State of Innovation

Patents and Innovation Economics

Levine & Boldrin Argue the U.S. Should End the Patent System

The authors of Against Intellectual Monopoly in an editorial in the Christian Science Monitor suggest ending the patent system.  The number of errors in such a short editorial is staggering, especially considering the authors are distinguished professors at a major university – Washington University in St. Louis.  Each of the major errors are discussed below.


Levine and Boldrin constantly describe a patent as a monopoly in their editorial.  A patent gives the holder the right to exclude others from making, using or selling the invention.  35 USC 154.  It does not give the holder the right to make, use or sell their invention.  According to Wikipedia “In economics, a government-granted monopoly (also called a “de jure monopoly”) is a form of coercive monopoly by which a government grants exclusive privilege to a private individual or firm to be the sole provider of a good or service; potential competitors are excluded from the market by law, regulation, or other mechanisms of government enforcement.”  Since patents are clearly “government granted”, then this is the appropriate definition.  Since a patent does not even provide the holder the right to sell their invention, it clearly does not grant an exclusive privilege to a firm to be the sole provider of a good or service.

When a person describes a patent as a monopoly to be consistent they should also state that they have a monopoly over their car or over their house.  In fact, they have more rights in their car and house than a patent gives the inventor over their invention, since you have a right to use and sell your car or house.  A patent does not give these rights to an inventor over his invention.  Some economists state that all property rights give some monopoly power.  The property rights are monopolies thesis shows how confused economic thought is on this subject.  The only logically consistent definition of a monopoly is an exclusive right to a market.  People who suggest a patent is a monopoly are not being intellectually honest and perpetuating a myth to advance a political agenda.


The Constitution states that inventors and authors have the “right to their writings and discoveries.”  The preamble states that the goal is to “promote science and the useful arts.”  In law the preamble is not limiting it is merely descriptive.  The patent and copyright clause is part of the powers of Congress under the Constitution.  The argument of Levine and Boldrin is that Congress has a choice.  The problem with this argument is that the Constitution states that inventors and authors have a “Right” to a patent or copyright.  What the Constitution has authorized Congress to do is to create the specific law to implement a system for “securing” to inventors’ and authors’ their “exclusive rights” as opposed to the Executive or Judicial branch of the government.  Under natural rights theory that dominated the thinking of both the Constitutional delegates and signers of the Declaration of Independence a right was not granted by a government, but inherent to a person as a matter of reason and logic.  Levine and Boldrin’s analysis of the patent and copyright clause is either intellectually dishonest or based on extreme historical ignorance.


Levine and Boldrin argue that the incentives provided by patents cut both ways encouraging and discouraging innovation.  They state a great deal of applied economics research has tried to answer whether the patent system encourages innovation.  According to the authors “the short answer is intellectual property does not increase innovation.”

The authors have clearly not examined the historical evidence.  The richest countries in the world have the strongest intellectual property laws.  The poorest countries have weak or non-existent intellectual property laws.  The industrial revolution and attendant enormous increase personal income in western countries corresponds with the advent of modern intellectual property law.  Is this coincidence?  Modern economic theory shows that innovation is the only way in which real per capita incomes grow.  According to the book A Farewell to Alms, by Gregory Clark, Chair of the Economics Department at the University of California Davis, all the free market precursors to a modern economy other than protection for intellectual property existed long before real per capita increases income starting growing around 1800.  In addition, these earlier economies had much less burdensome tax and regulator policies than our present economy.  The policy reason countries adopted patent laws was to encourage innovation.  Those countries that adopted patent laws are the most innovative.  Those countries that never adopted a patent system are the least innovative.

In the history of the U.S. in the last one hundred years all three major extended economic downturns are associated with a weakening of our patent system.  During the Great Depression and 1970s, antitrust law was used to marginalize the value of patents.  During the present economic downturn other mechanisms have been used to weaken our patent laws, for more information see Intellectual Property Socialism.

In the 1970s, antitrust was used to force U.S. companies to give away the technology of over 50,000 patents directly and frighten companies into not enforcing their patents.  A MITI substantiates that most Japanese companies took advantage of this traitorous policy by the U.S. government to catch up with U.S. companies technologically.  For more information on this disastrous social tinkering by the U.S. government see Jobs, the Economy and Patents. The data from the U.S. patent office also shows that the economy falters when the number of patents issued to U.S.  inventors declines or stagnates.  For more information see Foreigners Receive More Patents Than U.S. Inventors.

We know that in all areas of economics where it has been tested private property rights encourage economic activity.  Experience shows that when the government establishes incentives, it always results in more of the incentivized activity.  Countries with the strongest patent laws have the most innovation and the greatest technology diffusion and vice versa those countries with weak or non-existent patent laws have little or no innovation and little technology innovation.  Despite this, the authors ask us to believe that patents do not follow the normal rules of economics and logic.  As Thomas Paine pointed out in his book The Age of Reason, extraordinary claims require extraordinary evidence.  The authors  have provided no evidence that patents harm innovation.


The authors lament Africans are dying of AIDS because of the cost of the drugs to treat the disease.  Of course they ignore that the Africans would be dying if no one invented the AIDS drugs.  The authors are supposed to be economists, but they assume the drugs or other inventions just happen by magic.  This is not economics, but it is first class demagoguery.


Later the article complains that BlackBerry had to defend itself from patent lawsuits, when they clearly stole technology from another company (NTP).  The authors suggest that NTP is a patent troll, which is demagogic term.  The term patent trolls is usually applied to companies that enforce patents that they are not practicing.  The term includes Universities and divisions of most large corporations such as IBM.

The moral argument against Non-Practicing Entities (NPEs) is that they are not practicing their patents, so they are not entitled to enforce them.  The U.S. has consistently rejected a working requirement for patents.  The only time the U.S. had a working requirement for patents, was in early 1800s and only for English inventors.  We do not argue that a landowner has to work his land in order to keep his property rights in the land.  The argument against NPEs does not stand up to scrutiny.

Anecdotal Stories

The editorial suggests that patents do not provide any real protection for inventors anyway.  They point to the sad anecdotal stories of Philo T. Fransworth and Eli Whitney.  While these are sad cases, the authors ignore that many companies have used patents to protect themselves from technology thieves including NTP, which they vilified as a troll.  Edison, the Wright Brothers, and Xerox are just a few examples of great American inventors and companies that were only able to start thriving companies because of patent protection.  There are numerous other examples.  The authors are right that it is disgraceful that our legal system did not protect Eli Whitney, Philo Fransworth, and other inventors and shows that we need stronger patent laws not weaker or non-existent patent laws.  Note that both of these inventors were unable to protect their inventions when the U.S. patent laws were relatively weak.


Ultimately, the authors do not believe that inventors and authors should be able to earn a return on their intellectual effort.  Since both the authors are professors and presumably get paid for their work, they are receiving a return on their intellectual efforts.  If people should not earn a return on their mental labor, then doctors, professors, lawyers, engineers, teachers, and most other modern jobs should pay less than a ditch digger.  The authors have either failed to think through their position logically or are hypocrites pushing a political agenda.

December 9, 2009 - Posted by | Uncategorized | , , , , , ,


  1. […] This post was mentioned on Twitter by Dale Halling, Peter Meza. Peter Meza said: RT @Hallingip: Levine & Boldrin Argue the U.S. Should End the Patent System: […]

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  2. Thank you for your post, because it strengthens my anti-IP position: “(the patent) does not give the holder the right to make, use or sell their invention”. A lot of IP proponents claim it does. It makes me happy that a practicing IP specialist confirms that I’ve been right all along in this respect.

    Nevertheless, your interpretation of the word “monopoly” is, in my humble opinion, incorrect, even if you use the wikipedia definition. The definition doesn’t say that absent this exclusive grant, the grantee would be incapable of using, producing or selling the good in question, therefore one cannot conclude the “enabling” part of the grant.

    Furthermore, as I explained to you twice before, the economic definition of monopoly is different. I presented two:
    – Austrian School of Economics (e.g. Hans-Hermann Hoppe): Monopoly is preventing market entry by force.
    – Chicago School of Economics (Milton Friedman): Monopoly is when one market participant has the ability to substantially influence the market conditions.

    As you see, they both apply onto patents.

    Comment by Peter Surda | December 11, 2009 | Reply

  3. Peter, your definitions of monopoly includes all private property. My ownership of a building, land, printing press prevents others from entering the market with my building, land, printing press. A patent never prevents someone from entering a market. It prevents them from stealing someone else property to enter a market. Since patents only cover new inventions, either the market already existed or it only exists because of the inventor.

    Invention and innovation are the only way to grow real per capita incomes. If you want to live in a second rate country, then go ahead and support the anti-patent group. But don’t pretend that it is a free market position or helping the economy.

    Comment by dbhalling | December 11, 2009 | Reply

  4. Dave, your definition of property includes the right to exclude third parties from using/trading said property. There are several approaches to counter that.

    First one: I claim that this is not a defining feature of property. With material goods, it is rather a consequence of their rivalry and is unavoidable. With immaterial goods, this consequence does not exist and the right is a result of social norms rather than natural laws.

    Second one: I claim that immaterial goods do not have natural boundaries (prerequisite for excluding third parties), so the boundaries are a result of social norms.

    Besides, I did not expect an IP professional to use the word “stealing” in the context of immaterial goods. This does not match current implementations of IP. If it was, IP laws would penalise unauthorised consumption rather than unauthorised production. It would be illegal to listen to bootleg music (as opposed to playing it), to take patent-violating drugs (as opposed to manufacturing and selling them) or to download copyrighted works without permission (as opposed to uploading them). While I am not sure about the last one, I have not found an instance where downloading of unauthorised copies was prosecuted.

    The most that you can claim about IP in the current system is that it allows the IP possessors to get a larger cut of the effects of the immaterial goods. It is a way of internalising externalities. And as it penalises production rather than consumption, it is market regulation rather than an implementation of property.

    Comment by Peter Surda | December 11, 2009 | Reply

  5. Peter, taking someone’s property (labor) without their consent is stealing or slavery.

    Property rights are not based on non-rivalry or scarcity, they are based on a person’s ownership in themselves and their labor – see John Locke and English common law. In addition, property law is not based on social norms. Social norms are another way of saying majority rules. The majority of the people in the world in the 1850s believed in slavery, this did not make it right.

    IP rights do not penalize production anymore than rights in land or other real property rights. Your ownership of a sand pit and demand that I pay you for the sand penalizes my production in cement. No end of nonsense has been committed in the name of economics by ignoring the fundamentals of how property rights are derived morally and legally.

    Comment by dbhalling | December 11, 2009 | Reply

  6. Re: self ownership and labour
    While this is a necesary condition for property, it is not a sufficient one. If it was, all positive externalities would be a property violation.

    Re: base of property rights:
    I believe you still have not explained where you derive the “right to exclude third parties” from. I was merely pointing out that if I use different definitions of property, the problem of this right becomes more apparent. Even if I accept your definition, where do you derive that right from? Something like usufruct? Then we come back to the issue of boundaries and externalities. Even more so, how do you justify the inability to use independent discovery as a defence?

    Re: penalising production vs. consumption
    I believe you misunderstood my argument. I do not claim that physical rights do not penalise production, but that immaterial rights do not penalise consumption. It is much more appropriate to call such an arrangement of rules market regulation rather than property.

    Re: how property rights are derived
    I find it puzzling that you mention this, because historically IP rights were introduced as a protectionist measure. As I said above, the current implementations still follow that pattern. Just recently, anti-circumvention restriction was introduced into copyright (another measure targeting producers rather than consumers). Only later the notion of property was used as a post-hoc justification. As far as I know, neither copyright nor patent law refer to property.

    So why do you even call IP “property”? It is not derived from earlier property implementations, its implementations are not consistent with property of material goods and they do not match the theoretical justifications.

    Comment by Peter Surda | December 11, 2009 | Reply

  7. Peter:

    Protectionist: You are wrong that patents were a protectionist measure. They were introduced by countries as an industrial policy. The very first patent systems were often used to encourage artisans to introduce new methods of manufacturing or new goods.

    Patents are derived like real property from the fact that you own your labor both physical and mental. Since you were the first to create an invention, you own the invention for a limited period of time. Allowing others to use your invention without your consent is no different than allowing people to harvest your wheat. It’s stealing pure and simple.

    Market Regulation: I am not sure I understand your point. Property rights of all kinds require either a government rule to enforce or physical force. Without these there are always thieves that would steal the product of your labor.

    Comment by dbhalling | December 11, 2009 | Reply

  8. DB,

    I’ve gone round and round with these people before.
    See here:

    Basically they believe in: “What’s yours is mine and what’s mine is mine”. They are communists who disguise themselves under the label of anarchist/ Libertarians.

    They have some shifting in the sands definition of “property” which you will never get them to pin down except for the conclusion that inventors deserve nothing for their efforts.

    If you are an inventor, the people will welcome you with open arms because what’s yours is theirs. Plain and simple.

    Comment by step back | December 12, 2009 | Reply

  9. I’ll reply to Dale thoroughly later, I am trying to assemble everything relevant. Now for “step back”:
    The problem with your claim is the inability to properly define boundaries. I have not yet met an IP proponent that even attempted to do that, they just claimed they are obvious or completely ignored the issue. In my explanations on I borrowed an example from Walter Block’s Privatization of Roads and Highways. If you own something physical, the boundaries of the property are more or less clear. One can argue, for example, that ownership of a piece of land also gives you ownership a couple of feet below and above the land. If you want more, you need to homestead this extra space (e.g. rising poles or digging holes). But if you try to represent the boundaries as a cone and stretch it into the centre of the Earth on one side and into infinity on the other, that would give you ownership of other celestial bodies as a side effect of owning land on the Earth, which is ridiculous.

    Immaterial goods do not have boundaries. At least, not natural ones. You cannot measure them and they can “pop up” at completely unexpected places. Even if you therefore recognise ownership of immaterial goods, the boundaries are a matter of social norms rather than natural phenomena. In some countries it is recognised that you can “own” your reputation and badmouthing can be prosecuted (slander, libel). In some countries it is common to kill in order to preserve “honour”. Libertarians tend to disagree with such approaches. Why is the case then different with IP?

    Comment by Peter Surda | December 12, 2009 | Reply

  10. Peter, Land does not have natural boundaries – Just ask the Indians. The argument that real property has natural boundaries is complete nonsense. Land property is defined by its metes and bounds. Until recently it cost thousands of dollars for a title search and survey to define the supposedly obvious boundaries and title in land. The metes and bounds to land were defined with words. Patents clearly define the area of technology owned by the inventor with words. Of course you have to learn how to read the claims, just like you have to learn how to read a title to land. Just because the anti-patent crowd does not want to undertake the intellectual effort necessary to understand patents, does not make them indefinite. Most people cannot understand quantum mechanics, this does not make quantum mechanics indefinite.

    Comment by dbhalling | December 12, 2009 | Reply

  11. Step Back, I have a series of post on the nonsense that property rights are based on scarcity. This is not true historically or logically. See

    Bottom line on the anti-patent crowd is they do not believe people should obtain a return on their intellectual effort. Of course this is hypocritical because many are professors who get paid for their intellectual efforts, which usually just includes regurgitated information discovered or created by someone else. If you take there position literally they believe in Marx’s physical labor theory of value. Based on this theory a ditch digger should be paid more than doctors, lawyers, teachers, engineers, computer scientists, etc.

    Comment by dbhalling | December 12, 2009 | Reply

  12. Dale, you mix the ability to define rules with the ability to gather empirical data that help to determine the applicability of those rules. IP revolves around the first one, your examples around the second one. More details later.

    Comment by Peter Surda | December 12, 2009 | Reply

  13. Here is the promised longer answer. It has two main sections: elaborating on the nature of IP, and elaborating on why the “property” part of the name makes little sense.

    Section one, elaborating on the nature of IP:

    I’ll begin the first section by referring to my previous argumentregarding boundaries. To reiterate, this is not about gathering evidence necessary to determine what belongs to whom, rather it revolves around how to create rules regarding immaterial goods in the first place. Material goods have measurable features, so the homesteading principle can have a base in natural phenomena. These properties are objective, independent of any human influence. Of course, once a foundation for the rules is established, various implementations can stretch it depending on the desires of the lawmakers.

    Immaterial goods do not have measurable properties and their features can only be established by interpretation, evaluation, calculation and emotions. They are subjective an only exist in people’s heads. There is no natural foundation on which to base rules of homesteading. So any
    implementation has to start already on some social norm rather than a natural phenomenon.

    Owning land does not magically extend to the other side of the planet or as Walter Block shows, to other celestial bodies. Yet with IP such a construct is a commonality. The stretching of the boundaries is not based on natural phenomena, such as distance, but on interpretations, such as meaning and similarity. The only reason why an IP proponent claims that an invention is theirs is that another object is similar to something that he produced. But you cannot measure similarity. In order to establish similarity, you first need to gather features of something material and then try to evaluate them within a specific context. Similarity depends on context, the same rules and features in different contexts result in different arrangement of assignment of IP.

    Section two, what has IP to do with property:

    With regards to the historical development of IP, I maintain my position that copyright and patents have not been established as a variation of property. I present wikipedia’s articles about those topics and the sources they mention. With regards to patents, the sources claim that first patents were granted by cities with the reasoning that this encourages new works and that is good for the public. Some make referrals to the inventors honour, some allow the grantor (city) to be exempt from the license. With regards to copyright, wikipedia claims they were driven mainly by governments (because they made censorship easier) and printers (to restrict competition), rather than the authors. To summarise, they were established either as a protectionist measure or as a way to
    encourage positive externalities, rather than re-implement property.

    With regards to owning your labour, there are multiple problems with your interpretation of this rule. First of all, “owning your labour” does not mean “owning the value of your labour”. That would be the labour theory of value (nowadays associated with Marxism). If it was, one would own all positive externalities of ones labour, which is evidently not the case. This alone also means that if patents were recognised, independent discovery would have to be a valid defence. Second, we have the problem with the boundaries I described above. Building a house does not give one ownership of a house on the other side of the planet on the basis that it is similar (both serve the same functionality). So why do the boundaries magically stretch ad infinitum when we talk about IP? Why is “similarity”, rather than natural phenomena, a basis for the boundaries?

    With regards to penalising production vs. consumption, you have not addressed this at all. Without penalising consumption, an important aspect of property is missing. As a result of this, implementation of IP based on penalising production (i.e. current implementations) share features with market regulation laws rather than property laws. To rephrase, IP laws do not refer to themselves as property (I might be wrong on this but historically, they didn’t). If I didn’t know the term IP and analysed the features of IP laws, I would not come to the conclusion that they are an implementation of property, rather that they are an implementation of market regulation.

    You yourself admit that IP only gives the right to exclude third parties, not the positive right to use or sell something. These rights, should the “owner of IP” have them, would be a result of the material property laws rather than IP. If one was to claim that IP is property because it has a certain feature, one has to prove that this feature is not causally related to the right to use and right to sell. The economic arguments for IP (apart from some utilitarian ones) that I’ve heard all fail in this area. They deduce the necessity for IP from the right to use and right to sell, which is a logical fallacy, since IP does not have these features.

    Without boundaries, there is no property. Based on history, economic theories and current IP implementations, IP lacks sufficient commonalities with physical property. There is also a disconnect with the theoretical justifications for IP and their current implementations. Describing IP as market regulation is much more accurate.

    Comment by Peter Surda | December 12, 2009 | Reply

  14. Patents have measurable features that are objective. The invention of a high resistance light bulb has the objective measurable features that it gives off visible light and it has a high resistance.

    The boundaries of land are only interpretable in terms of distance and position and title to land is based on the interpretable terms of the title. No one has argued that land extends to the other side of the planet – do you keep bringing this up because you are uncertain on this point?

    Protectionist measure: It does not follow logically that protecting inventors from thieves is anymore a protectionist measure than protecting your apple orchard from thieves is a protectionist measure. Your logic fails completely, but you insist on repeating the same nonsense over and over.

    Consumption and Production: The point has been thoroughly addressed. You cannot make a logically consistent argument that IP has any different effect on production than title to real property. Patent laws are enforced in the same basic manner as real property rights. You either do not understand how the law works or you live in some fantasy land inside your own head.

    You keep insisting there are no boundaries to IP. This is not true. Either you are too lazy to learn how patent law works or you really are just pushing a political point of view despite the facts.

    Patents are based on the same concepts as real property – you own yourself and your labor. The scarcity theory of property rights is complete nonsense. Locke’s and common law’s labor (physical and mental) theory of property are consistent on both the moral and legal reason for property. This reasoning explains IP, real property, chattel, our basic criminal laws, against murder, theft, battery, stealing, fraud, etc. It also explains how property is distributed.

    Comment by dbhalling | December 12, 2009 | Reply

  15. Dear gentleman DB,

    When are you going to wake up, step back, and see the true nature of ab-Surda and his anarcho-Lib ilk?

    They are all about manipulatively exploiting the kindness of strangers (meaning you and the many others who haven’t figured out what the Anarcho-Libertarian game is all about).

    Here is how “natural” property rights work in the real world:

    Her heartbeat races as the infant gains her footing and tries to keep up with Mother.

    But too late. Despite the swiftness of wild gazelles, this infant is not fast enough. The heavy paw of the chasing lioness cracks her backbone. She goes down with hindquarters already paralyzed from the snapping of her spine. The lioness bores her long canines into the infant’s jugular. Massive blood loss and death come swiftly after. Now the carcass is the natural “property” of the lioness.

    The lioness does not look back with remorseful eyes toward the grieving Mother Gazelle. The lioness does not worry about “compensating” the Mother Gazelle for the months of pregnancy, the many days spent grazing for two. No. Now this lifeless carcass is “hers”, it is the lioness’s natural property. No one dares question that. After all, the queen of the Savannah “deserves” ownership of this “natural” property because she did the “homesteading” work of stalking, chasing and bringing down this lightweight gazelle. By the laws of nature, it is now “hers”!

    These “natural” property rights hold fast over this tangible and definable carcass until a large pack of hyenas surround the lioness. Suddenly and swiftly, new rules of “natural” property rights take root. The lioness grabs a small bite out of the carcass and takes off for fear of her life. The pack of new natural owners close in with yelping delight. Long live anarchism!

    Of course, ab-Surda knows that you are a gentle “non-violent” soul and would never spontaneously think of “natural” rights working this way. So he stalks you. He pounces on you when he thinks the moment is right. And then he drills his non-violent “natural” property rights nonsense into your skull. If you are young gazelle and not yet wise to the ways of the intellectual Savannah, he will take you down with about as much remorse as the lioness in our above story.

    Do inventors who nurtured and gave birth to their inventions deserve compensation? The lioness says No, not as long as the game is going her way. Long live anarchism!

    Do you see the open plains picture clearly yet? I hope so.

    Comment by step back | December 12, 2009 | Reply

  16. Dale, you either misinterpret my arguments or avoid them.

    Immaterial goods do not have measurable features. Only material manifestations of immaterial goods have measurable features. I know that patents and copyright do not protect immaterial goods, only their manifestations. But that only confirms my argument. IP laws do not establish ownership of immaterial goods.

    Exclusion of third parties with respect to material goods is independent of such a right being explicitly referred to by the law, as it is a logical consequence of the rights to use and right to sell. In order to prove your claim about protecting apple orchard, you would need to prove that this is not causally related to the right to use and right to sell.

    Consumption and production: you misrepresent my argument in what I call a fallacy of reversed implication. I did not claim what you refute. I already pointed that out.

    You have not addressed the externality issue, just repeat your previous sentences.

    I do not use the scarcity argument, I think it’s weak. While I personally think scarcity (or rivalry) is the reason for property, I understand that using this as an argument against someone that derives their property from other sources is moot.

    In your last post, you have not moved the discussion any further, you merely repeated your previous arguments and not addressed the my objections. I think the discussion is stalled.

    Comment by Peter Surda | December 12, 2009 | Reply

  17. Peter, you are just wrong. If by immaterial goods you mean patents. “Only material manifestations” of the legal concept of real propery has measuable features. You clearly do not understand the difference between the laws and the item. Land is not inherently property. Property is a legal concept, not a physical property. If you do not understand this simple concept then there is no way to have a logical disucssion with you.

    Exclusion of third parties is not inherent for real property. Many people can live and work in the land owned by a single person, but the law prevents this.

    Your rights in land are based on the same principles as patents and copyrights. There is no such thing as inherent rights that includes land but ignore IP.

    Until you understand the difference between the legal concept of property and the underlying asset it is impossible to move the conversation forward.

    Comment by dbhalling | December 12, 2009 | Reply

  18. Dale, you probably do not understand my claims. Therefore let me elaborate.

    IP laws do not establish the ability to own immaterial goods, only prevent third parties from using their manifestations, correct? Physical property laws, however, do establish property of physical goods, correct? Physical property laws are based on physical attributes of the good, correct?

    I never claimed that “land is inherently property”. Rather, I claimed that the legal concept of land property is based on the physical attributes of the land and includes the right to use and right to sell. IP laws are rather based on the meaning or functionality of objects and do not include the right to use and right to sell. Correct?

    Exclusion of third parties with material goods is a logical consequence of the right to use and right to sell (regardless of how/whether such a law is implemented). If a third party is not excluded, the right to use and right to sell cannot be fully exercised. Of course, the law might include exceptions, but these do not negate the causal principle. This causal principle is missing with non-rival (e.g. immaterial) goods. Correct?

    I am baffled by your claim that there is no inherent difference between land laws and IP laws. I painstakingly explained the features of both and indicated that they differ in critical aspects. You as a practising lawyer should be aware of the features of laws much better than me, yet you do not counter my analysis, only some misinterpreted premises.

    Comment by Peter Surda | December 13, 2009 | Reply

  19. DB,

    The anarcho-Lib’s (Surda and his ilk) claim to be non-violent naturalists.

    Yet the first thing they do violence to is to the history of mankind and civilization.

    In the beginning there were no laws, save for the law of the jungle. Men took claim to territories and other things (dominion over women and slaves) by force of sheer power. Disputes were often settled by duels to the death.

    Eventually civilizations arose and with them, artificial rules of conduct fabricated entirely by men. Indeed, the term, “civil action” as used in law is the less violent alternative to the duels to the death by way of which knights and others settled their private scores.

    All rules of “property” are artificial ones fabricated out of thin air by the legislative bodies of the governments in power. Property rights in tangibles and intangibles alike arise purely out of what is written into codes of conduct by men.

    The most basic and fundamental aspect of “property” rights is the legal right of the so-called owner to sue for eviction because a trespasser is breaching the owner’s right to exclusivity. This is equally true in real estate law and in intellectual property law. Period.

    Comment by step back | December 13, 2009 | Reply

  20. […] The Court repeats the familiar myth about the Preamble to the Patent and Copyright clause of the Constitution.  We know this is a red herring, because the Court and other proponents of this theory never discuss that a trashy novel which does not “promote the Progress of Science and useful Arts” should not receive Copyright protection.  In addition, the same argument is made with respect to the second amendment and the Court clearly rejected this interpretation.  It is Intellectual Fraud to suggest that the Preamble is meant to limit the “rights” of inventors and authors.  For more information see  Levine & Boldrin Argue the U.S. Should End the Patent System . […]

    Pingback by BILSKI: the Good, the Bad, and the Ugly « State of Innovation | June 29, 2010 | Reply

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