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    Stephan N. Kinsella, How Intellectual Property Hampers the Free Market

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    Johnathan R. Razorback
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    Date d'inscription : 12/08/2013
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    Stephan N. Kinsella, How Intellectual Property Hampers the Free Market

    Message par Johnathan R. Razorback le Ven 22 Jan - 21:22

    http://www.wikiberal.org/wiki/Stephan_Kinsella

    http://fee.org/freeman/how-intellectual-property-hampers-the-free-market/

    "There are good reasons to think that IP is not actually property—that it is actually antithetical to a private-property, free-market order. By intellectual property, I mean primarily patent and copyright."

    "It’s important to understand the origins of these concepts. As law professor Eric E. Johnson notes, “The monopolies now understood as copyrights and patents were originally created by royal decree, bestowed as a form of favoritism and control. As the power of the monarchy dwindled, these chartered monopolies were reformed, and essentially by default, they wound up in the hands of authors and inventors.”

    Patents were exclusive monopolies to sell various goods and services for a limited time. The word patent, historian Patricia Seed explains, comes from the Latin patente, signifying open letters. Patents were “open letters” granted by the monarch authorizing someone to do something—to be, say, the only person to sell a certain good in a certain area, to homestead land in the New World on behalf of the crown, and so on.

    It’s interesting that many defenders of IP—such as patent lawyers and even some libertarians—get indignant if you call patents or copyright a monopoly.
    “It’s not a monopoly; it’s a property right,” they say. “If it’s a monopoly then your use of your car is a monopoly.” But patents are State grants of monopoly privilege."

    "Large companies rattle their sabers or sue each other, then make a deal, say, to cross-license their patents to each other. That’s fine for them because they have protection from each other’s competition. But what does it do to smaller companies? They don’t have big patent arsenals or a credible countersuit threat. So patents amount to a barrier to entry, the modern version of mercantilist protectionism."

    "Despite modern IP proponents’ claims to the contrary, the American founders did not view intellectual property as a natural right but only as a policy tool to encourage innovation. Yet they were nervous about monopoly privilege, which is why patents and copyrights were authorized only for a limited time. Even John Locke, whose thought influenced the Founding Fathers, did not view copyright and patent as natural rights. Nor did he maintain that property homesteading applied to ideas. It applied only to scarce physical resources."

    "Natural rights do not expire after 15 years."

    "The most common argument for IP, even among libertarians, is utilitarian, or “wealth-maximization,” which was the approach of the Founding Fathers: IP monopoly encourages innovation and therefore creates net wealth. In other words, the benefits outweigh the costs.

    No doubt the patent system imposes costs on American society. I’ve estimated the net cost at $38–48 billion a year, and this is probably conservative. The costs include patent attorney salaries, fees, litigation, increased insurance premiums, and higher-priced products—plus innovation and research lost when companies concentrate on patentable innovations and allocate fewer resources to more basic scientific research, or when an entire field is avoided for fear of patent-infringement lawsuits
    ."

    "Thus a good utilitarian would have to conclude that patent and copyright laws are harmful."

    "Assigning property rights in ideas and other immaterial things, such as patterns or recipes, ends up restricting other people’s rights to control their physical property."
    -Stephan N. Kinsella, How Intellectual Property Hampers the Free Market, The Freeman, June, Vol 61, n°5, 2011.


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