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Intellectual Nonsense: Fallacious Arguments for IP (Libertopia 2012)
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Intellectual Nonsense: Fallacious Arguments for IP (Libertopia 2012)

Yesterday morning I delivered a 45-minute talk here at Libertopia, “Intellectual Nonsense: Fallacious Arguments for IP,” the slides for which (which I did not show but only used as notes) are below. I spoke for 45 minutes—well, 40, then the last 5 were taken up by a question from J. Neil Schulman—but only covered the first 25 slides; the remaining 41 will have to wait for another lecture…

I recorded my talk on my iphone, but a professional video/audio should be available presently. Audio file is here (21MB), and streaming below:


Update: Because I did not have time to finish the remaining slides during my 45 minute talk, I recorded a podcast covering the remaining slides today (10/18/12). It took a bit over 2 hours. Audio file is here (67MB; time: 2:18:46) and streaming below:


Update: Today I participated in an hour-long IP panel at Libertopia, with Charles Johnson and moderated by Butler Shaffer. Audio file is here (29MB), and streaming below:


Update: I thought of one more argument that I forgot to cover in the slides and talk. It is the argument made by Silas Barta that (a) some libertarians support rights in airwaves (electromagnetic spectra); but (b) if you support airwave rights you have no basis to object to rights in other nonscarce resources like inventions or patterns of information (see Why Airwaves (Electromagnetic Spectra) Are (Arguably) Property).

There are several problems with this argument. First, not all libertarians support rights in EM spectra. So they are not committed to favor IP rights, even by Barta’s argument.

Second, even if EM spectra ought to be homesteadable, it does not mean that patterns of information ought to be. This is because EM spectra are actually scarce resources, while patterns of information are not. IP proponents typically grudgingly admit, when pressed, that EM spectra are  scarce but patterns of information—knowledge—is not, but they then shift to the argument that the monopoly over information leads to a “right to exploit” the monopoly, which leads to acquisition of profit (money), which is a scarce resource. The problem with the latter maneuver is that the profit comes from money voluntarily handed over to a seller by a customer. But the customer owns his money until he chooses to spend it. No other person has any property right claim in other people’s money or, thus, in any possible future income stream or profits.

Third, even if support of airwave property rights were to imply some type of possible rights in information or the right-to-exploit information, it does not imply that legislated IP rights systems like patent and copyright are justified (see, e.g., Legislation and Law in a Free Society). The advocate of an IP system that is somehow compatible with EM spectra rights has the burden of making a positive obligation for this system, and specifying its details. He can’t just say that IP is justified just because some of its opponents favor EM rights or are confused on the EM issue.

Finally, and to complement the previous point: even if you can argue that EM rights are valid, and do somehow impinge on normal property rights in scarce resources (which I disagree with), this does not mean that “anything goes”, that just any limits on property rights in scarce resources are justified (and this is a point I emphasized in the lecture—see slides 14-15, and my posts The Non-Aggression Principle as a Limit on Action, Not on Property RightsIP and Aggression as Limits on Property Rights: How They Differ). Again, the IP proponent would need to put forth a positive argument for IP rights. It cannot be established by criticizing its critics. As an analogy: suppose someone believes conscription is justified, but also opposes rape. You cannot show that rape is justified just because some people are wrong on conscription; you cannot even show that rape is justified if conscription is justified.

Another argument I sometimes hear is exemplified here:

By such a viewpoint there’s nothing wrong with raiding an online bank account – how can the account holder claim to own something as arcane as electronic digits? People can’t claim to own electricity or numbers hence they can’t claim ownership of so-called electronic money let alone complain when they’re account is gone. For anyone to claim ownership of money it has been made out of a physical medium such as paper or metal, right?

In other words, we all believe it’s wrong to get into someone’s bank account; yet this requires something similar to IP—ownership of nonscarce things. Therefore, if it’s okay to own money in a bank, why not the patterns of information protected by patent and copyright. Well: in a free society, money would be gold, a scarce thing. You don’t need anything IP-like to protect property rights in such scarce resources. Pointing to the fiat money created by the state and related rules hardly justifies the state creating property rights in ideas. Further, even in today’s fiat society world, we can say that it’s a rights violation for someone to access your bank account, because to do that requires accessing scarce resources owned by the bank, and when deception is used, this is fraudulent: the deceptive person gains entry under false pretenses, meaning that the consent given by the bank is not valid, meaning that he is committing a form of trespass. (For more discussion of related issues, see my post Why Spam is Trespass.) (A similar argument is made by Jamie McEwan; see  Yeager and Other Letters Re Liberty article “Libertarianism and Intellectual Property”).


{ 2 comments… add one }

  • Peter Šurda October 16, 2012, 10:29 am

    J. Neil Schulman still thinks that metaphysics can disprove logic. It’s kind of like the ontological argument for the existence of god: we can conceptualise it, therefore it exists.

    Maybe next time you talk to him, you can tell him that the metaphysical existence is irrelevant, because rights can only be evaluated from the point of view of human action, and there is no immaterial human action. As an example, you can tell him that if he can conceptualise a book, then he can also conceptualise you paying him for it, so you’re even.

  • aaeru October 20, 2012, 11:15 am

    Transcribed a passage from the podcast no.2:

    In human life, there are two aspects of successful action. That is the actor has to have knowledge. Knowledge that informs him into what ends are possible, and knowledge as to what causal laws there are in the world that lets him choose their means, scarce means, that will help them causally achieve the ends. You have to have means, you have to have actual physical control, causal control over these means in order to achieve what you want. And the scarce means of action, are scarce. There is only so much of them to go around. That’s the way the world is.

    The free market heroically despite this, is always seeking to increase abundance. Even though we don’t have infinite abundance the free market is trying to increase abundance. Trying to alter means, find more efficient means of producing goods, lowering costs, increasing abundance. Basically, making things less scarce, even though we will never get away from that completely. So the market is trying to overcome this challenge that we have which is that there is scarcity in the physical world. There is lack of super-abundance but the free market tries to make things more abundant.

    But, that’s one ingredient of action, that’s having available these things to achieve our ends. But the knowledge luckily is already non-scarce. Knowledge can be multiplied or copied infinitely. Everyone in the world can know how to bake a cake at the same time. That’s why we have an increasing body of knowledge every generation because the more things people learn, the more it is recorded and transmitted, and learnt by others down the ages. We have this almost infinite duplicable body of knowledge that we can dip into to use. And the more of it the better. So the free market tries to overcome the problem of scarcity in the physical world but the law, tries to impose scarcity on knowledge, which is already non-scarce. So it is kind of a complete perversion.

To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.