Patent Attorney Stephan Kinsella Presents On Why We Need To Rethink Intellectual Property

from the good-for-him dept

If you’ve got a spare 40 minutes to an hour, it’s worth watching patent attorney Stephan Kinsella’s presentation: Rethinking Intellectual Property Completely, as given in March. The video is embedded below, and it fits in nicely with my ongoing (yes, there’s still plenty more) series of posts on intellectual property. It’s pretty rare to see a patent attorney explain so lucidly the problems with patents (and copyrights):

He does a very nice job ripping apart the “property rights” arguments that some, especially some libertarians, use in favor of patents, explaining why that doesn’t make sense. It’s an excellent presentation, and well worth watching.

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Comments on “Patent Attorney Stephan Kinsella Presents On Why We Need To Rethink Intellectual Property”

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angry dude says:

Re: Re: An anti-patent patent attorney...

Dude, a patent attorney makes his living by filing and prosecuting patent applications for his clients – inventors and companies

Do you want to be his client ?
(A purely hypothetical question cause you obviously don’t have any patents in your name)

Chronno S. Trigger says:

Re: Re: Re: An anti-patent patent attorney...

“(A purely hypothetical question cause you obviously don’t have any patents in your name)”

And neither do you.

Yes I would like to have him as my attorney. I would rather have someone who knows what they’re doing than someone who just wants money and will step on anyone to get it.

Kiba (user link) says:

Re: An anti-patent patent attorney...

Is it actually wrong for a patent attorney to prepare a defense to deter monopolists from suing them?

After all, you have to resort to short term solution while you work on the the longer term solution of abolishing/reforming the system.

The good patent attorney benefit the public from combating these monopolists in court and use their knowledge to raise public awareness of these issue.

Anonymous Coward says:

Re: Re:

Depends on the libretarian. They tend to reduce all things to property rights, so if one happens to be pro-patents then they have a property rights argument to back it up. One I heard had to do with the application of effort to the endeavor of ‘generating’ ideas, and thus ideas are ‘owned’ by virtue of the work done.

MLS (profile) says:

“…ripping apart the “property rights” arguments…”

An inaccurate representation of what was presented. What was said is that you cannot “steal” an intangible…using the tried and true “candle lighting” example. By “steal” is meant take “something” away from a person such that the person no longer has possession of that “something” (this is a generalization since there are other ways to “steal” under law). This does not, however, in any way suggest or imply that a right created by law is not “propety” in the legal sense of the word, and the presentation lends credence to the notion that such rights are “property”, albeit different in scope and nature from other forms of “property”.

BTW, extensive preoccupation with the word “steal” by anti-property advocates is really an exercise in minutiae. Whether words like steal, tresspass, theft, larceny, infringement, etc. are used to describe a wrongful act, they all have the common thread of a person taking/using something for which they do not have permission to do so. All such acts are cognizable in civil courts as torts. The only significant difference is that patent infringement has not been criminalized…in stark contrast to copyright with seems to be on an ever increasing spiral of what is criminal.

Interestingly, a flip side of federal patent law is state trade secret law. The unauthorized use of a patent is a tort, whereas the unauthorized use of a trade secret can be both a tort and criminal act. For example, assume one could patent the formula for Coke. If they did so and it was infringed, only civil law tort applies. If instead the very same formula is retained as a trade secret, the user can be hauled into civil court on the basis of tort law, as well as prosecuted in a criminal court. As heretical as it may sound to some, the Model Penal Code used by states and some newly enacted federal laws specifically declare the wrongful use of trade secrets to be “larceny”, “theft”, etc. To make matters even worse, many of such laws declare such acts to be felonies with significant fines and jail time attached.

I suggest a much more accurate representation of what was said is that many aspects of patent and copyright law are excessive and should be scaled back. On this point he and I are in complete agreement, though we may differ on some of the more subtle points of the law.

mjr1007 says:

Re: Ripping apart the "property rights" arguments.

MLS wrote:
… What was said is that you cannot “steal” an intangible

mjr1007 replied:
A thoughtful and interesting post. The whole property rights argument would seem to be a red herring since the U.S. Constitution is pretty clear about the purpose of IP law. These red herrings are why I suggested earlier to post the clause at the beginning of every article, just to avoid such side tracks. Of course it probably increases pageviews to keep it in.

Now for the quote. Would credit, for an idea say, be an intangible which could be stolen?

Eddy Van Halen says:

A patent attorney, among other things, works to procure patents. So, a patent attorney who decries patents and their associated property rights while at the same time trying to procure patents for others is showing a certain lack of self consistency.

So, the analogy between an animal rights activist/butcher and a prostitute advocating celibacy is pretty acute. They each DO one thing, and PREACH another.

The cancer specialist analogy is bogus though. The cancer specialist isn’t out there CAUSING cancer and then trying to find a cure. Said another way, there is nothing inconsistent about what they DO and what they SAY.

the only smart one says:

o the stupidity

a simple algorithm can solve the current ip problems that should be immediatly obvious to anyone who give this debate a moments thought. simply give stuff away with a pay what you want model free to use and redistribute any way you want(which is what everybody does already). then new realeases of digital products allow preordering a copy for a set price(fluctuating optimally with demand). when the rate at which people are signing up for the preordered copy begins to decrease release it. this will optimize profits and allow information to have maximum benifit to society.

bshock (profile) says:

Are Libertarians really in favor of intellectual property?

Doesn’t it seem a bit hypocritical for Libertarians to be in favor of intellectual property? All property is a fiction supported by the state, but intellectual property is a fiction not even supported by human territorial instinct. If Libertarians support one level of government fiction on top of another, where do they stop? Why is the government’s fictional right to tax necessarily any worse than than its fictional right to create monopolies around infinite goods such as ideas?

Anonymous Coward says:

Re: Are Libertarians really in favor of intellectual property?

Libertarians believe in what they called “natural property rights”.

Actually, libertarians are divided on intellectual monopoly rights issue. Some of them believe it is an extension of natural property rights, others believe it is a gross violation of property rights.

In any case, evidences suggest property rights are an efficient way to allocate resources and that monopolies are generally BBBBAAADDD.

pupnik (user link) says:

Property isn't fiction, "Intellectual Property" is.

Property isn’t fiction, it’s a state of nature. It can be understood as the state of having exclusive control over an object, or a ‘good’ to use the more precise economic term.

Libertarians are skeptical of IP because the nature of an idea is so different from a physical object or economic good. To be an ‘economic good’, the object must be scarce in nature, and must be naturally controlled by one person. This applies to all the common objects you know to be your property. If everybody could get a copy of your bicycle just by taking a picture of it, it could hardly count as property in the natural sense.

Randians are pro-IP on the grounds that the human labor involved in creating the idea creates a valuable meta-object. In doing so, they however rely upon Adam Smith’s (and Ricardo’s and Marx’s) ‘labor theory of value’, which is the basis of communist ‘economics’. Ironic.

The theory was shown to be false by Ludwig von Mises and other Austrian economists. Value is ascribed to an economic good by the purchaser; “I want that thing, and I’m willing to exchange these things for it.” If you are trying to sell me a diamond you laboriously dug up and ground, but I’m starving of hunger, that diamond will be of little value to me, but it might be of great value to a fat duchess riding by. If we’re standing in the garden of eden and you try to sell me an apple, it has no value to me because I can reach out and pick as many as I want.

So ideas are not property because they are naturally free to spread around without diminishment. They can have economic value only if the spreading or sharing thereof can be constrained to produce scarcity. We can dismiss the term ‘Intellectual Property’ outright as flawed and misleading, and substitute the term ‘ideas’ in its place.

We can distinguish between two forms of ideas. One is meant for mass consumption, “I want many people to hear my song”. The other is meant for restricted consumption “I want only a few associates to be able to use my innovative process, so that we may gain a competitive advantage in producing some goods”. The former generally accords to copyright, the latter to patents or trade secrets.

In a non-patent environment, the innovator keeps his cards close and only shares the innovation with associates, who agree by contract to not divulge it. It should be emphasized that this falls clearly into the right to contract, which libertarians espouse. Libertarians also generally accept that the state has the duty to enforce such contracts.

The impetus behind the patent scheme was to encourage innovators to *PUBLISH* their work, so that after a period of time, the idea would be free and shareable and thus lead to greater technological advancement and overall wealth in society.

So what would a coherent libertarian view be in regards to restriction of the flow of ideas? It would simply be contract enforcement. You have the right to make contracts with others to whom you sell your ideas, which stipulate that they may not further sell or divulge them. If such a party breaks contract, you have the right to seek redress.

However, you do NOT have the right to claim an idea as “property” and to seek redress from third parties with whom you have made no contract, who have obtained your idea (by any means). If I found a copy of your improved process for synthesizing aspirin lying on the street, you have no right to prevent me from using it.

Apologies for the long post.

Gheorghe Matei (user link) says:

The most software invention from now forever

It’s very simple to discuss. After a life of work and studies, living with $200/month, I have a fundamental invention in software! What can I do? I can teach you for $0.00! You can gain $1000000000. It’s OK!!!!!!!!! Many people think that inventions come from the sky. No!!!!!!!!!!!! Sacrifices and humiliations.

Buzz says:


I agree with the fundamental idea that society needs “incentive to create”; I just feel we are offering the wrong kinds of incentive. I really laughed at the idea of the panel of experts who award people for various inventions.

Where did this idea come from that people could just choose their occupation and then EXPECT to profit from it? I want to make a living folding paper airplanes! The government must compensate me since no one will pay me despite the fact that I’m a genius paper airplane creator!

Whatever happened to supply and demand? Who gave digital media companies the right to artificially inflate demand? I purchase a movie on DVD; why is it illegal for me to transfer that movie to my iPod, laptop, and/or PSP? I’m not sharing it with friends. Somehow the MPAA feels entitled to profiting from the same movie multiple times based on the variety of formats I purchase.

The world accepts IP laws because it’s used to these laws. There is no proof that the current IP protections are “better” for society. People just cannot fathom a transition to anything else. OF COURSE many of today’s businesses models would tank if IP protections went away. Why? Because many of today’s businesses ABUSE these IP laws to no end. No one cares about the spirit of the law; it’s all about tiny details used to exploit opponents or consumers.

I am all for reform.

Billme says:

Re: "incentive"

If you were enjoying a paperback book, whether you borrowed from library or from a friend or bought it yourself, would you expect to be able to reproduce content to make it appear as if it were hardback and loan it to someone else/new or even continue to enjoy it over and over yourself?

If you were enjoying a hardback, again regardless of how you came to see it, should you expect to be able to go down to Kinko’s, and copy the entire book onto 8 1/2 x 11 paper so it fits into your 3-ring-notebook?

If you think so, fine, have a nice life, you obviously lack the values, morals, and ethics we would expect of someone in this culture and can’t appeal to your sense of fair-play and copyright laws or one of what many folks believe hit the “top-ten” list: THOU SHALT NOT STEAL. Lucky you feel you are above the law of the land, no appealing or reasoning will every convince you otherwise. Rationalize yourself.

Either case, if you wrote to content provider, they might grant you permission. I actually HAVE applied for and been approved for patent application, by my intellectual capital org within my company. I don’t care if anyone and everyone copies it, enjoys it, leverages it, uses it, improves upon it, but I don’t want anyone else to obtain rights to it to prevent ME from using it, charging ME to use MY software, etc. Any enhancements or fixes I put in, YOYO: You’re on your own…find another unscrupulous replicator to get upgrade…YOYO. But if you are part of friendly family of supporters encouraging “betterment” and paying license for upgrades, you’ll be first, notified, and satisfied.

Patent protects original inventor and original audience, and use within reason is encouraged. But Regularly converting content to alternate formats so you might enjoy it differently has NEVER been permitted. You’re kidding yourself if you think your college textbooks would have costed same per student if anyone who got their hands on one could replicate it unscrupulously, if one hundred copies were made for every one sold, you would have paid one-hundred times as much for your books or paid for illegal copies while other law-abiding citizens supported the authors in manner in which they were accustomed by paying a hundred-times more for same legal set of books.

Biz Model (profile) says:

Re: Re: "incentive"

Why don’t people check one book out of the library, copy it, and sell the copies? Is it because of their deep understanding and respect for copyright law? Their inherent goodness?

No, it’s because the marginal production cost exceeds the sale value. I can buy a legit copy of the paperback for less than it costs to copy it, so there’s no need to bother.

Electronic copies, on the other hand, have a near-zero marginal production cost, compared to the rather outlandish cost of an authorized copy from the official publisher.

Because of the historic economies of scale, it has previously been possible to run a publishing copy on the business model of mass producing a large number of books (or vinyl records or cassette tapes or CDs) sell them for less than it costs to bootleg them, and support the content production with the difference. Copyright previously worked because it cost a lot of money to profitably infringe on it, so there were only a few infringers around with the resources to do it. You needed a big printing plant, which made you pretty easy to track down.

The world has changed. The inescapable fact is that the marginal production cost for an individual unit (one copy!) is rapidly approaching zero. Somehow, somebody is going to have to figure out how to get the content produced when the marginal production cost hits zero. I don’t know how to do it. That does not justify propping up a dying business model through ever more draconian measures against every potential customer.

You can argue until you’re purple about right and just and fair and call people names, but the revolution is upon us. Copyright as previously understood is already on life support. The sooner we let go, the sooner an answer will be found.

Getting back to what the original speaker said, cutting the terms to something like ten years is a really good place to start. There will suddenly be a lot more content out there out of copyright to experiment with.

Anonymous Coward says:

Re: Re: "incentive"

So much preaching. Look. There is this big building in most towns, maybe you’ve heard of it.. Its called a Library. Its really an amazing place, I can go there and pick up any book I want. Read it, copy it(for personal use), and bring it back. I can also tell anyone else about said book, and they can go there and do the exact same thing. I’d have no issue at all with IP if all media was held to the same standard that print media is.

The unfortunate truth though, is that while copyright was initially intended for print based media, it got attached to a whole lot of other things that aren’t completely analog to it, and none of the checks and balances from that system were applied to them.

You’re part in there about patents.. Lets not even go into IP Patents. Mostly because you keep saying “Your software”, when software is not patentable, it can only be copyrighted. Now process by which your software works.. thats patentable. It really doesn’t matter since you have no grounding in the issue.

So run along and play, Daddy’s busy.

Andy says:

Hayek and most other liberal economists were radical critics of the patent system. Modern US-Libertarians are brain washed and apply a superficial property instinct to defend the monopoly regime of patents that is so harmful for a market economy. Real libertarians are opposed to the idea that you can create property by a bureacratic machine that gives you a license to kill the business of your neighbours in return for trivial “inventions” written by patent attorneys. An invention == a patent. Prior art == existing patents. A person skilled in the art == a patent attorney.

Kevin Dillon says:

Totally wrong

This guy is wrong, and he’s not even a libertarian. His utilitarian arguments about “stimulating the economy”, often at the expense of independent inventors is the complete opposite of the libertarian standpoint, in which the right of the individual trumps all others. A case I like to cite is the man who had cancer-resistant DNA and didn’t want his DNA taken, even though it could save the lives of tens of thousands of people. The libertarian position is that the man’s rights shall not be violated, even if those 10,000 people die for it. Hence, libertarianism is at odds with utilitarianism. Thus, a libertarian, claiming that it would ‘foster the economy’ is a fraud, if it tramples on the rights of independent inventors, which removing the patent system would do, since it would allow large corporations to steal independent inventions, because of their vast resources, and produce them without paying royalty to the inventor.

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