Property Title Records and Insurance in a Free Society

by Stephan Kinsella on December 5, 2010

Land Registry: Land Certificate, from A Short History of Land Registration in England and Wales

Opponents of intellectual property often point out that modern patent and copyright are purely legislated, artificial schemes. For anarcho-libertarians and libertarians opposed to legislation as a means of forming law, this is yet another stake in the heart of IP. (See my post The Mountain of IP Legislation, and my article “Legislation and Law in a Free Society.”)

So it’s not surprising that one retort of the IPers is to argue that patent- and copyright-like rights “could” evolve in common law courts. Even though they didn’t; even though the idea of statutorily enacted schemes arising from judicial decisions is more than implausible: it’s ridiculous. Some of them simply posit that there could be private “title” offices in a free society akin to real property title records in use today: you just go down and “register” your “idea”; later, when you sue an “infringer” of “your” idea in court, you can prove you “own” it by introducing evidence from the IP title records office. For example, in a recent Mises blog thread, someone suggested there might be some private invention title office (at November 30, 2010 at 1:08 pm; my reply, at November 30, 2010 at 11:21 pm). And the anarcho-libertarian Tannehills, in their classic The Market for Liberty, argue (pp. 58-59):

Ideas in the form of inventions could also be claimed by registering all details of the invention in a privately owned “data bank.” Of course, the more specific an inventor was about the details of his invention, the thought processes he followed while working on it, and the ideas on which he built, the more firmly established his claim would be and the less would be the likelihood of someone else squeezing him out with a fake claim based on stolen data. The inventor, having registered his invention to establish his ownership of the idea(s), could then buy insurance (from either the data bank firm or an independent insurance company) against the theft and unauthorized commercial use of his invention by any other person. The insurance company would guarantee to stop the unauthorized commercial use of the invention and to fully compensate the inventor for any losses so incurred. Such insurance policies could be bought to cover varying periods of time, with the longer-term policies more expensive than the shorter-term ones. Policies covering an indefinitely long time-period (“from now on”) probably wouldn’t be economically feasible, but there might well be clauses allowing the inventor to re-insure his idea at the end of the life of his policy.

One problem with the Tannehills’ reasoning was the question-begging assumption that it’s “theft” to use an idea if it’s “unauthorized”; this presupposes there is property in information.

The idea of private IP arising on the market, and idea-title registry offices, is utterly confused and implausible.

Under current law, ownership of real (immovable) property is proved by records kept by government offices. Of course, in a private society this function would be handled by private agencies. But not surprisingly, the state coopts this function in order to know who the owner is and what the “market value” is so as to enable it to extract taxes. (For more on how the state coopts key institutions to gain increasing power over its subjects, see Hans-Hermann Hoppe’s Banking, Nation States and International Politics: A Sociological Reconstruction of the Present Economic Order, pp. 62-66; also in EEPP.) For example, a main purpose of the Domesday Book, an English land survey in 1086, “was to determine who held what and what taxes” were owed. And as noted in the fascinating study by Mayer & Pemberton, A Short History of Land Registration in England and Wales:

The Romans introduced a form of land registration to England and Wales [, to form] the basis of a land tax called tributum soli.

Similarly the Anglo-Saxons had a land tax (Danegeld), which would have required details of land ownership. The culmination of this system was the Domesday Book (1086)—an unique and almost complete survey of landowners, at least at manorial level, it is the crowning achievement of the administrative system of Anglo-Saxon England.

… According to the Anglo-Saxon Chronicle, William the Conqueror “by his foresight … surveyed so carefully that there was not a hide of land in England of which he did not know who held it and how much it was worth”.

The Domesday Book was just about the last land register in this country for taxation purposes.¹

So, yes, there would be private land title records services in a free market, just like there would be private roads, even though today’s state has arrogated to itself the monopoly right to provide these services. For movable property (personalty), other evidentiary and procedural rules would develop as to how to prove ownership–such as the maxim “possession is nine-tenths of the law“.

So, in a private order society we would have claims to scarce resources such as land proved by records filed with private record-keeping agencies. When someone buys property they hire experts (lawyers, title companies) to examine the records to verify that the putative owner has good title; and they would probably purchase title insurance to compensate them if some defect in title showed up. The point is: for every scarce resource that matters, that is valuable to actors and potentially contestable, owners would have an interest in having a way to prove their ownership in the event of such a contest. For every such resource, whether movable or immovable, there would be a way to determine the owner. And in a libertarian society, that rule would be based on the idea of Lockean homesteading and contractual title transfer. (See my What Libertarianism Is.) This means that the person who is the first (or earlier) owner, or someone who can trace their title to such a person, “wins” in a contest over a “latecomer.”

So just try to imagine an “idea registry” office. As many have observed, the IP owner really wants control over others’ scarce resource. He wants to use his IP claim to persuade state courts to use physical force against his competitors, say, to coerce them into not using their own resources (bodies, factories, etc.) in certain ways. It comes down to a claim of ownership of those resources. To file an IP claim you have to claim partial ownership over everyone else’s property. The problem is these things are already owned. So these filings would be rejected as bogus; the claimant is just an illegitimate latecomer.

[Update: on this last point, see also my book Legal Foundations of a Free Society (2023), chapter 15, “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward,” Part IV.B; and Intellectual Property Rights as Negative Servitudes.]

[Mises post; TLS]

Mises comments (archived):

{ 68 comments… read them below or add one }

Silas Barta December 5, 2010 at 2:19 am

From early on, you had already lost me:

One problem with the Tannehills’ reasoning was the question-begging assumption that it’s “theft” to use an idea if it’s “unauthorized”; this presupposes there is property in information.

What does that have to do with anything? You’re changing topics here. You started out intending to show that “true” free markets could produce mechanisms for identifying and resolving physical property ownership, but not supposed IP ownership, so this proves IP must be inconsistent with the free market.

If that’s what your claim is, it simply doesn’t matter if the Tannehills pre-suppose that such-and-such is theft, because the point under dispute is whether mechanisms for clarifying and enforcing property rights in ideas could exist (on a free market), not whether “IP infringement” is “really” theft or not. Therefore, there is no question-begging for them to make this classification in their exposition — it has no bearing on what mechanisms could or could not exist, any more than someone’s belief that “sodomy is theft” has any bearing on the argument about whether a free market could (in effect) have legal restrictions on sodomy.

See, this is why it’s so hard to engage you on this issue: at every turn, you confuse one kind of argument with another. You might e.g. claim that *obviously* IP is anti-free-market, because “real” free markets couldn’t maintain it. Then, when someone tries to identify a mechanism by which this could happen, you change topics to whether “IP” “really is” “theft”, essentially showing a kind of pre-commitment to a particular conclusion.

And I’m sure if someone actually tried to break down what it means to claim that “IP is theft”, and what kind of evidence would resolve such a disagreement, you would further switch to other talking points, or turn the debate into a dictionary hunt.

Let’s see if your post gets any better after that goof…

Gil December 5, 2010 at 3:34 am: Of course if “I.P. is theft” then it doesn’t matter whether I.P. could exist in the private market. A person could probably hire the sevices of an assassin in a “government world” but that wouldn’t make it right.

REPLY
Stephan Kinsella December 5, 2010 at 8:51 am: What does that have to do with anything? You’re changing topics here. You started out intending to show that “true” free markets could produce mechanisms for identifying and resolving physical property ownership, but not supposed IP ownership, so this proves IP must be inconsistent with the free market.

Silas, the fact that the Tannehills, who were anarchists, anti-legislation, and good so early on on so much, could contort themselves trying to imagine how IP could be protected without legislation and state granted monopolies, is quite interesting and worth noting. That’s why I mentioned and noted it. They were obviously doing what Rand did: Rand assumed the US system was RIGHT and thus she tried hard to find ways to justified it and make it fit her nascent system. Thus, for example, at first she thought eminent domain was justified–it’s in the Constitution! (Of course, so was slavery; so is income tax….) And with IP you can see something similar: she tries to defend the first-to-file patent system because she is under the misimpression that this is the US system. She was actually wrong–we have a first-to-invent system. I’m sure that if Rand had known that, she would have come up with an argument as to why that system is better.

The Tannehills were heavily influenced by Rand and were apparently taking for granted the validity of her view that there should be property rights in ideas. Now, they were trying to show how rights could be protected in a stateless, legislation-free world, and with IP they had a dilemma, since this is impossible. So they dash off a few wild ideas about this private data bank. It’s absurd. Now the reason I mentioned that they are question-begging is to show that they have no basis for assuming IP is property; they have no reason to engage in this problem-solving exercise in the first place. It would be like trying to show how welfare rights, social security, Americans with Disabilities Act, PATRIOT Act, and similar schemes “could arise” in a private libertarian legal system; the exercise is doomed to failure, but it’s unnecessary anyway–we don’t have any reason to think socialism would flourish under a property regime nor would we want it to.

So, notice the Tannehills write:

… theft and unauthorized commercial use of his invention by any other person. The insurance company would guarantee to stop the unauthorized commercial use of the invention

They are here presupposing that it is, or can be, theft, to use someone’s invention; they are assuming the inventor ought to have a right to authorize, or not authorize, someone’s use of “his invention.” This is the IP assumption. This is question-begging, since it assumes IP is property. It is sad and ironic that the Tannehills, such monumental figures in libertarian history, such opponents of the state and legislation, would be bamboozled by the state’s propagandistic packaging of monopoly privileges as “property” (on this, see below) and statutes such as the Statute of MONOPOLIES 1623 and state/church censorship.

But, Rand’s influence was strong in libertarian circles. I think the Tannehills took much of their libertarian framework from her, and then tried to show how most of it could work better in a private, stateless system. They failed with patent and copyright–and their argument is strained and really weak–because, as I discovered about 17 years ago, it can’t be done.

Basically, as I indicated, they are assuming IP is a type of property. BUt it’s not. The word is there, but the thing is not.

“Those who started using the word property in connection with inventions had a very definite purpose in mind: they wanted to substitute a word with a respectable connotation, ‘property’, for a word that had an unpleasant ring, ‘privilege’.”

–F. Machlup and E. Penrose: “The Patent Controversy in the Nineteenth Century.” J. Econ. Hist. 10 (1950), p.1, 16

REPLY

Silas Barta December 5, 2010 at 2:29 am

Okay, it gets a little more clumsy as you continue:

So, yes, there would be private land title records services in a free market, just like there would be private roads, even though today’s state has arrogated to itself the monopoly right to provide these services.

Er, wait, you just finished going over how every historical keeper of land titles was a government agency, and follow it with, So *therefore* there would be private land records. Did anyone catch that? Stephan_Kinsella is saying,

1) Of *course* IP couldn’t exist on a free market — no free market has *ever* maintained such a title system.

2) Of *course* physical property rights in land could exist on a free market — and the fact that the state has always done it is no evidence otherwise.

Then you follow up with the normal talking point about how, because you don’t see a relevant sense in which ideas are scarce, and think every society would adhere (in contravention of near-universal moral intuitions) to that kind of standard for all rights assignments, then it must be inherently ridiculous for a free market society to have IP rights. Predictably, you completely ignore how you support them doing *exactly* this in the case of EM spectrum rights. By “owning” 101 kHz, I’m telling every person what they can do with THEIR OWN transmitter, and what kind of EM wave oscillations people can have in the air on THEIR OWN land, which MUST be some kind of absurdity. (???)

Edit: for some reason, these comments disappeared for a few minutes, even after reloading, then re-appeared. What gives?

Peter Surda December 5, 2010 at 7:24 am

By “owning” 101 kHz, I’m telling every person what they can do with THEIR OWN transmitter, and what kind of EM wave oscillations people can have in the air on THEIR OWN land, which MUST be some kind of absurdity. (???)

I refuted this several times already. But apparently my “waves” do not interfere with your brain, because you still repeat the same errors.

According to my conclusions (which, although not necessarily the correct ones, but still a part of a consistent theory), “EM rights” do not tell you what to do with your transmitter, but what you may not do with other people’s receivers. Just like owning a body does not tell you what other people may do with their guns and bullets, but what they may not do with your body. Calling it “EM rights” is just a metaphor. It really is merely a way of interpreting ownership of receivers.

IP proponents seem heavily entrenched in metaphors. Interestingly, they realise that to achieve their idea of justice, metaphors need to be abandoned. If they were consistent, “theft” of immaterial goods should be compensated by the reverse “taking back
of immaterial goods rather than of material ones.

Silas Barta December 5, 2010 at 8:29 am

According to my conclusions (which, although not necessarily the correct ones, but still a part of a consistent theory), “EM rights” do not tell you what to do with your transmitter, but what you may not do with other people’s receivers. Just like owning a body does not tell you what other people may do with their guns and bullets, but what they may not do with your body.

So the landowner doesn’t own the air above his land, then? Otherwise, the comparison doesn’t work. If it’s wrong to shoot my body because my body’s already owned, then it should be wrong to transmit EM waves through my air because *that* is already owned.

Peter Surda December 5, 2010 at 8:56 am

So the landowner doesn’t own the air above his land, then?

What does this have to do with problem and why should it be even true? Ownership works in 3D, not 2D, so the whole concept makes no sense. See Block’s papers on private land ownership for more info.

Otherwise, the comparison doesn’t work.

Why?

If it’s wrong to shoot my body because my body’s already owned, then it should be wrong to transmit EM waves through my air because *that* is already owned.

Once again, the problem is not the act of transmitting. The problem arises when the electromagnetic waves interfere with (= modify) property other people own. The amount of change EM waves cause on air they travel through is generally considered below the threshold of property rights (of course, that depends on the exact features of the waves). A person complaining about this to the court might have a hard time persuading others about the significance of the phenomenon, also taking into the account that naturally produced EM radiation travels through his air all the time anyway.

So I don’t actually see any point in your claims. Especially since it seems to refute the claim that EM waves can be homesteaded separately from the ownership of transmitters and receivers. You can’t have it both ways. Either there are property rights in transmitters and receivers, or in EM waves. Using metaphors does not fix the problem of contradiction.

Silas Barta December 5, 2010 at 9:16 am

What does this have to do with problem

Because if you’re saying someone has the right to transmit radio waves, which will pass through the 3D volume I own, then it seems you’re already agreeing with the validity of such “reassigning” of already-owned property.

Once again, the problem is not the act of transmitting. The problem arises when the electromagnetic waves interfere with (= modify) property other people own. The amount of change EM waves cause on air they travel through is generally considered below the threshold of property rights

So why is sleeping in someone’s cornfield “that they’re not using anyway” not “generally considered below the threshold of property rights”? And why should my claim to transmit at a frequency be superior to anyone else’s claim to transmit at that frequency?

Artisan December 5, 2010 at 9:55 am: that one is obvious: the guy sleeping is potentially preventing the owner from the use of his field at any time. Meanwhile, air waves are never preventing the use of any land property at anytime, not even potentially.
Peter Surda December 5, 2010 at 9:55 am: Silas,

merely because EM waves pass through a volume of space does not mean that the alteration they cause in it is considered relevant from the point of view of property rights. The word “use” is too vague and is causing confusion. Colloquially, “use” sometimes refers to phenomena which do not involve significant modification.

Jay Lakner eloquently showed that the threshold is a necessary component of the theory, because otherwise no actions whatsoever would be permitted.

So why is sleeping in someone’s cornfield “that they’re not using anyway” not “generally considered below the threshold of property rights”?

That’s a result of a historical development. People consider the alteration significant.

And why should my claim to transmit at a frequency be superior to anyone else’s claim to transmit at that frequency?

Again, you reinterpret a phenomenon in a different way. This does not invalidate that there is a conflict occurring at the receiver.

Stephan Kinsella December 5, 2010 at 9:21 am

Peter, I see you commented on Why Airwaves (Electromagnetic Spectra) Are (Arguably) Property, but I haven’t revisited it. Could you summarize your thoughts on the EM issue? It seems to me that the EM spectrum is arguably a scarce resource, and it’s used by a person transmitting signals thru it. The transmission of signals does not invade others’ property because it doesn’t interfere with their use of it. And I don’t think a person using a receiver to “listen” to the signals is violating the transmitter’s rights either. If there are rights in the EM spectrum all this means is that one person gets to transmit. If others start transmitting an interfering signal they are using that resource without the owner’s permission. What do you think of that?

Peter Surda December 5, 2010 at 10:05 am: Stephan,

it was actually Silas that pointed out the problem with this approach, but he got stuck at an early stage and is unable to follow it to the logical conclusion. Basically, what you are doing is reinterpreting the conflict happening at the receiver as a conflict of transmission, just like the IP view is interpreting a conflict happening at the ink and paper as a conflict of copyright. The word “interference” in your argument is derivative of the actual physical phenomenon (just like in the case of IP). From a physical point of view, the initial point of the problem is the receiver, not the transmitter.

What we see is that the rights developed in a way different from the physical phenomena. Maybe this is because it is easier to handle them this way, or because government interfered before the market could establish a system. I don’t know. But what I do know is that introducing “EM rights” as such can only come at the cost of the appropriate diminishing of the physical rights on receivers and transmitters.
Stephan Kinsella December 5, 2010 at 7:41 pm: Peter,
“what you are doing is reinterpreting the conflict happening at the receiver as a conflict of transmission, just like the IP view is interpreting a conflict happening at the ink and paper as a conflict of copyright”

Why at the receiver? You lost me. Seems to me the conflict is over the EM spectrum, and happens with conflicting transmissions not receptions. Can you elaborate what you are thinking here?

Jake the Snake December 5, 2010 at 3:34 pm

You do not own the air above your land. Only scarce resources, i.e., economic goods, can be owned. The air above your land is not a scarce good and therefore cannot be owned by any single individual.

J.E.C. December 6, 2010 at 10:28 am: The air is actually a scarce good. The Earth’s atmosphere has a mass of around 5.3 x 10^18 kilograms. If you want 5.4 x 10^18 kilograms of air, you are going to have to look elsewhere. It’s just that historical uses of air have been so small, relative to the abundance of air, that historically no one has felt a need to assert a property right in air (as opposed to ‘airspace’).

Abundance != lack of scarcity.

REPLY
Robert December 6, 2010 at 10:43 am: If the air over you and around you is not composed of the appropriate mixture of molecules, your land is useless and your person may be harmed.Has anybody thought about an optimal approach, from the libertarian perspective, to the various problems posed by atmospheric pollution, including inhalational injuries, UV radiation, and greenhouse gas emissions?I’ve been disappointed to find many libertarians and conservatives reluctant to engage with this issues and suggest approaches more consonant with their values than the UN-based process we have now.

REPLY

nate-m December 5, 2010 at 8:04 am

No. What he said is that the historically the governments took over the land titles in order to impose taxation. That is to say that they imposed government rule over a existing order for the sake of collecting state income. If what your saying was true then prior to the imposition of land title registration by the government there was no such thing as land ownership, which is obviously incorrect. Property ownership of land necessarily started with the beginning of agriculture and the settling of previously nomadic peoples.

Of course ownership of property in general existed long before that as is demonstrated by the evidence of trade going on with almost all nomadic primitive people. A barter system cannot exist without property.

1) Of *course* IP couldn’t exist on a free market — no free market has *ever* maintained such a title system.

So then your saying that IP can only exist in a “unfree” market? At least this way we can agree to get rid of the idea that IP is pro-capitalist.

Regardless, however, forms of titles did exist. They just did not generally rely on a central office to store documentation and coordinates. Instead they tended to use landmarks and ‘common knowledge’ for delimitation.

Edit: for some reason, these comments disappeared for a few minutes, even after reloading, then re-appeared. What gives?

Either browser cache or there is a load balancing reverse proxy that failed to update quickly once you made a edit.

Silas Barta December 5, 2010 at 8:33 am

@nate-m:

Property ownership of land necessarily started with the beginning of agriculture and the settling of previously nomadic peoples. … Regardless, however, forms of titles did exist. They just did not generally rely on a central office to store documentation and coordinates. Instead they tended to use landmarks and ‘common knowledge’ for delimitation.

Apples to apples, please. If you want to appeal to the informal, de facto property rights in physical goods as pre-dating the state, then you should compare to the informal, de facto property rights in ideas.

nate-m December 5, 2010 at 9:25 am: Apples to apples, please. If you want to appeal to the informal, de facto property rights in physical goods as pre-dating the state, then you should compare to the informal, de facto property rights in ideas.

Which are what exactly?

There is no informal, de facto property rights in ideas other then what you keep secret to yourself. Hell there is no government fiat property rights in ideas either. There are government-enforced rights to monopolies which allow you to sue people’s use for the use of their own private property. And then there are copyrights which prevent people from making copies of some types of media; but none of that actually allows you to own any idea. And to both of those are relatively modern inventions.

REPLY

Stephan Kinsella December 5, 2010 at 8:30 am

Silas, as Mayer and Pemberton remark:

The need to prove ownership of land has always been of great importance—”Cursed be he that removeth his neighbour’s landmard” says the book of Deuteronomy in the Old Testament (ch 27 v17), written some 3,000 years ago. It has also been suggested that the long barrows of the Neolithic era in this country are there to “prove” ancestral ownership of the land.

You don’t have to have a title records office to have property in scarce resources recognized. In fact we do not have this even today for most movables. Usually the borders of such things are easy enough to recognize publicly; and the owner can be proved by various maxims, rules, defaults, assumptions, and evidentiary and procedural rules. And as the comment above indicates, for land it’s not necessary either–the homesteader or owner sets up landmarks or other embordering features that indicate to the world that (a) this is owned (it has an owner), and (b) this is owned (i.e., the extent of ownership claimed). Then the only other question is: who is the owner? This is usually easy to prove. Adding a system of land records is not necessary and may even be bad, since it allows the state to easily find and tax landowners. But absent a state, one could see a need for this and it’s quite easy to imagine this function arising on the market (it might have been a private institution in times past; I am not sure). We already have title companies who provide title insurance; they could serve or fund this function. There are already lots of private registration and recording functions and services on the market. (Some are silly, based on statist and SilasBarta type IP assumptions, like the woman claiming ownership of the sun.)

A typical conveyance of title to land might be done by formalities and symbols:

Originally in English law the only way to transfer freehold land was by livery of seisin, that is the public transfer of the land by the vendor to the purchaser, this usually involved handing over a piece of turf in the presence of witnesses.

But it is also easy to imagine written contracts being used for this purpose too. In this case the document serves as evidence of title. Much as you might keep the title to your car and other important documents in a safe, the owner of a tract of land would keep his deed to produce in case of a later contest. And to keep it safer, he might entrust it with his lawyer, or in a safe deposit box. Or, he might pay a small fee to “record” it in some private record keeping office, which, if it has a good reputation, would tend to be relied on as a reliable source of documentation by courts tasked with determining ownership in the event of a dispute. But, as I said, such a system is not necessary. To suggest, however, that it could not arise on a free market is as preposterous as the suggestion that there cannot be private courts or roads.

Silas Barta December 5, 2010 at 8:36 am

You don’t have to have a title records office to have property in scarce resources recognized. In fact we do not have this even today for most movables.

Ding ding ding! Yes, Stephan_Kinsella, you’re absolutely right: informal norms can generate de facto private property rights in physical goods. Yet that’s not possible for IP rights because … “you say so”? People don’t have the same moral intuitions for IP rights as they do for respecting others physical property because … you say so?

To suggest, however, that it could not arise on a free market is as preposterous as the suggestion that there cannot be private courts or roads.

Then maybe you shouldn’t have so suggested it in your post!

Stephan Kinsella December 5, 2010 at 8:55 am

“Yes, Stephan_Kinsella, you’re absolutely right: informal norms can generate de facto private property rights in physical goods. Yet that’s not possible for IP rights because … “you say so”? ”

For a host of reasons. The primary one being that recognizing such rights invades established property rights, just as recognizing a right to education or to welfare would. Then there’s the fact that information is non-scarce and cannot be conflicted over. Then there’s Surda’s many points about the impossibility of pinning down the “borders” of ideas since they have no borders. The entire notion is silly. There is a reason the practice arose in state mercantilism and protectionism and censorship and statutes. There is a reason the entire IP system is undergirded by a massive international legislation edifice. It’s artificial to the core.

Silas Barta December 5, 2010 at 9:12 am

The primary one being that recognizing such rights invades established property rights, just as recognizing a right to education or to welfare would.

Or the exclusive right to broadcast at a specific frequency would interfere with established property rights in the content of my transmitter. Or the right to fly 30,000 feet over someone’s farm would invade the farmer’s established property right in that land up to infinite height, which was indeed established as such in recent history.

Then there’s the fact that information is non-scarce and cannot be conflicted over.

Wow, so all those conflicts over information didn’t happen? Or you mean, using that information doesn’t interfere with one arbitrarily-defined narrow use on the part of someone else? If I want to sleep in your cherry orchard, you claim the right to kick me out, even though I’m not interfering with “your usage” of it. Why is that non-conflict really a conflict, while an author’s claim to exclude others from copying his works “not really a conflict”? the whole point is confused.

The entire notion is silly.

Yep, all the people creating new ideas on the basis of the returns made possible by IP, and those who understood sufficiently well what IP rights require of them, over hundreds of years, were just being silly, I guess.

Peter Surda December 5, 2010 at 9:45 am: Or the exclusive right to broadcast at a specific frequency would interfere with established property rights in the content of my transmitter.

No Silas, not the transmitter, the receiver. You are confused by metaphors again.
Matthew Swaringen December 5, 2010 at 3:20 pm: “Yep, all the people creating new ideas on the basis of the returns made possible by IP, and those who understood sufficiently well what IP rights require of them, over hundreds of years, were just being silly, I guess.”

This statement asserts that people did know, but in fact I would say that the average person had almost no knowledge of IP rights and what they “required of them.”

This should be apparent as recently as the popularity of the internet, when multiple sharing services spawned and many children, etc. were sued due to the fact they download songs or movies or what-not. Many of them had no idea that this was considered to be wrong. There is no innate knowledge of intellectual property rights like there is physical property, which arises the instant there is any conflict over a physical item.

Even as children we can see that taking things from others is bad because the deprivation of the item is obvious. We don’t see anything of that sort amongst children saying to one another that one child should not repeat what another has said. Even the idea of such things as plagiarism would typically develop later only after exposure to the concept.

If you look historically into the prior “hundreds of years” you’ll find a lot of plagiarism, and at the time some people did have a problem with it but many others simply didn’t care. You’ll find plenty of plagiarism in the modern era as well.

Certainly there people who believe that these are horrible crimes, and I am myself no fan of plagiarism as it is fraudulent. I see it as lying rather than as theft, though in many cases plagiarism is unintentional, and people simply didn’t cite or remember whom to cite.

Anthony December 7, 2010 at 10:27 pm

“even though” is not remotely the same as “therefore”…

Also, if you succeed in demonstrating that rights to bandwidth are equivalent to IP you will only de-legitimize bandwidth ownership, and not be one bit closer to validating IP.

Peter Surda December 5, 2010 at 6:57 am

The realisation that enforcing IP means theft of physical property is probably the most important reason why the theories that support IP are flawed, or outright fraudulent. Too bad the most vocal IP proponents here fail to connect the dots.

Silas Barta December 5, 2010 at 8:39 am

The realisation that enforcing IP means theft of physical property

And the inability to see the circularity in this argument is probably the most important reason this argument fails.

Peter Surda December 5, 2010 at 9:12 am: Silas,

you still don’t get it apparently. I am not trying to “prove” a normative scale. The two normative scales (physical property and IP) are assumptions, they are not “truth”. When I have my positive hat on (which I try most of the time), I am completely indifferent to the validity of the assumptions. What I am trying to explain instead, is that these assumptions are contradictory. You admitted it yourself in the past, but are still apparently oblivious to the conclusion that that invalidates your whole theory. You admit the contradiction, but you do not want it to be true, so you pretend it isn’t. It’s cognitive dissonance. I can’t fix that for you.

Let me rephrase my argument, maybe then you’ll get it. If you were claiming that you accept IP but reject physical property, I would stop bugging you with this. I would have other questions but let’s leave that for later. Are you prepared to do that or are you going to continue to claim that contradictions exist?

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Artisan December 5, 2010 at 10:36 am

Yes, so by just stating that duplication (let’s assume it’s not fraudulent) of your work is not tolerable, you must deny individual free will at some point, to start with. Only if you assume that imitation is not akin to free will, you can prevent copying.

Because of it, I started to become skeptical of copyright.

Silas Barta December 5, 2010 at 9:17 am

I am not trying to “prove” a normative scale. The two normative scales (physical property and IP) are assumptions, they are not “truth”. When I have my positive hat on (which I try most of the time), I am completely indifferent to the validity of the assumptions.

Can anyone make heads or tails of this stuff?

Peter Surda December 5, 2010 at 9:46 am: How about you say whether or not you reject the notion of physical property rights?

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jmorris84 December 5, 2010 at 1:25 pm: Yes. You’re simply lost. I think if you answer his question and allow him to walk you through this conversation, you’ll see where you are getting tripped up and that Peter is actually right.

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Anthony December 7, 2010 at 10:30 pm: It is quite simple, Silas.

He is saying that IP and property rights are MUTUALLY EXCLUSIVE and that you cannot support both, but must choose. This is what he has been saying for months, if you had chosen to listen.

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Bruce Koerber December 5, 2010 at 9:40 am

Ideas are not economic goods, defined as being scarce, that is unless there is the assumption that humans are not allowed to think. The State promulgates this absurdity.

Andras December 5, 2010 at 1:05 pm

There is a whole industry built on consulting. Please, tell them (before they destroy all the physical properties).

Bruce Koerber December 5, 2010 at 2:36 pm

Are you saying that a consultant in one part of the world cannot offer his advice because in another part of the world a consultant is offering similar advice? Of course not. Ideas are not scarce.

Andras December 5, 2010 at 4:25 pm

I am saying that the consultants are paid so their service, the ideas are economic goods. It also shows that good ideas are scarce.

Zorg December 5, 2010 at 5:38 pm

Consultants are paid for the service of consulting. They are selling their particular expertise, their ability to help the client with a specific task. They do not prevent others from consulting. They don’t claim to be the exclusive owners of their ideas. They themselves are scarce in the sense that it is not economical for everyone to know everything. It is just the division of labor. It has nothing to do with ideas as such. Anyone can study, experience, and acquire knowledge that can be used in consulting, but they don’t, just like not everyone studies medicine or auto mechanics or nuclear physics or financial planning.

Just imagine what absurdities would follow if we should have to ban everyone from consulting on every conceivable topic for a number of years except the gov’t approved monopolist.

No, it is precisely because ideas cannot be owned that a consultant can go into business in the first place, and that others can freely compete with him without question of property rights in those ideas.

Andras December 5, 2010 at 5:59 pm: Zorg: “It has nothing to do with ideas as such.”
Let it be clear. Do you claim that consulting has nothing to do with ideas?
J. Murray December 6, 2010 at 7:45 am: Yes, consulting has nothing to do with the ideas but the scarcity of the time required to gain sufficient understanding in the field. That’s what makes the consultant valuable, his experience, expertise, and understanding. The idea itself isn’t scarce or why consultants are hired. That information is freely available from numerous sources. Books, the Internet, etc. It’s the consultant’s ability to tailor that information to the specific situation of the client that’s valuable and scarce.

Take my field of cost accounting for instance. Anyone can go online and get the information on how cost accounting works. Anyone can get a high level understanding of the importance of cash flows, financing sources, and proper costing of production to determine pricing, make-or-buy, or whether it’s worth producing that product in the first place. But taking that broad information and applying it to a specific company is immensely difficult as it requires time and experience. No two companies function the same. That’s why I’m valuable, I have obtained the necessary skills to go into Company A and produce for them a functional cost accounting system that’s applicable to them and them alone. That system cannot be picked up and taken to Company B, even if they’re in the same industry, becuase they don’t operate the same. I don’t care if someone attempts to take my “ideas” elsewhere. I know they won’t work unless they function on the same or superior level than I do, in which case they could have created such a system from scratch and know full well taking what I just did elsewhere is a pointless exercise.

Information and ideas are cheap. Finding someone who knows what to do with that information or idea is what’s valuable.

Bruce Koerber December 5, 2010 at 6:37 pm

Scarcity Of Ideas Is Caused By Interventionism.

The scarcity of ideas is related to the system just like the absence of sound money is related to the system.

Freed from the propaganda of State-subsidized education and freedom from the baneful effects of the mercantilism of imperialism that hinders free trade subsequently leads to the unimpeded flow of knowledge via an unhampered market economy. Ideas – good ideas – would no longer be relatively scarce.

Stephan Kinsella December 5, 2010 at 7:47 pm

Andras, think about this. Here is your argument:

If someone pays money, they are paying for something. the something they are paying for is valuable. Therefore it is scarce. Therefore it is ownable.

In other words, you are arguing that if A pays for something X, that something X can be owned. That is no argument. When you pay for something that just means that you transfer title *in order to* accomplish some end E. That does NOT mean you or someone else necessarily owns the end. But that is what you are arguing.

Andras December 5, 2010 at 9:26 pm: Your whole argument is false. The fact you pay me does not mean that it is scarce or ownable. It only means that it is desirable to you.

iawai December 5, 2010 at 5:32 pm

The dissemination of ideas is indeed scarce – and as such is a scarce service. But the ideas themselves can be replicated ad infinitum, limited only on how they are disseminated. In the digital age we have met the problem of the marginal cost of dissemination becoming so low that it also has been rendered non-scarce for many types of things. This is the condition that has brought to the forefront the conflict between Intellectual Monopoly Privilege and Liberty.

Prior to this age it was easier to put a lid on information by increasing the costs of dissemination through State intervention. That system is quickly failing, and individuals are looking for new systems, through questioning the rightness of the system itself (like Kinsella), or by making the punishments more draconian and the investigations more invasive (like DRM or ACTA). There are people that have been accustomed to being protected by the State, and this protection is unraveling. Should it be ramped up or thrown out? That is the fundamental question we are debating, and the economical and libertarian solution is to throw it out.

Andras December 5, 2010 at 5:52 pm

Iawai,
Ideas are limited to the number of people’s brain which is still less than 10E7. There are more pebbles than brains. Does this mean that some pebbles called diamonds are worthless? Furthermore, you can multiply bad ideas as well as good ideas. Just imagine then the scarcity of a sequence of good ideas. Knowing the sequence itself is scarce.

iawai December 5, 2010 at 6:33 pm

Andreas –
Yes there are limited numbers of minds. But how many COPIES of my favorite song am I limited to possessing due to scarcity? Does my possession of one copy reduce the number I am allowed to have by one?

Andras December 5, 2010 at 9:20 pm: You have only one mind, hopefully, to enjoy all the unlimited copies.
Anthony December 7, 2010 at 10:35 pm: What is your point, Andras? Ideas aren’t limited to the number of brains, as one brain can have more than one idea…

Andras December 5, 2010 at 1:57 pm

Kinsella conveniently forgets that the state and land ownership overlapped in the precapitalistic era. There was no chance for private Land Title Offices. The sovereign wouldn’t have respected it. The same way as the huns and mongols did not respect theirs. It was right by might and still largely is. However, this did not prevent Kinsella to accept, rightly, land ownership. On the other hand, on the same basis though he questions IP.

Zorg December 5, 2010 at 6:14 pm

I think the argument is that recognition of property is as old as civilization whereas IP is solely an invention of the state. State intervention in property rights throughout history is a red herring.

The point is that people generally don’t believe that IP is property, else it would not require a state to establish it, and in such totally arbitrary ways like attaching a period of years to a so-called right which then vanishes into dust the second after the state-issued decree expires.

In a free market, you can protect your own property or you can hire someone to guard it. You can also insure it against loss because it is an actually scarce thing in your possession. How can you do that with IP when you don’t have the massive gov’t subsidy? Are you going to pay an insurance company to track down users of copied materials? They won’t even sell such “insurance” because you never lose your property yet the claims of “loss” would never stop! That material can be copied, as someone else just said here, ad infinitum. Real property cannot. So you will pay the tens or hundreds of thousands of dollars it will cost to prosecute people using copies “worth” only a few dollars each? Or you will pay the same high costs to prosecute someone else for thinking up the same or similar invention as you? How is any of that economical?

Well, it isn’t economical, and that’s why you won’t have it in a free society. You can do all sorts of things voluntarily to enhance your position in the market, but it is simply too costly to enforce a monopoly on “property” which is infinitely reproducible and which never deprives you of its use when it is “stolen.”

Stranger December 5, 2010 at 8:20 pm

“The point is that people generally don’t believe that IP is property, else it would not require a state to establish it, and in such totally arbitrary ways like attaching a period of years to a so-called right which then vanishes into dust the second after the state-issued decree expires.”

Producers of IP and their consumers certainly believe so, or they would not engage in trade with one another. It is only the parasites that reject it. (Even the pirates have their own internal system of IP to prevent “leeching”.)

Anthony December 7, 2010 at 10:38 pm: “Producers of IP and their consumers certainly believe so, or they would not engage in trade with one another.” – this is false.

If the government threatens to arrest me if I fail to pay people who have an illegitimate monopoly granted by said government, the fact that I pay does not mean that I “believe” in the monopoly.

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Stephan Kinsella December 5, 2010 at 7:42 pm

Andras, title in land does not need the state. But title in IP does need the state. If we abolish the state, I am very confident we would see all the state legislative schemes totally collapse, and private property flourish.

Stranger December 5, 2010 at 8:18 pm

There is no evidence that title in IP needs the state, fallacy #17.

DixieFlatline December 6, 2010 at 9:34 am

Oh Stranger, don’t you ever tire of being so horribly wrong on this topic?

Bala December 6, 2010 at 10:11 pm

I had posted a comment out there. I wonder why you moderated it out.

Stephan Kinsella December 7, 2010 at 11:04 am: ? me? i don’t think I did.

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Andras December 5, 2010 at 1:57 pm

By the way, here is a private IP-title office already functioning perfectly. The American Chemical Society is running the Chemical Abstract system. All publications, articles, books, patents, symposium materials etc are referenced. Every chemical entity is coded and archived. (Not warehoused in physical) The system works as fee for service. Since this is the only “absolute” system it is accepted by everyone in the scientific community, even the patent office, as authentic. And since everyone has to use it no-one can claim independent discovery!

jmorris84 December 5, 2010 at 3:12 pm

Andras, please explain the ACS’s stance against the open source movement and how this falls in line with free market principles. Thank you.

Andras December 5, 2010 at 4:40 pm: Although I can give you several explanation I don’t think I am entitled to speak for them.
On the other hand, I don’t see how that is relevant here. Although the Chemical Abstract system was not planned to work as a title system it practically already does. It is not about the owner’s philosophy but about showing an existing system, the possibility of which was in doubt in the article. How it would develop in the free!! market is anybody’s guess. However, its existence even under this rotten system speaks for itself.

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Stephan Kinsella December 5, 2010 at 7:43 pm

That does not establish IP claims. This is a bizarre example.

Andras December 5, 2010 at 9:05 pm: For you, I think, nothing establishes claim. Anyway, claim starts with title and continues with court but in a moral system that is hardly ever necessary.

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Chosen One December 6, 2010 at 9:05 am

I am (obviously) a latecomer to this discussion, but here are a few thoughts and objections (which I will not lay claim to) that I have on the matter.

1) From a very early age, I abhorred Copyright law; I always thought it a farce that the FBI warning at the beginning of every movie threatened fines and/or imprisonment for copying said video. At first I thought it just meant that I couldn’t reproduce it and sell it (I was o.k. with that); however, I later learned that I couldn’t copy it for personal use. To this, I ask why? If I bought, rented, etc. a legitimate copy, why couldn’t I reproduce the work. Why should I have to pay multiple times for a video just because technology changes (i.e. VCRs to DVDs to ?). I shouldn’t have to buy multiple copies in different formats!! It is interesting to note that I was thinking these thoughts around the age of 9 or 10; it is funny how the innocence of a child can see through the absurdity of this, but adults seem to not be able to comprehend it.

2) I have always abhorred the notion of plagerism because I have written successful, non-cited, papers using logic, only to find out later that, technically, I had plagerized. However, at the time of my writing, I had no idea that I was “copying” someone else’s ideas!! It is preposterous to think that any single person can own an idea. History is full of examples (one of the most famous being that of the invention of Calculus) that proves two non-connected people can have the same idea (even at the same time)- calculus is purported to have been developed by Newton and Leibniz (spelling?) concurrently but independently.

3) Technically, ideas are scarce (and good ideas even more scarce). There are only so many minds, even fewer good minds, and only 24 hours in a day, 168 in a week, and 8,000+ in a year. Furthermore, technically, ideas aren’t “free” as it requires scarce nutrients (sugars, minerals, etc.) to make the brain function to generate ideas; scarce time and money to buy the scarce nutrients; and it takes time (a cost-benefit trade-off) to “produce” GOOD ideas. However, these facts do not necessarily imply that one person naturally owns the idea (see point #2).

4) If one takes the standard libertarian idea of real property acquisition (i.e. homesteading principle) and applies it to IP, then one can clearly see the immediate problem that arises. How does one actually KNOW which individual actually “possessed” the idea FIRST!?!? No one can prove who had what idea FIRST; therefore, the whole point of IP law is moot!!

5) I disapprove of IP law simply due to the fact that, from a logical and historical point of view, it appears to slow progress. For instance, the Wright brothers spent more time in court fighting their patent, than they did improving their invention. How much (and for how long) did this set aviation back? Would the jet age have come a decade earlier? What about the space age? Would we have colonized Mars already? I don’t know; what I do know is that fighting in the court system consumes valuable resources (labor, great minds, etc.), prevents the inventor from focusing further on his invention, and prevents others from making improvements on the invention (at least for a specified time period).

6) If IP law was abolished, it is assured that inventors’ profits would be squeezed, but this doesn’t/wouldn’t preclude people from inventing. If anything, the extra competition would improve the world’s standard of living quicker; furthermore, the squeeze on profits would help the “market” better identify what is actually a valuable undertaking (i.e. what do consumers actually value?).

7) Math and language are ideas that are developed and improved by various individuals over time. If all mathematicians and linguists monopolized their developments through IP law, it would preclude me from being able to write this post, balance my check book, etc. Thus, one should be able to see how ludicrous IP law is. Afterall, most inventions are simply an application of scientific and mathematical principles, and copyrighted works are nothing more than a creative use of “applied linguistics.” For example. The Wright brothers sought to obtain a patent on the airplane; however, “all” they did was apply commonly known elements of physics to what nature had shown them–the concept of flight by way of birds and insects. Does this mean that the Wright brothers should have relinquished their patent seeking to birds, insects, Bernoulli, Boyle, etc.?

The absence of IP law does NOT preclude an inventor from profiting from his idea(s); it just precludes him from monopolizing his idea(s) which, coincidentally, may not be an original (or singular) idea in the first place!!

9) One can own the PRODUCT of their idea(s); they just can’t own the idea(s) itself!!

DixieFlatline December 6, 2010 at 9:35 am

You are right with point #9 Chosen One. Unfortunately, folks like Stranger, Andras and Silas struggle to make this distinction.

Andras December 6, 2010 at 12:18 pm

Dear Chosen One, Do you feel lucky to live in our time? In XIth century Europe, after slowly arriving from the East it took more than hundred years to discover “The Zero” as it was kept secret as long as the “owners” could. And that was mathenatics which cannot be patented even under the current IP system. You may have abundance of revolutionary ideas during cannibalizing the current system but what will happen after? A drought! You shout “I want it all, I want it now!”. I as a self respecting individual will not feed the parasites. Even if I discover I will keep it to myself. I understand why anti-IP is called modern luddites. You should, too.

Chosen One December 7, 2010 at 8:09 am: Andras:

Do you have a point to make? If so, make it and quit blurting out emotional rhetoric.

“mathenatics which cannot be patented even under the current IP system”

I know mathematics can’t be patented under the current system. Here in lies one of the problems that I see with IP law: why are some ideas patentable but others aren’t? Are we to assert that applicable mathematics and science are superior to their theory and discovery in pure form? Are we to award one group of people and not the other? Upon what basis do you think this is even remotely fair? Now, I am not advocating FOR IP law; I am merely acknowledging the fact that even current IP law rewards some ideas and “steals” others. What do you have to say to this?

“You may have abundance of revolutionary ideas during cannibalizing the current system but what will happen after? A drought!”

And this assertion is based off of what? Your projection? Your travel into the future (or past) to see how ideas disappeared when there is/was a lack of IP law? You have no solid case here; nothing to prove your statement.

“Even if I discover I will keep it to myself.”

Fantastic. Let me know how that works. So, what you are saying is if you had a great idea that you thought you could make money off of, wow someone with, etc., you would keep it to yourself? Yeah…I believe that.

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Dave M December 6, 2010 at 10:55 pm

The historical record of defending intellectual property rights [patents] is dismal at best. The wife of the man who invented the laser finaly recieved a pittance of money, after decades of court battles, long after his death.

Independant inventors, who are not working for a large corporation, have about a 10% chance of seeing their patents honoured. In the real world, large corporations just go ahead and use the “idea” and tie up the inventor in court battles.

It is Statist cronyism at work.