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Questions about Homesteading and Rothbard’s Contractual Copyright Ideas from a Student
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Questions about Homesteading and Rothbard’s Contractual Copyright Ideas from a Student

I received a query about IP from Aaron Easler, a student at Grove City College who had taken a recent course “Economics of Intellectual Property,” taught by my friend Jeff Herbener and covering my Against Intellectual Property. His message to me is reprinted below, with permission, as is my reply.

Hi Stephan, I don’t know how familiar you are with Grove City College and their economics department, but it’s very Austrian and at least Dr. Herberner, the header of the department and senior fellow of the Mises institute is an Anarchist.

Anyways, a few students were really interested in the IP topic and talked him into starting a 1 credit course in IP, which primary consisted of dissecting the various parts of your book and case studies through class-led discussion and debate.

I’ve come to have two main questions/points of contention with your argument. The first is more minor and concerns your criticism of Rothbard and his conception of Copyright though contracts and the other involves your definition of how property is established.

Your main concern with Rothbard’s copyright argument is that a third party who gets ahold of the work cannot reasonably be subject to same contract and had no way of knowing which of two identical works, one with copyright enforced and one without, was copyright protected. Isn’t it fairly reasonable to assume that the copyright-protected one would simply have “copyright” written in it on the opening couple of pages, as they do today? In that environment, why wouldn’t someone who finds a book and accepts the copyright as legally-recognized proceed as he does when finding someone else’s physical property in much the same way?

The second, and more consequential, argument I found unclear was your assertion that ownership of property is established through homesteading. First of all, what is homesteading other than claiming ownership of something that previously hasn’t been claimed? Under that definition alone, couldn’t someone, seeking to legitimatize IP, make that same claim to new thoughts?

More importantly, you reject the notion that establishing ownership requires mixing your labor with something and give the example of someone cutting a neighbor’s shrubs and deeming them his own. However, this obviously wouldn’t be legitimate because it is already owned by someone and can’t be taken through coercion..but how do you define homesteading? It’s just as preposterous to say that by going to some spot and saying your presence in some arbitrarily-defined boundary is yours, too. Presumably, the act of homesteading itself requires DOING something to the land or object that you’re acquiring. Where colonization occurred naturally, via homesteading, the amount of land they acquired surely involved working the land in some sort. So a short version of this question would be: How do you define homesteading and its process?

I know you’re busy and spend a lot of time making your case to much bigger fish than me, but I tried to to at least pose questions that you likely don’t answer every day. Thanks for your time and your (not sloppy) contribution to the IP discussion

My reply:

Yes, I know Jeff well, have known him for years, via Mises Institute functions.

If you guys need some suggestions for more or updated or additional readings, let me know.

Re Rothbard I am working on a long post now about some of this; stay tuned.

Before going into your points in detail, consider this. A sells a mousetrap with some innovative features. There are thousands of copies of it on store shelves. The packaging prominently mentions its innovations to help sell the thing. It has “a new and improved X” or whatever. It becomes popular and starts selling. A makes a profit. Competitors C notice and start adopting similar innovations. They learn from A’s product, they emulate it, they compete with it. A has no legitimate complaint.

Now consider that A first sells the mousetrap to B, but makes B agree not to copy the mousetrap or to use the innovations in any other mousetrap B might make. How does this agreement change the above situation? If A or even B now sell the mousetrap and C observes these features, why can’t C still copy the innovative feature and compete as before?

Consider also that “work” is ambiguous. In copyright law it refers to the pattern of information itself, fixed in a tangible medium of expression. If I buy a copy of Harry Potter—a physical book—the “work” is not really that physical object but the pattern instantiated therein. So if I write a novel there are two ways I can “give” or “convey” the “work” to you: I can sell you a physical book containing the work, in which case (under current law) I am not selling the work to you but only the physical object. I am only giving you a license to use the work for limited purposes. You own the whole book and can resell it, but b/c you do not own the “work” you cannot print copies of the work–that is the exclusive right of the author. I can also give you the work electronically or digitally—without selling you any physical object—e.g. an epub or kindle download. I make this distinction because A “selling” the “work” to B does not necessarily mean that B owns some object that A retains some rights in, that C might handle and use; for C to somehow observe or gain access to the “work”—the pattern of information—does not require him to use any physical object that A sold to B. That is why third parties C are not necessarily bound by any contract or limitation of rights between A and B. It’s just a private contract. Just as C is able to compete wiht A in the mouse trap case because C observed things in the world and learned from it (without violating any contract of A and B, and without committing any act of trespass against any object owned by A), same here: suppose B posts the kindle file on the pirate bay. It’s a file, a pattern of information on some computer server owned by some third party, not A and not B. C downloads the file and thus can print it or whatever, as he has never agreed to any contract with A and did not commit any act of trespass by downloading the information.

Now:

“Your main concern with Rothbard’s copyright argument is that a third party who gets ahold of the work cannot reasonably be subject to same contract and had no way of knowing which of two identical works, one with copyright enforced and one without, was copyright protected. Isn’t it fairly reasonable to assume that the copyright-protected one would simply have “copyright” written in it on the opening couple of pages, as they do today?”

See above: the work need not be a physical object that some third party C has to find and handle and use. Even if you say there is a paper book that A still partly “owns” and that C has no right to “use” unless he agrees to A’s copyright conditions, C can find a way to get the “work”—the pattern of information—without handling any phyhsical book or object still partially owned by A. There can be electronic copies, for example. Or perhaps B has removed the copyright notice. Or perhaps B has printed a brand new copy of the original book, without a copyright notice–and C finds this copy. Sure, B should not have done these things but what if he does? Finally, even if C finds a book owned by A with a copyright notice, I am not convinced that this suffices to form a contract. (See The Libertarian View on Fine Print, Shrinkwrap, Clickwrap and Enforceability of Browsewrap vs. Clickwrap). Was there consent by C? Was there a meeting of the minds?

Suppose I write a book and on the inside cover I write: “By using this book you agree to pay me a million dollars.” C finds the book on a park bench and starts flipping through it. He sees the ransom term and freaks out, drops the book and runs screaming from the park, now worried he owes me a million dollars. Implausible, right? At most, if C finds a book that has a copyright notice and that is still owned by A, then I would say once he realizes the book is not abandoned and is still owned by A, he has to stop using the book in ways that A does not consent to and/or return the book if A asks. But suppose C has read the book in the meantime—does he have to forget the information? I say no.

“In that environment, why wouldn’t someone who finds a book and accepts the copyright as legally-recognized proceed as he does when finding someone else’s physical property in much the same way?”

See above. And realize that there is a difference between the owner of an object granting permission to others to use it, and the formation of a binding contract. For example I can prevent you from driving my car or entering my house without my permission, or I can grant permission that is limited in some ways—I grant you permission to drive my car for a day and only within city limits and only for noncommercial purposes, and in a safe manner. If you use the car in other ways you are committing a type of trespass. I suppose you are incurring an obligation to pay me some kind of restitutive damages—either for contract breach or trespass, something like this. But when I grant you permission to use my car the terms of the permission are a “contract” in this sense, but I can’t make you agree to pay me money based on random or arbitrary conditions without coming to an actual agreement with you on it. I can’t just put a notice on the seat saying “as soon as you sit down you agree to pay me a million dollars; that is the condition I am setting on use of my car”.

“The second, and more consequential, argument I found unclear was your assertion that ownership of property is established through homesteading. First of all, what is homesteading other than claiming ownership of something that previously hasn’t been claimed?”

Something ownable. We are talking about ownable things only. That means things over which there can be conflict. That is the purpose of property: to allocate ownership to things that otherwise would be subject to conflict, so that they can be used peacefully and productively. I discuss this in detail in my recent speech on Locke (Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory). Also see
Hans-Hermann Hoppe, “Of Private, Common, and Public Property and the Rationale for Total Privatization”, sec. I, A Theory of Socialism and Capitalism, ch. 2, and The Great Fiction, chs. 2–4 et pass., and my How We come to Own Ourselves, and What Libertarianism Is.

Given that we accept that ownership of a particular scarce resource ought to be settled by use of the Lockean homesteading rule combined with contract (that is: for a given scarce resource in dispute, we determine who owns it be asking: which of the claimants has a better claim based on earlier use and possession, or by contract from a previous owner?)—then assigning rights in non-scarce “things” like patterns of information, ideas, recipes, etc., always has to be enforced against already-owned scarce resources and thus it sets up a new ownership rule: the owner of the paper and printer in your office is not you (normally it would be: since you acquired these resources by contract from previous owners), but it is some third party who came up with and made public some pattern of information, giving them a negative servitude in your own property. The problem is you never contractualy agreed to grant this negative servitude, nor did you commit any act of tresass or tort against this third party what would justify them seizing some of your property rights. I discuss this in Intellectual Property Rights as Negative Servitudes.

” Under that definition alone, couldn’t someone, seeking to legitimatize IP, make that same claim to new thoughts?”

No, because thoughts are not ownable things, and we can see this as noted above. Please realize that it is literally impossible to own a nonscarce resource. To own means to have the legally recognized right to exclude. That literally can only apply to scarce resources. Ideas can be copied to infinity and used and possessed by a billion people at once. It is literally impossible to have a property right in such things. So what the law does is transfer property rights in scarce resources owned by peaceful people, to the IP “owners”—property rights in other people’s bodies, cars, factories, paper, ink, printers, bank accounts.

“More importantly, you reject the notion that establishing ownership requires mixing your labor with something and give the example of someone cutting a neighbor’s shrubs and deeming them his own.”

No, I do think you have to mix labor. I just don’t think you need to say that the labor is owned, to make this argument. It’s an unnecessary step. See the Locke speech mentioned above and “Hume on Intellectual Property and the Problematic “Labor” Metaphor”.

What I do believe is that “mixing labor” is not SUFFICIENT. You have to mix labor with an UNOWNED SCARCE RESOURCE to homestead it. You can’t mix labor with an owned resource and own it–that is actually trespass, or it is done by permission of the owner, in neither case of which do you own the resulting transformed product (unless the owner has agreed contractually to let you have it). I also think you have to “mix labor” in such as way as to establish some kind of publicly visible borders, so that people can see the nature and scope of the resource and that you are claiming it as owner and they know how to avoid trespassing, they know what to ask permission for and to whom to ask it. The more general idea is embordering as Hoppe explains in ch. 2 of TSC—I suggest you take a look. Embordering is of course a type of action: action that an actor performs to set up borders around or in some previously unowned scarce resource. There is no reason to call this “labor mixing” but I suppose it is a useful metaphor—but only that. Labor just means a subset of action—action that is not leisure. Why not call it action-mixing? Etc. You do not own your thoughts or your love or your memories or your desire or your time or your actions or your labor. Action is what you do with your owned property (your body and other resources at your command).

” However, this obviously wouldn’t be legitimate because it is already owned by someone and can’t be taken through coercion..but how do you define homesteading? It’s just as preposterous to say that by going to some spot and saying your presence in some arbitrarily-defined boundary is yours, too.”

Depends on what you are doing. I agree that mere verbal decree is insuffiicent, as hoppe explains. The reason is it does not set up an objective borders, and it also does not serve the purpose that property rights are for: to reduce conflict: because any number of people could make verbal claims to some resource, leading to conflict and no objective way to resovle it. It has to be someone doing something with it that sets up borders. The extent of it is determined in accordance with what Rothbard calls the relevant technological unit (see his air pollution piece). But notice that if I do go to an unowned spot and somehow use and appropriate and transform it thus establishing borders, no one else can complain about this–if they do complain about it, and assert that i had no right to homestead it, THEY are claiming to be the owner (because only the owner of a resource has the right to prevent me from using it!). But that is contrary to the assumption that the resource was unowned. Plus, their decree is merely verbal.

” Presumably, the act of homesteading itself requires DOING something to the land or object that you’re acquiring.”

Yes. I don’t think I have ever denied this. Maybe you are getting confused since I denied that we own labor. I never said you don’t need to mix labor with a resource to appropriate it. (Though I recognize this is a potentially misleading metaphor and, as I noted above, could be worded differently: embordering, appropriating, “using,” “transforming” and so on.)

“Where colonization occurred naturally, via homesteading, the amount of land they acquired surely involved working the land in some sort. So a short version of this question would be: How do you define homesteading and its process?”

Same way other libertarians and Locke do. And Rothbard: the relevant technological unit idea. How much is actually used.

Update:

Here is another recent reply to another query from a reader:

From the reader, “G”:

Hi Stephan, I don’t think we know each other, but I’ve been enjoying “Against Intellectual Property” and “Law and Intellectual Property in a Stateless Society”, and I have a question and an example on the subject of copyright to which I’d love to hear your reply.

It seems to me that a copyright notice could be interpreted, where appropriate, in a stateless society or otherwise, as conditions of use attached to certain works equivalent to the statement “by accessing or using this, you agree to be bound by the following standard copyright Terms and Conditions”.

If that is true, it seems to me that this could be interpreted to bind all users of the work, whether or not they had entered into an explicit contract with the original producer. Reading a book, second-hand or not, would be analogous to browsing a website which has terms and conditions of use (as most websites do). It would be a contract implied in access or usage, even without an explicit agreement on the part of the consumer. Do you think that this interpretation would be fundamentally incompatible with libertarianism?

Additionally, I have thought of an extreme example which might test whether IP should ever be protected. I don’t know much about American football, but I understand that Fox will be broadcasting Super Bowl 2014. Do you think that it would be compatible with libertarianism for NBC or some other TV network, acting as a third party, to use a legitimate Fox viewer’s TV feed to broadcast the Super Bowl simultaneously or with a slight delay? If not, is this for IP or for other reasons?

Thanks for reading, and for all your interesting work on this subject,

Regards

[G]

My reply:

See: http://archive.mises.org/9923/the-libertarian-view-on-fine-print-shrinkwrap-clickwrap/

The Libertarian View on Fine Print, Shrinkwrap, Clickwrap

and

I have some skepticism about the validity or enforceability of contracts where there is no meeting of the minds. You can view the notice on a book as more like a “no trespassing” sign someone hangs on their fence at their yard or pasteur–it is announcing that the object is owned and that the owner is NOT granting permissions to use it. But at most, this would mean that the person picking up the book (and how did this happen? was it lost? sitting on a park bench? Or on the coffee table at a friend’s house–in which case, does this mean the friend only co-owns the book with the original author?) and knowing there is a copyright warning knows that he can’t use the book in certain ways. for example if it says “you may not read this” then it could be trespass to read it. BUt if it has more complicated terms like “you may read this but only on the condition that you agree to pay me a million dollars IF you ever copy the information you glean” — then I have doubts as to that contract’s validity, any more than if it said “if you read this book you agree to give me your first born child.”

Further, even if the persona handling the book were somehow bound, others who obtained the book-info in other ways would not be. For example suppose he posts a scan of the book online. Now additional parties who download this file are never handling an object owned by the author, so they cannot possibly be bound.

“If that is true, it seems to me that this could be interpreted to bind all users of the work, whether or not they had entered into an explicit contract with the original producer. Reading a book, second-hand or not, would be analogous to browsing a website which has terms and conditions of use (as most websites do). It would be a contract implied in access or usage, even without an explicit agreement on the part of the consumer. Do you think that this interpretation would be fundamentally incompatible with libertarianism?”

“work” here refers under copyright law to the pattern in the novel, not to a physical copy. For such things I do not think the conditional contract works at all since information is not ownable in the first place. The contract works by placing conditions on use of some thing you have no right to use without permission of the author. so a physical book is an owned thing. If I own it i can deny you the right to use it; you need my permission to use it because it is an owned thing. So then I can use this to bargain wiht you–“I will withhold permission for you to open this book unless you agree not to copy it (and to pay me lots of money if you do)”.

But this cannot work for things the reader needs no permission to do. So if you build a house that is in public view you cannot prevent me from observing it–that is not a “use” of your property. It is not a trespass. If you play your music on your lawn and I record it, I am not using your property or trespassing. If you show your home movie on an outdoor screen at night, I am free to record that. You cannot stop me, so you cannot use the right to grant me permission as a way to induce me to enter into any non-copy contract. You have no right to withhold permission. It’s the same for copies of your book that get uploaded to the internet–that is just a pattern of info residing on some else’s property, not the author’s. You simply do not trespass against his property when you download the file, so he has nothing to say about it.

“Additionally, I have thought of an extreme example which might test whether IP should ever be protected. I don’t know much about American football, but I understand that Fox will be broadcasting Super Bowl 2014. Do you think that it would be compatible with libertarianism for NBC or some other TV network, acting as a third party, to use a legitimate Fox viewer’s TV feed to broadcast the Super Bowl simultaneously or with a slight delay? If not, is this for IP or for other reasons?”

this would be prohibited under today’s law but I see nothing wrong with it in a libertarian world. If you broadcast information, it is free. (I think Rothbard would agree too — see http://c4sif.org/2013/04/rothbards-high-tech-crime-a-call-for-papers-1983/ . However if you have some large broadcasters perhaps they would be in a cartel or multi-party agreement where they all agree not to do this with each others’ broadcasts — if state antitrust law would allow them to do this, that is.

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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.