 This is the Concella on Liberty podcast. I think it's going to be episode 207 Usually on the podcast lately I've just been putting up interviews that I do on other people's podcasts Have it done many original or some of my speeches at conferences On occasion, I'll do an original thing It's actually Sunday, February 21st early in the morning About to go to bed. There's something I've been thinking about doing I'm a little bit tired, of course of talking about intellectual property all the time, but it is a very important issue and There's something I want to clarify a few things I want to clarify. There's terminology. There's confusion so many people have opinions about intellectual property or IP And they talk about it all the time without really understanding it I pointed this out in other talks before it's routinely Misunderstood the different types of IP are often almost always confused by non-specialists Patent copyright trademark Sometimes trade secret will be used interchangeably someone to talk about I don't know copywriting and invention or Patenting a novel or something like that so they don't really even understand The systems which I understand The only time it really bugs me is when there's someone who is a proponent or an advocate of IP who doesn't even understand the legal system That they're in favor of seems to me Irresponsible, but So just a brief overview Well, first of all, let me say something. I think that a lot of the My fellow opponents of IP Often object to the term intellectual property I'm not really a big I don't really worry too much about terminology it is called that in the law So to communicate with people we need to use some terms I don't think that validates the underlying arguments for it just by calling it as a local property But I do think it's good to point out that It's The term intellectual property was come up with as a sort of propaganda term by its opponents by its Proponents to argue in favor of it to overcome arguments against it One reason I'm not too bothered by the term is that I try to use the term property in a more careful way to refer to the relationship the ownership relationship between a Human being and a given scarce resource Most people think of the thing owned as a piece of property and I think that can be misleading So to them they'll say something like no, these are people that I agree with usually on being opposed to IP or IP law I should say IP rights they'll say Is our ideas property and I don't really think that's the argument against IP law That ideas are not property. It's that ideas are not scarce resources that are not ownable things Okay, that's the better more precise way to put it So the other confusion is and I'm gonna get to the heart of my Comments here. I was about to go to sleep and I was just thinking about I didn't want to wait till tomorrow I just thought I would do this before I go to bed The heart of my talk is I'm just gonna try to explain why Intellectual property is not about theft it's not about Contract it's not about fraud and it's not about plagiarism and I'll explain why I want to emphasize that in a second But let me just briefly explain what the four types the four classical types of intellectual property rights or law are Primarily the two biggest ones that we really have to worry about are patent and copyright and Patents are basically legal monopolies granted by the state that last roughly 17 years That cover inventions practical useful processes or machines Copyrights laughed usually over a century the life of the author plus 50 or 70 years depending on the country so almost a century or sometimes more than a century For original works of authorship like novels or paintings or even software things like that movies So that's creative works and then trademarks identify the source of goods like the Nike symbol coca-cola some symbol the McDonald's mark so trademarks Identify that and then trade secrets is just a realm of law that protects It it allows you to use court force to keep a secret from getting out If it's about to get out if it becomes public it's too late So it's not just the practical ability to keep things secret which you don't need a special realm of law for you Just keep things secret It's a way to keep the secret from getting out if it's about to be leaked by a former employee or something like that I think all four types are totally illegitimate laws for various reasons the worst offenders being patent and copyright They do the worst the most damage and Then one more point of clarification People use the term intellectual property in various ways sometimes ambitiously so sometimes a businessman or An engineer or technologist will use the term intellectual property to refer to the Technology of the company or the secret the know-how of the company So they'll refer to their designs as their intellectual property Which is not exactly precise I think they do that because such designs are often subject to intellectual property rights Not always but they just use it broadly in that sense So they'll say their intellectual property is valuable to them when an IP lawyer says that we're talking about these set of legal rights They have and that is also valuable to some companies To have and to be able to enforce these IP rights So you have to be careful what's being referred to and people talk about intellectual property so quite often the people struggling with this issue or trying to argue for Patent or copyright or trademark usually will say something like Well, number one though they'll refer to They'll refer to copying someone else's design Or their their novel or their Are their words they'll call that stealing or theft Okay But the problem is that It's not stealing or theft even under the current copyright statute the copyright statute does not Call or label an act of copying that's unauthorized as theft or stealing and of course under libertarian law It's not theft or stealing at all because you're not taking anything from someone that they own you're just using information to To manipulate things that you own which is not theft at all And at most at worst its emulation or competition Which is not a crime or or an act of Any kind of offense under libertarian principles, but even under copyright law It's not theft. It's what's called infringement. So basically the copyright statute and the patent statute Specify an offense of infringement. That's the unauthorized use of some some pattern of information Which carries certain liability with it, you know, the obligation to pay certain Monetary penalties or damages etc. But it's not theft and even the Supreme Court has has made this clear So that's one thing we should quit calling it theft because even under the current positive law, it's not theft One of the worst arguments for IP involves the this sort of challenge that That equates copyright infringement to plagiarism now Plagiarism has almost nothing to do with copyright and copyright has nothing to do with plagiarism copyright so plagiarism means the Presentation of usually like the literally quoted work from someone else while presenting it as your own work Like changing the name of like not giving proper credit to someone that you're quoting Pretending like you wrote the words. That's just an act of dishonesty or possibly Contract breach or possibly fraud in some cases usually not usually it's just a violation of like an academic code of conduct or academic scholarly standards and customs and You can get embarrassed or get in trouble for it or expel from school or we get a low grade on a test If you're caught plagiarizing, but it really has nothing to do with copyright and the way to explain this is Well number one let's suppose I copy a DVD of a Hollywood movie or I copy the latest bestselling novel But I keep the name of the author or the producer on the film or on the DVD or on the book So that's not plagiarism at all. I'm not pretending that I produced it I'm just making a copy and giving it someone else or selling it or using it on my own I'm not committing plagiarism at all and the law would still prohibit that so copyright law is not concerned with Honesty is concerned with stopping you from copying something even if you're not dishonest about it even if you don't plagiarize and another example would be to consider works that are in the public domain like the Bible and Shakespeare's plays and lots of older works Older novels there is nothing in copyright preventing people from Copying these things now because they're in the public domain or from plagiarizing you know I could I Could I could take Hamlet and Republish Shakespeare's play and put my name on it as the author and I could try to sell it on Amazon It might violate some terms of service with Amazon. I don't know I doubt it But the point is it has nothing to do with copyright. So plagiarism is And furthermore, we don't see that happening. We never see Classic works from the old days being Repackaged under someone's name and someone trying to pass it off under their name. So plagiarism is only a very narrow problem in a certain context and it's already dealt with by by academic and scholarly customs and and by Institutional rules at at universities and schools and things like that So it really has nothing to do with IP law or copyright. So the problem is the advocate of copyright will try to trap Opponents of it by accusing us of being a favor of plagiarism as if getting rid of copyright law means that we're in favor of plagiarism Or as if copyright law is the mechanism designed to stop plagiarism and as if that's basically all it does and that's just Frankly false. So that's a false argument. It's it's I don't know if it's dishonest in every case I think it's either based on ignorance or it's dishonest in most cases and The point is You can easily tell this because if you talk to the advocate of copyright and Say well if I'm willing to keep the name of the author on the novel am I free to reproduce it and sell it then and they'll say no So you see their goal is not really to stop plagiarism. So that's really just a Dishonest argument that they use So it's not about theft and it's not about Plagiarism it's also not about fraud. You'll hear this quite often in the copyright plagiarism context or especially in the trademark context And I've written a whole article on this in response to Frank Van Dunn's criticism of me and Walter Block for being overly Libertarianly legalistic or something the The argument is that If a trademark law is justified, this is usually the argument Because fraud is a is something that we libertarians oppose so they're presupposing that the main purpose of trademark law is to stop fraud and Therefore it's justified Well, okay, so the problem with this is Fraud is already In offense under the law It's you know, it's either contract breach or some kind of fraud So to the extent fraud ought to be impermissible It's already impermissible under the law and to that extent if trademark law Really stopped it then it's just redundant with already existing law So if we got rid of it, we would still have fraud and contract law But the thing is trademark law is not aimed at stopping fraud And Either the opponent the proponents of trademark law either know this and they're being dishonest or disingenuous Or they don't know it in which case they really shouldn't be running their mouths and talking about trademark law because trademark law doesn't have a fraud standard in it it has a standard That has to do with the likelihood of Confusing consumers Okay, so it's not actual confusion of consumers is likelihood But under under the way the law works this permits the so-called owners of trademarks to Sees goods that are counterfeit goods and to sue people who are selling counterfeit goods Even when the consumers that are buying those counterfeit goods are not defrauded So for example, you know someone who buys a $20 fake Rolex watch or a $10 fake Chanel purse Almost in every case knows that they're buying a fake and They want to buy a fake so they can save a lot of money. That's exactly why they're doing it so the consumer is literally not defrauded and the seller of the fake item is not defrauding anyone so Fraud is not at the basis of the Right under the law of the trademark holder to stop that sale or to seize those goods So trademark law has nothing to do with fraud And again to the extent fraud should be prohibited It can be taken care of by contract law and fraud law You don't need trademark law trademark law should be totally abolished for the same reasons by the way that that Rothbard explains in the ethics of liberty I think in the chapter on knowledge true and false Why defamation law okay should be? Abolished and is incompatible with the libertarian society and libertarian principles The idea of defamation by the way is the general term that covers libel and slander libel is the written Form of defamation and slanders the the oral form of defamation And by the way not the verbal form that people make this mistake all the time. I always correct people about this They'll use the term oral contract. I said they'll say verbal contract When what they mean is oral contract most contracts are verbal that means they use words a written contract is a verbal contract And so is an oral contract. They're both verbal contracts So when you want to distinguish between the two types of contracts written or Oral say written or oral and by the way not all contracts are verbal you could have Implied contracts or you can have contracts between people that just gesture. They might have you speak the same language You know, I hand you a dollar you hand me a newspaper from your stand There's really no there's a sale. There's a contract, but there's no There's no words being exchanged. So there's different types of contracts and by the way, and before we get to the final sort of a fallacious argument always trotted out in favor of IP which is the contractual argument on the fraud issue and this gets back to the also to the The plagiarism charge the argument given for copyright Fraud you have to understand what fraud really is and I've written about this in my contract theory article in other places fraud is not Just deceiving someone or being dishonest If it if it means something so broad then it can't be a crime or an offense under libertarian principles or law Because being dishonest per se is not a crime You have the right to lie and you have the right to be deceitful and you have the right to be dishonest There's only a certain context in which your deceitful Actions give rise to an offense which we call fraud and the best way to think of that in my view is What the common law calls theft by trick? If you understand that number one All human rights all rights all individual rights or necessarily property rights Okay, as Rothbard points out in the ethics of liberty So all rights are property rights. That's what rights are they are property rights But what that means is all rights all property rights or The exclusive right to control a given scarce resource Okay From your own body to other resources out there in the world that we need to use as means of action that we could have conflict over with other people who might want to use those resources to but Because of their nature of scarce resources They cannot be used by multiple people at the same time. That's why we have property rules So all property rights all human rights or property rights to control scarce resources, so that's what rights are and Contract is simply a way that owners of resources can temporarily or permanently Or partially or completely Transfer control of those resources to someone else in other words the owner of a thing By virtue of being its owner by having a property right in the in the resource You have the right to Permit someone else to use that resource or to deny them permission to use the resource to exclude them from using it That's what ownership Really means it really means the right to exclude other people from using the resource or to Consent to them using it whether that be your body or some of the resource that you own So a contract is just a more formal Usually a more complete or final Grant of this consent, you know if a girl consents to a boy kissing her We don't really call that a contract, but that is the the exercise by her of her property rights in her body She's consenting to it being used in a certain way, you know, if I invite people to My home for a meeting or a party I'm granting them permission to enter and use my home for limited purposes for the duration of the of the specified event Until I eject them or change my mind or whatever Okay, and sometimes you want to make this permanent So I want to sell you a half ownership interest in my home That's a contract or I want to sell you my home for good or I want to sell you a Life estate or an easement. I'm sorry or a user fruct in my in my home Or if I want to lease you my home for a month That is you can rent it from me your tenant for a month or a year or whatever These are different more or less formal agreements by which I alienate some of my rights I I grant consent to someone to use the property in some kind of specified way and In the simplest case, I just simply transfer complete ownership for me to you So that's what a contract is the contract is just the manifestation of ownership of a resource by the owner Instead of just giving temporary permission for someone to borrow or use the thing They're grant they're turning over title to it completely in most cases to someone else So that's what contracts are contracts are not Binding promises as most people conceive of them contracts are simply the transfer of title to Owned resources, which is one of the things you can do as owner of a resource You can grant permission for someone to use it or you can alienate title to it to someone else then this is Rothbard's We're path-breaking I believe in revolutionary and underappreciated theory of contract as developed by him and Williamson Evers of Someone who collaborated with him on some of these ideas decades ago now The reason I go into that is the nature of property rights what property rights are and the nature of what rights are And the nature of what contract is Helps to explain what fraud is in the sense that it could be an offense or a Tort or some kind of contract breach under libertarian law And now I the reason I said it's sometimes characterized as theft by trick is that you know if two people are making an exchange I give you a coin In exchange for your apple Then there's an understanding between the parties. It's usually implicit. Sometimes it could be explicit It could be written or it could be oral. It doesn't matter The point is there's an understanding their meeting of the minds the common law calls it as to what's going on here And that is I'm giving you title to my coin Conditioned upon you giving me title to Quote the apple unquote now that has a meaning the coin has a meaning we understand. It's a real coin It's not a fake coin We understand there's an apple. It's not a plastic apple. It's not an apple with worms in it So we both are giving title to our things to the other conditioned upon the other person reciprocating with the title to their thing and there's a host of other conditions there, you know The condition that the other party is not knowingly Misrepresenting the status of the thing he's giving to me So if someone gives me a knowingly gives me a rotten apple in exchange for my coin knowing that I'm Expecting a good apple and knowing that I'm expecting the apple seller not to be deceiving me Okay, and the apple seller knows that he's getting my coin conditioned upon that then if he knowingly gives me a bad apple It takes my coin. He's taking my coin without my Without my genuine consent. Okay, because my consent is in effect conditioned I'm basically saying I'm giving you this coin But only if and to the extent you're not deceiving me like that's one of the conditions I'm effectively placing on the transfer of The title to the coin and if the guy receives the coin knowing that the condition hasn't been fulfilled Even if I don't know it yet that he's in possession in effect of my coin the title hasn't transferred So if he goes and spins it, he's basically committing an act of conversion or theft That is what fraud is fraud is the The use of trickery or deception to obtain someone's property Shouldn't say property someone's re-owned resource without their genuine consent and there's an analog to this idea of genuine consent by the way in like in the field of medicine when you have Say surgeries being performed and you can send it to that there's a question of whether there was informed consent depends upon what the surgeon told you and All those kind of things but in any case that's a that's a digression My point is that's what fraud is and that's why we ought to have a type of contract or property tort or something like that that that recognizes that this type of fraud is a type of wrongdoing under libertarian law it's type of Trespass to property in a sense or theft of property in a sense But that is not what happens in trademark law. That's not what trademark law stops What trademark law stops is a as I said was it basically protects the reputation rights of The so-called owner of the trademark which is why I analogize it to defamation law So Rothbard explained the defamation law is not a legitimate Tort under libertarian principles primarily because to have a right to a reputation Is to have the right to other people's brains because your reputation is just what other people think of you So if you have a right to your reputation, you would have to have a property right and other people's minds or brains Which of course you don't have so you can't have a right to a reputation and really the arguments for trademark are similar to the rights The arguments for reputation rights, which is what defamation law is aimed at stopping protecting The idea for trademark is that your company builds up The goodwill in its customers and in its name and its reputation and its brand marks And so therefore has created the value in those marks and owns it But as you can see that's very similar to reputation Anyway, the argument that trademark law stops fraud is just wrong because once you have a right to your reputation as embodied in a trademark This permits you to sue People using a similar Name or mark as you even when they're not defrauding anyone. Okay, so it's really not based upon fraud So these are all false arguments given for To argue in favor of patent copyright and trademark law the fraud argument the plagiarism argument And of course the theft analogy, which is not a good analogy nor is the piracy by the way piracy is when you know a Ship of thieves Boards another ship and shoots people and breaks things and takes things that people own. That's what piracy is Of course, that's not what happens in copyright infringement When people copy copy information that's publicly available and use it to guide their own behaviors and modify their own Resources in the privacy of their own factories or houses That's not piracy or theft and the final argument. That's always given is that When you argue against patent or copyright someone someone will invariably say that that That Patent or copyrighted justified because People are free to make contracts with each other So what they don't understand here I think or maybe they do and they're being disingenuous is that copyright and patent law Have literally nothing whatsoever to do with the practice of making contracts First of all contracts and the Rothbardian since they're only transfers of title to alietable information Alietable resources, but even if you regarded contracts conventionally, it's just binding promises let's forget about that distinction a Contracts only bind parties to a contract a and b can have a contract that does not create property rights Property rights or what's called in rem that's rights in real things that are good against the world I don't have to have a contract with the rest of the world to have a title to my farm that I homesteaded and and constructed myself Right, I don't have a contract people. I have a property right in that farm and in my home and in my body I don't have to contract with someone to Prevent them or to have a right against them murdering me or using my body without my permission It's a it's a property right and this is exactly what the patent and copyright systems Attempt to set up for creative works and for inventions. They make them in rim rights or real rights Because no contract is required. So when people say that in contract rights are what's called in personum That's just rights between the the enumerated parties to the contract so you could never get in rim rights from a contract because They would the contract would not bind third parties They're not parties to the contract whereas property rights do and one way to To show this is to just ask the proponent of patent and copyright Ask any typical proponent of patent and copyright whether they would be okay with modifying patent and copyright so that they didn't affect people that had not voluntarily agreed to be bound by Some kind of regime some kind of contractual regime and of course every patent lawyer and copyright lawyer and advocate The Hollywood, you know the movie industry the music industry Hollywood The pharmaceutical industry they would go in completely insane over the idea that That only people that are contractually bound Or affected by their copyright or patent rights Because they know that that would totally eviscerate and got the entire system because it would transform it from an in-rem property, right? Which the law protects right now to a contract right which would only affect people that had agreed to be bound by it They would never accept that Because they understand that Copyright and patent law set up real rights that are not based upon contract, right? Which means that you could not You can't justify patent or copyright or anything like it based upon the notion of freedom of contract Yes, in a free society, we ought to permit people to enter contracts as they see fit but that would not and could not ever result in a Patent or copyright type system as I've explained in detail in my against intellectual property So those four things really annoy me when I hear them repeated over and over and over and over again by people who usually don't even Understand the basics of the different types of IP law Especially when all these things are just completely false and have been refuted many times But I guarantee they'll come up again and again and again. I'll hear all these again Probably in the next month on Facebook or other places But in the future, maybe I could just refer people back to this podcast All right signing out. See you guys next time