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Wenzel on Copyright and Patent

In Paul Allen: I Patented Silicon Valley Years Ago, Robert Wenzel, who claims to charge $750 for a 10 minute phone conversation, also claims he is going to write a book on his view of copyright and patent. His basic idea seems to be that some form of intellectual property right should be granted for independent creation, not for first creation. As I noted in the comments, he doesn’t seem to have a good grasp of IP law at all, and his argument is weak and confused. Copyright already does what he wants so does not need to be reformed. He seems to think trademark can be subsumed under copyright or patent even though trademark is based on fraud and has to do with identifying the source of a good or service, not with creating an original work of authorship or a practical invention as per copyright and patent law.

I reproduce various of my comments below. He has also made pro-IP comments and criticized me and Jeff Tucker previously–see links appended below:

Stephan Kinsella said…

This sounds like a confused view of things. First, it’s not patent AND copyright that are based on who is first–this is only the case for patent. Copyright already is based on originality. Under copyright law it’s theoretically possible for multiple independent creators to have their own copyrights to the same work–if they all came up with it on their own. It’s just that this is very unlikely.

As for patent, it’s not really based on the first to invent. It’s based on first to file in most of the world. In the US it’s sort of based on first to invent–but not really. It’s possible to get a patent on something that someone else has been using (in secret) for decades.

Even if you allow “patents” only for “independent” inventions, this is fraught with problems. First, it’s arbitrary in that it would protect a guy B who (independently) re-invents a product X a month after A patents it, but then C who was on the cusp of it, but who sees A’s patent right before he finalizes his re-invention, is unable to invent it now b/c he has been “tainted” with information from A’s patent. This makes no sense at all.

But a more serious problem is this whole scheme of yours to find a way to have a “fair” idea-monopoly grant is based on the presumption that we should have innovation-monopoly grants in the first place. What nonsense. It’s not a “problem” to be solved that people can learn. Learning and emulation are good things.

August 29, 2010 5:45 PM

Robert Wenzel said…

Well, you will agree, won’t you that if I am not willing to allow anyone to use the idea for less then a payment of $50 to me, that anyone using the idea in say a book should be stopped from doing so unless they pay me $50?

Otherwsie how is this different from someone who rents my car for a day and then turns around and rents it out for a year? Shouldn’t the car be returned to me ASAP or do I have to sit around for a year because the person who had no authority to rent the car for a year rented it out for that period?

August 29, 2010 5:46 PM

Stephan Kinsella said…

Wenzel: “I grant that Jefferson does hold your view. However, I do believe it is incorrect. If I have an idea and go to you and say, “I will tell you my idea under two conditions: 1. You pay me $50 and 2. You must reveal my idea to no one.”

Now we have two people with the idea, are you advocating that this contract be broken or ognored? ”

First you need to be clear on what your theory of contract is: is it merely a payment of damages (title transfer) that is triggered by the revealing of the idea? Or is it some kind of trespass?–with assocatiated damages?

In either case, third parties are not bound by this agreement. If a third party uses information to manipulate his own property he does not breach any contract with “the” “originator” of “the” information, nor invade the borders of the “originator’s” property. This is all nonsense and hocus-pocus talk.

August 29, 2010 5:47 PM

Stephan Kinsella said…

“Well, you will agree, won’t you that if I am not willing to allow anyone to use the idea for less then a payment of $50 to me, that anyone using the idea in say a book should be stopped from doing so unless they pay me $50?

Otherwise how is this different from someone who rents my car for a day and then turns around and rents it out for a year? Shouldn’t the car be returned to me ASAP or do I have to sit around for a year because the person who had no authority to rent the car for a year rented it out for that period? ”

no no no. the car is a scarce resource, owned by the owner. information is not. to say it is, is question-begging.

August 29, 2010 5:59 PM

Robert Wenzel said…

@Stephan Kinsella

This sounds like a confused view of things. First, it’s not patent AND copyright that are based on who is first–this is only the case for patent. Copyright already is based on originality. Under copyright law it’s theoretically possible for multiple independent creators to have their own copyrights to the same work–if they all came up with it on their own. It’s just that this is very unlikely.

Thank’s for the correction. It’s good to see at least the copyright law taking my view. Although I am a bit confused when, for example,then-Los Angels Laker’s coach Pat Riley copyrighted the word “ThreePeat”. In my world this would be a waste of time since how could Riley prove that I didn’t come up with the term on my own.

As for patent, it’s not really based on the first to invent. It’s based on first to file in most of the world. In the US it’s sort of based on first to invent–but not really. It’s possible to get a patent on something that someone else has been using (in secret) for decades.

Even if you allow “patents” only for “independent” inventions, this is fraught with problems. First, it’s arbitrary in that it would protect a guy B who (independently) re-invents a product X a month after A patents it, but then C who was on the cusp of it, but who sees A’s patent right before he finalizes his re-invention, is unable to invent it now b/c he has been “tainted” with information from A’s patent. This makes no sense at all.

This wouldn’t be a problem in my world since as I note, if my world comes about inventors would leave a trail as to the work they are doing on inventions. If inventor C starts looking at patents rights where he is doing work, of course he should be banned from a patent on the same material. It would be a dumb thing for him to do.

I believe this is the reason for example that comedians and late night show hosts send back material unopenned just so they don’t get into such a pickle, i.e. stealing someone elses material they supposedly saw.

But a more serious problem is this whole scheme of yours to find a way to have a “fair” idea-monopoly grant is based on the presumption that we should have innovation-monopoly grants in the first place. What nonsense. It’s not a “problem” to be solved that people can learn. Learning and emulation are good things. I’m not working from the premise of “innovation monopoly grants” I am working from the premise of individual contracts that if I create a product, be it a novel or some other product, that I have the right to stipulate in my contract the conditions under which the product can be reproduced. In my world, I recognize that an automobile, for example, that I may create will be emulated, just as the invention of the wheel or fire may be emulated.

It is more products that are clearly the product of a specific person, such as a song or a novel, that in my view contracts can be binding based on the wishes of the creator of the product.

August 29, 2010 6:48 PM

Robert Wenzel said…

@Stephan Kinsella

This is all nonsense and hocus-pocus talk.

I’m not sure how strong an argument this is.

Back to my point:

Let me ask you this. In your world, if someone who has access to an upcoming major motion picture only under the condition that he not reprodouce it, then goes and reproduces and sells it to you, do you then have the right to sell it? More interesting, can you then create a contract with another person whereby you include in that contract that you are providing the reproduction only under the terms that the person does not reproduce it?

August 29, 2010 7:01 PM

Robert Wenzel said…

I should add that I believe what Riley technically did was register “Three-Peat” as a trademark. However in my world everything would be either patent or copyright, with trademarks falling under copyright, as a kind of special case. That said I would find it very difficult for him to defend such a copyright (in my world), since it would be near impossible for him to prove the term was stolen.

August 29, 2010 9:25 PM

***

My (somewhat edited) replies:

This sounds like a confused view of things. First, it’s not patent AND copyright that are based on who is first–this is only the case for patent. Copyright already is based on originality. Under copyright law it’s theoretically possible for multiple independent creators to have their own copyrights to the same work–if they all came up with it on their own. It’s just that this is very unlikely.

Thank’s for the correction. It’s good to see at least the copyright law taking my view. Although I am a bit confused when, for example,then-Los Angels Laker’s coach Pat Riley copyrighted the word “ThreePeat”. In my world this would be a waste of time since how could Riley prove that I didn’t come up with the term on my own.

This is too short for copyright–that’s why you can see movies or novels use the same title sometimes. I think you mean trademark. Further, copyright is not a verb–it’s not something the creator applies for or plays a role in creating. You don’t need to register it with the copyright office; doing so is neither necessary nor sufficient to create copyright. Same thing with putting a copyright notice on your work: it’s neither necessary nor sufficient to create copyright. Copyright is granted to the author automatically, regardless of whether he wants it or not, and it’s not easy to even get rid of it (see my post Copyright Is Very Sticky! ).

There is no libertarian rationale whatsoever to give someone a monopoly on the use of a pattern or information that guides their use of their own property. In any case, you are confused. This is trademark, not copyright. You can’t “copyright” something–it’s not a verb. You are automatically granted a copyright in original works of authorship fixed in a tangible medium of expression, as soon as you do it. Whethre you want it or not. Short phrases, words, titles are considered too short for copyright protection; this is a trademark issue. Trademark has nothing to do with patent and copyright; it is based on the idea of fraud. Patent and copyright are not.

“Even if you allow “patents” only for “independent” inventions, this is fraught with problems. First, it’s arbitrary in that it would protect a guy B who (independently) re-invents a product X a month after A patents it, but then C who was on the cusp of it, but who sees A’s patent right before he finalizes his re-invention, is unable to invent it now b/c he has been “tainted” with information from A’s patent. This makes no sense at all.

This wouldn’t be a problem in my world since as I note, if my world comes about inventors would leave a trail as to the work they are doing on inventions. If inventor C starts looking at patents rights where he is doing work, of course he should be banned from a patent on the same material. It would be a dumb thing for him to do.

I don’t think you understand how patents work. This is understandable as it’s a complex, technical, arcane area of law–I see this all the time: laymen have strong opinions about a system they don’t even understand. I’m not talking about the second guy getting a patent. It’s just his right to use his property as he sees fit. You don’t need a patent to do that. Patents don’t grant anyone any permission anyway. They only give you a bludgeon to use against others. NOt the right to do anything at all with your own property.

I believe this is the reason for example that comedians and late night show hosts send back material unopenned just so they don’t get into such a pickle, i.e. stealing someone elses material they supposedly saw.

No. This has nothing to do with patents or inventions. Now you are apparently talking about copyright.

Comedians don’t get invention submissions. You must be thinking of some copyright scenario. It has nothing to do with patents or inventions. As for your example of inventor C not getting a patent on “the same material” (whatever that means), my comment has nothing to do with C getting a patent, but rather with C not being able to use his own property as he sees fit. In your cobbled together idea of IP rights, if B “independently” invents something A has a patent on, B can not only use this invention, he can even get a patent on it. But C, who learns of A’s product before C has a chance to independently invent it, not only can’t get a patent on the invention, but he can’t use his own property according to these ideas: he can’t even rearrange or reshape or use his own property in certain ways that are prohibited by A’s (and B’s?!) patent. This is absurd and unlibertarian.

But a more serious problem is this whole scheme of yours to find a way to have a “fair” idea-monopoly grant is based on the presumption that we should have innovation-monopoly grants in the first place. What nonsense. It’s not a “problem” to be solved that people can learn. Learning and emulation are good things.

I’m not working from the premise of “innovation monopoly grants” I am working from the premise of individual contracts that if I create a product, be it a novel or some other product, that I have the right to stipulate in my contract the conditions under which the product can be reproduced.

You use “stipulate” like it’s some magic wand type word. What does “stipulate” even mean, and what does it have to do with assigning title to owned scarce resources (which is what contracting does)? You apparently are not aware of the limitations of contract. IP requires third parties to be bound. Contracts can’t do this.

In my world, I recognize that an automobile, for example, that I may create will be emulated, just as the invention of the wheel or fire may be emulated.

… so… if I read you right, you agree there is no IP.

But a more serious problem is this whole scheme of yours to find a way to have a “fair” idea-monopoly grant is based on the presumption that we should have innovation-monopoly grants in the first place. What nonsense. It’s not a “problem” to be solved that people can learn. Learning and emulation are good things. I’m not working from the premise of “innovation monopoly grants” I am working from the premise of individual contracts that if I create a product, be it a novel or some other product, that I have the right to stipulate in my contract the conditions under which the product can be reproduced. In my world, I recognize that an automobile, for example, that I may create will be emulated, just as the invention of the wheel or fire may be emulated.

I can’t tell what you are in favor of here. You seem to favor use of contract between seller and buyer to try to create some kind of simulation of IP rights. You also seem to recognize that third parties can and may emulate your ideas. IP, of course, has to bind third parties. If it doesn’t, it is not IP but just contract. And contract cannot bind third parties. It cannot be used to set up a type of IP system.

It is more products that are clearly the product of a specific person, such as a song or a novel, that in my view contracts can be binding based on the wishes of the creator of the product.

Contracts don’t bind third parties. Thus your idea fails.

This is all nonsense and hocus-pocus talk. I’m not sure how strong an argument this is.

I am. The burden is on you to justify the insane system of IP law. Now you, like most IP advocates, seem to be saying you don’t believe in modern IP law as it’s instantiated. And you clearly don’t understand IP law at all… even though you claim you’ll write a “book” on it. You seem to have strong opinions about a system you don’t really favor and that you don’t really understand. I guess I don’t have really disagree with the IP system you advocate since I have no idea what it is.

Let me ask you this. In your world, if someone who has access to an upcoming major motion picture only under the condition that he not reprodouce it, then goes and reproduces and sells it to you, do you then have the right to sell it?

You can’t technically “sell” a patttern of information since you can’t own it. But you can do anything in life in general that does not invade the borders of (trespass against) the property of others. If someone agrees to transfer money to you on the condition that you perform certain rightful actions, this violates no rights. If you have information you are of course free to act on that information.

More interesting, can you then create a contract with another person whereby you include in that contract that you are providing the reproduction only under the terms that the person does not reproduce it?

You can create whatever contract you want. Doesn’t mean it’s magic. If you have a secret–say, you are a closet homosexual and no one knows it–and you reveal this to a friend under some kind of solemn promise of secrecy, and he breaches it–so what if it’s a breach of contract? So what if you can sue him for money damages. The world now knows you are gay. Are they supposed to pretend like they don’t know this now?

I should add that I believe what Riley technically did was register “Three-Peat” as a trademark. However in my world everything would be either patent or copyright, with trademarks falling under copyright, as a kind of special case. That said I would find it very difficult for him to defend such a copyright (in my world), since it would be near impossible for him to prove the term was stolen.

Trademark is a species of copyright now? But this makes no sense. Trademark is based on consumer confusion–misidentification of the source of goods. It’s based on fraud. Copyright, even in your imagination, is based on being some kind of independent creator of a pattern. A trademark, to work, need not be original at all. It is just a way of identifying who is selling or making something. What in the world does this have to do with copyright? How can you write a book on IP knowing so little about IP??

***

From Mises Institute: Do As They Say, Not As They Do?

Stephan Kinsella said…
Mr. Wenzel,

You suggest that people who oppose IP ought to “pull” it. I am not sure exactly what kind of advice this is, since you appear to believe in IP, so you seem to be trying to make some kind of consistency advice.

I have begun to use the CC Atribution 3.0 license–on my journal, Libertarian Papers, for example. This allows others to use the work even for commercial uses, even to create derivative works, etc.–the only condition is attribution. I don’t think anyone minds this in the first place.

Now you seem to suggestion one “ought” (to be consistent?) “pull” the copyright. Well, what else ought I do? I could “attempt” CC0, too–but I’ve explained here why I don’t think this new, experimental technique won’t work. “Pulling” the copyright won’t work either–just saying you don’t have or won’t assert a copyright does not mean you don’t have copyright, and does not mean you won’t assert it. When people re-publish or use a copyrightd work, they need something legally effective that they can rely on. It’s not clear that CC0 would work. Some half-assed, layman’s amateur attempt to “pull” his copyright also won’t work. I suppose I could have a laundry list attempt to get rid of my copyright: I could do Attribution license; a viral Attribution-Share-Alike “copyleft” License; in conjunction with CC0; plus a faux-promise “not to enforce” my copyright, and an email address inviting people to write me. Or, I could simply personally “adopt” the policy of never actually suing people for copyright infringement even if they do it.

Yes, I could do all this, but it might make things worse–such a confusing situation to deal with and analyze. A simple, clean CC Attribution Only is just fine. Virtually everyone is happy to give attribution credit, so this condition is trivial, thus making CC Attribution the closest reliable thing to a copyright disclaimer.

As an example, if I were publishing a book and wanted to include article X, I would much rather it be subject to a CC 3.0 Attribution license than CC0 or having some half-assed author-scribbled note on their web page, “I Hereby Exercise My COMMON LAW RIGHTS AS A FREEMAN to PULL my cOPYRIGHT”. Why? Because this latter is just a statement; it is likely legally ineffective, except perhaps for setting up an equitable estoppel defense that I might be able to assert as a defense in a lawsuit… and the CC0 might turn out to be ineffective. Since I WANT to put the author’s name on it, i.e. give attribution, the CC Attribution license imposes NO real conditions on me at all; I am free to do what I want. I would rather have a CC Attribution license that I can rely on, even if it imposes on me the draconian condition that I provide the author’s name! Than a CC0 or poor-man’s-crank-license that are legally shaky and unreliable.

So, thanks for your legal advice, but I think it’s wanting.

I really fail to see how it harms you that some of us are voicing our views as to the problems with IP (problems an increasing number of libertarians and young people are waking up to), or with releasing our works virtually copyright free to the public.

Respectfully–

January 24, 2009 10:05 AM

Robert Wenzel said…

Mr. Kinsella,

Thank you for your thoughtful legal perspective. I believe you truly are attempting to be consistent.

Given that I am interested in publishing the book, Last Knight and that the copyright is held by the Mises Institute, where Jeffrey Tucker is aggressively promoting your view on the there being no such thing as “intellectual property”, how do you suggest I approach them so that I can start publishing Last Knight without fear of a lawsuit by MI?

January 24, 2009 2:32 PM

Stephan Kinsella said…

Dear Mr. Wenzel,

“Given that I am interested in publishing the book, Last Knight and that the copyright is held by the Mises Institute, where Jeffrey Tucker is aggressively promoting your view on the there being no such thing as “intellectual property”, how do you suggest I approach them so that I can start publishing Last Knight without fear of a lawsuit by MI?”

I’m not in the market to obtain more clients at present, so won’t be handing out advice here, except to say that in such a case I would just be serious, and not make an eristic demand just to try to score points in an argument.

January 24, 2009 6:48 PM

***

See also A “Bullshit” Response from Jeffrey Tucker:

Jeffrey Tucker said…

When you are serious about reading this book I keep recommending, write me again. As it is, you write and write and write and attempt little tricks to score cheap little points. This is serious business. I beg you to read and think more. There are new ideas in the universe and this is one of them. Moreover, it is an extension of everything that Mises stood for: he loathed state privilege, and wrote passionately against patent, as did many classical liberals.

Reading, thinking, reflecting: these are much more productive undertaking than gotcha games.

And yes, I do apologize for my language. My only defense is that I hope that readers take the challenge seriously, and show evidence of thinking and intellectual work.

By the way, I notice that you didn’t ask permission before reprinting my legally copyrighted email. In my opinion, that’s fine. Apparently you think so too. Who is the hypocrite?

January 24, 2009 9:27 AM

Stephan Kinsella said…

Bob, re your comments criticizing the view that it’s not immoral to copy music: see this post, Remix Culture (with apologies to Larry Lessig), stating, in part:

“Larry brought up an interesting point, which I will paraphrase in the form of my own example. I am personally in favor of legalizing heroin – I think illegalization has been a horrible failure that has done far more harm than good. I am also strongly opposed to people using heroin – I know heroin addicts, and it is not a fate I would wish on anyone. So I approve the goal implicit in illegalizing heroin, even while I think it is a bad law. Copying is completely different. Copying and imitation are unambiguously a good thing that produce rather than destroy value. This is especially important when imitation adds value…the “remix culture.” There is no “symbolic value” in making copying illegal…and our prohibition against file sharing is not only useless, the message it sends is that intrinsically good activities – sharing, remixing, copying, imitating – are somehow wrong. EFF attorney Fred von Lohmann, who was also at the lunch, said that the first thing parents tell him when their children are being sued by the RIAA is “We know what he did was wrong…” It is sad that people should think that culture – sharing, remixing, copying and imitating – are wrong.”

January 24, 2009 10:11 AM
Stephan Kinsella said…
Mr. Wenzel,

Your argument here seems to be, “Jeff Tucker has not taken seriously my non-serious request for reprint permission, therefore copyrights is valid.”

Do you see how flawed this argument is? No action in life of Mr. Tucker has any bearing on whether IP is justified or not. He does not have the power to make IP legitimate (if it is not) by his actions.

You seem also to think that the fact that you have gotten your way, in that IP laws are in force, and that they are being imposed by your government on those of us who do not agree, meaning we have to navigate within a system that you yourself support, — you seem to think that the difficulties we anti-IP people face in finding ways to work within the very corrupt IP system that you support, somehow means IP is not corrupt. In other words, you want to force us to abide by the laws you and your side have been able to foist on us, and shut us up too–by turning us into hypocrites for having to live in the corrupt system you’ve forced us into.

This tactic is, in my view, despicable (though you perhaps don’t mean to do so explicitly); it is reminiscent of what smug lefties do when they attack any successful black man who opposes affirmative action, by showing that he probably received and benefitted from it so how dare he complain about it. Nice trick: impose a system on people that they have to go along with, and then call them a hypocrite when they disagree with it, since they happen to have had the system foisted on them. Sort of like a catch-22.

January 24, 2009 6:54 PM

Robert Wenzel said…

@ Stephan Kinsella

You really missed your calling, try comedy. Your style is a little dry, but maybe if you break watermelons with a judge’s gavel, you would draw them in.

You write:

Your argument here seems to be, “Jeff Tucker has not taken seriously my non-serious request for reprint permission, therefore copyrights is valid.”

Where do I begin with this absurd strawman. Oh yeah, how about your strawman doesn’t even have the timeline correct. How can my argument be that “Jeff Tucker has not taken me seriously.” When I wrote my initial argument before I even wrote to Jeff Tucker and had no idea how Tucker would respond when I did write to him raising my concerns in that first email.

Further, if you think my request to publish is not serious, then I suggest you urge Tucker et al to test me. Go ahead tell them I am not going to publish, that it is all a bunch of hot air.

Go ahead guys try it.

January 24, 2009 7:30 PM

***

Jeffrey Tucker, Again

A couple of you have emailed me to point out that Jeffrey Tucker is out with another attack on the rights of individuals and corporations to do as they please with what they produce. (Except, of course for Mises Institute books, specifically Mises: The Last Knight of Liberalism, where Tucker refuses to even discuss why I shouldn’t be granted the right to publish the book under his anti-copyright view of the world.)

I didn’t miss his piece. The errors in his thinking continue to pile up. In fact, there are so many that only a book will do justice to covering all of them.

I have been thinking about the relationship between the nature of property, property rights and government and have been planning to write a book on the subject, a few years down the road. However, Tucker’s aggressive promotion of totalitarian anti-copyright and anti-patent thinking is a subset of property, property rights and government that needs to be addressed now.

Thus, I have decided to put aside a number of other projects to specifically address , in book form, the Kinsella-Tucker fallacies.

I believe the proper libertarian understanding of property rights solves the problem of “intellectual property” protection for, say, even the tough situations, such as, rights for those that first discovered how to start a fire or were the first to use the wheel. And the solution is not open source marketing. I’ll cover all this and more.

The book is, for the most part, already “in my head” so it shouldn’t take long to put it to paper, just a little bit of additional research. When it is in print, you will be the first to know.

***

Here, Taylor Conant also see’s Wenzel’s confusion: Naked Trademark Battle:

So, unless Kinsella changed his tune (I don’t know where Tucker stands on “voluntary IP” such as trademarks and trade secrets), I think you may be confused.

It will be nice when you finally publish your IP book so we can all start taking swings at your IP views because right now it’s unclear what they are and why and everytime people try to critique them you insist we wait to read your book!

***

Finally, see Lew Rockwell on Intellectual Property and The State of the Intellectual Property Debate at LRC. He’s apparently been talking about writing “a book” in IP for a while now, and still doesn’t even get the differences between patent, copyright, and trademark, nor does he seem to realize why contracts are not and cannot create IP.

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