From Mises Blog a year ago:

Kinsella v. Schulman on Logorights and IP

December 26, 2009 by Stephan Kinsella

I previously posted “On J. Neil Schulman’s Logorights“; Schulman and I recently had an interesting exchange in the comments section of the cross-post on my blog. The original post and the exchange are appended below.On GMO patent infestation, Kent Hastings comments on my IP views and those of J. Neil Schulman. Schulman responded:

My article “Informational Property: Logorights” begins by specifically disclaiming any state grants of monopoly. The concept stands or falls on its natural-property-rights arguments. Neither Samuel Edward Konkin III or Stephan Kinsella or anyone else has ever successfully answered the challenge I raised in my article, that without the identity of a thing being real enough to make it claimable as property, there would be nothing identifiable existing to be copied in the first place.

This is not arcane. It’s just being pointedly ignored — and Kinsella’s attempts to change the subject don’t make me forget what I wrote.

My response is as follows:

Neil, I said your term “logorights” is somewhat arcane, not your theory, and there was no disrespect implied.

I think you are just wrong to assume that “having an identity” is a sufficient condition for being subject to property rights.

Consider: one has no property right the value of one’s property, as Hoppe and Rothbard have argued (see Sheldon Richman on Intellectual Property versus Liberty); and likewise, one has no property right in the “identity” of one’s property.

The reason is that owning value, patterns, identify gives you an ownership right in others’ already-owned property. Saying you own the “identity” of a thing you own is another way of saying you own the pattern by which it is arranged-which is a disguised way of saying you have ownership rights in things everyone else owns. The standard Lockean account of property accepted by most libertarians says that the person who appropriates a previously unowned scarce resource becomes its owner. The IP advocate, of which you are one, says that if A thinks of a unique way to use his property or a unique pattern to impose on his own property, this act of intellectual innovation magically gives him partial ownership rights in property already owned by others. It lets you tell B how he can use his own property, even though B is the appropriator and by Lockean principles only B should be the owner. Granting A an IP right just means some of B’s rights of control are transferred to A-it’s a transfer of wealth or property, and it’s incompatible with libertarian property rights.

The mistake Rand made was thinking “anything you create” is property, without first asking if the thing created is the type of thing that is subject to property in the first place. In fact, creation is neither necessary nor sufficient since if you create some new pattern using others’ property you are not its owner; and if you impose a new pattern on property you own, then you own the transformed thing since you already owned the stuff of which it’s made. A focus on creation as a source of ownership is the mistake made here. Creation is a source of wealth, sure, but not of ownership, since you can only create using things you already own.

Tibor Machan makes a similar mistake to your “identify” view when he assumes that many “ontological” types of things can be property-the mistake is in assuming that the way we conceptually and terminologically understand the world has some metaphysical basis that translates into property rights. By this view any concept we come up with to “identify” things that is successful, has magically created a new class of property. I find the concept “poem” useful-it is conceptually valid.. poems “have” “identity”-voila, they must be property!

I don’t agree with this way of making rights depend on what concepts we have or how we identify and understand things in the world. Just because we can call something by a word, or call it a “thing,” does not mean it is ownable. In fact, all ownership rights are enforced in physical terms against scarce resources; which means that granting rights in anything else has to undermine and dilute real rights in real things.

For a further explanation of what is wrong with Schulman’s “logorights” theory and why it is contrary to libertarian property rights, see text at notes 48-49 et pass. to my Against Intellectual Property; see also the following posts, which point out various errors in the Randian “creationist” approach to IP (and apply more or less to Schulman’s logorights idea too):

Articles:

• “Intellectual Property and Libertarianism” (in particular see here and the section on Libertarian Creationism);
• also “The Case Against IP: A Concise Guide“;
• for an alternative to the Randian approach to rights and politics, see What Libertarianism Is.

Media:

• I discuss problems with Rand’s view at length on the Peter Mac show
• and at the Mises University this year;
• also The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism.

Blog posts:

• An Objectivist Recants on IP
• Elaborations on Randian IP
• Rand on IP, Owning “Values”, and “Rearrangement Rights”;
• Libertarian Creationism;
• Objectivists: “All Property is Intellectual Property”
• Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean Homesteading;
• Renaming Intellectual Property;
• Perkins on Pursuing Insufficiently Abundant Intangible “Values”
• Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors;
• Inventors are Like Unto …GODS….
• Also these blog posts: Intellectual Products and the Right to Private Property;
• New Working Paper: Machan on IP;
• Owning Thoughts and Labor [Rothbard and Hoppe on 1988 Panel], Mises Blog (Dec. 11, 2006);
• Objectivists on IP.

***

SCHULMAN’S REPLY:

Stephan,

Once again your reply to my Logorights argument is merely to assert that it’s false without actually refuting any of the proofs I make. All you do is say “Well Locke said this” and “Tibor Machan said that.” I don’t care. I say outright that I’m offering a new theory of property rights — and not once — not ever — have you ever dealt with it other than to say, “Well, that’s not what [insert name here] wrote!”

1) You fail to answer my challenge that material identity IS property, and that without material identity the concept of property is meaningless.

Answer this challenge from my article:

” You go into a Waldenbooks and plunk down cash for a book that says on the cover “ATLAS SHRUGGED by Ayn Rand.” You get it home … and the first sentence is, “It was the best of times, it was the worst of times.”

Now, what you bought is a book and this book has got everything that makes a book a book: a binding, hundreds of sheets of paper with printed ink impressions on it, and a cover. Let’s even pretend that the book you took home has the same number of pages, the same dimensions and weight, the same binding and style of printing as the book with the composition called ATLAS SHRUGGED. Do you have any just cause of complaint if the composition of words inside the book turns out to be something other than what the cover says? If you answer no, then you got everything you paid for. But if you answer yes, then you are saying that the composition of words makes this book a different commodity from the book you thought you were buying, and therefore you are rightfully entitled to a copy of the composition of words labelled ATLAS SHRUGGED.”

Does the difference in composition of words make an otherwise identical physical object a different thing — yes or no?

Did the buyer who expected to get a copy of Atlas Shrugged and who got a copy of A Tale of Two Cities get what they paid for — yes or no?

If the answer is yes to either of these questions, then you have conceded that the composition of words — the logos — is the sole differentia between two physical objects — and therefore the logos is what makes it a different THING.

If the logos makes these two otherwise identical objects different things then that which makes them different things is what gives them their value — and the property rights case for the logos is made.

Answer that. Answer that!!!!!!!!!

NSK RESPONSE:

Neil:

Once again your reply to my Logorights argument is merely to assert that it’s false without actually refuting any of the proofs I make. All you do is say “Well Locke said this” and “Tibor Machan said that.” I don’t care. I say outright that I’m offering a new theory of property rights — and not once — not ever — have you ever dealt with it other than to say, “Well, that’s not what [insert name here] wrote!”

I think all your theories are the same: if you “create” “value,” you have a “right” to it. This is just confused and groundless.

1) You fail to answer my challenge that material identity IS property, and that without material identity the concept of property is meaningless.

I think you are playing tricks with the Randian concept of “identity.” Saying that “the value” of a CD (say) is “in” its “logos” and therefore that it is the same as a copy of the CD proves nothing. It doesn’t prove that your discovery of a way of using or impatterning your property gives you all of a sudden a magical right to control how others use their property.

“You go into a Waldenbooks and plunk down cash for a book that says on the cover “ATLAS SHRUGGED by Ayn Rand.” You get it home … and the first sentence is, “It was the best of times, it was the worst of times.”

Now, what you bought is a book and this book has got everything that makes a book a book: a binding, hundreds of sheets of paper with printed ink impressions on it, and a cover. Let’s even pretend that the book you took home has the same number of pages, the same dimensions and weight, the same binding and style of printing as the book with the composition called ATLAS SHRUGGED. Do you have any just cause of complaint if the composition of words inside the book turns out to be something other than what the cover says? If you answer no, then you got everything you paid for. But if you answer yes, then you are saying that the composition of words makes this book a different commodity from the book you thought you were buying, and therefore you are rightfully entitled to a copy of the composition of words labelled ATLAS SHRUGGED.”

Sure it’s “different.” Being “different” does not give you property rights in the difference. And sure, you didn’t get what you paid for: you transferred title to the money on condition you received a certain book. You didn’t get what you bargained for. IP of course has nothing to do with contract. So this is all irrelevant.

Does the difference in composition of words make an otherwise identical physical object a different thing — yes or no?

Neil, of course–even if you have two “identical” copies of Atlas they are still “different things.”

Did the buyer who expected to get a copy of Atlas Shrugged and who got a copy of A Tale of Two Cities get what they paid for — yes or no?

Of course not.

If the answer is yes to either of these questions, then you have conceded that the composition of words — the logos — is the sole differentia between two physical objects — and therefore the logos is what makes it a different THING.

First, I think you got your examples confused–I think you meant if I answer yes to the first or no to the second. In any event, you wrong: the two objects are “different things” even if they have the same look, pattern etc.

If the logos makes these two otherwise identical objects different things then that which makes them different things is what gives them their value — and the property rights case for the logos is made.

What “gives them their value”? They don’t “have” value. Value is not objective, or intrinsic, or some substance. Rather, people demonstrate that they value things in their actions. I assume you agree with this.

You seem to think it is extracting some huge concession of me to get me to admit that the reason a typical consumer values a book (say) is because of what pattern it has. I readily agree to this. I value a box of paperclips more than a hunk of metal of the same weight because of the way the metal is shaped in the case of the paperclips. So what? I value a new condom more than a ripped one because of its “logos,” its material configuration. So what?

Same with a set of paints and a blank canvas. If I use my talent to apply the paint to the canvas–rearranging the logos of the paint-canvas matter into a new one–to result in a beautiful painting, I have made it more valuable–in that I can sell it for a higher price. Sure. Why? Because the buyer would prefer it to the blank canvas. Who has ever denied that transforming–rearranging–the patterns of your work makes it more valuable–to you, or to others? But this does not mean you have property right in the logos, in the pattern. That doesn’t follow.

Even Rand acknowledged most of this: as she once wrote:

The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power–and it is the only meaning of the concept “creative.” “Creation” does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation” means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before.

Of course, there cannot be property rights in value since this would have to mean property rights in arrangements or patterns, which would then give the owner of the arrangement rights in other people’s already-owned property. If Rand had kept her focus on the fact that rearranging already-existing property can indeed make that property more valuable, she would have realized that creation (rearrangement) is not an independent source of property rights: if you rearrange your own property, even if this makes it more valuable, you already owned the property that you have rearranged (made more valuable). Yet this does not give you rights in other people’s property. You can re-word the Randian view as follows: if you make your property more valuable, it gives you additional property rights–the right to prevent other people from making their own property more valuable. And this makes it all the more obviously flawed.

This is where the Misesian approach to subjectivist value makes sense: things have value to a valuer; values do not exist independently as free-floating things that can themselves be owned. And again, Rand should have recognized this; e.g., she once wrote, “Material objects as such have neither value nor disvalue; they acquire value-significance only in regard to a living being–particularly, in regard to serving or hindering man’s goals.” (For more on the compatibility between Objectivism and Austrian economics, see Mises and Rand (and Rothbard); Randian Hoppe(?), Austrian Rand(?).) So she should have realized that if rearranging owned property makes the owner or potential buyers value the object more, it does not mean there is any additional thing created for which we need to find an owner.

Answer that. Answer that!!!!!!!!!

I think I have. It gains you nothing. The fact remains that by giving people rights in “logos”–in patterns–you give them a right to control the already owned property of other people. It lets the re-homestead already-homesteaded property. This is transfer of wealth. It’s theft.

SCHULMAN:

The real-world difference between two otherwise identical books — one with the composed text of Atlas Shrugged and one with the composed text of A Tale of Two Cities — is the composition of words. These are objective differentia that can be discovered by either human readers or even machine intelligence. The compositions, as information, have different mathematical values that can be calculated.

You jump around between objective and subjective — between cognitive and normative — in an attempt to hide the difference.

It is a true statement that there are minute differences in every single object that exists. But the word “duplicate” is a meaningful term in that the essential utility of a book is to be read (yes, I know books can be used by interior decorators and also be used to hold up a broken table leg or as a paper weight) but the essential quality of a book — why human beings go to the trouble of manufacturing them — is that they are convenient means of recording and transporting the printed words, symbols, and art work on the pages.

Atlas Shrugged is identified as a distinct commodity by its words, whether they exist printed in a hardcover book, or a paperback book, or read aloud as a recording, or as bits of data stored or transmitted digitally. The entity that is Atlas Shrugged is an information object — a real-world thing — separate, distinguishable by man or machine, and valued apart from the multiplicity of physical forms on which it may be recorded or performed.

The usefulness — utility — which human beings have for this objectively and observably distinct information object — this thing — is based on the presence, intactness, completeness, and availability — of that objectively and observably distinctinformation object.

The subjective value which any human being will or will not assign to this objectively and observably distinct information object will be based on the objectively and observably distinct identity.

A human being will take action with respect to acquiring, using, keeping, or discarding that objectively and observably distinct information object because no matter how many different objects, forms, or transformations it goes through IT’S IDENTITY IS THE SAME AND THEREFORE IT IS THE SAME THING.

That which makes it a distinct thing — that which gives it distinct utility — that which makes it distinctly an object of desire by a human being’s subjective perceptions and choice — is its material identity.

That which makes it a thing makes it ownable.

He who creates it is its first owner.

Those who respect property rights must respect that if a thing can be identified as unique and different –and can be recognized as a thing created by someone — that its creator owns it.

The rest of my logorights argument uses commonly accepted theories of ownership and history of property rights transactions in the real world — to show how ownership rights in material identity can be claimed, recognized, traded, and protected — just like all other naturally occurring property rights — without the existence of the State.

At this point, Stephan Kinsella, I am writing only to your readers. I do not consider that you have any actual interest in understanding what I am writing and I think you are being what the Catholics refer to as invincibly ignorant on this topic.

Neil

NSK:

Neil,

The real-world difference between two otherwise identical books — one with the composed text of Atlas Shrugged and one with the composed text of A Tale of Two Cities — is the composition of words. These are objective differentia that can be discovered by either human readers or even machine intelligence. The compositions, as information, have different mathematical values that can be calculated.

They are not otherwise “identical”–they are two distinct books. A and B. Just as two “otherwise identical” gold coins are not the same coin. But sure, they have a similar configuration. I fail to see how this is relevant for property rights. If I see your log cabin and build an “identical one” I have stolen nothing from you. We each own our own log cabins–no matter how identical they appear or are shaped.

It is a true statement that there are minute differences in every single object that exists. But the word “duplicate” is a meaningful term in that the essential utility of a book is to be read

? I know this. I never denied this. You seem to think this is wresting some huge admission from me, as if it automatically leads to IP. It does not. So what if two objects can be described as similar or duplicates? They are still distinct things. And anyway, if having-a-duplicate somehow violated the rights of the owner-of-the-original, then …. this would cover only copyright, not patent, and it would cover only literal copying, not the bundle of copyright such as derivative works. And it would be hyper-copyright–it would never expire; and original creation would not be a defense (as it is in copyright law). And how would it cover patents? Take a method patent. There are now no similar objects. Just similar actions, say actions of one’s body. If A moves his body in such-and-such-way, now he “owns” this pattern-of-moving, and can use force to stop B from moving his own body in that way (and remember, patents are not about copying at all–A can stop B even if B comes up with this sequence of steps indendently).

Yes yes, I know you’ll say you don’t support modern patent and copyright law. You only support logorights, which is even more extreme. And though you won’t endorse patent and copyright law, you’ll condemn those who want to abolish it.

the essential quality of a book — why human beings go to the trouble of manufacturing them — is that they are convenient means of recording and transporting the printed words, symbols, and art work on the pages.

Of course.

Atlas Shrugged is identified as a distinct commodity by its words, whether they exist printed in a hardcover book, or a paperback book, or read aloud as a recording, or as bits of data stored or transmitted digitally. The entity that is Atlas Shrugged is an information object — a real-world thing — separate, distinguishable by man or machine, and valued apart from the multiplicity of physical forms on which it may be recorded or performed.

Sure, you can conceptually identify the pattern of words that is Atlas Shrugged. (Not sure you can objectively identify works that violate the copyright sub-right to make “derivative works”, or objectively justify and define “fair use” exceptions, those sorts of things.) So what? I can identify also the method of using fire to cook food, using animal hide to make clothes, using logs to make a log cabin, using a chiseled rock as a knife, and so on. So? Just because we can conceptually identify patterns does not give you ownership of these patterns.

The usefulness — utility — which human beings have for this objectively and observably distinct information object — this thing — is based on the presence, intactness, completeness, and availability — of that objectively and observably distinctinformation object.

The subjective value which any human being will or will not assign to this objectively and observably distinct information object will be based on the objectively and observably distinct identity.

A human being will take action with respect to acquiring, using, keeping, or discarding that objectively and observably distinct information object because no matter how many different objects, forms, or transformations it goes through IT’S IDENTITY IS THE SAME AND THEREFORE IT IS THE SAME THING.

Sure, people value certain works of authorship because of the patterns. But your notion that objects A and B “are the same thing” is utterly bizarre. Putting it this way is really just a complicated way of begging the question. Consider: I invent the transistor. A month later you independently invent it. Soon you and I are both manufacturing and selling these cool transistors. They are both transistors. Sure. They both use the same idea that transistors are based on. The reason people value these things is because … they are transistors. But your truck of transistors and my truck of transistors, even though they are all transistors–even if they have identical looks and characteristics–are not “the same”. There’s that truckload, and this truckload, just like you have a gold eagle and I have a gold eagle. And sure, you can say the transistors are all “the same” in some relevant sense–fine. So what? It doesn’t give me the right to stop you from making your transistors.

That which makes it a distinct thing — that which gives it distinct utility — that which makes it distinctly an object of desire by a human being’s subjective perceptions and choice — is its material identity.

That which makes it a thing makes it ownable.

He who creates it is its first owner.

This is some wild metaphysical legerdemain here. So… I can use force against you to stop you from selling transistors… that you invented … because … “That which makes it a thing makes it ownable.” and “He who creates it is its first owner.” You can’t be serious. What kind of reasoning is this?

In the transistor example above, you own your own body and various material. It already has an owner. As its owner, you have the right to use it. I don’t gain some veto-right over your use of your own property merely by thinking of a way to use my own property.

You seem to think that if we can conceptually identify a “thing,” then “it” can have an “owner”. Only ownable things can have an owner. Ownership specifies who can use a given thing. The only purpose of such a rule is if the thing can only be used by one person at a time–if use by one person excludes use by another–if the thing is a scarce resource. The libertarian rule is that for such things, to avoid conflict the right to own is assigned to the homesteader–the first user, the one who appropriates it out of the state of nature. Your rule would underming the Lockean homesteading rule by allowing “ownership” of any “thing” that you can conceptually give “identity” to… but of course, though you grant all these conceptual entities existential status, though you say they are just as real, just as ownable as material things, you of course want to enforce rights in these ephemeral ontological ownable things in the real, physical world. If I “steal” your “ideal object” or “informational object” by … using my own property in certain ways, then you want to use physical, real force (not merely “informational force”) against my real, tangible body or my real, tangible property (say, my money) to stop me or penalize me. When the rubber hits the road, IP advocates always turn to the real world of scarce things and real force to enforce their rights to the “informational objects” floating around up there in the Platonic realms.

Those who respect property rights must respect that if a thing can be identified as unique and different -and can be recognized as a thing created by someone — that its creator owns it.

Your mistake is in assuming that any “thing” can be owned. There are an infinite number of “things” out there–the human mind can conceptually understand the world in any number of ways. My love for my poodle “exists”. The fact-that-the-earth-rotated-today exists. My ability-to-jog exists. Poems exist. Crime exists. There “are” facts. I “have” memories. Perfume scents “exist.” Physics equations and mathematical algorithms “exist.” The method of long division is a “thing”. It is obviously ludicrous to assert that just because I can define or name or conceptualize a “thing” that it does, or even can, have an owner. We do not even get to the question of “who owns that thing?” unless the thing is an ownable thing. Not all things are ownable things. What is ownable? Only scarce resources. Information is not a scarce resource. You and I can both use the transistor-idea at the same time.

SCHULMAN:

I have already asked and answered every point you raise once again. You fail to address my challenges and attack straw men.

I leave it to your readers to read my article “Informational Property: Logorights” — and all you can muster against it — then decide for themselves.

I’m done exhausting myself re-answering the same refuted points endlessly.