Archive: Stephan Kinsella

Libertarian Papers, vol. 2 (2010): Arts. 1-4: Moundsville Reconsidered; Austrian Business Cycle Theory and 100 Percent Reserves; Block on Roads; Block on Van Dun

February 8, 2010 3:06 PM by Stephan Kinsella

Three new articles published today in Libertarian Papers, vol. 2 (2010):

1. "Moundsville Penitentiary Reconsidered: Second Thoughts on Hyperreality at a Small Town Prison Tour", by Allen Mendenhall

Abstract: In 2007, I toured Moundsville Penitentiary, a tourist spectacle that was once--and fairly recently--a working prison. I wrote about the experience as would a journalist, except that my working paradigm was the postmodern theory of hyperreality, which Jean Baudrillard used to describe the complex tensions between reality and illusion. A term of semiotics, hyperreality refers to the disappearance of the referent and its subsequent, oft-replicated simulation. It almost always involves strategically controlled images that distort and conceal true meaning. The International Journal of Baudrillard Studies published my essay in January 2009. Shortly thereafter, many of my libertarian friends and colleagues wrote to ask for clarification or to express their disagreements. In what follows, whether I'm describing hyperreality or speculating about the horror-themed attractions at Moundsville Penitentiary, my principal concern is laying the libertarian foundation for my argument. I do not mean to defend my theories so much as explain them; nor do I insist that my cultural criticism is somehow "the" right way. I simply hope to fill a critical vacuum and to generate conversation not only about the condition of the American prison system writ large, but also about state-run tourist attractions that glorify the history of the sovereign at the expense of real knowledge about human suffering.

2. "Austrian Business Cycle Theory: Are 100 Percent Reserves Sufficient to Prevent a Business Cycle?", by Philipp Bagus

Abstract: Authors in the Austrian tradition have made the credit expansion of a fractional reserve banking system as the prime cause of business cycles. Authors such as Selgin (1988) and White (1999) have argued that a solution to this problem would be a free banking system. They maintain that the competition between banks would limit the credit expansion effectively. Other authors such as Rothbard (1991) and Huerta de Soto (2006) have gone further and advocated a 100 percent reserve banking system ruling out credit expansion altogether. In this article it is argued that a 100 percent reserve system can still bring about business cycles through excessive maturity mismatching between deposits and loans.

3. "Rejoinder to Carnis on Private Roads", by Walter E. Block

Abstract: Carnis (2009) is a commentary on a debate I (Block and Block, 1976; Block, 1978c) have been having with Tullock (1976) on the privatization of roads. The present paper is a rejoinder to Carnis (2009) who is highly critical of Tullock's share of the debate, and offers some luke-warm support of my side of this issue, plus some criticisms of it.

4. "Van Dun on Freedom and Property: A Critique", by Walter E. Block

Abstract: Van Dun rejects private road ownership on the ground that owners will trap homeowners whose property abuts their thoroughfares. The present paper rejects this claim, and demonstrates that a free enterprise system of private ownership will maximize the welfare of householders, not minimize it.

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The Patent, Copyright, Trademark, and Trade Secret Horror Files

February 3, 2010 3:23 PM by Stephan Kinsella

As noted here, "Ayn Rand's newsletters used to end with a "Horror File" of monstrous but true quotations."

Along those lines, it's time to collect some choice trademark horror stories in one place. I'll update this from time to time; feel free to add suggestions in the comments. (Update: I have modified this post to also include outrageous examples from patent, copyright, and trade secret law. See below.)

Trademark

As noted in Trademark versus Copyright and Patent, or: Is All IP Evil?, it's not only patent and copyright that are unlibertarian and unjust. Modern trademark law is as well. I deal with tradmark rights on pp. 58-59 of Against Intellectual Property, and also in some detail in Reply to Van Dun: Non-Aggression and Title Transfer (esp. pp. 59-63). In my view, extensions of trademark law--rights against "trademark dilution" and cybersquatting, etc.--are obviously invalid. Further, federal trademark law is problematic since it is not authorized in the Constitution.

But even if federal trademark law were abolished, as well as modern extensions such as rights against trademark dilution, even common law trademark is problematic, for three primary reasons. First, it is enforced by the state, which gets everything wrong. Second (see First), the test of "consumer confusion" is usually applied ridiculously, treating consumers like indiscriminating idiots. Third, and worst of all, the right at issue is the right of the defrauded consumer, not the competitor. Trademark law ought to be reformed by abolishing the right of trademark "owners" to sue "infringers" (except perhaps as proxy for customers, when consent can be presumed or proved--as I discuss in this interview: Free Talk Live Interview on Reducing IP Costs (Jan. 20, 2010)), and treating this as a case of the customer's right to sue a vendor who defrauds him as to the nature of the good purchased. Some might argue that this is only a minor change, but it is not: such a change would make it clear that "knockoffs" are usually not a violation of anyone's rights: the buyer of a $10 "Rolex" is almost never defrauded--he knows what he's getting. Yet by giving an enforceable trademark right to the user of a mark, he can sue knockoff companies even though their customers are not defrauded and in fact are perfectly happy to buy the knockoff products.

The other fallacy is the view at work here that there is no such thing as reputation, or even identity, absent trademark law. But this is incorrect. Of course people and firms can have reputations even if trademark law is nonexistent. All that is required is that people be able to identify other people and firms, and communicate. Pro-trademark arguments often implicitly assume that this is not possible, absent state-enforced trademark law, which is ridiculous.

In any event, on to a collection of trademark outrages for the horror files (some of these are also listed in Reducing the Cost of IP Law):

Court Says U Of Southern California Only One Who Can Use USC; Sorry U Of South Carolina
Who Dat? America's National Football League causes outrage over catchphrase ban
What's Next--Trademarking Language? Don't be *Ridiculous*!
South Butt David versus North Face Goliath
Lou Carlozo, Teen's charity name draws the McIre of McDonald's, Wallet Pop (Jan. 17, 2010) (McDonadl's claims Lauren McClusky's use of "McFest" for the name of a series of charity concerts she puts on infringes its "McFamily" brand)
Budweiser trademark dispute (see also Chip Wood, A Bully-Boy Beer Brewer, Straight Talk (Oct. 16, 2007))
9th Circuit Appeals Court Says Its Ok To Criticize Trademarks After All, Against Monopoly (Sept. 26, 2007)
Kinsella, Trademarks and Free Speech, Mises Blog (Aug. 8, 2007)
idem, Beemer must be next... (BMW, Trademarks, and the letter "M"), Mises Blog (Mar. 20, 2007)
idem, Hypocritical Apple (Trademark), Mises Blog (Jan. 11, 2007)
ECJ: "Parmesian" Infringes PDO for "Parmigiano Reggiano," I/P Updates (Feb. 27, 2008)
Mike Masnick, Engadget Mobile Threatened For Using T-Mobile's Trademarked Magenta, Techdirt (Mar. 31, 2008)

Continue reading "The Patent, Copyright, Trademark, and Trade Secret Horror Files" »

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New Book: Innovation, Intellectual Property, and Economic Growth

February 3, 2010 12:09 PM by Stephan Kinsella

The new book Innovation, Intellectual Property, and Economic Growth, by
Christine Greenhalgh & Mark Rogers, looks interesting:

What drives innovation? How does it contribute to the growth of firms, industries, and economies? And do intellectual property rights help or hurt innovation and growth? Uniquely combining microeconomics, macroeconomics, and theory with empirical analysis drawn from the United States and Europe, this book introduces graduate students and advanced undergraduates to the complex process of innovation. By addressing all the major dimensions of innovation in a single text, Christine Greenhalgh and Mark Rogers are able to show how outcomes at the microlevel feed through to the macro-outcomes that in turn determine personal incomes and job opportunities.

From a quick skim of ch. 1 (available here), it appears to adopt a mainstream approach--finding out whether there is market failure or a public goods problem (see Hans-Hermann Hoppe's "Fallacies of the Public Goods Theory and the Production of Security," in The Economics and Ethics of Private Property for criticism of the concept of "public goods"), and then asking whether we can fix it with some kind of state invervention. The same old "the market is not perfect, so let's let the thugs with guns have more power" song and dance.

But at least they recognize you have to take costs into account (see my Reducing the Cost of IP Law; There's No Such Thing as a Free Patent; Yet Another Study Finds Patents Do Not Encourage Innovation; and What Are the Costs of the Patent System?):

In addition, understanding whether these monopoly costs of IPRs [intellectual property rights] are less than the benefit to society emanating from the spur that IPRs give to innovation will provide a major theme for parts II and IV of this book.

My guess: they'll conclude that some IPRs can help address the market failure/public goods issues and give rise to some kind of net benefit, but not our current IP system; so then we'll have a laundry list of "reforms" that would tweak the current laws to reduce the cost enough so that there is a net benefit. Just a hunch. Unfortunately, at $45 even in e-book format, I don't think I'll read it until it comes out at a more reasonable price.

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Libertarianism Arrives in July!
2010.01.30 | Comments (12)

Authors: Don't Make the Buddy Holly Mistake
2010.01.30 | Comments (128)

Shughart's Defense of IP
2010.01.29 | Comments (29)

IPWatchDog Patent Lawyer Sued by Invention Submission Corporation
2010.01.26 | Comments (55)

South Butt David versus North Face Goliath
2010.01.26 | Comments (50)

Patent Lawyer Mostly Agrees With Me
2010.01.25 | Comments (3)

Libertarian Patent Lawyer Defends Patent Law
2010.01.23 | Comments (59)

Yeager and Other Letters Re Liberty article "Libertarianism and Intellectual Property"
2010.01.23 | Comments (52)

Left-Liberals on Free Speech and Finance Campaign Laws
2010.01.21 | Comments (33)

Kinsella Free Talk Live Interview on Reducing IP Costs
2010.01.21 | Comments (9)

How to Improve Patent, Copyright, and Trademark Law
2010.01.20 | Comments (46)