We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

An interesting take on intellectual property (oh no, not again!)

“Auction houses and auction websites make markets out of common objects that would be trash except for a celebrity having owned or used or once touched it. A set of golf clubs or a box of golf balls is worth far more in a pro shop if the brand name “Tiger Woods” is on the label, because by affixing the name of the golf legend the buyer is being told that Tiger Woods had personal input into the quality of the products. Anyone who copies that box of golf balls with the Tiger Woods label on it — without proper authorization — is committing an act of forgery.”

J. Neil Schulman.

He certainly has an unusual way of looking at IP. This issue is messing with my head. A few weeks ago, I read Tim Sandefur’s lucid take on the matter, and took the view that whatever else can be said about it, it is hard to see how I could make a “natural rights” claim for IP in the same way as some classical liberals can do with physical property. But a few days later, talking to an old friend who is a professional arbitrator, my view swung more favourably to this sort of argument, as presented in favour by the late, great Lysander Spooner.

I fear that with IP, this is going to be one of those “I haven’t really made up my mind yet” positions. I suspect I am not alone.

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41 comments to An interesting take on intellectual property (oh no, not again!)

  • This argument highlights a problem that arises when people buy into the propaganda term “intellectual property.” It lumps together a whole range of concepts and treats them all as being equivalent, when they may be not. It’s a bit like talking about tangible property and assuming that an argument in favour of property rights over one material object (e.g a car), automatically equates to an argument in favour of owning another material object (e.g. another human being).

    What we’re talking about here is probably an issue of trademark. Even if you accept that trademark rights are legitimate, it doesn’t automatically follow that copyright, patent or other exclusive rights over intangibles are legitimate.

    I say it is probably a trademark issue, because you could argue that the person producing the goods, in implying that they are Tiger Woods approved, is committing fraud, something which is an offence even without so called “intellectual property.” For example, the Mona Lisa isn’t protected by copyright, but I would still be breaking the law if I made a copy and tried to sell it as the original.

    The difference between the two approaches is that with trademark, the victim is viewed as the trademark holder, with fraud laws, the victim is viewed as being the person buying the dishonestly marketed goods.

    The tone of Schulman’s comments makes it sound like he isn’t really talking about “IP” but fraud.

  • Steven Rockwell

    I remember watching an interview ith Metallica when the Black Album came out and they were talking about their younger days. Lars Ulrich said he used to borrow friend’s metal albums and copy them. Years later, Lars would sue his fans over Napster because stealing music became immoral when it was his pocketbook at stake.

    I don’t know what any of that has to do with this, except that certain members of certain bands are massive tools.

  • Very much What Paul Said.

    I think the case for “intellectual property” per se is exactly as justifiable and pragmatically promising as the case for “thought control”. This, despite the fact that my vocation and delight is storytelling, and that I should dearly like to get a nice income stream from it some day.

    But not at the expense of the State’s granting me a combination monopoly/gagging order.

    What I do not want is villains committing fraud against me by representing my work as theirs, so that people who would otherwise willingly pay me for the trouble of creating a great story, are conned into paying a villain for the trouble of creating a crap story about its being all the villain’s work really, to my impoverishment and my readers’ ultimate annoyance.

    Likewise, if in the courses of my book research I should suddenly happen upon the secret of the true Tesla Death Ray, and contract with some physicist to check my workings under conditions of the most awful secrecy, I think I am every way entitled to sue the louse when he sells it behind my back to Greywater Security International. Or to sue Greywater, when I discover their bug in the garden shed where I whomped up my secret prototype.

    I will pay for art of worth when I can, and shame be my portion if I am a worse patron than I should wish for myself, or for my aunt or niece my fellow-writers, or for my friends the musicians. I do not think I am. But call in the shock-troops to make sure that nobody quotes me frankly without paying whatever fee I choose, or whatever weaselage their lawyers demand to do it in my spite? Or makes some profit based on an idea because “I had it first”, and yet did nothing of real moment with it?


    We need no IP law. We need laws against harassment, trespass, and fraud; and we need jurors’ discretion against piss-taking letter-of-the-law lying; and we need the honest and honoured solidarity to pay for what we value, even where the law can’t make us stop taking the piss.

    Under such a regime, I will never be J K Rowling or Thomas Edison, even if I happen to bottle whatever one or the other of them is channelling. I have thought about this problem seriously, and I have come to the conclusion that the Great Sage Windsor Davies said all that needs to be said on the subject, a many years ago:

    “Oh dear. How sad. Never mind!”

    For the lifting of the imposed silence and ignorance about me shall repay me, one hundred blooming fold.

  • John B

    Yes, the Tiger Woods golf clubs are more to do with trade mark.
    Brilliant (or not so brilliant) ideas that come from within someone’s brain are something else.
    Does someone have a right to claim ownership of an idea? Especially once it has been revealed?
    Personally I’m not too strong on “rights”, anyway. But I realise that puts me at odds with most libertarians.
    I prefer to approach things from the position of freedoms, liberties, rather than rights.
    Of course I would not be too happy if someone nicked my car.

  • Richard Garner

    Yes, this is more to do with an issue of trademarks than copyrights and patents, but that still comes under IP, I think.

    The thing about this, though, is that whilst it may be quite true that if I market some golf clubs as “Tiger Woods Golf Clubs,” even when Woods has not endorsed them or anything, I may be committing fraud or forgery… but my victim is not Tiger Woods, or any IP owner. It is the person that bought the clubs under the belief that they are endorsed by Woods. Woods has no claim against me in this circumstance. It would be nothing to do with him.

    The same is true if I market a Stephen King book as my own work: Buyers would be under the illusion that they were buying a Richard Garner original, when in reality it would be a Stephen King book. King gets no claim against me there, the buyers do.

  • Steven Rockwell

    I think that depends on where the buyer actually buys the, for example, clubs. If I buy from the big box stores (e.g. Wal-Mart, Dick’s, Academy, Amazon.com), the assumption is I’m buying the real deal, because those companies go directly to the manufacturer. If I buy from my local golf outfitter, I expect that I’m buying the actual thing. If I’m buying off ebay or at the flea market, I’m either buying second hand, something that fell off the back of the truck, or an obvious fake.

    That begs the question, where do the counterfeits enter the marketplace? The big retailers who have the vast majority of sales don’t buy fake goods. The smaller stores and flea markets don’t sell enough to warrant notice (and in the case of second hand good don’t even give any cut to the manufacturer or his shills). So is it really that big of a problem, is it simply a question of principle, or something else?

  • Perhaps to be clear I should note that I actually agree with Schulman’s statement above, even though I do not believe there is a natural right to intellectual property. But fraud, such as Schulman is referring to, or plagiarism, are in my opinion different issues.

  • Richard Thomas

    Perfectly summed up by Paul Lockett above. Intellectual property is an umbrella term for several different concepts and accepting one as valid does not mean accepting the others. Indeed, accepting one as valid doesn’t even mean accepting its current implementation in law.

    Trademark is a bit of a funny one though. Often it’s not the buyer who is harmed in “Trademark infringement” at all. It’s not uncommon for fakes to be as good or even better than the originals and in some cases, it’s even just a case of the manufacturer “forgetting” to stop the machines for another couple of thousand items then hiding the boxes out the back. Nonetheless, it’s probably the most valid of the “big three” intellectual property concepts. Trade secrets too (under contract law)

  • 'Nuke' Gray

    I advocate, not I.P., but Public I.P. (PIP)
    I believe in minarchy. In fact I believe that private property, such as your land or goods, should be yours to rule as you like. Where i depart from anarcho-capitalism is that I believe that PUBLIC property, like roads, should be owned and regulated by the local government, which should be a corporation open to all local adults to join and to elect any and all local public officials and executives. The right to advertise over public space would be what a copyright would confer on the owner- and patents would grant a similar right, and a patented item would be the only one that public authorities would buy and use on and within public lands. If you want to copy someone else’s book, you could do so, but you would be prosecuted if you tried to publicize your deeds over public properties (no advertising allowed). I think this gets around the claims about trying to monopolize minds- instead of total IP, IP limited to public properties and spaces.

  • Dishman

    I’ve recently been doing a fair amount of my own original research. One of the things I’ve come to appreciate is the other half of the Patent contract, which is to say, disclosure.

    For Patents to be granted and valid, the discloser must reveal enough that someone ‘skilled in the art’ can replicate their work. Those filings get published during the patent process, and are public domain except for the patent (meaning you can’t sell derivative works). They’re fair game for replication in the lab, though.

    The result is a huge collection of items that someone thought was good enough to pony up their own time and money to get through the process. Compare that to academic papers where there’s a schedule, and something has to be crapped out on that schedule.

    Compare that to the history of Forceps and the Chamberlens, where the device remained secret for more than a century.

  • andyinsdca

    As a guy who works for a company that makes tons of $$ that makes money licensing technology it has created, IP is VERY IMPORTANT. Our company would not engage in the expensive R&D needed to create (and license) the technology it creates. If someone could come along and claim it as their own, our motivation goes to zero.

  • 'Nuke' Gray

    Be sure to tell the crowd at Von Mises website of this, Andy. They think that free enterprize doesn’t need patents and/or copyright. The more voices of reason, the better!

  • Nuke, irrespective of the issue of need, copyright and patent is incompatible with free enterprise. A situation in which the state gives people or legal entities the power to prevent entry into a market would more accurately be described as mercantilism.

  • Johnathan Pearce

    Richard, good point about the buyers. In some trades, such as antiques, a lot is made of the importance of letters of provenance. I have a signed photo of a famous UK statesman – it has a LoP on the back.

  • 'Nuke' Gray

    I don’t regard licencing as evil, Paul. I think that car licences, for example, are a good thing. If a car does damage to my car, the licence number can be used to track down the driver and get compensation.
    This would be another form of licencing. And note, that under the system I described above, PIP, people could still come to your private place of business and buy whatever you chose to sell. You just couldn’t advertise your goods over PUBLIC spaces. Word of mouth might work in your favour, if you can’t use the airwaves.

  • In regards to car licenses, it’s likely these would be used for insurance or finding a stolen vehicle (electronic tracking as well perhaps with this shared between providers to better settle claims.

    As to other licenses, these could be done by contract, along with trade secrets and copyright. Trademark falls under fraud as others have said.

    Nuke, your comment on lack of incentive when the inventor does not have control over the invention does not reflect that people invented things before patent existed. It may be that large corporations would have less revenue lacking patent ownership-I for one have no problem with that. Many inventors sharing and improving on their ideas, perhaps uniting in a formal association, is one possible alternative. In this, perhaps R&D would be provided in exchange for the first crack at their invention, or it might be shared funding. Point is, people can survive without the IP monopolies.

  • Rob

    The fashion industry is a great example of how a market work fine without IP.

    I read a great article (I think on the Mises blog) that used Kate Middelton’s dress as the example.

    Wedding dress designers all over the world were waiting by their TVs, drawing boards at the ready to sketch a copy of the Royal Dress so they could make copies for their customers.

    It is one thing to claim these dresses are actual Mcqueen dresses anther entirely to say it is a good copy. One is forgery not IP theft.

    At fashion shows all the designs are photographed. The lead designers get filthy rich for beign the best designers then the highstreet fashion houses copy the styles for their next seasons garment that then sell on at lower prices. Some manafacturers go for quality some for low cost. It work brilliantly and ensures competition to serve the customers interests.

  • The fashion industry works fine without IP because the issues involved have nothing to do with IP (or any other kind of property issues) – rather, they have to do with fraud etc., just as you pointed out. See Paul Lockett’s comment.

    IP issues arise with intangibles that are produced for consumption/use – such as books, works of art, pieces of music and software. The context of IP is only pertinent to the products themselves, not the ideas that may be part of those products. For example, IP wouldn’t apply to the idea of a story line of a man murdering his landlord (neither would it apply to the word ‘ax’, as some anti-IP types would have us believe), but it would very much apply to the product named “Crime and Punishment”.

    None of the above is to suggest that I support government enforcement of IP, but then I’m not even a minarchist.

  • The context of IP is only pertinent to the products themselves

    I meant the concept of IP, etc. – sorry.

  • 'Nuke' Gray

    Michael, I advocate PIP, not IP. (Read my comments above.) The difference is profound. I fully suport property rights. I think that roads, and PUBLIC spaces, are what public authorities should be owning and controlling, and only them. As the owners, they would have the right to regulate what goes on, or through, their properties, the same as private owners would with private property. If you’d bothered to read my comments, you’d realise that PIP is not the same as IP. My ideal position is as a supporter of property rights, both private and public.

  • Laird

    “copyright and patent is incompatible with free enterprise”

    Utter nonsense. If some tangible object I create using the power of my muscles is conceded to be my legitimate property, as a human being (the principal defining characteristic of which is the power of ratiocination) a fortiori something I create using the power of my brain must be also. Merely because the work can be duplicated without disturbing my ownership of the original doesn’t justify the action; that’s a communitarian argument, a facile attempt to justify the theft of my work product. The book, or song, or painting, or whatever, would not have existed but for my effort. It remains my property notwithstanding your access to a photocopier. And if I sell you a copy, what I’m selling is that one copy for your own personal use. Nothing more. That’s the limit of your ownership interest.

    If you don’t want to pay me for it write your own damn book. But don’t steal mine.

  • Laird, copyright and patents are two distinctly separate issues, very different in their nature. So I agree with your comment completely, but only as it pertains to copyright.

  • Paul Marks

    Whether patents or copyrights are jusified or not, one thing is for sure…..

    Thinking one can base an economy of these things is folly.

    The Chinese (and others) will make a great show of respecting them (executing various people for violating them – and so on), but they will still violate copyrights and patents – on a vast scale.

    Be the cheapest place to make stuff – or you will not make stuff.

    Whatever your bits of paper (your patents and copyrights) say.

    By the way……

    “Cheapest place to make stuff” does not mean “lowest wages” – on the contrary very high wage places are often the cheapest place to make certain products.

    This is because what really matters are things like a stable financial system (no credit bubble finance – boom and bust), low taxes and LOW GOVERNMENT SPENDING, and private enterprise.

    Not a mass regulated economy – or an economy dominated by “unofficial” government (bribes to public officials and payments to organized crime).

  • Laird

    Alisa, patents and copyrights are indeed different issues, but the fundamental premise behind them (intellectual work product, as differentiated from physical work product) is the same. Again, if something is truly novel (which is what patents should be granted for) it merits protection. Of course, whether the patent laws have gotten too liberal in granting protection to advances which are minimal or obvious is another matter entirely.

    If I invent and patent an item (be it a mechanical device, a new drug, or whatever) which is truly novel (and therefore patentworthy), by definition it did not exist before my efforts. It is completely my creation, and I should have the absolute right to control its use. No one is harmed by this; indeed, the rest of the world is in exactly the same place as it was before my invention. But if you find that it provides utility, you should expect to pay for its use. Otherwise, forbear from using it. Pretty simple.

  • Paul Marks

    A good moral case Laird.

    However, Chinese (and other) producers will carry on producting stuff whether it is moral for them to violate the patent or not.

    I repeat there will be a great show of respecting this stuff (lots of executions and so on) – but the production will carry on.

    I repeat.

    Be the cheapest place to produce something – or you will end up not producing it (regardless of what your piece of paper says).

    The only alternative to this is to keep how you did something a SECRET (not rely on a government bit of paper).

    As the Hittites are supposed to have done with the production of iron.

    I am no expert on the subject – but I have been told the Hittites managed to keep how they produced iron a secret for a long time.

    As the Chinese did with the production of silk – till that Byzantine merchant managed to find out it was prodced by worms, and even managed to smuggle out some of the worms (and what they fed on).

    Again – once the secret is out, there is no point waving patent about and saying “you can not produce this – I invented it”.

    Although YES that may be the correct moral/legal position.

    Be the cheapest and best place to produce stuff.

    Do NOT rely on patents.

  • Laird, I’m afraid that your argument, as previously, is invalid:

    If some tangible object I create using the power of my muscles is conceded to be my legitimate property, as a human being (the principal defining characteristic of which is the power of ratiocination) a fortiori something I create using the power of my brain must be also.

    No, your argument doesn’t follow. In fact, as far as I can see, there is no substantial argument at all.

    The reason I have for differentiating between the two is a libertarian argument. Full liberty could legitimately be described as the freedom to act in any way which doesn’t harm another or limit their ability to simultaneously enjoy the same freedom. The fact that material goods are rivalrous means that full liberty doesn’t preclude property rights over them. However, as ideas and expressions are not rivalrous, allowing one person to restrict the freedom of another to use it, when both could use it simultaneously, is incompatible with full liberty.

    Now, you may be working from a different set of values, where liberty and free enterprise are not as highly valued and which do end up with you determining that legitimate property rights over tangibles implies legitimate property rights over intangibles, but it isn’t a logical implication in itself.

  • Laird, I don’t disagree with anything you said, other than it being simple. I’ll just give you one example why patents are not as simple as copyright: what if I invent the same thing you did, unknowingly and around the same time? Things like that have actually happened. I am not saying there is no solution (while I also agree that the current solutions are far from perfect) – I’m just saying that while philosophically patents and copyright are similar, they are different practically, and have to be dealt with differently in reality.

  • Laird

    Paul, your definition of “liberty” means “freedom to steal”. Mine is different. Why is the theft of someone else’s intellectual work product not a “harm” to him?

  • 'Nuke' Gray

    Laird, you should go to the Von Mises website- because they often argue about these very concepts! They recently had a comment thus- ‘What if A invents a new wheelbarrow (like Dyson did with the Ball-barrow), and B sees it from a public road as A is trying it out? Should B be barred from making his own, if he is inspired by the new device?’
    My PIP viewpoint is that, on your own private land, you can duplicate all you want, but only a copyright-holder, or a patent holder, would be free to advertise on Public lands, or by bought by public entities.

  • Laird, if you are working to a different definition of liberty to mine, which is the broadly accepted definition, why don’t you tell us what that definition is, rather than working behind an unspecified concept which seems to be nothing more than the right to have laws which suit your preferences at a given moment in time.

  • Theft is part of the broadly accepted definition of liberty? Since when’s that?

  • Alisa, I’d say the answer is never and as nobody has suggested that it is, I’m not sure what point you’re trying to make.

  • Laird

    You said it, Paul. You’re the one who is asserting an unfettered right to appropriate, without compensation, the intellectual work product of another for your own benefit. If that’s not “theft”, then your definition of that word is as bizarre as is your definition of “liberty”.

  • Laird, unfortunately for you, words have meaning independently of the emotive uses you would like to apply them to.

    You insist that my use of the word liberty, with its commonly accepted meaning, is bizarre, yet continually fail to share your homemade definition.

    Now you are misusing the word theft in an attempt at desperate propaganda. Theft involves the deprivation of somebody else’s property. Using an idea or expression deprives nobody of anything. If you’d attempted to compare copyright or patent infringement to trespass, there may have been some validity in your position, but the comparison with theft is ridiculous.

  • You may well have a semantic point there, Paul – so I, for one, will rephrase my earlier comment: trespass is part of the broadly accepted definition of liberty? Since when’s that?

  • Alisa, it isn’t. Of course, that requires that the thing being viewed as trespassed upon is legitimate property, which is what I am contesting in this case, precisely because such a property right is incompatible with liberty.

  • Paul, I could be wrong, but you seem to be making a circular argument here – can you see it? Not to mention that you have conceded that a trespass analogy has at least some validity here?

  • Alisa, no, I am not making a circular argument. That is what is being offered in an attempt to counter my argument. Either that, or what you and Laird are working from is a form of legal positivism which says that because the state says something is property, then it is legitimate property.

    As for the trespass comment, my point was that if copyright and patent were legitimate (which to a libertarian, they are not) then a failure to respect them would be more akin to trespass than it would be to theft.

  • OK on the second part. On the first: I don’t give a damn what the state says. My argument is not legal at all, it is moral.

    You wrote above:

    Full liberty could legitimately be described as the freedom to act in any way which doesn’t harm another or limit their ability to simultaneously enjoy the same freedom.

    Let’s do a thought exercise then: say you went on vacation, and left your home unlocked. Would you mind if I entered your home in your absence without your permission, provided I left in the exact same condition you left it? For the sake of the exercise, let’s assume that such an action on my part was completely legal.

  • Earl

    Hmmm. Legal, moral, what’s the difference? Isn’t “legal” just another way to say that you will be enforcing your moral views with violence? Morally speaking, if I decide I am going to tresspass on someone’s legal or moral property, I accept the risk of several extralegal possibilities: the owner will harm me, I may have an accident and destroy their property, or they may never return and I can live there happily ever after. Morally speaking, when property is not mine, I have no say in how it is to be used or not used, even if nobody is around. It simply is not my property. How you want to construct your laws around that moral reality, is up to you.

  • Alisa:

    Let’s do a thought exercise then: say you went on vacation, and left your home unlocked. Would you mind if I entered your home in your absence without your permission, provided I left in the exact same condition you left it?

    I wouldn’t be happy, but that isn’t at odds with my position. My house is a rivalrous good, so applying a system of property rights to it isn’t incompatible with liberty.