L. Neil Smith on Anti-IP “Thieves”

IP Law
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As a followup to various posts (The L. Neil Smith – FreeTalkLive Copyright Dispute; Russell Madden’s “The Death Throes of Pro-IP Libertarianism”; Replies to Neil Schulman and Neil Smith re IP), I see Smith has posted another article, “The Medium and the Message,” that touches on IP.

In this piece, he again states that IP is valid but without offering any justification. He explicitly compares IP abolitionists to those who want to tax and regulate and censor the Internet: after describing these nefarious types, he turns to IP opponents, describing us as an “equally deadly threat to freedom of expression”. Yes, he literally said that. We are simply envy-filled socialists: “Like the socialists they are, most of them appear to envy and hate the creators of intellectual property, and relish a future they imagine in which it’s impossible to earn a living by writing.”  We are not libertarians; we are thieves: “Opponents of intellectual property rights are nothing more than thieves, and, no matter what they may claim, neither are they libertarians.”

But he provides no argument at all for the proposition that IP is a legitimate type of property. He just calls it theft. And he says, “There can be, of course, no moral distinction between physical and intellectual property …..” The “of course” apparently is supposed to do all the work here.

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A Critique of Frank van Dun’s “Against Libertarian Legalism”

Libertarian Theory
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The Belgian libertarian legal theorist Frank van Dun, author of the great “Argumentation Ethics and The Philosophy of Freedom,”1 in 2003 authored “Against Libertarian Legalism: A Comment on Kinsella and Block.” This generated Walter Block’s Reply to “Against Libertarian Legalism” by Frank van Dun and my Reply to van Dun: Non-Aggression and Title Transfer.

A fairly lengthy and critical comment on van Dun’s “Against Libertarian Legalism” was just posted at Answering Van Dun about the Non-Aggression Principle. The author would probably also disagree with some of van Dun’s “Freedom and Property: Where They Conflict.”

Update: See also Van Dun on Freedom versus Property and Hostile Encirclement; and The Blockean Proviso.

  1. Libertarian Papers, 2009; see also my posts Van Dun on Argumentation Ethics and Revisiting Argumentation Ethics, and Walter Block, Reply to Frank van Dun’s “Natural Law and the Jurisprudence of Freedom” ↩

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TLS Podcast Picks: Young Entrepreneurs; Mutual Aid

History, Libertarian Theory, Nanny Statism, Podcast Picks, Technology
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Recommended podcasts:

  • TWiT Live Specials 32: The Future Of The Web. In this episode–hosted by TWiT host Leo Laport’s daughter, high school senior Abby Laporte–“Young entrepreneurs give their vision of the future of technology.” It is quite impressive and inspiring to see these dynamic, intelligent, confident, ambitious, well-spoken young people–and quite a contrast to the unfortunate ignorance and aimlessness of too many young people today.
  • Sheldon Richman’s FEE talk “Mutual Aid and the Welfare State.” This is a fascinating and informative lecture, to which the libertarian can subscribe without adopting mutualism proper, which is itself problematic (see my A Critique of Mutualist Occupancy).
  • Tom Palmer’s FEE talk Theory of Rights and Property — overall, an excellent and interesting (some of it elementary) discussion of the history of ideas, “delivered to students at the History and Liberty seminar.” Note: Palmer describes the Hayekian position on socialism and attributed it to Mises; yet Mises’s calculation argument against socialism is distinct from Hayek’s emphasis on knowledge–see my Knowledge, Calculation, Conflict, and Law; Salerno, “Postscript: Why a Socialist Economy is ‘Impossible'” and Mises and Hayek Dehomogenized. Palmer’s criticism of Bork’s famous “inkblot” comment is also a bit lacking–my view is Bork’s theory of original understanding is basically sound but that he applies it incorrectly to the Ninth Amendment. Also, Palmer denigrates Rothbard’s property views for relying “only” on homesteading–Palmer says he has a “more pluralist” view of how property can arise–but doesn’t specify what this might be. Interestingly, he observes correctly that when we libertarians say we favor property rights we of course do not mean that property has rights. Of course, a parallel observation could be made regarding the notion of “states’ rights”–when libertarian decentralists say this, they just mean the federal government has limited and enumerated powers.

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California Gay Marriage Law Overturned: What Should Libertarians Think?

Legal System, Victimless Crimes
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According to breaking news, a federal district court has overturned Proposition 8, a ballot proposition that amended the California Constitution to prohibit same-sex marriage. Prop. 8 was meant to overturn the California Supreme Court’s ruling in In re Marriage Cases that same-sex couples have a constitutional right to marry. (Although none of the numerous reports I’ve seen note the name of the case, it is Perry v. Schwarzenegger; PDF.)

Gay rights advocates filed lawsuits to have the constitutional amendment declared unconstitutional. I predicted they would lose. First, they could not prevail on state constitutional grounds since Prop. 8 actually amended the California Constitution. You can’t argue a provision of the constitution is unconstitutional. So the question is whether this provision of the California Constitution violates the Fourteenth Amendment of the U.S. Constitution (see my The Libertarian Case Against the Fourteenth Amendment). In my view, it clearly does not; any argument that such a law violates equal protection is ludicrous–there is no way the equal protection clause at the time of the ratification of the Fourteenth Amendment (1868) was understood to be so broad as to prohibit state laws that treated same-sex unions differently than traditional, heterosexual ones. As for due process–this was a validly enacted constitutional amendment, following regular legal procedures. So it was not a violation of due process (as for the doctrine of “substantive due process“–well this is a ridiculous, obviously dishonest, invented concept; process is, um, procedural).

And yet the federal court has found a way to get its result, by twisting the law to fit its ruling–like the Supreme Court did in Bush v. Gore, with its absurd application of equal protection.

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Leveraging IP

IP Law
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Watch Importation, Copyright, and the First-Sale Doctrine

The "Omega Seamaster Ploprof 1200m" wristwatch.

In Cutting edges, blogger Peter Gordon relates a fascinating case where Swiss watchmaker Omega found a brilliantly evil trick using IP law to crack down on innocent market activity. Omega

sells its watches for far less money in some countries than in others, a common enough practice known to economists as “geographical price discrimination.” The U.S. market will generally bear more than the market in a Latin American republic, and so Omega offers its goods to distributors in places such as Paraguay for less than it does to American distributors.

The difference in prices creates “a tempting arbitrage opportunity in importing Omega watches from Paraguay to the U.S. It is just such watches that Costco bought from a stateside importer, allowing the warehouse store to offer an Omega Seamaster for $1,299 when the brand preferred them sold in the U.S. for $1,999.”

Omega doesn’t like this. However, they “couldn’t complain that Costco was peddling fakes—the watches were authentic goods.” And there was not trademark infringement either since the goods were genuine. So what they did was find a way to use copyright. “They fashioned a small globe logo and copyrighted the device in the U.S.” Then they sued Costco for copyright infringement–using Omega’s copyright without its permission. One would think the copyright law “First Sale Doctrine” would not permit this cause of action. The idea is that when the owner of a copyright sells a copy to a buyer, the buyer is free to resell that particular copy. The seller is said to have “exhausted” his rights in the copyright in the first sale. The buyer cannot make extra copies, but he can re-sell his copy. This is why the used book sales do not infringe the author or publisher’s copyright. But, “[t]he appeals judges decided that, since the first sale of the Omega watches in question happened outside of the U.S., America’s first-sale doctrine doesn’t apply.”

As the post observes, this is

is a small technicality that, in a global economy, could have large implications. … Constrain the first-sale doctrine and you throw a wrench into the business of used-book stores, garage sales (including the electronic garage sale that is eBay), and any and every sort of secondhand shop. And yes, even public libraries might find themselves facing the challenge of figuring out which books on the stacks were first sold in the U.S., and which were first sold abroad.

This is just an example of how IP law is insidious because it can leech into other areas of law that are not protected by copyright. Here, Omega used copyright to stop otherwise legal price arbitrage.

Printer Cartridge Patents

Other examples abound.

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