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Do Business Without Intellectual Property (Liberty.me, 2014)

My monograph Do Business Without Intellectual Property was released by Liberty.me earlier this year. The PDF file is here.

I release this material, insofar as legally possible (see Copyright is very sticky!), with a CC0 “no rights reserved” license.

The Table of Contents is listed below. A Liberty.met seminar discussion of these topics  is available at “Practical Solutions to the IP Trap.”

[Update: Liberty.me discussion forum about this topic.]

Table of Contents

  • INTRODUCTION 3
  • WHAT IS IP? 5
  • WHY DO BUSINESSES NEED TO CARE ABOUT IP? 5
  • SHOULD WE ABOLISH IP? 6
  • IP VERSUS PROPERTY RIGHTS 7
  • HISTORY OF PATENT AND COPYRIGHT LAW 9
  • INTELLECTUAL PROPERTY IS CONTRARY TO FREE
  • MARKETS AND HUMAN FREEDOM 10
  • WHY DOES IP PERSIST? 12
  • IP, INNOVATION, AND FREEDOM 13
  • WHAT SHOULD YOU DO? 14
    • First, Do No Harm 14
    • But While IP Exists … 15
    • To IP or Not to IP 16
    • Steps You Can Take Now 17
  • EXAMPLES OF IP CONTRARIANISM 18
  • PUBLISHING AND COPYRIGHT 19
    • Music without Intellectual Property 21
    • Inventing without Intellectual Property 21
    • Dying without Intellectual Property 21
    • Patents 22
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{ 10 comments… add one }
  • Christoffer Thomsen October 28, 2014, 12:53 pm

    I recall you denouncing CC0 in the past. What changed your mind about it?

    • Stephan Kinsella October 28, 2014, 1:28 pm

      I didn’t denounce it, I just expressed skepticism over its legal efficacy. I finally added it out of exasperation with people who do not understand the law and who constantly badger me about it. So I did it to quiet these critics, so that I don’t have to waste time in arguments about IP talking about whether I’m a “hypocrite” or not. They simply seem to be incapable of understanding that using CC0 may be less reliable than CC-BY, but maybe I can get on to substance instead of wasting time on this issue.

      • Christoffer Thomsen October 28, 2014, 2:48 pm

        >I didn’t denounce it, I just expressed skepticism over its legal efficacy.

        You’re absolutely right, saying that you “denounced” it was definitely hyperbolic in retrospect.

        >I finally added it out of exasperation with people who do not understand the law and who constantly badger me about it. So I did it to quiet these critics, so that I don’t have to waste time in arguments about IP talking about whether I’m a “hypocrite” or not.

        Although I am a proponent of CC0, I definitely do not consider permissive licenses to be hypocritical to use for an anti-IP libertarian. CC-BY does apparently have a minor problem (something about prohibiting DRM that prevents others from exercising the CC-BY license or something like that), but it’s essentially fine and it’s a very well known and basically understood license, so I don’t mind it. I’ve never heard of the few requirements of the license being enforced by anyone anyway.

        >They simply seem to be incapable of understanding that using CC0 may be less reliable than CC-BY

        I’ve never quite understood why that would be, but I am most certainly a layman. I’ve read the full text of the CC0 document many times and to me it makes perfect sense. This is my understanding of the CC0:

        1. Attempt to place the work into the public domain with two paragraphs of legalese, so its purpose is clear (even if it isn’t legally valid) to even the most dim-witted person.
        2. In the event that 1 doesn’t work (for whatever reason), grant a fully-permissive license.

        As I said previously, I am a layman, not a lawyer, but I’ve never read a satisfactory explanation of why the above wouldn’t work. If a jurisdiction doesn’t allow copyright holders to relinquish copyright in a work (which from my understanding is common or at least a grey area), wouldn’t the all-permissive license work just fine anyway?

        If you don’t mind, please explain this to me or point me to a text that does.

        >but maybe I can get on to substance instead of wasting time on this issue.

        I apologize if my question bothered you, I just find copyright licenses (and “unlicenses”) very interesting for some reason.

        • Stephan Kinsella October 28, 2014, 3:16 pm

          If CC0 were as reliable and easy to use as CC-BY, I think there might be some hypocrisy in my opposing IP but choosing CC-BY over CC0. The reason I usually prefer CC-BY is because it appears to do a better job of tying my own hands. It is for the benefit of the person who wants to use it.

          My last comment was not directed at you. I was explaining why I adopted the license.

          As for why CC0 is not guaranteed to work–well I am not even sure CC-BY works. IT’s hard for the “licensee” to prove, for one. What if I just take the license down after someone already relied on it? How can they prove I “used to” have a notice up? There is no signed agreement, no record.

          CC0 is worse: there is no consideration; it violates some national laws on “moral rights” or inalienability, apparently–even the CC foundation warns that CC0 may not be enforceable everywhere: “Dedicating works to the public domain is difficult if not impossible for those wanting to contribute their works for public use before applicable copyright or database protection terms expire. Few if any jurisdictions have a process for doing so easily and reliably. Laws vary from jurisdiction to jurisdiction as to what rights are automatically granted and how and when they expire or may be voluntarily relinquished. More challenging yet, many legal systems effectively prohibit any attempt by these owners to surrender rights automatically conferred by law, particularly moral rights, even when the author wishing to do so is well informed and resolute about doing so and contributing their work to the public domain….

          ” And while no tool, not even CC0, can guarantee a complete relinquishment of all copyright and database rights in every jurisdiction, we believe it provides the best and most complete alternative for contributing a work to the public domain given the many complex and diverse copyright and database systems around the world.”

          Further, CC-BY works by just putting the CC-BY notice on the work; but my understanding is a complicated process is needed to use the CC0 tool correctly (which no one does, as far as I can tell).

          https://creativecommons.org/about/cc0

          I go into more detail here:
          http://c4sif.org/2012/10/copyright-is-very-sticky/

          • Christoffer Thomsen October 28, 2014, 4:05 pm

            Thank you for elaborating on the problems of CC0.

            >CC0 is worse: there is no consideration; it violates some national laws on “moral rights” or inalienability

            Yes, but would that invalidate the entire document in a court even if it explicitly states that “should any part of the Waiver for any reason be judged legally invalid or ineffective under applicable law, then the Waiver shall be preserved to the maximum extent permitted taking into account Affirmer’s express Statement of Purpose.”?

            >As for why CC0 is not guaranteed to work–well I am not even sure CC-BY works. IT’s hard for the “licensee” to prove, for one. What if I just take the license down after someone already relied on it? How can they prove I “used to” have a notice up? There is no signed agreement, no record.

            That’s a good point, one that affects all public licenses. The best solution I can think of is signing a statement stating that you release the work under the terms of the CC0 and including the full text of it with PGP or a similar system, and for each user of the work to verify and save this signed message. Users could also take a screenshot or print the official webpage on which the author licenses the work, if there is such a page. Public web archives such as archive.org’s Wayback Machine could also be used, perhaps as a complement to taking a screenshot or printing the page.

            The signed license method would of course be much more difficult to fake, but it would require that the author’s public key be well known. Otherwise anyone could sign such a statement with a key they’ve generated themselves.

            >Further, CC-BY works by just putting the CC-BY notice on the work; but my understanding is a complicated process is needed to use the CC0 tool correctly (which no one does, as far as I can tell).

            CC0 does not require the use of the tool Creative Commons provides. It is simply a tool for generating some HTML with some microdata to make it easier to search for content under certain licenses. They have a similar tool for their regular licenses. The CC0 tool does have a few more steps and it requires you to click a checkbox saying that you’ve read and agree to the terms of the CC0, but they do not register any of it anyway.

          • Stephan Kinsella October 29, 2014, 2:25 pm

            Thank you for elaborating on the problems of CC0.

            >CC0 is worse: there is no consideration; it violates some national laws on “moral rights” or inalienability

            Yes, but would that invalidate the entire document in a court even if it explicitly states that “should any part of the Waiver for any reason be judged legally invalid or ineffective under applicable law, then the Waiver shall be preserved to the maximum extent permitted taking into account Affirmer’s express Statement of Purpose.”?

            I’m not sure. Maybe. I hope not. That’s what I tried to do by my complicated “savings clause” language. This whole thing is a morass–the state does not even allow us to easily opt out of copyright.

            >As for why CC0 is not guaranteed to work–well I am not even sure CC-BY works. IT’s hard for the “licensee” to prove, for one. What if I just take the license down after someone already relied on it? How can they prove I “used to” have a notice up? There is no signed agreement, no record.

            That’s a good point, one that affects all public licenses. The best solution I can think of is signing a statement stating that you release the work under the terms of the CC0 and including the full text of it with PGP or a similar system, and for each user of the work to verify and save this signed message. Users could also take a screenshot or print the official webpage on which the author licenses the work, if there is such a page. Public web archives such as archive.org’s Wayback Machine could also be used, perhaps as a complement to taking a screenshot or printing the page.

            But this is a kluge. Wayback cannot be counted on, and its evidentiary validity is questionable. And you cannot count on people to make screenshots and keep them. And you cannot expet the author to use a complicaetd PGP thing even once, much less for every work.

            The signed license method would of course be much more difficult to fake, but it would require that the author’s public key be well known. Otherwise anyone could sign such a statement with a key they’ve generated themselves.

            Yes but this is just not practicable.

            >Further, CC-BY works by just putting the CC-BY notice on the work; but my understanding is a complicated process is needed to use the CC0 tool correctly (which no one does, as far as I can tell).

            CC0 does not require the use of the tool Creative Commons provides.

            How do you know this, exactly? I was unclear about this.

            It is simply a tool for generating some HTML with some microdata to make it easier to search for content under certain licenses. They have a similar tool for their regular licenses. The CC0 tool does have a few more steps and it requires you to click a checkbox saying that you’ve read and agree to the terms of the CC0, but they do not register any of it anyway.

            WEll I just do not trust it. And I suspect there is a reason almost no one appears to be using it–too complicated.

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