Query for Schulman on Patents and Logorights

by Stephan Kinsella on January 12, 2011

From Mises Blog:

I’ve disagreed before with J. Neil Schulman on IP issues — see Kinsella v. Schulman on Logorights and IP. Here’s an edited version of a query I put to him on Facebook this morning:

Neil, in your Logorights article, you say (if you’ll forgive me copying your pattern):

if you think creation isn’t essential to the origin of property–then compose your own damn symphonies, write your own damn novels, invent your own damn computer–much less figure out how to program it–design your own damn houses, film your own damn movies, and come up with the damned recipe for bread on your own…”

A couple of questions about this.

1. Your formulation implies you think IP/logorights in inventions (computers etc.) has to do with COPYING others’ ideas. But are you aware that patent law has nothing to do wtih copying? (See Common Misconceptions about Plagiarism and Patents: A Call for an Independent Inventor Defense.)  That even if you independently invent something, you can be sued? Even if you invented it first?

So does this mean you would favor a prior user or independent inventor defense to patent infringement?

If so, are you aware that this would largely gut patent law and subject you to the same “you are an IP commie” excoriations heaped upon me by the pro-IP side?

I.e., are you basically only in favor of copyright, but NOT patent? (In which case… your computer and house examples are inapt, as they are the subject of patent not copyright law.)

Moreover, while is is unlikely for someone to write Alongside Night if they never heard of yours, for most technical innovations this is not so: most of them eventually would get invented by someone. So patenting it and making this public does deprive others of independently inventing the invention. Suppose I would have invented a new mousetrap in 2 years; you patent it and sell it. I learn of it a year earlier than otherwise so now I cannot independently invent. You “spoiled” it for me as when someone reveals the ending of a movie. Why can you use the fact that you gave information to others to restrict their use of it?

2. Ideas, information, logos–are used to guide human action (see Knowledge is Power). Action uses knowledge of causal laws to manipulate scarce means, as guided by such knowledge. I assume you are not opposed to learning: the acquisition of knowledge. So how do you distinguish the learning of information about how others use their property, which you want to prohibit unless there is permission from the “owner,” from learning in general, which presumably you do not want to prohibit?

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J. Neil Schulman March 24, 2011 at 5:30 am

Answered in my original logorights article:

To the extent which a given logos of invention or story can be produced independently more than once, to that extent the
probability is still great enough to question whether an act of creation has been performed at all.

One of the objections brought against copyrights and patents can be dealt with this way: that a person being sued for
infringing on a previous copyright or patent has had the burden of proof in demonstrating that their story or invention is a
separate and distinct creation from that which they’re accused of infringing.

Here is precisely a case where information theory provides answers to definitional problems that previous theories were
unable to deal with.

By using a process of correlation of the information in each logos, one can find out precisely how much overlap exists between
them.

Only if the correlation is proven by the petitioner to be significant enough to warrant a charge of copy infringement would
independent creation have to be established as a defense by a respondent. If the respondent succeeds in demonstrating
independent creation, then the petitioner’s original “creation” wasn’t inherently improbable, therefore questionable as a unique
creation–and therefore possibly not property at all–for either of them.

Stephan, is there a point in asking me questions which I answered in the original article?

Stephan Kinsella March 24, 2011 at 8:22 am

To the extent which a given logos of invention or story can be produced independently more than once, to that extent the
probability is still great enough to question whether an act of creation has been performed at all.

But how do you know what the probability is that someone else would have invented the patented item soon after the first guy did? Once he invents and publicizes it, everyone knows about it so now no one is trying to invent it independently. How in the world can you know what the probability would have been? How can you know who else “would have” independently invented it, and when? How can you prove this?

” One of the objections brought against copyrights and patents can be dealt with this way: that a person being sued for
infringing on a previous copyright or patent has had the burden of proof in demonstrating that their story or invention is a separate and distinct creation from that which they’re accused of infringing.”

But this is not a defense in patent law. If you are saying it should be, you seem to be saying you are in favor of an independent inventor defense. I wonder if you realize how much this would gut the patent law, and how much the pro-IP types would revile you for this, call you an enemy of innovation, an enemy of the mind, etc. (sound familiar?)

Here is precisely a case where information theory provides answers to definitional problems that previous theories were
unable to deal with.

It is just amazing you actually believe “information theory” can be used to predict counterfactual reality–to tell us when someone else “would have” invented this mousetrap design. Of course this is not possible at all.

By using a process of correlation of the information in each logos, one can find out precisely how much overlap exists between them.

You appear to be talking about infringement. But this is confused too. For copyright, proving similarity is not enough–since independent creation IS a defense–so you have to prove access and copyring too. This is why some software companies use a “clean room” approach–to be able to prove later on that their designers did it independently and were not “contaminated” with copyrighted software knowledge from others. For patents, I can tell you from actual experience with how patent claims are written and interpreted and applied to potentially infringing devices and processes, it is not as neat and simple as this. In fact it is riddled — necessarily, I believe — with subjectivity, ambiguity, vagueness, and non-objective standards.

In any case, determining infringement of an existing patent or copyright (or “logos”) is not the issue here–I was asking about the justice in the case of patents of not having an independent invention or prior user defense, and also about the case where the publicizing of the invention effectively makes it impossible for anyone else now to independently invent it.

Only if the correlation is proven by the petitioner to be significant enough to warrant a charge of copy infringement would
independent creation have to be established as a defense by a respondent. If the respondent succeeds in demonstrating
independent creation, then the petitioner’s original “creation” wasn’t inherently improbable, therefore questionable as a unique
creation–and therefore possibly not property at all–for either of them.

Just to be clear: you have not shown that this ethereal armchair theory of information theory has any real world practical applicability in the case of IP. This is now how evidence or infringement construction works. Further, independent ceration is a defense now only in the case of copyright, and this is rare. It is NOT a defense in the case of patent. You seem to think there ough to be a defense like this in patent too. I am asking if you are aware that this would significantly gut patent law and be fought tooth and nail by your fellow IP advocates, and get invective hurled at you.

Further, you are dodging the issue that for such inventions SOMETIMES the accused infringer would be able to prove independent invention (but why the burden of proof is on him I don’t know–why do people have to keep records of when they came up with ideas they are using to guide their actions, just in case they might get sued by a Schulmanian logoright inventor??); but that in other cases this is not possible *because* the first inventor made his invention public (say, by selling his new mousetrap)–so that even if in an alternate reality where the first guy never revealed his secret, 3 other people “would have” independently come up with this mousetrap design within, say, 2-3 years, now this never happens *because* this first guy has spilled the beans publicly. So you cannot know what wouldh ave hapened; so the infringer has no defense. In effect, he has been robbed of a possible defense by the first guy’s making his invention known. How in the world is this fair? And are you serious that you think you can come up with an “information theory” way to determine what “would have” happened absent this guy’s publicizing his invention?

Why do you ignore this case and not address it? At least admit it’s an injustice of your theory.

Stephan, is there a point in asking me questions which I answered in the original article?

I don’t see an answer to question 2, and I was asking you if you favored an independent inventor dfense, which you didn’t answer either.

tzo March 24, 2011 at 11:46 am

And he has also stated quite clearly that he considers himself justified in shooting anyone who “steals” his stuff. Of course threatening violence against people who are peacefully using their own property puts you on some thin ice.

I also don’t think it possible to rationally argue a point with someone after they have declared that they will use force if they do not get their way. He is old enough and experienced enough in the subject matter to know better. Leave him with the rest of the thugs on the statist junk heap if that’s where he really wishes to be.

Stephan Kinsella March 24, 2011 at 11:53 am

The “shooting” comment arose in a FB conversation that i mentioned here. In that discussion, Schulman said:

“I am not a papermaker or a pensmith. I write novels and songs, and make movies. Everything I create can be represented in digital form. Deny me ownership of my creation you deny me the means of my supporting my life … and I will not rely on the State to enforce my rights. I can aim and pull the trigger just fine.”

Of course, there are lots of welfare parasites who are willing to do violence to keep their state goodies coming–such as union thugs attacking scabs or protesting, or students at state subsidized colleges protesting and “demanding” their subidized tuition.

J. Neil Schulman March 24, 2011 at 3:40 pm

First of all, Stephan, you are once again incompetent at reading my article.

First, I’m not defending copyright law or patent law. You endlessly attack a Straw Man then pat yourself on the back and declare victory for winning an argument I never made.

My logorights theory is a defense of a natural property right in objects of material identity, not a defense of statist law. So get on point for once. What software companies do to satisfy current patent law is beside the point.

Second, no speculation or counterfactual is involved in proving whether creation has occured. You managed to overlook the key word “correlation.” You ask me whether I support an “independent inventor” defense. Pay attention. An invention needs to be unique. If it’s not unique it’s not an invention. If it can be done more than once “independently” it’s not unique invention and the exclusive right to own it belongs to no one.

“Ethereal armchair theory of information theory”?

I use a screenwriting program called “Movie Magic Screenwriter.” It’s not ethereal; it’s loaded on the same computer I’m writing this from, This currently existing commercial software software package can compare any two scripts and highlight the overlaps and differences between them. No speculation is involved. No counterfactuals. It merely uses a process memorialized in the Sesame Street song “One of These Things is Not Like the Other.” Only it can count higher than two.

If two scripts were written independently and correlate as the same (yes, a hypothetical), then neither one was original.

But in the real world, if you encounter this, what has happened is plagiarism, even if of an author lost to antiquity.

Creation requires something unique — a one-up. If two inventors independently come up with the same “invention,” the question arises whether what they did was not invention but discovery. The movie Flash of Genius is a great exposition of a real-life patent case which explains the process of correlation (and differentiation) between two claimants.

There is only one Atlas Shrugged.

There is only one A Christmas Carol.

There is only one The Rainbow Cadenza.

The processes of differentiation and correlation can prove whether or not they are unique creations. And if they are unique creations, they are the exclusive property of their creator.

Stephan Kinsella March 24, 2011 at 4:27 pm

Neil,

Thanks for responding.

First of all, Stephan, you are once again incompetent at reading my article.

No doubt it is my fault. I’m sure your natural audience would involves those with a more sophisticated understanding of IP law and libertarian property rights.

First, I’m not defending copyright law or patent law.

You say this, but you oppose abolishng these laws, do you not? Or are you with Us in advocating the abolition of state patent and copyright law? Which is it?

You endlessly attack a Straw Man then pat yourself on the back and declare victory for winning an argument I never made.

I am surely guilty of attacking the actual IP law that exists and arguments trying to defend existing patent and copyright. If someone succeeds in abolishing these and substituting in legislated “law” a new flavor of IP right, I may turn my attention to that. In the meantime forgive me for attacking the existing socialist IP law.

My logorights theory is a defense of a natural property right in objects of material identity, not a defense of statist law. So get on point for once. What software companies do to satisfy current patent law is beside the point.

Second, no speculation or counterfactual is involved in proving whether creation has occured. You managed to overlook the key word “correlation.” You ask me whether I support an “independent inventor” defense. Pay attention. An invention needs to be unique. If it’s not unique it’s not an invention. If it can be done more than once “independently” it’s not unique invention and the exclusive right to own it belongs to no one.

So, Neil, suppose 3 guys are working to invent the transistor. A, B, and C. They are all close (this is how invention usually works, no offense, Rand). A finishes first, or at least files for a patent first, and starts selling his patented transistor. B and C, seeing this, though they are both very close to completion, stop work on it because they know that A can use his logoright/patent to enlist the state’s force to stop them from competing, so they each divert their efforts and resources into different lines of work. Now, I know you guys don’t mind too much such distortions of the market and R&D, but whatevever. It happesn. So A has a temporary monopoly over the sale of the transistor. Meanwhile, the hapless D starts competing with A–now I know A does not like competition, nor do you IP monopolists. So A sues D — how dare D sell a transistor? A has “the right” to sell transitors for 17 fucking years! how dare D compete wtih him! the nerve! He is stealing from A! Stealing customers A “would have” had.

Now. D’s defense is that A’s invention of the transistor is not entitles to a monopoly. Because it was inevitable given the state of technology. BUt because B and C disappeared and were never known, D can’t prove his case.

HOw does he defend himself from logoright protetectionism, in your view?

“Ethereal armchair theory of information theory”?

I use a screenwriting program called “Movie Magic Screenwriter.” It’s not ethereal; it’s loaded on the same computer I’m writing this from, This currently existing commercial software software package can compare any two scripts and highlight the overlaps and differences between them. No speculation is involved. No counterfactuals. It merely uses a process memorialized in the Sesame Street song “One of These Things is Not Like the Other.” Only it can count higher than two.

If two scripts were written independently and correlate as the same (yes, a hypothetical), then neither one was original.

Nothing is original. Everything borrows form scenes a’ ffair and common ideas of the past. MacBeth was plagiarized in part too. Who cares? So what if A is similar to B? You don’t “own” an arrangement of information.

But in the real world, if you encounter this, what has happened is plagiarism, even if of an author lost to antiquity.

Complete bullshit. Unless it’s literal reproduction it is usually sampling or borrwoing or adapatation. Inspiration. Nothing wrong with this.

Creation requires something unique — a one-up. If two inventors independently come up with the same “invention,” the question arises whether what they did was not invention but discovery.

Actually, no, Neil, the “question does not come up” unless it is legally relevant, and it is not, in a free society, because in such a free society, people are free to use their own goddamned property as they see fit, and using property means using information you have to choose what do to with your property.

The movie Flash of Genius is a great exposition of a real-life patent case which explains the process of correlation (and differentiation) between two claimants.

The movie Flash of Genius is horribly unlibertarian and shows the entitlement statist mentality at work. I cannot believe you are so naive and gullible.

There is only one Atlas Shrugged.

There is only one A Christmas Carol.

There is only one The Rainbow Cadenza.

Not in a free world, buddy–there might be 100 sequels, re-interpretations, re-mixes, movies, songs, musicals, etc., borrwoing on som or a lot of the ideas in any of these.

The processes of differentiation and correlation can prove whether or not they are unique creations. And if they are unique creations, they are the exclusive property of their creator.

This does not follow at all. “Uniqueness” has NOTHING to do with property. Where do you get this from?

J. Neil Schulman March 24, 2011 at 7:15 pm

Stephan,

I advocate the substitution of statist law with market-derived law, a position I have advocated since the mid 1970′s. So do I advocate the abolition of statist copyright and patent law? Absolutely — when the state’s tyrannical edicts are replaced by liberty.

All statist protection of property rights is flawed — and copyright law, patent law, and trademark law is as flawed as statist protection of any other “property” rights which involve violation of others’ natural rights.

All propery rights questions involve defining boundaries. Again, covered in my original article.

If I shine a flashlight on your land, am I committing photonic trespass? What if my flashlight triggers your burglar alarm and the ADT agents shoot you thinking it’s an intruder?

If I grow peanuts and peanut dust blows into your child’s bedroom and sickens your child who has a severe peanut allergy?

There is no property right that can’t generate extreme cases.

What I think you have most failed to understand in my defense of logorights is how high a bar logorights theory sets for a claim of exclusive ownership. Yes, my theory requires a proof of uniqueness before a property right can be claimed. Failing that standard there is no rightful claim of property right.

Stephen King’s new novel, 11/22/63, is about a time-travelling teacher who goes back in time to stop the JFK assassination.

Is his plot an infringement of my own Twilight Zone script, “Profile in Silver”?

The burden would be on my to prove that it would have been impossible for Stephen King to come up with that plot if “Profile in Silver” hadn’t been broadcast in CBS prime time, first. If I can’t, there’s no violation of my rights.

But if Stephen King has in his novel identical characters and story elements to my writing so numerous as to defy common sense for independent creation, then he’s committed plagiarism and he’s violated my rights. That’s common sense.

By the way, the only people who say that “nothing is original” are people who don’t trust their own powers of creation. That statement is the hallmark of the quitter.

Stephan Kinsella March 24, 2011 at 8:00 pm

I advocate the substitution of statist law with market-derived law, a position I have advocated since the mid 1970?s. So do I advocate the abolition of statist copyright and patent law? Absolutely — when the state’s tyrannical edicts are replaced by liberty.

WHEN? big condition. so you ARE in favor of modern patent and copyrght law. convenient. lets you say you are against its unjust aspects. yet avoid joining us to repeal this abomination. You are basically admitting here that modern statist IP law is at least a close approximation to your logorights stuff; that you are allied more closely with statists than with fellow libertarian propertarians. wow.

As for the rest of your distraction about extreme cases–you refuse to answer my questions. Your logorights is completely unlibertarian, Neil. I know you don’t intend this, but it is. You are stuck in a Randian notion of property, and that is your error.

Stephen King’s new novel, 11/22/63, is about a time-travelling teacher who goes back in time to stop the JFK assassination.

Is his plot an infringement of my own Twilight Zone script, “Profile in Silver”?

You tell me! Who knows, according to these ridiculous views of property and justice.

The burden would be on my to prove that it would have been impossible for Stephen King to come up with that plot if “Profile in Silver” hadn’t been broadcast in CBS prime time, first. If I can’t, there’s no violation of my rights.

This is heinous and abominable. What a horrible view of human interaction. Let him do what the hell he wants. Goddamn.

But if Stephen King has in his novel identical characters and story elements to my writing so numerous as to defy common sense for independent creation, then he’s committed plagiarism and he’s violated my rights.

PLagiarism? Copyrihgt infringennt has NOTHING TO DO WITH PLAGIARISM. What are you talking about? You guys do this all the time.You are so slippery. You keep changing your argument. No wonder, as there is no good argument for IP.

” That’s common sense.”

We shoud have a minimum wage. And universal education. And a right to a job. And people should not be able to discriminate in employment on the basis of race. This is all “just common sense.”

By the way, the only people who say that “nothing is original” are people who don’t trust their own powers of creation. That statement is the hallmark of the quitter.

This is not an argument. It’s irrelevant emotionalism.

J. Neil Schulman March 24, 2011 at 7:24 pm

Armchair IP theory my tired ass. It was written in a very uncomfortable chair.

J. Neil Schulman March 24, 2011 at 10:24 pm

Stephan Kinsella wrote:

“so you ARE in favor of modern patent and copyrght law. convenient.”

You know what? You’re either the most incompetent reader in the history of the English language or you’re a deliberate liar.

I wrote (and you quoted me as writing):

“I advocate the substitution of statist law with market-derived law, a position I have advocated since the mid 1970?s. So do I advocate the abolition of statist copyright and patent law? Absolutely — when the state’s tyrannical edicts are replaced by liberty.”

How you can twist this to mean I support current state laws on copyright and patent is fucking Orwellian.

Apologize for twisting my words into their opposite meaning or I’m through with you once and for all.

Stephan Kinsella March 24, 2011 at 10:42 pm

Neil: I wrote: ““so you ARE in favor of modern patent and copyrght law. ”

You:

How you can twist this to mean I support current state laws on copyright and patent is fucking Orwellian.

Apologize for twisting my words into their opposite meaning or I’m through with you once and for all.

Well, Neil, you wrote:

do I advocate the abolition of statist copyright and patent law? Absolutely — when the state’s tyrannical edicts are replaced by liberty

. So you do not want to abolish patent and copyright law — NOW. I do. You do not. Sorry you are not for unconditional IP abolitionism, but I am, as are most libertarians nowadays.

I don’t see how I have misunderstood your very clear words.

J. Neil Schulman March 24, 2011 at 10:33 pm

Do you own a house with a county-issued deed, Kinsella? If you do, is the statist issued deed sufficient reason for you to abandon your property?

How about your car? You can’t own it without DMV permission in many states. Ooops. Statist laws. No property rights. Give me your car!

How about your kids? Agree to keep them in school so the county doesn’t arrest you for violation of truancy laws and place your kid in a state home? Or divorced and got a custody arrangement issued by a judge? Ooops! Not your kids anymore unless a statist judge grants permission.

There are NO private property rights not in effect without permission of the State. You expect me to abandon my rights because the state actually allows me to keep some of my own property?

Jesus H. Christ.

Stephan Kinsella March 24, 2011 at 11:13 pm

Neil, I’ve seen similar arguments from amateurs, statists, and leftists. Et tu, Brute?

Do you own a house with a county-issued deed, Kinsella? If you do, is the statist issued deed sufficient reason for you to abandon your property?

As Rothbard explained in his Justice and Property Rights (discussed here), if we disband the state we of course leave current holdings in place for private property owners. They have a better claim than anyone else, in most cases. If the state evaporates, my house still exists, so there is a question as to who owns it. I of course do. If the state exists, my IP claims however evaporate with the state, as do my claims to social security and medicare.

How about your car? You can’t own it without DMV permission in many states. Ooops. Statist laws. No property rights. Give me your car!

it is not clear what argument you are making. but it’s hard to argue for a statist IP program based on the existence of the criminal state.

There are NO private property rights not in effect without permission of the State. You expect me to abandon my rights because the state actually allows me to keep some of my own property?

Roads would exist absent the state; state roads should be privatized. State drug cops would not exist; they should be fired, or rounded up. Protection of private property would exist; state enforcement thereof should cease and it should be done privately. State IP monopoly grants could not exist absent the state; abolish the state and IP withers too, and logorights would find no home.

I never said anyone should abandon legitimate property. Your insinuation here is false, and confused.

J. Neil Schulman March 24, 2011 at 10:53 pm

“Sorry you are not for unconditional IP abolitionism, but I am, as are most libertarians nowadays.”

Are you for unconditional “P” abolitionism? That is not a typo. Do you advocate the unconditional and immediate abolition of any and all property rights that are in any way protected by current law?

Stephan Kinsella March 24, 2011 at 11:03 pm

Propety could exist absent state law; IP could not. Since you say logorights and IP are not the same thing, why would you condition the abolition of IP on the abolition of statism, unless you view IP as some kind of approximation of a logorights regime?

I would in fact favor the immediate abolition of the state, and the state’s property rights enforcement mechanism, yes. My view of property does not need the support and imprimatur of the criminal state for its maintenance and legitimacy. Abolishing the state would be good for property rights–and bad for IP, and bad for logorights, for if you tried it people would scratch their heads and ignore you. If you started shooting people to enforce your vision of logorights, as you insinuated on FB that you would, you would be dealt with like any other criminal: as merely a technical problem.

J. Neil Schulman March 24, 2011 at 11:17 pm

“Propety could exist absent state law; IP could not.”

A self-serving assumption which you use in circular logic: your conclusion is a restatement of your premise.

In simpler and more direct language: horseshit.

J. Neil Schulman March 25, 2011 at 3:34 am

“If the state exists, my IP claims however evaporate with the state, as do my claims to social security and medicare.”

Social Security and Medicare are state payments. Transfer of money taken by force from taxpapers.

My ownership of the things I’ve written are private property independent of the State and its copyright laws. I don’t own them because of a grant of privilege from the State. I own them because I made them and they’re mine by natural law and natural right. I took them from no one else. Their existence is dependent on one one but me. They would not exist except for my creating them.

I think you can damned well tell the difference because you have to be an idiot not to understand. You’re not an idiot.

Therefore you have a different reason for promulgating this lie.

I think it’s because you don’t believe in property rights at all, and IP is your stalking horse — your camel’s nose under the tent — to attack all property rights.

This particular discussion started out on my Facebook page when I said you’re a high enemy of property rights. I said you’re as cuckoo as Karl Marx.

Every thing you write continues to prove that.

Stephan Kinsella March 25, 2011 at 11:20 am

Neil:

“If the state exists, my IP claims however evaporate with the state, as do my claims to social security and medicare.”

Social Security and Medicare are state payments. Transfer of money taken by force from taxpapers.

My ownership of the things I’ve written are private property independent of the State and its copyright laws. I don’t own them because of a grant of privilege from the State. I own them because I made them and they’re mine by natural law and natural right. I took them from no one else. Their existence is dependent on one one but me. They would not exist except for my creating them.

This is your opinion, but it makes no sense. You don’t create things metaphysically; you come up with ways of using your things, which, if publicized, adds to the body of human knowledge. Further, you are flat wrong in the case of inventions and patents that they would not exist but for the inventor creating them: in most cases, this is flat out false.

Creation is not a source of ownership. You homestead scarce resources and then you use your labor, creativity, intellect to rearrange these things into more valuable (to you, or to potential buyers) arrangements. You create wealth but you do not own the wealth; creating wealth just means re-shaping things you own to make them more vaulable; but you already owned the resources that you rearranged, so you own them after. Creation does not generate property rights, but only makes existing property more useful and valuable. Your entire theory of property rights, like that of Randians, is very confused.

I think you can damned well tell the difference because you have to be an idiot not to understand. You’re not an idiot.

Therefore you have a different reason for promulgating this lie.

You are so mired in the old and confused Randian ways of thinking that you cannot even understand your critics, apparently. Ownership of patterns of information that “have value” or that “are values” is so ingrained in how you think, you have to–outrageously–attribute malice or dishonesty or stupidity to fellow libertarians who do not see things this way.

I think it’s because you don’t believe in property rights at all, and IP is your stalking horse — your camel’s nose under the tent — to attack all property rights.

This is just ridiculous. Your view of “IP” is contrary to real property rights, but you can’t give it up.

J. Neil Schulman March 25, 2011 at 2:22 pm

Fine, Stephan. You’re not stupid. You’re not evil. You’re not trying to abolish all property rights. You’re merely mired in a three-century old Lockean paradigm of property rights that is so reductionist that it is ludicrous.

J. Neil Schulman March 25, 2011 at 2:49 pm

According to Stephan Kinsella, writers make nothing and own nothing.

According to Stephan Kinsella composers make nothing and own nothing.

According to Stephan Kinsella architects make nothing and own nothing.

According to Stephan Kinsella digital filmmakers make nothing and own nothing.

According to Stephan Kinsella digital graphic artists make nothing and own nothing.

According to Stephan Kinsenna Bach, Beethoven, Brahms, John Lennon, Charles Dickens, Robert Heinlein, Rudyard Kipling, Mark Twain, George Orwell, Ayn Rand, L. Neil Smith, and me made nothing and deserved to own nothing.

This is so ridiculous that I am ashamed that I waste my time responding to it. It is absurd and self-annihilating nonsense and those who believe it if they put this vile nonsense into effect kill the geese who lay the golden eggs — from a story by Aesop, who according to Stephan Kinsella made nothing and deserved to live as a slave.

Stephan Kinsella March 25, 2011 at 3:21 pm

Sputtering emotional outrage based on false assumptions does not an argument make.

iceberg March 25, 2011 at 3:49 pm

Of course they’ve made nothing; but neither has anyone else. All we non-deities can ever aspire to is to transform nature as it is found into a configuration we value more. This doesn’t change the ownership of those items. If a brickmaker took sand mix and formed a brick from it, he has only “made” the brick in some limited sense of the word.

J. Neil Schulman March 25, 2011 at 5:50 pm

Iceberg, creation with the meaning of bringing something into existence out of nothing is an absurdity. It’s a useless definition of the meaning and used only as a Straw Man argument by those who want to get something for nothing — thieves, communists, goons, gangs, statists, and pirates.

That’s not what the word or the concept for creation has ever meant. Creation is and always has been the making of a new composition — and it is the new and unique composition which is created, owned as property under natural law and natural rights.

Stephan Kinsella March 25, 2011 at 5:59 pm

Rand says creation is just rearranging already-owned scarce resources into a more useful configuration. You own the new thing b/c you owned it before you transformed it. Easy.

iceberg March 28, 2011 at 4:31 pm

Neil,

In either sense, the word creation cannot establish property rights to other people’s property, so I’d lay back on the insults regarding thieves and communists, because trite comments like that can cut both ways.

Furthermore, a statement concerning the uniqueness of a certain arrangement of matter, when I last checked, was not even an argument, just some grunting sounds which pretends to have normative content. Originality or ‘uniqueness’ of any sort is actually the rule for this universe, and by definition, every atom of existence in this universe is unique. If it wasn’t unique, it would actually “be” that other atom. So ‘originality’ is just some floating abstraction of what some observer is making about reality. Only to the extent that some atom is subject to human action and which is naturally rivalrous , do we need property rules to delineate who has the right to control it. If property rights derives only from these necessary facts of the universe, I don’t see how IP can be justified. Or perhaps you have some other basis to justify property rights?

J. Neil Schulman March 25, 2011 at 6:14 pm

“Rand says creation is just rearranging already-owned scarce resources into a more useful configuration. You own the new thing b/c you owned it before you transformed it. Easy.”

If that’s actually what Rand’s complete argument had been, then she’d have been wrong.

OK March 26, 2011 at 12:19 pm

I watched a cook on T.V. create an entree from rearranged food items. If I copy the entree from food items in my kitchen from memory, am I guilty of theft and financially liable to the T.V. cook? What if I enhance the rearranged food items with additional food items to create a new entree?

If my teammates copy the defensive moves of Team A and employ those same moves against Team B, are we guilty of theft and financially liable to Team A?

J. Neil Schulman March 26, 2011 at 1:45 pm

OK,

Your questions bring out the general misconception of my logorights theory. Recipes and game plays are common coin generally not a complex and unique structure to prove a claim as property.

tzo March 28, 2011 at 9:56 am

“Recipes and game plays are common coin generally not a complex and unique structure to prove a claim as property.”

Interesting. Now who draws the line between “common coin” and “complex and unique structure”? Have you just stated a fact or voiced an opinion here?

J. Neil Schulman March 28, 2011 at 2:59 pm

How are boundaries drawn for any property right? That’s how.

J. Neil Schulman March 28, 2011 at 3:00 pm
OK March 30, 2011 at 11:15 pm

J. Neil Schulman,

It is correct to conclude that a logoright never becomes a part of the so-called public domain unless abandoned, and if not abandoned, it can be sold, transferred, or gifted in perpetuity?

Does your theory of logorights, strictly interpreted, prevent me from discussing, writing, or otherwise communicating about your theory with others?

J. Neil Schulman March 31, 2011 at 3:09 am

OK asks, “It is correct to conclude that a logoright never becomes a part of the so-called public domain unless abandoned, and if not abandoned, it can be sold, transferred, or gifted in perpetuity?”

Can a desk be gifted willed? Can a cello? Can a house? A car? An annuity? A bank account?

It’s statist copyright and patent laws that nationalize ownership of IP then place restrictions on transferring ownership.

“Does your theory of logorights, strictly interpreted, prevent me from discussing, writing, or otherwise communicating about your theory with others?”

Here is the summary given at the top of The Libertarian Case for IP:

“Ideas” can’t be property. “Information objects” may be property but information as such can’t be property. Only things can be owned. If a thing can be copied then it’s a thing. Property rights aren’t the property itself. You can’t point to a right. The debate about IP is a moral debate about human action, the same for any other property right. If you think a novel isn’t scarce, write one people beg to read.

Now you answer the second question for yourself.

Stephan Kinsella March 31, 2011 at 8:05 am

Neil,

OK asks, “It is correct to conclude that a logoright never becomes a part of the so-called public domain unless abandoned, and if not abandoned, it can be sold, transferred, or gifted in perpetuity?”

Can a desk be gifted willed? Can a cello? Can a house? A car? An annuity? A bank account?

It’s statist copyright and patent laws that nationalize ownership of IP then place restrictions on transferring ownership.

Not sure what you mean. You can assign or license patent and copyright. And you call it statist, yet you elsewhere said you do not want to get rid of patent and copyright just yet.

As for OK’s public domain question: I thought your theory would apply “information theory” to determine how long a given logoright should last. So for original works of authorship like Alongside Night, it would last forever. For an invention, not as long since it’s likely someone else “would have” eventually invented it (though I’m not sure why this is when the first inventor’s logoright should expire: after all, if he had NOT invented it, then if the second guy “would have” invented it, say, 10 yaers later, then the second guy would then himself had had a logoright in it. So in that case the logos would still not be public domain. So why does it become public domain on this would-be second invention date as calculated by information theory…?).

I am curious though about something, Neil. In today’s system, to get a patent you have to actively apply. If you don’t, it’s public domain. For copyright, it’s automatic, and it lasts 70 years past the author’s death, and it is impossible to dedicate it to the public domain–it’s impossible to exterminate it or get rid of it.

In your system, a few questions:
1. would there be active registration required for logorights?
2.Would there be any formalities at all? In copyright you used to have to put a copyright notice; now, that is gone too, since not only do you not have to register for a coypright, no formalities at all are needed–no notice, etc. Does your logorights theory requires you to put any logorights notice?
3. If so , is there a distinction in how you do this for different types of logorights–say, artistice original works versus inventions? And what if your invention is a method or process–where do you put the logoright?
4. Do you also see logoright as applying to trademark, trade secret, defamation (reputation) rights, boat hull designs, semiconductor maskwork, fashion designs, perfume smells, food and mixed drink recipes, and databases?
5. If you have a logoright in a given “information object,” and do not WANT the logoright, how do you get rid of it? How do you convert your information object to the public domain, if you are so inclined?

“Does your theory of logorights, strictly interpreted, prevent me from discussing, writing, or otherwise communicating about your theory with others?”

Here is the summary given at the top of The Libertarian Case for IP:

“Ideas” can’t be property. “Information objects” may be property but information as such can’t be property. Only things can be owned. If a thing can be copied then it’s a thing. Property rights aren’t the property itself. You can’t point to a right. The debate about IP is a moral debate about human action, the same for any other property right. If you think a novel isn’t scarce, write one people beg to read.

Now you answer the second question for yourself.

I don’t see an answer to this. You have said, Neil, that you created Alongside Night, as an information object, so thus you “own” it. You have a logoright in it. But you also created your Logorights theory, did you not? Doesn’t this give you the right to stop people from reproducing it or making variations of it (which would include discussing it, I would think)?

Finally, you say , “If you think a novel isn’t scarce, write one people beg to read.” Do you not see that this is equivocation? You should realize we use the word scarcity in its technical economic sense in our property arguments to mean rivalrous. You are using it here in the more colloquial sense to mean not-abundant, rare, or hard to come by. If you just use “rivalrous” instead, see how absurd your argument looks: “If you think a novel isn’t rivalrous, write one people beg to read.” See–this makes no sense. It’s not even an argument.

J. Neil Schulman March 31, 2011 at 8:41 am

“Not sure what you mean. You can assign or license patent and copyright. And you call it statist, yet you elsewhere said you do not want to get rid of patent and copyright just yet.”

Yeah? Show me where I said that.

Stephan Kinsella March 31, 2011 at 9:10 am

“do I advocate the abolition of statist copyright and patent law? Absolutely — when the state’s tyrannical edicts are replaced by liberty”

J. Neil Schulman March 31, 2011 at 8:44 am

No. I will not answer the same fucking questions for the 800th time.

Read what I wrote. Stop misquoting me and debating straw men.

I’m done with your dishonest approach to discussion.

Stephan Kinsella March 31, 2011 at 9:29 am

Neil, I asked a series of honest, sincere, reasonable questions about how your logorights theory would work.

I have no idea what you are so hostile about–I have not posed straw men or misquoted you. Your accusations of dishonesty are unjustified and unfounded. If you don’t want to engage or explain your logorights theory, you don’t need an excuse.

Another query. When it comes to ownership of scarce resources, if there is a contest over ownership then the parties can have a dispute resolution about it. Various presumptions come into play–such as possession is nine-tenths of the law, meaning that the guy with current possession already has some evidence for a prima facie claim of ownership. THe other guy needs to prove he really owns it. So people own things by being the first to homestead them, if the resource is unowned; or buy buying them from a seller. You don’t need to keep a bunch of records to prove ownership because there may never be a dispute about it, and if there is, well, if you bought it, the testimony of the seller can be evidence (or the sales records, receipts, etc.); and if you homesteaded it, usually you’ll be the current possessor, so the burden of proof will be on the challenger, and he’ll be unable to satisfy this. And if someone stole your property and is the current possessor, well then you should at least in some cases be able to satisfy your burden of proving that you own it by demonstrating facts about the act of theft (just as one would in proving any crime).

But for property in ideal objects, information objects, whatever you call it, especially when it comes to inventions, things get messier. Imagine A invents the transistor on day 1 and B invents it on day 3. Neither one however keeps good evidence as to exactly when they invented it. Word soon gets out about A’s invention because he tells his friends etc. He has no desire to keep the info secret–after all, he knows he has a logoright on it, so no one can “steal” it. He plans to manufacture it but knows it will take a year or so to get geared up for production.

So let’s imagine a year later A and B stars selling their transistor products at around the same time. A believes B just “stole” his idea so sues B. B claims no, I invented mine independently a year ago. A says aha, no, you just heard about it thru the grapevine, after I announced my invention. How can B prove he invented it independently? What if he kept no records? As noted above, in the case of scarce goods you don’t *have to* keep records to have a good chance of defending your title to your homesteaded or contractually acquired scarce good. this is in the very nature of ownership of scarce resources. But in this case, B may be in trouble if he didn’t keep good records. HE may be unable to persuade the jurors that he didn’t just pilfer the ideas from A. Especially if the burden of proof is on him to mount an affirmative defense. This is why I asked you questions above about burdens of proof and whatnot. You are just about the only IP advocate so far to even attempt to come up with some kind of systematic argument for IP, so it’s reasonable to ask you questions about the system’s operation that you have never addressed, based on real-world understanding of how similar problems can and do arise with current IP systems. You are of course free to choose not to answer, but you have no grounds for alleging dishonesty or insincerity in asking these questions. I and others are genuinely curious how you think your system would function in practice and how it would overcome a variety of seemingly serious problems with its operation.

Jesse March 31, 2011 at 10:20 am

I’ve talked to Neil about this a couple times. I think the only reason he clings to these arguments for IP is that he can’t think of a way to make sure he gets paid for his works of art without current IP law. I empathize with him. If IP law were repealed today, many “gatekeeper” corporations and big time artists would lost a lot of revenue. It’s easy to dismiss them as fat-cats living off the fat of state-created monopoly. It’s not easy to dismiss Neil, as he is far outside the mainstream. Until he, and other smaller artists like him who I admire, stop thinking about how to keep getting paid under business models of the past and start thinking about how to get paid in future business models, he and others will not move over to the anti-IP side of things.

It is one thing to be against IP when your livelihood isn’t in the creative arts. It is quite another thing when it does. I can understand Neil’s POV, but I don’t agree with it.

Stephan Kinsella March 31, 2011 at 10:33 am

Sure, I understand all this. By the way, I’m a patent lawyer. Repealing patent law would adversely affect me, too. And being a prominent IP abolitionist is not the best way to further my IP career…

J. Neil Schulman March 31, 2011 at 2:58 pm

Jesse,

Von Mises wrote about your sort of poly;logism, of the form, “Neil only believes in property rights because he’s of the bourgeoisie.”

Feh.

Crosbie Fitch March 31, 2011 at 5:15 pm

If you eliminate the intermediary vendor of copies (that everyone and their dog can today make themselves for nothing) and their crutch of a monopoly Queen Anne granted them (enabling them to sell copies of writing for more than the paper it’s written on), then you’re left with the artist and the more interested members of their audience.

The conclusion that these two parties are unable to make a financial exchange of intellectual work for money without the 18th century revenue mechanism of vending copies (+ monopoly enabled royalty) is breathtakingly defeatist.

I’ve produced an exchange facility to enable such artist/audience transactions already. Unfortunately, there’s so much defeatism that no venture capitalist believes direct artist/audience exchanges are possible either, so I can’t even sell the solution.

The best people hope for today is compulsory licensing, i.e. ‘taxing’ the Internet and disbursing the mulct to the poor starving artists the usual suspects (incumbent collection societies and publishing corporations). Which, of course, is thermodynamically preposterous (99% of revenue would be eaten up by administration and legacy monopoly rents).

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