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Query for Schulman on Patents and Logorights

I’ve disagreed before with J. Neil Schulman on IP issues — see Kinsella v. Schulman on Logorights and IP. Here’s an edited version of a query I put to him on Facebook this morning:

Neil, in your Logorights article, you say (if you’ll forgive me copying your pattern):

if you think creation isn’t essential to the origin of property–then compose your own damn symphonies, write your own damn novels, invent your own damn computer–much less figure out how to program it–design your own damn houses, film your own damn movies, and come up with the damned recipe for bread on your own…”

A couple of questions about this.

1. Your formulation implies you think IP/logorights in inventions (computers etc.) has to do with COPYING others’ ideas. But are you aware that patent law has nothing to do wtih copying? (See Common Misconceptions about Plagiarism and Patents: A Call for an Independent Inventor Defense.) That even if you independently invent something, you can be sued? Even if you invented it first?

So does this mean you would favor a prior user or independent inventor defense to patent infringement?

If so, are you aware that this would largely gut patent law and subject you to the same “you are an IP commie” excoriations heaped upon me by the pro-IP side?

I.e., are you basically only in favor of copyright, but NOT patent? (In which case… your computer and house examples are inapt, as they are the subject of patent not copyright law.)

Moreover, while is is unlikely for someone to write Alongside Night if they never heard of yours, for most technical innovations this is not so: most of them eventually would get invented by someone. So patenting it and making this public does deprive others of independently inventing the invention. Suppose I would have invented a new mousetrap in 2 years; you patent it and sell it. I learn of it a year earlier than otherwise so now I cannot independently invent. You “spoiled” it for me as when someone reveals the ending of a movie. Why can you use the fact that you gave information to others to restrict their use of it?

2. Ideas, information, logos–are used to guide human action (see Knowledge is Power). Action uses knowledge of causal laws to manipulate scarce means, as guided by such knowledge. I assume you are not opposed to learning: the acquisition of knowledge. So how do you distinguish the learning of information about how others use their property, which you want to prohibit unless there is permission from the “owner,” from learning in general, which presumably you do not want to prohibit?


Stephan Kinsella

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.

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