I am just about complete with the first half of my IP booklet, The Libertarian Case for Intellectual Property. The second half will be a Q&A with EPJ readers, about IP.
Just posts your questions/comments below and if I think the question/comment will be relevant to a broad audience I will include it in the booklet. Note by posting a question below, you acknowledge that you grant me permission to reprint the question/comment in my IP booklet.
You may use your real name or a pseudonym, it doesn't matter to me. The format in the booklet will be simple. The questioner will be named (again, real or pseudonym) followed by the question/comment and then my answer.
An inspired Crusoe makes special shoes with large-thorn spikes that allow him to much more quickly climb trees and harvest coconuts. Friday accepts Crusoe’s offer to share his new knowledge in return for 10% of the coconuts he gathers. Sunday sees Crusoe and Friday quickly climbing trees with their special shoes, thinks it’s a great idea, and fashions his own version. Crusoe discovers that Sunday is using shoes that work like his and demands 10% of his coconuts. Can Crusoe legitimately use force if Sunday refuses?
ReplyDeleteLikewise, an inspired Mr. Klein makes a pair of women's slacks. The slacks sell very well and Mr. Klein shares the fabric pattern with Mr. Gucci who, in exchange, agreed to give a 10% share of his profit to Klein, while Gucci sells the identical slacks under a different brand. One of Gucci's customers deconstructs these slacks, determines the pattern, and begins producing and selling the identical slacks under yet another brand. Can Klein use force against Gucci's customer if they refuse to give 10% of their profits to Klein?
DeleteYes, but only if Crusoe mails an Intellectual Property Notification letter to every member of the community informing them of their obligation to pay him if they develop spiked shoes for the purpose of climbing trees to gather coconuts.
Delete"Can Crusoe legitimately use force if Sunday refuses?"
DeleteClearly the answer is no, unless Sunday has signed a contract with Crusoe agreeing otherwise. If Crusoe and Sunday want to prevent Sunday from using this new idea, they would need to be careful to do their tree-climbing in secret, unobserved, similarly to how a company would protect a trade secret.
"Can Crusoe legitimately use force if Sunday refuses?"
DeleteClearly the answer is no, unless Sunday has signed a contract with Crusoe agreeing otherwise. If Crusoe and Sunday want to prevent Sunday from using this new idea, they would need to be careful to do their tree-climbing in secret, unobserved, similarly to how a company would protect a trade secret.
- How does the law determine the appropriate length of IP?
ReplyDelete- What is the appropriate monopoly territory for IP: local, state, federal, regional, or world?
I'd like you to address what seems to be an error in Rothbard's mousetrap example.
ReplyDeleteRothbard states that A sells B a mousetrap with the stipulation that he not reproduce it. Rothbard says that the reproduction rights were not transferred to B in the contract.
I believe that is a faulty interpretation. It is true that B no longer has the production rights after agreeing to the contract. But that is because he transferred them TO A, not because he didn't receive them from A. B HAD the reproduction rights (but not the knowledge) and SURRENDERED them to A in order to get the product.
You can easily see that this is true by considering the state of both parties before A invents the mousetrap. Surely before the invention both had the right to produce it. So if B started with that right, and now no longer has it, it is because he transferred it TO A.
If this is made clear we then see that C always had the right as well, and did NOT need to get it from B, who gave it up.
Can you square the above interpretation, which seems reasonable, with what Rothbard wrote?
Thanks
"Surely before the invention both had the right to produce it."
DeletePlaying the devil's advocate here ... the assumption that you have the right to produce something before it is invented is absurd. If it is not invented, then the right cannot be formulated. If it cannot be formulated, it cannot be defended. Whether coming from a perspective of "designed rights" or from "natural rights" -- or really, any other law principle -- the ability to defend a right is essential.
I don't see the absurdity, it seems self evident. Having the right to combine your own property however you wish is the right to produce whatever you want. There's your formulation. I don't think property rights need to list exhaustively every single possible use that is permitted. THAT would be absurd.
DeleteLet's take the opposite line, that you don't have the right to produce the mousetrap as it has not been invented. How would that be defended? If your criticism was valid, it would apply here as well. Also, the guy tinkering, trying to invent, would surely be in violation, as his invention would not have been realized yet. Nothing would ever be invented.
On your formula, if someone else discovered it independently from you and released it on the internet while you were finishing the process of copy writing it, could you sue him for the potential amount of money you could have made (damages)? If not, then I don't think it is property.
ReplyDeleteIndependent discovery is allowed under Wenzelian IP law.
DeleteThis is not a question, but a suggestion. Given your recent "debate," it may be helpful to the potential audience to be less combative and more scholarly in your approach. Yes, Kinsella can be pompous. I have observed that even before this. Your approach isn't pompous, but can be abrasive.
ReplyDeleteMay I suggest a mentor-like approach in this specific publication?
I think you are playing an important role in enumerating the misconceptions you see currently about the Libertarian view of IP. Instead of "Kinsella Crushed," it may be better to show "Common Misconceptions" and use what you've done in the past showing Rothbard's and Mises' views.
I think there is a place and time for your style. I'll paraphrase Rothbard (?) by saying it is appropriate for rigidity in adherence to libertarian principles but flexible with regards to implementation. I'd suggest that in order for your work to reach a large audience, some style flexibility may be in order.
I suggest you include in your booklet a thorough definition of IP because a lot of the debate isn't even really about IP. The notion that only an idea is treated as IP is absurd. An idea doesn't become IP until it has met certain stringent requirements.
ReplyDeleteA copyright and trademark applies to the work product itself (book, music, logo, etc.) but an idea under present law requires a patent. And there are two types of patent - utility and design.
To obtain a utility patent in the US, the idea must be proven to be novel, non-obvious, perform a function and not already exist in nature. And a design patent is the same but without the function requirement.
IP for ideas doesn't exist until these conditions are met and the application for patent approved. This is a time consuming and costly process. And once granted, IP has a limited shelf life. The terms of patents are reasonable but term of copyright has been unreasonably extended over the years.
I think having a proper understanding of IP is necessary to having any meaningful debate about it.
I'll just add that IP is relevant to work products with economic value. If the IP has no economic value, there is no harm in copying and no remedy justified. At least that's my understanding.
Delete99.999...% of people's ideas and thoughts have no economic value. The IP must have economic value and the dispute is principally over *distributing* the IP without the owner's permission or with compensation.
The AIPers will argue that if they have an idea to make a chair for their back porch and the chair is already patented, they're are now slaves to the patent holder. But they are only prevented from manufacturing and distribution of the chair. Again, much of the debate seems to revolve around absurdities and not the actual substance of IP.
Lets take peter schiff's example from his book;"how an economy grows and why it crashes". (Hopefully he doesn't sue us for "taking" his example.) We have 3 guys fishing with their hands; Able, Baker, and Charlie. When Able refrains from consumption for a day to build a net, he creates economic growth. My question to you is: Does Able have right to prevent Baker or Charlie from making their own nets? If not, then it seems IP is illigitamate.
ReplyDeleteI get ur drudge example, but it seems to me that the code itself is connected with access to a scarce good (the drudge site). Much like a locker combination, it depends on who owns the locker, not who "owns" the sequence of numbers, which are needed to open the locker. Also, I think Rothbard's EoL ch 19 would be good for you to review.
Where does the idea of "reverse engineering" fall into the libertarian position on IP? I understand that a contract may stipulate no selling or reproducing any idea of "formula," but what about ideas that are integrated into products. For example, what about the idea of something as basic as a "touchscreen" that has revolutionized mobile computing? Say I'm an engineer who sees someone using a touchscreen device and realize that's a great idea and integrate it into my products without ever having bought the touchscreen myself. Would I be permitted to integrate a touchscreen into my product line?
ReplyDeleteNot having had the benefit of reading your pamphlet, I'm only guessing that you will concede that the promotion of the IP concept is not strictly necessary for the existence of human life on Earth.
ReplyDeleteI'll also suppose that you must admit that as it is currently practiced IP must necessarily do injustice to any independent inventor who maybe took a bit longer even to do a slightly better invention.
So given that it is unnecessary and unjust must it not be in fact evil?
@ James Armstrong
DeleteI like how you jumped from IP, as it is currently practiced, being unjust to IP being unjust in any possible implementation.
Also, are computers necessary for human existence? Well, let's just get rid of them, then!
Yes, the old libertarian-Neanderthal Luddite argument.
DeleteWell played!
Impressive name-calling!
DeleteVery well played indeed!
Ed Ucation,
DeleteShow me how the use of computers is inherently unjust and you will have mastered the intricacies of my argument.
Failing that, you have simply trounced a burlesque version of your own creation.
When people do that, the leave me undecided about whether they are lazy, dishonest or merely stupid.
I'm sure your next post will clear that up.
Would like to see a position on patents and what is their place in a libertarian society.
ReplyDeleteI thought we had evolved to a point where we could see that the artificial creation of scarcity was a crime against humanity.
ReplyDelete(My question being, Isn't it?)
I'll have to read your booklet to see if it is indeed "The Libertarian Case for Intellectual Property" but at this point what I expect to see is a tract on how with a few deft and devious tweaks you can sort of open a crack in Libertarian principles for IP.
Not that I consider open-mindedness to be a virtue but I'll take a look to see if you a going to show me a way to do IP fully consistent with Libertarian values or if you are going to argue that we really shouldn't mind it so much if we have to bend a bit here.
You must realize that if you really had a voluntarist IP "solution" there would be little incentive to convince disinterested parties.
"I thought we had evolved to a point where we could see that the artificial creation of scarcity was a crime against humanity."
DeleteThat's a very good comment. From the perspective that property rights are designed, you will always have "artificial creations of scarcity" if you have respect for property rights.
Otherwise, it's a caveman free for all.
Let the thug with the biggest arms, guns, etc. take whatever he wants using the "I don't like artificial scarcity" argument.
Are you saying that the scarcity of physical property is created by property rights? You've got it exactly backwards, the inherent scarcity of physical property is why property rights are necessary to avoid conflict. If the scarcity was artificially created by property rights then getting rid of the property rights would cause no problems at all.
Delete"Are you saying that the scarcity of physical property is created by property rights? "
DeleteNo, what I'm saying is I happen to agree with Wenzel that property rights are designed, hence the idea that scarcity is a component of the designed right.
That's why I put "artificial creations of scarcity" in quotes.
On the basis that we create the idea you own something, we acknowledge its "scarcity"...and that ACKNOWLEDGEMENT is the artificial creation itself.(not the scarcity)
How do you prove who thought of what first, since it is impossible for you to read minds.
ReplyDeleteWhat is taken from an IP owner when his IP is stolen? What does he no longer own that he used to own before the theft?
ReplyDeleteHow can imitation be a harm?
ReplyDeleteRevenue stream based on proprietary intellectual property that was stolen.
DeleteHence all the debate over what is called "property" in re to the issue of whether using stealing someone's UNIQUE idea is deemed as such.
Why is it a booklet now and not a book?
ReplyDelete