This article takes much broader aim than merely at the patent system (which I leave for others to argue) - it takes aim at the entire system of affording special protections for intellectual property generally. The authors nowhere attempt any form of coherent articulation of this broader position and merely take swipes at the protections they oppose, but I think this broader position either undermines their credibility or indicates a serious sloppiness on their part.

In essence, the authors assert that there is a major difference between having society (and its laws) protect tangible forms of property, on the one hand, and intangible forms, on the other. Thus, we understand how our home should belong to us exclusively, for instance, but it is somehow different when the issue comes, for example, to copyright protections.

I realize that I am perhaps flying right into the teeth of some firmly-held opinions at this site in delving into this, but I will do so anyway.

Statements stating or implying that protection of tangible forms of property are fundamentally legally distinguishable from protection of intangible forms are based in ignorance.

Legally, in a system of private property, the law recognizes "bundles of rights" that attach to all forms of property. We can own property, we can possess it, we can alienate (sell or transfer) it, we can bequeath it, we can improve or modify it, and on and on. These legal attributes that attach to property are there for the owner's protection and for society's betterment.

Is it outrageous that the law allows a property owner to deal with this bundle of rights largely as he sees fit? Not at all. In fact, this is how we can truly enjoy our forms of property to the fullest extent. I may own my property but I can take one specific attribute among the bundle of rights that define my ownership, e.g., my right to exclusive possession, and I can transfer that right while still retaining overall ownership. This is how the law recognizes and enforces a lease. Would our society be better off in abolishing all leases just because some landlords become slumlords and exploit their tenants? Of course not. That would be absurd. That sort of remedy, while perhaps having superficial appeal as a means of eliminating abuses, clearly would defeat the many valuable things that a society derives from allowing leases to be recognized and enforced.

Why should this bundle of rights be any different for intangible property rights (so-called intellectual property)? Authors in the eighteenth century, even if they had obtained copyright protection in their own countries, would often suffer scandalous losses as their works were ripped off and reprinted without any form of compensation given to them. Is it wrong that, today, such rights are protected? Silicon Valley over the past several decades has thrived and grown as the fruits of the labor of countless individuals were given legal protection in the form of copyright, trade secret, and, yes, even patent. Do we now want to take all creative efforts and allow those who poured their blood and sweat into devising new and improved algorithms, designs, inventions, etc. to be stripped of all protections as, for example, happens to their works in countries where intellectual property is not protected (e.g., mainland China)?

How many startup businesses depend on licensing the products of their creative efforts to others? Abolish IP protections and suddenly there is nothing left to license (a license being the counterpart of the lease discussed above, representing a subdivision of a bundle of rights belonging to the owner of the intangible property involved). Even software as a service could be ripped off with impunity. Any employee of the organization offering the software-based service could walk away with any code he wanted and freely use it for a competing site. Without IP protection being recognized by society or its laws, there would be nothing to stop this. If everything that is intangible is simply held in common, the fruits of any individual's creative efforts would not be protected and there would no longer be any special economic rewards associated with doing a creative work. Of course, one could argue that society "benefits" from having a more widely available use of those works but who will be motivated to pour blood and sweat into creating them? And who will want to put risk capital into a company whose charter is to develop such creative works when such investors will bear 100% of the loss if the venture fails while they will get no special reward (or at least a much diminished reward than they would have gotten if their company had legally protectible rights to its IP) if it succeeds? Of course, very few if any persons would want to put their money into a "heads I win, tails you lose" situation.

Thus, the claim of these authors that protection of IP should be abrogated is worse than wrong - in a system of private property, anyway, it is absurd.

Any such abolition would undercut the basic foundation upon which the vast majority of startups (and much of enterprise generally) are based.

Again, I leave the patent discussion to others, but any such discussion needs to be based on a carefully considered analysis and not on a facile and superficial strewing about of random points that strike an author's fancy. Just for starters, when I hear "abolish patents," I wonder how this would be any more beneficial to society than, for example, abolishing leases - is it a good answer in dealing with existing abuses to throw out an entire system that may and very likely does serve many good purposes in society? I am skeptical (at the same time, I acknowledge and do not defend the current abuses in this system, which are numerous - at a minimum, the system clearly needs fixing).