On GMO patent infestation, Kent Hastings comments on my IP views and those of J. Neil Schulman. Schulman responded:

My article "Informational Property: Logorights" begins by specifically disclaiming any state grants of monopoly. The concept stands or falls on its natural-property-rights arguments. Neither Samuel Edward Konkin III or Stephan Kinsella or anyone else has ever successfully answered the challenge I raised in my article, that without the identity of a thing being real enough to make it claimable as property, there would be nothing identifiable existing to be copied in the first place.

This is not arcane. It's just being pointedly ignored and Kinsella's attempts to change the subject don't make me forget what I wrote.

My response is as follows [my other comments on Schulman's logorights idea may be found in Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean Homesteading; Renaming Intellectual Property; and pp. 16, 26 et pass. of my Against Intellectual Property]:

Neil, I said your term "logorights" is somewhat arcane, not your theory, and there was no disrespect implied.

I think you are just wrong to assume that "having an identity" is a sufficient condition for being subject to property rights.

Consider: one has no property right the value of one's property, as Hoppe and Rothbard have argued (see Sheldon Richman on Intellectual Property versus Liberty); and likewise, one has no property right in the "identity" of one's property.

The reason is that owning value, patterns, identify gives you an ownership right in others' already-owned property. Saying you own the "identity" of a thing you own is another way of saying you own the pattern by which it is arranged-which is a disguised way of saying you have ownership rights in things everyone else owns. The standard Lockean account of property accepted by most libertarians says that the person who appropriates a previously unowned scarce resource becomes its owner. The IP advocate, of which you are one, says that if A thinks of a unique way to use his property or a unique pattern to impose on his own property, this act of intellectual innovation magically gives him partial ownership rights in property already owned by others. It lets you tell B how he can use his own property, even though B is the appropriator and by Lockean principles only B should be the owner. Granting A an IP right just means some of B's rights of control are transferred to A-it's a transfer of wealth or property, and it's incompatible with libertarian property rights.

The mistake Rand made was thinking "anything you create" is property, without first asking if the thing created is the type of thing that is subject to property in the first place. In fact, creation is neither necessary nor sufficient since if you create some new pattern using others' property you are not its owner; and if you impose a new pattern on property you own, then you own the transformed thing since you already owned the stuff of which it's made. A focus on creation as a source of ownership is the mistake made here. Creation is a source of wealth, sure, but not of ownership, since you can only create using things you already own.

Tibor Machan makes a similar mistake to your "identify" view when he assumes that many "ontological" types of things can be property-the mistake is in assuming that the way we conceptually and terminologically understand the world has some metaphysical basis that translates into property rights. By this view any concept we come up with to "identify" things that is successful, has magically created a new class of property. I find the concept "poem" useful-it is conceptually valid.. poems "have" "identity"-voila, they must be property!

I don't agree with this way of making rights depend on what concepts we have or how we identify and understand things in the world. Just because we can call something by a word, or call it a "thing," does not mean it is ownable. In fact, all ownership rights are enforced in physical terms against scarce resources; which means that granting rights in anything else has to undermine and dilute real rights in real things.

[Cross-posted on SK and Mises Blog]

Nicholas Gruen has a post about social interaction and the web 2.0. I'm doubtful that creation and innovation can ever be a purely social enterprise (I'm an economist after all) - but it would be a mistake to underestimate the strength of free software type approaches to knowledge. While the core workers are well-paid, creation benefits enormously from the contributions of volunteers. The ability to tap into those who work for love rather than money as well as those who work for money is a great strength of the non-IP model of creative innovation.

As I noted in Copypats, many non-specialists and proponents of IP erroneously believe that copying is an element of patent infringement--they conceive of the typical patent infringer as some bad guy who knocked off, or "stole," the patentee-inventor's idea. They are usually unaware that proving copying is neither necessary nor sufficient to prove patent infringement. It's not necessary because even an independent inventor can be guilty of patent infringement. It's not sufficient because the patent may be invalid, or the copier may make changes to "design around" the patented invention (which is encouraged by patent policy--that's one reason the patent is published).

But it is common to charge the patent infringer, especially the idea copier, with theft--he stole the idea, it is said. But if we think about standard cases of theft that we all agree are criticizeable, what is it about them that we object to? Is it that the thief now has a bicycle? Or is it that the owner now doesn't have his bicycle?

Of course it is the latter. If you have a bike, or car, or log cabin, or corn crop, and I could gaze at it from afar, blink my eyes, and conjur up a similar bike, car, cabin, or crop for myself, I do not steal your things. But if I take your bike or car from you, or oust you from home and farm, you no longer have the things you formerly possessed and owned. That is the damage done to you by theft. This corresponds nicely to the very nature and function of property rights: the need for them arises when people need to use scarce resources as means to act in the world, and appropriate unowned ones. The scarce nature of these things is such that use by one person excludes that by another; the goods are rivalrous. (More on this in How We Come to Own Ourselves; Defending Argumentation Ethics; Owning Thoughts and Labor.)

But copying or emulating someone else's idea is not "taking" it from them; it is not theft. The originator of a given pattern still has his idea, and is free to use it in guiding his action and using or transforming his own property. This is why all arguments in favor of IP (and reputation rights) ultimately end up falling prey to the notion that there are property rights in the value of property, rather than in its physical integrity. But this view is fallacious, as shown by Hoppe and others.

In The Reach of Patent Law and Institutional Competence, one Richard Gold makes an odd argument that "stealth libertarianism" is to blame for some of the problems in patent law. He believes there has been a "clandestine shift in patent law's normative base from a utilitarian justificatory rationale to a libertarian one; a trend the author refers to as 'stealth libertarianism.'"

Under the "libertarian" (sic) approach, it is assumed "that the social good is always attained by expanding patent rights in all domains," but courts dress this "libertarian analysis in the commonly accepted language of utilitarianism. This surreptitious adoption of libertarian analysis is particularly disconcerting because it enables courts to avoid addressing the ethical and distributional effects of patent determinations."

As far as I can tell from a quick read, Gold maintains that a utilitarian basis should be employed, instead of a "libertarian" one; that courts are incompetent to make these utilitarian determinations; and that if utilitarianism is correctly applied, patent law scope would not be expanded as much as it has been by courts applying a "stealth libertarian" rationale.

I can't figure out if this guy is an ally or not.

David Pogue ends his latest blog posting, saying "I do know, though, that the TV, movie and record companies' problems have only just begun link here. Right now, the customers who can't even *see* why file sharing might be wrong are still young. But 10, 20, 30 years from now, that crowd will be *everybody*. What will happen then?" His piece is an extended survey of various audiences, using a range of hypothetical situations involving copyright violations, ending with the question, how many in the audience see that practice as wrong. Very few of them do.

I speculate that economics teaching has succeeded in persuading most people that monopoly is wrong and that charging more than the marginal cost for an item is a violation of the free market.

Know hope!!!

I had corresponded with Tom Bell a while back, and he sent me some interesting stuff I've been planning to post almost forever. Justin finally beat me to the punch, so let's see if I can't get caught up. Tom summed up what he does pretty well:

By way of background, I am a law professor who has long had an interest in IP policy. You can find my print publications at tomwbell.com and my blog posts at agoraphilia (a sort of catch-all blog, hosted by my friend, economist Glen Whitman), techliberation.com (dedicated to technology and telecommunications policy), midasoracle.org (focusing on prediction markets), and money law (where I and other legal academics apply quantitative tools to our profession).

I'm on sabbatical, this semester, and aim on finishing a book called, "Intellectual Privilege: Copyright, Common Law, and the Common Good." From the title alone, you can guess something of the line of argument I plan to take. Judging from your academic papers, and your blogging at "Against Monopoly," I imagine that you'll find my approach to copyright agreeable.

We had some interesting discussion of my observation that lawyers often are quite skeptical of IP. I found Tom's response quite interesting:

I don't doubt you're right that lawyers--or at least legal academics--prove more skeptical of IP than economists. And you may well be right that it's because people who work in the law know its limits so well. But I'd peg as a contributing cause something less commendable: a distrust of market processes. Among legal academics, at least, I find any invocation of property rights likely to raise skeptical replies. I guess I'm an odd bird in that regard, as I very much like property rights--*in tangibles.* Indeed, my criticisms of IP turn in part on my concern that they do not qualify as property rights, really, and that they might even weaken support for the real and chattle property rights that I so profoundly respect.

Mike Masnick picks up on what is wrong with copyright law we are all constantly infringing link here. The story is so well told, I won't try to repeat it but it makes clear what a travesty that law and its interpretation and enforcement have become a total embarassment. Read it.

Tom Bell has a great work-in-progess book on Intellectual Property (which he convincingly argues should be renamed Intellectual 'Privilege' and not be confused with 'property').

Read it here.

Hat tip: Larry Lessig.

by Lior Zemer, The Idea of Authorship in Copyright . It appears to endorse a Lockean model of copyright. If so, it enters a growing field, which includes Adam D. Moore's Intellectual Property and Information Control .

The Zemer book is mentioned by Siva Vaidhyanathan at his blog .

In case you haven't been over to the Volokh Conspiracy this week, you are missing out on some great discussions, including -

James Madison's original views on IP.

The continued debate over misguided attempts to equate 'intellectual property' with real property as well as the early references to 'literary property'.

Sir William Blackstone's views on Copyright and Patents.

Good stuff for your reading pleasure.