set up a government award or prize system, like a huge state-run Nobel prize with thousands of winners, to hand out to deserving innovators, so as to incentivize even more innovation? Incredibly, this has been suggested, too—even by Nobel Prize winners. See Stephan Kinsella, “$30 Billion Taxfunded Innovation Contracts: The ‘Progressive-Libertarian’ Solution,” Mises Economics Blog (Nov. 23, 2008), blog.mises.org/9005.

Well,

Tom Burroughes's picture

You haven't heard of Liebowitz before? Well, you have now. He seems to be quite widely published.

"Look, if I start a new business, say a drug store, I might not like it if CVS or Walmart sets up a competing store across the street. So what? I don't have to like it. If I have a girlfriend I don't want you to "steal" her. But I have no property right in her. If I tell the world a story then I am revealing information, making it public. I am enabling people to copy, remix, build on it, etc. Just as if I start a new business, and it's profitable, I am broadcasting to the world "hey, this type of business works! you can make profit! Come compete with me!"

So you are saying that it's okay to directly copy, say, a book that was produced by someone else and sell it as soon as the original author has put it out, even while the first editions are still hitting the stores, therby seriously denting whatever chance the author has to make some money, or even break even. I suppose one way to defeat this sort of thing would be for authors, particularly in this digital age, to use encryption and other techniques to make it harder for people to copy their stuff immediately without some form of payment. In our age of Kindles and so on, this is going to happen.

Of course, if you start a new business and it is a roaring success, others will copy and nothing wrong with that. Say you start a furniture store selling unusual designs and it does well. Another might copy that. But that is hardly the same as, say, copying a 700-page book, word for word, copying exactly the same plot, characters, etc, and then selling it without any intent to pay something to the original author, at least not initially. This seems to be at odds with the "independent" creation argument that is often brought up, since the likelihood that I could independently come up with exactly the same book is remote.

Okay, other points:

"You are question begging, by assuming the power or right to "waive", which rests on the assumpiont that you have the right NOT to. Which presupposes that there are IP rights. Arguments for IP routinely do this: they engage in question-begging."

No question-begging here. It is pretty clear, as I said, that regardless of whether IP exists or not, smart people realise the benefits of creating goodwill, and waivers and free samples are a part of that and remain so. That's all I meant. I know that you oppose all forms of IP.

Why does Tylenol sell for twice the price of generic acetimenophin? Bayer Aspirin? etc.

Because the patent hasn't run out on these drugs, and presumably, the makers of said want to recoup their costs ahead of the expected expiry of said. As someone who used to report on the stock market, it is a clear pattern to watch pharma firms keeping prices of their IP-protected drugs higher than generic ones but then having to cut those prices once the patents expired. And given the need - which Boldrin and Levine accept - to recoup development costs, this shows patents working as they should.

Being the radical capitalist you are, Stephan, I am sure you agree that the best thing that could happen to the drugs business would be an end to the absurdly long trials system now in force, not to mention the uber-caution of the EPA. Again, B&L write about this issue in their book. Scrapping patents on drugs without also hacking away the regulatory monolith would be a disaster.

Liebowitz

kinsella's picture

tom:

Stephan writes:

"What is wrong with "copycatters"? This is just called learning, emulation, competition. Honeslty, what is wrong with it? This is the free market. In culture: a certain painting style or movie genre becomes popular; others see profit signals and they enter the market to provide more supply, to cater to customer demand. The original guy now sees his market grow, but he also has more compeittion. So what? In the realm of technology, I make and sell a touch-screen phone or tablet--iphone or ipad--if it's popular then it will be a hit and I have a huge profit margin, but this profit signal attracts competitors who make similar things to tap into this demand, and thus they erode my profit margin, so I have to keep innovating to stay ahead. Etc. This is natural and good."

There is nothing wrong with emulation. And some industries (like fashion) are about little else. But are we not getting some terms mixed up here? An author who has copyright in a book, say, might be delighted if others try and copy the genre of fiction he or she has created or works in. Certain themes and plot styles might be similar, but not identical. And that I think is the issue. A direct copy of Twain's Tom Sawyer, published without so much as any attempt to to pay the author a fee, is unacceptable

says who? Look, if I start a new business, say a drug store, I might not like it if CVS or Walmart sets up a competing store across the street. So what? I don't have to like it. If I have a girlfriend I don't want you to "steal" her. But I have no property right in her. If I tell the world a story then I am revealing information, making it public. I am enabling people to copy, remix, build on it, etc. Just as if I start a new business, and it's profitable, I am broadcasting to the world "hey, this type of business works! you can make profit! Come compete with me!"

"With or without IP, creators might deliberately waive some IP,"

You are question begging, by assuming the power or right to "waive", which rests on the assumpiont that you have the right NOT to. Which presupposes that there are IP rights. Arguments for IP routinely do this: they engage in question-begging.

and grant free samples, and so on, to build a fan base and develop a market. Musicians do this almost as a matter of routine these days. With patents, though, I would argue that a drug manufacturer might struggle to see the upside of having a rival firm quickly copy its drug and sell it,

So? this is competition.

And why does Tylenol sell for twice the price of generic acetimenophin? Bayer Aspirin? etc.

Further: see ch. 9 of Boldrin and Levine's Against Intellectual Monopoly. They simply explode the myth that is informing your analysis here. www.againstmonopoly.org.

I haven't come across this guy, Stan Liebowitz, before, but his comment on IP here seems very fair, and covers most of the controversies and bugs very clearly, I think. It is one of the reasons why I am not convinced that patents are, to quote Shayne on this board, "amoral". http://www.econlib.org/library...

Never heard of him.

George etc.

kinsella's picture

Tom:

People say it costs money to enforce IP as if this is an argument against it.

As should be clear by now this is not my argument. My argument is that IP is incompatible with private property rights.

Let's be careful here, people, and not exaggerate this. It also costs money to enforce and enjoy physical property. Ask any realtor, property developer, or private individual who has bought a house or patch of land lately. When I bought my apartment in central London, I had to use solicitors to deal with the conveyancing; I had to check the deeds, to check any other relevant legal, planning and other issues that could affect the property. 'For instance, I had to check to see if my area was subject to any government eminent domain-type actions (or what we Brits call compulsory purchase). That costs money, and time. It is no different in principle to my having to check to see if my invention is already under patent, although the fine details may vary, obviously.

Well one estimate is that for companies in the US software industry alone to "check" this would cost $2.7 TRILLION PER YEAR. http://c4sif.org/2012/04/2012/...

And by the way, if anyone thinks that physical property rights, such as the position of landlords, is not controversial, then just check out what those Henry George folk have to say about taxing land (the great Murray Rothbard trashed these people). These guys are as fanatical about wanting to nationalise land as anti-IPers are sometimes fanatical about patents.

The Georgists are as nutty as the IPers, like Spooner. Benjamin Tucker was much better on IP than Spooner. Bu the point is that amongst libertarians and objectivists we all agree in private property rights in scarce resources, assigned by something like Lockean homesteading rules--first use first own. Right? So what the commies and cranks think is irrelevant. You and I presumably both agree in assigning ownership rgihts in scarce goods, by Lockean homesteading and contract. Right? So all I need to do is point out that if you then grant IP rights, you undercut the rights you say you favor in scarce goods. You can't have both, any more than you can have secure property rights AND "positive" welfare rights: the latter come at the expense of the former, and the same is true of IP.

the main objection to IP

kinsella's picture

Tom,

"But the goal of law is not to make sure that innovaters reap 'rewards," much less to "justify" some innovation".

Writes Stephan.

Of course, the role of a patent office/whatever is not to "justify" any innovation as such; (some innovations might be pointless, or have destructive effects, or not work as intended). However, surely, much - if not all - of the criticism of patents by anti-IP folk such as yourself is that patents cause damage to innovation, or hamper it.

No. this is more of a utilitarian point -- say by Boldrin and Levine. My main point is moral and principled and rooted in property rights. See The Case Against IP: A Concise Guide http://mises.org/daily/3682 . My opposition to patents and copyright is that they are incompatible with and indeed violate property rights. It is similar to Rand's argument against, say, antitrust law: her argument is not consequentialist, but principled; though she uses examples and consequences and economic analysis as a secondary analysis, as do I. I go into consequences of IP to help wake people up and to talk in their mostly utilitaarian language. most defenses of IP are utilitarian so one of my responses is: utilitarianism is morally and methodologically flawed; and even assuming utilitarian premises you have no case for IP, for the following reasons.

And surely we want innovators to make money, or at least have the chance to profit by their efforts and creativity. Just as securing physical property rights is essential for a market order, and wealth creation, so, on the IP argument, is it important to make it possible for people who develop new inventions or artistic creations to have a shot at making some money. That is not the same as saying that they have a "right" to earn money, of course. If a novelist's books suck, then no amount of copyright will make that person a single dollar of income.

Yes, we want innovators (and others) to prosper. And the libertarian idea is that what we need from law is protection from aggression: which means, as Rand said: protection from the initiation of physical force. Against what--? of course, against our bodies and any physical property we own. If the law protects this ,we have enough of a domain to prosper, create, produce, survive, flourish.

no theory of ip

kinsella's picture

Moeller:

First of all, Kinsella, I never proposed that as a justification of IP. You know, you are establishing a real penchant for just plain making up things as you go along.

Right, You have no theory as far as i can tell. You just make assumptions, engage in question-begging (implying it's property by labeling copying "theft").

And then you go ahead and semi-validate my point by saying it will reduce patent trolls (thanks, btw).

Making it harder to get or maintain a patent will reduce the number of patents and patent lawsuits. Both from PE's and NPEs (trolls). Maybe moreso NPEs than PEs; but this is a big "so what" since patent trolls are NOT THE PROBLEM with the patent system. the problem is not software or business method patents; it is not low-quality patents; it is not trolls. The problem is when practicting entities have perfectly valid, high-quality patents. They can then use them anti-competitively to stop competition. that is the problem. Reducing patent trolling does nothing to address this fundamental problem.

However, the aspect that you are missing is that this is going to disproportionately affect patent trolls, as they almost exclusively file, which is not true of companies that develop products via R&D. Yes, it will affect companies like Apple and Intel, but not to the extent of patent trolls who almost exclusively file. The thrust of this point is apparently going right over your head.

it may be disproportionate, but so what? And I think you are exaggerating it for two reasons. First, trolls often get their patents by buying them from non-trolls. Second, many PEs file patents for inventions they have not yet or will never implement. I don't know the numbers but I would bet at least 75% or more of patents filed by PEs are just paper filings only. Possibly more. In my own experience of writing and filing and prosecuting literally hundreds of patents for Intel, Lucent, GE, and other companies, I would estimate that at least 80% of these are paper-only filings. No surprise since many patent apps are ginned up as a result of brainstorming sessions and patent bonus incentive programs designed to incentives engineers to file ideas they happen to come up with even if they are not implementing them. SEe my post The “Productivity” of Patent Brainstorming http://www.stephankinsella.com...

I totally agree that one must justify it as property before one can claim "theft". I wanted you to state your theory of property, and you followed true to form with the scarcity theory of property. I will debunk this next, and pit against Rand's justification of property, which you totally mangled.

But we all agree with the scarcity theory. We all agree that scarce resources should be owned and presumably that the owner should be the one who first homesteads it. Randians, libertarains all agree on this. But then the Randians say well the "reason" you own these things is it's just a specific application of the more general point that you own whatever you "create" because man "needs" to be able to do this since he is 'productive" qua man blah blah blah.
The problem is Rand is WRONG. You do NOT own what you create. Creation just means rearranging already-owned scarce resources into a more valuable shape--as RAND HERSELF RECOGNIZED:

see “Hume on Intellectual Property and the Problematic “Labor” Metaphor” http://c4sif.org/2012/03/2012/... and “Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging’,” http://blog.mises.org/14045/lo...
She wrote:

The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power—and it is the only meaning of the concept “creative.” “Creation” does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation” means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before.

Mises and Rothbard say the same.

The only way to acquire property is to find it, or get it from a previous owner by contract. Period. Creation only makes existing property more valuable.

As to patent fees, first let me set you straight on a claim I saw you make in one of your articles, and you have made here. The USPTO is not funded by "taxpayers". The USPTO is entirely funded by the fees it charges, and is the only government agency that exists on that basis.

What about the US postal sevice?

In any case--I don't recall saying it's funded by taxpayers--where did I say this? nor is this my objection to it. I would object to it even more if it were free. I want the fees to be as high as possible as I argue here: http://c4sif.org/2011/02/how-t...

However, of course the PTO does impose costs on taxpayers--it imposes costs on all society for the benefit of a narrow band of special interests (patentees). Just like inflation does too, even though it is not technically a tax. We are all paying for it.

This is not a "tax", but a fee charged for filing. Not a dime is taken from taxpayers to fund it. The money comes exclusively from those who file and prosecute, which is entirely voluntary action on the part of those seeking patent protection.

And the monopoly patents it grants, and that the federal courts (paid for by taxes) enforce, result in higher prices paid for by consumers, oligopolized industries that have lower competition and barriers to entry to upstarts and newcomers, etc. Taxes in another form.

Now, why require reduction to practice instead of increasing fees? Fees simply have to do with the cost to run the USPTO, which is not the issue I was dealing with. I was talking about dealing with patent trolls based on the requirements for invention.

Apparently you think patent trolls are a problem. I think both NPEs and PEs are the problem: patents are the problem. And given the logic of having a patent system I fail to see what is wrong with NPEs. Suppose I am good at inventing. I can dash off a new invention every 2 days and have a patent attorney file it for me. I disclose it to teh world in an enabling disclosure. Why should I have to make a working embodiment or earn my living selling these things? Others may be better at doing this and can take a license from me; everyone is better off--according to the patent mentality of the world. If you are in favor of patents I cannot see a coherent objection to trolls.

By contrast, patents are not for protecting ideas apart from a useful invention, apart from the application of principle embodied in a useful product. Ergo, to show possession of the invention includes the embodiment in material form.

This "ergo" is misplaced as this does not follow at all from your assertions and ambiguous distinctions. It's like this is all metaphysics or religion to you.

learning

kinsella's picture

"Your best mate makes his living writing books: are you going to download his book for no fee, following your convictions, and have no moral quarms about that at all?"

Yes, I would have no qualms about it at all. If he makes information publicly available then people can use it. Duh. Unless I agree to some kind of contract ahead of time, there is nothing wrong whatsoever in using information that is public.

"Copycatters"

Tom Burroughes's picture

Stephan writes:

"What is wrong with "copycatters"? This is just called learning, emulation, competition. Honeslty, what is wrong with it? This is the free market. In culture: a certain painting style or movie genre becomes popular; others see profit signals and they enter the market to provide more supply, to cater to customer demand. The original guy now sees his market grow, but he also has more compeittion. So what? In the realm of technology, I make and sell a touch-screen phone or tablet--iphone or ipad--if it's popular then it will be a hit and I have a huge profit margin, but this profit signal attracts competitors who make similar things to tap into this demand, and thus they erode my profit margin, so I have to keep innovating to stay ahead. Etc. This is natural and good."

There is nothing wrong with emulation. And some industries (like fashion) are about little else. But are we not getting some terms mixed up here? An author who has copyright in a book, say, might be delighted if others try and copy the genre of fiction he or she has created or works in. Certain themes and plot styles might be similar, but not identical. And that I think is the issue. A direct copy of Twain's Tom Sawyer, published without so much as any attempt to to pay the author a fee, is unacceptable; writing a book set in the 19th Century US using some similar plot themes is fine, in my view.

With or without IP, creators might deliberately waive some IP, and grant free samples, and so on, to build a fan base and develop a market. Musicians do this almost as a matter of routine these days. With patents, though, I would argue that a drug manufacturer might struggle to see the upside of having a rival firm quickly copy its drug and sell it, given the heavy sums of money required to develop such drugs in the first place. With other, less costly-to-produce innovations, this does not apply to the same extent. In those cases, the "first mover" advantage will do a lot of the work anyway.

I haven't come across this guy, Stan Liebowitz, before, but his comment on IP here seems very fair, and covers most of the controversies and bugs very clearly, I think. It is one of the reasons why I am not convinced that patents are, to quote Shayne on this board, "amoral". http://www.econlib.org/library...

The costs of enforcing physical property rights

Tom Burroughes's picture

People say it costs money to enforce IP as if this is an argument against it. Let's be careful here, people, and not exaggerate this. It also costs money to enforce and enjoy physical property. Ask any realtor, property developer, or private individual who has bought a house or patch of land lately. When I bought my apartment in central London, I had to use solicitors to deal with the conveyancing; I had to check the deeds, to check any other relevant legal, planning and other issues that could affect the property. 'For instance, I had to check to see if my area was subject to any government eminent domain-type actions (or what we Brits call compulsory purchase). That costs money, and time. It is no different in principle to my having to check to see if my invention is already under patent, although the fine details may vary, obviously.

And by the way, if anyone thinks that physical property rights, such as the position of landlords, is not controversial, then just check out what those Henry George folk have to say about taxing land (the great Murray Rothbard trashed these people). These guys are as fanatical about wanting to nationalise land as anti-IPers are sometimes fanatical about patents.

"But the goal of law is not

Tom Burroughes's picture

"But the goal of law is not to make sure that innovaters reap 'rewards," much less to "justify" some innovation".

Writes Stephan.

Of course, the role of a patent office/whatever is not to "justify" any innovation as such; (some innovations might be pointless, or have destructive effects, or not work as intended). However, surely, much - if not all - of the criticism of patents by anti-IP folk such as yourself is that patents cause damage to innovation, or hamper it. Case in point being the case of James Watt, the 18th Century steam engine pioneer, who is accused by some economic historians of using patents to stymie his rivals' efforts, for example.

And surely we want innovators to make money, or at least have the chance to profit by their efforts and creativity. Just as securing physical property rights is essential for a market order, and wealth creation, so, on the IP argument, is it important to make it possible for people who develop new inventions or artistic creations to have a shot at making some money. That is not the same as saying that they have a "right" to earn money, of course. If a novelist's books suck, then no amount of copyright will make that person a single dollar of income.

Tom

Patents vs. copyrights is where I disagree with Kinsella

Shayne Wissler's picture

In basic terms, leaving aside precise understanding, copyright seems like a fair idea. I write a book, you buy it on the condition that you agree not to copy it and sell it, so I can write the next book. You are out nothing by making such an agreement -- if not for me, there would be no book, and you can still write your own book, even along similar lines if you want. The average person with common sense is going to buy this idea as a vague generality. Note that I am not saying that copyrights are valid, that they are legitimate property (nor am I arguing the contrary). I'm just saying it makes a certain amount of sense to a decent person.

But patents are freakishly insane megalomania in basic terms. One guy builds a teepee, now NO ONE can build a teepee? One guy thinks of selling something with "one click" (Amazon one-click patent), and now NO ONE can think of and implement the same idea? This is patent insanity to anyone with common sense. The only reason more people don't object is that they don't really know what is going on, partly because lawyers muddy the waters to make them appear deep, partly because they've been propagandized since middle school. But it makes no sense to a decent person who has not been duped or deranged.

Given the radical difference between these two entities, I do not think we should group them under the same heading. Sane, reasonable people can agree with copyright. No sane, moral, or decent person who understands what a patent does can agree with them.

I think I get Mark

Shayne Wissler's picture

He has no comprehension of patents, but has been fooled into thinking they are fundamentally similar to copyrights, something he does understand. Ergo he is asking me what I think about copyright in order to try to follow along.

I already gave him an easy way to think about patents vs. copyrights, but he is evidently not able to believe it. But he's not certain I'm wrong either, which is why he says nothing to refute my comparison, but he probably recognizes the horror of patents if they do indeed compare to a literary theme.

Given all the decades he's been scammed into believing that patents are not insane megalomania, he's having some cognitive dissonance.

Speculation? Sure. Perhaps he can fill in the blanks.

You are confused Mark

Shayne Wissler's picture

I have no duty to answer your queries. It's not "evasion" when someone doesn't answer your pet questions. You claim you are an English major, but you seem to have a very poor grasp of the meaning of words.

What IS evasion is Waldo's continued refusal to post links to his alleged "proof."

It's real simple Shayne ...

Mark Hubbard's picture

.. Answer my question on copyright - you've spent the entire thread avoiding it - why?

When I pick up a novel, it is self-evident to me it attaches to a discrete provable mind, and that it is the property of that mind. Why do you go to contortions to deny that?

Same question to you as Kinsella. Your best mate makes his living writing books: are you going to download his book for no fee, following your convictions, and have no moral quarms about that at all?

Evasion

Shayne Wissler's picture

You're the one who's evading. I never made any remarks about copyright and your question is irrelevant to the subject of patents. Also your buddy Waldo is evading too, but you never call him on it.

Yeah, Shayne, but ...

Mark Hubbard's picture

... you've still evaded my moral head-shot. Answer my question - it's simple to those of us with the morality gene. Copying myself:

When I pick up a novel, it is self-evident to me it attaches to a discrete provable mind, and that it is the property of that mind. Why do you go to contortions to deny that?

Same question to you as Kinsella. Your best mate makes his living writing books: are you going to download his book for no fee, following your convictions, and have no moral quarms about that at all?

Theme

Shayne Wissler's picture

Mark, theme is to book as patent is to a particular implementation that embodies it and other ideas. When someone files a patent, it is akin to someone filing a patent on the idea of having a book where the men of the mind go on strike.

People who do not understand what a patent is should not be expressing opinions about them.

Not Getting It

Michael Moeller's picture

Kinsella wrote:

"All this is distraction from the central issue of whether IP is valid or not. It is not....However, is has NOTHING to do with patent trolls. It will make it harder for both IBM and trolls to get patents. IBM will file for less patents, and so will trolls. Some trolls will come up with funds to make working models--just a stupid expensive formality. Why don't you just multiply all filing fees by 10 or 100? What's the difference?"

First of all, Kinsella, I never proposed that as a justification of IP. You know, you are establishing a real penchant for just plain making up things as you go along.

When you took issue with my statement about requiring reduction to practice, it was not as a justification for IP. In that post, I proposed it to Tom as a way to deal with patent trolls. Where, oh where, did I present it as a justification for IP? I didn't.

And then you go ahead and semi-validate my point by saying it will reduce patent trolls (thanks, btw). However, the aspect that you are missing is that this is going to disproportionately affect patent trolls, as they almost exclusively file, which is not true of companies that develop products via R&D. Yes, it will affect companies like Apple and Intel, but not to the extent of patent trolls who almost exclusively file. The thrust of this point is apparently going right over your head.

I totally agree that one must justify it as property before one can claim "theft". I wanted you to state your theory of property, and you followed true to form with the scarcity theory of property. I will debunk this next, and pit against Rand's justification of property, which you totally mangled.

I think you and I will both agree that the real "meat" of the argument rests on the justification for property rights, so try not to get ahead of yourself until I have addressed the scarcity theory of property vs. Rand's theory.

As to patent fees, first let me set you straight on a claim I saw you make in one of your articles, and you have made here. The USPTO is not funded by "taxpayers". The USPTO is entirely funded by the fees it charges, and is the only government agency that exists on that basis. This is not a "tax", but a fee charged for filing. Not a dime is taken from taxpayers to fund it. The money comes exclusively from those who file and prosecute, which is entirely voluntary action on the part of those seeking patent protection.

So when you are blathering about "taxpayers" being forced to pay, you are again just making things up.

Now, why require reduction to practice instead of increasing fees? Fees simply have to do with the cost to run the USPTO, which is not the issue I was dealing with. I was talking about dealing with patent trolls based on the requirements for invention.

By contrast, patents are not for protecting ideas apart from a useful invention, apart from the application of principle embodied in a useful product. Ergo, to show possession of the invention includes the embodiment in material form.

Your purpose is to demolish patent rights, but do not assume I share the same goal. My goal is to protect IP rights qua property whereby one must evidence possession of the property. We're working off completely different templates here, Charlie.

Michael

Shayne

Mark Hubbard's picture

This is not my bread and butter, okay.

I know what a theme in a literary context is, my first degree was a BA in English lit, but a theme in this context? Wouldn't have a bloody clue.

When I pick up a novel, it is self-evident to me it attaches to a discrete provable mind, and that it is the property of that mind. Why do you go to contortions to deny that?

Same question to you as Kinsella. Your best mate makes his living writing books: are you going to download his book for no fee, following your convictions, and have no moral quarms about that at all?

Be careful here, because you cannot take the theft line with moral impunity. It will name the type of person you are. (We know what Kinsella is already: not a good chap to have protecting your back, that's an absolute).

Theme

Shayne Wissler's picture

But do you agree a novel, for instance, is such a discrete thing it could only be from the mind of a discrete author, and thus the property of that author? ...

Note that no where in your reply to me do you mention the key concept: theme. Do you have any idea what abstraction is?

Question begging

Shayne Wissler's picture

I cannot continue to disucss this with people who are so dishonest. You cannot establish something is property by saying that it's theft to infringe/take it. It's the other way aroudn: it's NOT theft UNLESS it is property. This has to be obvious. So you are obviously question-begging which is disingenuous.

Are they dishonest? Or just plain stupid?

Lovely "Evidence", Kinsella

Michael Moeller's picture

Check this out. So I ask Kinsella for evidence that patents reduce wealth, and he sends me to an article that first discusses this "study":

"To test the hypothesis that patent systems promote technological innovation, Bill Tomlinson of the University of California, and Andrew Torrance of the University of Kansas School of Law, developed an online simulation game of the patent system, PatentSim...PatentSim uses an abstract model of the innovation process, a database of potential innovations, and a network over which users may interact with one another to license, assign, buy, infringe and enforce patents."

Ha! This alleged study is not even an analysis of real data. Galt only knows what type of inputs and assumptions are built into this "abstract model". He cites a freaking "online simulation game" as evidence. Too funny.

In the bizarr-O anarchist world built on a rationalistic contruct, no need to deal with real evidence, you just build an "online simulation game" to prove your theory! Indeed, as with his analysis of copyright law and independent creation, Kinsella is certainly proving himself adept at making things up as he goes along.

I followed a couple of links to get to the source of the next alleged "study", and wouldn't you know it? It is another "model market" that is nothing more than a silly game proposed to students described as follows:

"This being a Science paper, the authors engaged in an experiment to see how well these open innovation systems worked in a model market. To do this, they turned to what's called the knapsack problem. Students were given a list of 10 items, each with different weights and values. Given limits to the number of items they could choose and the total weight of the items, the students were asked to maximize the total value."

This is a maxi-min issue that has absolutely nothing to do with "proving" how patents and adjustment in patent laws affect innovation. This "study" uses absolutely no real data concerning the various levels of patent protection in the same country over time, or across different countries, or ties to various levels of patent protection. His evidence is a freaking made-up kids game!

The article even goes on to say:

"Although it would be nice to think that open innovation could lead to efficient solutions, the authors seem to be overselling their (somewhat weak) evidence by claiming their experiment shows the "superiority" of the market system.
In any case, even they recognize that the controlled experimental environment may not provide an accurate reflection of a real environment."

THIS is allegedly the evidence he presented to pro-IP lawyers that they could not dispute? Well, I am not sure what lawyers Kinsella knows, but this would not pass the "laugh test" among IP lawyers I know. Certainly gave me quite the chuckle.

Awesome, Kinsella, just awesome. Look Kinsella, instead of wasting my time debunking this nonsense one-by-one, why don't you pick out what you regard as the two best sources that show "IP reduces wealth and innovation".

This will not only save me time, but will also give us the opportunity to assess what you regard as "evidence" and your analytical capabilities. Right now, this is just plain pathetic.

Then Kinsella illustrates he apparently cannot read, as he responds to my claim that studies show a postive correlation with the following statement:

"No, there are NOT. This is a lie."

Um, no it is not a "lie". I just got done linking to this WIPO study that establishes precisely that correlation. Notice this study uses actual real world data to show a correlation between more patent intensive industries and faster economic growth. I am making it easy on you here by giving you one study to start with.

Instead of trying to hand-wave this away by calling it a "lie", care to actually address the study?

I am noticing a distinct pattern here: when the facts do not fit Kinsella's theory, he is compelled to rely on fabricated claims about the law or fabricated evidence. If contrary evidence is provided, he ignores it.

This is not good, Kinsella.

Michael

Take away the penalties, this

Mark Hubbard's picture

Take away the penalties, this is anarchy land. You'd download your best mate's living, sorry, book, for no fee? Dumb bugger he was not being clever enough to think of way to compete without being able to own the products of his mind.

I guess anarchy land will have a very strong oral tradition, just like primitive societies? How else, after you've destroyed intellectual property, could scarcity be contrived than the writer, et al, voicing his wares?

Hubbard's desperate argument

kinsella's picture

.. I guess armed with your scarcity argument, and being a man of your convictions, you simply download books and movies without paying for them: yes?

Not when there are penalties for violating the positive laws your fascist state imposes on me.

Including books, say, by friends who perhaps are trying to live off the products of their minds?

I have no problem whatsoever with copying or using information that is public. There is only a prudential quesiton of avoiding sanctions by your little state. For the same reason I pay income tax. I would pay no tax, respect no border or immigration or drug law, and abide by no IP law, if not for the threat of violence being imposed on my by your gang of thugs.

So, Kinsella

Mark Hubbard's picture

.. I guess armed with your scarcity argument, and being a man of your convictions, you simply download books and movies without paying for them: yes? Including books, say, by friends who perhaps are trying to live off the products of their minds? Silly, uncompetitive dinosaurs that they are, not being able to think up better ways of marketing themselves to generation theft.

copying is not theft

kinsella's picture

Hubbard:

Right, I'm dishonest, but you've no compunction about 'stealing' my novel. That's not competing, Michael covered that well way earlier in this thread, that's just straight theft.

It's not "stealing" or "theft" if I copy what you do. To call it stealing is question-begging. When you copy what others do you are not taking anyhting from them. They are not deprived of any property that they own. There is simply no theft. It is either stupid or dishonest to keep calling copying theft, stealing, or "piracy".

identity and theft

kinsella's picture

But do you agree a novel, for instance, is such a discrete thing it could only be from the mind of a discrete author, and thus the property of that author?

no. the "thus" does not follow. just b/c a pattern of information may be objectively classified as a "discrete" thing and only 'from" the mind of a "discrete" author does not mean it is "thus" property. Property is not a thing. It is a socially recognized right between a person and a given scarce resource.

There is no way you can't differentiate between two novels - Atlas Shrugged versus To Kill a Mockingbird, etc. Discrete, attaching to a provable single (or co-authored) producer: property. And therefore copying that without payment the author asks for is theft.

Yes, you can "differentiate" between them. That does not mean it is "therefore" theft if someone copies it. This is all non-sequitur amateur hour. It's not even a semblance of a real or serious argument.

Shayne

Mark Hubbard's picture

'Ideas are ideas' ... yes.

But do you agree a novel, for instance, is such a discrete thing it could only be from the mind of a discrete author, and thus the property of that author?

There is no way you can't differentiate between two novels - Atlas Shrugged versus To Kill a Mockingbird, etc. Discrete, attaching to a provable single (or co-authored) producer: property. And therefore copying that without payment the author asks for is theft.

Kinsella

Mark Hubbard's picture

Yep, forgot how slippery you are Kinsella.

I cannot continue to disucss this with people who are so dishonest. You cannot establish something is property by saying that it's theft to infringe/take it. It's the other way aroudn: it's NOT theft UNLESS it is property. This has to be obvious. So you are obviously question-begging which is disingenuous.

I didn't say that, because my platform is I accept Rand's writing on this: the hypothesised book is the product of my mind, thus is property.

So with a straight face, I assume, you call me dishonest while saying:

but of course there is nothing whatsoever wrong with copying--or learning, or emulating, or competing. Grow up.

Right, I'm dishonest, but you've no compunction about 'stealing' my novel. That's not competing, Michael covered that well way earlier in this thread, that's just straight theft. Immorality rules anarchy land, you can't teach me anything.

Copyright

Shayne Wissler's picture

Mark: I would prefer to wait until dealing with Moeller's "proof" before saying anything about copyright. As he has repeatedly proven, anything and everything you say will be twisted and used against you.

It is ironic that Rand was a fiction writer who evidently "lifted" and modified the abstract theme of a preceding novel about trains and men named "Galt" for her "Atlas Shrugged." If the principle of patents were applied to literary works, then such theme-copying would not be permissible. It is curious why an engineer must be subjected to abstract constraints, essentially making it a thought-crime to come up with something abstractly similar to what someone else did, but a fiction writer isn't attacked with the same nonsense. Ideas are ideas. How convenient for Rand that she happened to promote the system that was in place and that it happened to let her get away with copying ideas from others.

copying

kinsella's picture

Hubbard: "Now you've brought up morality, and leaving patents aside, what is your stance on copyright? Is copying immoral? I don't believe you've answered to that yet?"

not sure who you are talking to--but of course there is nothing whatsoever wrong with copying--or learning, or emulating, or competing. Grow up.

Rand and confusion on IP

kinsella's picture

Moeller:

The point is not whether Intel or Apple simply file, but rather whether requiring reduction to practice will discourage patent trolls. Of course it will, as they will have to put investment into the R&D and production in material form.

All this is distraction from the central issue of whether IP is valid or not. It is not.

Given this, anything that reduces patent strength or scope is good. So making it harder to get a patent, is good--including imposing a working or reduction to practice requirement. I am all in favor of it.

However, is has NOTHING to do with patent trolls. It will make it harder for both IBM and trolls to get patents. IBM will file for less patents, and so will trolls. Some trolls will come up with funds to make working models--just a stupid expensive formality. Why don't you just multiply all filing fees by 10 or 100? What's the difference? Further, many companies will go bankrupt-more so than now, since they burn up more capital to come up with working models--and then the trolls can snatch up their patents as they do now (see http://www.avc.com/a_vc/2012/0... for a good example of this, as explained in VC Fred Wilson’s post The Twitter “Patent Hack”:

Many years ago now, my prior venture capital firm, Flatiron Partners, invested in a company called Thinking Media. It was an early Internet company. They developed some browser based javascript tracking technology. The company ulimately failed but was sold in a fire sale including the patents. Those patents eventually made their way to an incumbent, the big marketing research company Nielsen. Fast forward ten years or so and Nielsen sued two of my portfolio companies, comScore and TACODA, and a bunch of other companies too, on the basis of the Thinking Media patents. So IP that was partially funded by our firm was used to sue other portfolio companies. It is so galling to have this kind of thing happen and it is one of the many reasons why I have come to believe that software and business method patents are an enemy of innovation in the tech sector.

If Thinking Media had the patent hack in their documents, the story I just told would not have happened. And thanks to Twitter’s leadership, I hope that all future USV portfolio companies will have the patent hack in their documents and stories like that one will be a thing of the past.

).

Even if you get rid of all trolls, then you don't solve the problem since trolls are not the problem. Good patents by practicing entities are the problem: the patents allow them to use state force to stop otehrs from competing with them! how can you guys not see this? Are you not seeing the stupid smartphone patent wars??

There are plenty of studies showing a positive correlation with economic growth

No, there are NOT. This is a lie.

According to Rand's justification of property, using force over another human being would not constitute property, regardless if slaveowners considered them property. This in no way addresses Rand's concept of property, and is nothing more than a false analogy.

The point is calling something proprty does not justify it. And your assertion of an IP claim in a method or idea or pattern of information involves you seeking a veto right over how others use their own property. this is use of state force to coerce others.

Rand does not endorse the use of force as a valid means to acquiring property. This should be totally obvious and Kinsella should recognize this as a false analogy if he has studied Rand since 1982, as he claims.

You keep saying 'claims" as if you are challenging my veracity. How dare you? Who are you? Check my site out--I have material that is obviously RAnd influenced for decades.

question begging as usual

kinsella's picture

Hubbard: "The anti-IP justification is always an immoral position because it is based on a theft."

I cannot continue to disucss this with people who are so dishonest. You cannot establish something is property by saying that it's theft to infringe/take it. It's the other way aroudn: it's NOT theft UNLESS it is property. This has to be obvious. So you are obviously question-begging which is disingenuous.

how do you make the further justification in your own mind that copying my novel, for example, without paying me for it, when my intention on putting such a book to market is to be paid, is not both dishonest, certainly, and a fraud?

Copying something is not fraud just because it's not what you "intended". What you "intend" matters only if you own the information which is--again--question-begging.

I keep forgetting the chasm that separate the two of us: I, as a classical liberal acknowledging the need for limited government, and your true anarchist position; but I believe the only way you can reconcile that dishonesty and fraud, for yourself, is to subsume it to the higher good of no 'fascist' state apparatus at all?

The anti-IP view is not dependent on anarchy. Anarchists also oppose fraud. It is just that we realize that IP "infringement" has nothing to do with committing fraud. I have explained this systematically and ad nauseum, but people like you are not intersted in the truth.

Post script: by the way 'cultural-sharing' - so you are a utilitarian?

It is people like you and Rand that sound like utilitarians, jabbering about incentives that are needed to help an investor recoup his investment, etc.

innovation

kinsella's picture

I provided links already that takes you to dozens of others that show repeatedly that IP reduces wealth and innovation. http://blog.mises.org/10217/ye...

Shayne

Mark Hubbard's picture

Now you've brought up morality, and leaving patents aside, what is your stance on copyright? Is copying immoral? I don't believe you've answered to that yet?

Alleged rebuttals

Shayne Wissler's picture

Finally, as to the question of why I would not grant rights in the second inventor, I have already answered at least four times. Kinsella is certainly free to rebut those arguments.

The question is not why you would not grant rights. No one cares about your deranged preferences. Rather, what we are seeking is *proof* that your attacks on the second inventor are moral.

It's now been pointed out to you two or three times now that you have failed to post your alleged proof. Are you afraid? Or is it simple incompetence? Or should we take the one link you managed to not screw up as your whole proof?

More Kinsella Fallacies

Michael Moeller's picture

Kinsella wrote:

"Bullshit. Most patents filed are filed by just preparing a written description and filing it. So what if patent trolls--non-practicing entities--do the same thing that Intel or Apple do. Further, many patent trolls just buy patents from existing owners, e.g. in bankruptcy sales, auctions, or other transactions."

Kinsella apparently thinks that if he screams "bullshit" enough times, it will make his arguments valid. But he is totally missing the point, unsurprisingly. The point is not whether Intel or Apple simply file, but rather whether requiring reduction to practice will discourage patent trolls. Of course it will, as they will have to put investment into the R&D and production in material form. All that means for Apple and Intel is that they will have to meet the same standard. Kinsella's argument rebuts nothing and is irrelevant to my point.

Kinsella wrote:

"You are a dishonest hack. AGain: correlation is not causation."

First, your link here does not establish what you purport it to establish (it is just a link to a website, not some specific study), nor did the link to patent costs. I just went over this, but you can certainly try again.

You called it "correlation", not me. But let's take this point for a second. There are plenty of studies showing a positive correlation with economic growth, which certainly buttresses my claim that patent rights support economic growth. Makes sense, given that property rights in general (with IP rights being a category of property) are the foundation of free the market, not something we "compete" over.

If it is as Kinsella says, then there should be plenty of negative correlation studies to the contrary. Thus far, Kinsella has not provided them, unless I missed his links.

Kinsella wrote:

"ARe you daft? You don't realize that human beings were considered property under chattel slavery?"

Again, totally missing the point, and is nothing more than the logical fallacy of false analogy. According to Rand's justification of property, using force over another human being would not constitute property, regardless if slaveowners considered them property. This in no way addresses Rand's concept of property, and is nothing more than a false analogy.

Rand does not endorse the use of force as a valid means to acquiring property. This should be totally obvious and Kinsella should recognize this as a false analogy if he has studied Rand since 1982, as he claims.

Michael

Kinsella's Eye NOT on the Ball

Michael Moeller's picture

If Kinsella had read more in depth into the "access" requirement and the cases surrounding it, he would realize that this prong is largely moot. One of the ways the "access" element is proved is that the work is "widely disseminated". This is always easily established in this day and age with the wide dissemination and publication of books, internet, etc.

But again, Kinsella is totally missing the point and/or trying to obfuscate the point. When the defendent asserts a defenseof "independent creation" in copyright law, the burden of proof is on me to show it, as clearly stated in the links I provided. Kinsella is again attempting a sleight of hand by trying to make it seem as if the "access" element places the burden on the plaintiff/copyright holder. It does not (please see cited cases). Again, this is for the obvious reason that the copyright holder should not be in the position of proving a negative.

Main point: *IF*, in Kinsella's world, he wanted to make patent law more like copyright, the burden would not be as Shayne has submitted (i.e. on the first inventor to prove independent creation). IF it mirrored copyright law, the burden would on the second inventor. Copyright law is no help to Kinsella in that respect.

And if inventive activity is the basis for the second inventor's rights, then it is obviously illogical to deny the first inventor rights based on the same activity. Now, this puts Kinsella and Shayne in the position of having to concede rights to the first inventor, or deny inventive activity as a basis for patent rights altogether and permit copying. Kinsella has taken the position of permitting copying another's invention, which I will debunk later. Shayne has refused to address the argument.

Finally, as to the question of why I would not grant rights in the second inventor, I have already answered at least four times. Kinsella is certainly free to rebut those arguments.

Michael

Morality - Kinsella (via Tom)

Mark Hubbard's picture

I'm at the outer edge of what time and pre-existing knowledge allows me to debate this issue further. Though, in a sense I believe I would simply be over-analysing by spending much more of my time on it. For me, this is always first and foremost a moral issue. Tom states my position in the following paragraph:

The moral arguments interest me, and that probably explains why libertarians/Objectivists, even those who are equally passionate in defence of capitalism, end up at loggerheads because this is about morality, about justice, about creativity, and rewarding achievement, about theft, and the loathing of the copier, the knock-off artist, etc.

Or, in my case, to simplify, if I write a novel then that is a product of my mind, those who would copy that without payment to me have committed a theft. I see no complications in that. The anti-IP justification is always an immoral position because it is based on a theft. But to that end I find your reply interesting, Kinsella:

My argument has always been moral primarily. Not consequentialist or utilitarian. And when I started thinking about this IP stuff I might have agreed with you that copying was maybe immoral, though permissible legally, but now I have different view--I don't even see it as immoral. It's part of competition and remixing and cultural sharing. Of course dishonesty, fraud, and plagiarism are immoral, but these are not part of what IP is about or prohibits.

Isn't there a contradiction within this paragraph?

I can see how you can argue well enough that copying is not plagiarism, as the copy will no doubt truthfully identify the source, however, how do you make the further justification in your own mind that copying my novel, for example, without paying me for it, when my intention on putting such a book to market is to be paid, is not both dishonest, certainly, and a fraud?

I keep forgetting the chasm that separate the two of us: I, as a classical liberal acknowledging the need for limited government, and your true anarchist position; but I believe the only way you can reconcile that dishonesty and fraud, for yourself, is to subsume it to the higher good of no 'fascist' state apparatus at all?

Post script: by the way 'cultural-sharing' - so you are a utilitarian?

Kinsella, Patents, and Economic Growth

Michael Moeller's picture

Kinsella wrote:

"You are a dishonest hack. AGain: correlation is not causation. And if you will take a look at various studies (see my link) you'll see tons of correlations the other way--more pharma innovation in countries that let their patent systems lapse, and on and on. You really do not konw what you are talking about. Take a look at Boldrin and Levine's book, ch. 9, Against Intellectual Monopoly, -- it's perfect for the hidebound materialist utilitarian emprical unprincipled types like you -- except that you are not sincere, so you never read anything -- www.againstmonopoly.org".

One problem: Kinsella's link only goes to the website, not some evidence establishing "causation". What link are you talking about?

Maybe I missed it, but the only other ones that are purportedly relevant are the ones with the cost of the patent system. That proves nothing about patents and economic growth.

Yes, it costs money to enforce patents, so what? The figure says nothing about the economic value lost if there was no patent protection. It fails to place any number on innovations not being put on the market, being easily copied by somebody else, and therefore the technology not being commercialized because the owner could never hope to recoup his investment.

Kinsella's evidence, like his arguments, are totally worthless.

Is the fact that countries with the strongest protection for property rights end up being the most economically prosperous mere "correlation"? Nope, as property rights are the fundamental rights that drive the free market.

Similarly, is it mere "correlation" that the countries with the strongest patent protections have provided the most innovation? Nope, and for the same reason.

This is a basic observation, and one that is backed up by studies. Here is one such study from the WIPO that buttresses the claim.

I have not seen any study that establishes a strong negative correlation, but Kinsella certainly is entitled to produce one. So far the only thing from him has been a link to a website and one showing the costs of the patent system, unless I missed one in his bevy of links.

Michael

Moeller's links

Shayne Wissler's picture

Moeller, I am NOT going to search for your silly time stamps. Learn how to copy a URL:

1. Click on the title of the post that contains your "proof."

2. The URL is at the top of that rectangular looking thingy (called a "web browser"), in its own rectangle (called a "location bar"). You double-click your mouse on it then use control-c to copy it.

3. Paste the URL to your post using control-v.

Sheesh. Don't lawyers have an IT department they can call when they can't figure out how modern technology works?

copyright litigation details? really?

kinsella's picture

... *Kinsella* misrepresented the law with the following statement:

"No it's not. It would just change the standard of infringement to involve copying. this is exactly the law in copyright--the copyright owner has to show that the infringer had access, plus substantial similarity so that copying can be deduced. Etc."

Indeed, that was the very issue under dispute, who would bear the burden of proof IF patent law was made like copyright law and allowed independent invention.

for god's sake, you are picking on the term "has to". The point is this is how it works: the copyright owner tries to show ACCESS plus substantial similarity, to establish copying, since it's often hard to find direct evidence of copying. e.g. http://scholar.google.co.uk/sc... -- "Because direct evidence of copying often is unavailable, copying may be inferred where two elements are proven: (1) that defendant had access to the copyrighted work, and (2) that the accused work is substantially similar to the copyrighted work. Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607, 614 (7th Cir.1982); Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1092 (2d Cir.1977)."

So, --you are pettifogging. Nobody here cares which of us knows IP law details better (though it is highly likely I do--I've written books and law review articles on IP http://www.kinsellalaw.com/pub... , prosecuted hundreds of patents for companies like Intel, been a partner at a top 100 law firm--what are you, some hack with a shingle and no mentoring or training?).

Let's keep eye on ball please.

copyright litigation details? really?

kinsella's picture

... *Kinsella* misrepresented the law with the following statement:

"No it's not. It would just change the standard of infringement to involve copying. this is exactly the law in copyright--the copyright owner has to show that the infringer had access, plus substantial similarity so that copying can be deduced. Etc."

Indeed, that was the very issue under dispute, who would bear the burden of proof IF patent law was made like copyright law and allowed independent invention.

for god's sake, you are picking on the term "has to". The point is this is how it works: the copyright owner tries to show ACCESS plus substantial similarity, to establish copying, since it's often hard to find direct evidence of copying. You are pettifogging. Nobody here cares which of us konws IP law details better (though it is highly likely I do--I've written books and law review articles on IP, prosecuted hundreds of patents for companies like Intel, been a partner at a top 100 law firm--what are you, some hack with a shingle and no mentoring or training?).

Let's keep eye on ball please.

Oh, I see

Michael Moeller's picture

Kinsella wrote:

"Moeller: you cite tons of law about the burdens of proof and various presumptions. Citing cases ,etc., to do the typical thing patent shills do: they try to talk over the heads of their audience, or baffle wtih bullshit, or act as if they have some special authority. They do not and you do not. The point is not about irrelevant technical details about who has the first burden etc."

So it was *I* who was "sliming" when *Kinsella* misrepresented the law with the following statement:

"No it's not. It would just change the standard of infringement to involve copying. this is exactly the law in copyright--the copyright owner has to show that the infringer had access, plus substantial similarity so that copying can be deduced. Etc."

Indeed, that was the very issue under dispute, who would bear the burden of proof IF patent law was made like copyright law and allowed independent invention. IF it were made more like copyright, as you suggest and desire, then the burden would be exactly as I said on this thread a dozen times. Now you try a sleight of hand to pretend as if you said no such thing and brush it aside as if you weren't making things up.

Now that it has been proven that Kinsella misrepresented copyright law, he treats the issues as irrelevant and an "attempt to baffle with bullshit". And THIS guy has the audacity to scream about "honesty"?!?

Fancy that.

Michael

typical slimey lawyer nonsense

kinsella's picture

Moeller: you cite tons of law about the burdens of proof and various presumptions. Citing cases ,etc., to do the typical thing patent shills do: they try to talk over the heads of their audience, or baffle wtih bullshit, or act as if they have some special authority. They do not and you do not. The point is not about irrelevant technical details about who has the first burden etc. The point is that in copyright, because an element of the offense is COPYING (reproducing), then a defendant who can show that he didn't copy, is off the hook--hence the use of cleanrooms in software environments. And the point is that you people would never stand for a similar rule in patents because far too many people would then be able to escape patent infringement liability.

why don't you answer clearly and without evasion: are you or are you not, in favor of adding an independent invention defense to patent law? if not: you are upholding a clearly unjust system--clear even to your fellow objectiivsts like "Linz". If you are: then you would be berated just as I am, by the patent bar, for seeking to eviscerate the current patent system--and rightly so, as it would largely collapse if you made it more like copyright. And good riddance.

Get it straight: copyright and patent are totally evil and unlibertarian; completely statist and redistributionist and protectionist policies that undercut and undermine property rights, and impoverish all of us and reduce overall wealth, innovation, invention, discovery, and artistic creativity. It is a horrible system that needs to be utterly and immediately abolished *for the sake of* liberty and property rights.

Rand was WRONG about IP. She made a HUGE MISTAKE.

Burroughs

kinsella's picture

By the way I appreciate your directness, civility, and sincerity. I don't mind disagreements but they should be rooted in honesty and common, shared principles. I actually think that Objectivists can and should see this issue the same as me as long as they have open eyes and are not just trying to defend their careers (like patent lawyers) or Randian dogma.

rivalry and innovation

kinsella's picture

Ideas may not be rivalrous,

Let's be clear on this: they are not rivalrous. This seems to be fairly incontrovertible among, say, economists. Do you dispute it? It matters.

You occasionally get the cute guy saying "well it seems to me that good ideas is pretty scarce" which I never take seriously.

but they are also not unlimited in that it takes time and effort both to produce, say, an innovation and even takes time to reverse engineer it.

Sure. On the other hand all of us benefit by inheriting the great and ever-accumulating body of human knowledge that grows over the ages. We add to it and build on it, and then subsequent generations can dip into an ever-bigger commons of accumulated knowledge. I think this is a very good thing.

Of course, the fact that copying can be hard, and the existence of commercial "first mover" advantages, means that patents are not always necessary to ensure that an innovator reaps a reward to justify the original innovation.

But the goal of law is not to make sure that innovaters reap 'rewards," much less to "justify" some innovation. Even in today's patent system there are some innovations that are not developed because the cost is not going to be made up for even with a monopoly-patent price. What about those lost innovations? When is enough enoug? Should we have a taxfunded award system to encourage even more innovation--as many patent types using similar reasoning, do urge -- http://blog.mises.org/8396/lib... and http://blog.mises.org/9005/30-...

So unlike some, I am not terrified of a non-patent world - a lot of good entrepreneurs will thrive regardless. But I think trying to debate the pros and cons with resort to consequentialist arguments is of limited use, since the evidence is not clear-cut.

Right. what is clear cut is that patents undercut property rights. I have explained that they are tantamount to negative servitudes: but they are not granted contractually, as such property grants should be; but by state decree.

The moral arguments interest me, and that probably explains why libertarians/Objectivists, even those who are equally passionate in defence of capitalism, end up at loggerheads because this is about morality, about justice, about creativity, and rewarding achievement, about theft, and the loathing of the copier, the knock-off artist, etc.

I disagree. My argument has always been moral primarily. Not consequentialist or utilitarian. And when I started thinking about this IP stuff I might have agreed with you that copying was maybe immoral, though permissible legally, but now I have different view--I don't even see it as immoral. It's part of competition and remixing and cultural sharing. Of course dishonesty, fraud, and plagiarism are immoral, but these are not part of what IP is about or prohibits.

I sometimes don't think the anti-IPers give this loathing of copycatters enough credit.

What is wrong with "copycatters"? This is just called learning, emulation, competition. Honeslty, what is wrong with it? This is the free market. In culture: a certain painting style or movie genre becomes popular; others see profit signals and they enter the market to provide more supply, to cater to customer demand. The original guy now sees his market grow, but he also has more compeittion. So what? In the realm of technology, I make and sell a touch-screen phone or tablet--iphone or ipad--if it's popular then it will be a hit and I have a huge profit margin, but this profit signal attracts competitors who make similar things to tap into this demand, and thus they erode my profit margin, so I have to keep innovating to stay ahead. Etc. This is natural and good.

"There is no reason that you and I and a million other people cannot use the same recipe at the same time, whether it was invented by me, you, three people at the same time, or some unknown guy 500 years ago."

Hmm. Bear in mind that a cookery writer, for example, might own the copyright on a book or TV series, but that writer actually wants his or her fans to copy the recipes, to practise them (on their long-suffering friends), etc. The person in question wants to own the right to charge a royalty on the sale of the books/other materials sold but after that happens, and those recipies are in the public domain, that's it. It would, therefore, be crazy for a TV chef to demand I pay him/her a fee every time I try out their method of cooking roast lamb.

I don't konw what is the relevance of this. I am using recipe in a broad economic sense as economists do, to refer to any useful information that can be used to help an actor rearrange or use scarce means in a way that results in some desired result.

Another Misrepresentation of the Law by Kinsella

Michael Moeller's picture

Kinsella wrote:

"No it's not. It would just change the standard of infringement to involve copying. this is exactly the law in copyright--the copyright owner has to show that the infringer had access, plus substantial similarity so that copying can be deduced. Etc."

Nope. The burden is on the defendant to show independent creation. Copyright law is much more logical than Kinsella and Shayne. See here:

"The principle being well-established now is not, unfortunately, a guarantee that it cannot be undermined. One way independent creation is threatened is procedural, the misdescription of it as an affirmative defense. It is not; it is instead a denial of copying. The difference is significant. Once plaintiff has made out a prima facie case, defendant may interpose an affirmative defense for which defendant bears the burden of production and persuasion."

Indeed, for the obvious reason that it puts the plaintiff in the position of proving a negative.

All Kinsella argues is that the plaintiff can "deduce" it from the copied material, somehow. Really? How does one know just by looking at something that is similar or substantially similar whether it was the product of copying or independent creation?

The plaintiff proves the prima facie case by showing it was similar or substantially similar, it is then up to the defendant to show he produced it on his own, and that's the law in copyright, contrary to Kinsella's assertions.

See, also, here (with case citations):

"An inference of copying may arise when there is “significant probative evidence” of proof of access and probative similarities between two works. But, even a plaintiff who establishes an inference of copying cannot prevail when the defendant submits evidence that the work was independently created. Positive Black Talk, Inc. v. Cash Money Records, Inc., 394 F.3d 354, 367 and 373 (5th Cir. 2004) (“…a defendant need only prove independent creation if the plaintiff successfully establishes factual copying.”). Rather, if a plaintiff can establish a prima facie case of copying, then after the defendant introduces evidence of independent creation, the burden of proof shifts back to the plaintiff to prove actual copying with “significant probative evidence”; that is, significant probative evidence of actual copying of the protected elements of the plaintiff’s work. Calhoun v. Lillenas Publishing, 298 F.3d 1228, 1233 (11th Cir. 2002)."

Kinsella is making it up as he goes along.

Michael

Stephan, thanks for the

Tom Burroughes's picture

Stephan, thanks for the reply.

Ideas may not be rivalrous, but they are also not unlimited in that it takes time and effort both to produce, say, an innovation and even takes time to reverse engineer it. (Take the extreme example of the WW2 Enigma machines and how long it took for the Allied code-breakers to crack the codes, to give an illustration of how difficult reverse engineering and copying can be).

Of course, the fact that copying can be hard, and the existence of commercial "first mover" advantages, means that patents are not always necessary to ensure that an innovator reaps a reward to justify the original innovation. So unlike some, I am not terrified of a non-patent world - a lot of good entrepreneurs will thrive regardless. But I think trying to debate the pros and cons with resort to consequentialist arguments is of limited use, since the evidence is not clear-cut. The moral arguments interest me, and that probably explains why libertarians/Objectivists, even those who are equally passionate in defence of capitalism, end up at loggerheads because this is about morality, about justice, about creativity, and rewarding achievement, about theft, and the loathing of the copier, the knock-off artist, etc. I sometimes don't think the anti-IPers give this loathing of copycatters enough credit.

"There is no reason that you and I and a million other people cannot use the same recipe at the same time, whether it was invented by me, you, three people at the same time, or some unknown guy 500 years ago."

Hmm. Bear in mind that a cookery writer, for example, might own the copyright on a book or TV series, but that writer actually wants his or her fans to copy the recipes, to practise them (on their long-suffering friends), etc. The person in question wants to own the right to charge a royalty on the sale of the books/other materials sold but after that happens, and those recipies are in the public domain, that's it. It would, therefore, be crazy for a TV chef to demand I pay him/her a fee every time I try out their method of cooking roast lamb.

state force

kinsella's picture

Uh, no. They use force to attach the property, and only when resisted with lethal force can the police respond with lethal force.

Ah. I see. Only then. Only if you don't cooperate. I see.

And a refusal to pay damages and/or obey an injunction moves are not part of patent law, but criminal law at that point. Contempt of court is a criminal violation. Jail time would happen for either because at that point -- i.e. the refusal to stop an action constituting theft or to pay damages for one's theft -- the violation has moved into the context of criminal law. There is no "initiation of force", but rather the use of retalitory force.

How can I or anyone here take you seriously? So the patent system grants legally enforceable rights. When enforced, they can result in action by state agents that can result in lethal force being used, injunctions the breach of which can result in jail or lethal force... and you waive this away by just saying "well that's criminal law not patent law"? Are you kidding?

I would be curious if a single Objectiivst here agrees with your strained argument. It's embarrassing.

scarce

kinsella's picture

Tom:

Stephan, in your point about physical resources (eg, land) you contrast with ideas, which are not scarce, or in other words, non-rivalrous. But the supply of ideas and innovations is not limitless, yes?

I am not sure about that. I see no reason for the corpus of human knowledge not to keep growing. In any case: ideas are not rivalrous.

(Not even those futurists rapt with ideas about a Singularity believe that). So given that invention and creation takes time - and Austrians should understand the importance of time (interest rates) - is it not the case that intellectual activity is scarce, and therefore, given this, it can be priced and has a value?

Maybe, but that does not mean that non-rivalrous ideas can be owned. IN fact they cannot. There is no reason that you and I and a million other people cannot use the same recipe at the same time, whether it was invented by me, you, three people at the same time, or some unknown guy 500 years ago.

If so, then just as a market requires the ownership of physical property (if I lack security in my person and physical property, then how can I engage in peaceful exchange?), then does not a market in artistic creations or economic innovation also flourish when people can propertise innovations and creations?

This is not an argument that justifies the state granting B a negative servitude in A's already-owned property.

Given that, without IP, firms might try and use alternative ways of protecting their creations/innovations (through things like encryption in software, etc),

Sure. Secrecy, propriety, contracts, NDAs.

this point about property is important. Maybe I am missing something, but given the way the modern economy is evolving, intellectual property is, as far as I can tell, becoming more, not less important.

This language is equivocating. Calling it property is question begging. What you are talking about is information, ideas, knowledge. Sure, I could grant you that knowledge is even more important now than before. This does not imply there are or should be property rights in it. Property rights in scarce resources are still sufficient since only these are the subject of conflict and violence. If you own your body and things you homestead then you are free to use them as you see fit including applying knowledge to them. SEe my distinction between knowledge and scarce resources in human action in http://libertarianalliance.wor...

Switching Contexts

Michael Moeller's picture

Kinsella wrote:

"You are either stupid or dishonest. to get someone's property from them by force you have to be willing to use lethal force if it escalates enough. Everyone knows this."

Uh, no. They use force to attach the property, and only when resisted with lethal force can the police respond with lethal force.

And a refusal to pay damages and/or obey an injunction moves are not part of patent law, but criminal law at that point. Contempt of court is a criminal violation. Jail time would happen for either because at that point -- i.e. the refusal to stop an action constituting theft or to pay damages for one's theft -- the violation has moved into the context of criminal law. There is no "initiation of force", but rather the use of retalitory force.

Michael

patents and innovation

kinsella's picture

Stephan and some others have raised and debated the issue of whether patents reduce, or increase, the overall amount of innovation. From my reading - which may be less extensive than some of the people on this board - it is inconclusive overall.

1. If it's inconclusive, then the patent types have NOT MET THEIR BURDEN OF PROOF for justifying a system that they claim DOES promote innovation.
2. It is NOT inconclusive--there are so many good reasons to believe that the patent system does now and has always imposed huge net costs on the economy, innovation, and progress. I and others have detailed this exhaustivel. But those with vested interests or vested Randian ideas do not care.
3. People point to the Constitution's copyright and patent clause as if that is relevant--it's just positive law, the opinions of some politicians who were trying a modern version of the old mercantilist system that granted monopolies under the Statute of Monopolies 1623 and the censorship of the Stationer's Guild and Statute of Anne 1709. Does anyone seriously think that the Framers of the Constituion had good empirical evidence back in 1789 that patent and copyright would promote net innovation? NO; it was a most a hunch and in the 200 years since the beneficiaries of this system have not proved it.
4. Further, is the goal of law to ensure net innovation? Or some optimal or maximal amount? That is central planning.

What are the main means by which innovation could thrive without any IP?

see http://c4sif.org/2012/01/conve... and http://blog.mises.org/14823/fu...
and http://blog.mises.org/13286/th...

Are trade secrets a real alternative, or do they have problems of their own?

The problem with trade secret is that they can be enforced by the power of statist court injunctions against third parties. but if limited to purely contractual remedies against parties in privity, they are fine, but their utility would be limited and could not supplant a patent type system.

Does patent repeal/reduction require serious reduction in state regulation, taxes, other impositions on businesses?

No. Ideally we should abolish taxes, regulations, and the FDA to reduce the costs the feds already impose on , say, the pharma industry, but these costs do not justify the same state giving them monopoly privileges to help them make slightly more profit to make up a bit for all the other costs the feds impose. And the feds should also abolish antitrust law: there are many collusions, cartels, industry wide agreements comapnies might enter into, absent patent or copyright law, but the feds prohibit this how. Federal law has caused so much destruction and damage to business that it is obviously the biggest enemy we face; why people think it should impose another monopoly system that helps further oligopolize industry, reduce costs and lower competition is beyond me.

Can things like prizes and patronage really take up the slack in funding and incentivising innovation?

Who konws what the wolrd would look like absent the distortions of IP--we would have more of some things and less of others. Which is to say: the current system distorts and skews the economy. Why libertarians think this is desirable is a mystery (other than patent lawyers taking a hefty handling free from this useless waste of money). The purpose of justice and law is not to make sure we have "enough" innovation. No sane person can say with a straight face that without IP we would have NO innovation. They can at most say we would have less, and that it is not enough. And that an IP system raises the level of innovation, and by an amount that is greater htan the cost of the system. But they have no reasons for any of these claims--no numbers. SEe http://www.mises.org/story/1763

Or, put it this way. Assume we can rewind the historical tape and start from a position with no statutory IP (key word being "statutory); what sort of alternative mechanisms would arise, and why? Come on guys, put down the cudgels, and give me some ideas. I promise not to steal them!

See previous links. But keep in mind that when people can rely on state monopoly privileges they do not always explore other ways of making money, since they do not have to. Absent copyright etc. they woudl have to, and we would no doubt see a flowering of entrepreneurial ideas about how to profit from ingenuity and creativity. It is in any case not the state's job to regulate all this.

Aren't inventions and ideas scarce?

Tom Burroughes's picture

Stephan, in your point about physical resources (eg, land) you contrast with ideas, which are not scarce, or in other words, non-rivalrous. But the supply of ideas and innovations is not limitless, yes? (Not even those futurists rapt with ideas about a Singularity believe that). So given that invention and creation takes time - and Austrians should understand the importance of time (interest rates) - is it not the case that intellectual activity is scarce, and therefore, given this, it can be priced and has a value? If so, then just as a market requires the ownership of physical property (if I lack security in my person and physical property, then how can I engage in peaceful exchange?), then does not a market in artistic creations or economic innovation also flourish when people can propertise innovations and creations?

Given that, without IP, firms might try and use alternative ways of protecting their creations/innovations (through things like encryption in software, etc), this point about property is important. Maybe I am missing something, but given the way the modern economy is evolving, intellectual property is, as far as I can tell, becoming more, not less important.

Tom

Stephan and some others have

Tom Burroughes's picture

Stephan and some others have raised and debated the issue of whether patents reduce, or increase, the overall amount of innovation. From my reading - which may be less extensive than some of the people on this board - it is inconclusive overall. Boldrin and Levine's book, Against Intellectual Monopoly, argues that the Swiss/German pharma/chemical industries did well even without Anglo-Saxon-style patents, but even now, with such things in place, these countries do well. And as Boldrin and Levine concede, the real issue for innovation in areas like drugs is not patents, but the EPA, and the whole, wretched "Precautionary Principle" that means it now takes years, and hundreds of millions of dollars, to bring a drug to market. Without changing that, removal or severe reduction in patents would, as even these anti-IP people concede, have disastrous consequences. Now it may be different in software, say, or consumer electronics.

Here are some questions to the anti-IPers here, including Stephan (thanks for stopping by!):

What are the main means by which innovation could thrive without any IP?

Are trade secrets a real alternative, or do they have problems of their own?

Does patent repeal/reduction require serious reduction in state regulation, taxes, other impositions on businesses?

Can things like prizes and patronage really take up the slack in funding and incentivising innovation?

Or, put it this way. Assume we can rewind the historical tape and start from a position with no statutory IP (key word being "statutory); what sort of alternative mechanisms would arise, and why? Come on guys, put down the cudgels, and give me some ideas. I promise not to steal them!

jail time

kinsella's picture

Jail time is not imposed as a penalty for patent infringers. Monetary damages and injunctions are the only remedies under patent law. And to get payment, they can go throw normal remedies like attaching other property, but nowhere does "deadly force" enter the picture.

You are either stupid or dishonest. to get someone's property from them by force you have to be willing to use lethal force if it escalates enough. Everyone knows this.

And copyright, by the way, IS enforced by jail time-- http://c4sif.org/2011/12/man-s... and http://c4sif.org/2012/03/six-y... -- Who knows when you guys will have the penalties for patent increased to criminal ones, as you have for copyright. (Also, trade secret is punishable under federal law by jail time)

Further: patent cases often conclude with an INJUNCTION, and do you know what is the consequence for disobeying this? hellooo it's called contempt of court, which results in-you guessed it: jail time. And if you refuse to be arrested, guess what, the nice officers will shoot your ass.

Rand on IP

kinsella's picture

Rand made a mistake about the US (until next year) being a first-to-invent system, so?

So she had no idea what she was talking about and should have shut up and not mouthed off on an issue she was utterly unqualified to pontificate on, and Randians should stop bending over backwards to defend her ridiculous conclusions on this whole issue,a nd just admit she was wRONG on this like she was wrong on anarchy (and war).

The merits of first-to-file vs. first-to-invent was not her argument for patent rights. She argued based on the right of the inventor to the products of his mind. And those copying said invention are infringing the exclusive right to use, possess, and dispose of this invention, in the same way one assumes property rights through effort when they put unclaimed land to use. Her mistake on first-to-file has no bearing on this philosophical argument.

She was obviously just straining to find a way to justify her beloved US Constitution, which is probably why she originally was in favor of eminent domain (after all, it's in the Fifth Amendment) and hated anarchy--she revered and worshiped the racist statist politicians who founded the US... a wee bit much.

And you have a queer idea of "competition". You are using "competition" as a floating abstraction.

omg. stop the randroidisms please. package deal, kay?

One does not "compete" for the use and possession of one's own property!

question-begging, once again--you amateurs cannot seem to help doing this.

Under this theory, the thief would not be liable for stealing my watch, but I would be restricting his "competition" by sending law enforcement after him when he goes to sell it.

this is not the theory at all. When I get an injunction from your statist fascist courts telling me I have to stop selling a tablet computer because XYZ petitioned for a piece of paper first and has the sole right to make it, this is a threat and trespass against me and my property. Information is not property. Scarce resources are means of action, as Mises explains, and because they are scarce can only be used peacefully by one person at a time--civilized people prefer this and cooperation to violence and conflict so favor property rights in these resources, but information is just a guide to action. It is important and useful but it is not a scarce means and there is no possibilty of conflict over its use. Property rights literally cannot be assigned in information--in fact this is just a distortion of what is going on: it's called property rights in ideas or information or recipes, but in reality the holder of this right always uses real, physical state force against the real, physical, already-owned scarce resources of the victim: his body, his goods, his money. So all IP claims are disguised claims on the already-owned scarce resources owned by other people. IT's just state-sanctioned theft.

Oh the irony!!

Michael Moeller's picture

Kinsella wrote:

"I cannot believe we have to have this discussion. It's like you are in 2nd grade. Yes, if you don't pay money damages the big men from the state show up wiht force and if you fight them they will ultimately kiill you or jail you to get their way. If you will dispute these basic things you are not worth talking to. You are either too stupid or too dishonest. Knowing the IQ level of most patent attorneys I'm inclined to the former hypothesis, but knowing pro-IP types like I do I am inclined to the latter."

Jail time is not imposed as a penalty for patent infringers. Monetary damages and injunctions are the only remedies under patent law. And to get payment, they can go throw normal remedies like attaching other property, but nowhere does "deadly force" enter the picture.

Kinsella, after leveling charges of dishonesty and ignorance, either is ignorant of the law, or purposely misrepresenting it, which I find quite ironic. I guess when the facts don't support your claim, you just plain make them up!!

More on the rest later...

Michael

rand on rights

kinsella's picture

Hubbard: "Rand gave her justification for IP rights as a form of property, and Kinsella needs to state why her conception is flawed and not property. Sweeping it under the rug of some elastic notion of "competition" ain't going to get the job done, unfortunately."

Not sure what your question is. But Rand's theory of rights is confused, incomplete, and internally inconsistent. She talks about rights being moral claims that man needs to live in a social context--yadda yadda. this is all vague and nondescript. And it's consequentialist despite her disavowing this. She says rights come from ethics which comes from the choice to live, so that the choice to live is pre-ethical or outside the realm of ethics--which means it's a hypothetical type of argument: IF you choose to live, THEN blah blah blah. THis is the same structure of ethics of consequentialists and many modern realist Kantians like MIses and Hoppe: IF you value human life and prosperity and cooperation, THEN xyz.

The point is that Rand herself recognized that the basic norms that all we civilized humans hold, plus a modicum of economic literacy, imply quite clearly that there must be property rights in scarce resources, which are assigned basically in accordance with Lockean homesteading theory and contract law. With the special rule of self-ownership for human bodies. What is key is that libertarians and Objectivists who can think clearly and discourse honestly and sincerely will all admit this: that we all believe in these basic social principles.

That is, for human bodies, the default presumption is that each person owns his own body; unless he alienates or forfeits this right by some kind of action like a crime; and for all other scarce resources, it should have a private owner and we identify that owner by asking: who first homesteaded it, or to whom did that person convey it by contract? It is really that simple.

Now any Randian who disagrees with this is disagreeing with the fundamentals of Locke, Rand's own views, and common sense and justice.

So the next step: it is easy to see that this view is exhaustive and covers all possible rights. Just as Rand herself acknowleged that if you then assign positive rights (such as to a job or food or education) it has to come at the expense of negative, natural, real property rights, -- so if you assign IP rights then they have to intrude onto already assigned rights in scarce resources. Moreover these reassignemnts, besides being socialistic, are based on a hostility to unbridled competition, to a desire to tame competition, to give the preferred patentee or coyright holder some "breating room", some "space" some monopoly privilege that protects him for some while from cut-throat, dog-eat-dog competition. It does this by granting a negative servitude (a property right) in *already owned* resources from the original or current owner--to some favored state supplicant. SEE http://blog.mises.org/17398/in...

SO MY basic view is that Rand's *basic* hypothetical/consequentialist case for libertarian rights is fine: it is built on her basic economic literacy, and her recognitiion of the problem of scarcity and violence; and her a-moral or pre-moral values which I refer to as the civilized grundnorms -- the value of humanity, peace, cooperation, and prosperity. But she went off the rails with this IP stuff (and her anarchy stuff) by not realizing it is completely incoherent and incompatible with her primary social property views.

Question-begging "proofs"

Shayne Wissler's picture

Just a little follow up, but Michael, if you can't produce a proof that doesn't use the premise you are trying to prove, then you're finished. You MUST NOT assume the premise you are trying to prove in any argument for the premise.

http://en.wikipedia.org/wiki/B...

Basic stuff like this should not need to be mentioned.

objective? ha

kinsella's picture

Moeller:

First, I would like to take note of Kinsella's method here. He never addresses Rand's justification for intellectual property.

Of course I do. I am fully cognizant of Rand's entire theory of rights, and its various defects. I've studied it since 1982.

"The burden of proof should be on the patentee to show copying, not on the the innocent victim to show that he has not copied."

Um, the burden of proof is on the patentee to show infringement, not that the product is the result of copying

we are talking about what shoudl be the case. If we were to add an independent creation requirement -- you implied it would be dificult to show independent creation. My point is that this is an unnecessary objection, or a question-begging one. YOu are assuming that if it's hard for the patentee to show copying, then the independent invention defense is problematic. Not so.

(vs. independent creation). You are conflating the two issues, which is rather baffling if you are a patent lawyer.

If? I've prosecuted hundreds of patnets since 1993. But I am not talking about what the current law is--a typical excuse used by a patent lawyer to baffle his audience with bullshit and authority--but what it ought to be. And patent lawyers are no better than normal people in having an opinion on this; in fact, they are better, since they are not biased.

Infringement shows the object is the same or substantially similar, but does not address the issue of whether it is the product of copying or independent invention. Indeed, it is illogical to require the first inventor to do so.

It's not "illogical" in the copyright context. There is no reason why a copying requirement could not be added to the patent system, especially since its advocates so often dishonestly equate patent infringement with copying, stealing, and "plagiarism" (which makes no sense).

As a stated earlier, to require this of the patentee is to put the patentee in the illogical position of trying to prove a negative.

No it's not. It would just change the standard of infringement to involve copying. this is exactly the law in copyright--the copyright owner has to show that the infringer had access, plus substantial similarity so that copying can be deduced. Etc.

A patentee can prove that product is the same or substantially similar, but how is he suppose to prove that the alleged infringer did NOT independently create the object? Does he ask for access to the infringer's lab, notes, etc and report he found nothing? Would that satisfy your "proof"? If such a claim was to be made, the burden is logically put on the one that asserts the positive, and the positive here is that the alleged infringer independently created the object. Basic logic.

Suppose I do independently invent something. Why do I need to prove to you or some patentee when I invented it? We should not live at others' permission.

Kinsella wrote:

"Standards of invention have nothing whatsoever to do with trolls."

Of course it does. Patent trolls protect by filing, not by reduction to practice.

Bullshit. Most patents filed are filed by just preparing a written description and filing it. So what if patent trolls--non-practicing entities--do the same thing that Intel or Apple do. Further, many patent trolls just buy patents from existing owners, e.g. in bankruptcy sales, auctions, or other transactions.

If forced to do so and considering the time and effort in reducing to practice, then it would surely cut down on patent trolls.

The problem is not trolls. the problem is the state granting monopoly privileges that protect companies from competition. The problem is not bad patents. It is good patents.

And your stuff about a "tax" vs. injunction is a non sequitur. A tax does not apply to the licensing of one's own property.

If you can force me to pay you $5 per phone for the permission to sell my phone, from my perspective it's identical to a tax. And that is preferable to you using an injunction to shut me down, as NTP nearly did with RIM/Blackberry and as Apple and Android are threatening to do with each other.

It is called a license fee.

Who cares what you "call" it?

And an injunction is a valid to protect against somebody's unauthorized use of your property.

Question-begging. typical of your ilk. It's not property.

You still need to dispute the justification of property, which you have not done.

I've done it a zillion times. But you don't care as you are nothing but a typical patent shill.

"IF I invent someething why should I have to "bring it to market"?--why not just license it to some others? Ever heard of the division of labor? And if a patent is a real property right then what's wrong with licensing or selling it?"

If you did not "bring it to market", nobody is going to go after you. Again, if you work in patent law, you would know this is done all the time where R&D outfits use the information in a patent to futher develop it, but do not commercially exploit it.

this is all stupid and irrelevant. a patent suit is launced against ME, by someone with a patnet. They do not need to have ever commercialized the underlying technlogy. I have--but I need not have a patent. You are obfuscating and using the typical lawyer tricks of dropping confusing stuff here to baffle with bullshit. It is highly likely I know this area better than you--so what? I will tell anyone reading that you do not need to be a patent lawyer to have an informed, intelligent opinion on any of this. This is not rocket science. It's just a horrible complicated arbitrary and bureaucratized area of federal legislation.

"I'll bet money you will never get it published in any reputable journal. You sound like a total hack."

And this is from all your experience publishing in law reviews?

Yes, several, and in legal treatises by Oxford, West Thompson Reuters, and from dealing with libertarian poseurs and losers over the years.

Kinsella wrote:

"Correlation is not causation. This should be elementary. Japan had more western style laws like antitrust, income tax, and the like as well during this time. Are they the cause of prosperity?"

And income tax rates (see Laffer curve) and antitrust (see studies on the price of refined oil before and after the Sherman Antitrust Acts and trust-busting) show how they negatively effect the market and economic growth. In contrast, I have yet to see a negative correlation with patents.

I just gave you a link. I guess you don't want to see it. Typical--every time I talk to a fellow patent lawyer and they drop this faux-intellectual bullshit about how IP incentivizes innovation and I ask them how they know this, they mutter something about the Constitution and then change the subject. They do not konw, and do not care; they are just lying. They just say the magic words to keep their profession alive. Liars, parasites, and poseurs.

In fact, as should be obvious, the most pioneering inventions come from the countries with the best patent protections (see, e.g., USA and Israel). Why is that Kinsella? If patent law is soooooo damning to innovation, why are MRI's, new drugs, medical devices, electronics, software, and on and on developed first in the USA in large part? It is a screwy argument to claim that it stifles innovations, and then ignore that the most significant innovations happen here, don't cha think?

You are a dishonest hack. AGain: correlation is not causation. And if you will take a look at various studies (see my link) you'll see tons of correlations the other way--more pharma innovation in countries that let their patent systems lapse, and on and on. You really do not konw what you are talking about. Take a look at Boldrin and Levine's book, ch. 9, Against Intellectual Monopoly, -- it's perfect for the hidebound materialist utilitarian emprical unprincipled types like you -- except that you are not sincere, so you never read anything -- www.againstmonopoly.org

Since when is forcing somebody to work for you and infringing their freedom constitute an assumption of "property"? Not by any valid theory I know. Clear equivocation on the concept of "property rights".

ARe you daft? You don't realize that human beings were considered property under chattel slavery?

"All law is ultimately enforced with the gun. Is this really in dispute?"

They are using the term "deadly force". How does forcing to pay monetary damages constitute "deadly force"? Do tell.

I cannot believe we have to have this discussion. It's like you are in 2nd grade. Yes, if you don't pay money damages the big men from the state show up wiht force and if you fight them they will ultimately kiill you or jail you to get their way. If you will dispute these basic things you are not worth talking to. You are either too stupid or too dishonest. Knowing the IQ level of most patent attorneys I'm inclined to the former hypothesis, but knowing pro-IP types like I do I am inclined to the latter.

Loving this thread

Mark Hubbard's picture

Chucked in the fishing this morning to catch up with this.

Thank you to both Micheal and Kinsella, and Linz for providing a 'clean, open room' for debate - I gave up arguing IP on mises.org.

Kinsella, Michael raised the point in the quotation below to which I was never able to see you clearly answer before I would get lost in the confounding noise of a mises.org thread. I would love to see a concise statement from you here that relates only to it:

Rand gave her justification for IP rights as a form of property, and Kinsella needs to state why her conception is flawed and not property. Sweeping it under the rug of some elastic notion of "competition" ain't going to get the job done, unfortunately.

And noting that elsewhere on this thread, or another of Tom's, that Michael has dealt with the scarcity argument to my satisfaction.

Kinsella

Michael Moeller's picture

First, I would like to take note of Kinsella's method here. He never addresses Rand's justification for intellectual property. He performs what I call the "buckshot" approach, whereby he takes all kinds of subsidiary issues in a desperate attempt that something sticks. A good example is his running amok with Rand's mistake on first-to-invent, and then fails to address her underlying justification for property. If he can hit enough targets, in his mind, he thinks it will undermine the justification of patents.

Kinsella wrote:

"The burden of proof should be on the patentee to show copying, not on the the innocent victim to show that he has not copied."

Um, the burden of proof is on the patentee to show infringement, not that the product is the result of copying (vs. independent creation). You are conflating the two issues, which is rather baffling if you are a patent lawyer. Infringement shows the object is the same or substantially similar, but does not address the issue of whether it is the product of copying or independent invention. Indeed, it is illogical to require the first inventor to do so.

As a stated earlier, to require this of the patentee is to put the patentee in the illogical position of trying to prove a negative. A patentee can prove that product is the same or substantially similar, but how is he suppose to prove that the alleged infringer did NOT independently create the object? Does he ask for access to the infringer's lab, notes, etc and report he found nothing? Would that satisfy your "proof"? If such a claim was to be made, the burden is logically put on the one that asserts the positive, and the positive here is that the alleged infringer independently created the object. Basic logic.

Kinsella wrote:

"Standards of invention have nothing whatsoever to do with trolls."

Of course it does. Patent trolls protect by filing, not by reduction to practice. If forced to do so and considering the time and effort in reducing to practice, then it would surely cut down on patent trolls. No "bamboozling" whatsoever. Again, just basic logic. But again, this is an argument about how to reduce patent trolls, not the justification of patents per se.

And your stuff about a "tax" vs. injunction is a non sequitur. A tax does not apply to the licensing of one's own property. It is called a license fee. And an injunction is a valid to protect against somebody's unauthorized use of your property. You still need to dispute the justification of property, which you have not done.

Kinsella wrote:

"haha so you think an improvement would be to get rid of patnet claiming? to make it even more unclear, murky, and ambiguous? wow."

Learn to read. I did not say I would get rid of patent claiming, but that which is being claimed would be the application of principle embodied in a particular form, not just concrete embodiments.

Kinsella wrote:

"IF I invent someething why should I have to "bring it to market"?--why not just license it to some others? Ever heard of the division of labor? And if a patent is a real property right then what's wrong with licensing or selling it?"

If you did not "bring it to market", nobody is going to go after you. Again, if you work in patent law, you would know this is done all the time where R&D outfits use the information in a patent to futher develop it, but do not commercially exploit it.

How can you even ask what is wrong with "licensing or selling" the invention? Obviously that has the same effect if the inventor himself brought it to market, as the licensee or the buyer would now be commercializing it.

Kinsella wrote:

"I'll bet money you will never get it published in any reputable journal. You sound like a total hack."

And this is from all your experience publishing in law reviews? Or as an anarchist "hack" publishing on anarchist sites? Please excuse me if I don't take you seriously.

Kinsella wrote:

"Correlation is not causation. This should be elementary. Japan had more western style laws like antitrust, income tax, and the like as well during this time. Are they the cause of prosperity?"

And income tax rates (see Laffer curve) and antitrust (see studies on the price of refined oil before and after the Sherman Antitrust Acts and trust-busting) show how they negatively effect the market and economic growth. In contrast, I have yet to see a negative correlation with patents.

In fact, as should be obvious, the most pioneering inventions come from the countries with the best patent protections (see, e.g., USA and Israel). Why is that Kinsella? If patent law is soooooo damning to innovation, why are MRI's, new drugs, medical devices, electronics, software, and on and on developed first in the USA in large part? It is a screwy argument to claim that it stifles innovations, and then ignore that the most significant innovations happen here, don't cha think?

Kinsella wrote:

"assertion. you have to have property rights assigned justly. in antebellum US there were property rights in human slaves. So what?"

Again, another queer concept of "property rights". Since when is forcing somebody to work for you and infringing their freedom constitute an assumption of "property"? Not by any valid theory I know. Clear equivocation on the concept of "property rights".

Kinsella wrote:

"Sooo.... the goal of the law is not justice or property rights, but to adjust incentives to ensure that there is "enough" innovation and that competition is suppressed for a long enough period to make a given investment--in the face of what would otherwise be competition--profitable."

I did not say the ultimate goal was profit. In fact, I previously stated that the purpose is to protect property rights, which you quote but do not address. Here, I am talking about setting the time limitation, i.e. addressing the purpose of time limitations. As I said, it is a balance between independent invention and not pursuing the invention commercially vs. protecting the time, effort, and money spent in creating the invention.

And yes, it is "objective". It is a fact that it can take 15-20 years to capitalize on that investment, and their resulting property should be protected to that extent.

Who do you propose would undertake such a lengthy and extensive endeavor into R&D if it will just be easily copied and put on the market? Nobody, that's who, and it does not take much to realize this. Basic logic here tells you that the protection of inventions of IP are a driver of innovation precisely because of that reason.

Michael

Standards of proof: Fair warning

Shayne Wissler's picture

Just to give Michael a good head start, I am going to remind him of two basic requirements of proof:

1. The premises of the proof must either be deduced from proven premises or be induced from reality using a proper method.

2. The premises of the proof must not contradict one another, nor any proven premises, including those proven premises offered in rebuttal.

I will be back to examine his "proof" later today if I have time, and if not I'll try to get to it tomorrow. If he fails I don't see why I should award him a second chance because he acts like a punk. So this is his fair warning.

Kinsella

Michael Moeller's picture

"All law is ultimately enforced with the gun. Is this really in dispute?"

They are using the term "deadly force". How does forcing to pay monetary damages constitute "deadly force"? Do tell.

Michael

Michael

Richard Goode's picture

This is how it's done.

civil law is not backed by force?

kinsella's picture

Moeller:

Secondly, patent cases are the province of civil law. There is no "deadly force", you idiot. Law enforcement would merely shut down the operation and the infringer would pay damages.

And if you don't, then the state comes in with force. All law is ultimately enforced with the gun. Is this really in dispute?

patent trolls and burdens of proof

kinsella's picture

The burden of proof should be on the patentee to show copying, not on the the innocent victim to show that he has not copied.

Many people make light of patent trolls, but I think this issue is better addressed by standards of invention. Non-obviousness is a real mess in terms of legal analysis, and has lead to patent claiming being very concrete-bound.

Patent trolls are no worse than practicing entities. The latter sometimes want an injunction. the former only want a tax. I'd rather be sued by a troll who only wants to extract a fee/toll, than a competitor who wants to shut me down. The only way to get rid of trolls is to impose reduction to practice and working requirements--I'm in fvor of this as it would weaken the patent system and make it more costly to obtain state monopolies, but you can be sure patent advocates would oppose this.

Standards of invention have nothing whatsoever to do with trolls. If trolls are a problem it's b/c there is no working requirement. Not because obviousness standards need to be adjusted. You might bamboozle non-patent specialists with these big concepts but really, they are not that hard to grok for an intelligent layman.

Prior to the concept of non-obviousness and patent claiming, a better standard was used used during the earlier parts of the 19th century. The standard being a new application of principle embodied in a useful product.

haha so you think an improvement would be to get rid of patnet claiming? to make it even more unclear, murky, and ambiguous? wow.

And I would require this to be reduced to practice, as opposed to simply filing (i.e. "constructive reduction to practice"). This would keep patent trolls (which are not that prevalent) from simply filing, but also meet what I regard as a necessity of a new innovation -- i.e. to actually embody the invention in material form.

almost all patents are filed by people who do not actively reduce to practice. IBM, Intel, etc. all widely take advantage of the constructive reduction to practice presumption whcih is part of the idea of having to have an enabling and written and best-mode-disclosing written description of an invention that has utility. Of course, best mode is now eviscerated by Obama. You give no reasons for saying that innovation means "embodying" an idea in "mateiral form"--this is ridiculous. If you are a Randian genius and come up with a new method or design for some apparatus, why do you need to make a working copy? Why isn't a written description sufficient? The PTO's standards in this regard make perfect sense, if you take the patent system as a given.

With the investment necessary to do this, patent owners then have a vested interest in bringing the invention to market instead of sitting on it.

IF I invent someething why should I have to "bring it to market"?--why not just license it to some others? Ever heard of the division of labor? And if a patent is a real property right then what's wrong with licensing or selling it?

This alternative standard also gives a clearer standard of how to assess a new innovation, and what constitutes infringement.

Nonsense. You are using inside jargon to impress people, but this is complete bs.

I've been working on a law review article on this topic on-and-off for a few years that I would like to finish in the near future. I'll be sure to pass it on once it gets published.

I'll bet money you will never get it published in any reputable journal. You sound like a total hack.

As to the economic issues, I think there is a lingering assumption that patents are a drag on economic growth, but I have never seen an empirical study that validates the point.

You have to be kidding. First: the burden is on YOU to show that patents generate net wealth. http://blog.mises.org/3272/the... You guys trot out assumptions and arguments that say that they do--yet you have NOTHING to show this.

In fact there are no studies that go your way. They all are negative or inconclusive. It appears that the patent system costs hundreds of billions of dollars a year or maybe even trillions -- http://blog.mises.org/14065/co...

http://c4sif.org/2012/04/softw...

In fact, the empirical evidence indicates otherwise. As Japan began to innovate and move towards a first world economy, they had to assume greater patent protection and had to adjust their patent system accordingly.

Correlation is not causation. This should be elementary. Japan had more western style laws like antitrust, income tax, and the like as well during this time. Are they the cause of prosperity?

The same is happening with China right now, as you can only get so far by biting off the hand that feeds you (i.e. copying IP and selling it cheaper). During the Great Depression, patents significantly dwindled.

Correlation is not causation. http://c4sif.org/2012/04/uspto...

These are not coincidences,

how do you konw?

as the foundation of economic growth is strong protection for property rights.

assertion. you have to have property rights assigned justly. in antebellum US there were property rights in human slaves. So what?

I generally favor a longer patent term.

Shocking for a patent lawyer to have this view!!!

The purpose of patents is to allow the owner to capitalize on their innovation,

how do you know what "the" "purpose" is? The stated statutory purpose is to encourage disclosure of things that would otherwise be kept secret.

and this can take a long time, especially for pioneering inventions. It may take 15, 20, or more years for a chemical company to recoup the investment in a new plant. Since you cannot know a priori how pioneering an invention or how much investment it takes to bring it to market, I think the law needs to take account of these longer time frames, as those usually are the most valuable inventions.

Sooo.... the goal of the law is not justice or property rights, but to adjust incentives to ensure that there is "enough" innovation and that competition is suppressed for a long enough period to make a given investment--in the face of what would otherwise be competition--profitable.

Therefore, I favor setting a longer time frame of 15-20 years to take account of the fact that it may take that long for something like a chemical company to recoup their investment in a new plant.

Sounds very "objective"!

Michael

Richard Goode's picture

Richard, I thought you abandoned the site because of the policy issue? What happened to that?

Linz is not enforcing the policy. That means that calling you dishonest is like smoking marijuana in Holland. Been there, done that.

Solo Does Not Allow...

Michael Moeller's picture

Links to prior pages of a thread, at least I don't know how to do it, but I gave the time and date of the posts. The links to the two on this page are here and here. That's at least 4, Goode. Count'em, if you can.

Secondly, patent cases are the province of civil law. There is no "deadly force", you idiot. Law enforcement would merely shut down the operation and the infringer would pay damages.

Lastly, if you bothered to read my posts, it is the second inventor who is in the position of force against the first inventor. He is infringing the exclusive right to use, possess, and dispose of the product of his effort when he brings the product to market. It follows a basic principle of property law; namely, first-in-time, first-in-right. I explained this in detail in my previous posts, and you are welcome to rebut the arguments.

And further, say you disagree with that argument, why is granting rights in the second inventor not a viable alternative? No answer has been given thus far, but I sure you will give it a shot! (*cackle*) It would be a clear case of concept-stealing to allow the second inventor to gain rights against the first inventor based on his inventive activity, but deny the first inventor rights in the property based on his inventive activity. Totally illogical, but I am sure you support it Goode.

Michael

Ha!

Michael Moeller's picture

Richard, I thought you abandoned the site because of the policy issue? What happened to that?

Ah, but you cannot pass up an opportunity to buttress a personal attack on me, I see. Yes, you would reappear for such an occasion. Cretins of World Unite!

Your "Whack-a-Moeller" was quite funny though. I guess when you cannot argue something, you must repair to alternatives to vent your inadequacies and frustrations. Understood.

Michael

Michael

Richard Goode's picture

I addressed why the second inventor should not be granted patent rights here (Page 1, post on Fri, 2012-04-20 20:56), here (Page 1, post on Fri, 2012-04-20 20:56), here, and here.

Two of your links are the same and one of them is broken.

That's at least 4 times now

That's twice.

Why is deadly force justified against the second inventor who didn't intentionally copy?

Shayne

Richard Goode's picture

Who here prefers to watch a mudslinging fest between Michael and me? And who prefers to see Michael do his heroic best and actually explain for all of us why deadly force is justified against the second inventor who didn't intentionally copy?

The latter.

You've got Michael tagged.

For the Record

Michael Moeller's picture

I addressed why the second inventor should not be granted patent rights here (Page 1, post on Fri, 2012-04-20 20:56), here (Page 1, post on Fri, 2012-04-20 20:56), here, and here.

That's at least 4 times now, and Shayne has made no attempt to rebut. Apparently he cannot read.

Not only that, he has not addressed why: (1) granting the second inventor patent rights is not a viable alternative, thus mooting his "initiation of force" argument, (2) what about situations where the second person does NOT independently invent but merely copies, and (3) his stance on copyright. This does not even begin to count all the side issues he brought up (eg. my credentials, my financial interest, empirical evidence that patents do not retard economic growth, etc etc.) that he subsequently ran away from when he could not argue the case.

He has weaseled out each time, while at the same time ignoring that I addressed the second inventor argument at least 4 times now. I would say he has monumental chutzpah, but his evasion and distraction is obvious, and pathetic. Why he continues on this way, I really have no idea. Total cretin.

Michael

Where's Waldo?

Shayne Wissler's picture

Don't tell us that you have no proof but are attacking second inventors anyway. I think I'm going to call you Waldo until you can offer this alleged "proof" of yours. Might be a high school insult but you've definitely earned it.

Hopefully this doesn't turn out like Fermat's Last Theorem.

High school insults

Shayne Wissler's picture

He's constantly resorting to high-school insults and calls me "unhinged." Will the irony never end?

Hey Waldo, where's your proof? Just post a link, not more nonsense please. Thanks.

Clown

Michael Moeller's picture

Shayne wrote:

"Evidently the journalist disagrees with Michael's characterization."

You posted the evidence to dispute my point, and when I debunk the evidence, Shayne retreats to "the author disagrees!" as a rebuttal. Whenever Shayne gets called out, he takes no responsibility for what he posts. Then he proceeds to treat his own posts as insignificant and/or irrelevant. Pathetic cretin.

This is getting tiresome. As is obvious to anybody reading the thread, I've rebutted Shayne's arguments over and over again. He has no comeback and can't answer simple questions, so he just repeats himself and screams all kinds of things as loud as he can.

The guy is becoming seriously unhinged, and would be well advised to get lost. But apparently Shayne has no shame in making a fool of himself. So be it.

Michael

Kinsella...

Michael Moeller's picture

Rand made a mistake about the US (until next year) being a first-to-invent system, so? The merits of first-to-file vs. first-to-invent was not her argument for patent rights. She argued based on the right of the inventor to the products of his mind. And those copying said invention are infringing the exclusive right to use, possess, and dispose of this invention, in the same way one assumes property rights through effort when they put unclaimed land to use. Her mistake on first-to-file has no bearing on this philosophical argument.

And you have a queer idea of "competition". You are using "competition" as a floating abstraction. One does not "compete" for the use and possession of one's own property! Under this theory, the thief would not be liable for stealing my watch, but I would be restricting his "competition" by sending law enforcement after him when he goes to sell it.

Rand gave her justification for IP rights as a form of property, and Kinsella needs to state why her conception is flawed and not property. Sweeping it under the rug of some elastic notion of "competition" ain't going to get the job done, unfortunately.

Michael

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