This essay will change the way you think about patents and copyrights. Few essays written in the last decades have caused so much fundamental rethinking. It is essential that libertarians get this issue right and understand the arguments on all sides. Kinsella's piece here is masterful in making a case against IP that turns out to be more rigorous and thorough than any written on the left, right, or anything in between.Would a libertarian society recognize patents as legitimate? What about copyright? In Against Intellectual Property, Stephan Kinsella, a patent attorney of many years’ experience, offers his response to these questions. Kinsella is altogether opposed to intellectual property, and he explains his position in this brief but wide-ranging book.
71 pages, Paperback
First published January 1, 2001
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Also publishes as Stephan Kinsella.
Norman Stephan Kinsella is an American intellectual property attorney and libertarian legal theorist.
He is the founder and Editor of Libertarian Papers, Director of the Center for the Study of Innovative Freedom (C4SIF), and General Counsel for Applied Optoelectronics, Inc. He is a former partner with Duane Morris LLP and was adjunct law professor at South Texas College of Law, and is currently a senior fellow at the Ludwig von Mises Institute.
Kinsella has published numerous articles and books on IP law, international law, and the application of libertarian principles to legal topics. He received an LL.M. in international business law from King’s College London, a JD from the Paul M. Hebert Law Center at LSU, and B.S. and M.S. in electrical engineering degrees also from LSU.
4 books 77 followers
I’ve always considered libertarianism to be a childishly simplistic and completely unworkable political philosophy, but with regards to intellectual property I do think that patent laws are now serving to stifle innovation. We now have patent trolls whose only business model is to blackmail companies into settling costly patent infringement claims, while producing little or no benefit to society. For a primer on the topic see This American Life – When Patents Attack .
With that as a background I decided to read Against Intellectual Property by N. Stephan Kinsella a monograph published by the Ludwig von Mises Institute (a libertarian economics think tank based in Alabama). A free copy of this short publication may be downloaded here.
Kinsella argues that we should do away with all intellectual property rights (IPRs) because they not only violate property rights, but undermine social well-being from a utilitarian perspective. There is some merit to this position. If a new innovation were made more widely available, others could expand upon it, create new applications for it and produce new products that may both generate profits and benefit others. A thoughtful case could be made that revisions to patent laws could occur that both protect the inventor and spur further innovation.
Unfortunately, that’s not what Kinsella does. In true libertarian fashion he ventures into crazy town and absurdly claims that because IPRs restrict the use of some technologies, that they should therefore be done away with completely, and he does so using sloppy argumentation that falls within the standard ‘all or nothing’ perspective that is so in vogue with libertarians (i.e. let shop owners discriminate against minorities and homosexuals, eliminate safety, health and environmental regulations, eliminate taxes and government services … because freedom).
The arguments Kinsella uses can be roughly broken into three logical fallacies:
1. The False Continuum Fallacy: Kinsella argues that there is an arbitrariness to patent law that renders the entire endeavor meaningless. Patents are extended for 20 years, but why is this better than 19 or 20 or 30 years? Patents can be granted for innovations but not for scientific discoveries, but why should this be the case? This is the False Continuum fallacy - The idea that because there is no definitive demarcation line between two extremes, that the distinction between the extremes is not real or meaningful. You see this a lot with gun advocates who argue that the distinction between a rifle and an assault rifle (say a pistol grip) is so small that there’s really no reason the latter should be made illegal. As far as it goes, the point may be a valid one, however, a limit needs to be set somewhere along the continuum between a slingshot and an ICBM carrying a nuclear warhead so the choice of an assault rifle is not an unreasonable one. With regards to patents, a reasonable discussion of the length of the grant can be had. But we do know that the correct answer is neither 1 second nor 1 million years. Twenty years is a reasonable first approximation. The fact that 19 years might be a better number is no reason to throw the baby out with the bath water.
2. Reductio Ad Absurdum Fallacy: Another argument Kinsella favors is an abuse of the reductio ad absurdum technique in which the logic is stretched beyond meaningfulness in order to force an absurd conclusion. By way of example, Kinsella claims that if a caveman built and patented a cabin, that all the other cavemen would be forced to remain in their caves unless they could license the cabin patent themselves. Of course such a silly conclusion is only possible because no such ‘cabin’ patent exists.
3. The Non-Sequitur: Imagine a property owner who discovers oil beneath the ground. He comes up with a plan to buy out his neighbor’s property at a discount before they learn the truth. But the secret is leaked. We couldn’t expect the neighbors to still sell at the low price now that they’ve been made aware of the true value of their land, so why should we restrict the free use of any information … including copyrighted material? This, of course, is a complete non-sequitur - an argument in which the conclusion does not follow from the premise. Information such as a fact or scientific truth cannot be copyrighted or patented. It in no way follows from this example that an author should therefore lose exclusive rights to his book once released to the public.
Like with many libertarian ideas, the idea of eliminating IPRs can be technically characterized as ‘fricking ridiculous’ and will be put into practice within a timeframe legal scholars refer to as ‘when hell freezes over’. Why?
1. First of all the US economy is built upon innovation. Why would any business or individual invest enormous resources of time, money and energy to develop a new product or technology when, upon release, every Joe Sixpack in every country of the world would create a copy without incurring any R&D costs? They wouldn’t. The most profitable sector of the US economy would collapse if IPRs were eliminated.
2. It’s unconstitutional … go read Article One, section 8, clause 8 of the U.S. Constitution which states: The Congress shall have power . To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
I really don’t get the low-scored reviews of this book. Although I’m nowhere near right-wing libertarian, this is one of the most thought-provoking essays I’ve read. Kinsella targets an egregious version of socialism for the rich: intellectual property. If you’re concerned about state-granted intellectual property rights and the best way to encourage innovation then this relatively short essay is the first thing you should read.
This work discusses what intellectual property is and makes a case against it. This is written primarily for libertarians. IP has always been a contentious issue in the classical liberal/libertarian community. People like Ayn Rand supported it while Murray Rothbard opposed it.
The author identifies four types of intellectual property; patents, copyright, trademark and trade secrets. He is opposed to patents and copyright while having a more complicated opinion on the other two.
The case against IP is that IP is not property because it is not scarce. Property rights only make sense under scarcity. Furthermore, IP gives its owners power to control tangible property that they do not own. The author also points out that in practice IP is absurdly arbitrary.
There is a lot of space dedicated to addressing theories of IP and responding to possible rebuttals.
It is a wonderfully short "book". It is written clearly and to the point.
3 books 58 followers
A enjoyed learning more about what IP looks like and some different theories supporting it and against it.
As a writer I find it intriguing. I do believe ideas aren't mine to keep inside or profit from, but meant to be shared, and that if I don't share them God will find another vessel with which to bless the world.
I never thought before how IP laws can infringe upon property rights. But yes, we do allow ideas to trump material ownership when we tell someone they can't do what they want with their own stuff because of thoughts other people had. Fascinating. I want to learn more.
The author makes an argument for getting rid of patents, copyrights, and trade marks. I read this after seeing how terribly inconsistent most people in my industry are when it comes to copyright infringement. I did not find Kinsella's arguments convincing.
Worth a read. Its damn short, and I knew most of this stuff already but its a nice consolidation. The economics isn't particularly deep here, but need it be? If it can be convincingly shown to violate basic economic concepts at the onset, why bother going into deep theory? Similar things can be said for the moral arguments, but this book brought up a few things I hadn't considered on that front so I wont linger on it. Even if you dont want to read the book, definitely check out the appendix which has a listing of silly patents which are actually on the books. Funny stuff.
I am in the process of going through this book again.
Many things I agreed with right off, and some things were new to me and I have to rethink them through to sort them out.
Definately a book that makes you think deeper about intellectual property and what is right and wrong in our policies or abscence of policies on this topic.
This book provides interesting insights for the reader to mull over, which is what is truly important in a work such as this. Whether one agrees with the author or not is ultimately unimportant, as you are sure to get something out of the read in the end. Oh, and true to the Kinsella's words, its digital version is available for free download, which is always a good thing.
Kinsella's position is simplistic: throw the baby out with the dishwater! Let's go back to craftsmanship, "Learn a trade", darn it! But, wait, the modern crafts are the sciences. Kinsella says: "Kill the growth and increasing employment in all fields of science, basic research, applied research, development, and the increasingly important trade in REAL INNOVATIONS that cannot be folded into a product or service, carried around in trucks, and sold in a cardboard box." Kinsella and others seem to agree that (a) governments serve special interests and not the public, (b) intellectual property rights are and will be issued to perpetuate undeserved monopolies on "innovations" that are not innovations of a significance that could serve the interest of everyman by their very achievement. Kinsella would doom our Edisons to lives of subservience to Wall Street .. please Sir, can I have a nickel to change the world with my light bulb? How about another nickel to prevent cancer? Of course, in Kinsella's world, all of us may worship his God and read by candlelight in our communal mud and dirt huts, till our fields together, "live off the land" so to speak, and we will be better off by this return to the simple lives of yesteryear infers Kinsella - but return to which year? The 1300's? The 1700's? So, this book is a great waste of time issued by an author pushing an unstated agenda. Kinsella fails to address the true problem: how can everyman control government and minimize the agency problem associated with the existence and actions of government, which usually amounts to imposing additional indirect taxes on the lives, liberties, and financial resources of the governed? Maybe Kinsella can come up with one solution for that real, underlying problem and get a patent on it. Just not in Kinsella's world view.
I offer a far better solution to the problems hinted at by Kinsella:
1. Improvements in goods and services merit very little protection - copying is efficient for everyone except the innovator, right? Hence, provide a market in rights to copy - just pay to copy. Trade rights to copy in the marketplace and harshly penalize copying without purchasing the right to make copies. This works for smartphones and software and movies too. Essentially, this is modern copyright protection, but with an important different - it stops short of issuing a private right to exclude unless knowing failure to purchase the right to make copies, plus policing costs, is proved. So, a market for rights to copy solves many problems. The protections for product development and "software wrench work" should be far, far lower than the protections available for cold fusion energy creation, preventing cancer, or "beam me up Scottie" technology, because the market for goods and services can price in the value of mundane innovations or changes in products and software, but thus far markets cannot efficiently price basic innovations achieved through complex, lengthy, and expensive trial and error research.
2. What about protecting, pricing and thus promoting expensive, risky, lengthy basic research in cold fusion energy creation, preventing cancer, or "beam me up Scottie" technology, where the market for goods and services cannot conceive of new innovations 5 or 10 years in the future? Government needs to help create liquidity with much stronger patent rights.
How about this solution, instead: 1. Recognize that issuing 20 year patents to make use and sell claimed inventions is a "shotgun approach", 2. Reduce government role by going to a market mechanism to price the protection for most innovations (buy 5 years of royalties or no-competition in a trading marketplace, according to what you want today), 3. Make government issued rights available as a backstop mechanism to promote some long-run basic research that markets are not good at pricing, perhaps because the innovations are directed to mental processes, law, making weapons that are commonly owned, eliminating trade in weapons, reducing famine, etc. I suggest creating an integrated intellectual property system that eliminates ALL trade secrets, without exception, and requires participants to (a) disclose R&D and know-how, and (b) purchase intellectual property protection in a trading marketplace, by the month or year, (c) where the protections provide participants the right to demand royalties for any use of information created by them and disclosed to the public. No more monopoly rights, but no more trade secrets either. Trade secrets are monopolies and often are not in the public interest. If you hold trade secrets, you owe a big, fat penalty, for withholding potentially useful information from the public. Disclosure is compulsory, because it allows the public to avoid wasting resources on R&D that is already known to not work. Such a system would increase efficiency in allocation of capital, resources and skilled labor, and would establish market prices for the increasingly different financial investments, time, and expertise needed to perform basic research, applied research, from mundane product development and, for lack of a better term "software mechanics programming" - the work of many modern day software programmers doing software wrench work. Basically, protections for product development and "software wrench work" should be far, far lower (just prevent outright theft and blatant copying without some compensation) than the protections available for cold fusion energy creation, preventing cancer, or "beam me up Scottie" technology, because the market for goods and services can price in the value of the mundane innovations in products and software.
