Intellectual Property

Intellectual Property Fosters Corporate Concentration

Patents and copyrights are government monopoly grants with nothing in common with the notion of property at the heart of libertarianism.


The modern libertarian case against so-called intellectual property (IP) has been building steadily since the late 1980s, when I first encountered it. Since then, an impressive volume of work has been produced from many perspectives: economics, political economy, sociology, moral and political philosophy, history, and no doubt more. It is indeed a case to be reckoned with. (Roderick Long has put together a web page with links to some of the best anti-IP material written over the last quarter century. My own contributions include "Patent Nonsense," "Intellectual 'Property' Versus Real Property" and "Slave Labor and Intellectual Property." A brief spontaneous debate that I participated in is here.)

I won't try to recap the whole case here, but I do want to answer a question that will occur to many advocates of liberty: How can someone who supports property rights in physical objects deny property rights in intellectual products, such as the useful application of scientific principles or patterns of words, musical tones, or colors? Suffice it here to quote from "Patent Nonsense":

There is a distinction between physical objects and ideas that is crucial to the property question. Two or more people cannot use the same pair of socks at the same time and in the same respect, but they can use the same idea — or if not the same idea, ideas with the same content. That tangible objects are scarce and finite accounts for the emergence of property rights in civilization. Considering the nature of human beings and the physical world they inhabit, if individuals are to flourish in society they need rules regarding thine and mine. But "ideal objects" are not bound by the same restrictions. Ideas can be multiplied infinitely and almost costlessly; they can be used nonrivalrously.

If I articulate an idea in front of other people, each now has his own "copy." Yet I retain mine. However the others use their copies, it is hard to see how they have committed an injustice.

Practices respectful of private property in physical objects and land emerged spontaneously over millennia, embedded in customs that served to avert conflict in order to create space within which social beings could flourish. (See John Hasnas's "Toward a Theory of Empirical Natural Rights" [PDF].)

In contrast, "rights" in ideas — patents and copyrights — were government monopoly grants having nothing in common with the notion of property at the heart of libertarianism. In fact, such artificial rights undermine genuine property by authorizing IP holders to enlist government power to stop other people from using their justly acquired resources and ideas. For example, if Jones (having committed no trespass) observes Smith's invention or artistic creation, Jones could be legally stopped from using his own physical property in conjunction with ideas obtained through that observation. That sure looks as though IP bestows on Smith purported rights over Jones's tangible property and even Jones himself. One might ask, Isn't the idea Smith's? But I can't see how an idea in Jones's mind can possibly be Smith's, even if Smith had it first  — unless Smith owns Jones, an unlibertarian notion indeed.

For details, I urge readers to pursue the links referred to above. Those articles and books address all the relevant issues, including how IP stifles rather than stimulates innovation, and the dead-weight loss of the IP legal process. (Contemplate the inventions and works of art that were produced over millennia without patents or copyrights.) Here I simply want to call attention to the latest article in opposition to intellectual property for what it says about two aspects of the subject that aren't emphasized nearly enough.

I refer to Butler Shaffer's "A Libertarian Critique of Intellectual Property." In his essay, Shaffer writes,

Creativity — like learning in general — is fostered by cross-fertilization and synthesis. We ought to have learned from fundamental principles of biology that reproduction through single-cell division produces little genetic variation. When the life process developed sexual reproduction, the resulting genetic diversity allowed for the proliferation of numerous species as well as intra-special traits that enhanced adaptive capabilities.

Patents and copyrights inhibit the creative process by discouraging the exchange of information relating to a particular line of research or exploration. If one scientist has been issued a patent for his invention of a widget, another scientist would likely be discouraged from continuing his own work on a similar product, or from making modifications or variations on the patented item. The interplay in which individual insights and proposals are communicated to one another in a group, and then subjected to collaborative processes of brainstorming, are far more productive of creative ends than is the work of individuals in isolation. Likewise, the cross-fertilization of ideas, techniques, and other influences, among communities of artists and scientists, have greatly enhanced the creative process. On the other hand, when driven by the rewards of patents, scientists and inventors are known to maintain secrecy in their laboratories and research, lest a competitor gain insights that might advance their own work. The proposition that knowledge and ideas can be made the exclusive property of one who discovers or expresses what was previously unknown, is contrary to the nature of the intelligent mind, whose content is assembled from a mixture of the experiences of others and oneself. Even the language with which one formulates and communicates his or her understanding to others, has been provided by predecessors.

As one can see, IP strikes at the very heart of the social-intellectual process that makes all aspects of progress possible. Government impediments to the free flow of information undermine the very dynamic of an advancing civilization.

The other notable point in Shaffer's essay concerns how IP tends to concentrate wealth in large business firms. He writes,

There are many other costs associated with IP that rarely get attention in cost-benefit analyses of the topic. One has to do with the fact that the patenting process, as with government regulation generally, is an expensive and time-consuming undertaking that tends to increase industrial concentration. Large firms can more readily incur the costs of both acquiring and defending a patent than can an individual or a small firm, nor is there any assurance that, once either course of action is undertaken, a successful outcome will be assured. Thus, individuals with inventive products may be more inclined to sell their creations to larger firms. With regard to many potential products, various governmental agencies (e.g., the EPA, FDA, OSHA) may have their own expensive testing and approval requirements before new products can be marketed, a practice that, once again, favors the larger and more established firms.

Increased concentration also contributes to the debilitating and destructive influences associated with organizational size. In addressing what he calls "the size theory of social misery," Leopold Kohr observes that "wherever something is wrong, something is too big," a dynamic as applicable to social systems as in the rest of nature. The transformation of individuals into "overconcentrated social units" contributes to the problems associated with mass size. One sees this tendency within business organizations, with increased bureaucratization, ossification, and reduced resiliency to competition often accompanying increased size. Nor do the expected benefits of economies of scale for larger firms overcome the tendencies for the decline of earnings and rates of return on investments, as well as the maintenance of market shares following mergers. The current political mantra, "too big to fail," is a product of the dysfunctional nature of size when an organization faces energized competition to which it must adapt if it is to survive.

Indeed, as Kevin Carson documents in Organization Theory: A Libertarian Perspective (PDF), patents were one of the critical elements permitting the unnatural growth of key firms and the concentration of political-economic power during the second half of the nineteenth century. (Tariffs ["the mother of trusts"], banking regulationland policy, and transportation subsidieswere other key factors.) Carson writes,

Without the combined influence of tariffs, patents, and railroad subsidies in creating the centralized corporate economy, there would not have been any large corporations even to attempt trusts in the first place. The corporate transformation of the economy in the late 19th century — made possible by the government's role in railroad subsidies, protectionism, and patents — was a necessary precondition for the full-blown state capitalism of the 20th century.

The technological revolution has been dramatically lowering the price of capital goods, making competitive, small-scale, nonhierarchical enterprises by independent individuals and peer groups more feasible than ever. This is truly a new industrial revolution. Yet we know that entrenched business interests, fearing the loss of market share and profits, will use state power through IP law to crush this potential for widespread economic secession from the corporate state.

Support for freedom and independence, then, requires opposition to intellectual property.

This column originally appeared on the Future of Freedom Foundation.

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  1. Thread Jack:
    So I’m watching the local news because it’s on in the lounge at work and found out Orange County has “veteran’s court”. Evidently even people semi-related to government get special treatment over the serfs. So happy to be at work and get reminded I’m a second class citizen. Happy Sunday reasonoids!

    1. Why do you hate our wounded warrior heroes?

      1. Because I’m a libertarian? We hates the military. At least that is what my republican friends tell me.

        1. Of course we do. We’re against sending them into fire without good cause, thereby giving them far fewer chances to becomes heroes under fire.

          1. Truly we are the monsters under America’s bed.

            1. And least Rihanna is our friend.

  2. Two or more people cannot use the same pair of socks at the same time and in the same respect…

    What if they’re both single leg amputees? And let me throw this truth bomb into your brain pans: What would the world look like right now if people had been freely able to use and expand on Rebecca Black’s “Friday” a few years ago? Would society be in a better place today? I think not.

    BOOM. Successfully refuted.

  3. If you do away with patents, then innovation STOPS. Innovative ideas take time, money, and resources to vet and bring to market. Why would someone put forth all of that investment, only to instantly be priced out of the market? Your competitors can copy your product, and not having been burdened with the R&D, they can always sell it cheaper than you can.

    While ideas aren’t scarce, good ideas are scarce.

    Your innovation is also the fruit of your labor….which of course libertarians want to protect.

    1. In other words, there was no progress, social, scientific, or otherwise, until patents and copyrights gave everyone the idea that ideas were possible.

      I sometimes wonder why no one patented the very idea of intellectual property. It speaks volumes for its validity that no one ever did. Those who won’t eat their own dog food know something the rest of us don’t.

      1. Well, Wikipedia says the first patent was in 1421. I don’t see a whole lot of innovation going on before that.

      2. Actually, there WAS NO innovation (comparatively speaking) before patents. Causal? I doubt it, but…

    2. There are several advantages that the first party to market has:

      1) First mover: A “copying” (I prefer “utilizing”) firm would have to build up manufacturing capacity and expertise to bring the product to market.

      2) Branding: The first party to an invention is associated with the product stemming from the invention.

      3) Joint venture: companies, often competitors, can combine R&D efforts for that limited purpose without running afoul of antitrust laws.

      Your competitors can’t necessarily sell it cheaper. Remember, the first mover has the development expertise. And even if they can sell it for less, it doesn’t mean they’ll corner the market.

    3. If you do away with patents, then innovation STOPS.

      Yes, absolutely no innovation ever happened before the widespread enforcement of patents in the mid 19th century.

      And no innovation occurs in sectors largely outside of IP (fashion and graphic design to name 2).

      1. I worked in IP at a major corporation, and even though IP was a major focus, it didn’t actually drive individual products. Our engineers and scientists were just told to create or improve a product, and if they saw something they felt was innovative, they would submit an invention disclosure and we’d determine patentability. The product would have been made regardless of whether we filed a patent application or not. Licensing is its own revenue stream, sort of a byproduct or secondary product of the actual focus.

        I posted further down the thread that I just quit my job as a patent attorney on Friday. Anecdotally, I’ve made a habit of asking my fellow patent attorneys if they think industry would get by without patents. It’s been about 50/50, which is something considering their own self-interest.

        1. Most patent attorneys (like me) I think know the arguments given to justify their profession is totally self-serving nonsense. Some of us are willing to speak up:…..atent-law/

          1. Stephan, you were one of the people who got me thinking seriously about what I believe, and ultimately make my move back to engineering/business development. Along with Boldin’s Against Intellectual Monopoly, your stuff is what I most often send on to people interested in reading more. As in most litigious matters, it’s the attorneys who ultimately win and sustain the system.

        2. The product would have been made regardless of whether we filed a patent application or not. Licensing is its own revenue stream, sort of a byproduct or secondary product of the actual focus.

          Or a MAD strategy for dealing with other patent holders? My company seems to be moving in that direction as a preemptive measure against infringement claims.

      2. Wow, the Constitution’s writers were decades ahead of their time, explicitly putting in the list of federal powers something that wouldn’t exist until the middle of the subsequent century. I mean they didn’t even define what a patent was, almost as if it was already a widely understood concept in 1787! And Congress passed the first patent law pretty much immediately in 1790! What a bunch of futurists.[/sarcasm]

        Patents go at least as far back as 1400s Venice, and were already in use in Britain in the 1500s and in the future US pretty much as soon as there were Europeans here.

        1. Yeah cause patents made in the 1400’s are exactly like perpetual copyright laws today.

    4. Re: GW,

      If you do away with patents, then innovation STOPS.

      Completely true! For instance, it wasn’t until Ford challenged the patent for the “automobile” that car building and innovation really started!

      So imagine if there hadn’t been patents for entrepreneurial minds to attack! Where would we all be???

      Innovative ideas take time, money, and resources to vet and bring to market.

      That doesn’t turn ideas into property. You’re simply applying the old, tired and thoroughly debunked labor theory of value to justify IP.

      Property is whatever is subject to scarcity; ideas can spawn in people’s minds ad infinitum if assuming a smooth transfer. So ideas are not and cannot be scarce.

      Property is exclusive, meaning that when you hold property, it cannot be soemone else’s. Ideas can be possessed by two or more people at the same time. Ergo, ideas are not property.

      1. //Property is whatever is subject to scarcity; ideas can spawn in people’s minds ad infinitum

        Ignoring all the other problems with your natural-rights property rights philosophy, let’s take this statement.

        Here’s the thing, THEY IN PRACTICE DON’T. Ideas do NOT just come from the sky. Most people aren’t that bright, especially in this country, and aren’t thoroughly trained in a higher order skill, or any skill for that matter. Furthermore, doing the R&D for an idea makes them even more scarce.
        Furthermore, the originator of an idea doesn’t need to tell it to anyone. He can easily CREATE scarcity by keeping his mouth shut.

        If an idea isn’t scarce, what the hell is?

    5. Exactly. If I figure out a new/improved/unique way to build something, why shouldn’t I profit from that idea?

      And likewise, if everything I ever think of is immediately in the public domain, then all of my ideas are immediately worthless. Why bother?

      If I invent a widget and spend a million dollars in capital perfecting it, then see Acme Corp copy it and sell it for half price because they don’t have the same investment to recoup, why would I have even tried in the first place?

      If I write a book and a publisher can simply copy it word for word and sell it as their own, what opportunity to profit from my work do I have? And why would I ever have spent all that time writing if there was no chance to profit from it?

      Stuff like this is where academic libertarianism goes off the rails and veers into the same utopian fantasy land the communists inhabit.

      1. if you think Acme corp is going to so easily copy it, you don’t know anything about capital costs and the nature of the firm. Acme Corp is NOT going to sell it at half price, because you’re going to charge slim margins and be patient to recoup your costs of R&D. If Acme sold it at half cost, then they would be losing money.

        1. This is becoming increasingly hypothetical, but you’re still wrong.

          Say I’m an independent inventor/businessman, and I raised my capital privately and/or used my own savings for development.

          Acme Corp is a major multinational with ten billion a year in revenue.

          I need to sell my product at a profit — even a small one — to recoup my capital investment, lest I go bankrupt.

          On the other hand, Acme Corp can easily afford to sell my product at a loss for however long it takes to drive me out of the market, then they can charge whatever they like and not worry about competition.

          The author wants to talk about ‘corporate concentration’? Please. Eliminating patents and copyrights will all but ensure that only the largest corporations eventually end up with every idea by default, by driving every small innovator out of the market through sheer economic attrition.

      2. So if you invent a widget and I independently invent the exact same widget but I get the governments approval first, I should be able to stop you from producing it? That’s a real great plan there.

        1. Sorry but yes. That’s called competition; first to market wins. If you get your widget perfected before me, then you deserve the associated profit. It then becomes my responsibility to improve on the design or create something new.

        2. If you can show prior art then the patent would very likely be voided, but, uh, other than that…

    6. So the Polio vaccines (both sabin and salk) were unpatented. Why would someone put forth all of the investment in that R&D, only to have been instantly priced out oft he market?

      1. It’s almost like there’s a difference between giving something away voluntarily vs involuntarily. But then you can’t give away your ideas. Because they don’t belong to you.

    7. The history of copyright in England and Germany shows that lack of copyright encourages innovation, not the other way ’round. Germany had no copyright and produced on the order of triple the work as did England. Read the source material, douche bag, before you spout non-factual nonsense. IP doesn’t help innovation, it allows firms to rest on their laurels for 17 or life plus 70 years WITHOUT innovating.

    8. Your competitors can copy your product, and not having been burdened with the R&D, they can always sell it cheaper than you can.

      Yes! Imagine the innovation we’ve missed out on because people couldn’t patent metal alloys, the solar calendar, or concrete! And those inventions that failed early on but resurfaced to great success were merely short on patents. The Apple Newton and the carbon arc lamp just didn’t have enough litigation behind them!!!

      If your R&D department does work that your competitors can elucidate in quick order why are you paying them? If your manufacturing and logistics team can, despite being directly linked to the invention team, still be outquicked by your competitors why are they collecting a salary? Ideas aren’t scarce, good ideas aren’t either (everybody has at least one ‘million dollar idea’). The ability to execute on them successfully is what is scarce.

      Intellectual property theft is rampant in the auto industry, somehow the industry manages not to collapse in on itself (and I’m not talking about the parts the US Gov’t propped up). The open source software movement produces software that can be freely modified and redistributed, somehow it remains competent enough to compete with and even drive more mainstream ‘intellectually owned’ markets.

  4. If you do away with patents, then innovation STOPS

    I think you have this exactly backwards. If you look at the development of agricultural equipment, for example, I think the ability to utilize and incrementally improve upon other people’s designs allowed for much more rapid development than ironclad patents.

    Speculation, I confess.

    1. But you’re talking about innovating, not simply copying. Let’s take your example. You make a new piece of agri equipment. I will let you perfect it, work out all of the bugs and kinks, and as soon as you do, then I’ll start selling carbon copies. You’ll be saddled with the burden of perfecting the concept, and me and a hundred other competitors will reduce your product to a commodity such that the market price will be set by the producer than can manufacture it the cheapest.

      All of the time and money you spent on bringing your product to market can’t be recovered.

      1. One of the worst aspects of intellectual property is its extremely vague and fuzzy definition. No one can tell in advance if some day a jury will decide his widget or story is too similar to somebody else’s. If that doubt encourages innovation, I’ll buy a hat and eat it.

        One of the means for controlling a populace is to have so many vague and unenforceable laws that everybody is a criminal. Intellectual property laws are just another tool in the despot’s toolkit.

        If two people come up with the idea of a fast food joint at some popular intersection, both reap the rewards. But if two people come up with the same patent idea, the first to register wins everything. How is this fair, and how does it encourage innovation? In fact, it discourages it. See the patenting of the telephone.

        Those who register ideas have every incentive to freeze the status quo and discourage all competing innovation while they milk their registered idea. See James Watt. See the Wright Bros.

        1. To extend your analogy.

          The Krocks invent the concept of fast food and patent it.

          Now Burger King, Taco Bell, El Pollo Loco, Five Guys etc. have been prevented from opening and operating fast food businesses.

          How is this situation good for innovation?

          1. Bzzt. You can’t patent an idea. (and yes I’m aware of “business method” patents and they’re on their way out as the courts clean up the mess their predecessors left in the 90s)

            1. The point of the analogy is to illustrate the absurdity of the hard line IP stance.

              1. Who is arguing for that stance?

        2. If two people come up with the idea of a fast food joint at some popular intersection, both reap the rewards.

          Only if there’s enough space for them both. What if they both arrive at the same lot at the same time, both with cash in hand, and the owner of the lot only sells it to one of them? Does that foster innovation? Is that fair?

          Those, of course, are absurd questions, because it presumes that fairness and innovation are the purpose of the piece of property. That’s Marxist garbage. If your physical property doesn’t belong to the collective, it doesn’t very easily follow that your mind does.

    2. If you do away with patents, then innovation STOPS.

      No. If you do away with patents then innovation is done completely in secret, and a war of corporate spy vs spy occurs. Individual employees would be made to sign much more restrictive confidentiality agreements and non-compete clauses, ie it hurts workers.

      An inventor has a legal obligation to disclose the ‘best mode’ in a patent. While the best mode could be one of thousands of examples or permutations, it is there. The next inventor can evaluate the patent and determine what is needed to make it better; useful innovation occurs. Moreover, clever inventors can usually find very close mimics that are as good as the invention, or nearly so. Most patent disputes end up with cross-licensing agreements, particularly where each party has a useful invention and the use of both makes the optimal process or product. The few that go to court often involve disputes over the interpretation of language – the meaning of a phrase or single word.

      Software patents are a different animal that are not handled as neatly as process, composition of matter, or product patents. Frankly, given the nature of computer code, I am surprised almost all of these cases don’t end up in complex cross-licensing agreements. (But I’m not as well versed in the finer points of these issues)

      1. I believe most software patent cases really do end up in cross-licensing, assuming the companies are of similar size.

        It kind of leads to cartelization. Imagine starting a new company to compete with Apple and Samsung on phones, you’d have to quickly get a trove of patents, or they’d crush you with patent suits as soon as you were big enough to be on their radar. That’s likely most of the reason Google bought Motorola, they needed the patents.

        Start a small company? Better get a couple of patents, or get bought by one of the big guys. The lawsuits they threaten for patent infringement just lowered the price they will offer for you.

      2. BigT, it sounds like you’ve dealt with patents before, so maybe you’ve seen this:

        One common practice in licensing is to have one patent asserted against a firm, and have one patent pending, where both patents stem from the same disclosure and may claim priority to the same filing date. When the “infringing” firm argues against your asserted patent, you then modify your claims in the pending patent to read on the “infringing” firms patent and getting you a rock solid infringement suit.

        It should be clear from actions like that that the primary object of patents is rent-seeking. It’s essentially a separate revenue stream, divorced from an actual interest in a product, save for maybe some interest in cross-licensing, as you mentioned.

        Perhaps a company can lump its R&D together as one cost and its licensing revenue as a revenue stream, but that looks nothing like property exchange and a lot more like speculation. You certainly can’t trace the two to each other.

      3. “If you do away with patents then innovation is done completely in secret” Not even this is true. Basically every open-source project lays waste to that assertion; and open-source is extending into domains outside of software.

        Shameless plug:

        1. Open source is great for leveraging the skill and spare time of a lot of people to solve a well-known problem, which clearly has a solution, that they all want to have solved. It does not work for innovation and risky R+D.

        2. Voluntarily disclosing your work to the public (under a license, it may be worth adding – the GPL and similar licenses protect IP contributed to open source projects), with or without any expectation of profit, is fine as far as it goes, but it’s hardly a model that’s displacing private R&D, or could displace private R&D in every field.

          1. …or could displace private R&D in every field.

            Is there anything to be said about evils perpetrated on human beings strictly as a result of offsetting private R&D costs?

            Certainly government spending to educate graduate students (who are now poorly employed) in the last three decades on the creation of cold fusion has taken advantage of misrepresentations and false perceptions at some point.

            Not saying private R&D is inherently evil, just that it could and should be opened up to a little faster and more frequent failure. If a group of volunteers in their spare time could create the cold fusion reactor where billions of public or private spending failed, why should the IP of failed methods prevent them?

        3. yonemoto, as I mentioned the software area is not my domain. As I see it the amount of effort and money that is needed to develop software is really quite small – for incremental changes at least. Contrast this with developing a new drug where clinical trials alone can cost $1,000,000,000 or a chemical process where demonstration plants can cost hundreds of millions.

          I’d be glad to see a new anti-cancer drug developed in open source. But I’m not holding my breath. I’d be willing to bet that no significant drugs are developed this way for at least the next 20 years. Only iff the regulatory environment or legal system changes could it happen.

          1. I’d be glad to see a new anti-cancer drug developed in open source.

            BigT, like I asked PM above. What’s to say this isn’t, at least in part, an artifact of the current IP system? Many of the diseases that drugs effectively treat are being treated and many of the disease left have phenomenally simple behavior-oriented solutions. And the bookshelves are rife with open source behavior-oriented wellness solutions.

            The reason we believe we need billion-dollar pills to solve health problems is because that’s the culture big pharma has cultivated. I mean, what’s the point of such an onerous regulatory environment if I can pick up both tobacco and weed freely?

  5. Also, it’s absurd to think of ideas as somehow singular and discrete.
    Right now, I am teasing out a couple of different concepts which could actually see the light of day, and I harbor no delusions of being the only one working on them. I should get my ass in gear.

  6. All of the time and money you spent on bringing your product to market can’t be recovered.

    This is simply not true. Development costs are unquestionably embedded in in production costs, but let’s not pretend the originator is immediately forced to abandon the market. And as far as I am aware, it is not yet possible to reproduce technology by pulling it out of a magic hat.

    I’m somewhere in the middle on the question of protections, but where we are now seems more likely to stifle than to stimulate innovation.

    1. How can you say this? The innovator is burdened with R&D costs, the entities that copy the product are not. If the R&D costs are at all significant, then the innovator is a fool to bring the product to market, only to have it copied. I’m mostly thinking of physical objects, but I can’t imagine how something like complex software would ever get written if it was simply free for the taking.

      It’s pretty simple economics. I can’t see why more libertarians don’t see the economic motivating factors here.

      So no, the innovator isn’t forced to abandon the market, he’s just forced to eat the costs of doing the innovating in the first place.

      1. I had the same thoughts. Talking with some of the regulars here they bring up some points I had not thought about. I think most of the people who post here would be happy with a more reasonable time frame for protection, like 10 years to recoup R&D and then you can compete with imitators. I think one of the points that make sense to me is that if you are given protection for a particular application for life there is no incentive to make a better product and it prevents others from improving on an idea. This denies the consumer choice.

        1. Patents on widgets aren’t for life. Nothing is for life as far as I’m aware. A patent on something is only good for a period of years. I was thinking 7 years or 17 years, but I can’t remember off the top of my head.

          I think the patent process does a good job of compromising between not being able to protect your work at all and having a monopoly on something in perpetuity.

          1. I’m not an expert on this but if true that seems reasonable. I know there was an article in reason about how Disney keeps expanding IP protection for their products in perpetuity.

            1. That’s copyright; patents are considerably shorter. (I thought the term was 14 years, but without looking it up I’m not at all certain.)

          2. I think the patent process does a good job of compromising between not being able to protect your work at all and having a monopoly on something in perpetuity.

            So that’s why there are professional patent trolls. Because the system works! There is only one impetus that could create an environment where being a professional copyright troll is profitable, and that’s an environment in which the copyright system doesn’t work very well at all.

          3. The old US law was protection of 17 years from date of issue, the new law is 20 years from date of filing. The old law incented people to file ‘continuations’ that essentially kept the patent alive longer than the 17 years; a record case was kept alive more than 50 years.

            The US moved from the ‘first to invent’ to the ‘first to file’ system in March 2013, and the protection is 20 years from filing date.

            1. You beat me to the punch Big T. IMO 20 years is acceptable. It give the inventor enough time to make a tidy profit, and then lets the invention become commonplace. It also limits a lot of the shenanigans going on with genetic patents. Then there is Trademarks which is a related topic, but not totally on topic. =)

              1. I end up looking at it from the software side, but 20 years seems ridiculously long. (I’m not in favor of patents at all, really, but there are some lengths that wouldn’t really bother me much).

                For an example, remember the GIF/LZW compression patent? There weren’t many suits on it, but it had a massive chilling effect on free software (you’d have to download other libraries to handle gifs). It was filed in ’87 and expired in ’03.

                1. @ SweatingGin. I see it as a compromise to continue to give companies an incentive to create new products, and keep the market competitive. You are right though, there is a downside to it.

              2. Then there is Trademarks which is a related topic, but not totally on topic.

                There’s also the insane notion of trade secrets, where a corporation treats its employees well and they value the source of their employment enough to protect it, but that notion seems to be too libertarian for this forum.

                Better to stick with a system where corporations extort secrecy from each other and their employees through force of law.


      2. You don’t understand your own arguments. If something is devilishly hard to create and takes 5 years, then when you bring it to market, you have a long lead over competitors. And competitors who copy do not have the fundamental knowledge of how it works to add improvements of their own, which you surely do, so you will maintain your lead.

        You also ignore the siren song of originality and first to market. Why do so many people pay millions for paintings which any decent hack can reproduce for a few thousand dollars? Why do so many people pay for the first version of any new product when they know there will be half price competitors within a year?

        1. If something is devilishly hard to create and takes 5 years, then when you bring it to market, you have a long lead over competitors.

          I think 3-D printing may change that dynamic. I could imagine someone buying a great new product, taking it apart, scanning all the parts and then mass printing the parts and assembling them in a short amount of time.

          1. But being able to reproduce the parts doesn’t give one the knowledge of how all of those parts work together and why. Only development can give one that knowledge.

            1. I’m not an engineers so that may be true. I would think a company that employed engineers would be able to disassemble, copy and reassemble a machine. But I probably have to simplistic view of machinery.

              1. Too not to

              2. No, I’m pretty sure for a lot of stuff it’s no

                Disassembling, scanning every part, and studying the whole thing may end up being more costly than the invention process

                Part of the invention process/production decisions is also the decisions of HOW each part should be made, or exactly which company you bought which part from.

                I especially doubt that electronic equipment is copyable. Even if there is no patent, if any company has their chips made by the chip-makers for them specifically, there’s probably a confidentiality agreement. And the idea you could use a microscope to look at each transistor to re-engineer a chip sounds retarded.

                1. Which is why patents are good things for future innovators, since the patent owner must disclose the design of the patented object. You can’t patent something and keep it secret at the same time.

                  To the extent an invention is easily copyable, patents make sure that it makes sense to invest in research leading to the invention. To the extent it is hard to copy, patents make sure the design is released to the public eventually.

                2. *sigh* It may sound retarded to you, but that just means you don’t have any clue about microelectronics. When you do, come back and give an informed opinion.

                  Much of the silicon you buy today comes from less than a handful of foundries. Do you know what a foundry is? It’s a job shop like TSMC, UMC, IBM, GloFo, Samsung and now maybe Intel. I’m a wizbang chip designer along with my 8 other pals straight out of mixed-signal design. I come up with the brandest newest mastercaburator design. I lay it out according to the design rules for an SOI, high-k, Cu, 28nm node that is standard process at TSMC. I buy a run of 6000 200mm wafers with 10,000 dice each using their standard process. Anyone can de-cap my chip, discover the design, go back to TSMC and on the same process build the same damn design.

                3. Edwin, chipmaker AMD built their company by reverse-engineering every new cpu that Intel came out with. Then, with the capitol, fabrication, and knowledge they built up by copying, then undercutting their competition, they finally began designing their own original cpu.

            2. I don’t need to know why it works, I just need to know that I can copy it such that it does.

              I was having this same discussion with a friend. He brought up the iPhone as an example. I said that without patent protection, a company like Samsung could have the new iPhone copied and on the market in a month. He laughed.

              I mentioned that to another friend of mine who has more brain power than any human I know, who also does some electronics design. He said that it wouldn’t even take Samsung a month…he said that HE could copy an iPhone in a month.

              The actual production of things doesn’t take as long as you think it does. It’s getting your idea to production that’s the hard part. Without protection, your competitors don’t have to bother with it.

              Extreme examples of this: pharmaceuticals and complex software. If that stuff can simply be copied with no protection of the the concept, I don’t see how anyone has the economic incentive to develop it in the first place.

              1. So you want me to plop down $$ for a GWPhone instead of an iPhone when I know that if I have a problem and call for support the answer I get will be “Beats me dude. We just copied the stuff. No idea how any of that stuff works”?

                Or I want to buy the GW-ERP software that you copied from Siebel. Now I want to make a change and you tell me what? “Beats me, I just put in the install disks and then it is your problem.”

                Or it turns out that the GW pill you’ve copied turns out to have a nasty side effect. What are you going to say in the subsequent lawsuits? “We just copied those big pharma guys. We should all sue them.”

                I’m guessing that you are going to have a hard time raising capital to get your company started when your whole plan is to copy someone else without understanding what it is that you are selling.

                1. PJ, you are correct. This happens, most notably in China, where, until recently, the patent system was a joke. Chinese companies would copy others’ plants and not know how to fix them when things went bad. People were killed in some accidents and the costs to maintain the plants were high. It is not a good strategy.

                  The drug example is not a good one, however. Provided one can produce the compound in sufficient purity it will behave as the patented material. (see Breaking Bad)

                  1. Provided one can produce the compound in sufficient purity it will behave as the patented material. (see Breaking Bad)

                    If the majority of innovation associated with your drug is strictly purification it had better be a regulated substance or you’re in for a world of hurt turning a profit to begin with.

              2. The iPhone 5 is a good example of where Apple leaped so far ahead of everyone else, patents don’t really play into it. No one was planning on a 64-bit phone in the next 18 months, and they did it. It’s not like there’s a patent on that 64-bit processor. Apple has their own CPU for it (A7 or whatever it is, but it’s an ARM core).

                I don’t think Samsung or anyone else could copy it that quickly. The clock started in September, when does the next 64-bit phone land?

                1. The better question is “what does a 64 bit phone do that a 32 bit phone can’t?”

                  The answer is “nothing”.

                  It’s just marketing by Apple, which is really the only thing they’re good at.

                  That addresses why no one else has a 64 bit phone.

                  1. The better question is “what does a 64 bit phone do that a 32 bit phone can’t?”

                    Address more than 4GB of memory?

                    There are other benefits, as well, and it’s not just marketing. Not all of the benefits will be realized immediately (just like when the original iPhone came out).

                    1. Yep, and how much memory does it have? 1 GB. 64 bit serves no purpose for Apple other than marketing. All of the other performance enhancements of that processor have nothing to do with it being 64 bit.

                      Will they get there eventually? Sure. Needed now? Absolutely not. It’s fluff, plain and simple. Hell, most PC users could get by with 32 bit computers.

                  2. So many of the commercials seem to be, “You can have our iShit in colors!” Maybe I’m just one of the weirdoes who’s too cheap to pay a premium for color.

            3. But being able to reproduce the parts doesn’t give one the knowledge of how all of those parts work together and why.

              Ironic, then, that the parts have rights, but the knowledge does not.

          2. You’re forgetting that 3-D printing can only make parts of any shape easily, it doesn’t make STRONG/resilient parts. You’re never going to use 3-D printed parts in vehicles/engines/processing machinery

              1. You’re kidding right?

                I’ve seen the video. Just because the gun CAN work on a little low-stress test, doesn’t mean it’s at all close to as reisilient as a real gun.

                Try firing that rapidly in a real firefight and the damn thing will blow up in your hands.
                I’d NEVER buy a 3-D printed gun. Spongy sintered parts will never be as strong as traditionally milled/machine parts

            1. Never say never.

              1. Perhaps it would be more precise to say that it’s unclear how existing 3-D printing tech with existing materials could be adapted for producing devices which can withstand extreme stresses.

        2. I’ll also point out that lots of things are incredibly difficult to create, but easy to reproduce. Even lots of physical objects that are patented.

          But a $30,000 software package probably took many thousands of man hours to code, but can simply be copied endlessly by a competitor and sold under the same name?

          1. Most of the cost for high end software is for customization and support.

            The reason you pay Oracle big licensing fees is so that you can get help when things go badly. It also takes a bunch of money to have people who really understand the product to come in and make sure it works the way you want it to.

            If I’m going to put all my company’s information into a big ERP platform am I going to try to save a $100K by using the product that was copied without any knowledge of how it works? Or am I going to spend the extra money and have ongoing support?

            1. Depends on the software. For many packages, bugs are just bugs and they get fixed when the next service pack is released.

              Which again can be copied and sold/given away.

          2. Trademark protections. If I sold you a knock off Microsoft product and you asked me to help fix a problem I could just laugh at you. If you went to Microsoft and asked them to fix a problem they could deny you because you bought a pirated knock off.
            This is maybe not the best example, but trademark protection goes hand in hand with copyright protection.

            1. Nope. Trademark violation is straight up fraud – the misrepresentation of a a material fact, and the inducement of another in reliance upon it to part with some valuable thing or legal right. “You said this was a McNugget and it’s NOT!!”

              I can print up and sell a copy of “A Time TO Kill” by John Grisham, and there is no misrepresentation. If I say it’s by Kyfho Myoba, then it’s fraud.

              1. Not sure what the trademark is supposed to be in your example.

                It certainly is fraud if you take a different book bound inside the cover of “A Time To Kill” by Grisham. But that’s way beyond a trademark issue.

                Is it fraud if I sell someone a productivity software package of my own making, called “Macrosoft Office”, and make no other claims about a relationship to Microsoft Office? No. But that would be a slam-dunk trademark infringement case.

          3. That’s just fraud, though, and really doesn’t need any intellectual property issues to deal with.

            1. It’s not fraud, because without IP laws, the concept of “fraud” as it applies in this case doesn’t exist. That’s the point.

              1. Wrong, see above post.

            2. Well in a world where anyone can copy anything. Trademark protection may not completely protect your patent, but it will protect the good name of your company.

            3. How would it be “fraud” if it’s the same thing the original inventor is selling? There’s no deception there.

              1. It’s “fraud” if claim to be the ORIGINATOR

                1. You don’t need to claim to be the originator to sell it. And that’s not fraud anyway. Fraud requires harm to the other party in the transaction.

                  1. Tulpa do you give morality advice to desparate housewives who get knocked up by the mailman?

                    cuz they sure as hell believe “what he doesnt know wont hurt him”.

                    stop spreading that shit.

                  2. Not quite, see above definition of fraud.

                    1. And perhaps you should look up the definition of “material fact”. In a no-IP regime, the identity of the originator is immaterial to the transaction.

                      And that’s assuming that the product is sold with a label saying it’s from the originator, which would be something I’ve never seen.

          4. But a $30,000 software package probably took many thousands of man hours to code, but can simply be copied endlessly by a competitor and sold under the same name?

            I agree with you in general in this thread, but technically you’re addressing copyright, not patent here. Software patents are a sick joke.

            1. But if you’re going to do away with IP, won’t you be doing away with trademarks and copyrights as well? It all seems to go hand in hand.

              1. I think that’s what Richman is after, but you can be against software patents and business method patents without being against all IP.

                1. Most of the arguments I have heard against IP are to get rid of all of it. After all, if you can’t protect an idea because it’s not tangible, why should you be able to protect a brand name, or a written work?

                  I think it’s ideologically inconsistent to say that trademarks and copyrights are protections that need to be in place, but patents aren’t.

                  1. In my view IP is a utilitarian thing for promoting innovation, both by the innovators of today and the next generation’s innovators. The first requires strong IP protection while the second requires limiting the strength of IP protection. And we should pick and choose which types of things can be protected by IP and which shouldn’t, and under which circumstances, etc.

                    1. So you have no sympathy for the idea that people have a right to the product of their labor?

                    2. Not really. I do believe that it’s good for society to give people the ability to exploit the fruits of their labor IN SOME CASES. The situation with software patents is instructive, as it’s basically impossible for software companies to innovate at this point without someone claiming patent infringement. It has to be a balancing act.

                      If IP is the same as real estate property or physical property, why are copyrights and patents not of unlimited duration, as physical property rights are?

              2. Not TM, see above.

        3. “Why do so many people pay millions for paintings which any decent hack can reproduce for a few thousand dollars?”

          That’s because the painting isn’t what you’re buying, you’re buying “authenticity”. That works for status symbols but not for smartphones.

          “Why do so many people pay for the first version of any new product when they know there will be half price competitors within a year?”

          Why do so many people wait?

          1. I’ll sell you a bicycle seat with handlebar horns or a urinal for much less than a few thousand.

        4. Nonsense. Just because it is hard to figure out a combination of materials and structures that solves a problem does not mean that it is difficult to copy said construct once you have a working version in you hands. Many microelectronics can be easily de-capped, SEM’d, and copied in months if not weeks. This is especially true if the design relies on existing processes/materials, which is usually the case in today’s foundry/fab-less world. Drugs are the same. Once I have a pill in my hands it is relatively straightforward to determine the composition of that drug. So what may have taken me 5-10years to develop can be duplicated in less than 1. The point is that much(most?) of the R&D expense is knowing what doesn’t work and not knowing what does.

          Can I copy a book? A movie? A program? It doesn’t “hurt” anyone, right? And before you come back and claim copyright law instead of patents understand that copyrights last much, much, much longer than patents.

        5. (cont.)

          Abolishing patents is decidedly un-libertarian. Let’s say you have a plot of land that is just lying fallow. You’re not using it at all, but you are using other land to grow corn. Can someone come along and plant corn on it and sell it (causing no damage to the land in the process) and reap the rewards as long as they agree to just give it back whenever you need it? They are direct competition for your corn using your property in the process. I don’t think any libertarian would argue that’s permissible, yet that’s exactly what Richman’s argument about copying is.

          1. Did you read the article? You have misstated the argument, and badly, too.

      3. Why does it matter if the innovator eats the costs? As long as he still recovers his own costs, he’ll continue to invest in research and development. It may not seem fair that others get a free ride, but the innovator’s bottom line may still be improved.

        Also, purebred economics tells us open source software shouldn’t exist.

        1. Why does it matter if the innovator eats the costs?

          Translation: why does it matter if someone loses money?

          That’s the point: if he eats the costs, he can’t recover them.

          1. Okay, I guess we have a different view of what “eating the costs” means. To me, it means that he pays all the costs; to you, it means that he doesn’t recover his costs. I don’t think you can assume that.

            1. I know that my competitors don’t have to eat the costs, because they didn’t have to incur them in the first place. So all other things being equal, they can charge a lower price than I can, because I have to amortize the cost of development in my version of the product.

              In fact, ALL of my competitors can charge a lower price. *I’M* the guy that brought the product to market, and I’m the one priced out of it because of the development cost.

              1. Again, even if you assume you pay all the R&D costs, which you most likely won’t in a production environment, I don’t think you can assume that a product will be instantly commoditized or manufactured to the same level. Also, R&D isn’t done in isolation. Most of the patents I’ve written have involved products already created and waiting to be put into production (usually due to slow adaptation to manufacturing capacity; this stuff takes time). Much of the R&D would have been done regardless of whether we filed for a patent or not, just as part of creating a product.

                I think you’re giving too much credit to the capabilities of “copiers”. When I was a chemical engineer, we couldn’t replicate the same process in plants an hour away, and that’s with the expertise that’s come from developing the process.

                1. I do some design for prototypes, and some of these people are applying for patents. It’s crazy how simple some of this stuff is. The copying for some of these items would be trivial.

                2. You argument seems to be that we shouldn’t have anti-fraud laws because not everyone will commit fraud. Just because in some cases I may be able to recover my R&D costs before the competition destroys the competitive advantage doesn’t mean that it isn’t theft. Your assuming that the inventor can always recover their R&D costs. You need to cite some evidence for that fact. I don’t understand your point about a production environment and R&D costs. They’re unrelated. R&D gets amortized over the production volumes. If someone copies my design they sure as hell aren’t paying for the R&D regardless of how many widgets they produce.

                  Much of the R&D would have been done regardless of whether we filed for a patent or not, just as part of creating a product.

                  Said in the context of a world that has a patent system. This doesn’t support your case at all. I file a patent on new designs going into production precisely because I want to protect that design from copying. If it was irrelevant, then why did your firm file the patents? They’re not free, so if the firm is filing them they most have provided value for the money.

                  I think you’ve been out of the product world too long and don’t give the copiers nearly enough credit.

        2. Also, purebred economics tells us open source software shouldn’t exist.

          People pooling their resources toward a mutually beneficial goal defies “purebred” economics? I’d love to hear how.

      4. It’s pretty simple economics. I can’t see why more libertarians don’t see the economic motivating factors here.

        Just wondering: have you read actual, in-depth arguments against IP from libertarians? Because this is like the “roadz!!” retort from non-libertarians. Of course there are anti-IP writers who address these issues, as there are libertarians who address roads. They’re not total idiots.

        1. Have you? Can you summarize their arguments?

          1. Please, no one’s obligated to explain all that shit in detail just ’cause the other guy is lazy. Not to mention the intellectual laziness of not trying to think of alternatives. I just know that if I were to tell a liberal that the education system needs to be privatized, they’d retort that education needs to be subsidized and only rich people would be able to afford school for their kids, at which point I’d have to point out that I never said not-subsidized, just privatized, there could easily be egalitarian, state-level vouchers. But it doesn’t matter, since the liberal is going to paint privatized schools as evil no matter what, they’ll warp the idea in their minds regardless.

            1. Not looking for an explanation in detail, just a summary.

              If you’re pushing a claim, you need to be able to at least summarize the points in favor.

          2. Not adequately, no. I’ve never delved too deeply into the IP debate. But I do know they address the costs of R&D. Since it is pretty much the center of the whole debate, they kinda have to. To say “libertarians don’t see the economic motivating factors” is ridiculous. They see it, they just disagree as to how great the effect is.

      5. The innovator is burdened with R&D costs, the entities that copy the product are not. If the R&D costs are at all significant, then the innovator is a fool to bring the product to market, only to have it copied.

        Following this train of thought. A world free of patents would have fewer revolutionarily new products and much more gradual innovation. It’s hard to see how that would be a net negative for consumers or technological development overall.

        1. All right! Bring back the 11th century model of technological development. I always knew libertarians were medievalists at heart.

          1. Rigth, no innovation ever happens outside patent schemes.


          2. Rigth, no innovation ever happens outside patent schemes.


            1. Which is an argument no one is making. There was definitely innovation in the 11th century, just achingly slow innovation, and most of it was kept secret.

      6. I don’t know where I stand on IP. I’m still thinking. But with regards to the statement, “I can’t imagine how something like complex software would ever get written if it was simply free for the taking,” how do you account for the success of GNU, Linux and other large open source software products? There’s a popular hobbyist microcontroller called Arduino. It can be used by all kinds of people to do all kinds of useful or even artistic things. The design of the circuit boards, the operating system, the development environment (software for a host computer where programs for the microcontroller are written), and dozens of software libraries that support input and output devices and techniques are all free. People keep contributing new libraries, software upgrades, interface boards, etc. This one little computing system makes a good case for open, free software. I’m not convinced (yet?), but the argument is strong.

        1. But the microcontroller at the heart of the board is no open source. Someone is always free to give away their property (charity happens), does that mean that society would work if we had no property at all?

        2. Nothing about GNU or Linux was innovative. They were imitations of proprietary products (Unix and Macintosh, roughly). Open source is swell for leveraging a lot of people’s time and effort to grind out a straightforward solution that lots of people already want.

          1. Neither GNU nor Linux are remotely related to Macintosh – at least not Macintosh as it existed before Apple based OSX on BSD Unix (10+ years after linux was introduced and near 20 years after GNU). GNU is a collection of userland utilities that lacked a viable kernel (GNU Hurd is still more or less alpha software 20 years on). Linux is a kernel that lacked userland utilities. They were married by their mutually beneficial functionality to create a system that reasonably resembles Unix.

    2. Address Huawei.

  7. Sounds like a lot of fun dude.

  8. “I have the most awesomest idea ever, but I’m never going to let anybody know about it, because I’d rather die broke than allow somebody else to derive the slightest benefit from it without paying me. Fucking FREE RIDERZ!”

    1. “I’m the hardest worker ever, but I’d rather die broke than allow somebody else to derive the slightest benefit from it without paying me. Fucking FREE RIDERZ!”

      See how different it sounds now? Innovation takes labor and effort.

      1. And all that labor and effort never went into ideas until intellectual property was invented, right? Then how did anyone invent the idea of registering inventions and ideas?

        1. Patents became widespread in the 1500s and 1600s. The progress of invention was SLOW before then.

          Now that’s not entirely attributable to the dawn of IP, as the printing press and cheaper transportation, opening markets in other parts of the world, etc were all happening around the same time. But you can’t really point to the technological progress from 3000 BC to AD 1000 and say “Ha! That proves we don’t need patents!”

          1. I think part of the whole thing is the entire IDEA of technology and invention.

            Before then the very specific idea that man could improve his lot in life through thought/invention didn’t exist so specifically.

            Once people were like “Hey, we can invent stuff”, they were emboldened to do so. Of course, the monetization that patenting brings helpd fuel the process.

          2. Post hoc, ergo, propter hoc.

            1. Which I quite explicitly was NOT using. Read the goddam comment.

    2. Again, you can’t patent ideas. Try again.

  9. They haz a confuze.

    Sacrificing one animal for the greater good of the endangered species is a move that critics and animal conservation groups call “perverse” and a “sad joke.”

    “They need to be protected, not sold to the highest bidder,” said Jeffrey Flocken of the International Fund for Animal Welfare (IFAW). “It also sends a dangerous message that these iconic and disappearing animals are worth more as dead trophies to be mounted and hung on a wall in a Texas mansion than living in the wild in Africa.”


    In a letter to the Dallas Safari Club, the Namibian government said, “To hunt a black rhino is not taken lightly by Namibia. … Only old geriatric bulls, which are marginalized in the population and do not contribute to reproduction, are trophy hunted.”

    The Dallas Safari Club says the Namibian government will closely monitor the winning bidder’s hunting expedition. The club also insists that by allowing a handful of predetermined rhinos to be killed, it’s actually protecting younger, stronger rhinos.

    I blame Bambi.

    1. I blame Bambi.

      Yeah. I watched it as an adult and was struck by how the hunters shot at anything that moved. What kind of hunter doesn’t go out with a specific animal to hunt? I guess with a 12 gauge you could carry a mix of shells to kill everything in North America, but I’ve never know a hunter that does that.

      1. What kind of hunter doesn’t go out with a specific animal to hunt?

        Sadly, plenty of hunters. For one, most hunters don’t have the time to hunt a specific animal. Some do, but hunting a specific animal is extremely difficult and requires a sense of dedication that most hunters don’t have the luxury of having. You need time and a place to hunt where other hunters are minimal (who wants to chase a particular animal if any hunter can take it?). Most hunters have neither.

        I find it sad that there are hunters who would kill a young animal just so they won’t go home eating tag soup (having an unfilled tag), but I also understand the impetus. The costs of tags, travel, lodging, guides, equipment, etc is expensive. Who wants to spend thousands to go home empty handed? Many states compound the issue by making it illegal to hunt does on public land.

        There are lots of hunters who will kill the first buck they see, regardless of size or age, and call it a good hunt. It disregards the principles of good game management, but isn’t considered unethical in places except where the deer herd has been greatly impacted and there are few good bucks to hunt.

        That said, even wildlife biologists will tell you that the most ethical kill is to kill a fawn because they are the least likely to survive winter and a fawn’s death will have the least impact on the local deer herd.

        1. I bet fawn meat is more tender. Yum. Here in Florida it seems like most hunters go after specific game. You see the trucks with dogs to go after hogs, deer hunters with rifles, and turkey guys use shot guns. But hell, I have no idea what they are really doing out in the woods. For all I know they are shooting at everything that moves.

          1. I understand your argument now. I was thinking of “a specific animal” as a specific individual animal as opposed to a specific species.

            Yes, you’re right in that case. Hunters don’t go in the field with the intent of killing everything that moves. Firstly most seasons don’t really work out that way. Secondly the weapon or ammo I’d use for one animal generally isn’t the same I’d use for another. During the fall turkey season I’d use a shotgun or a bow, and it most places the fall turkey season is smack in the middle of deer season. But if I’m out turkey hunting I wouldn’t dream of shooting a deer that wandered by because my turkey shot is utterly inadequate for shooting a deer. If I’m deer hunting and a turkey walks by, I wouldn’t shoot it because if I hit a turkey with the same slug I’d shoot a deer with, there wouldn’t be much turkey left.

            The only exceptions are predators or places out west where its feasible. If I’m in a tree hunting deer and a coyote walks by, Imma kill that fucking coyote 10 times out of 10. Likewise, if I’m in WY hunting mule deer, and out walks a fantastic looking whitetail, I’m probably going to kill him. But the notion that hunters shoot at everything that moves is ridiculous even if only because the tag system simply doesn’t work that way.

            1. Plus firing off a gun at a squirrel or rabbit chases away any deer in the area (for example).

              Long ago in NM the deer, bear and turkey seasons overlapped (and were all on the license). Dad was on a deer hunt when a turkey popped his head above the grass about 20yds away. So Dad shot the head off with his 7×57.

              … Hobbit

          2. And yes, fawn meat is more tender. Think veal v beef.

          3. Fawn’s who haven’t yet shed their spots are the best eating venison by far, no comparison.

            As a fisherman and non hunter ( quail and dove excluded ) I have always scratched my head at the trophy hunter mindset. As a fisherman I am prone to throw back the larger fish and just keep a few smaller ones for the frying pan. They eat better than a big one and are the brood mares of the population.

            1. I have always scratched my head at the trophy hunter mindset.

              Hunting trophies is an altogether different proposition than hunting younger animals.

              By the time a deer gets to trophy size, he’s a master at avoiding predators. Hunting animals who have lived only because they have learned how to avoid things that are trying to kill them are a challenge that few are up to.

            2. Fawn’s who haven’t yet shed their spots are the best eating venison by far, no comparison.

              While this may be true, by the time hunting season rolls around (mid september at the earliest), most fawns will have already lost their spots. This is by design. While it isn’t unethical to kill a spotted fawn, if you happen to kill a spotted fawn’s mother, that fawn will almost certainly die too.

    1. In 2011, Apple and Google spent more money on patent litigation and defensive patent acquisitions than on research and development.

      The article indicates Apple and Google are attacked by the trolls, not acting as trolls themselves.

    2. Hey ease up on Apple! Before they sunk countless millions into R and D, we were all lugging around a bunch of ill formed computing devices.

      Praise be to them for discovering the rectangle with rounded corners! They deserve their patent!

      Those sharp pointy corners on our computing devices poking out an eye on users is exactly why libertarians only need a monacle.

      1. As it says in the article, the patent may well be invalid. About 85% of all patents are found invalid when challenged in court. This patent seems invalid to me since there appears to be no inventive feature.

        1. Sure it is probably BS, but it stifles innovation.

          How am I going to raise capital if I know that I will have to spend big $$ in court to prove that my use of a rectangular device with a button the front isn’t infringing?

          Can no one now develop a mobile OS that arranges apps in a grid? (At least without having to pay Apple?)

          1. How am I going to raise capital if I know that someone can copy my design without the R&D spend and sell it cheaper? Your criticism is really about the patent system (which is a mess – thank you lawyers) and specific patents.

            You have a factory that makes hyperwidgets that runs 12 hours a day. Can I come in, pay for electricity, materials, depreciation, and use your factory for the other 12 hours to build the same widgets to compete with you?

  10. This is a serious question, and I don’t know the answer.

    I presume Quicken has some sort of intellectual property protection on their accounting software. But what specifically, is their exclusive property? You certainly cannot claim exclusive ownership of double entry accounting.

    1. They own the arrangement of 1s and 0s that makes up the code. They don’t have exclusivity to double entry accounting.

  11. I guess Shel would be fine with one of us slapping our names on his essays and compiling them in book form?

    1. That would be like slapping our names on Henry Payne’s cartoons and compiling them in book form. 😉

  12. Those who register ideas have every incentive to freeze the status quo and discourage all competing innovation while they milk their registered idea. See James Watt. See the Wright Bros.

    What if the estate of Samuel Morse claimed the right to collect royalties every time somebody tweeted?

    1. There are strawmen galore on this thread! Morse’s patents expired well over a century ago so his estate is out of luck.

  13. Sowell. Well worth reading.

    New York’s new mayor, Bill de Blasio, in his inaugural speech, denounced people “on the far right” who “continue to preach the virtue of trickle-down economics.” According to Mayor de Blasio, “They believe that the way to move forward is to give more to the most fortunate, and that somehow the benefits will work their way down to everyone else.”

    If there is ever a contest for the biggest lie in politics, this one should be a top contender.

    While there have been all too many lies told in politics, most have some little tiny fraction of truth in them, to make them seem plausible. But the “trickle-down” lie is 100 percent lie.


    Let’s do something completely unexpected: Let’s stop and think. Why would anyone advocate that we “give” something to A in hopes that it would trickle down to B? Why in the world would any sane person not give it to B and cut out the middleman? But all this is moot, because there was no trickle-down theory about giving something to anybody in the first place.

    It’s funny how good ideas, well stated, seem self-evident.


    2. The perverse thing is that BO and Ben Bernanke, etc, are in fact explicitly giving to the rich… and then turning around and denouncing inequality.

      1. Knock me over with a feather! Non-derp from Tulpa!

        This is a sign of the Apocalypse.

  14. Chrissie Matthews is on Meet the Press, and he’s PISSED at that backstabber Gates for writing a mean book about the President; especially while he’s still in office.

  15. Ordinarily this would ring my troll bell and I would spill my venom all over this page, but I have decided to refrain.

    Christie destroyed himself, Obama destroyed himself, the Patriots are in the AFC Title Game.

    I have no reason to be angry today.

    Let us celebrate the world, gentlemen. Let us celebrate the world.

    And just think: delicious liberal salty ham tears are coming. Oh yes – they are coming. I am anticipating this November SO MUCH that I can already taste the delicious tears NOW.

    So let’s not fight among ourselves over where property comes from.

    Let us celebrate the world.

    1. the Patriots are in the AFC Title Game.

      And they put the smackdown in Indy getting there. That wasn’t a football game, but a slaughter.

      1. Funny how the Andrew Luck lovers didn’t show up this weekend.

        He’s the next Mark Sanchez, bank it. And Wilson has Josh Freeman written all over him, too.

        1. I disagree with that. I think Luck is the real deal. But I do somewhat agree about R Wilson. If he doesn’t have Lynch and a dominant defense, I’m not sure he’s what everyone thinks he is right now.

        2. Andrew Luck has the potential to be a very good quarterback. He just needs to protect the ball a little better. Of course a better offensive line and a decent running game would make him a whole hell of a lot better faster.

        3. Inflate me, you douche. 2nd round of playoffs in his 2nd year? Barring injury, Luck will counted as one of the top 5 to EVER play the game.

          1. LOL! Mark Sanchez was in the conference championship game in his second year…

            ….and in his first year. So maybe I was overestimating Mr Luck by comparing him to Sanchez.

        4. I’m not an Indy fan, but if you think Luck is anywhere near the Sanchize you have zero knowledge when it comes to football.Then again you don’t have much knowledge when you often flap your gums…never mind.

    2. If they lose next week, for a third time at the AFC Championship will the Pats be better known as the 90s Buffalo Bills of the 201x era?

      Nice job Belichick did in changing their game play approach from a finesse operation to a running and ball management one. Eating the play clock down at the end was some of the best tactical playing I’ve ever seen. Finesse doesn’t cut it anymore when the money is now being spread around to attract first rate defensive players and coaching staffs.

      1. If they lose next week, for a third time at the AFC Championship will the Pats be better known as the 90s Buffalo Bills of the 201x era?

        I’m no Pats fan, but they have dominated the AFC for a much longer period of time than the Bills did. And of course they won 3 SBs.

        1. They have won the AFC East for something like 10 of the last 11 years.

          1. Though a lot of that has to do with the other 3 teams being basketcases most of that time.

  16. Good points, Sheldon. A few more I’d like to add:

    1) Certainty. In addition to scarcity, there’s certainty with physical property. With real property, we allocate land and register it with the government to settle claims. That certainty doesn’t exist with patents. The scope of a patent’s claims isn’t really determined until they’re contested in litigation by a judge who most likely does not have a science background. That alone should be extremely troublesome, even for supporters of intellectual property.

    2) Allocation. For the most part, physical property has already been allocated. The raw materials from which we create things are buried under land owned by individuals and governments. To change ownership of property, we have property transfer rules. However, intellectual property reallocates property without regard to those transfer rules. You could view this as taking a preexisting right to use one person’s property and giving it to another person.


  17. 3) Wealth concentration. Sheldon was exactly right when he talked about patents concentrated in the large firms. Small firms don’t really have the resources to be worthwhile, and many start-ups are essentially “patent trolls”, lacking the means of manufacture but holding a monopoly of potential value. It’s the middle sized companies with production power and a reasonable bankroll who get screwed the most. Of course, even innovation at large companies is hindered, but cross-licensing and defensive patenting prevent them from completely killing each other off.

    4) Semantics. While the term “intellectual property” is 150 years old, it didn’t gain steam until the early 80’s.

    I just quit my job as a patent attorney on Friday, though technically I’m still one, as far as the USPTO is concerned. It’s a wretched business.


    1. Of all the patent attorneys I have worked with about 3 could tie their own shoelaces. They can shove their whereas’s and heretofor’s so far up their asses they’ll get tonsillitis.

      1) Huh? Since when do I need a “certain” system? Much of the constitution has only become certain with subsequent court rulings. Does that make it a terrible document?

      2) What? How does the invention of a new product reallocate ANY property? I invent a way to make cold fusion work. Whose property has been reallocated to me? This point just doesn’t make any sense.

      3) You mean the same way that rich individuals can invest and make even more money? Shall we reallocate the stock market while we’re at it? This is a Marxist argument.

      4) Who gives a shit?

      1. 1) To have property rights, you need to know who owns the property or have a way to readily determine it. Read any property theory book and you’ll see the importance of bounds. Your analogy with uncertainty in constitutional interpretation is nonsensical.

        2) Speaking of constitution, read it. “Exclusive right for a limited time”. You reallocate the right to use one person’s property and give it to someone else. You should do some research into this topic before posting. There’s a concept in property called “bundle of rights” that those shoelace-tripping patent lawyers of yours can tell you about.

        3) Actually, it is sort of like certain rich people who lobby the government to give themselves special treatment; thanks for hinting at the analogy. The whole point of Sheldon’s piece was “corporate concentration”. When the cause of corporate concentration is a broken government-issued monopoly, proposing to get rid of the government-issued monopoly isn’t a Marxist argument. Would opening up all markets to competition, thereby reducing concentration, be Marxist? Same idea.

        4) Semantics matter. When a government-granted monopoly is framed in terms of “property”, otherwise sensible conservatives and libertarians will overlook corporatist, monopolistic, rent-seeking behavior.

  18. This thread has some great confusion of patents and copyrights.

    It’s important to realize the justification for patents is not to give the inventor a monopoly on the idea for a time. The reason for the patent it to make the idea enter the public domain eventually. The temporary monopoly on it is the carrot for putting it in the public domain. It’s a much different question when looked at like that, and it also leads to questions of how long a patent should be. And if the length should be different for different types of inventions.

    All that said, a multi-year patent on a manufacturing process (think laser-sintering 3D printers, some of those patents expire next month) is a bit more reasonable than, say a patent on decoding a file format, and all the other software patents.

    Copyrights are where things have really gone off the rails. Again, the point of those is to make sure things enter the public domain. “no published works will enter our public domain until 2019.”

    1. If we really want to get cray-cray and go for the constitutional justification:

      The Congress shall (permissive, not mandatory) have power to…promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right the their respective writings and discoveries…

      It spells out the objective – promote the progress of science and useful arts – as well as the process – secure for limited times the exclusive right. It’s not enough that inventors benefit, as they aren’t who the clause is intended to benefit. It’s the public who benefits, and we need to always keep that in mind. Patents may be the means, but they aren’t intended to be the end.

      Like you said, copyright essentially has no effective limits on time, and given the current pace of scientific innovation, patents really don’t either.

  19. Off Topic, put kinda related if you’re slightly retarded:

    25 Things You Didn’t Know About The Movie “Fight Club”…

    My favorite:

    18. This line of pillow talk was originally supposed to be “I want to have your abortion” but Laura Ziskin, a producer at Fox 2000, found that too offensive.

    [Picture caption shows the movie line: My God. I haven’t been fucked like that since grade school.]

    The director, David Fincher, agreed to change the line, on the condition that the new line wouldn’t be up for negotiation. When Ziskin saw the new line (“I haven’t been fucked like that since grade school”) she found it to be even more offensive, but couldn’t do anything about it because of their agreement.

    I’m wondering from what perspective she considered it to offensive. I’m guessing feminist, given Naomi Wolf got into some flack a few years before the movie because of an article on ritualistic abortions.

    1. considered it to be offensive.

    2. So you can’t be against child sexual abuse and killing fetuses at the same time?

      1. I suppose you can, but I doubt that is where Ziskin was coming from.

      2. Line was an improvement though, it gave you an idea where Carter character is coming from, whereas the other is only sensational.

        1. I agree that it’s an improvement. Of course that character isn’t the most trustworthy person in the world, and she does delight in shocking the narrator, so I’m not sure how much insight the line gives.

          What does amaze me is that someone was actually in a position to cut offensive things out of Fight Club, and didn’t cut the whole film.

  20. All I want to know is why Sheldon thought it necessary to include a second page for 2 paragraphs?

  21. Meh, this whole article screams at my libertarian sensibilities. I am not convinced.

    I absolutely do believe the patent system should be modified, but done away with? I’m very surprised any of you guys would consider such a notion.

    The problem with doing away with patents has been pointed out by others. It is a significant disadvantage to the person or persons who spent time in development. To claim you have an advantage because you’re the first to get to market that is greater than the advantage of not having to develop it in the first place is absolute bullshit and stupid.

    Also, to claim that intellectual property isn’t the same as physical property as far as humanity goes? How many people have been upset to mildly irritated because someone stole your idea? Pretty sure that would be everyone. Is it as bad as stealing your physical property? Probably not, but it is still not cool, and we all know it.

    The claim of using the government as force in this case is a retarded, there is no force involved, it is defense. You steal my property, I use the proper channels through government to get justice for the theft. That is what government is there for. It’s like claiming you going to jail for stealing my car is “government force”.

    I can totally see how the anarchists love this concept. It goes straight to their sensibilities, but it should not to most libertarians who understand there is still a need for government, especially with justice.

    1. The problem with doing away with patents has been pointed out by others. It is a significant disadvantage to the person or persons who spent time in development.

      That is not how it works. For any given idea there are typically dozens of teams getting financed to make them happen. Why should the resources that went into financing the project teams that didn’t get their manilla envelope in the right bureaucrat’s hands be deemed worthless? The current system rewards a race to the bottom that can hardly be considered just by those who have any experience with it.

      1. That gets back to the idea of first to file vs. first to invent. We’ve gone from the latter to the “enlightened” European (and rest of the world) former.

        But let’s say that everyone files as soon as they reach exactly the same stage of development. There’s still a winner and the rest lose. But how is that any different that the first person to buy AMZN at $3 vs. someone who bought it a year later at $50? The group that filed first simply beat the other groups. They got there first so it’s theirs. That’s hardly a race to the bottom. That rewards those who succeed instead of giving participation ribbons to everyone.

        How about the R&D groups that fail? Should they be compensated by everyone else just because they tried? This is the same argument for wealth redistribution and minimum wages.

        1. I’m sorry, I must be stupid cause I’m not seeing the redistribution angle.

    2. Remember, patents (and to an extent copyrights) are there to make sure things enter the public domain — it’s to avoid things being kept as trade secrets. The formula for Coke isn’t patented, it’s a trade secret. There’s no date where you can grab the formula from a government website and make your own coke. If you managed to get a spy to learn the formula, you could take it and make your own.

      From a utilitarian perspective, the question is if IP creates more value by getting things into the public domain than it destroys through the grant of exclusive monopoly.

      As to force — of course government force is involved (including threat of force.) And it goes back to exclusivity. By using someone else’s idea, you haven’t deprived them of anything.

      1. Remember, patents (and to an extent copyrights) are there to make sure things enter the public domain — it’s to avoid things being kept as trade secrets.

        That’s half of it. Patents are first intended to encourage the R+D investment to get the invention invented. For mechanical devices, there is no way to keep trade secrets, as your competitors can simply disassemble and analyze a purchased device to figure out how to copy it.

        Nothing can enter the public domain unless it exists first.

        1. As I said above, I’m skeptical, even with mechanical devices.
          There is also the issue of how it is PUT TOGETHER efficiently during production, and how the pieces are made, or which are the best peices to buy

          1. The copiers can still undercut the originator. Your manufacturing doesn’t have to be as efficient if you don’t have to make up for the R+D budget.

            1. Last I checked, prices tend to go down to marginal cost. The production cost in the long run is one of the most important.

              I wouldn’t be surprised if in a lot of cases you save fuck-ton dollars per unit because one of the engineers of the originator of the idea realized that you can get rid of 3 jobs at the factory by installing the sprungifying-widget BEOFRE you attach it to the toothed-gear-flange, or that the ACME corporation’s sinusoidal sinusoidal threaded screw increases efficiency by 200%, compared to all the other screws you can buy on the market

              You get the idea.

              Again, disassembling and scanning would be very expensive, especially if you’re just a businessman who has to hire an engineer. Whereas ideas tend to be very clear and straightforward from the start. You know what the thing actually has to look like in the end, how the one special mechanism works, and it’s just a matter of putting it to paper, or to .svg file or whatever it is.

              1. There are a shit-ton of ideas for a device where it’s not at all clear how you’re going to make it work at the beginning.

                If it’s easy for the inventor to see process improvements it’s easy for bright people in the same field to see it. Most people on earth may be unable to figure out how you made the thing work even after disassembling it, but all it takes is one person who does understand it to fuck you over.

              2. I mean, all those millions of dollars that Apple etc. spend on R+D aren’t going to people sitting around a table brainstorming ideas. Most of it is going into experimenting with how to make ideas work.

  22. I blogged a response to this but it was too long to post here. Short version: Innovators can go John Galt also if they get looted enough.

    Longer version:

  23. After reading this article, and comments. I think the Libertarian party, and the Pirate party should go out for drinks sometime. =)

  24. Here’s how innovation can be hindered without patents in one industry… I present you with the video games industry. This industry is constructed by some of the most creative people in world – you would expect amazing amounts of innovation all of the time. But that is not the case because (for the most part) everyone is copying everyone else. Now the richness of the tapestry that exists in each established form of game design (FPS, RTS, MMO, etc) is quite impressive and worthy of appreciation. But innovative? Very rarely. Would the games industry be as strong with stronger patents? Doubtful. There would definitely be more innovation, but then there would be less iteration and fewer products resulting in fewer choices for the game designs that have been patented. But if innovation (no matter how good or bad the design concept) were the only consideration for success? Then, yes, patenting would bring about more innovation.

  25. diddn’t read the article yet, but, FWIW, for those of you who are stuck on the “physical property” aspect of the no-patents-whatsoever argument, I’ve got bad news for you, real property (land) is JUST as imaginary and conceptual. Surveying lines drawn on the ground are just as imaginary as any patent write-up or claim

    1. You’re an idiot. THIS land HERE, is very different from THAT land THERE. The difference is VERY real, and the difference is described by the line, which is, therefore, also very real.

    2. Surveying lines drawn on the ground are just as imaginary as any patent write-up or claim

      The survey lines are used to describe the location of the property and are not the property itself. By your reasoning the shovel in my garage is not actual property because the phrase that describes it is intangible.

      1. Your ownership of the shovel doesn’t depend on its having a name, though. I have a tool I bought at a yard sale that is part hatchet, part hammer, part crowbar, part nail-puller. I have not the faintest idea what to call it. That doesn’t make it any less my property.

        Ownership of a piece of land DOES require that it has known boundaries.

      2. no, you guys are both wrong

        real property is entirely conceptual. The earth, the dirt, as a whole, is not. But real property, a set of imaginary lines based on human mathematical constructs coupled with specific sets of rights and obligations, is entirely a human invention

        1. *not tulpa, the guys above

  26. Is there any way to open-source patent an idea, that is, declare that you thought of it and it isn’t patentable anymore and open for public use? With all the robotics tech today, and all the open-source algorithms out there, I keep thinking of idea that are clever and no one seems to think of but really are pretty obvious, just by mixing algorithms I’ve heard of with various robotics/electronics parts.
    I know there’s no open-source registry recognized by the law, but isn’t there a provate organization that does something like thatt? Copyleft, I believe? What, do I just go on youtube and say “I came up with this idea, and it is not patentable. I will testify in court against anyone who tries to patent it that it is an obvious idea to anyone skilled in the art”, as a way to discourage would-be patent trolls?

    1. I dunno ? Send your idea, or patent to NASA ? =)

    2. Yes, you publish it. You have a year from when the idea is released into the public domain to protect your property with a patent filing. If you don’t then it’s free for all to use.

      1. This is no longer true. With the implementation of Barack Obama’s “America Invents Act of 2010,” the United States now has a “first-to-file” patent system.

        This means that during that year after you’ve published, any asshole patent troll can file for the rights over your invention. Publishing a marketable invention without patenting it is no longer a good way to put an idea into the public domain.

        1. Is prior art still applicable (I’m not familiar with the changes in the law)? If so, it would probably be impossible to defend a such a patent (although the USPTO is so retarded I have no doubt whatsoever it would be granted).

  27. There are strawmen galore on this thread!

    We just want you to feel at home.

  28. Re: GW,

    If you do away with patents, then innovation STOPS.

    Completely true! For instance, it wasn’t until Ford challenged the patent for the “automobile” that car building and innovation really started!

    So imagine if there hadn’t been patents for entrepreneurial minds to attack! Where would we all be???

    Innovative ideas take time, money, and resources to vet and bring to market.

    That doesn’t turn ideas into property. You’re simply applying the old, tired and thoroughly debunked labor theory of value to justify IP.

    Property is whatever is subject to scarcity; ideas can spawn in people’s minds ad infinitum if assuming a smooth transfer. So ideas are not and cannot be scarce.

    Property is exclusive, meaning that when you hold property, it cannot be soemone else’s. Ideas can be possessed by two or more people at the same time. Ergo, ideas are not property.

  29. Two or more people cannot use the same pair of socks at the same time and in the same respect, but they can use the same idea ? or if not the same idea, ideas with the same content. That tangible objects are scarce and finite accounts for the emergence of property rights in civilization.

    I believe this is a key point when discussing the morality of Intellectual Property. The government monopoly granted to supposed first “originator.” The monopoly does not really provide exclusive holding rights on ideas because that is impossible, as there is no process or machine that can systematically erase the minds of (potentially) billions of humans.

    No, the monopoly is, in reallity, an UNDUE transfer of title of tangible goods from one group of owners to another. The moment you can’t use YOUR property to transform it into whatever you wish, the property is ipso facto NOT YOURS anymore. If you can’t use your own wood, your own glue and nails to make that pretty cabinet you found on a picture, you do NOT own those materials any more.

    1. If I can’t stick MY knife wherever I wish, that knife is ipso facto not MINE anymore.

      1. Re: Tulpa,

        If I can’t stick MY knife wherever I wish

        To stick, and to transform, are two entirely different verbs, with different meanings and thus not comparable.

        1. Looks like your model for what constitutes property just got mighty complicated.

          That’s (one of) the problem with the natural law philosophy; the natural-sounding statements produce absurd conclusions in the real world, and the attempts to amend them result in a decidedly unnatural construction.

          1. Aaaaaaand he’s back with the derp.

    2. Rubbish. I invent a cold fusion process. You happen to have the materials on hand to make the device, but without my invention you had no way prior to create the device. Does that mean that the materials aren’t yours? A cold fusion device could have been manufactured at any time that would obey the laws of physics, so the only thing limiting you was the knowledge. Is the universe imposing undue transfer of your property?

      1. If the ideas belong to one person, and the materials belong to another, BOTH people have ownership over pieces necessary to make the invention happen. Hence, if they want to make the invention a reality, they must make a mutually agreeable transaction. That’s how free markets work.

        1. If the guy with the tools can use the idea without any compensation to the owner, as would be the case in the absence of any IP protection, then he can bypass that process so long as he can gain access to the idea (say, if the originator saved it to a file on a breached computer network). That’s not theft though, according to anti-IP advocates. Taking the 30 cent pencil you used to write down the million dollar idea would be theft – taking the million idea is kosher, because ideas belong to everyone and no one. Your thoughts aren’t your own.

    3. Actually, you CAN build your own products from patented ideas for personal use,

      You just can’t SELL them.

      For example, there was the internet thingy where the guy built his own segway (Maddox linked to it). That was completely legal for him to do. He could do it a million times for his own use, and he could GIVE away the what he builds, he could even TEACH you how to build it FOR MONEY (as long as he isn’t actually just building it instead), it’s only illegal if he DIRECTLY sells it.

      The point of the patent system is manipulate the incentives of the market by the monetization of the thing, not by its use entirely.

      1. If you can’t transfer (sell) your property, is it really yours?

      2. Not so. Even making a patented device without permission is infringement, whether it’s for your own use or not.

        Obviously, in most cases the patent holder would never know about a random person re-making their invention for their own use, and probably not care, since the impact of one lost sale is going to be minimal. If you started giving your versions away for free, though, get ready to be assfucked.

        1. that’s not what I read, and I had studied up on patents. Though this was before the recent change

  30. I’m torn on this issue. I certainly see both sides, and I’ll say up front, neither side seems any more libertarian than the other.

    Two concepts:

    1. Ingenuity is increased by building upon the ideas of others.

    2. Ingenuity is hurt if one bears the burden of R&D without payback. Why innovate if there is no payday? Might as well use the ideas of others to profit.

    I’m usually a black and white kinda guy. Something is right or wrong based upon whether it infringes on others rights. I don’t really see a clear violation here. So in this instance the solution may be one of where the boundaries are set. Limit patents to a couple of years? Let the innovator make his coin and then let the market improve on it?

    I am unconvinced by anyone’s all or nothing ideas.

    1. Re: Francisco d’Aconia,

      2. Ingenuity is hurt if one bears the burden of R&D without payback.

      If you subscribed to utiliarian ethics, then this alone would justify granting a monopoly to that poor, poor R&D person. If you subscribe to natural law ethics, then granting such monopoly is immoral, as it would mean a clear violation of other people’s property rights.

      Whatever amount of time or effort a person employs on research and development falls under the category of “not my fucking problem, dude.” That is the risk you take. People forget that innovators have a great advantage in the market as the first to place their products in the market. IP proponents what, however, something akin to guaranteed income, as if innovators were suddenly entitled to our property by virtue of their ingenuity… or luck.

      1. And others forget that R&D costs money. You want everyone to be able to steal ideas freely? OK. Get ready for a LOT more trade secrets and a LOT less innovation because no one is going to publish anything again.

        No one is taking your property by denying you the ability to take theirs. That’s no different than saying a non-refundable tax break is “giving” money.

        1. Especially when you could not use your property for such a thing unless you came up with the idea yourself or you stole the damned idea.

          Fact is, you need someone else’s labor to produce this, and all the anarchists think they didn’t “earn” the fruits of their labor because they do not have the mental agility to understand that everything in life is an idea, including physical property AND intellectual property.

        2. Spending time and money on R&D is the inherent risk in inventing though, isn’t it?

      2. Bullshit, in your mind natural law does not extend to intellectual property, in practice it always has.

        You can claim whatever you’d like, but there is absolutely nothing to substantiate your claims other than a few radical opinions that you happen to subscribe to.

        And those opinions are incredibly flawed.

        What is money, other than an idea on a piece of paper? Do you subscribe to the idea that you do not own the value produced by your own labor, simply because it is ethereal? Especially when your money is converted to 1s and 0s in a computer somewhere?

        1. Wow, that’s a really good point

          the natural rights ideas are flawed because they’d also have us believe that when cash is stolen, you’d only be due to be reimbursed for the value of the paper, which even for a $100 bill, is less than a cent.

          1. It is a flawed view point on natural law and natural rights, not a flaw with natural rights per se.

            Such things always happen when you radicalize a perfectly reasonable idea. Trying to overanalyze the idea of property to create one single definition that fits all things is idiotic. Property is what property is and always has been, whether it be physical or an idea. That is natural to humanity, and you shouldn’t need someone to write it down to understand it, and you definitely should not construe the writings of those who defined it on paper to be applicable to everything at face value.

            We all know what natural laws and rights are, that was the goddamned point of it in the first place.

      3. That is the risk you take.

        It’s not a risk when you’re guaranteed to lose.

        1. It’s not risk when you’re guaranteed to win either.

          1. Typical success rate for R&D project is 10% or so. Hardly a guarantee.

            1. I don’t think eliminating IP is a guarantee for loss either. But that’s just my opinion.

          2. Not seeing how the ability to patent something makes developing it a guaranteed win. The 8-track was patented.

            1. You don’t see how having a 20 year corner on the market or lifetime +70 isn’t trying to guarantee a winner?

      4. People forget that innovators have a great advantage in the market as the first to place their products in the market.

        People forget that sometimes your idea gets heisted before you have a viable product to market and you eat all the costs while the imitator reaps all the benefits. Your trade secret is only as good as your ability to keep it. Tough shit though. Your thoughts belong to everyone and no one – they aren’t yours.

    2. I’m all for putting a lifespan on patents, and copyrights. Trademarks however should be protected as long as a company is in business.
      Anyone can make a pair of sneakers, but only Converse can label their sneakers “Converse”.

    3. And idea I created is every bit as much mine as property purchased by me. IP rights and private property rights are one and the same.

      1. So if you and I have the same idea I can just go pound sand?

        1. Depends. If it is so obvious, then the patent should be invalidated. If not… try to work around the scope, if you can’t, try to get the scope narrowed, and if you can’t do that either, well, patent is really that good, so you’ll have to licence.

        2. Presuming that in libertopia land was freely available to be homesteaded, how would you handle a dispute where you and I both arrived on the same plot of land at the same time?

    4. Francisco d Anconia|1.12.14 @ 1:54PM|#

      I’m torn on this issue. I certainly see both sides, and I’ll say up front, neither side seems any more libertarian than the other.

      Don’t agree much with FdA here, but this is spot on how I feel about it right now. Perhaps someone can come up with a compelling argument that would change my mind, but so far it hasn’t happened.

    5. Patent law ENCOURAGES others to build upon your ideas.

      Without patent law, you must keep all of your ideas as trade secrets if you hope to extract any advantage in the market from them.

      With patent law, you ARE REQUIRED to disclose your ideas, and you gain protection of the value of those ideas in return. That disclosure allows others to take the technology further, and patent something even better later on.

    6. The libertarian argument against IP boils down to the fact that it requires an intrusive government to enforce as opposed to tangible property which has existed and been defended long before the development of government.

      1. That’s an anarchist argument.

        Libertarians acknowledge that a government is necessary to enforce individual human rights, including property rights.

        1. IP cannot exist without government enforcement as it is a government grant of monopoly.

          The same is not true of other property.

          1. OK, so if we throw out govt documents and govt enforcement, what’s to stop someone stronger than me taking over the plot of land that I theoretically own?

      2. Defended by what, might makes right?

        If land property is so inherent without govt protection, why am I not living among a bunch of Cherokees right now?

        1. The same reason that a stolen money can’t be used by it’s original owner.

          1. And how much is the original owner’s property right to that stolen money worth?

        2. Tulpa:

          If land property is so inherent without govt protection, why am I not living among a bunch of Cherokees right now?

          Because you don’t live in an Indian Territory, I assume. And, the trail of tears.

  31. If one scientist has been issued a patent for his invention of a widget, another scientist would likely be discouraged from continuing his own work on a similar product, or from maocking modifications or variations on the patented item.

    Because of fear of litigation. This should tell you that, rather than boosting innovation, IP serves more to keep patent lawyers fed and happy, and to pay for their kids’ tuition.

    1. So there is something wrong with the system. There is something wrong with our criminal justice system as well, do we just get rid of the whole thing to fix it?

    2. This is a fucking retarded assertion. Another “scientist” (really mostly engineers here, folks) would be encouraged to continue work on modification and variations because that would be a different fucking idea! THAT is the point, folks. Bob invents a cog made out of titanium and bull semen that allows cars to get 300mpg. 10 years later George builds on Bob’s work by developing a cog made out of cardboard and Robert Reich ideas, both of which are plentiful and cheap. George patents his cog and we’re ALL better off.

      We get the benefit of both George’s work and Bob’s work. Bob is compensated for his invention, and the world moves forward.

      Or Bob is never employed because R&D is expensive (8-12% of revenue typically) and it’s much cheaper and more profitable to just keep building the same old crap year after year. We all lose because there are fewer new products (especially in capital intensive fields, i.e. hardware); Bob doesn’t have a job, and George probably doesn’t either.

  32. all it takes is one person who does understand it to fuck you over.


  33. All property rights are intellectual property rights. If you don’t support IP, you don’t support private property.

    1. How come IP isn’t of unlimited duration like physical property then? How come there’s fair use exceptions?

      There is an important difference in our system.

      1. That’s a good question. Maybe because ideas seem to be unlimited whereas physical resources are more constrained. But it’s an argument that IP laws are actually much less restrictive than physical property laws.

      2. IP is what is called intangible property. Its in the same category as stocks. lets say you own stock in a company and that company goes out of business. You still own the stock, but you no longer own any value associated with it. IP rights ensure you own your idea, and its value. Putting a lifespan on patents, and copyrights keeps an individual actor, or the state from perpetually dictating an ideas value to a free market.

      3. Because IP is not subject to outside forces such as corrosion, erosion, acts of god, etc. Nor is it really subject to use as payment in most instances.

        Creating an infinite right on a race of beings who do not lead infinite lives is a bit silly, and I’d say that our way of dealing with it may not be ideal, but it is a much more natural way of doing things than either alternative.

    2. All property rights are intellectual property rights.

      The worst bit of nonsense that Rand ever spewed. It’s laughable that anyone believes this horseshit.

  34. Launching a complete attack against “idea” patents makes zero sense. These patents have their place. You’re not going to win over too many converts, even among hardcore libertarians.

    The patent application process in this country is a total joke. THAT is the real problem. It is literally impossible to have an application completely rejected. Entities with enough resources can simply “amend” the application infinite times until they wear down the Patent Office.

    1. *ding* We have a winner. An immense number of patents should be rejected for prior art. And how about some natural language in a patent for a change?

      1. Yep, this is what we should be fighting for, not getting rid of patents altogether, which is completely and utterly asinine.

        Didn’t Apple try patenting swiping your finger on a goddamned touchscreen?

        There should be some need to provide evidence of originality. I could have told you when I was 8, back when Steve Job’s company lamented against “Big Brother” (How ironic) that swiping your finger on a touch screen would be needed for any such technology. Point being, that is not an original idea and should not be able to be patented.

  35. Question to all the anti-IP people. A lot of the manufacturing is subcontracted. For example, Apple manufactures their iPhones at Foxconn facilities in China.

    Say, Apple contracts Foxconn to manufacture ten batches of iPhones. Can i show up at Foxconn factory, and ask them to make me additional two batches of iPhones, to sell myself and cut Apple out of the loop. I’ll still use Apple logos, and still sell iPhones as iPhones (which they will be). Without IP, who’s going to stop me? Stupid Apple can spend as much as it wants on R&D, design, and marketing, and when they are done, i just stop by the factory, and pick up their production line.

    Do you see anything wrong with this scenario? Yes, no, maybe?

    1. Anything wrong with this? Aside from the fact that Foxconn and Apple almost certainly have an agreement for this to NOT happen, and the fact that Apple would likely fire Foxconn if they did this, even without such an agreement, and the fact of the fraud when using the Apple logo (minimal though it may be), not much.

      1. Once line is build, it would be in Foxconn’s interest to be fired – unburdened by the R&D, design, and marketing costs, i would be able to pay far more to Foxconn than Apple.

        Say, Apple sells iPhone for $600, which covers $300 in marketing and R&D costs, and it is willing to pay Foxconn $100 per device to make it. Profit is $200. Without those costs, i can pay Foxconn $200 for device, and sell it for $300, for $100 profit. The incentive for Foxconn is to break the agreement with Apple ASAP, and either deal with me, or sell direct.

        And without IP, i don’t think you’d be able to show fraud – since Apple doesn’t own Apple brand anymore, and the phones are identical to whatever Apple invented, they really would have no case.

      2. How is having a gray apple on your phone fraud? It’s not a statement of material fact, it’s not even a statement at all.

  36. While I agree there is a lot of abuse in the current system, I still haven’t heard anyone explain how getting rid of all IP will not turn out badly in the Avatar movie scenario: A group of investors spends hundreds of millions of dollars creating such a movie, but then the marginal costs of distributing the digital final product are essentially zero. Without IP, who will make that huge upfront investment, knowing that as soon as it is released someone will pirate it and start selling it, making it impossible to recoup the upfront costs, and thus making it financially unfeasible for anyone to create such a movie in the first place.

    Anyone see a way around this difficulty?

    1. This is basically the same problem pointed out by Malkavian upthread, BTW.

      High upfront costs and low marginal costs of production appear to equal a massive disincentive to innovate in such products without any IP protection at all.

    2. making it financially unfeasible for anyone to create such a movie in the first place.

      Feature not bug.

      1. My thoughts exactly.

        People act in their self-interest as they see it. But not always in their direct _financial_ self interest.

        There would be plenty of innovation even without IP, as evidenced by all of the innovation going on in areas in which IP does not apply.

        IW, some folks just like to make new things.

    3. In the case of Avatar, one can only hope.

  37. As a scientist, I have to step in to address the horribly flawed thought process represented by this article. Patents do not foster corporate concentration. They prevent it.

    With patent law, I can found a small company that focuses on developing and researching ideas. Those ideas can then be sold to a larger company with the extra capital and manufacturing knowledge to develop those ideas into a product line. I can then reinvest the money made by selling the idea into developing new ideas.

    Without patent law, if I were to try the same thing, the larger company would just steal the idea. There’s no point to doing any of that research unless you’re employed by a company which already has the infrastructure to turn ideas into a product line. So big conglomerates can keep small businesses out of the game, fostering corporate concentration. Sheldon Richmond has gotten it completely backwards.

    Furthermore, patent laws do not encourage secrecy. In fact, they encourage disclosure. Without intellectual property laws, anyone who wants to keep the value of their ideas must keep those ideas a secret. There is NO disclosure of trade secrets without IP law. And without disclosure, there is no free exchange of ideas. Patents require disclosure, putting the ideas out in the open while retaining the value of the ideas for the person who developed them.

  38. You see, property rights do not exist just to protect physical possession of physical objects. Someone could walk into your house and start living there without your permission without depriving you of any physical objects, but that’s a clear violation of your property rights. This is because property rights exist to give you exclusive control over the use of something of value. It doesn’t matter whether someone could make use of that value without taking an object away from you. It’s your control over how that value is applied that is being protected.

    Without such protections, we end up in a tragedy of the commons where anyone can live in your house without your permission and anyone can use your ideas without your permission. Each individual violation does not severely inconvenience you, but in aggregate, you lose the entire value of ownership. This makes it pointless to put any resources towards building houses, because others will take advantage of it, and you can just live in someone else’s house and gain the same value. It makes it pointless to put down the millions of dollars necessary to develop patent-worthy ideas, because others will just take advantage of your labors, and you could’ve just taken someone else’s ideas and gain the same value.

    Intellectual property laws are a crucial form of property rights, and you cannot develop a functional libertarian society without them.

    1. What this dude said, basically.

      I find definition of property based on scarcity troublesome. Say, Ted Nugent owns a million acres of land. I don’t see how the fact that he may never find me (due to vastness of his estate) grants me a legal right to build a house on his land and call it my own. I know there’s a concept of squatter’s rights, but again, i find it troublesome.

      Not only that, but as others pointed out, good ideas are scarce. Actually, i would go further, and argue that good ideas are the ONLY things that are scarce in this universe. Everything else is effectively infinite. (Space is 14 billion light years across – no shortage there, energy – even a single star burns so much of it, that the entire human population consumption is effectively meaningless, materials are in the same boat).

      How to access the infinite wealth of the universe? Well, that requires good ideas. And they are REALLY scarce.

      1. According to most Silicon Valley venture capitalists, good ideas are not anywhere near as scarce as good management, and nowhere as abundant as capital.

        1. Good management is a subset of good ideas, so yes, it’s true in a way. As for capital, good ideas have no trouble attracting capital (in a market economy).

          If i invented a warp drive that i could build in my kitchen, and that would take me to the edge of the galaxy to mine one of those diamond planets and pull hydrogen gas from the stars for fuel, and do it all for pennies a day, i’d have no trouble attracting capital.

    2. The tragedy of the commons is created by the scarcity of the item of value.

      If someone is living in your house you don’t have privacy in your house. You lose something of value.

      If everyone in the community dumps waste into the watering hole, then the watering hole becomes useless for everyone.

      That doesn’t apply in the case of software. If I corrupt and fuck up my copy of Microsoft Office, that doesn’t cause problems for other people using Microsoft Office.

  39. No one here has addressed the incentives to NOT innovate that patents provide. And apparently, no one has read any of the source material Richman pointed to in his article. Consider this: if there is no IP protection for a firm from its competitors, continuous innovation is a NECESSITY to remain in business. With IP protection, the firm can sit on its metaphorical butt for 20 or life-plus-70 years.

    1. Unless someone develops something better and patents it.

      1. Patenting is a cost. W/o IP the cost of innovating is lower, ergo, more innovation.

        1. So we should lower the costs of patent-holding. Make protection of intellectual property rights just as free as the protection of other property rights.

          1. Can’t be done magically. There are research costs, for one.

        2. The reward for innovating is lower too — a LOT lower.

          So anyone with half a brain would just work in a field where innovation doesn’t matter.

          1. No, not if you’re good at innovating. Then you’re the shit. Well, you are anyway, but lack of IP makes everyone innovate. Can’t sit on your butt.

        3. Then you’re arguing against the fees associated with filing a patent, not the concept of protecting IP. Different argument altogether. It’s like saying that canvas makes terrible material for a wetsuit, so diving should be prohibited.

          1. Not the fees. The fees are nothing. Research, litigation, avoiding litigation, the opportunity costs thereof and of avoiding certain sectors due to the IP barriers, etc.

    2. I’m not sure how that follows. Without IP protection, i don’t need to invent anything at all. I either copy other people’s stuff on the cheap, or simply show up at their contract factories, and buy up their product line at a price the original inventor can’t match (due to spending his money on R&D).

    3. if there is no IP protection for a firm from its competitors, continuous innovation is a NECESSITY to remain in business.

      Assuming for arg’s sake that that’s the case, it follows that you don’t want to be in that business, since you have to spend money on innovating and then watch others profit by undercutting you in price.

      There are plenty of businesses, of course, that don’t rely on innovation at all.

      1. Unless you happen to love your subject matter, and can innovate easily or at lower cost than your competitors. Look. Innovation is going to happen, because it gives an advantage. Lack of IP just makes it happen faster.

  40. my best friend’s mother makes $82 hourly on the internet. She has been fired for 10 months but last month her paycheck was $14496 just working on the internet for a few hours. find out this here

  41. Like several other commenters, I originally saw good points on both sides of this debate. However, after thinking about it some, I realized that Mr. Richman’s position is absurd. This is clearest when considering the “cleaner” issue of copyright. As others have noted, in written and other works, it has become very easy to reproduce another’s work. Richman’s position is hypocritical. His organization, the Future of Freedom Foundation, copyrights all content on its web site. Mr. Richman’s books are protected by copyright.’s content is copyrighted. (So are Judge Napolitano’s books, and the Judge is big proponent of natural law.)

    If someone, like Mr. Richman, truly believes copyrights are nonsense, then he should lead by example. He has had and has now complete freedom to release his works into the public domain, even without a Creative Commons license. But he doesn’t seem to have done this.


  42. Some commenters have cited open source software as an example of not needing copyrights or patents. I would be interested to know if anyone can make a living solely from producing creative works that are released into the public domain. Examples anyone? This means not creating works that serve as an advertisement or promotion for other goods or services from the creator. And it means that creators aren’t earning a living for creating public domain works who are on salary (such as academics or even some in the private sector). Sure, creators can charge for their public domain works, but if they’re easily copied, who pays for them? Where are the individuals, much less whole industries, where people can earn livings solely by creating public domain works and getting paid for those particular works? It’s not a matter of copyright laws — no one is forced to copyright their work.


    1. Arguments against copyright on the basis that ideas “want to be free” are collectivist. Thought is labor as much as anything else, and you have a right to profit by the work of your mind as much as by the work of your body.

  43. Lol.

    Richman hates corporations so much he wants to give them unfettered access to the creative output of every individual and small firm, because they totally won’t undercut the ability of such people to successfully invent and market products by piggybacking off their creative output. Impeccable logic. Those crony capitalist fat cat pigs (because, like, every corporation is a billion dollar enterprise, of course) sure will hate never having to invest a penny in R&D ever again! That’ll show ’em! Stick it the man!

    The case against recognizing intellectual labor is no different from the Marxian case against recognizing labor of any kind. If you don’t own the output of your mind then the rest of your “property” is pretty moot anyway.

  44. It seems like everybody is talking about this in the context of patent.

    I do two things for money. I’m a web developer, and I’m a fiction writer. Now, when someone hires me to write code, I’m paid to write code. I relinquish the rights to that code as soon as I’m paid. I don’t expect credit, royalties, or anything else. As far as I’m concerned, that belongs to my employer. I’m being hired for the act of programming.

    When I write a story, I sell the rights to publish that story to a publisher for a fixed period of time and for certain media. I cannot make money otherwise. Literally. Writers aren’t even in the situation of musicians, who can be paid for performance. No one will pay me to watch me write something. Maybe someone would pay to watch me read a story, but that puts novels pretty much out of commission. The only way I make money for writing is by retaining the rights to the original. Please, give me examples of ways I can make money for writing fiction without retaining ownership of what I write, preferably not along the lines of attracting a Renaissance-style patron.

    Until then, grant that my labor takes the form of not just the physical act of writing but the intellectual act of imagination, and that both belong to me alone, to do with as I see fit.

    1. Right on. See my comment above — Richman himself uses copyright and charges for his works.

    2. Sure your imagination belongs to you, but as soon as you verbalize it in words or speech to someone else, it now belongs to them too.

      You cannot own their minds any more than they can own yours. Once someone knows something, they know it regardless of who came up with the idea. And that knowledge is as much their’s as it is anyone else’s.

      I know all of the words to House of the Rising Sun. I am capable of singing it and singing it quaite badly. I cannot however do so in a bar unless the bar pays ASCAP money to be allowed to do so. That is an incredible infringement on my and the bar owner’s liberty.

      1. No, you cannot own knowledge, you can own rights to profit through your work, which was done by your brain. You can learn what I write down, and yes, that knowledge is yours forever, but you do not have the opportunity to profit off my labor when I created that work.

        There is a very big difference, and one which I’m very surprised so many of the commenters on here do not understand.

  45. I think the Libertarian party, and the Pirate party should go out for drinks sometime

  46. Does this man that it was OK to take Rearden Metal away from Hank Rearden?

    1. Well it would be wrong to take the physical product after he smelted it and formed it. But not to steal the formula and make it yourself. The formula belongs to everyone and no one – you didn’t invent that.

      1. Barrack Obama: “You didn’t build that!”

        Sorry, just seemed so apt after reading that comment. Bunch of collectivist libertarians around here it seems.

  47. Thomas Anthony Guerriero, the CEO of Oxford City (Stock Symbol:OXFC) stated, “Intellectual property should definitely be treated the same as physical property.” Posted By: The Office of Thomas Anthony Guerriero ( Distributed By: Sacora McNair Administrative Director To Thomas Guerriero (

  48. If I spend $80,000 or $8 million doing research that leads to a discovery and subsequent product, I want patent protection on the product ideas, and copyright protection on the research documents and records. I don’t see the logic in doing away with protecting the product of your labor, be it a scientific breakthrough, or a work of art or music. If I lay claim to my discovery/output/newfound knowledge through patent and copyright protection, I certainly wouldn’t want to give it away. I’ll box it up in protections in preparation for sale, and make sure the purchase agreement/contract is clear that I’m only granting you this for personal use (or, granting you license to manufacture my newly-discovered. patented widget).

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