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We have just started studying IP in class. I am ‘libertarian’ and advocate for property rights, so this article is of interest.

Copyrights pertain to “original works,” such as books, articles, movies, and computer programs. A copyright is a grant by the state that permits the copyright holder to prevent others from using their own property — e.g., ink and paper — in certain ways.

Those ‘certain ways’ are that I cannot reproduce substantially someone else’s creative work. This is based on two tests: originality & sweat of the brow. Sweat of the brow is actually originality stated in a different way…something the courts seem to have overlooked.

In both cases, the state is assigning to A a right to control B’s property — A can tell B not to do certain things with B’s property. Since ownership is the right to control,

In law, this is an incorrect statement. Ownership and/or possession pertain to property. Possession in law is defined as: an intention to possess and exercising control to exclude others. Therefore, intent combined with possession of IP through control via the law, fulfils the test of possession.

I therefore retain possession of my IP. Excluding your property right to use your pen and ink is a competition of property rights, which are decided based on which property right is more fundamental, as it is in the tort of nuisance.

IP grants to A co-ownership of B’s property. This clearly cannot be justified under libertarian principles. B already owns his property. With respect to him, A is a latecomer. B is the one who appropriated the property, not A. It is too late for A to homestead B’s property — B already did that. The resource is no longer unowned.

Copyright provides protection to the expression of ideas. Not ideas themselves. You are free to use any ideas in your own formulation and expression of them. You cannot use my property [expression] without my permission [licence].

Granting A ownership rights in B’s property is quite obviously incompatible with basic libertarian principles. It is nothing more than redistribution of wealth. IP is thus unlibertarian and unjustified.

Why, then, is this a contested issue? Why do some libertarians still assert the legitimacy of IP rights?

This argument is empty. If the assertion is true, then, granting B rights in A’s property is also incompatible. The failure of the argument is based on a non-recognition of A’s property rights in his own production, viz, the expression of ideas.

Utilitarianism

One reason libertarians support IP is that they approach libertarianism as a whole from a utilitarian perspective instead of a principled perspective. They are in favor of laws that increase overall utility, or wealth. And they believe the state’s propaganda that state-granted IP rights actually do increase overall wealth.

The principled perspective is using reason to elucidate rules [law] that pertain to the question under contemplation. In this case the principled perspective is consistent with the utilitarian perspective. Production creates wealth. Production is a property right. Production of intangible property as opposed to tangible property, is no less production and therefore creative of wealth.

Now, the utilitarian perspective itself is bad enough, because all sorts of terrible policies could be justified this way: why not take half of Bill Gates’s fortune and give it to the poor? Wouldn’t the sum total of the welfare gains to the thousands of recipients be greater than Gates’s reduced utility? After all, he’s still a billionaire afterwards. And if a man is extremely desperate for sex, couldn’t his gain be greater than the loss suffered by his rape victim, say, if she’s a prostitute?

Where utilitarianism expropriates property rights [as in the two examples], it is incompatible with property rights. It is unprincipled. That is not however the case [as argued so far] with IP.

But even if we ignore the ethical and other problems with the utilitarian, or wealth-maximization, approach, it is bizarre that utilitarian libertarians are in favor of IP when they have not demonstrated that IP does increase overall wealth.

I have to exchange my production for things that I want [need] to consume. I may exchange my physical labour for money or goods. That is production which increases the net wealth. It belongs [property] to me. If my production is a novel or database, which can be exchanged for consumables, how then do I not contribute to wealth creation? If I do create wealth, how is it correct to allow my labour [production] to be expropriated?

It is beyond dispute that the IP system imposes significant costs, in money terms alone — not to mention the cost to liberty.

I am an author. I write a book. I want to sell that book, it is my production. It took me 1 year to write. I sell it to a publisher for 1 years money. I probably could not sell it to an individual for that sum of money. The publisher can/will pay because they will sell individual units at a fraction of the cost, allowing others to purchase at that fractional cost, thereby reducing the cost individually in money terms.

However, the argument that the incentive provided by IP law stimulates additional innovation and creativity has not even been proven. It is entirely possible — even likely, in my view — that the IP system, in addition to imposing billions of dollars of cost on society, actually reduces or impedes innovation, adding damage to damage.

Ideas are not protected, simply their expression. There is nothing to prevent inspiration from my ideas in your expression of an individual work. Look at the diversity of literature, music, etc. This post is an example of creation from a previous and original work, viz, responding to your arguments/position/etc. Simply stating that copyright imposes costs etc – how? Where is your argument?

But even if we assume that the IP system does stimulate some additional, valuable innovation, no one has established yet that the value of the purported gains is greater than the costs of the system.

What exactly are the costs? The publisher operates to make a money profit. If he didn’t, he would not remain in business. The costs lie in the protection – the ‘excluding’ limb of possession. These lie ultimately in the courts.

If you ask an advocate of IP how it is that they know there is a net gain, you get silence in response (this is especially true of patent attorneys). They cannot even point to any study to support their utilitarian contention; they usually point to Article I, Section 8 of the Constitution, as if the back-room dealings of politicians two centuries ago is some sort of evidence.

1930s
1930: Neoprene: Wallace Carothers
1931: Magnetic-resistant steel: Kotaro Honda
1931: Magnetic steel: Kotaro Honda
1931: Alnico: Tokuhichi Mishima
1931: MKM steel: Tokuhichi Mishima
1931: Radio telescope: Karl Jansky Grote Reber
1931: Iconoscope: Vladimir Zworykin
1934: Hammond Organ: Laurens Hammond
1935: Microwave RADAR: Robert Watson-Watt
1935: Nylon: Wallace Carothers
1935: Spectrophotometer: Arthur C. Hardy
1935: Casein fiber: Earl Whittier Stephen
1937: Turboprop engine: György Jendrassik
1937: Jet engine: Frank Whittle and Hans von Ohain
1937: O-ring: Niels Christensen
1937: Nylon: Wallace H. Carothers[8]
1937: Portable electrocardiograph: Taro Takemi
1937: Atanasoff–Berry Computer, the first automatic electronic digital computer: John Vincent Atanasoff
1938: Ballpoint pen: Laszlo Biro
1938: xerography: Chester Carlson
1938: Fiberglass: Russell Games Slayter John H. Thomas
1938: LSD: Albert Hofmann
1939: Helicopter: Igor Sikorsky
1939: View-master: William Gruber
1939: Automated teller machine: Luther George Simjian
1939: Vectorcardiography: Taro Takemi
Nuclear medicine: Frederic Joliot-Curie, Irene Joliot-Curie, Taro Takemi

In fact, as far as I’ve been able to tell, virtually every study that attempts to tally the costs and benefits of copyright or patent law either concludes that these schemes cost more than they are worth, that they actually reduce innovation, or the study is inconclusive. There are no studies showing a net gain. There are only repetitions of state propaganda.

The evidence is where?

Anyone who accepts utilitarianism should, based on the available evidence, be opposed to IP.

Not based on your arguments.

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