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py boston university law review forthcoming texas a m university school of law legal studies research paper no 19 42 25 posted 20 aug 2019 glynn lunney copyright s excess tedxtamu copyright the new mercantilism grok summary of lunney on ip summary of the two attached papers by glynn s lunney jr 1 trademark monopolies emory law journal 1999 this is a major scholarly critique of the expansion of u s trademark law in the second half of the 20th century lunney traces trademark doctrine from its early 18th mid 20th century roots where courts and commentators including edward chamberlin s theory of monopolistic competition treated trademarks as a form of monopoly that required careful limits to avoid harming competition early trademark protection was justified primarily on deception based grounds preventing consumer confusion about the source of goods so that buyers could match their preferences to products accurately this served an efficiency function better information quality incentives while still allowing workable or fair competition lunney argues that since the mid 1950s especially after the lanham act trademark law has undergone a profound shift toward property based protection courts and commentators increasingly treat the trademark itself as a valuable asset product worth protecting independent of any source identifying function this has produced expansion of protectable subject matter e g more trade dress slogans colors product shapes broader scope of rights dilution anti confusion rules reaching possible rather than probable confusion protection against non competing uses the result lunney contends is the creation of trademark monopolies in the pejorative sense market power and deadweight loss without the offsetting consumer information benefits of traditional deception based trademarks he rejects the common analogy to patent copyright which at least purport to incentivize new creation noting that trademark doctrine does not tie protection to any proven need for extra incentives and risks locking up product differentiation in ways that harm competition the paper calls for restoring the competitive balance by limiting protection to cases of material deception 2 a natural right to copy texas a m law scholarship ssrn 2019 this essay is a direct philosophical and normative attack on natural rights justifications for copyright and by extension ip more broadly lunney begins with the observation that copying imitation is the foundation of civilization language culture technology and knowledge transmission all depend on it without the ability to copy humans could not learn share discoveries or build cumulatively standing on the shoulders of giants creativity is valuable but secondary copying is the sine qua non of progress he critiques wendy gordon s influential 1993 article that used john locke s labor desert theory to argue for a natural right to exclude others from copying original expressive works lunney argues gordon conceded too much by equating copying with theft copying is not theft it does not deprive the owner of the original it is a natural human faculty and the default rule in any sensible baseline locke s framework properly read supports a natural right to copy not a natural right to monopolize copies copyright is purely positive statutory law an artificial narrow exception to the general freedom to copy and should be construed narrowly lunney emphasizes that self interest reputation and market forces already provide substantial incentives for creation even without broad copyright expansive protection mainly serves concentrated industry interests at the expense of consumers and cumulative culture how anti ip is lunney compared to stephan kinsella kinsella is one of the most radical and consistent abolitionists of all ip patents copyrights and trademarks he argues ip is unjust government granted monopoly privilege that violates natural rights in tangible property and free speech impedes innovation and should be abolished entirely in favor of private ordering alternatives contracts trade secrets etc his site c4sif celebrates scholars who are thumbs down on ip and explicitly frames copyright as the new mercantilism lunney is strongly anti ip in practice and is explicitly cited approvingly by kinsella in both of the consulted posts kinsella s legal scholars thumbs down on patent and copyright lists lunney alongside abolitionists and radical skeptics kinsella tom bell etc kinsella s copyright the new mercantilism post highlights lunney s critique that modern copyright expansions rest on mercantilist job protection rationales rather than genuine incentive arguments and that even a very limited copyright roughly the scope of the 1790 copyright act 14 years against commercial mechanical duplication may be justified but broader protection is unjustified and harmful key differences in degree of opposition lunney is a reformist skeptic he accepts that some very minimal narrowly tailored ip especially traditional deception based trademark and perhaps a short limited copyright could be defensible on efficiency incentive grounds in theory his work focuses on showing that current expansive doctrines have overshot that point and created unjustified monopolies he works within the existing legal framework to constrain and roll back overreach kinsella is a principled abolitionist he rejects the entire ip category as illegitimate on both deontological natural rights and consequentialist grounds and calls for its outright elimination not mere narrowing in short lunney is one of the more prominent academic critics of expansive ip and is squarely in the anti ip camp as kinsella defines it he supplies powerful scholarly ammunition against modern copyright and trademark expansion but he stops short of kinsella s full abolitionist position leaving open the possibility of a stripped down incentive justified core kinsella is farther out on the spectrum total elimination of state ip monopolies lunney is anti ip enough to be praised by kinsella but more moderate reform oriented in his ultimate prescriptions a natural right to copy glynn s lunney jr trademark monopolies emory l j 48 1999 367 487 abstract since 1742 when lord hardwicke seemingly equated trademark protection with monopoly in one of the first trademark cases until the mid 1950s concerns that trademarks represented a form of illegitimate monopoly effectively constrained the growth of trademark protection in the twentieth century edward chamberlin became the leading proponent of the trademark as monopoly view with the publication of his work the theory of monopolistic competition in 1933 in his work chamberlin argued that a trademark enabled its owner to differentiate her products and then to exclude others from using the differentiating feature by doing so trademark protection can effectively cede control over distinct product markets to individual producers and thereby generate for trademark owners the downward sloping demand curve of a monopolist with its associated monopoly rents and deadweight losses although chamberlin himself recognized the need for product differentiation and rejected the supposed ideal of the perfect competition model his work became a common rallying point for the trademark as monopoly argument during the legislative debates leading to the trademark act of 1946 his work served as a basis for the justice department s opposition to broad trademark protection glynn s lunney jr a natural right to copy boston university law review forthcoming texas a m university school of law legal studies research paper no 19 42 25 posted 20 aug 2019 abstract in this symposium we gather to celebrate the work of wendy gordon in this essay i revisit her article a property right in self expression equality and individualism in the natural law of intellectual property in the article professor gordon first used the no harm principle of john locke to justify copyright as natural right and then used his enough and as good proviso to limit that right her second step turned natural rights approaches to copyright on its head through it she showed that even if we accept copyright as natural right that acceptance does not necessarily lead to a copyright of undue breadth or perpetual duration rather even a natural rights framework leads to a copyright regime shorter and narrower than we presently have while i agree that copyright should be shorter and narrower i worry that professor gordon conceded too much in her first step neither locke s reasoning nor professor gordon s reading of it can justify a right to prohibit copying as a matter of natural law it is not the right to prohibit copying to which we have a natural entitlement it is the right to copy share this share email a link to a friend opens in new window email share on facebook opens in new window facebook share on x opens in new window x print opens in new window print share on pinterest opens in new window pinterest share on tumblr opens in new window tumblr share on reddit opens in new window reddit 0 comments togni the multiple homesteading theory and the metaphysics of ideas and information by stephan kinsella on may 12 2026 andrea togni the multiple homesteading theory and the metaphysics of ideas and information journal of libertarian studies 30 no 1 2026 64 86 abstract this article explores the intersections between privacy property rights ideas and information the multiple homesteading theory mht posits that property rights have universal applicability encompassing the physical digital and mental domains property in ideas and information pii exists only as long as privacy is fully maintained once shared ideas and information trigger automatic homesteading processes in any individual who comes into contact with them these individuals then form new and original ideas which remain their exclusive property as long as privacy is preserved any libertarian addressing pii must investigate the ontological nature of ideas and information which cannot be defined in purely physicalistic terms this article carries out this preparatory work through examinations of heterogeneous philosophical and scientific theories literature and classical music in addition a meme theory of ideas is outlined ultimately recognizing the existence of pii does not legitimize positivistic intellectual property ip legislation which is incompatible with libertarian principles instead the mht demonstrates that privacy bridges coherent libertarian theory and effective libertarian action especially in a world dominated by the pervasive intersection of the physical and digital domains share this share email a link to a friend opens in new window email share on facebook opens in new window facebook share on x opens in new window x print opens in new window print share on pinterest opens in new window pinterest share on tumblr opens in new window tumblr share on reddit opens in new window reddit 0 comments federalist society when should we recognize something as a property right by stephan kinsella on may 5 2026 related ip is not not property it is impossible to own ideas another way to explain the problem with ip resources v knowledge ownership v possession libertarian and lockean creationism creation as a source of wealth not property rights hayek s fund of experience the distinction between scarce means and knowledge as guides to action intellectual property rights as negative servitudes the problem with intellectual property more defenses of ip by the federalist society anti ip material needed in the ip section of the federalist society s conservative libertarian legal scholarship annotated bibliography federalist society panel undermining or preserving property rights the new administrative patents independent institute on the benefits of intellectual property protection austrian economics center and hayek institute support ip socialism and 2026 world ip day coalition attempts to get on mainstream ip podcast and aipla quarterly journal predictably fail kol235 intellectual property a first principles debate federalist society policybrief other federalist society mentions i have no doubt in my mind they will royally screw this up when should we recognize something as a property right may 8 2026 friday 12 00 p m edt webinar sponsors intellectual property practice group continue reading share this share email a link to a friend opens in new window email share on facebook opens in new window facebook share on x opens in new window x print opens in new window print share on pinterest opens in new window pinterest share on tumblr opens in new window tumblr share on reddit opens in new window reddit 0 comments exit now ip the property that isn t by stephan kinsella on may 3 2026 in comments i suggested ip is not not property intellectual property rights as negative servitudes conversation with an author about copyright and publishing in a free society ip the property that isn t february 15 2026 from exit7 or exit now continue reading share this share email a link to a friend opens in new window email share on facebook opens in new window facebook share on x opens in new window x print opens in new window print share on pinterest opens in new window pinterest share on tumblr opens in new window tumblr share on reddit opens in new window reddit 0 comments previous posts the center for the study of innovative freedom c4sif is dedicated to building public awareness of the manner in which so called intellectual property ip laws and policies impede innovation creativity communication learning knowledge emulation and information sharing we are for property rights free markets competition commerce cooperation and the voluntary sharing of knowledge and oppose ip laws which systematically impede or hamper innovation ip law should be completely and immediately abolished we provide news commentary and analysis and scholarly resources from our unique pro 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