IP Law – The Libertarian Standard http://libertarianstandard.com Property - Prosperity - Peace Wed, 27 Apr 2016 06:16:21 +0000 en-US hourly 1 https://wordpress.org/?v=4.5.3 A new website and group blog of radical Austro-libertarians, shining the light of reason on truth and justice. IP Law – The Libertarian Standard clean IP Law – The Libertarian Standard thelibertarianstandard@gmail.com thelibertarianstandard@gmail.com (IP Law – The Libertarian Standard) CC-BY Property - Prosperity - Peace IP Law – The Libertarian Standard http://libertarianstandard.com/wp-content/plugins/powerpress/rss_default.jpg http://libertarianstandard.com/category/statism/ip-law/ TV-G The martyrdom of Aaron Swartz http://libertarianstandard.com/2014/01/16/the-martyrdom-of-aaron-swartz/ Thu, 16 Jan 2014 11:00:52 +0000 http://libertarianstandard.com/?p=12794 A little over a year ago, a 26-year-old programmer and activist was murdered. His name was Aaron Swartz, and although he was found hanged in his Brooklyn apartment, and his death ruled a suicide, there is little question whose hands are stained with his blood. He was pursued mercilessly by a bullying prosecutor with a long track record of ruining the lives of brilliant (and perhaps naive) young men who didn’t play by the state’s rules. And he was betrayed by an educational institution that once prided itself on not playing by the rules, either.

Those are some of the heartbreaking and infuriating insights from a story in this month’s edition of Boston magazine about Aaron Swartz’ arrest and indictment, his father Bob’s attempts to extricate his son from the legal mess, and the relentless pressure by federal prosecutors to make an example of him. The punishment they sought for Aaron was draconian even by the feds’ standards: 13 felony counts under the Computer Fraud and Abuse Act (CFAA), with a possible prison term of 35 years, and a $1 million fine. Bank robbers and terrorists have received more lenient sentences. But U. S. Attorney Carmen Ortiz declared that Swartz’ prosecution would serve as a warning to other “hackers” about “stealing” from computers.

Aaron SwartzWhat did Swartz “steal”, exactly? Nothing. He downloaded files from JSTOR, an online archive for academic journals. Swartz used the network at MIT, where his father served as an adviser, under its “open access” policy, which included its subscription to JSTOR. Swartz had long held the view that scientific research should be freely available and not locked away behind a paywall. This wasn’t even the first time Swartz had performed such a download; in 2008 he grabbed 2.7 million documents from PACER, a federal court document system that usually charged for such access, even though they were public records. That attracted the FBI’s attention, but they found Swartz had committed no crime.

Swartz in fact had devoted much of his young life to finding ways to liberate information. Some of his earliest work included coauthoring the RSS 1.0 specification, a syndication format for Web-based content; founding a company to create wiki-based technology, which eventually merged with Reddit; and co-founding Demand Progress, an online advocacy group known mainly for its opposition to the Stop Online Piracy Act (SOPA). Swartz had also worked with Lawrence Lessig, a law professor and an advocate for intellectual property reform, studying under him at Stanford and later as a research fellow at Harvard. Swartz aided Lessig in developing the Creative Commons alternative copyright framework.

Given Swartz’ professional credentials and his history of “hacktivism”, what made his bulk downloads from JSTOR any more egregious than his previous exploits? The fact that Secret Service agents responded to the report of a “security breach” in the MIT network provides a possible clue:

When the Secret Service arrived, Bob [Swartz] says, the first thing they asked was whether any of the university’s classified research was threatened.

It wasn’t, but the nature of Swartz’ download, from a laptop hidden in a utility closet, made it look more suspicious to the feds. And it’s not surprising that a university receiving nearly a billion dollars in federal grants might toe the line with regards to any demand from the government, its hacker ethic be damned.

Intellectual property enforcement also played a role in Swartz’ prosecution. JSTOR subscriptions are not cheap, costing schools up to $50,000 per year. But MIT had a policy that not only allowed anyone on campus to use their network, but did not require authentication to access JSTOR. It was only after Swartz’ bulk download that suddenly “unauthorized network access” became an issue, allowing him to be charged under the CFAA. At worst, Swartz cost JSTOR some bandwidth during his download (to its credit, JSTOR settled with Swartz out of court and pursued no further legal action), but he didn’t steal anything. The concept of intellectual property, and the framework used by the state to enforce copyright, rests on the logically bankrupt notion that downloading a copy of something without permission constitutes “theft”. Never mind that Swartz did have permission in this case — once he broke some imaginary and unwritten rule (“too many documents”, apparently), his action rose to the level of a felony in the federal government’s view. This preposterous reasoning was all prosecutors needed to go after Swartz.

It was Aaron’s misfortune that he did his deed in a district with one of the country’s most notorious cyber-crime prosecutors. Stephen Heymann, the lead prosecutor in Swartz’ case, is no stranger to ruining young men’s lives. In 1994 Heymann prosecuted a student, also at MIT, for creating a bulletin board system which allowed users to trade copyrighted software (a precursor to the file-sharing networks common today). His case was dismissed on grounds that he didn’t intend to profit from the downloads, which prompted Congress to strengthen the CFAA to allow prosecution even if profit wasn’t a motive.

Heymann later won the conviction of 16-year-old Jonathan James, who had gained access to NASA and Department of Defense systems, and became the first juvenile to be incarcerated (via house arrest) for hacking. Heymann again targeted James in 2008, in an investigation of an identity theft ring tied to break-ins of department store networks. Although the Secret Service never found any evidence James was involved in the hacks, he killed himself in 2008, saying he had “no faith in the ‘justice’ system.”

Nor should anyone else, really. The system has never been about “justice,” and it seemed even less so in the circumstances surrounding Aaron Swartz’ case. This case was about projecting government power and crushing anyone who dared to upset the status quo, as Swartz often did. And anyone wishing to remain in the elites’ good graces — like MIT, and most other public research universities — had best do whatever is necessary to please their masters. And despite their pleas of “neutrality” in this case, MIT administrators did exactly that. They provided Heymann with every scrap of information they had about Swartz’ activities, usually with just a phone call. Bob Swartz pleaded with them to negotiate a settlement, asking: “Why are you destroying my son?” The school never gave him a satisfactory answer.

With the arrogance characteristic of state prosecutors, Heymann seemed shocked at Swartz’ temerity to fight the charges. Most outrageously, he likened Swartz to a rapist:

Negotiations continued, but in the end Aaron told Heymann no. He would fight the felony charges and go to trial.

Later, Heymann would tell MIT that he was “dumbfounded” by Aaron’s decision, and claimed that Aaron was “systematically re-victimizing” the university by choosing to go through proceedings. Publicly criticizing MIT at a trial, Heymann said, was akin to “attacking a rape victim based on sleeping with other men.”

If anyone was “raped” in this scenario, it was Aaron. Humiliated, cut off from many of his friends — his relationship with his girlfriend, Quinn Norton, ended after Norton tried to talk to Heymann and wound up giving the prosecutor a key piece of evidence against him — and seeing no end to the persecution, Aaron Swartz decided to end it himself.

In the end, there were no winners. No one was ever hurt by Swartz’ actions, no vital national interest served, no copyrights protected, no damage to repair. Instead the world lost a brilliant young mind who understood better than most the power knowledge has to liberate the world. Perhaps the state understands that too, which is why it tries so desperately to crush those who attempt to set it free.

Complete Liberty: The Demise of the State and the Rise of Voluntary America, by Wes Bertrand http://libertarianstandard.com/2013/02/04/complete-liberty-the-demise-of-the-state-and-the-rise-of-voluntary-america-by-wes-bertrand/ Tue, 05 Feb 2013 02:03:53 +0000 http://libertarianstandard.com/?p=12331 I recently came across the website and podcast “Complete Liberty,” by Wes Bertrand, also featuring Bertrand’s 2007 book Complete Liberty: The Demise of the State and the Rise of Voluntary America (print; PDF). The podcast has some excellent episodes, including a whole series on IP—episodes 89–99.

Free European Students for Liberty Webinar with Jeff Tucker TODAY 2PM Eastern Time: “Commerce and the Commons: How Enterprise Will Survive and Thrive the Death of Intellectual Property” http://libertarianstandard.com/2013/01/29/free-european-students-for-liberty-webinar-with-jeff-tucker-today-2pm-eastern-time-commerce-and-the-commons-how-enterprise-will-survive-and-thrive-the-death-of-intellectual-property/ Tue, 29 Jan 2013 13:17:53 +0000 http://libertarianstandard.com/?p=12315 jefftucker

Jeffrey A. Tucker

Jeff Tucker of Laissez Faire Books is giving a free Webinar this afternoon: “Commerce and the Commons: How Enterprise Will Survive and Thrive the Death of Intellectual Property“. This event is sponsored by European Students For Liberty, and appears to be open to anyone. Info below:

Tuesday, January 29, at 20:00-21:00 CET/2:00PM-3:00PM EDT

Where? On your Computer!

Speaker:  Jeffrey Tucker

Topic: Commerce and the Commons: How Enterprise Will Survive and Thrive the Death of Intellectual Property

Register here: https://www2.gotomeeting.com/register/882656282

Intellectual Property Rights have always been a hot topic among libertarians. One of the main arguments in favor is the belief that these rights are essential for entrepreneurship. Businesses wouldn’t be able to innovate without the financial fruits of their intellectual labor. But exactly how essential is intellectual property in this regard? Would an end of these rights mean an end of commerce? Or the reverse? Find out during this upcoming webinar!

Jeffrey Tucker is executive editor of the newly refurbished Laissez Faire Books, a leading publisher of libertarian books, and founder and head of the Laissez Faire Club. He also author of Bourbon for Breakfast (2010), It’s a Jetsons World (2011), and Beautiful Anarchy (2012).


Launching the Kinsella on Liberty Podcast http://libertarianstandard.com/2013/01/23/launching-the-kinsella-on-liberty-podcast/ http://libertarianstandard.com/2013/01/23/launching-the-kinsella-on-liberty-podcast/#comments Wed, 23 Jan 2013 15:36:36 +0000 http://libertarianstandard.com/?p=12296 Kinsella On Liberty

As many of my readers know, I often lecture and speak and give podcast or radio interviews on various libertarian topics and issues, such as intellectual property (IP), anarcho-libertarians, Austrian law and economic, contract theory, rights and punishment theory, and so on. I also blog and comment regularly on such matters in various blogs (primarily The Libertarian Standard, on general libertarian matters, and C4SIF, on IP-related matters), Facebook, and so on—often posting my take on a given issue in response to a question emailed to me or posted online.

This month I am launching a new podcast, Kinsella on Liberty. I expect to post episodes once or twice a week. The podcast will include new episodes covering  answers to questions emailed to me (feel free to ask me to address any issue of libertarian theory or application) as well as interviews or discussions I conduct with other libertarians. I’ll also include in the feed any new speeches or interviews of mine that appear on other podcasts or fora, as well as older speeches, interviews, and audio versions  of my articles, which  are collected for now on my media page). Audio and slides for several of my Mises Academy courses may also be found on my media page, and will also be included in the podcast feed later this year. Feel free to iTunesSubscribe in iTunes or RSSFollow with RSS, and spread the word to your libertarian friends. I welcome questions for possible coverage in the podcast, as well as any criticism, suggestions for improvement, or other feedback. My general approach to libertarian matters is Austrian, anarchist, and propertarian, influenced heavily by the thought of Ludwig von Mises, Murray N. Rothbard, and Hans-Hermann Hoppe. My writing can be found in articles here and blog posts at The Libertarian Standard and C4SIF, such as:

On IP in particular, which I’ll also cover from time to time in the podcast, see:


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Kinsella on Anarchast Discussing IP, Anarcho-libertarianism, and Legislation vs. Private Law http://libertarianstandard.com/2012/12/30/kinsella-on-anarchast-discussing-ip-anarcho-libertarianism-and-legislation-vs-private-law/ Sun, 30 Dec 2012 13:25:57 +0000 http://libertarianstandard.com/?p=12161 I was a guest on Jeff Berwick’s Anarchast (ep. 51, 36 min), released today. We discussed anarchy and how such a society might be reached; the basis and origin of law and property rights and its relationship to libertarian principles, and implications for legislation versus law and the legitimacy of intellectual property; also, utilitarianism, legal positivism, scientism, and logical positivism. Description from the Anarchist site below; MP3 download. For more background on IP, see the C4SIF Resources page; on legislation vs. private law, see The (State’s) Corruption of (Private) Law.


Anarchast Ep. 51 with Stephan Kinsella

Jeff Berwick in Acapulco, Mexico, talks with Stephan Kinsella in Houston, Texas

Topics include:

– Stephan explains how he became an anarchist and some of the books that pointed him in the right direction including
The Fountainhead (http://amzn.to/VnZwSL)
– Stephan is a practicing attorney that applies his legal knowledge with his libertarian philosophy
– He believes a free law society will only come about if a majority of people agree in libertarian principles
– Law is defined as a concrete body of rules that permits a group of people that want to be able to cooperate to be able to do so
– Jeff asks if it is necessary for everyone to agree with libertarian philosophy in order to have a free society
– Stephan thinks that a majority of people already have libertarian principles but have not been educated correctly in constancy
– He is more optimistic that most because he sees more people not accepting central planning than in the past
– Jeff thinks that there could be a backlash against free market ideas during a financial collapse where the people believe capitalism is to blame
– Stephan hopes that people will slowly find the state to be irrelevant and this will bring about a free society
– Jeff thinks that there will be a financial collapse that will make this transition unpredictable
– Stephan is an expert in libertarian Intellectual Property theory
– He explains the principles of property law
– What most people think is law today is not what law would be based on in a libertarian society
– Stephan explains the problem with legal and economic positivism
– The proper libertarian view is to be opposed to making law through legislation
– The problem with intellectual property is that you are able to use the force of the government against someone who has not aggressed against you
– Stephan explains the problems with the utilitarian Intellectual property justification
– The intellectual property system forces everyone to participate even if they don’t agree with it

Stephan is doing astounding work in libertarian legal theory you can find more in formation on his sites



For more information on The Dollar Vigilante, go to http://dollarvigilante.com. For more information on Jeff Berwick’s anarchist enclave, Galt’s Gulch Chile, go to http://galtsgulchchile.com. And, for more on the anarchist enclave in Acapulco go to http://dollarvigilante.com/acacondos. Come on down and be a guest on Anarchast and live relatively free amongst other anarchists.

Source: http://financialsurvivalnetwork.com/2012/12/anarchast-ep-51-with-stephan-kinsella/?utm_source=rss&utm_medium=rss&utm_campaign=anarchast-ep-51-with-stephan-kinsella



[Cross-posted from C4SIF]

I was a guest on Jeff Berwick’s Anarchast (ep. 51, 36 min), released today. We discussed anarchy and how such a society might be reached; the basis and origin of law and property rights and its relationship to libertarian principles, I was a guest on Jeff Berwick’s Anarchast (ep. 51, 36 min), released today. We discussed anarchy and how such a society might be reached; the basis and origin of law and property rights and its relationship to libertarian principles, and implications for legislation versus law and the legitimacy of intellectual property; also, utilitarianism, legal positivism, […] Stephan Kinsella clean <iframe width="290" height="30" src="http://libertarianstandard.com/?powerpress_embed=12161-podcast&amp;powerpress_player=mediaelement-audio" frameborder="0" scrolling="no"></iframe>
Top State Evils: A Scorecard of Libertarian Progress http://libertarianstandard.com/2012/11/15/top-state-evils-an-assessent-of-libertarian-progress/ http://libertarianstandard.com/2012/11/15/top-state-evils-an-assessent-of-libertarian-progress/#comments Thu, 15 Nov 2012 05:10:32 +0000 http://libertarianstandard.com/?p=11972 The most evil and harmful state laws, institutions, and policies are, I believe:

  • war;
  • the Fed/central banking/fiat money;
  • government schools;
  • taxation;
  • the drug war;
  • intellectual property (patent and copyright).1
You could also mention the regulatory state and the entitlement state, but the above makes a pretty good listing of the top things we libertarians would get rid of if we could.

How are we doing on these issues? I spoke with some radical libertarian friends—it’s fun musing as to which one you would abolish first, if you could—and here is the basic take:

  • war: not great, but they are getting harder for modern debt-laden welfare-states to afford;
  • the Fed/central banking/fiat money: not great, but bitcoin could pose a threat;
  • government schools: not great, but at least, in the US, homeschooling and private schools are legal;
  • taxation: not great, and getting worse, but there seems to be a limit to the level of taxes the state can get away with imposing on the economy;
  • the drug war: still horrible, but significant inroads have been made in the last election, with marijuana being legalized on a state-law basis by Washington and Colorado; and
  • intellectual property: getting more and more out of hand, but being seen as more and more ridiculous and unjust. Copyright is getting easier to evade with various technologies like encryption and bit torrent; and patents are being seen more and more as ridiculous and protectionist.

Overall, the biggest cause for hope is probably the recent progress made in the insane, evil war on drugs.


  1. See Where does IP Rank Among the Worst State Laws? 

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TLS Podcast Picks: Cuba, Public Pensions, 3D Printing and IP http://libertarianstandard.com/2012/11/10/tls-podcast-picks-cuba-public-pensions-3d-printing-and-ip/ Sun, 11 Nov 2012 03:39:56 +0000 http://libertarianstandard.com/?p=11981 Recommended podcasts:

Until the 1959 ouster of dictator Fulgencio Batista, Cuba’s legislature convened in the domed Capitolio building in Havana. Today it’s a symbol of a prerevolutionary Cuba that no one under the age of 50 experienced. © Paolo Pellegrin/National Geographic

  • Cuba’s New Now,” KERA Think (Nov. 8, 2012). Fascinating interview by the amazing KERA Think host, Krys Boyd: “What has changed in Cuba since Fidel Castro ostensibly stepped away from power and are the changes happening fast enough for the Cuban people? We’ll talk this hour with National Geographic Magazine contributor Cynthia Gorney, whose story “Cuba’s New Now” appears in the current issue of the magazine.”
  • Joshua Rauh on Public Pensions,” EconTalk. Chilling discussion of the looming public pension crisis, with host Russ Roberts: “Joshua Rauh, Professor of Finance at Stanford University’s Graduate School of Business and a senior fellow at Stanford University’s Hoover Institution, talks with EconTalk host Russ Roberts about the unfunded liabilities from state employee pensions. The publicly stated shortfall in revenue relative to promised pensions is about $1 trillion. Rauh estimates the number to be over $4 trillion. Rauh explains why that number is more realistic, how the problem grew in recent years, and how the fiscal situation might be fixed moving forward. He also discusses some of the political and legal choices that we are likely to face going forward as states face strained budgets from promises made in the past to retired workers.” My guess? States and localities will end up declaring bankruptcy to modify their pension obligations.
  • Chris Anderson on 3D Printing and the Maker Movement,” Surprisingly Free. “Chris Anderson, former Wired magazine editor-in-chief and author of Makers: The New Industrial Revolution, describes what he calls the maker movement. According to Anderson, modern technologies, such as 3D printing and open source design, are democratizing manufacturing. The same disruption that digital technologies brought to information goods like music, movies and publishing will soon make its way to the world of physical goods, he says.” A good discussion of IP implications of 3D printing begins around 14:00.
  • My recent Libertopia talk, Intellectual Nonsense: Fallacious Arguments for IP.
  • My interview, “Silver for the People Interview: Stephan Kinsella—Copyright Laws Cost the U.S. $Billions in Economic Growth” (at Libertopia, San Diego, Oct. 12, 2012).
Ayn Rand and Atlas Shrugged, Part II: Confused on Copyright and Patent http://libertarianstandard.com/2012/10/21/ayn-rand-and-atlas-shrugged-part-ii-confused-on-copyright-and-patent/ http://libertarianstandard.com/2012/10/21/ayn-rand-and-atlas-shrugged-part-ii-confused-on-copyright-and-patent/#comments Sun, 21 Oct 2012 22:52:14 +0000 http://libertarianstandard.com/?p=11844 Reports about the new movie Atlas Shrugged: Part II indicate that it highlights Ayn Rand’s deep confusion on the whole issue of intellectual property (IP)—e.g,. from my friend Jacob Huebert.  Stephanie Murphy mentions some of the IP confusion in the film in her recent PorcTherapy podcast (at around 1:05). And Chris Bassil, of Hamsterdam Economics, in Atlas Shrugged Part II: Hank Rearden Confuses his Principles, notes:

At one point, industrial steel magnate and metal manufacturer Hank Rearden is ordered by the state to sell his Rearden metal to them, which he has up until this point been refusing to do. He is also forced to sign away his rights to the metal, so that the state can distribute its procedure to other manufacturers and it can be universally produced. At this point, Rearden accuses the agent in his office of trying to take his patents from him.

This, to me, is a philosophically complicated position. Now, Ayn Rand, despite taking a position against the government in many cases, was a huge supporter of patents and intellectual property rights. As Stephan Kinsella has pointed out here, Rand endorsed them on a number of occasions:

Patents are the heart and core of property rights.

Intellectual property is the most important field of law.

Without getting into the larger points concerning intellectual property (which Stephan Kinsella covers well here, and which I discussed briefly in the Duke University Chronicle here), I think that Rearden’s position on this is a bit contradictory. He is indignant that the state would move to deprive him of his patents, thereby also depriving him of the fruits of his labors. But isn’t that what those patents do to others? Don’t they prevent others who develop similar products from bringing them to the market? It is true that, within the context of the film, Rearden plays a heroic producer who alone seems able to keep the steel industry afloat. But this glosses over the daily considerations of intellectual property laws, which are seldom enforced on such a genuine basis.

Furthermore, Rearden’s position seems to me to be a little bit disingenuous. After all, he opposes the state’s use of force. In fact, he constantly pushes state officials to actually endorse the use of force instead of merely allowing it to be implied. At the same time, however, his patents themselves rest on just such a threat. I see this as something of a double standard.

Of course, Rand might respond that the force backing Rearden’s patent is legitimate, since, in her view, patents are themselves legitimate derivations of individual property rights. I don’t agree with this either, but that would require a much more extensive blog post to cover. For now, see my article in the Chronicle on it, and Kinsella’s book, articles, YouTube videos, or even audiobooks available for free from the Mises Institute on iTunes U.

Overall, this is why I think that Ayn Rand’s work largely functions more as a gateway to discovery of free-market ideas rather than as a truly solid foundation for them. In my opinion, much of what Rand was right about is better said by others, and there was a lot that I don’t think she was right about, either.

And as Jeff Tucker notes in his recent comments on the movie:

Of course this gets us into the Randian view of IP, that great industrial ideas — appearing out of nowhere in the minds of a few — must somehow be assigned to owners and protected by government. And sure enough, patents and copyrights as property play a major role in Atlas II, as when Hank Reardon is blackmailed into assigning his patents as a gift to the government. It’s a scene that completely overlooks that these patents themselves were actually granted by government in the first place and would not exist in the free market.

In fact, for any viewer schooled in the role of patents today, this scene actually makes the viewer less sympathetic to Reardon. For a brief moment, he actually looks like a member of the monopolist class who is dependent on government favors. Not good. This scene reinforces for me my sense that the single biggest mistake Rand made was not in her ethics, economics, or religion but in her view that ideas are property and must receive government codification.

I haven’t seen either Part I or Part II yet of the movie versions of Atlas, but none of this is surprising to me, given Rand’s completely confused IP views. Some of these IP views are of course present in her magnum opus Atlas Shrugged and could be expected to leak into the films (at least the IP issue doesn’t dominate or ruin Atlas, like it does The Fountainhead, which basically glorifies IP terrorism).  Rand’s view of IP and rights was very confused. I have referred to it as libertarian “creationism” and have criticized it, as well as her confused view of the relationship between labor, ownership, homesteading, and production (see, e.g., most recently, my recenty speech Intellectual Nonsense: Fallacious Arguments for IP (Libertopia 2012), and various blog posts on these and related fallacies and confusions, e.g. Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging’Rand on IP, Owning “Values”, and ‘Rearrangement Rights’Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors, and Hume on Intellectual Property and the Problematic “Labor” Metaphor.

IP is one of the worst things the state does to us (about #6, as I argue in Where does IP Rank Among the Worst State Laws?). To uphold it as legitimate is bad enough, but to say “Patents are the heart and core of property rights” or “Intellectual property is the most important field of law” is obscene, especially for a soi-disant champion of capitalism, individual rights, and the free market. And she had only a dim understanding of the actual workings of the actual IP system that she claimed was the basis for her entire system of property rights. I view this as inexcusable. As Rothbard wrote,

It is no crime to be ignorant of economics, which is, after all, a specialized discipline and one that most people consider to be a ‘dismal science.’ But it is totally irresponsible to have a loud and vociferous opinion on economic subjects while remaining in this state of ignorance.

Likewise, Rand should not have run around promoting and jabbering about IP when she knew little about it. She gave the US Constitution wayy too much presumptive libertarian validity, which is probably one reason she was so pro-patent and copyright: the Constitution says it’s okay! This also explains why Rand initially favored eminent domain–because the Constitution implicitly authorized it (until around 1954, when Herb Cornuelle convinced her to oppose eminent domain). (I’ve been told this is indicated in Murray Rothbard’s correspondence, as I also noted in Ideas Are Free: The Case Against Intellectual Property.)

But as for her shallow understanding of the actual and evil IP law that the felt fit to endorse — as I mentioned in Ayn Rand Finally Right about the First-to-File US Patent System, Rand mistakenly assumed that under US patent law, the first inventor to file has priority over later filers, in the case of multiple independent inventors of the same idea. Then she bent into contortions trying to defend such an obviously unfair, and artificial and arbitrary, rule.

And the way IP rights play out in Atlas shows that she didn’t have any IP lawyer look at her drafts.

Por ejemplo: take a look at these excerpts from Atlas Shrugged (some bolded by me):

“What profits?” yelled Orren Boyle. “When did I ever make any profits? Nobody can accuse me of running a profit-making business! Just look at my balance sheet—and then look at the books of a certain competitor of mine, who’s got all the customers, all the raw materials, all the technical advantages and a monopoly on secret formulas—then tell me who’s the profiteer! [Rand, Ayn (2005-04-21). Atlas Shrugged: (Centennial Edition) (p. 535). Plume. Kindle Edition.]

“Point Three. All patents and copyrights, pertaining to any devices, inventions, formulas, processes and works of any nature whatsoever, shall be turned over to the nation as a patriotic emergency gift by means of Gift Certificates to be signed voluntarily by the owners of all such patents and copyrights. The Unification Board shall then license the use of such patents and copyrights to all applicants, equally and without discrimination, for the purpose of eliminating monopolistic practices, discarding obsolete products and making the best available to the whole nation. No trademarks, brand names or copyrighted titles shall be used. Every formerly patented product shall be known by a new name and sold by all manufacturers under the same name, such name to be selected by the Unification Board. All private trademarks and brand names are hereby abolished.

“Point Four. No new devices, inventions, products, or goods of any nature whatsoever, not now on the market, shall be produced, invented, manufactured or sold after the date of this directive. The Office of Patents and Copyrights is hereby suspended. [Rand, Ayn (2005-04-21). Atlas Shrugged: (Centennial Edition) (p. 538). Plume. Kindle Edition.]

Boyle did not catch the tone of mockery, and answered earnestly, “It destroys the blight of monopoly. It leads to the democratization of industry. It makes everything available to everybody. Now, for instance, at a time like this, when there’s such a desperate shortage of iron ore, is there any sense in my wasting money, labor and national resources on making old-fashioned steel, when there exists a much better metal that I could be making? A metal that everybody wants, but nobody can get. Now is that good economics or sound social efficiency or democratic justice? Why shouldn’t I be allowed to manufacture that metal and why shouldn’t the people get it when they need it? Just because of the private monopoly of one selfish individual? Should we sacrifice our rights to his personal interests?” “Skip it, brother,” said Fred Kinnan. “I’ve read it all in the same newspapers you did.” “I don’t like your attitude,” said Boyle, in a sudden tone of righteousness, with a look which, in a barroom, would have signified a prelude to a fist fight. He sat up straight, buttressed by the columns of paragraphs on yellow-tinged paper, which he was seeing in his mind: “At a time of crucial public need, are we to waste social effort on the manufacture of obsolete products? Are we to let the many remain in want while the few withhold from us the better products and methods available? Are we to be stopped by the superstition of patent rights?” “Is it not obvious that private industry is unable to cope with the present economic crisis? How long, for instance, are we going to put up with the disgraceful shortage of Rearden Metal? There is a crying public demand for it, which Rearden has failed to supply.” “When are we going to put an end to economic injustice and special privileges? Why should Rearden be the only one permitted to manufacture Rearden Metal?” [Rand, Ayn (2005-04-21). Atlas Shrugged: (Centennial Edition) (pp. 544-545). Plume. Kindle Edition.]

“I know,” said Mouch glumly. “That’s the point I wanted Thompson to help us out on. But I guess he can’t. We don’t actually have the legal power to seize the patents. Oh, there’s plenty of clauses in dozens of laws that can be stretched to cover it—almost, but not quite. Any tycoon who’d want to make a test case would have a very good chance to beat us. And we have to preserve a semblance of legality—or the populace won’t take it.” “Precisely,” said Dr. Ferris. “It’s extremely important to get those patents turned over to us voluntarily. Even if we had a law permitting outright nationalization, it would be much better to get them as a gift. We want to leave the people the illusion that they’re still preserving their private property rights. And most of them will play along. They’ll sign the Gift Certificates. Just raise a lot of noise about its being a patriotic duty and that anyone who refuses is a prince of greed, and they’ll sign. But—” He stopped. [Rand, Ayn (2005-04-21). Atlas Shrugged: (Centennial Edition) (p. 547). Plume. Kindle Edition.]

These passages illustrate Rand’s ignorance of the systems she thought were the heart and core of property rights.

For instance: she refers to the “Office of Patents and Copyrights.” But there is no such thing. Patent and copyright are both authorized by the Constitution, but they are not handled by a unified office. It is patent and trademark that are handled by the same agency, the US Patent and Trademark Office, which is an agency of the Dept. of Commerce, even though the Constitution does not authorize federal trademark law. Copyright law is handled by a separate agency, the Copyright Office, which is, bizarrely, part of the Library of Congress (bizarre to me, in that that what seems to be an executive agency is under the legislature).

Another mistake: in this scene, the state agents want to find a way to pressure patent and copyright holders to turn them over to the state. After all, “We don’t actually have the legal power to seize the patents.” But this is just false. Patents are just artificial monopoly privileges granted by the state; the states does not seize private property if it “takes them back.” Taking them “back” does not mean “licensing them” back to “all applicants,” but just doing away with these monopoly privilege grants in the first place. And the state does have the “legal power” to issue compulsory licenses, even now, to the patents that the state grants (see my posts Objectivist worried ObamaCare may weaken patent rightsPrice Controls, Antitrust, and PatentsPro-IP Libertarians Upset about FTC Poaching Patent Turf; also, When Antitrust and Patents Collide (Rambus v. FTC);Price Controls, Antitrust, and PatentsIntellectual Property and Economic Development; IP vs. AntitrustState Antitrust (anti-monopoly) law versus state IP (pro-monopoly) lawThe Schizo Feds: Patent Monopolies and the FTCThe Schizophrenic StateIntel v. AMD: More patent and antitrust waste). So why would the state agents need to make up an excuse to “seize” patents if only to re-license them to others? After all, the state grants these monopoly privileges, and it has the legislative authority to grant compulsory licenses. The whole premise of Rand’s scenario involving patents and Rearden’s metal and Points 3 and 4 of Mouch’s “Directive” makes no sense.

The passages in Atlas quoted above strongly imply that Rearden Metal is not protected by trade secret, but by patent. And that the only reason others cannot make Rearden Metal is that the state has granted to him a “private monoply” (a patent) on it. For Rand to say that the state’s withdrawal of the monopoly patent privilege, is some kind of taking of private property, shows how far she has strayed from libertarian principles.

Notice all this part:

No new devices, inventions, products, or goods of any nature whatsoever, not now on the market, shall be produced, invented, manufactured or sold after the date of this directive. The Office of Patents and Copyrights is hereby suspended.

This implies that without the state providing a patent and copyright office, there would be no more inventions, innovations. This the utilitarian aspect of Rand’s argument. And it is utterly without merit, as can be seen in various studies noted here.

[C4SIF cross-post]

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Blackmail, Copyright, Libel and Free Speech http://libertarianstandard.com/2012/08/31/blackmail-copyright-libel-and-free-speech/ http://libertarianstandard.com/2012/08/31/blackmail-copyright-libel-and-free-speech/#comments Fri, 31 Aug 2012 19:01:17 +0000 http://libertarianstandard.com/?p=11562 A recent Volokh post on Blackmail discusses the perennial question of when speech becomes constitutionally unprotected blackmail. The idea here is that there is a “tension” between blackmail law and free speech rights. And even though we know blackmail law suppresses free speech, most people are in favor of it anyway. Volokh calls this dilemma “one of the thorniest conceptual questions in all of jurisprudence” and summaries what is “sometimes called the Blackmail Paradox”. The blackmail paradox observes that A is generally free to publish embarrassing information about B, or to keep quiet about it; and A is free to ask B for money to do or refrain from doing something within A’s rights. Yet

if I ask you for money or a service in exchange for my not revealing embarrassing information about you, then that’s a crime.

What’s the explanation? Legal scholars have debated this for decades, and to my knowledge have not come up with a perfectly satisfactory answer.

I disagree with Volokh. The answer is simple: blackmail law is incompatible with individual rights and should not exist, as argued by Walter Block and Murray N. Rothbard.1 The paradox only arises when you try to justify free speech and a law that undermines it. Yes, there is a “tension” between such law and free speech; it should be resolved not by finding the right “balance,” but by rejecting the unlibertarian law altogether.

Intellectual property, in its various forms—including patent and trademark, but most especially copyright—also limits, chills, and suppresses freedom of speech and of the press. And thus in these cases too, mainstreamers and statists, who think we “must” have these laws, but who recognize the tension between them and civil liberties, fall back on the confused and utterly unprincipled “we must find a balance” approach. As Ayn Rand might say, you don’t want to find a balance between nutritious food and poison.

As noted, trademark and even patent, and ohter types of IP such as publicity rights, undermine freedom of speech.2 But the most pernicious in this respect is copyright, which threatens not only freedom of the press and freedom of speech, but Internet freedom itself.3 In the name of copyright, books are censored and suppressed and chilled.4 As noted, this is a vivid illustration of a situation where libertarians and classical liberals are forced to try to adopt a “balance” between fake, positive-law rights and libertarian rights. Once an artificial, non-libertarian right is enshrined in law, it necessarily invades the turf of real, negative rights, much like printing more money dilutes the value of existing money by way of inflation.

Even the courts recognize that copyright (and defamation) laws are incompatible with free speech and the First Amendment. This is actually an argument that these and related laws are unconstitutional. After all, federal legislation on trademark and defamation (libel)is not even authorized in the Constitution. So such laws are doubly unconstitutional: they are not authorized, and are hus ultra vires, and they are incompatible with the First Amendment. Copyright law, by contrast, is authorized in the Constitution. However, the Copyright Act is clearly incompatible with the First Amendendment. What is one to do, in the case of such a conflict? Well in this case, the First Amendment was ratified in 1791, two years after the Constitution and its copyright clause (1789). Therefore, to the extent of any conflict, the later-ratified provision takes precedence. In other words, the First Amendment makes copyright uconstitutional. Not that the courts see it that way, of course. But still.5

The point is: libertarians and others who believe in civil liberties, Internet freedom, freedom of speech and of hte press, should oppose positive state laws that are inconsistent with theese rights, including blackmail, defamation, trademark, and copyright law.

Addendum: Another “tension” in federal law is that between antitrust and trademark law. The former purports to oppose monopolies, while the latter grants them. See Pro-IP Libertarians Upset about FTC Poaching Patent TurfState Antitrust (anti-monopoly) law versus state IP (pro-monopoly) law. In this case, both IP and antitrust law need to go: IP law, because it forms monopolies that antitrust law claims to oppose; antitrust law, because it focuses on private companies, which cannot form true monopolies, and ignores the real monopolies formed by the state itself.


  1. See Rothbard, “Knowledge, True and False,” in the Ethics of Liberty; and various articles on blackmail on Block’s publications page (including our co-authored piece The Second Paradox of Blackmail), Defending the Undefendable, ch. 6, and Block’s Legalize Blackmail (Straylight, forthcoming 2012).  

  2. Trademark as Censorship: Newspaper Claims Satirical Blogger Mentioning Its Name Is Trademark Infringement; Copyright and Free Trade; Patents and CensorshipPatents Threaten To Silence A Little Girl, Literally; Cato/Reason/CEO brief opposing medical diagnostic process patents as violating freedom of speechWilt Chamberlain’s Family Tries To Block Film About His College Years, Claiming ‘Publicity Rights’Michael Jordan Sues Grocery Stores for Hall of Fame Congratulatory Ads. See also “Types of Intellectual Property.” 

  3. See Where does IP Rank Among the Worst State Laws?

  4. Howard Hughes, Copyright, and Censorship; The Patent, Copyright, Trademark, and Trade Secret Horror Files; Should Copyright Be Allowed to Override Speech Rights?; Libraries: Prepare to burn foreign books, courtesy copyright law; Paramount Trying to Ban “Godfather” Sequels with Copyright; Federalist Society Asks: What’s the Right Amount of Censorship?other posts

  5. Copyright Censorship versus Free Speech and Human Rights; Excessive Fines and the Eighth Amendment; Copyright is Unconstitutional

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Kinsella Interview on Net Neutrality: Austrian AV Club—Mises Institute Canada http://libertarianstandard.com/2012/08/26/kinsella-interview-on-net-neutrality-austrian-av-club-mises-institute-canada/ Mon, 27 Aug 2012 02:34:57 +0000 http://libertarianstandard.com/?p=11614 I was interviewed a couple weeks ago by Redmond Weissenberger, Director of the Ludwig von Mises Institute of Canada. We had a long-ranging discussion on the issue of net neutrality, and we touched on other issues as well including various ways the state impinges on Internet freedom, such as in the name of IP (SOPA, ACTA), child pornography, terrorism, online gambling, and so on.

For background on some of the issues discussed, see my posts Net Neutrality DevelopmentsKinsella on This Week in Law discussing IP, Net NeutralityAgainst Net Neutrality.