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Libertarian Patent Lawyer Defends Patent Law

From Mises blog; archived comments below.

No, not me. Michael F. Martin, a patent attorney with Drinker Biddle. The March 2010 issue of Liberty (which also features a letters exchange regarding my December 2009 Liberty article, Intellectual Property and Libertarianism) features the following guest reflection by Mr. Martin:

Sane and sound — “The hallmark of sanity is to remain firmly tethered to reality,” said the federal judge to the parties of a patent infringement litigation between a large Canadian computer company and a small, patent holding company (a.k.a. “patent troll”) after a jury had found the computer company liable for infringement. The computer company in question? Research In Motion, makers of the Blackberry. The case finally settled for $612.5 million.

That was March 2006. In May 2006 there followed the Supreme Court’s announcement of its decision in the case of eBay v. MercExchange. In eBay, the Supreme Court overturned the Federal Circuit rule that permanent injunctions should issue against patent infringers “absent exceptional circumstances.” Many large companies in the software industry, which tend to be defendants, have hoped that eBay would put an end to “patent trolls” and their own patent infringement liability. Indeed, since eBay only a handful of injunctions have issued to patent owners who do not practice their invention. “But,” wrote the Supreme Court in eBay, “traditional equitable principles do not permit such broad classifications.” And thus, just over three years later, on Dec. 22, 2009, the Federal Circuit upheld an injunction and award of $290 million in damages for patent infringement — this time to a small Canadian startup, i4i Inc. The defendant was Microsoft Corporation, maker of Microsoft Word, which had incorporated into its software an XML editor patented by the startup.

The difference between the cases? Unlike the “patent trolls” in the earlier cases against RIM and eBay, one of the inventors behind the i4i patents, Michael Vulpe, was also an entrepreneur, who had started a business to commercialize the patented concepts.

Although Vulpe’s apparent victory should be an occasion for rejoicing by libertarians (most of them, anyway) and other believers in strong property rights, one wonders what reality is faced by inventors without the desire or skill to become entrepreneurs.

Some might say the law has, at least for the moment, achieved a delicate balance between the exclusivity needed to encourage investment in new technology and the access needed to spread that new technology around. Others might say that a better way to determine what “reality” is most “sane” is to rely on private negotiations based on the principle of strong property rights. The eBay decision discouraged negotiation; the recent decision may lead to more negotiation and less litigation. — Michael F. Martin

Martin writes as if oblivious of the fact that libertarians are increasingly opposed to IP rights (see my Have You Changed Your Mind About Intellectual Property?; Against Intellectual Property; and other material here); as when he writes, “Vulpe’s apparent victory should be an occasion for rejoicing by libertarians (most of them, anyway) and other believers in strong property rights…” Vas…? We should rejoice that i4i was able to use the state-granted patent monopoly to impose millions of dollars of cost on Microsoft? Why? This presupposes that IP rights are legitimate “property rights.” (Not to excuplate Microsoft from charges of hypocrisy: see my post Microsoft Wants Galactic Patent. The recent case mentioned by Martin is i4i v. Microsoft.)

Let me go through Martin’s post in a bit more detail. First, his post implies that patent trolls are problematic (a patent troll was behind the $612.5 million Blackberry settlement), while actual inventors who have “commercialized” their own patent are good guys (Vulpe, the i4i inventor in the Microsoft case) and are justified in using their state monopoly grants to (legally) extort money from others. But patent trolls are not the problem at all (see my posts Patent Trolls and Empirical Thinking; Facebook Threatened by a Non-Patent Troll). The patent system does not require the patent owner to practice the patented invention or even to make an actual working model (see my “Reducing the Cost of IP Law“, where I recommend imposing working and reduction-to-practice requirements on patentees, which would reduce patent trolling; I don’t see Martin recommending this). Martin implies it’s good–and libertarian, supposedly–that “the recent decision may lead to more negotiation and less litigation”. What is libertarian about this? If the legal system grants clear, strong rights to a patentee to allow him to (legally) extort money from his victims, of course that may lead to “more negotiation” and “less litigation.” Why is this good? If the legal system makes it crystal clear that the victim will lose in court, thus reducing the need for wasted time in litigation, this is not good, if the victim’s losing is unjust.

In fact, this is exactly what happened in the Blackberry (RIM) case that Martin holds out as an example of injustice. In that case (see my post Woops, sorry, Blackberry!; also The Age of Technocide: RIM Pays Out Again Over Patents), RIM coughed up $612.5 million because of the possibility an injunction issuing–even though the patents in question were being re-examined at the US Patent Office. But even though it appeared likely they might be declared invalid a few months later, the courts were then operating under pre-eBay caselaw which made an injunction easy to get. In other words, the court in the RIM case was about to issue and order shutting down the Blackberry itself, even though the underlying patents’ validity was in question and being re-examined at the PTO. This would have ruined RIM. So it caved, paying a huge ransom to save the company. If there had not been a threat of injunction, RIM would certainly have just fought the case–instead of paying almost a billion dollars!–and maybe the patents would have been declared invalid, and they would have walked away $612.5 million richer. That’s why eBay was a good decision–for libertarians, at least, since it made injunctions less automatic, harder to get (see Woops, sorry, Blackberry!; I also discuss the eBay case in Radical Patent Reform Is Not on the Way). And that’s why in Reducing the Cost of IP Law I recommended the abolition of patent injunctions. Martin acts as if he opposes the Blackberry settlement, blaming it on patent trolls (but without advocating a working or reduction to practice requirement, which would limit trolling), while favoring the granting of injunctions which was the real cause of the outrageous injustice done to RIM. (For a discussion of the pro-patent approach of patent attorneys, see “The Silent Bar” section of Reducing the Cost of IP Law.)

I see here a libertarian patent lawyer who is taking it for granted that patents are legitimate property rights–presumably because he believes the law should grant a monopoly license to provide “the exclusivity needed to encourage investment in new technology.” Patents are not legitimate property rights. They are mercantilist, monopolistic abominations. Libertarians, including libertarian patent attorneys, should oppose the patent system.

[Mises; AM]

AM comments:

Comments

Thanks for mentioning this Stephan. I’ll pick up the March issue. I was kicked off Liberty’s subscription (!) list in early 1999 by the late Bill Bradford, in a Rand-like move, even though my subscription had six months to run. So Bradford stole money from me, if not much. I’ve since bought it at Barnes & Noble. He kicked me off after I complained, very mildly, about his editing of my article on Clinton’s fiscal demagoguery. As anyone who read the magazine during his time as editor knows, it was atrociously edited.I sent an article on IM to Liberty in 2006, but decided that it needed more work. My hard drive then crashed and I’ve never picked it up, even though I did recover it after some doing. I might come back to it.

 

I’ll admit that, at first, I was against the idea of NPEs “patent trolls” profiting from others’ innovations. Certainly, harassment and abuses of the patent system should be curtailed. However, after doing some research, I’ve come to think that most so-called “trolls” are doing nothing worse than many other companies. Notice that it’s generally the large corporations that get incensed about the trolls. Most NPEs don’t seem to be any worse than day traders, for instance.

archived comments from Mises post:

Comments (59) 

  • Mark HubbardMark Hubbard

    Libertarians should not sanction theft or enslavement. A strike against IP, is a strike against the liberty of the individual.

    http://blog.mises.org/archives/011509.asp#c655785

    von Mises would be appalled at what is being advocated by this site under his name.

    Every anti-IP thread here turns the business community away from us.

    ‘The [author] who produces while [file sharers ] dispose of his product, is a slave.’

    You advocate nothing less than the slavery of the individual to the tyranny of the many Mr Kinsella.

    Published: January 24, 2010 1:07 AM

  • scineramscineram

    What is Vas?

    Published: January 24, 2010 1:17 AM

  • Peter SurdaPeter Surda

    Dear Mark,

    Libertarians should not sanction theft or enslavement, just like they should not sanction extortion. Before you criticise an argument, it might be useful to getting yourself familiar with it.

    It is at possible that a businessman that bases his income on IP might be turned away by an anti-IP position. It is also possible that a farmer might dislike an anti-subsidy, a banker an anti-bailout, or a steel producer an anti-tariff stance. If you consider this important, feel free to say so, but that is no reason to call your opponents “thieves”.

    Published: January 24, 2010 4:45 AM

  • newsonnewson

    nothing short of one-world government can save us from slavery!

    Published: January 24, 2010 5:03 AM

  • CosminCosmin

    I thought the article was about patents. Why don’t you debate that, Mark Hubbard?
    Unbelievable. First post and “authors” are already introduced to sidetrack the debate towards copyright again.

    Published: January 24, 2010 5:07 AM

  • newsonnewson

    nothing short of one-world government can save us from slavery! paradox worthy of orwell.

    Published: January 24, 2010 5:09 AM

  • GuardGuard

    I deliberately reduce my income simply because of taxation. As long as I have enough for basic necessities I’m fine because any excess I produce is taken from me.
    By the same token, I am not going to invest my life and time producing intellectual “property” for someone else to mooch.
    Let other suckers give away their time and lives while I sit back and wait for them to drop their creations in my lap.

    Published: January 24, 2010 5:14 AM

  • newsonnewson

    the world weeps your artistic absence, guard.

    Published: January 24, 2010 5:21 AM

  • GreegoGreego

    By the same token, I am not going to invest my life and time producing intellectual “property” for someone else to mooch.

    Who cares what you do? Other people clearly have, and will continue to do so. See Linux, youtube, myspace, etc..
    I spent 50 or so hours putting together music for a friend’s short film a couple of years ago. I didn’t receive payment for this, nor did I expect it. Art is invaluable to me, and I’ll ‘produce’ it whether there is financial incentive or not. In fact the lack of financial incentive makes it more meaningful to me.

    Published: January 24, 2010 6:54 AM

  • eric76eric76

    The real abomination of patents is that a person can expend enormous time and effort creating something only to have it taken away simply because someone else did something similar.

    The patent system actually deprives honest, law-abiding people from the fruits of their own labor.

    Published: January 24, 2010 8:30 AM

  • RussRuss

    Cosmin wrote:

    “I thought the article was about patents. Why don’t you debate that, Mark Hubbard?
    Unbelievable. First post and “authors” are already introduced to sidetrack the debate towards copyright again.”

    In all fairness, Mark was referring to IP ingeneral, of which patents are a form. SK also believes this, and his arguments against IP apply to both patents and copyrights. I myself cannot find any meaningful distinction between copyright and patent.

    Published: January 24, 2010 4:52 PM

  • ChrisChris

    I’ve come most of the way over to Stephan’s point of view but I still have a sticking point. If ownership can only be said to exist through homesteading or transfer of title then it seems that IP rests on the idea of homesteading thought. If I have an idea, I homestead it and therefore own it. Since I own the idea others may not use it absent my permission without violating my right to property (‘my’ idea in this case).

    The point I’m struggling with is why can’t someone own a thought?

    I would like to hear what others have to say about owning a thought.

    Published: January 24, 2010 6:07 PM

  • Mark HubbardMark Hubbard

    I would like to hear what others have to say about owning a thought.

    Good question Chris, and in many ways it gets to the nub of the issue.

    The anti-IP argument holds not only that you can’t own an individual thought, they contend you can’t have one for we all belong, seemingly, to just a Borg hive mind: Indeed, they have basically obliterated the concept of the individual – true collectivism in all its evil, note, the opposite of liberty.

    I’m an objectivist, and that holds quite the opposite. Copying myself from another thread):

    Objectivism specifically supports the creators property in the products of his mind, precisely what IP protects.

    Rand states “Creation” means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before.”

    It is not ‘identification’, it is the creation of something ‘that had not existed before’: repeat, something that had not existed before, in other words a uniqueness, an ability for an individual to express the self in a unique way, and to have original thought. Not just a mere matter of identification of a bloody pattern.

    A sculpture ‘cannot be brought into existence out of nothing’, as Rand says, you need stone, but once the sculptor has done his art, applied his mind and his passion, that stone is ‘something that had not existed before’ a new thing, an original thing, an expression of the uniqueness of its creator and by the process of the application of his mind to change the stone, his property – it could not belong to anybody else.

    Regarding ‘thinking’ and individual thought (thus individualism), Ayn Rand also tellingly said, and I agree with her:

    We inherit the products of the thought of other men. We inherit the wheel. We make a cart. The cart becomes an automobile. The automobile becomes an airplane. But all through the process what we receive from others is only the end product of their thinking. The moving force is the creative faculty which takes this product as material, uses it and originates the next step. This creative faculty cannot be given or received, shared or borrowed. It belongs to single, individual men. That which it creates is the property of the creator. Men learn from one another. But all learning is only the exchange of material. No man can give another the capacity to think. Yet that capacity is our only means of survival.

    For the New Intellectual “The Soul of an Individualist”.

    Published: January 24, 2010 6:38 PM

  • newsonnewson

    mark hubbard, who owns graffiti, the artist or the wall-owner?

    Published: January 24, 2010 6:53 PM

  • HavvyHavvy

    You cannot homestead a thought merely because you are not actually making a physical change to the thought. You are merely invoking it. If you had the first thought, then you only mixed around a bunch of neurons in your mind. The actual thought remains wholly unchanged, for an attempt to change a thought leads to the invocation of a different thought with the original thought still existing.

    Published: January 24, 2010 6:54 PM

  • Mark HubbardMark Hubbard

    mark hubbard, who owns graffiti, the artist or the wall-owner?

    Published: January 24, 2010 7:10 PM

  • Mark HubbardMark Hubbard

    mark hubbard, who owns graffiti, the artist or the wall-owner?

    Nothing to do with the IP debate whatsoever. Though I suspect we’d find the little shite who defaced ‘my’ wall has a hard disk full of stolen booty – both acts being rightly criminal and a wanton disregard for the property owned by another.

    Published: January 24, 2010 7:12 PM

  • ShayShay

    Chris wrote, “The point I’m struggling with is why can’t someone own a thought?

    You do own all the thoughts in your mind, but not thoughts in anyone else’s mind. If you have the idea of a mousetrap and build one, and then someone else looks at it and constructs an idea of a mousetrap in his own mind, he now has an idea of a mousetrap, separate from yours. His use of his idea doesn’t stop you from using yours.

    Unlike what some pro-IP people here suggest, you and he aren’t part of some “Borg hive-mind collective” where what he does with thoughts in his mind affects what you can do with thoughts in your mind, where you and he have to share/fight over a single “idea of a mousetrap”. Your and his minds are separate, almost like independent worlds.

    Published: January 24, 2010 7:18 PM

  • Mark HubbardMark Hubbard

    You do own all the thoughts in your mind, but not thoughts in anyone else’s mind. If you have the idea of a mousetrap and build one, and then someone else looks at it and constructs an idea of a mousetrap in his own mind, he now has an idea of a mousetrap, separate from yours. His use of his idea doesn’t stop you from using yours.

    I have destroyed this very line of reasoning here – start at the ‘Right Bala’ heading:

    http://www.solopassion.com/node/7285#comment-83773

    Those who use this argument don’t understand the nature of IP, and the significance of chronology.

    Published: January 24, 2010 7:35 PM

  • ShayShay

    Sorry, Mark Hubbard, but I didn’t see any reason reading past the second personal attack you make just a few lines into the introduction: “And you [Bala] are head boy of the Camp of Enslavers.” I’m here to discuss ideas, not waste time with name-calling games. I doubt I’m alone in wanting this, but I’d prefer that you stopped posting your personal-attack-filled messages here, so I and others can discuss ideas in an adult manner. Show some decency, please.

    Published: January 24, 2010 7:46 PM

  • CosminCosmin

    Mark Hubbard has it completely backwards. I agree with Shay and I’ve said the same thing myself. Ideas can’t be stolen, shared, bought or sold.
    You own an idea in your brain. You create an object. The existence of this object helps an observer to form a similar, yet distinct idea in HIS brain. He uses HIS idea to create an object that may be similar to yours and that may have the same function.
    The idea was not imbedded in the object itself. There is no guarantee for the observer that he will understand “your idea” and be able to replicate it properly. It all depends on his knowledge and experiences.
    You can not erect a law that will prevent an observer from understanding the functionality of an object and thus forming an idea in his brain.
    You can write down a law that would forbid someone from using an idea from his brain, just like they wrote laws condoning slavery, and it would amount to the same thing.

    Published: January 24, 2010 7:51 PM

  • Mark HubbardMark Hubbard

    Sorry, Mark Hubbard, but I didn’t see any reason reading past the second personal attack you make just a few lines into the introduction: “And you [Bala] are head boy of the Camp of Enslavers.” I’m here to discuss ideas, not waste time with name-calling games. I doubt I’m alone in wanting this, but I’d prefer that you stopped posting your personal-attack-filled messages here, so I and others can discuss ideas in an adult manner. Show some decency, please.

    Which is just another way of saying, Shay, you can’t raise an argument against what I reasoned below that, the body of the post. For you surely would if you could have.

    And my lack of civility: why would I be civil to thieves? As someone said on that same thread I linked to:

    ‘”Civility in the face of evil is no virtue; rage in the face of nihilism is no vice.”

    If you look at this site’s albeit ironic banner, it’s about fighting evil.

    Published: January 24, 2010 8:04 PM

  • RussRuss

    Chris wrote:

    “The point I’m struggling with is why can’t someone own a thought?”

    I think you need to go back to your thought about intellectual homesteading, and ask “Can somebody homestead an idea?” Homesteading is only really necessary in classical property theory because classical property is scarce, and hence, we need some way of deciding who gets what. The whole motivation for the idea of homesteading doesn’t exist for ideas; they aren’t scarce.

    Published: January 24, 2010 8:08 PM

  • Mark HubbardMark Hubbard

    Russ, if you read my solopassion link just above, I have dealt with the ‘straw man’ argument of scarcity.

    Published: January 24, 2010 8:11 PM

  • CosminCosmin

    Consider this: I build an object of a certain geometrical shape to use in an engine.
    An accountant sees my object and likes it so much, he builds others like it. Not having the same experiences as me, he doesn’t understand the functionality of the object. He just sells them as paperweights.
    He could have used an object provided by nature or an object created recently by man, or an object created by man a long time ago. By virtue of the physical existence of the object and its availability to his senses, his brain developed ideas as to possible uses of the object. This is impossible to stop.
    Patents stop him from acting on those ideas and that’s why they’re wrong. To impede him from using the ideas in his brain is slavery.
    A physicist also sees my object. His experience leads him to the realization that he could use it to focus a laser, so he starts building more like it as well.
    Yet another observer, one who studied the same things I did, sees my object and builds more like it to use in a similar way that I did.
    All these people did the same thing: observed an object, imagined a use for it, started building more objects to satisfy what they saw as a need in a specific emerging market. None of them knows what my intentions for the object were. Clearly, they have to be treated the same way.
    So, do they all have to pay me, or none of them does?

    Published: January 24, 2010 8:26 PM

  • Stephan KinsellaStephan KinsellaAuthor Profile Page

    Cosmin: “All these people did the same thing: observed an object, imagined a use for it, started building more objects to satisfy what they saw as a need in a specific emerging market. None of them knows what my intentions for the object were. Clearly, they have to be treated the same way.
    So, do they all have to pay me, or none of them does?”

    The IP advocates like Hubbard have no clue. They just want to punt this to a judge. Objectivsts don’t care if the decision is just–they just have a fetish for neatness; they want it to be final. So–whatever the judge says!

    These IP advocates have no idea what they are proposing. Should IP rights cover perfume smells? fashion designs? Why not? What about databases? boat hull designs? What should the terms be? The penalties for infringement? The scope? They have no clue. They just go with what the criminal legislators say and try to find a way to justify it, as Rand did with eminent domain and patent law and copyright terms.

    Published: January 24, 2010 8:39 PM

  • ShayShay

    Mark Hubbard, I’d love to know the argument you make, but as I wrote in my post, I’m not going to wade through personal attacks to find it. It’s ironic that you accuse me of being unable to raise an argument, when it is you who waste a good portion of each of your messages with personal attacks. If you’d just stick to arguments, I’d have read your linked post in full and probably replied, or perhaps even agreed with your reasoning. So hold your accusations of others until you clean up your act. At this point you’re actively pushing people away from the Mises discussions themselves.

    Published: January 24, 2010 8:44 PM

  • Mark HubbardMark Hubbard

    The IP advocates like Hubbard have no clue. They just want to punt this to a judge. Objectivsts don’t care if the decision is just–they just have a fetish for neatness; they want it to be final. So–whatever the judge says!

    Yes, I know the disdain in which you hold the rule of law.

    There are complexities with patent, and IP in general, but yes, Kinsella is right, that’s why we have courts and objective law: that is the place to sort these issues out.

    Just because there is complexity in the issuance, and in the policing (as there is with tangible products), that doesn’t mean you just throw out the concept of property and the rights to, because without that you throw out a free society based on capitalism.

    What Kinsella is saying is, ‘oh these issues are difficult’, we’ll just do away with the concept of ownership all up, and revert, I assume, to the commune and the collective and some type of hippy economy (that will, in reality, not exist for long before the mafia wrestles out its stronghold).

    In the looters world, because a world with no IP is just that, you literally don’t have theft, because you own nothing to be stolen.

    Do you want to live in that world, where force will surely rule, or a free world?

    That’s the true choice being shown in these threads.

    (By the way, no one has spoken to my debunking of the straw man argument of scarcity on the SOLO thread: given the paramountcy of it to the looters argument, I might have thought …)

    Published: January 24, 2010 8:53 PM

  • Mark HubbardMark Hubbard

    Mark Hubbard, I’d love to know the argument you make, but as I wrote in my post, I’m not going to wade through personal attacks to find it. It’s ironic that you accuse me of being unable to raise an argument, when it is you who waste a good portion of each of your messages with personal attacks. If you’d just stick to arguments, I’d have read your linked post in full and probably replied, or perhaps even agreed with your reasoning. So hold your accusations of others until you clean up your act.

    Oh pleeease, stop the whinging. Read the link I gave and speak to the argument/reasoning, or just withhold.

    At this point you’re actively pushing people away from the Mises discussions themselves.

    Given the IP discussions (not the economic ones) are the advocacy of a looters world: good. I am ‘proceeding ever more boldly against evil’, as the banner says.

    Fortunately, though, this is private property, so the owners retain the right to boot me, and if they do, I will not come back under another name.

    Published: January 24, 2010 9:06 PM

  • mpolzkillmpolzkill

    Hubbard:

    “straw man”

    Inigo Montoya:

    “You keep using that word. I do not think it means what you think it means.”

    Published: January 24, 2010 9:24 PM

  • Mark HubbardMark Hubbard

    mossykill, I have put up a line of reasoning that shows arguments against IP cannot use the notion of lack of scarcity as a guiding principle, for that ignores chronology, (quite apart from uniqueness of mans mind, and thus ability for original thought – the ‘products of the mind’ – and that to be free, man must be able to lay ownership to.)

    Want to argue against that?

    Published: January 24, 2010 9:37 PM

  • M RobersM Robers

    The first thing the Objectivist’s have to figure out is any supposed Intellectual Property legislation that would employ the justification of the use of force by the apparatus of compulsion and coercion is anti-thetical to the ethics of liberty and capitalism itself. What’s next from these people, the patenting of haircuts and landscapes?

    Published: January 24, 2010 9:49 PM

  • mpolzkillmpolzkill

    Hubbard,

    No, I just wanted to laugh at your overheated illiteracy and “steal” from the Twentieth Century-Fox Film Corporation simultaneously.

    Published: January 24, 2010 10:03 PM

  • RussRuss

    Mark Hubbard wrote:

    “Russ, if you read my solopassion link just above, I have dealt with the ‘straw man’ argument of scarcity.”

    1) I haven’t read your solopassion link, and don’t intend to. If you want people here at mises.org to read your thoughts, I suggest you post them on mises.org.

    2) You have in no way, shape or form “dealt with” the argument of scarcity. There’s no way you can do so, because patterns/ideas are *not* scarce, and any so-called natural law theory of property that ignores the nature of patterns/ideas isn’t much of a natural law theory.

    Published: January 24, 2010 10:04 PM

  • RussRuss

    Mark Hubbard wrote:

    “Fortunately, though, this is private property, so the owners retain the right to boot me, and if they do, I will not come back under another name.”

    Hmmmm…. this is interesting. The owners put down as a condition for entering their property that your comments be “intelligent and civil”, and yet you insist on being uncivil. Isn’t that a violation of the property rights of the owners of this site? After all, if you say that if they wanted you to be more civil they would moderate your posts, that is like saying that if you can pick the lock on a person’s door, they really didn’t want you to stay out badly enough.

    Published: January 24, 2010 10:09 PM

  • Mark HubbardMark Hubbard

    The first thing the Objectivist’s have to figure out is any supposed Intellectual Property legislation that would employ the justification of the use of force by the apparatus of compulsion and coercion is anti-thetical to the ethics of liberty and capitalism itself

    A minarchy is a legitimate government, and necessary to ‘enforce’ the non-initiation of force. That’s the only role of a state, to protect the rights of the individual. Without a preparedness and structure to use force against those who initiate force, then the one thing anarchists can bank on is they will become truly the victims of force: that of the gang with the biggest gun.

    Take away a minarchy and objective law, then you can also give away capitalism and a free society.

    Objectivists have figured all this out.

    But forget all that, I’ll play devil’s advocate, for I’ve already said I have no problem at all with IP being solely in the private sector, the policing of it self-policing – but with the rejoinder: if I am to defend my property, including my IP, then I must, in law, have recognised ownership of it.

    Yes?

    Published: January 24, 2010 10:10 PM

  • Mark HubbardMark Hubbard

    Hmmmm…. this is interesting. The owners put down as a condition for entering their property that your comments be “intelligent and civil”, and yet you insist on being uncivil. Isn’t that a violation of the property rights of the owners of this site? After all, if you say that if they wanted you to be more civil they would moderate your posts, that is like saying that if you can pick the lock on a person’s door, they really didn’t want you to stay out badly enough.

    Yes, good point Russ. But the site also states the I must ‘proceed boldly against evil’, which I am doing, so while my incivility is a contradiction, it merely reflects the contradictory greetings onto the site.

    But if any of the site owners ask me to leave, that brooks no contradiction, and I would leave the comment fields, and not come back.

    Published: January 24, 2010 10:17 PM

  • Peter MPeter M

    Dr. Kinsella

    Thanks for interesting (and freely available) work on IP.

    I know you reject utilitarianism in favor of a property rights prescriptive, so sorry if this question is off base.

    Generally speaking, the utilitarian proponents of IP assume the following market:

    1. Firm A predicts a market size of N units for widgets sold at X dollars/unit.
    2. Firm A predicts it can develop, manufacture, and market, N units of widgets for less than X*N dollars.
    3. Firm A predicts that other firms B, C, D, etc. will develop, manufacture, and market similar widgets in competition with their successful widgets.
    4. Firms B, C, D, etc. will have a lower development cost, because they can emulate Firm A’s widgets.
    5. Firms B, C, D, etc will sell M units making Firms A’s market share M-N units
    6. Firm A decides not to develop widgets because it can’t be profitable selling only (N-M) widgets.
    7. The market doesn’t produce widgets.

    I realize that that firm A has first mover advantage, and Firms B, C, D, don’t typically save much money on development in most markets. Therefore the situation above may be rare. However, it does seem at least plausible that this situation could arise in some circumstances. Do you agree that this situation could happen and would be regrettable? Or, is my logic run amuck somewhere?

    Published: January 24, 2010 10:27 PM

  • Jay LaknerJay Lakner

    Shay wrote:
    “At this point you’re actively pushing people away from the Mises discussions themselves.”

    Mark Hubbard replied:
    “Given the IP discussions (not the economic ones) are the advocacy of a looters world: good.”

    Mark Hubbard has admitted that he is quite happy that his uncivil posts may be pushing people away from Mises discussions. This is unacceptable.

    I foresee two possible courses of action:

    1. All Mark Hubbard posts that are not civil be immediately deleted by a moderator.

    or

    2. We make a game of it. Everyone post under the name “Mark Hubbard” and we have to try and guess who the real Mark Hubbard is.

    Published: January 24, 2010 10:46 PM

  • CosminCosmin

    Mark Hubbard,

    You said: “That’s the only role of a state, to protect the rights of the individual. Without a preparedness and structure to use force against those who initiate force, then the one thing anarchists can bank on is they will become truly the victims of force: that of the gang with the biggest gun.”
    I’ve already debunked this by saying:
    “Anarchy doesn’t simply mean lack of government.
    Anarchy means the rejection of the principles of government. In a society of individuals who have been principled, vigilant and coordinated enough to rid themselves of government, no replacement, such as a gang, or mafia, can prosper.”
    Every individual has the right to protect himself against those who initiate force. In anarchy, individual preparedness would be higher since there’s no government to rely on. The structure would be appropriate to the size of the perceived threat.
    Anarchists would recognize that someone whose modus operandi involves aggression will potentially threaten them. Why do you think it impossible for them to organize against your gang, if they already organized to bring down government?

    Published: January 24, 2010 10:51 PM

  • DanielDaniel

    Mr. Hubbard exists in Plato’s world of Forms 😀

    Published: January 24, 2010 10:51 PM

  • CosminCosmin

    To Peter M, Mark Hubbard, Guard,

    If you have an idea for a widget and don’t want to have it copied, keep it to yourself. You don’t have a fundamental right to provide me with widgets.
    How dare you rob me of the freedom to independently discover an idea for a widget and bring it to market by putting your own widget on the market?

    Published: January 24, 2010 11:05 PM

  • jeffrey A.jeffrey A.

    Other arguments notwithstanding, I don’t fully understand how this quote from Rand necessarily demonstrates the point:

    We inherit the products of the thought of other men. We inherit the wheel. We make a cart. The cart becomes an automobile. The automobile becomes an airplane. But all through the process what we receive from others is only the end product of their thinking. The moving force is the creative faculty which takes this product as material, uses it and originates the next step. This creative faculty cannot be given or received, shared or borrowed. It belongs to single, individual men. That which it creates is the property of the creator. Men learn from one another. But all learning is only the exchange of material. No man can give another the capacity to think. Yet that capacity is our only means of survival.

    I will proceed thought by thought.

    “We inherit the products of the thought of other men.” Yes.

    “We inherit the wheel. We make a cart. The cart becomes an automobile. The automobile becomes an airplane.” Yes, but who should we credit with the first creation of these things really prior to the car? They were developed in antiquity surely many times in isolation from each other by individuals who saw a need and found a method to satisfy it. Who should we be paying to satisfy that? I don’t think the “pre-industrial/post-industrial eras” argument holds up here because we are not talking about something that can be digitally copied/stolen. As for the car and the airplane, are we still paying the original inventor of the motorized cart or his descendants or the descendants of the Wright Brothers? I have seen Mark Hubbard assert in other threads that IP should be in effect indefinitely for each creation. Clearly the Boeing 777 is nothing like the Wright Bros. plane but it is based on the same fundamental concepts learned from physics, so does Boeing owe the Wright family? Those fundamental concepts in physics, should the originators of the understanding of lift also receive indefinite compensation for each subsequent usage of that idea? From Boeing to the amateur model plane hobbyist? Just wondering. But it seems like this would gum up the system so much that little could actually be accomplished and productivity would suffer, rather than be strengthened by this kind of law.

    Moving on. “But all through the process what we receive from others is only the end product of their thinking. The moving force is the creative faculty which takes this product as material, uses it and originates the next step.” This would seem to indicate that their are no truly original ideas, only ideas built on accumulated ideas from the generations preceding it. It seems as though based on that concept any one individual, given similar education and experience as another individual, would be just as likely to “originate” an idea as the other guy. In fact, without knowing it they might both come up with the same idea independently of each other. I have encountered this in my own life. About a year ago a friend of mine and I were discussing the issue of cell phone signals fading inside of certain areas of particular buildings that he and I are both familiar with. Through this conversation we “originated” the idea of a cell phone signal booster that would be mounted on the outside of a building to receive a signal and pass that signal along to a device inside the building where it would be re-broadcast so phones could pick it up strong where it was previously weak and then send the signal from the phone back outside so that the call could be completed. We liked this idea so we pursued it and started working on R&D. After developing a pretty solid plan I got online just to see if anybody had already developed something like this. As it turns out, there are several products already out there that do this and they have several patents a few of which were quite similar in nature to what we were working on. Our project was killed before it got off the ground. If we wanted to continue we would have basically had to completely scrap our design and start from scratch, which we didn’t have the resources to do. There is no way we could have continued and put something on the market without infringing on someone’s patent even though we developed our product completely independently of any of those others. And being just a couple kids a year and a half out of college we have no chance of defending ourselves against established companies with real capital. So from our perspective, this is a case where patent law stifled creativity, rather than being promoting of it. Basically the point is, we did not “steal” someone else’s idea, we didn’t even know if anyone else had had it, but we had one of our own and as it turns out another guy did think of it and he holds monopoly rights to it. I do not relay this story to whine about it, but rather to demonstrate a real experience with IP from the perspective of a potential entrepreneur, and to say that I have no doubt that my story is unique. I am positive this kind of thing happens on a regular basis with people everywhere. All that also to ask, is there such a thing as a truly original idea? I submit that there isn’t, just the recombining of previous ideas and observations built over history by many civilizations and this constant development of ideas is impeded rather than encouraged by IP law. I would also assert that that is a legitimate interpretation of that idea from Rand.

    Moving on. “This creative faculty cannot be given or received, shared or borrowed. It belongs to single, individual men. That which it creates is the property of the creator.” If that creative faculty cannot be “given or received, shared or borrowed”, how can it be stolen? Theoretically, if I can share something with you or borrow or give or receive something, that something also has the capacity to be stolen. If creativity cannot be shared, it cannot be stolen. “That which it creates is the property of the creator” would to me indicate a physical tangible object capable of those other things, sharing, etc. Also making it capable of being stolen. That statue example that we enjoy so much works well here. If I make a statue carved from stone that I have legally acquired, it is mine by all definitions. If my neighbor sees it and likes it, he has several options available. We can arrange for me to share it or borrow it to him, or he can purchase it from me or I can give it to him as a gift. Other options might be that he physically steal it. That would be theft. The last option is that he sees it and decides to try carving a statue for himself. He can go acquire the materials and give it a try. Here is the part I don’t get, under IP this is theft. According to Rand he is just building off the prior ideas of others. She doesn’t seem to indicate remunerative compensation for this type of action. So from where in that quote do we derive that this is theft? Both statues are properties of their creators, they might be fairly similar but not the exact same. No one has been deprived of anything physical. So why does the first sculptor deserve monopoly privilege over the other? It just doesn’t add up to me.

    Lastly, “Men learn from one another. But all learning is only the exchange of material. No man can give another the capacity to think. Yet that capacity is our only means of survival.” Do you think she is advocating an infinitely regressive compensation structure here? That seems horribly wasteful and counterproductive. She certainly doesn’t indicate that learning something from someone else and doing something with that knowledge is theft. In fact she seems to condone learning from others as being necessary for survival. If every person is restrained from exercising their ability to create by first needing to compensate all others for their prior ideas, how in the world are we more free?

    Rand, if anything, seems to be advocating the free transmission and usage of ideas so that we can better ensure our survival. She doesn’t seem to be advocating infinite monopolistic rights over ideas for eternity that must be compensated for in every development and transaction involving said ideas.

    If anyone is going to cite Rand in support of IP law, please find a quote that is clearer than this on the nature of her position. And if that quote is found, that quote against this one will smell of inconsistency, which makes any good objectivist shudder I know.

    Published: January 24, 2010 11:09 PM

  • M RobersM Robers

    The Objectivists assert “intellect” is property. This assumption is wrong. Jeffery Tucker summed up this fallacy nicely in his review of “Against Intellectual Property”.

    http://blog.mises.org/archives/009357.asp

    “If you have an idea, it is yours. You can do with it what you want. If you share it (sing, speak, broadcast, let others see the products of your ideas), others then have copies of it. They are entitled to do with their copies of the idea precisely what you can do with your idea. They can use it how they want provided they don’t prevent others from doing with it what they want. This is a simple application of the non-aggression principle that governs a free society. Whether it is fashion, language, know how, or whatever, people are free to copy.”

    An idea becomes a free good once shared.

    If the Objectivists are really concerned or upset with ideas being copied then I recommend they neither speak, write, or communicate with another human being again.

    Published: January 24, 2010 11:33 PM

  • Mark HubbardMark Hubbard

    Jeffrey: that’s a long post.

    It’s evening Down Under, I’ve got to wrap up some work, then bed, so I’ve only had time to skim, and that will probably be the case until at least tomorrow.

    But you’ve asked for:

    If anyone is going to cite Rand in support of IP law, please find a quote that is clearer than this on the nature of her position.

    Thus I’ll give you direct quotations from Ayn on patents and copyrights. I’ll be interested to see what you make of them when I check back tomorrow. I’ll simply copy and paste (with reference to source, so see, no breach of copyright). I find her to be consistent on this, and objectivism is most certainly pro-IP, as property rights are the mainspring of freedom:

    1)

    “Patents and copyrights are the legal implementation of the base of all property rights: a man’s right to the product of his mind.”

    Capitalism: The Unknown Ideal “Patents and Copyrights.

    2)

    “What the patent and copyright laws acknowledge is the paramount role of mental effort in the production of material values; these laws protect the mind’s contribution in its purest form: the origination of an idea. The subject of patents and copyrights is intellectual property.

    An idea as such cannot be protected until it has been given a material form. An invention has to be embodied in a physical model before it can be patented; a story has to be written or printed. But what the patent or copyright protects is not the physical object as such, but the idea which it embodies. By forbidding an unauthorized reproduction of the object, the law declares, in effect, that the physical labor of copying is not the source of the object’s value, that that value is created by the originator of the idea and may not be used without his consent; thus the law establishes the property right of a mind to that which it has brought into existence.

    It is important to note, in this connection, that a discovery cannot be patented, only an invention. A scientific or philosophical discovery, which identifies a law of nature, a principle or a fact of reality not previously known, cannot be the exclusive property of the discoverer because: (a) he did not create it, and (b) if he cares to make his discovery public, claiming it to be true, he cannot demand that men continue to pursue or practice falsehoods except by his permission. He can copyright the book in which he presents his discovery and he can demand that his authorship of the discovery be acknowledged, that no other man appropriate or plagiarize the credit for it—but he cannot copyright theoretical knowledge. Patents and copyrights pertain only to the practical application of knowledge, to the creation of a specific object which did not exist in nature—an object which, in the case of patents, may never have existed without its particular originator; and in the case of copyrights, would never have existed.

    The government does not “grant” a patent or copyright, in the sense of a gift, privilege, or favor; the government merely secures it—i.e., the government certifies the origination of an idea and protects its owner’s exclusive right of use and disposal.”

    Capitalism: The Unknown Ideal “Patents and Copyrights’.

    3)

    “Since intellectual property rights cannot be exercised in perpetuity, the question of their time limit is an enormously complex issue. . . . In the case of copyrights, the most rational solution is Great Britain’s Copyright Act of 1911, which established the copyright of books, paintings, movies, etc. for the lifetime of the author and fifty years thereafter.”

    Capitalism: The Unknown Ideal “Patents and Copyrights”.

    4)

    Note this one – chronology.

    “As an objection to the patent laws, some people cite the fact that two inventors may work independently for years on the same invention, but one will beat the other to the patent office by an hour or a day and will acquire an exclusive monopoly, while the loser’s work will then be totally wasted. This type of objection is based on the error of equating the potential with the actual. The fact that a man might have been first, does not alter the fact that he wasn’t. Since the issue is one of commercial rights, the loser in a case of that kind has to accept the fact that in seeking to trade with others he must face the possibility of a competitor winning the race, which is true of all types of competition.”

    Capitalism: The Unknown Ideal “Patents and Copyrights”

    And then quoting myself from another thread here:

    One thing no one can deny, is someone had the idea (in my example, the wheel), first. And therein lay the IP. Chronology. The inception of your no-scarcity argument comes after this, but the IP is already created in the process/manufacture.

    Published: January 24, 2010 11:37 PM

  • Mark HubbardMark Hubbard

    Mark Hubbard has admitted that he is quite happy that his uncivil posts may be pushing people away from Mises discussions. This is unacceptable.

    Oh for heaven’s sake Jay, how many times do I have to say it.

    Repeat: .. the site also states the I must ‘proceed boldly against evil’, which I am doing, so while my incivility is a contradiction, it merely reflects the contradictory greetings onto the site. But if any of the site owners ask me to leave, that brooks no contradiction, and I would leave the comment fields, and not come back.

    I will not be civil to those who sanction looting, and attack the heart of freedom, but unlike looters’, I will be honourable. If any member of the exec. asks me to leave, including Kinsella, I’ll leave.

    Published: January 24, 2010 11:53 PM

  • Ayn Rand in HellAyn Rand in Hell

    Mark Hubbard stole:

    “Patents and copyrights are the legal implementation of the base of all property rights: a man’s right to the product of his mind.”

    Capitalism: The Unknown Ideal “Patents and Copyrights.

    —-

    How dare you quote from my book! Did you ask the permission of my estate and intellectual heir? You no-good second-hander! Thief! Intellectual socialist! Looter! Hypocrite lecteur! AAAAARRRRGGGHHH!!!!!!!!

    (Oh, it’s so hot down here! Where is my vodka and tonic? Oh, there it is! Thank you, Frank, darling!)

    Published: January 25, 2010 12:19 AM

  • Jay LaknerJay Lakner

    Mark Hubbard,

    I have never heard a more stupid excuse for verbally abusing someone than the one you just laid out.

    Published: January 25, 2010 1:22 AM

  • CosminCosmin

    Paraphrasing Hubbard: “If you don’t respect my ownership of this idea, I won’t share it and that will be a tragedy.”
    Normal human being: “Why would it be a tragedy? I was close to coming up with a similar idea myself.”
    Hubbard: “But I had it first!”
    Normal human being: “The cost is higher than its utility. I’ll wait until a second person has that same idea. Then, you two will compete against each other to present it. We have the marketplace to determine its worth.”
    Hubbard: “Listen to me! I will force-feed you my idea NOW and extract the price I demand for it now and in the future.”
    Normal human being: “Get out of my society.”

    Published: January 25, 2010 3:16 AM

  • CosminCosmin

    This is the stupidest thing I’ve ever read:
    “As an objection to the patent laws, some people cite the fact that two inventors may work independently for years on the same invention, but one will beat the other to the patent office by an hour or a day and will acquire an exclusive monopoly, while the loser’s work will then be totally wasted. This type of objection is based on the error of equating the potential with the actual. The fact that a man might have been first, does not alter the fact that he wasn’t. Since the issue is one of commercial rights, the loser in a case of that kind has to accept the fact that in seeking to trade with others he must face the possibility of a competitor winning the race, which is true of all types of competition.”
    The question is: “Why should either one have a monopoly?” The given answer is: “They each had the same chance to win the monopoly rights.”
    An equivalent situation would be this:
    Abe: “I will duel you for the the affections of Claire.”
    Brad: “Dueling is stupid. You can have her. There’s plenty of fish in the sea. I’ll be happy with someone else, who’s capable of deciding for herself.”
    Abe: “No. We have to duel. It’s fair, because you have the same chance of killing me as I have you. If you don’t, my friend the judge will hang you.”
    Brad: “Your ideas are as insane as Mark Hubbard’s.”

    Published: January 25, 2010 3:40 AM

  • Curt HowlandCurt Howland

    Mr Hubbard,

    “One thing no one can deny, is someone had the idea (in my example, the wheel), first. And therein lay the IP. Chronology. The inception of your no-scarcity argument comes after this, but the IP is already created in the process/manufacture.”

    Correct. Creation allows you, as first to market, absolute and total control over your idea.

    There you go. A perfect monopoly without any statute laws to prop it up. Free market monopoly, and not one person on this site will contradict your absolute right to do as you like with it.

    Published: January 25, 2010 7:24 AM

  • mpolzkillmpolzkill

    “Ayn Rand” in Hell:

    Frank was clearly a saint, he couldn’t be in hell, so therefore you *must* be an imposter.

    Speaking of imposters: in Sydney it was 4:37 in the afternoon when Hubbard said it was evening and he must be off to bed. Weird.

    Published: January 25, 2010 8:19 AM

  • Ayn Rand in HellAyn Rand in Hell

    mpolzkill wrote:

    “Frank was clearly a saint, he couldn’t be in hell, so therefore you *must* be an imposter.”

    You don’t know what you’re talking about, darling! Frank wasn’t a saint, he was an alcoholic failed artist who gave up. He didn’t even have the balls to do anything when I started shtupping Nathan. All I was doing was trying to make my Frankenfurter jealous, so he’d throw me onto a bed and give it to me hard, the way I like! But he did nothing! Nothing! *sob sob* What kind of man qua man is that? *sob sob sob*

    Oh, and Mark Hubbard, quit looting my ideas, you fifth-rate second hander!

    Published: January 25, 2010 10:36 AM

  • mpolzkillmpolzkill

    Thanks for the belly laugh. Excellent work, Ayn Impersonator. That rests my case, Frank never could have done anything to deserve an eternity of that.

    Published: January 25, 2010 11:42 AM

  • ChrisChris

    After reading the responses to my question about owning ideas I gave it some thought and wrote a blog post: http://halisponce.blogspot.com/

    Let me know what you guys think.

    Published: January 26, 2010 2:27 PM

  • PeterPeter

    The point I’m struggling with is why can’t someone own a thought?

    You can. Whatever thoughts are in your head, you own. You can’t own a thought in my head, though, any more than you can own my left arm.

    Published: January 26, 2010 9:17 PM

  • PeterPeter

    Nothing to do with the IP debate whatsoever. Though I suspect we’d find the little shite who defaced ‘my’ wall has a hard disk full of stolen booty – both acts being rightly criminal and a wanton disregard for the property owned by another.

    Hmm…let’s see….

    A sculpture ‘cannot be brought into existence out of nothing’, as Rand says, you need stone, but once the sculptor has done his art, applied his mind and his passion, that stone is ‘something that had not existed before’ a new thing, an original thing, an expression of the uniqueness of its creator and by the process of the application of his mind to change the stone, his property – it could not belong to anybody else.

    Why don’t we find the little shite who defaced ‘my’ stone and prosecute him? Oh, it was ‘his’ stone even before he carved it, you say? So it wasn’t his carving of it that made it his? Make up your mind!

    Published: January 26, 2010 9:21 PM

  • CosminCosmin

    Chris, I don’t know if some of my messages helped influence your thinking, but I see things almost exactly the same way.
    I just didn’t write a blog post about it. (Ghey…)
    😛
    Just kidding. You express yourself very well. Good job.

    Published: January 26, 2010 11:26 PM

  • ChrisChris

    Thanks Cosmin!

    Your thoughts definitely helped me crystalize this issue. It had been bugging me for awhile but now I feel like I have a handle on it.

    Published: January 27, 2010 9:43 AM

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