Actually there are several issues although the two I am most concerned with are whether IP is property (and can be proven to be so from first principles) and whether it can be practical to treat IP consistently as property.

Sione

That was a great response, thank you.

OK, you’ve got me. What are your two key issues?

I qualified in law (MLLP) a long while back so I’ve certainly encountered the statutes, read precedent cases, examined the reasoning, had direct experience with IP litigation and so on. Mostly this turns out to be irrelevant to the issues that require solution.

Firstly, Law, as practiced in the British Commonwealth of Nations, does not embody the consistent application of principle. It suffers from many internal contradictions and often lacks sound logic. IP law is not an exception to this. My experience with the US suggests matters are even worse in that legal jurisdiction. Anyway, the conclusion is that the law is not a reliable source from which to erect or confirm a derivation of rights, principle etc. For example, in the case of property, Mises confirmed that the correct derivation of and defintion for property is not legalistic. He points out that the right to property is not derived from law or a legal system. Interestingly enough, Ayn Rand points out that individual rights (including the right to acquire, own and dispose of property) are not based or validated upon a legal system or the law. So she was identifying that a just and moral legal system presupposes individual rights, not the other way around.

What this meant for my enquiry was that it was not possible, or justifyable, to employ the law or legal precedent (as interesting as some of that can be) to defend argument for the validity of IP, let alone property rights themselves. Bugger!

In the end the deal was that I had to return right down to the bottom of the intellectual hierarchy of thought underlying IP. Then it was necessary to go further and take a good long look at the derivation of individual rights, including the property right. This occurred after lots of fascinating discussion with lots of other people (including colleagues and associates and even with people whose opinions I’d normally treat with doubt and caution). Now the interesting thing about all this was that the fellows I’d assumed would have the answers at their intellectual fingertips (so to speak) were helpless when it came to the two main issues (disclosed in my previous post). Answers were not forthcoming. Same deal goes for most of the treatise I’ve located (regarding IP). Yet those two issues are the key to the entire business. If they can’t be properly and successfully resolved, then the idea of IP as property is a dead loss.

Secondly, in regards to defense of IP, you have to realise that at the time I first read Dr Kinsella’s draft there was little else of high academic standard available with the anti position- nothing I’d come across at that point anyway (turned out there was quite a bit, but not as specific or as fresh). Hence his material was a surprise and he certainly got my attention. It should have been an easy business to resolve in conventional manner I surmised. Turned out not to be so at all. Anyway, early on, nothing of the pro position I read was in response to his work. That material started to arrive later on. Still, it was handy that it did or else I’d still be waiting to see if anyone had a strong defense all sewn up. They didn’t and don’t and it is unlikely that anyone can achieve that. Again, it isn’t a case of observing the debate (like a tennis game where the ball goes back and forth) but rather a case of deriving the principle of property and of rights to property and then proving that all of this can be properly applied to IP.

Thirdly, my approach wasn’t a solely a matter of evaluation of pro or anti arguments for internal consistency. I concluded that the way to a resolution was to see whether it was possible to demonstrate solution to certain specific issues or particular questions (call them proofs or challenges if you like). Two in particular appear to be key.

Finally, the great majority of my colleagues are quick to promote and defend the pro-IP position. As may be imagined, it is simplicity itself to seek contradiction and critique of the anti position whenever I want it. Then that material can be tested out. The good news is I don’t have to pay for any delivered opinions! Practitioners and academics are passionate about this subject. How good is that!

Sione

I am just curious to know if in all of this research, you ever encountred the statutes themselves, or every read any cases where a particular issue was decided and examamined the reasoning there? Did you ever read any treatises supporting the concept of IP other than those who were responding to the sources (or similar) above?

In other words, if you only evaluated Kinsella, Rothbard and Rand for consistency of thought, how do you know that you have only validated the system of logic that you share with these three sources? What was it that you contrasted this view with?

Yes, I think he is likely correct.

When I read his first draft paper years ago I was surprised. His view was counter-intuitive. Up to that point, I hadn’t thought all that much about the nature and attributes of IP even though I was involved with it in a related field. I figured I was in the position of needing to find out much more. After reading Dr Kinsella’s draft paper I went and read all the citations he supplied. Then I asked around some (sought information and opinion from people I respected for their knowledge and experience, as well as from people I knew to be scoundrels and rortists- albeit successful ones). More reading resulted. Then I spent a lot of time considering the situation from first principles. In the end it came down to two main issues and a set of subsidiary ones, any of which was fatal to conventional notions supporting the institution of IP. They two main ones were:

1/. Can it be proved that IP is property? If so, then what is the proof?

2/. As the practical is the moral, is it practical to treat IP as property?

It appears the answers are in the negative. In conclusion then, Dr Kinsella’s position is formidable- solid. He’s on safe ground. Now that was an unexpected surprise. It meant that such luminaries as Ayn Rand were not correct in their formulations regarding IP. Also that Rothbard had likely erred to some extent. It also suggested that by neglecting to properly examine the matter of IP many of the libertarian movement had erred by omission. Various anarchists, on the other hand, appeared to understand the situation clearly. This turned out to be a demonstration of the old lesson of not taking anything for granted without being prepared to check it from first principles.

Sione

Your list of revisions has some merit. I would especially be supportive of reduced terms for copyrights.

On your patent article, I have some questions:

1) Isn’t the presumption of validity based on the fact that a patent is assumed to be properly issued, and the burden should therefore be on the party asserting invalidity? I realize that this puts the issue on whether the patent was issued properly by the patent office, but that is a technical issue concerning the competence of the issuers. Why shift the burden to the patent holder?

2) Wouldn’t elimination of the best mode defense just make it easier to game the patent process, as was apparently the case in Ajinomoto Co., Inc. v. International Trade Commission, in which the patent was invalidated because they purposefully filed based on a strain of bacteria that was not their favored strain for the patented process? How would this be an improvement if a patent can be awarded without requiring a best mode disclosure?

We should talk about your list sometime. First time I’ve encountered the less-than-absolutely-radical-and-extreme Kinsella.

That is the way you imagine me? I’m much more hideous in person!

Almost nobody actually does anything with the patent. They don’t sell the rights to the patent, they don’t try to sue other people with similar ideas, and quite often the patents never actually end up covering any portion of any product.

It’s quite pathetic, really.

I’m sorry but you Euro white fellas tend to be far to Euro white fella centric. The world is more than the Euro white fella zone only. Please look around and see what others in the world are suffering, how they must employ risky work-arounds to avoid patent monopolies, how markets are prevented from working freely by patent monopolies, how property rights are eroded and wealth expropriated, how the whole mess is imposed by govt cronies, monopolists and statists, how the monopolistic patent systems copied from or imposed by Euro white fellas damage the legitimate interests of vulnerable people (including the innovative, the old, the young, the ill, the helpless, the weak, the clever, the inventive, the powerless, the investor, the start-up, etc. etc. etc.). Look around and learn.

Sione

Sione

I guess this demonstrates that the highest for of complimnet is emulation.

I think in a free market without IP the question won’t be “What IP do you have protecting this?” but “how easy is it to reverse-engineer?” or “Is it protected by an NDA?” etc.