Libertarian Critique of Intellectual Property

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A LIBERT A RI A N

CRITIQUE OF

INTELLECTU AL PROPERTY



Published 2013 by the Mises Institute and publishedunder the Creative Commons Attribution License 3.0.

http://creativecommons.org/licenses/by/3.0/

Mises Institute

518 West Magnolia Avenue

Auburn, Ala. 36832Mises.org

ISBN: 978-1-61016-589-1



A LIBERT A RI A NCRITIQUE OF


B U T L E R S H A F F E R

IP

M I S E S I N S T I T U T E

AUBURN, ALABAMA





CONTENTS

Introduction

by David Gordon . . . . . . . . . . . . . . . 7

A Libertarian Critique of Intellectual

Property. . . . . . . . . . . . . . . . . . . . . . 17

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

5





BUTLER SHAFFER KNOWS HOW to

make people question their fundamental

assumptions. He sometimes asks his stu-

dents at Southwestern Law School, wherefor many years he has been professor of

law, to vote between two candidates.

Candidate A is identified as “a well-

known critic of government, this manhas been involved in tax protest move-

ments, and has openly advocated seces-

sion, armed rebellion against the exist-

ing national government, and even the

overthrow of that government. He is aknown member of a militia group that was

7

INTRODUCTION



8 A Libertarian Critique of Intellectual Property

involved in a shoot-out with law enforce-ment authorities. He opposes gun controlefforts of the present national government,as well as restrictions on open immigra-tion into this country. He is a business-

man who has earned his fortune fromsuch businesses as alcohol, tobacco, retail-ing, and smuggling.”

Candidate B is described thusly: “Adecorated army war veteran, this manis an avowed nonsmoker and dedicatedpublic health advocate. His public healthinterests include the fostering of medicalresearch and his dedication to eliminatingcancer. He opposes the use of animals in

conducting such research. He has supportedrestrictions on the use of asbestos, pesticides,and radiation, and favors government-determined occupational health and safetystandards, as well as the promotion of such

foods as whole-grain bread and soybeans.He is an advocate of government gun-control measures. An ardent opponent of



Butler Shaff er 9

tobacco, he has supported increased restric-tions on both the use of and advertising fortobacco products. Such advertising restric-tions include: (1) not allowing tobacco useto be portrayed as harmless or a sign of

masculinity; (2) not allowing such advertis-ing to be directed to women; (3) not draw-ing attention to the low nicotine content oftobacco products; and, (4) limitations as to where such advertisements may be made.

This man is a champion of environmentaland conservationist programs, and believesin the importance of sending troops intoforeign countries in order to maintain ordertherein.”1

How do the students vote? “Over the years, the voting results have given Can-didate B about 75 percent of the vote, while Candidate A gets the remaining25 percent. After completing the exercise

1Butler Shaffer, “The Hitler Test” http://archive.

lewrockwell.com/shaffer/shaffer52.html




and tabulating the results, I [Shaffer]inform the students that Candidate A is

a composite of the American “founding

fathers” (e.g., Sam Adams, John Han-

cock, Thomas Jefferson, George Wash-

ington, etc.). Candidate B, on the other

hand, is Adolf Hitler.” As one can read-

ily imagine, the students react with shock.

Why do the students vote this way?

The program of Candidate B “sounds

good” to them, but they did not ask them-

selves a key question, and it is this ques-

tion that Shaffer wishes by his experiment

to bring to their attention.

That question is this: How did Can-

didate B intend to bring his program into

effect? The answer in this case is quite

clear: by using the force and violence ofthe State. That led to disaster, and this

Shaffer maintains, is necessarily the case.



Butler Shaff er 11

In his great book Boundaries of Order,Shaffer argues that people can best solve

their problems and progress through

peaceful social cooperation. To cooperate

peacefully, they need to delimit property

rights. As Shaffer puts it, “If we are tohave the resilience to make life-enhancing

responses to the world—to assess risks

and other costs, and to settle upon an effi-

cacious course of action—we must enjoy

the autonomy to act upon our portion ofthe world without interference from oth-

ers, a liberty to be found only in a system

of privately owned property.”2

Shaffer takes great pains to show howpeople can resolve whatever problems

arise from their mutual interaction through

setting the appropriate boundaries of their

property rights. In settling their disputes

2Butler Shaffer, Boundaries of Order, chrome://epu-

breader/content/reader.xul?id=19




on an individual basis, they manifest theirrespect for one another:

Private property, as a system of socialorder, reflects the extent to which weare willing to acknowledge one anoth-

er’s autonomy and to limit the range ofour own activities. Private property isthe operating principle that makes realImmanuel Kant’s admonition: “Act sothat you treat humanity, whether in yourown person or in that of another, always

as an end and never as a means only.”3

Unfortunately, there is another waythat people can choose to act. They candecide to solve their problem collectively,through resort to the State. Shaffer leaves

us in no doubt what he thinks of this:

The twentieth century demonstrated tothoughtful men and women the totallyinhumane nature of any system pre-mised on political collectivism. A sign

on a church in the former East Berlin

3Ibid.



Butler Shaff er 13

that read “nothing grows from the topdown,” succinctly identified the anti-lifenature of all forms of institutionally-directed, collective control over people.Collectivism is the ultimate expressionof the pyramidal model of the universe.

It is the epitome of power-based think-ing (i.e., that it is appropriate for somepeople to exercise coercive authority overthe lives and property of others).4

In “A Libertarian Critique of Intellec-

tual Property,” Shaffer applies his philos-ophy of individualism to a topic that hasaroused a great deal of discussion amonglibertarians: are patents, copyrights, andthe like legitimate? The results are illu-minating.

Intellectual Property is a difficulttopic, and a lesser author could easily getbogged down in legal technicalities. Notso Shaffer. As always, he penetrates to

the fundamentals. He asks:

4Ibid.




Are the origins of IP interests to befound in the informal processes by which men and women accord to eachother a respect for the inviolability oftheir lives—along with claims to exter-nal resources (e.g., land, food, water,

etc.) necessary to sustain their lives? Or,are they to be established by formallyenacted rules generated by politicalsystems?5

Shaffer answers that IP has his-

torically arisen, not through negotiationamong individuals, but by the imposi-tion of the State. Nor is this an accident.IP protection, he argues, could not havearisen through voluntary agreement. Hesuccinctly explains why not:

We enter into an agreement, one thatis binding only upon you and me. But when the state—with its monopolis-tic powers—acts for the benefit of afew, all are legally bound by the rules

whether they agree with them or not. If

5See p. 18 in this book.



Butler Shaff er 15

copyrights, patents, or trademark pro-tections are not recognized among freepeople—unless specifically contractedfor between two parties—by what rea-soning can the state create and enforcesuch interests upon persons who have

not agreed to be so bound?6

Defenders of IP claim that without it,the progress of knowledge and invention would be blocked, but Shaffer dissents:

The notion that the anticipation ofmonopolistic rewards such as patentsand copyrights is essential to the creativeprocess, is negated by much of humanhistory. I am unaware of any copyrightshaving been issued to writers such

as Aeschylus, Homer, Shakespeare,Dante, or Milton; or composers suchas Beethoven, Bach, Mozart, Wagner,or Tchaikovsky; or artists such as VanGogh, Michelangelo, Da Vinci, Rem-brandt, or Renoir. Were Leonardo’s or

Gutenberg’s inventions, or the Egyptian





pyramids, or the Roman aqueducts,rewarded by state-issued patents?7

Appealing to Paul Feyerabend and Arthur Koestler, Shaffer argues that thecreative process works best in the absence

of imposed uniformities and limits.“Nomore than can spontaneity be com-manded, can the creative process be con-strained by boundaries and barriers thatprotect the creative outcomes of others.”

Shaffer writes with genuine philo-sophical depth, and “A LibertarianCritique of Intellectual Property” is anindispensable contribution to libertariantheory.

David Gordon

Los Angeles, California

November 5, 2013




FROM A LIBERTARIAN PERSPECTIVE, pre-mised upon respect for private propertyand the rejection of coercion, a discussionof what is called “intellectual property”—e.g., copyrights, patents, trademarks—

must focus on the same questions thatattend more general inquiries into propertyownership. How do such interests comeinto existence? How is decision-makingexercised? And how are interests trans-

ferred or lost? I have addressed these prop-erty questions in my book, Boundaries of

17

A LIBERT A RI A N

CRITIQUE OF





Order: Private Property as a Social Sys-tem.1 Ignorance of property principles hasbeen a primary contributor to the socialconflict, loss of individual liberty, and theresulting destructiveness that character-

izes modern societies. Intellectual prop-erty (hereafter “IP”) has become a popu-lar setting in which such confusion findsexpression.

Are the origins of IP interests to befound in the informal processes by whichmen and women accord to each other arespect for the inviolability of their lives—along with claims to external resources(e.g., land, food, water, etc.) necessaryto sustain their lives? Or, are they to beestablished by formally enacted rules gen-erated by political systems? In a worldgrounded in institutional structuring, itis often difficult to find people willing

1 Boundaries of Order: Private Property as a Social

System (Auburn, Ala.: Mises Institute, 2009).



Butler Shaff er 19

to consider the possibility that propertyinterests could derive from any sourceother than an acknowledged legal author-ity. There is an apparent acceptance of Jeremy Bentham’s decree that “property

is entirely the creature of law.”2

Becauseall life—of whatever species—is depen-dent upon property principles, Bentham’sproposition would have to embrace theodd notion that the dictates of formal law

preceded life itself !

I shall not pursue that topic here—having addressed it more thoroughly inmy Boundaries of Order. I do raise the

question of whether, from a libertarian viewpoint, any philosophically defensibleownership claims could be created bypolitical systems? Whether a pre-existing

2

Jeremy Bentham, “Principles of the Civil Code,”(1802) in John Bowring, ed., The Works of Jeremy

Bentham (New York: Russell & Russell, 1962), vol.

1, p. 308.




property claim might properly be pro-tected or defended by a state system, canbe left to a debate between anarchist andminarchist adherents. The question upon which I focus is this: in the same way that

respect for individual property claims canarise informally among men and women,is there evidence for such claims to IPbeing so recognized? If the answer shouldprove to be “no,” can a libertarian phi-

losophy be reconciled with the idea of any property interests (IP or otherwise) beingcreated by the state?

There is a generally-accepted defi-nition of “government” as an entity thatenjoys a legal monopoly on the use of vio-lence within a given territory. It is the dis-tinction between “violent” and “peaceful”conduct—the contrast between the “coer-cively mandated” and the “voluntarily

contracted”—that is at the core of liber-tarian thought. Franz Oppenheimer char-acterized these “fundamentally opposed



Butler Shaff er 21

means” as the “political” versus the “eco-nomic” means of acquiring sustenance.3 Ifthe state enjoys the lawful authority to use violence to accomplish the ends of those who desire to use such powers to advance

their interests, how can a libertarian phi-losophy defend the products of such coer-cive undertakings?

Through “economic means,” individu-

als create rights in one another through con-tract, an agreement by two or more personsto exchange claims to ownership. You are willing to purchase my claim to my auto-mobile for your $10,000, and I am willing

to sell my claim to you for that amount. Weenter into an agreement, one that is bind-ing only upon you and me. But when thestate—with its monopolistic powers—acts

3

Franz Oppenheimer, The State: Its History and De-velopment Viewed Sociologically, trans. by John M.

Gitterman (New York: B.W. Huebsch, 1922), p. 24;

reprinted New York: Free Life Editions, 1975.




for the benefit of a few, all are legallybound by the rules whether they agree with them or not. If copyrights, patents, ortrademark protections are not recognizedamong free people—unless specifically

contracted for between two parties—by what reasoning can the state create andenforce such interests upon persons whohave not agreed to be so bound? Nor canthe inclusion of a copyright notice in a

book be defended, under contract princi-ples, as such provides no evidence that thebuyer had agreed to respect the presumedproperty claim prior to his purchase.

Among men and women of liber-

tarian sentiments, one would expect tofind a presumption of opposition to theidea that a monopolist of legal violencecould create property interests that others would be bound in principle to respect. I

would go even further and assert that onlyhuman beings—“persons”—should berespected as property owners; that treating



Butler Shaff er 23

corporations, political institutions, andother abstractions as artificial “persons”represents a source of conflict we ought toreject. So considered, the state becomesseen for what it is: an organizational tool

of violence that is able to accomplish itspurposes only through the willingness ofits victims to accord it legitimacy. Sucha practice allows lifeless fictions to tran-scend—and thus demean—the impor-

tance of individual human beings.If IP claims can only be created by

coercive political systems, could suchinterests be defended under libertarianprinciples? In a stateless society, would

IP be recognized alongside claims to realestate and chattels as property interests worthy of respect? At the early commonlaw—and until 1977 in America—a lim-ited copyright principle existed. A per-

son who had written a book or a poem,placed it in her desk drawer, and it waslater removed by another and published




without her consent, maintained a com-mon law copyright to her work. If, how-ever, the author had the work published— which meant, as the word implies, made“public”—she lost such a copyright, the

act of publication being treated as anabandonment of control over her claim ofownership. The question arose, of course,as to what constituted a “publication” ofthe work: sending a copy to a publisher to

review would not.In order to extend copyright protec-

tion to authors and publishers beyondthe common law limits, Congress enactedcopyright statutes. Such legislation was

grounded in Article I, Section 8 of theConstitution, which provides, among otherpowers, “To promote the Progress of Sci-ence and useful Arts, by securing for lim-ited Times to Authors and Inventors the

exclusive Right to their respective Writ-ings and Discoveries.” This constitutionalauthority created, in a legal monopolist



Butler Shaff er 25

of violence, the power to create in othersmonopoly property interests that did nototherwise exist, and would be enforcedthrough the coercive powers of the state.Our legal system has long understood

monopolies to be creatures of the state,4 a status that provided the recipient pro-tection from would-be competitors. Theincompatibility of such an interest withlibertarian principles should be apparent.

The common law system got it right:because the essence of ownership is foundin the capacity to control some resource infurtherance of one’s purposes, such a claim

is lost once a product has been releasedto the public. The situation is similar to

4 A dictionary definition informs us as to the meaning

of a “Legal monopoly: The exclusive right granted by

government to business to provide utility services thatare, in turn, regulated by the government.” Black’s

Law Dictionary (St. Paul, Minn.: West Publishing,

9th ed., 2004), p. 1098.




that of a person owning oxygen that iscontained in a tank, but loses a claim toany quantity that might be released—by aleaky valve—into the air.

It is argued that patents and copy-rights are of great value to inventors andauthors who might otherwise be disin-clined to invest their efforts and resourcesto create what others could readily copy.The argument has been extended to sug-gest that others—including society as a whole—benefit from so rewarding suchproductive endeavors. The contentionhas also been made on behalf of govern-ment research and development funding

that makes it more beneficial to corpo-rate interests who would otherwise haveto fund their own efforts in such diversefields as medicine, aeronautics, spaceexploration, military weaponry, and

other scientific or social research. Thereis nothing remarkable in the propositionthat people prefer having the costs of



Butler Shaff er 27

their undertakings paid for by others; norin the idea that people are capable of cre-ating and organizing their own resourcesto accomplish, in a free market, ends thatthey value.

The notion that the anticipation ofmonopolistic rewards such as patents andcopyrights is essential to the creative pro-cess, is negated by much of human history.I am unaware of any copyrights havingbeen issued to writers such as Aeschylus,Homer, Shakespeare, Dante, or Milton;or composers such as Beethoven, Bach,Mozart, Wagner, or Tchaikovsky; or art-ists such as Van Gogh, Michelangelo, Da Vinci, Rembrandt, or Renoir. Were Leon-ardo’s or Gutenberg’s inventions, or theEgyptian pyramids, or the Roman aque-ducts, rewarded by state-issued patents?

Civilization, itself, has developedfrom the works of many prolific individu-als, most of whom conferred upon the rest




of humanity their discoveries, inventions, writings, or artistic creations, withoutexpectations of enjoying a monopoly sta-tus as either their purpose or consequence.Indeed, such works have come to define

the very content of Western culture.

True to their coercive and lootingnature, governments have gone so far asto take from the “public domain” wordsthat belong to no one, and conferred amonopoly copyright upon various insti-tutional interests. The word “Olympics,”for instance, has been in common usagesince at least the eighth century B.C. Bypolitical fiat, the International OlympicCommittee now enjoys ownership of that word as a state-protected trademark.

But is the premise upon which IP haslong been defended—i.e., its importance

in making possible creations that benefitmankind—at all valid? Is the creativeprocess encouraged or hindered by this



Butler Shaff er 29

system of state-conferred monopolies?Creativity—like learning in general—isfostered by cross-fertilization and syn-thesis. We ought to have learned fromfundamental principles of biology that

reproduction through single-cell divisionproduces little genetic variation. Whenthe life process developed sexual repro-duction, the resulting genetic diversityallowed for the proliferation of numerous

species as well as intra-special traits thatenhanced adaptive capabilities.

Patents and copyrights inhibit the cre-ative process by discouraging the exchangeof information relating to a particular line

of research or exploration. If one scientisthas been issued a patent for his inventionof a widget, another scientist would likelybe discouraged from continuing his own work on a similar product, or from making

modifications or variations on the patenteditem. The interplay in which individualinsights and proposals are communicated




to one another in a group, and then sub- jected to collaborative processes of brain-storming, are far more productive of cre-ative ends than is the work of individualsin isolation. Likewise, the cross-fertiliza-

tion of ideas, techniques, and other influ-ences, among communities of artists andscientists, have greatly enhanced the cre-ative process. On the other hand, whendriven by the rewards of patents, scien-tists and inventors are known to maintainsecrecy in their laboratories and research,lest a competitor gain insights that mightadvance their own work. The propositionthat knowledge and ideas can be made theexclusive property of one who discovers orexpresses what was previously unknown,is contrary to the nature of the intelligentmind, whose content is assembled from amixture of the experiences of others andoneself. Even the language with which

one formulates and communicates his orher understanding to others, has beenprovided by predecessors.



Butler Shaff er 31

While ego gratification in being thefirst to make a discovery plays a majorrole in this hesitancy to share what onehas learned, the fear that a patent or copy-right awarded to another might foreclose

continuing developmental work adds tothe pressures for secrecy. It has been saidthat Nikola Tesla did most of his creative work wholly within his mind, dreamingup inventions and procedures and play-

ing them out in ways that allowed himto find and correct defects in his thoughtcreations.5 Thomas Edison, on the otherhand, would pick up on the ideas of oth-ers, invent something as a result, and then

rush to the Patent Office. The problem was not that Edison was able to synthe-size the ideas of others with his own: suchis the nature of the creative process. Theproblem was the Patent Office!

5Margaret Cheney, Tesla: Man Out of Time (New

York: Touchstone, 1981), pp. 32–35.




While Tesla patented much of his work, he was so driven by the urge of dis-covery that he often failed to patent work which, as a consequence, “went into thecommon pool of knowledge” that benefit-

ted mankind.6

How much of this “com-mon pool of knowledge” (i.e., “publicdomain”) finds its origins in the eager-ness of so many of our distant ancestors todiscover or invent things whose use might

prove beneficial to others; and to do so with no apparent motivation beyond the joy found in the creative act itself? Farearlier than the evolution of Western Civi-lization, many observant and inventive ofour ancestors employed their individualintelligence to make sense of their world,and to find means for enhancing their survival.

Undoubtedly the greatest invention in

human history was language. It has made

6Ibid., pp. 88, 225.



Butler Shaff er 33

possible not only our social relationships;as well as our ability to express the aes-thetic, spiritual, commercial, scientific,philosophical, and engineering qualitiesthat make our species unique; but has

been the condition precedent for all of ourother creations. Language is the essen-tial tool by which the human mind canorganize and communicate experiencesand understanding, not only to others,

but to ourselves. Its spontaneous, vibrantcharacter is reflected in words that comeand go into common usage, without anyauthority directing the process. Even let-ters of the alphabet have no assurance ofimmortality.7 But who, amongst our ear-liest ancestors, were granted copyrightsfor this work? As each of our forebearscontributed to the creation of what, likeour biological characteristics, continuesto evolve, and as the influences of many

7See, e.g., mentalfloss.com/article/31904/12-letters-didnt

-make-alphabet




languages helped to synthesize our own,I am unaware of any coercive machinerythat was in place to give individual par-ticipants a protected monopoly in the useof their contributions. I suspect that, had

any such restraints been available andenforced, we would never have realizedthe richness and vibrancy of the self-gen-erated language we now enjoy.

One can regress millennia before thefirst patent or copyright laws were enactedand discover the origins of numerous tools (e.g., hammers, needles, knives, axes);transportation systems (e.g., the wheel,boats, wagons, sails); plants that were cul-

tivated and/or transformed into foods (e.g.,maize, wheat, potatoes, chocolate, beans,tomatoes); plant and/or animal sourcesfor clothing (e.g., cotton, wool, hides,silk); and housing. Nor can we overlook

the discovery of substances (e.g., miner-als, herbs, plants) that our ancestors founduseful for dealing with injuries, sicknesses,



Butler Shaff er 35

and maintaining health; substances thatmany modern men and women continueto find beneficial alternatives to institu-tionalized medicine, and are even used toproduce the medicines that pharmaceuti-

cal firms now insist on patenting. Musicalinstruments (e.g., flutes [going back morethan 40,000 years], drums, stringedinstruments) provided sound, while thecreation of pigments added colors to

artistic expressions of early humans. Theinvention of paper, ink, hunting tools,andrope, as well as the discovery of physi-cal laws helped our forebears address themany pragmatic concerns in their lives.

The ancient Greek, Hero of Alexandria(10–70 AD), invented a workable steamengine—centuries before Robert Fultonpatented his—a vending machine, and adevice for using wind to power machines.

All of these early inventions and creations were accomplished, as far as is known, with-out a violence-backed monopoly to prevent




others from copying them. How manypainters, sculptors, inventors, writers, andphilosophers, produced their works out ofno greater motivation than a deep innersense of being that insisted on expressing

itself by creative means? What anticipa-tion of material rewards drove our prehis-toric ancestors to make their handprintson the walls of ancient caves in Spain andFrance? Might they have had no other

purpose than to reach their hands 40,000 years into the future to express to us thatmost fundamental spiritual need for tran-scendence: “I was here”?

The origins of that cornucopia from

which we all continue to draw sustenanceare to be found within those creative andcooperative qualities against which politi-cal systems war. Those who produce thegoods and services that are so beneficial

to life might prefer to have a monopoly in what they have created. But the rest of usought to reject such privileged practices.



Butler Shaff er 37

Life is hindered, not enhanced, by thecoercive restriction of options by whichpeople peaceably pursue their self-inter-ests.

If we truly believe that the creative pro-cess requires the state to grant to inventorsand discoverers an immunity from havingtheir works adopted by others, will weinsist that modern producers either com-pensate the descendants of earlier creatorsfor their preliminary work or, in the alter-native, abandon their claims to rewardsfor their “originality”? Should GeneralMotors, Chrysler, Harley-Davidson, andSchwinn Bicycle Company be required

to pay royalties to the offspring (if onecan identify them) of the inventor of the wheel? Do Simon & Schuster, RandomHouse, and numerous university pressesnow rightfully owe the heirs of Johann

Gutenberg for the use of his invention thatmade possible their businesses? Shouldsymphony orchestras be obligated to pay




royalties to the descendants of the com-posers whose music they perform?

On first impression, such propos-als may appear absurd and unworkable.But such a response ignores the premisesupon which modern IP laws operate: if the“progress of science and the useful arts” isdependent upon “authors and inventors”being granted “exclusive right” to their works, how did our ancestral “authors andinventors” manage their creations withoutthe anticipation of such rewards? Werethere even informal understandings amongmen and women of integrity that original works by one person were not to be copied?

There is no collection of paintingsthat so dominates art museums in Flor-ence, Italy, as that of the “Madonna andchild.” Room after room in the Uffi zi

Gallery and the Pitti Palace repeatsthis theme by both great, and relativelyunknown, painters. As best I can tell,



Butler Shaff er 39

the artist Duccio created the first of suchpaintings, later followed by Botticelli,Leonardo, Michelangelo, and Raphael,not a second-rater in the bunch. Giventhe spirit of IP protectionism, should an

asterisk be placed alongside the names ofeach of these subsequent painters to indi-cate their lack of respect for the originaland exclusive claims of their predecessor?Have their works demeaned the contribu-

tions of Western Civilization to the artis-tic and spiritual betterment of mankind? Would our culture have been better offhad these men not made these paintings?

What, too, of the patent claims being

advanced in the genetic modification ofplants? Because such claims might giveagri-business giants—such as Mon-santo—monopolistic powers over the pro-duction of foods, this area may attract the

greatest amount of critical attention. Thatthe political system would give the IOCownership of the word “Olympics” may




have no more day-to-day significance formembers of the general public than wouldthe awarding of a patent to the inventorof a hinge for a laptop computer. Butfor patents to be issued to corporations

involved in food production—particularly when federal, state, and local governmentsare trying to regulate home gardening—raises concerns that affect the immediatesurvival of people.

The proposition that business firmsare entitled to patent protection when theyhave produced variations in the geneticstructure of plants (GMOs) convenientlyignores the fact that the pre-existing

plants had, themselves, arisen from modi-fications or adaptations provided by ourancient ancestors. Are a few privilegeddescendants of those whose earlier effortsproduced, for the benefit of all mankind,

an improved means for sustaining life,to be granted an inviolable claim arisingfrom their tinkering with what has been



Butler Shaff er 41

handed down to them in common withthe rest of mankind?

It is one thing for the seller of seeds toinsist upon a property interest in the bagsof seeds it has produced and continuesto own until such time as it exchanges itsownership claim with a buyer. Until theclaim is transferred, the seller continuesto exercise the control that is essential toownership, a control that is then trans-ferred to the buyer. But, analogizing tocommon law copyrights, the subsequentsale of its seeds would seem to constitute a“publication” of the content of these seedsand, with it, the loss of control. The meta-

phor of such claims being “tossed to the winds” finds literal expression in effortsby firms such as Monsanto to prosecutepatent claims against farmers whose lands were unwanted recipients of Monsanto

seeds blown onto them from other farms.The social implications of GMO patentsmay prove to be the Achilles-heel in the




entire field of IP. As asked earlier, to theextent IP interests arise only by way ofgrants from the state, how can such claimsbe defended on the basis of libertarianprinciples grounded in individual liberty

and respect for private property?

There are many other costs associated with IP that rarely get attention in cost-benefit analyses of the topic. One has to do with the fact that the patenting process, as with government regulation generally, is anexpensive and time-consuming undertak-ing that tends to increase industrial concen-tration. Large firms can more readily incurthe costs of both acquiring and defending

a patent than can an individual or a smallfirm, nor is there any assurance that, onceeither course of action is undertaken, asuccessful outcome will be assured. Thus,individuals with inventive products may

be more inclined to sell their creations tolarger firms. With regard to many potentialproducts, various governmental agencies



Butler Shaff er 43

(e.g., the EPA, FDA, OSHA) may havetheir own expensive testing and approvalrequirements before new products canbe marketed, a practice that, once again,favors the larger and more established

firms.

Increased concentration also contrib-utes to the debilitating and destructiveinfluences associated with organizationalsize. In addressing what he calls “the size theory of social misery,” LeopoldKohr observes that “[w]herever some-thing is wrong, something is too big,”8 adynamic as applicable to social systemsas in the rest of nature. The transforma-tion of individuals into “overconcentratedsocial units” contributes to the problemsassociated with mass size.9 One sees this

8Leopold Kohr, The Breakdown of Nations (New

York: E.P. Dutton, 1978), pp. 34, xviii; emphasis in

original.

9Ibid., p. xviii.




tendency within business organizations, with increased bureaucratization, ossifica-tion, and reduced resiliency to competitionoften accompanying increased size.10 Nordo the expected benefits of economies of

scale for larger firms overcome the tenden-cies for the decline of earnings and rates ofreturn on investments, as well as the main-tenance of market shares following merg-ers.11 The current political mantra, “too

10Gabriel Kolko, The Triumph of Conservatism (Glen-

coe, Ill.: The Free Press, 1963).

11See, e.g., Arthur Dewing, Corporate Promotions

and Reorganizations (Cambridge, Mass.: Harvard

University Press, 1930), pp. 546–547; Kolko, ibid.,pp. 37, 46; Temporary National Economic Commit-

tee, Competition and Monopoly in American Industry,

Monograph no. 21 (Washington, D.C.: Govern-

ment Printing Office, 1940), p. 311; Milt Gillespie

and Aileen Lee, “Building Hospital Market Power

Through Horizontal Integration—Is It Working?”, inThe McKinsey Quarterly 1996, no. 4: 205–11; Si-

mon Brady and Caren Chester-Marsh, “The Madness

of Mergers,” Euromoney, September 1991: 66–81;



Butler Shaff er 45

big to fail,” is a product of the dysfunc-tional nature of size when an organizationfaces energized competition to which itmust adapt if it is to survive.

Walter Adams has provided a goodoverview of the impact of government reg-ulation in fostering increased size.

In this era of big government, concen-tration is often the result of unwise,

manmade, discriminatory, privilege-creating governmental action. Defensecontracts, R and D support, patent pol-icy, tax privileges, stockpiling arrange-ments, tariffs and quotas, subsidies,etc., have far from a neutral effect on

our industrial structure. In all theseinstitutional arrangements, governmentplays a crucial, if not decisive, role.12

Rudi Vander Vennet, “The Effect of Mergers and

Acquisitions on the Efficiency and Profitability of EC

Credit Institutions,” Journal of Banking and Finance

20, no. 9 (November, 1996): 1531–1558.

12 Walter Adams, “The Military-Industrial Complex




A common response of business firmsto their own reduction of competitive resil-iency occasioned by increased organiza-tional size has been to call upon the state tocreate and enforce standardized business

practices and products, as well as to restrictentry into industries and professions.13 The

and the New Industrial State,” American Economic

Review 65 (May 1968), reprinted in Superconcen-

tration/Supercorporation, ed. Ralph Andreano (An-

dover, Mass.: Warner Modular Publications, 1973),

R337–2.

13See, e.g., Kolko, Triumph of Conservatism; Ga-

briel Kolko, Railroads and Regulation, 1877–1916

(Princeton: Princeton University Press, 1965); James

Weinstein, The Corporate Ideal in the Liberal State,1900–1918 (Boston: Beacon Press, 1968); Ron

Radosh and Murray Rothbard, eds., A New His-

tory of Leviathan (New York: E.P. Dutton, 1972);

James Gilbert, Designing the Industrial State (Chi-

cago: Quadrangle Books, 1972); Robert Wiebe,

The Search for Order, 1877–1920 (New York: Hilland Wang, 1967); and my book, In Restraint of

Trade: The Business Campaign Against Competition,

1918–1938 (Auburn, Ala.: Mises Institute, 2008),



Butler Shaff er 47

state’s creation of patent and copyrightinterests doesn’t, by itself, prevent innova-tion by others, but it does erect hurdles thatoften discourage research (e.g., the fear ofdefending a patent infringement suit, the

possibility that the Patent Office mightreject a subsequent application in the sameproduct line as the previously patented cre-ation, or the concern that one firm’s pat-ent for preliminary research results might

inhibit another firm from pursuing subse-quent research). The “traditional enemiesof innovation,” one observer has stated, are“inertia and vested interest,”14 factors con-tributed to by the government practice of

providing some inventors protection fromcompetitors.

When the coercive powers of the stateare invoked to benefit some and to restrain

originally published: Lewisburg, Penn.: Bucknell

University Press, 1997).

14Cheney, Tesla: Man Out of Time, p. 241.




others, the creative processes will alwayssuffer and, as a consequence, so will the vibrancy of a civilization. The tendency ofsuch behavior is to restrain the liberty ofindividuals to act within parameters suit-

able to established interests. To so con-strain creativity would be akin to forcingpainters to confine their work to within theboundaries of paint-by-the-numbers kits.Creative behavior depends upon synthe-

sis and cross-fertilization, processes facili-tated by what Arthur Koestler referredto as “creative anarchy.”15 The sciencephilosopher, Paul Feyerabend, was evenmore forceful in his insistence upon unfet-tered liberty in fostering understanding.He noted that “[s]cience is an essentiallyanarchistic enterprise,” and that “theoreti-cal anarchism is more humanitarian andmore likely to encourage progress than itslaw-and-order alternatives.” He went on

15 Arthur Koestler, The Act of Creation (London: Ar-

kana, 1989), p. 229.



Butler Shaff er 49

“there is only one principle that can bedefended under all circumstances andin all stages of human development. It isthe principle: anything goes.”16 He thenadded that the “[p]roliferation of theories

is beneficial for science, while uniformityimpairs its critical power. Uniformity alsoendangers the free development of theindividual.”17

As experimentation with and theresulting production of genetically uni-form crops continues, intelligent minds would do well to recall such lessons fromhistory as provided by the Irish potatofamine, the destruction of Ceylonese cof-

fee plantations, and more recent dam-age to American corn and grape crops.Plants that were faithful copies of theirown genetic organization (i.e., clones)

16Paul Feyerabend, Against Method (London: Verso,

rev. ed., 1988), p. 9; emphasis in original.

17Ibid., pp. 19, 24; emphasis in original.




might have enjoyed short-term benefits,but lacked a sufficient diversity to allowthem to respond effectively to blights, dis-eases, and other conditions to which they were unaccustomed. Perhaps a million or

more deaths in Ireland have been directlyor indirectly attributed to the potato crop’sgenetic lack of resiliency.

The threats to human survival implicitin the structured uniformity of systemsupon which life depends are enhancedby the uncertainties inherent in complex-ity. The study of chaos informs us thatcomplex systems are subject to too many variable, interconnected factors to permit

predictions of outcomes. As Koestler andFeyerabend have reminded us, creativityis a process that depends upon individu-als being free to experiment, and to findconnections between or among the numer-

ous—and often unseen—factors thatmake up our complex world. No morethan can spontaneity be commanded, can



Butler Shaff er 51

the creative process be constrained byboundaries and barriers that protect thecreative outcomes of others.

The adverse consequences of fostering

uniformity and standardization go beyondthe short-term disadvantages experiencedby creative individuals. Such practices arethe outgrowth of thinking that values thestabilizing of systems that have proven pro-

ductive in the past. Herein are found theorigins of institutionalized organizations, with the state using its coercive powers tostabilize the positions of established inter-ests, whether by regulating and restricting

the forces of change, or by the use of vari-ous subsidies. In an effort to foster equi-librium, uniformity and standardizationhave become politically-generated values. A shift in thinking occurs, wherein the

emphasis on innovation, creativity, andthe constant need for resiliency, gives wayto the protection of past accomplishments,




a process abetted by lawsuits grounded inpatent and copyright infringements.

As we assess the nature of IP, and

of its tendencies to inhibit—rather than

foster—creativity, we should pay atten-tion to historians who have written of

how structured thinking and behavior

contribute to the decline of civilizations.

Arnold Toynbee identified how “differ-

entiation and diversity” associated witha creative culture becomes increasingly

influenced by “a tendency toward stan-

dardization and uniformity” during its

decline.18 Carroll Quigley has written

that when the “instruments of expansion”(i.e., systems that foster invention, saving,

and investment) become institutionalized

and structured, they lose their capaci-

ties for adaptation that would otherwise

18 Arnold J. Toynbee, A Study of History (New York:

Oxford University Press, 1958), p. 555.



Butler Shaff er 53

foster creative growth.19

In the words of Will and Ariel Durant, whether a givencivilization continues to expand or disin-tegrate will depend upon “the presence orabsence of initiative and of creative indi-

viduals with clarity of mind and energyof will ... capable of effective responsesto new situations.”20 Jacob Burckhardt’sobservation that “the essence of history ischange”21 warns of the dangers of placing

fences around creative men and women.

The pragmatic arguments offeredherein are intended to reinforce my caseagainst IP. The essence of my views is

found in the title of this article, upon

19Carroll Quigley, The Evolution of Civilizations (In-

dianapolis, Ind.: Liberty Press, 1979), pp. 101ff.

20 Will and Ariel Durant, The Lessons of History

(New York: Simon & Schuster, 1968), p. 91.

21 Jacob Burckhardt, Force and Freedom: Reflections

on History, James H. Nichols, ed. (New York: Pan-

theon Books, 1964), p. 103.




which I rest my case. Can one, consistent with a libertarian philosophy, respect any“property” interest that is both created and enforced by the state, a system definedby its monopoly on the use of violence?

I regard the proposition as indefensibleas would be the question of a libertariandefense of war.



55

INDEX

Adams, Walter, 45

“Anything goes” prin-

ciple, 49

Autonomy, the need

for, 11

Bentham, Jeremy, 19

Boundaries of Order

(Shaffer, Butler), 11,

17, 19

Burckhardt, Jacob, 53

Cave paintings, ancient,

36

Change vs. rigidity, 52 f.

Change, prevention of,

51

Chaos and complexity,50

Civilization, effect ofcreativity on progressof, 53

Common Law, copy-rights in, 23

Common pool of knowl-

edge, 32Competitive resiliency,

effect of firm size on,46

Contracts as individual-made law, 21

Copyright notices, unen-forceability of, 22Copyright

art created without, 27as IP, 17

Creation, joy of, 32Creative anarchy, 48

Creative behavior,requirements for, 48




Creative process, depen-dence of on IP, 28 f.Cross-fertilization, de-

pendence of creativityon, 29 f.

Durant, Will and Ariel,

53

Early inventors, compen-sation due to, 37

Economic vs. politicalmeans, 21

Economies of scale, 44Edison, Thomas, 31

Feyerabend, Paul, 16,48, 50

Food production, role ofGMO patents in, 40

Force and violence of theState, results of, 10

Fulton, Robert, 35

Genetic diversity, ben-efits of, 50

GMO patents, 41Government research,

positive externalitiesfrom, 26

Governmentcoercive and lootingnature of, 28

definition of, 20

Hero of Alexandria, 35Hitler Test, the, 7–10

Imitation, role of in fa-mous art, 38 f.

Industrial concentrationcreated by governmentregulation, 45

as created by cost ofpatent protection, 42

effects of, 43Intellectual property

as legal privilege, 36created by the State,

22interests, origins of, 14

without the State, 22constitutional authority

for, 24costs associated with,

42–52

discouraging effect onresearch of, 47

historical origins of, 14legitimacy of, 13 ff.



Butler Shaff er 57

privately enforced, 22questions raised by, 17

as informal processes

vs. formally enacted

rules, 18

International Olympic

Committee (IOC),

28, 39

“Olympics” © by the

IOC, 28, 39

Inventions made before

IP, 34 f.

Irish potato famine, 49

Kant, Immanuel, 12

Knowledge and ideas as

exclusive property, 30

Koestler, Arthur, 16,

48, 50Kohr, Leopold, 43

Language

spontaneous nature

of, 33

invention of, 32 ff.

Monopolies as creatures

of the state, 25

Monopolistic rewards,anticipation of by art-ists, 15

Monsanto Corporation,41GMO patents of, 39

Oppenheimer, Franz, 20Organizations

as “artificial persons,”23

as property owners, 22Ownership, essence of,

25

Past accomplishments,protection of, 51

Patent office, 31, 47Patents and copyrights

as essential to thecreative process, 27

value of to authors, 26 value of to society, 26inhibiting effects of, 29

Patents as IP, 17Peaceful social coop-

eration, property rightsrequired for, 11

Political collectivism,inhumane nature of, 12




Power based thinking,13Private property as a

system of social order,12

Propertyas a creature of the

law, 19defense of, debated

by anarchists andminarchists, 20

interests created by theState, 19

interests or rights,grounding of, 18 f.principles, confusion

about, 18rights, setting appropri-

ate boundaries for, 11Public domain, 32

Publication, role of, incopyright, 24

Pyramidal model of theUniverse, 13

Quigley, Carroll, 52

Sanction of the victim, 23

Seeds, physical and IPrights in, 41

Social misery, theory

of, 43

Southwestern Law

School, 7

State, the, as a tool of violence, 23

Synthesis, dependence

of creativity on, 29 f.

Tesla, Nikola, 31f.

“Too big to fail,” roleof, 44 f.

Toynbee, Arnold, 52

Trademarks as IP, 17

Uniformity and stan-

dardization value of, 51

dangers of, 49, 51

Western culture

content of 27 f.

non-dependence on IPof, 27 f.





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Documents

Libertarian Critique of Intellectual Property