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Objectivists on IP

From Mises blog; archived comments below.

As I noted in a recent post, an Objectivist had written a critique of libertarian arguments against intellectual property. At the time the article was not available online, but it has since been posted: Don’t Steal This Article. I have not had time to reply in detail, but let’s just say, for now, I think the critique–while a decent attempt, about as good as you can do given some of Rand’s premises–is confused and utterly unpersuasive.

Comments (94)

  • Roy W. Wright
  • …about as good as you can do given some of Rand’s premises…

    What a deliciously ironic thing to say.

  • Published: May 3, 2006 5:56 PM

  • Roy W. Wright
  • I’ve now read the article, which was easier than I expected due to its lack of actual substance. I found most of it to be empty, parroting, religious rhetoric, typical of Randists. There was one section worth responding to, though, as it seemed almost an honest attempt at debate:

    The first thing to note is the plain fact that people are routinely prevented from using their material property when it would violate any right — so the protection of intellectual property rights would not be unique in so “controlling” other people in their use of their material property.

    Ah, but IP is unique in stopping people from using their material property in nonaggressive and even entirely private ways.

    Recall that intellectual property rights protect the manufacture of creations — objects which did not and would not otherwise exist. Before a novel has been written, absolutely nobody has the power to publish it, so its being authored cannot remove any liberty previously enjoyed by printers.

    The way the article’s author breezes over the ugly realities of copyright law — the aspects of it to which libertarians most strongly object — is tantamount to a strawman. Most libertarians are concerned not so much with the rights of printers, but with the ability of ordinary people to use their own property as they see fit, to not constantly be spied upon as they must be under copyright law.

    And before some better mousetrap is invented, nobody has the power to produce it — so its being invented cannot deny manufacturers any previously enjoyed freedom.

    What profoundly faulty reasoning. We do not owe the existence of a given device to the first of possibly several persons to invent it. But under patent law, that first person has the power to forbid others from using their own property to assemble it.

  • Published: May 3, 2006 6:56 PM

  • Roy W. Wright
  • Since the Randist position seem to be, essentially, that any person who produces something useful has a right to be paid for it, let me also note something that has been said by others in that regard. An important side effect of making a great scientific discovery or inventing a device with the potential to improve the lives of others is that the discoverer or inventor gains a tremendous insight into future market conditions. Such an insight is fairly easily parlayed into profit.

    There is also the matter of first-mover advantage, in many cases.

  • Published: May 3, 2006 7:10 PM

  • David C
  • A farmer who is the first to grow an orange grove in his country, doesn’t deserve a monopoly on orange growing and epsecially isn’t entitled to sell shares of that monopoly as a property right. I thihk the mistake here is the belief that property exists to create incentive and compensation, it doesn’t. It exists to allocate limited supply justly with respect to individual liberty – and that often has a consequence of incentive and compensation.

    Getting rid of copyrights won’t change the drive for incentive and compensation, it will just make it so that information based services are used to create value rather than information based controlls. In fact the real issue is that the information age is forcing the service value of information to be more valuable than it’s content value which is creating trillions of dollars worth of pressure to kill the copyright system. As that pressure grows, copyrights and all the industries that center on them are pretty much pre-destined to die.

     

  • Published: May 3, 2006 10:02 PM

  • Franklin Harris
  • I am on the fence regarding IP, but I think Mr. Wright is being unfair to the Randian case. First, the Randians and not building a case that necessarily prohibits my making copies of IP for my personal use. My then selling it, however, is another matter, and certainly not a trivial one. Israel Kirzner is working along similar lines when he defends property rights in terms of “discovery,” which has always had an intuitive appeal to me, although, looking back at David Gordon’s review of Kirzner’s argument, I may be one of the few who feels that intuition.
  • Published: May 3, 2006 10:12 PM

  • Roy W. Wright
  • I am on the fence regarding IP…

    IP is actually one of the least settled issues in my mind, believe it or not. Neither side is 100% satisfactory to me, but Kinsella’s writings are far, far more convincing than this article.

    First, the Randians are not building a case that necessarily prohibits my making copies of IP for my personal use. My then selling it, however, is another matter, and certainly not a trivial one.

    I agree on a visceral level, but logically I see no reason to distinguish the two acts. Can you give me one? Now obviously, passing someone else’s work off as your own is fraud, but what if you’re honest about the work’s authorship?

  • Published: May 3, 2006 10:55 PM

  • Vanmind
  • IP on a daily basis…
  • Published: May 4, 2006 12:22 AM

  • averros
  • “Intellectual Property” is newspeak.

    The proper name for it is “Government-Issued Temporary Monopoly Rights”.

    Does change one’s perception a bit, yeah?

    And now this “IP” is being used as an offensive weapon against poorer countries trying to compete with the US.

  • Published: May 4, 2006 1:05 AM

  • Martin CLarke
  • The thing I find interesting is the smugness of the Objectivists. Most of them have never studies the history of philosophy in any depth, but they have no qualms about denouncing ideas as “Platonic abstractions” and the like.

    And of course they can’t do without the praise of Rand for her brilliant “economizing” article which focuses on “essentials.” That’s what we call short and superficial if it’s by anyone other than Rand.

  • Published: May 4, 2006 6:13 AM

  • Paul D
  • “My then selling [information, thoughts, etc.], however, is another matter, and certainly not a trivial one.”

    What do you find difficult about it, if I may ask? If you wish to share with me a song, story, or idea in exchange for some money, how can it possibly be a concern to anyone else, including the person who first thought of that idea? Our transaction is entirely private and non-violent.

    “Since the Randist position seem to be, essentially, that any person who produces something useful has a right to be paid for it.”

    So rather than having abusive copyright laws, simply giving welfare payments to “creators” might be more intellectually inconsistent (however stupid).

    “IP” is not a right. It’s an anti-right, the very opposite of charity, designed to punish people who benefit from what you produce.

  • Published: May 4, 2006 7:18 AM

  • Paul D
  • Sorry, the above phrase in my third paragraph should read “intellectually consistent”, not “inconsistent”.
  • Published: May 4, 2006 7:19 AM

  • lorenzo sleakes
  • Every author has the right to sell a book with the contractual stipualtion that it wont be copied. The purchaser of the book has agreed to that. If the purchaser uploads the book contents to the internet and some other party who never agreed to the contract then downloads it and sells it as his own then he is marketing in stolen property because the purchaser of the book violated the contract by making the book contents public. My point is that IP can be justified as a practical matter of making private secrecy contracts enforceable.
  • Published: May 4, 2006 8:15 AM

  • Paul D
  • You are right, Lorenzo. Something similar to copyright could come about from contracts negotiated between buyers and sellers. The possibilities of voluntary restrictions rarely go far enough for State Copyright proponents, though. For example:

    1. An onerous, heavy-handed contract would probably fail in the marketplace (which is why copyright proponents prefer to enforce their own arbitrary terms with State power).

    2. Contracts can be broken, and while there might be some financial penalty, the bookseller can’t use violence to punish his buyers if they break the contract.

    3. If a buyer shares his book with others anyway, those recipients are bound by no contract. One copy in the wild is all it takes for digital media, so contracts are fairly ineffectual.

    In a free market, I believe the following outcome is more likely:

    1. Major publishers and retailers (of books, music, etc.) would form contractual associations and agree not to copy each others’ works within certain time-spans. The advantages of belonging to such an association would outweigh the advantages of copying any single work and being booted out. Additionally, the terms of the contract would be set by the market (i.e. be beneficial to all parties), as opposed to current arbitrary copyright terms.

    2. Being first to publish would remain a major incentive for creativity, but publishers would no longer be able to rely on milking the same work for years, decades or centuries. Each new Harry Potter book makes boatloads of money its first *hour*. Who cares if someone else manages to make a copy of it a few weeks later?

    3. Companies would find more creative ways to benefit from creative works. CDs would be sold with better liner notes and extras; computer games would include game guides, maps, and other entertaining materials in the box again (like they used to). Et cetera…

    The truth is, we can only guess what forms the free market would take if we let it really be free. Who could have predicted automobiles, computers, and the Internet, after all?

  • Published: May 4, 2006 8:57 AM

  • Artisan
  • I regularily see the desire of many libertarians to abolish copyright. Apart from the confusion between patent regulation and copyright, which seems too convenient to stimulate for argumentation sake (despite the major differences: mainly the question of functionality ), I would love to see more “praxeology�? on the copyright opponents’ side and less passion too…

    Paul D
    Just because the State cares about it doesn’t mean its evil. That would make hell too crowded. To assume copyright has no viability without the enforcement on State level is an argument that has little to do with Mises’ great praxeology, and I’m not quite sure it is quite exact either as you mention:

    “Contracts can be broken, and while there might be some financial penalty, the bookseller can’t use violence to punish his buyers if they break the contract.�?

    Do you really get thrown in jail for copyright infringement in the US? I know no European country where this happens right now. It is graded as “civil�? law, not “penal�? over here.

    Roy W. Wright
    “ … Now obviously, passing someone else’s work off as your own is fraud, but what if you’re honest about the work’s authorship?�? .

    In terms of praxeology again this reasoning is contradictory. Either you recognize the existence of “intellectual PROPERTY�? and therefore you recognize its exploitation lies by the owner of that property, or you say immaterial “property�? being “not scarce�?, it has no existence as property, which means, why not, you can print your own name on the cover of Hans-Hermann Hoppe’s last book, and sell it for your own profit.

  • Published: May 4, 2006 10:21 AM

  • lorenzo sleakes
  • Yes..IP such as copyright if done impropertly ..can be a real restriction on rights of freedom and liberty.
    But there is no need to throw out the baby with the bathwater.
    For the contractual secrecy agreement implicit in copyright to be legitimate it must cover some creation of such high specificity that it never would have been independenty created by someone other than the original author.
    To deny one the freedom to write “Atlas Shrugged” is in the real world no restriction of freedom at all.
  • Published: May 4, 2006 12:14 PM

  • sp3tt
  • Artisan,

    Printing one’s name on the cover of a book written by someone else is a clear case of fraud. However, I do not see why anyone would want to do that, given sufficent fame of the book to start with. Would you rather read Human Action by Ludwig von Mises, or Human Action by John Doe?

  • Published: May 4, 2006 12:57 PM

  • Stephan Kinsella
  • Roy Wright: “Now obviously, passing someone else’s work off as your own is fraud, but what if you’re honest about the work’s authorship?”

    Why is it “fraud”? I think laymen are notoriously careless in throwing this term around without defining it. Does it just mean “lying”? To my mind, “fraud” is the act of deceiving the other party to a transaction about the nature of what you are giving him in exchange for what he is giving you. So it is a means of gaining the other party’s things by trick or deceit–that is, it is a type of theft, since you don’t have the owner’s “consent” to possess/use his property–since the “consent” is conditional on your not lying about the things you are using to pay for it.

    So is putting my name on, say, a Shakespeare play “fraud”? Not necessarily; and in fact, it’s hard to imagine how it could be. If I sell a play called “The Tempest” with my name on it, who, exactly, have I defrauded? The buyer? I guess, perhaps, but you’d have to show exactly how I took his money without his (genuine) consent, to demonstrate that it was fraud.

  • Published: May 4, 2006 2:31 PM

  • Stephan Kinsella
  • Roy: “And before some better mousetrap is invented, nobody has the power to produce it — so its being invented cannot deny manufacturers any previously enjoyed freedom.

    What profoundly faulty reasoning. We do not owe the existence of a given device to the first of possibly several persons to invent it. But under patent law, that first person has the power to forbid others from using their own property to assemble it.”

    Yes, exactly. It is irrelevant that without the first originator of an idea you would not have been able to make it anyway. So what? The question is simply: am I entitled to manipulate and use my own property as I see fit–of course, it is guided by various technical information I am aware of–facts and ideas in my head. What does it matter what is the pedigree or origin or history of the various ideas, facts, concepts, knowledge that I have assimilated? This information, knowledge, facts, beliefs, views, etc. is simply technical knowledge that I use to manipulate things and act in the world.

  • Published: May 4, 2006 2:36 PM

  • lorenzo sleakes
  • Stephan…Does an inventor have a right to sell a better mouse trap idea with the stipulation that the non-obvious new idea must be kept secret and cannot be disclosed to any non-parties to the agreement? If you say yes, its meaningless because it cannot be enforced. Some big company will steal it and you can never prove that they stole it. Thats why inventors accept the game of first come first serve because at least they have a chance to win. The public also accepts it because they need inventors. So I accept that patents are legitimate. The question then becomes how long should a patent be for and I would say not very long – because in this age of global research and communications it is almost certain that any new invention would have eventually been invented by someone else in a short period of time.
  • Published: May 4, 2006 4:09 PM

  • Artisan
  • Although I find these later raised issues not really capital, let me please say something more about them.

    sp3tt
    Printing one’s name on the cover of a book written by someone else is a clear case of fraud. However, I do not see why anyone would want to do that, given sufficient fame of the book to start with.

    Quite true, sp3tt, my example was not well chosen…
    but let’s not talk about the rich and famous then…

    How about me, fairly unknown writer, publishing a great guide on all good restaurants in town, and then the slightly bigger publisher next door, with a better distribution network, with better advertisement facilities also, puts his name on a cheaper reprint (that second publisher doesn’t have to carry all the expensive meal costs either). I’m asking you, why should this publisher put my name on that book reprint really, as it would only allow thus the potential buyer to look up his smaller publishing concurrence?

    @Dr Kinsella
    who, exactly, have I defrauded? The buyer? I guess, perhaps, but you’d have to show exactly how I took his money without his (genuine) consent, to demonstrate that it was fraud.
    I’d say, the trouble with advertisement is that you cannot measure exactly its efficiency in monetary profit, yet you can bet there’s some, as you see big corporations spending billions on it.

    How can this be no fraud though, when this publisher takes the glory from another man’s outstanding work, for his own publishing house as advertisement? It is defrauded quality advertisement for the seriousness of his publications. There’s no excuse for that…

  • Published: May 4, 2006 5:01 PM

  • Stephan Kinsella
  • Artison:

    “‘@Dr Kinsella
    who, exactly, have I defrauded? The buyer? I guess, perhaps, but you’d have to show exactly how I took his money without his (genuine) consent, to demonstrate that it was fraud.’

    “…How can this be no fraud though, when this publisher takes the glory from another man’s outstanding work, for his own publishing house as advertisement? It is defrauded quality advertisement for the seriousness of his publications. There’s no excuse for that…”

    AGain, this is a failure to carefully define what you mean by “fraud” and to identify who the victim of the fraud is and what exactly was the fraudulent action.

  • Published: May 4, 2006 5:29 PM

  • Artisan
  • As a lawyer defending the opposite opinion to mine Dr Kinsella, you may feel it is not carefully enough defined, and I’m sorry I can’t do much better, not being a professional lawyer myself… (this being said, your own description of property as a mere subordinate to “scarcity�? fails to convince me as well).

    Anyways, maybe another judge than you would see that the victim is the author of the book – as the example of the restaurant guide above should have shown. He invests in preparatory work and in advertisement which are both diverted for the profit of another.

  • Published: May 4, 2006 7:07 PM

  • Paul D
  • “To assume copyright has no viability without the enforcement on State level is an argument that has little to do with Mises’ great praxeology”

    I can imagine no copyright without the state. How someone else could gain the ability under the free market to control what I do with my own property and to control what information I share is beyond me. I do accept that there may be contracts for very limited situations.

    “Do you really get thrown in jail for copyright infringement in the US?”

    In the US, yes, you can. In fact, you can be jailed for watching your own DVD under Linux, since you’re using software that circumvents a copyright protection, a criminal offense by the DMCA. I believe California also has a law making it a criminal offense (with jail terms) to copy a movie with your camcorder. More such laws are on the way — a new one is proposed monthly, it seems. One proposes to make it criminal to sell equipment that records high-definition signals, or to tinker with your equipment to make doing such possible. Another proposes criminal punishments for selling DVRs that can record TV when a “broadcast flat” is present. Another proposes to outlaw podcasts and streaming radio that does not use DRM (i.e. special copyright encryption). A proposed law in France imposes criminal punishments (jail time) for *receiving* copyrighted information. Und so weiter…

  • Published: May 5, 2006 8:17 AM

  • Paul D
  • I would also like to remind Artisan about Dmitry Sklyarov, the Russian cryptography researcher who was arrested and *jailed* in the US, not because he even violated any copyrights, but because he told people how they could remove the encryption from their Adobe ebooks (and thus make backup copies or whatever).

    Russia had to issue a warning to their citizens about travelling in the US, since that country had apparently turned into some freaky gulag where you’re arrested for spreading the wrong information.

    There is nothing good, nothing free, in any of this copyright nonsense. It’s pure state fascism and bullying.

  • Published: May 5, 2006 8:23 AM

  • Stephan Kinsella
  • Lorenzo:

    Stephan…Does an inventor have a right to sell a better mouse trap idea with the stipulation that the non-obvious new idea must be kept secret and cannot be disclosed to any non-parties to the agreement?

    As you word your question: yes, as the owner of something, you have the right to sell it; and since there is free speech, you can “stipulate” anything you want. I can sell it with the “stipulation” that Jupiter explode tomorrow.

    I think your question is: if I sell something with such a stipulation, should the stipulation be legally enforceable. I think what you really mean is: if A sells one device embodying his invention to B, and makes B agree not to divulge the secret, is this agreement enforceable? Can it be used to construct a type of patent or copyright regime? I answer this in detail in my article Against Intellectual Property, pp. 35-41.

    If you say yes, its meaningless because it cannot be enforced. Some big company will steal it and you can never prove that they stole it. Thats why inventors accept the game of first come first serve because at least they have a chance to win.

    “inventors accept the game”–this seems to be a wave-of-the-hand attempt to smuggle in the lame defense that we all are “presumed” to hypothetically “consent” contractually to some overarching legal system.

    The public also accepts it because they need inventors. So I accept that patents are legitimate.

    I don’t accept it. Now what do we do? Take a vote?

    Artisan:

    As a lawyer defending the opposite opinion to mine Dr Kinsella, you may feel it is not carefully enough defined, and I’m sorry I can’t do much better, not being a professional lawyer myself… (this being said, your own description of property as a mere subordinate to “scarcity�? fails to convince me as well).

    Yes, well, I never said, nor would I say, something as vague and ambiguous and metaphorical and non-rigorous as “property is a mere subordinate to scarcity”. I have no idea what such a sloppy sentence would mean.

    Anyways, maybe another judge than you would see that the victim is the author of the book

    Sure, the author is a victim–IF there is copyright or trademark rights. So this is a question-begging way of putting it. Anyway, you can argue that the author is a victim, but this does not necessarily implicate *fraud*, which you brought up with a wave of the hand as a way to justify IP rights.

    – as the example of the restaurant guide above should have shown. He invests in preparatory work and in advertisement which are both diverted for the profit of another.

    How does this show that there is *fraud*?

    Paul D:

    I can imagine no copyright without the state. How someone else could gain the ability under the free market to control what I do with my own property and to control what information I share is beyond me.

    Right. I agree. Likewise, it’s impossible to imagine “private” antitrust law arising–or minimum wage law, Americans with Disabilities Act, etc. These things are purely creatures of statute: that is, decrees by an agency of the state; that is, decrees by the state. Without the state, no state-decrees are possible.

  • Published: May 5, 2006 11:25 AM

  • R.P. McCosker
  • As I understand it, an important thrust of Perkins’s (expanding on Rand’s) argument is that tangible property owners wouldn’t have access to certain intellectual creations of others without an enforced monopoly as an incentive to create them — so that, as a practical matter, pre-existing tangible property rights aren’t being subtracted from by charging for or denying use of those intellectual creations. Instead, Perkins suggests, tangible property owners are in the (presumably objectionable) position of free riders if they use those creations without the creators’ permission.

    (I suppose this varies from the usual collectivist free rider argument insofar as, rather than being imposed in a blanket way, one need only pony up for IP when one opts to actually use it. Quite the opposite, in fact: The IP owner has the privilege of refusing altogether to sell the right to use an intellectual creation, whether to an individual party or across the board.)

    I’m uncomfortable with this argument by Perkins, but it also seems to me that its opponents have yet to present a slam-dunk principled case against it. I see it being chipped away at it, pointing out how there’s no satisfactory way to draw the line between what’s an original creation and what isn’t, how capricious and influenced government is apt to be in drawing and enforcing those lines etc. One might even question how productive at least some intellectual creations are when they often involve peremptorily squeezing in on others’ anticipated uses of their tangible assets.

    Of course, if we were the U.S. Supreme Court, we might cite against it the precedent of Roe v. Wade: Enforcing IP, like anti-abortion laws, necessarily entails invasions of privacy, and since the 9th Amendment (which the Court normally shrugs off, but for some unstated reason in Roe v. Wade was interpreted very broadly indeed) implicitly guarantees an individual right to privacy, all de facto enforcement of IP restrictions must be curtailed. 😉

  • Published: May 5, 2006 2:13 PM

  • R.P. McCosker
  • That last paragraph should instead read as follows:

    “Of course, if we were the U.S. Supreme Court, we might cite against it the precedent of Roe v. Wade: Since enforcing IP, like anti-abortion laws, necessarily entails invasions of privacy, and since the 9th Amendment (which the Court normally shrugs off, but for some unstated reason in Roe v. Wade was interpreted very broadly indeed) implicitly guarantees an individual right to privacy, all de facto enforcement of IP restrictions must be curtailed. 😉 “

  • Published: May 5, 2006 2:18 PM

  • quasibill
  • R.P.,

    It seems to me that there are two problems in the first paragraph:

    1. “tangible property owners wouldn’t have access to certain intellectual creations of others without an enforced monopoly as an incentive to create them” – is unproved, and as unprovable as the opposite conclusion, empirically. We just can’t know what would’ve happened in the absence of what DID happen. What can say is that logically, intellectual creation will happen in the absence of IP law.

    and

    2. “tangible property owners are in the (presumably objectionable) position of free riders if they use those creations without the creators’ permission.”

    The problem with the free-rider argument is that it can be used to justify anything. Do I benefit from the modernization of the Chinese infrastructure? I certainly do. Does that make me a free-rider?

    Also, the question of “free-rider” is in itself a loaded question. “Free-riding” is in fact the strength of a market, in that everyone benefits collectively from everyone else benefitting individually. Further, it posits that I want a certain benefit no matter what – which is of course a false assumption. The backyard light is the best example I’ve ever seen – my neighbor is concerned, rightfully or wrongfully, about crime in the neighborhood, and so wants to put a super bright light in his backyard. Now, there is no way he can limit the “benefit” generated by this light to only his yard (we have narrow lots), so he wants the neighbors to chip in. I, however, don’t think crime is much of a threat in our neighborhood, and further, that this light won’t do much even if it was. Finally, this light would shine in my bedroom and keep me awake at night, so I don’t want it built at all! Unfortunately, the free-rider proponents will force me to pay for it no matter what…

  • Published: May 5, 2006 2:56 PM

  • R.P. McCosker
  • Well, quasibill, you put me in the unpleasant position of defending Perkins. I think he’s another creepy Randroid, and IP has is such an intellectually wobbly ediface that I’d rather forget about it.

    But, to be honest, Perkins so far looks like he has a bit of a point here. Yes, with much IP — particularly patents — there’s no way to “prove” it wouldn’t be created during the life of its protection. So if it’s burden of proof you’re looking for, Perkins loses. But — in many if not most cases of copyright, mainly — it’s pretty persuasive that many creations wouldn’t’ve come into being without the singular contributions of the creators. *Moby Dick* wouldn’t be around without Herman Melville, *Huckleberry Finn* without Twain, *The Waste Land* without Eliot etc. Admittedly it’s hard to draw the line. Certainly some elements of fictional works could’ve come about through others. Without Doyle, someone else might’ve invented a character similar to Sherlock Holmes, though doubtless with some other name. It’s all intellectually sloppy in how IP gets applied — that’s one reason I’m so uneasy with it. But there’s some kind of truth in there.

    To counter that truth with a contrasting principle, I’d think, one needs to convincingly argue that such acts of intellectual creation shouldn’t confer ownership over the resulting products. There are ways that could be attempted, but can any of them be made tight? There’s a challenge.

    Now, as to free riders:

    I noted before that the kind that come up in the context of IP are distinctive from others inasmuch as one is only called on to pay for them if one opts to purchase their use. This isn’t (as it is so often when “free riders” are discussed) a case of being forced to pay for a (presumably beneficial) externality whether one wants it or not. The IP holders can only charge those who want to pay for the IPs (if the IP holder are even willing to offer their IPs for sale in the first place).

    In concluding, I oppose IP laws here and now because they’re necessarily very messy and arbitrary in their applications, and that’s an especially bad thing where the coercive agency of the State is concerned. But I’m agnostic, so to speak, as to the abstract principle that a person should be conferred monopoly privilege to an idea if that idea is truly unique and (almost certainly?) couldn’t be originated by any other person. I hope that further discussion here and elsewhere will help me to see my way better through this subject.

  • Published: May 5, 2006 5:01 PM

  • quasibill
  • “Well, quasibill, you put me in the unpleasant position of defending Perkins.”

    Sorry, I didn’t make clear that I recognized you were making qualified statements – you did make that clear. With the clearing of the throat completed…

    “Yes, with much IP — particularly patents — there’s no way to “prove” it wouldn’t be created during the life of its protection.”

    Okay. I was mostly arguing patent, because, I’m not entirely sold that something very close to copyright couldn’t arise in ancapistan (well, not close to the current arcane system, but close to the core concept). But in the end, the only way to make a tight argument for applying the non-agression principle is to be absolutely consistent in its application. Which doesn’t mean you can’t have IP per se, but that you can’t base its propriety on an argument that it creates socially beneficial results – i.e. social engineering. You have to base the argument strictly on your concept of what creates property rights and what causes (or caused) society to recognize them as valid. In that vein, often the most important comparison to test whether you’re being consistent is to apply your argument for IP to air in the environment. If you’re willing to accept the consequences of your rationale when applied to air, you probably have a fairly consistent principle at play. Not perfect, but a good starting point.

    “the abstract principle that a person should be conferred monopoly privilege to an idea if that idea is truly unique and (almost certainly?) couldn’t be originated by any other person.”

    Well, that I’m against. What I can support is a contract based right against copying someone else’s intellectual product.

  • Published: May 5, 2006 8:41 PM

  • Peter
  • But, to be honest, Perkins so far looks like he has a bit of a point here. Yes, with much IP — particularly patents — there’s no way to “prove” it wouldn’t be created during the life of its protection. So if it’s burden of proof you’re looking for, Perkins loses. But — in many if not most cases of copyright, mainly — it’s pretty persuasive that many creations wouldn’t’ve come into being without the singular contributions of the creators. *Moby Dick* wouldn’t be around without Herman Melville, *Huckleberry Finn* without Twain, *The Waste Land* without Eliot etc.

    You seem to be making two unwarranted assumptions here: one is that authors wouldn’t be able to make any money from their work in the absence of IP, the other is that nobody produces literature except for monetary gain. (On the contrary, the well-worn meme of the “starving artist” demonstrates that many artists produce not for money but for the love of the art: they would do so whether or not IP was an issue)

    Yes, those works wouldn’t have come about without the work of those specific people, but there’s no reason to believe those people only did that work because they had “IP protection”. There was literature before IP was invented.

  • Published: May 5, 2006 11:25 PM

  • R.P. McCosker
  • Peter wrote:

    “You seem to be making two unwarranted assumptions here: one is that authors wouldn’t be able to make any money from their work in the absence of IP, the other is that nobody produces literature except for monetary gain. (On the contrary, the well-worn meme of the ‘starving artist’ demonstrates that many artists produce not for money but for the love of the art: they would do so whether or not IP was an issue)

    “Yes, those works wouldn’t have come about without the work of those specific people, but there’s no reason to believe those people only did that work because they had ‘IP protection’. There was literature before IP was invented.”

    I didn’t address those points. You’re reading too much into what I wrote. I know those are usual arguments for IP, but I didn’t make them.

    Perkins does suggest those ideas, but, at least the way I read him, his main emphasis was around the idea that creators deserve to own their intellectual creations — deserve the opportunity to earn the full bounty possible from marketing those creations.

    But since you raise this, I’ll comment. (For simplicity’s sake, I’ll focus on copyright matters.)

    Yes, intellectual creators can make money from their creations in the absence of IP. Not nearly as much on average, I’d wager, judging from how eager so many such creators are to register and enforce their copyrights. But it certainly can be and has been done in many instances.

    And yes, people produce literature for reasons other than monetary gain. Indeed, I’m confident that most of the very greatest literature has been produced for those reasons. But an awful lot of literature has been mercenary in its origin (much of it much treasured by consumers and more than a little of it containing considerable intrinsic merit). And an awful lot of “starving artists” eventually give up and call it quits. You aren’t denying that moneymaking can play an important role in artistic productivity, are you?

    Heck, maybe the course of modern literary history would’ve gone better — in some sense that you or I would appreciate — in the absence of copyright law. Maybe published literature would’ve ended up pandering less to the lowest common denominator and cultivated more prospect for creative genius. I wouldn’t know.

    In any case, your arguments have only limited application. I don’t get their point. You wouldn’t say: Don’t plug in the clock — it’ll still show the correct time twice a day.

  • Published: May 6, 2006 1:18 AM

  • Artisan
  • Paul D.

    I can imagine no copyright without the state. How someone else could gain the ability under the free market to control what I do with my own property and to control what information I share is beyond me.

     

    In the case relative to subterranean resources, stated (here below ) by Rothbard, you have however another property right of the discoverer, which “cannot be enforced without the State (as mentioned by Paul D or Dr. Kinsella ?)�?, yet that argument I think is pure speculation really… it’s just a matter of proof… I’m not talking about the criminal aspect of course. By the way, that Rothbard quote is interesting because its analogy to intellectual property is so obvious also…

    If you don’t agree with Rothbard, I don’t understand what is yours and Dr. Kinsella’s position on those quotes following, in relation to intellectual property negation. (Please don’t just tell me the difference is simply artistic intellectual property simply doesn’t exist, because there’s a definition that is quite universal, call it artistic originality if you prefer)

    (the Rothbard quotes, was taken not from the original but from http://www.mises.org/fullstory.aspx?Id=1662)

    If my neighbor drills for oil in his back yard and finds an untapped pool that extends under my land, I have no claim to the oil, so long as his drilling doesn’t disrupt my use of my property. If I tap into that same oil deposit, I am violating his property. But I can drill down into non-contiguous deposits next to his and they become my property even if they extend beneath his land.

     

    The next Rothbard Statement clearly makes a distinction between property violation and trespass. The interesting part is the concept of compensation for property tresspass, justifying also to some extent I think, the retribution to the author of an original art work of which you sell copies.

    If my neighbor builds a factory on his property, any pollution, noise, vibrations, etc. that affect my use of my property count as trespass and he has to either stop or compensate me, at my discretion, but the physical trespass is not sufficient to be property trespass; neither is physical trespass necessary: if my business depends on wind or sunshine, a new neighbor’s obstruction of those things will count as a violation of my property.

     

  • Published: May 6, 2006 5:30 AM

  • Paul D
  • Artisan: I’ll admit I’m not 100% sold on Rothbard’s analysis of the oil scenario. Certainly any oil the neighbour pumps up is his, and any land he converts for the operation is also his, but the oil well itself might be considered like a river or lake; the whole thing being his alone only if he owns all routes of access to it.

    I think the key here is that property, by definition, is a practical matter. It exists because physical objects are scarce and exclusive in use. Only one man (or co-op) can have full ownership and use of a corn field, and so all others must be excluded — not out of vindictiveness or a desire to manipulate the market, as both the case may be with copyright — but out of pure physical necessity. The same object can’t be in two places, used by two people, at the same time.

    On to trespass: the reason trespass is generally a property violation is that it prevents one from fully using one’s own property. A corn field isn’t mine if I can’t keep people from trampling it; a car isn’t mine if I have to allow vagrants to sleep in the back seat; a book isn’t mine if other people can scribble on its pages. These examples of trespass keep me from having full use what should be my own property. (This is another connection to Rothbard’s oil story: pumping oil from beneath my corn field doesn’t keep me from being able to grow and harvest my corn on my land.)

    There’s nothing in common with physical trespass and information copying. You may own a story or song or technique for baking pizza and fully indulge in all of them. My telling the same story, hearing the same song, or baking similar pizza in no way impedes your use of the same, any more than my producing an identical corn field to yours and then treading on it constitutes trespass of your corn field.

    In fact, one is being disingenuous if one tries applying the term “trespass” to information, since one does not mean one’s ability to use is restricted, but rather that the market price for selling information goes down as other people find other ways of obtaining it, or similar alternatives. There’s nothing free about using coercion to restrict competition so you can sell your own stuff for more money. If the market won’t support it, find another business instead of complaining the market is broken.

  • Published: May 6, 2006 9:37 AM

  • R.P. McCosker
  • You know, I’ve always suspected Rand was so big on IP because she herself benefited so much from it. Its application made her quite rich, as it continues to do for her designated “intellectual” heir, Leonard Peikoff.

    Because, it seems to me, IP is otherwise particularly antithetical to Rand’s ideas. Didn’t she regard one’s right to one’s own body and mind as primary values? If so, how could she deny one full use of the thoughts in one’s mind, even if those thoughts were learned from the ideas expressed by others? IP, in a Randian sort of way, calls for the crushing of thought and its expression by those unauthorized by the State.

    Perhaps one way of looking at IP — I’m thinking aloud here — is that a distinction needs to be made between *stealing* and *learning*. Can the act of learning be considered stealing in some circumstances? That seems to be what the ethical proponents of IP would have us believe. But how can failing to learn from others be upheld as virtuous (so long as, say, no contracts or pre-existing property holdings are violated)?

    If a reporter has secret information that Angelina Jolie — isn’t she supposed to be a vegetarian? — eats kippers for breakfast, shouldn’t he be entitled to publicize that information? Or would it be some sort of proprietary thing for Jolie?

    By the same token, if I have information about a machine invented, or a poem written, by someone (again, setting aside any issues of agreements I may’ve made or private property I may’ve broken into to obtain this information), should I really be held dutybound to never apply that information?

    I can appreciate people secreting information away, but by what ethical criteria may they call upon the State to demand that others act as though they had no knowledge of certain information?

    I don’t see any easy answers here, but so far it looks to me like the burden of argument falls on those who would have the State act as enforcer here. The IP proponents are asking a lot of society and its myriad independently acting minds, so it’s reasonable to demand from the proponents a very powerful justification to quell everyone else’s minds and uses of their pre-existing assets.

  • Published: May 6, 2006 1:23 PM

  • speedwell
  • Hey teachers? (raises hand in class)

    “Welfare” for IP providers exists; it’s “patronage,” and the patron owns the work. The engineers who design equipment at the company I work for are paid for the design and agree that the company owns it.

    Isn’t the idea that the person who pays for the production of the IP is the owner? In the case of the solitary writer, the backyard inventor, and the garage musician, the person who paid for production is the artist. But in the case of the commissioned work, the studio movie, and the corporate patent, the payer is someone other than the artist.

    How does that fit in?

  • Published: May 6, 2006 1:50 PM

  • speedwell
  • Hey teachers? (raises hand in class)

    “Welfare” for IP providers exists; it’s “patronage,” and the patron owns the work. The engineers who design equipment at the company I work for are paid for the design and agree that the company owns it.

    Isn’t the idea that the person who pays for the production of the IP is the owner? In the case of the solitary writer, the backyard inventor, and the garage musician, the person who paid for production is the artist. But in the case of the commissioned work, the studio movie, and the corporate patent, the payer is someone other than the artist.

    How does that fit in? Is the man who creates a work for payment selling property that has no value? What exactly is being sold when the creator(s) of the work sell their work to the patron, and what exactly is being sold when the patron then sells the work (by itself or products based on it) to customers?

    The Objectivist arguments seem geared toward the shining, solitary, comic book superhero figure using his sheer intellectual power to vanquish the ravening hordes (and I’m an admirer of Rand who says so). What about reality?

  • Published: May 6, 2006 2:04 PM

  • speedwell
  • Sorry for the double post; my wireless threw an error.
  • Published: May 6, 2006 2:05 PM

  • Roy W. Wright
  • “Welfare” for IP providers exists; it’s “patronage,” and the patron owns the work. The engineers who design equipment at the company I work for are paid for the design and agree that the company owns it.

    Isn’t the idea that the person who pays for the production of the IP is the owner?

    Fine; if the patron wants exclusive use of the “IP,” he can keep it to himself. But it’s wholly unreasonable to create a good that is extremely easy to reproduce, release it to the public, and then expect the public not to produce that good for themselves with their own resources.

  • Published: May 6, 2006 2:39 PM

  • Artisan
  • @Paul D,

    At least a clear statement:
    You don’t agree on the property definition made by Rothbard.

    Although obviously the oil well is a scarce resource, you’d allow anyone to tap it till it’s dry, making property claims over it impossible… (The question of ownership of all roads leading to a well are most theoretical of course, or should property be “strictly downward vertical”? Why may I not drill “around the corner�? for instance? It’s somewhat arbitrary giving the fact that you cannot claim the same above your head).

    Anyways, if a neighbour comes later with a huge pumping facility that dries up the well tomorrow, even though this later driller became aware of the oil only because of my research… you ‘d say that’s too bad, the “market�? has spoken, let the oil be his. So this is yours and all IP opponents view of a just libertarian society defending property?

    I don’t know why but I have the feeling Rothbard’s idea is a more consistent solution.

  • Published: May 7, 2006 3:13 AM

  • Paul D
  • Artisan:

    Rothbard could be right, my mind’s not completely made up. But the situation seems to me as I described. Likewise, if I start harvesting lumber from one side of a forest, unless I’ve homesteaded and protected the whole thing, how can I stop others from logging on the other side? And if I start using water from a lake, how can I stop people on the other side from also taking water, unless I possess all the surrounding land? (i.e. all “routes of access” as I put it with the oil well scenario)

    Even if Rothbard is correct, however, any analogy with copyrights or patents is broken. The oil (or forest or lake) we’re discussing is presumably limited, and what one person takes into possession another person cannot; this is precisely why establishing ownership is useful. Ideas and information are another matter altogether, with no such exclusivity of use. Mr. Wright nailed it in the last sentence of his previous post.

  • Published: May 7, 2006 8:36 AM

  • Artisan
  • Paul D.

    If one were to challenge the Rothbard solution of exploitation rights given to the “discoverer”, which you seem now a bit reluctant to do yourself, what would be the alternative? To yield in certain difficult cases the individual property to the “strongest�? bull on the field? What’s the difference with ruling stealing ok then, because nobody could stop thieves outside one’s own land without the State anyways …?

    The argument that a man could not secure his resources without the presence of the State I usually hear from people believing the State should stay, by the way.

    This doesn’t seem to be a valid argument. Rothbard is right, and the scarcity problem is a false distinction, because you can argue a unique work of art as source (artistic inspiration) is the most scarce thing anyways. But think about other resources like air waves for instance… How is anyone going to secure a certain channel to air his radio show in a world where – like Roy Wright puts it it’s extremely easy and reasonable, using the available technology to steal or destroy anyone’s audience by emitting a stronger signal on the same wavelength ?

  • Published: May 7, 2006 3:59 PM

  • bourbon
  • “Fine; if the patron wants exclusive use of the “IP,” he can keep it to himself. But it’s wholly unreasonable to create a good that is extremely easy to reproduce, release it to the public, and then expect the public not to produce that good for themselves with their own resources.”

    Why is it “unreasonable?” Are you saying I can keep a novel idea (thus I have a right to use it exclusively), but if I want to express it, it becomes common property – a public entitlement? Isn’t that a form of collectivism? Does the fact that I could have use for your car entitle me to use it? Or better, suppose you manufacture cars for resale. Does my need for a car entitle me to use your car? Yes, I would be depriving you of the value you derive from owning (or reselling)the car, but by using my novel idea, would you not also be depriving me of the value of inventing (or reselling)the idea? Does the fact that an idea is easily copied make a difference? Isn’t that saying an idea can be property, but one is not entitled to it if others can steal it easily: if I do not lock my car, others are entitled to use it?

  • Published: May 7, 2006 6:57 PM

  • Roy W. Wright
  • Are you saying I can keep a novel idea (thus I have a right to use it exclusively), but if I want to express it, it becomes common property – a public entitlement?

    No, the point is that an idea can never be anyone’s property in the first place. You are trying to argue for intellectual property by assuming that ideas can be property — that’s begging the question.

    Does my need for a car entitle me to use your car? Yes, I would be depriving you of the value you derive from owning (or reselling) the car, but by using my novel idea, would you not also be depriving me of the value of inventing (or reselling) the idea?

    Quite possibly. Just as I might deprive you of future employment if I see you making good money in whatever field you’re in and decide to enter it myself.

    You have as much right to intellectual protection money as you do to a job. None.

    Does the fact that an idea is easily copied make a difference? Isn’t that saying an idea can be property, but one is not entitled to it if others can steal it easily: if I do not lock my car, others are entitled to use it?

    Again, begging the question. The reason I mentioned the ease of copying is to emphasize the lack of scarcity of an intellectual work, which eliminates the basis for considering it property. Actually, the ease isn’t essential to my argument; it would be extremely difficult for me to build a Porsche look-alike in my garage with my own resources, but if I managed to do it, it wouldn’t be a theft against Porsche.

  • Published: May 7, 2006 8:55 PM

  • Peter
  • Stealing cars is different, not because it deprives the owner of “the value derived from owning the car”, but because it deprives him of the car. Making use of an idea doesn’t deprive the originator of the idea. It doesn’t make sense to talk about depriving him of “the value of the idea” (or of the car), because “value” is something that only exists in the heads of other people; unless you support the most extreme form of slavery – control over other people’s thoughts – that “value” is not something you ever had, and certainly not something you have any right to, and therefore not something you can be deprived of. It’s no different from saying that I can’t sell oranges in my shop, because you sell oranges in your shop, and I’d be “depriving you of value” by taking some of your customers. You don’t own the customers; they have the right to shop wherever they like.
  • Published: May 7, 2006 8:56 PM

  • bourbon
  • Roy W. Wright
    You see right through me, I am begging the point. Is your argument that novel ideas can not be property because once they are published they are no longer scarce? Is scarcity a necessary condition of property, or is it a description of the supply of property? At what point does the supply of a class of property render it no longer property?
  • Published: May 8, 2006 12:38 AM

  • Paul Edwards
  • Boubon,

    “Is scarcity a necessary condition of property…?�?

    Yes. Scarcity is the central crucial essence of property and it is what gives impulse to the institution of property. If you can imagine a world without scarcity, you can probably imagine that the concept of property in such a world would never arise. In today’s world for example, it will not occur to anyone to claim property in the air in the atmosphere. But why not; it is not because the air is not valuable. We do not apply the concept of property to air because it is not scarce.

    The institution of property arises from the goal of making conflict over scarce resources avoidable. Having objective links between property and its human owner allows men the opportunity to avoid conflict. Conflict can arise when two humans want to use the same scarce resource for conflicting purposes. Property allows such conflict to be avoided.

  • Published: May 8, 2006 1:14 AM

  • Roy W. Wright
  • Bourbon,

    That’s a good question. I am using the concept of scarcity in sense somewhat different from the common usage. A good is scarce if its possession by one person might preclude its possession by another. An original Rembrandt is scarce; a digital copy of it is not (assuming such a copy exists). Obtaining a copy of the painting, or a copy of that copy, does not remove the painting from its owner. Now, it may change the value that people attach to the original painting, but that says nothing about the criminality of the copies.

    The proper concept of property pertains to the possession and use of goods. That is why scarcity, as described above, is a necessary condition of property. The concept of property cannot pertain to the value of goods, because as we know, value is subjective and so a property concept with the aim of protecting value would necessarily lead to contradictions.

    There are, of course, other means for making the value of a (physical or intellectual) good more secure, such as contracts.

  • Published: May 8, 2006 1:38 AM

  • Artisan
  • Too bad, this blog chapter is already closing

    If the idea of property were strictly subordinated to “material” scarcity (I don’t see what’s so sloppy about that sentence, in the context), nobody would have an own signature either…

    If there’s no copyright on art, then you can make a second Rembrandt (copy), then put HIS name on it, and sell it. The amount of copies will ultimately decide the (decreasing) price on the market… depriving Rembrandt from his ressources: the original inspiration.

    By the way, Rembrandt, this unique genius died very poor. Too bad isn’t it? (So did Renoir, so did Monet so did van Gogh… do you think life is too easy for an artist working without State support? Or you just don’t give a d*** about originality?)

  • Published: May 8, 2006 2:51 AM

  • Paul D
  • ‘If one were to challenge the Rothbard solution of exploitation rights given to the “discoverer”, which you seem now a bit reluctant to do yourself, what would be the alternative?’

    I don’t acknowledge any “rights of the discoverer”, beyond his right to homestead what he discovers. I might discover a whole continent, but only the part I can homestead and protect is mine. I might discover a medicinal plant enzyme, but only those I am able to harvest or produce myself are mine.

    “…nobody could stop thieves outside one’s own land without the State anyways …?”

    Your comments are difficult to follow here. Naturally, it’s hard to stop what’s not yours from being used. That’s one reason why copyright is in practice limited to the state’s ability to intrude on everyone’s privacy.

    “The argument that a man could not secure his resources without the presence of the State I usually hear from people believing the State should stay, by the way.”

    I’m a libertarian, so I don’t believe any state (i.e. institution for monopolizing violence) is necessary for one to protect one’s actual property. Naturally, claiming something to be property that isn’t — like an idea or a song — is impossible without massive state intrusion.

    “you can argue a unique work of art as source (artistic inspiration) is the most scarce thing anyways.”

    You can argue it, but it’s an absurd argument because we’re talking about *copies* of ideas and whether you own not just an idea, but all the copies of it in the world. Since copies are not scarce, the argument is retarded.

    “it’s extremely easy and reasonable, using the available technology to steal or destroy anyone’s audience by emitting a stronger signal on the same wavelength?”

    Is an absurd situation where someone wastes heapfuls of money building overpowered transmitters on every available frequency the crux of your argument? Besides, there are plenty of means of communication (including radio techniques like ultra-wide band) that cannot be jammed as you describe.

    “If there’s no copyright on art, then you can make a second Rembrandt (copy), then put HIS name on it, and sell it.”

    Feel free, so long as you don’t propose to deceive your customers (a very different matter from copyright).

    “By the way, Rembrandt, this unique genius died very poor.”

    Lots of people die poor. That’s a poor argument for a violence-based welfare state, or for government intrusion in the market.

    “Or you just don’t give a d*** about originality?”

    Originality is worth whatever buyers in a free market are willing to pay for it. In some cases, it will be worth very little; any subjective opinion that the price of something “ought” to be high is meaningless.

    You have demonstrated something worth noting: no matter how roundabout or twisted the reasoning behind copyrights and patents, it *always* comes down to the following argument, with plain fallacies at every step:
    1. My idea or information is valuable (in an emotional sense) to me because I (probably) put effort into it.
    2. Therefore, everyone else *ought* to attach a high economic value to my idea.
    3. Therefore, people who obtain information the same or similar to my information must be punished.
    3a. It is “unfair” (a highly subjective term) for people to benefit incidentally from my efforts, even though I benefit from the efforts of all many others.

    Copyrights and patents are clearly not the outcomes of a free market or free society, nor are they fundamental or absolute in any way. If they were, a perfect copyright protection system would rely on the most perfect, authoritarian state ever created, capable of monitoring every single piece of information shared between its citizens. If you really believe the freedom to share ideas must be denied on economic grounds, the only perfect way to do this is the omnipotent state I describe. What a miserable world that would make.

  • Published: May 8, 2006 3:43 AM

  • Artisan
  • Paul D

     


    I don’t acknowledge any “rights of the discoverer”, … only the part I can homestead and protect is mine. … I might discover a medicinal plant enzyme, but only those I am able to harvest or produce myself are mine. … It is [fair] for people to benefit incidentally from my efforts, [since] I benefit from the efforts of all many others… an absurd situation where someone wastes heapfuls of money building overpowered transmitters …

     

    With all respect, I think you are pushing it, Paul. I feel I’m irritating you, which certainly is not my intention, but now we are really just discussing over each other’s head, don’t you think? Who are you trying to convince besides me (Well maybe there’s no need anymore in this blog, sure…)? You are just assuming a lot of things that I, or in this case Rothbard, don’t say nor imply . What it implies though simply doesn’t seem to even interest you, probably because of the undifferentiated criminalization of all IP issue that you ‘ve described in the US, which steals all your attention, which is quite understandable. However, I’m talking about two precise examples given by Rothbard, regarding oil resources and air waves… and their direct logical consequences strictly on the justification for an artistic copyright DEPRIVED from the necessity of the State enforcement, while you talk about the use of patents, and simply the might (not just the right) to defend oneself alone…

    So here again one short excerpt of Rothbard challenging some of your assumption, yet if you really don’t see how, there’s no use to go further I believe…

    http://www.mises.org/rothbard/newliberty5.asp


    Another common objection to private property in the broadcast media is that private stations would interfere with each other’s broadcasts, and that such widespread interference would virtually prevent any programs from being heard or seen. But this is as absurd an argument for nationalizing the airwaves as claiming that since people can drive their cars over other people’s land this means that all cars—or land— must be nationalized. The problem, in either case, is for the courts to demarcate property titles carefully enough so that any invasion of another s property will be clear-cut and subject to prosecution. In the case of land titles, this process is clear enough. But the point is that the courts can apply a similar process of staking out property rights in other areas—whether it be in airwaves, in water, or in oil pools. In the case of airwaves, the task is to find the technological unit—i.e., the place of transmission, the distance of the wave, and the technological width of a clear channel—and then to allocate property rights to this particular technological unit. If radio station WXYZ, for example, is assigned a property right in broadcasting on 1500 kilocycles, plus or minus a certain width of kilocycles, for 200 miles around Detroit, then any station which subsequently beams a program into the Detroit area on this wavelength would be subject to prosecution for interference with property rights. If the courts pursue their task of demarking and defending property rights, then there is no more reason to expect continual invasions of such rights in this area than anywhere else.

     

  • Published: May 8, 2006 5:34 AM

  • Paul D
  • Artisan, maybe I’m making too many conclusions from your arguments, but I just don’t generally see that Rothbard’s borderline property cases have any useful analogy to “artistic copyright” (I’ll restrict myself to that since you mentioned it). Let me compare your situations once more and see if I make any sense to you.

    Let’s base this on the homesteading principle, which means that by combining un-owned resources with one’s own labour, one produces goods that may be considered “owned”, in that other people may not deprive you of that good or your use of that good without your permission.

    1. Oil Field

    If there’s an argument to be made that extracting oil from an oil field confers ownership of the whole thing, it comes from an assumption that one’s labour has turned the whole field into a scarce physical good. I think this interpretation is incorrect; after all, one doesn’t claim to own a whole lake, river, or ocean after taking some water from it. My position is that only the extracted oil has been turned into a good. However…

    Accepting for argument’s sake that a person owns an entire oil field, stealing oil produces an immediate physical loss of the owner’s good. Key characteristics of oil that make it property: physicality, exclusivity of use.

    In either case, I see no reason to invoke a “right of the discoverer”. This merely confuses discovery with homesteading, two very different things.

    Connection to artistic copyright: none apparent.

    2. Radio Waves

    Rothbard’s argument is really problematic here. You don’t produce any tangible good when you turn on a transmitter. Sure, you have the right to beam energy at other people’s houses; but do you have the right to ban other people from doing the same?

    For argument’s sake, taking the tenuous position that mixing radio waves with empty space produces some sort of property-like thing, and given a primitive state of technology, one admits that such a “broadcast space” is physically diminished in size if jammed by another station. There is a quantifiable loss of the original radio station operator’s broadcast zone. This loss is physically measurable and independent of any “intellectual property” voodoo.

    Since it’s mutually beneficial for all broadcasters in an area not to interfere with each other, I think the market would deal with it even more easily than Rothbard’s litigation model suggests.

    Connection to artistic copyright: none apparent.

    3. Artistic Creation

    You haven’t outlined any specific copyright principles you’d like to defend, so I’ll assume the basics.

    Let’s say you purchase paint, tools, and canvas, and use them to produce a painting. This painting is clearly your physical property. You may enjoy it for any of its properties, physical or aesthetic. You may hang it on your wall, use it as a dartboard, or burn it for kindling. You may even try selling it, though you can’t force anyone to buy it.

    I see your painting, and like its aesthetic characteristics so much, I buy my own materials and make an exact copy. I then digitize the painting and distribute it to all my friends on the Internet. It would be honest of me to acknowledge you as the original painter, but that’s beside the point in this case.

    You still have the property (a painting) you created. At no point have I deprived you of it or its use (however you choose to use it). Unlike the above two cases, there is *no quantifiable diminishment* of your property. The best you can claim is that you hoped to sell the painting for a pile of money, and now it’s probably worth less. It’s an unverifiable claim that might even be false, if my copies have made the original even more in demand. But whether the market for you to sell your item has changed is irrelevant; you never had the right to make people buy your painting, or to make them buy it at a certain price.

    In conclusion, I have failed to find a useful connection between copyright and Rothbard’s borderline property situations. Unless you have an ace hidden up your sleeve, I’ll probably just let this thread rest.

  • Published: May 8, 2006 9:12 AM

  • David J. Heinrich
  • Paul D,

    Although I agree with the general thrust of your argument, I have several possible disagreements:

    (1) Regading an oil-field, or continuous “oil pool”, I would argue that what matters is how it is considered by human actors, as a “technological unit”. Since I’d argue it’s considered as one resource, the first person to homestead “a part” of it — that is, to start pumping oil — is the owner.

    (2) Regarding radio-waves, I’d argue that in-so-far as there is scarcity in them — regarding jamming, etc — people own them as they homestead them. There is no reason we have to constrict property rights to merely the purely tangible, physical, touchable things. Radio-waves are a scarce resource, and to the extent that someone mixes their labor with them by broadcasting radio-shows or some other labor-mixing, I argue one should own such.

    (3) While I agree with your argument on IP and paintings in general, the original creator of a painting could, of course, make anyone who saw it sign a contract saying they wouldn’t reproduce it in any way, or make any copies of it. Of course, if they made copies anyway, and gave them to others, the original contract would only bind the parties who signed it.

    However, it seems pretty clear that the value of an original painting is enhanced by having digital copies of it, in that such is how more people come to know of, and thus value it.

  • Published: May 8, 2006 9:41 AM

  • Paul D
  • Thanks for the reply, David.

    (1) While I obviously disagree, this is a defensible point of view. Maybe there’s some common-sense limit to the size of the well; does it make any sense to claim ownership of a country-sized reserve just because you managed to extract a gallon?

    (2) Again, defensible because of the scarcity aspect, but still problematic. Maybe it should be up to the people who actually own the property being invaded with radio waves. 🙂

    (3) Agreed, contracts are possible but likely ineffectual if applied on an individual basis. More likely, large producers of paintings (or whatever) would have mutual agreements not to reproduce each others’ works.

  • Published: May 8, 2006 9:51 AM

  • bourbon
  • I hear two fundamental arguments here: 1) Intellectual (property) rights are difficult to enforce, therefore, they cannot exist. 2) Ideas, once published are no longer scarce, and therefore cannot be property. The first argument puts the cart before the horse. The question is whether there are philosophical grounds supporting the notion of intellectual property. This question is at the heart of the Perkins article. The question of how society chooses to enforce those rights is another question entirely, but the fact that they may be difficult to enforce does not invalidate the philosophical foundation that they exist – it is only an argument to ignore them. Society has had over 600 years of jurisprudence to develop acceptable laws governing the rights of real property. We are still in the dawn of the industrial revolution and in the mist of the greatest technological revolution human kind has ever experienced. The explosion of valuable innovation has now ripened the question of how to enforce intellectual property. It will take time for society to sort it out. Assuming that novel ideas are property, then IP laws arbitrarily strip away a fundemental property right after a certain period of time for the betterment of society (expiration of enforcment and forced publishing). This state sponsered theft is a working compromise in exchange for enforcing the right, and is paletable because it promotes the inovation necessary to solve the problem of scarcity.

    The second argument is difficult for me. It suggests that property is not property if abundant. To me this suggests that if property is plentiful it loses its status as ownable. I understand that its value may be negligible (since price would be reduced because of oversupply), but it is property non-the-less. Is the argument really that if something is not derived from (limited) natural resources, then it is not property — a sort of tangible test? This also seems to be a weak distinction. I am not convinced that the scarcity argument undermines Perkins’ thesis that novel ideas are a fundemental property right.

  • Published: May 8, 2006 10:24 AM

  • quasibill
  • “It suggests that property is not property if abundant”

    Once again, you are misinterpreting the use of the word “scarce” in this context. It has little to nothing to do with abundance. The point of “scarcity” in this context is that one person’s use of the resource deprives anyone else of the use (during a relevant time period).

    So, once again, the question isn’t whether there is abundance of materials or whatever, it is whether my use of the resource deprives you of your use of it. And note, this doesn’t mean it decreases your price on the market – no defensible property right gives a right to any given price on the market. Since I can hum “My Sweet Lord” without depriving you from doing the same, it is not scarce.

    “Intellectual (property) rights are difficult to enforce, therefore, they cannot exist”

    Actually, that’s the exact opposite of the understanding I got from Perkins’ article – he and IP proponents claim that it is difficult to have IP rights that can be protected by contracting and self-defense, therefore we need a state and IP laws to do it. And as you note, that is putting the cart before the horse.

  • Published: May 8, 2006 12:19 PM

  • Paul Edwards
  • “…It suggests that property is not property if abundant. To me this suggests that if property is plentiful it loses its status as ownable. I understand that its value may be negligible (since price would be reduced because of oversupply), but it is property non-the-less. Is the argument really that if something is not derived from (limited) natural resources, then it is not property — a sort of tangible test? This also seems to be a weak distinction. I am not convinced that the scarcity argument undermines Perkins’ thesis that novel ideas are a fundemental property right.�?

    Bourbon,

    Property is property for sure. There is no argument there. The question is what constitutes property, why it is property, and why does such a concept as property exist in the first place.

    The institution of property arises from the need to make conflict avoidance possible. Conflict arises from two different people having conflicting desires to use the same scarce resource. With no scarcity, there can be no potential for conflict. With no potential for conflict, there can be no need to institute norms to make conflict avoidance possible, since lack of conflict would already be the natural state. With no need to institute norms to make conflict avoidance possible, there would be no need for the concept of property; the concept would simply have no meaning. Ergo, the concept of property is founded on the fact of scarcity of resources, the conflict this scarcity can create, and the desire of avoiding such conflict.

    What this implies is that anything such as a common idea, a language, an alphabet, the air we breathe, or a song on everybody’s laptop or hard-drive, which are all not scarce, can all be used by different individuals, in a conflict free manner, cannot be property; the term property applied to such things is meaningless.

  • Published: May 8, 2006 12:53 PM

  • BillG (not Gates)
  • Paul Edwards wrote:

    “What this implies is that anything such as a common idea, a language, an alphabet, the air we breathe, or a song on everybody’s laptop or hard-drive, which are all not scarce, can all be used by different individuals, in a conflict free manner, cannot be property; the term property applied to such things is meaningless.”

    BillG responds:

    the air we breath is used both as a source AND a sink for the byproducts of human’s attempting to sustain themselves.

    in the case of the use of the sky as a sink we had better devise a better way to manage it then via tort law.

    my preference is to declare that it is all owned in common as an individual right and that the negative externalities define the extent that individual rights to our wages are being violated.

  • Published: May 8, 2006 1:31 PM

  • bourbon
  • “The institution of property arises from the need to make conflict avoidance possible. Conflict arises from two different people having conflicting desires to use the same scarce resource. With no scarcity, there can be no potential for conflict. With no potential for conflict, there can be no need to institute norms to make conflict avoidance possible, since lack of conflict would already be the natural state. With no need to institute norms to make conflict avoidance possible, there would be no need for the concept of property; the concept would simply have no meaning. Ergo, the concept of property is founded on the fact of scarcity of resources, the conflict this scarcity can create, and the desire of avoiding such conflict.” (Paul Edwards)

    Thank you. I now understand your use of “scarcity.” George Reisman (of whom I am a big fan) makes a distinction between “free goods” (benefits that do not need to be created – e.g. air), and “economic goods” (benefits that are created as beneficial and life-preserving). “Potential economic goods” are benefits that are proxies, means, or ideas. “Material Economic Goods” are existing benefits to men’s lives.
    As Perkins points out, labor and ideas, as potential economic goods, are valued because they are indispensable means to wealth (the creating of economic goods). Doesn’t this suggest that “property” is born out of its utility, not its method of allocation? In other words, “property” must have utility before there is conflict over its use, and therefore, isn’t it its utility that defines the property, not its allocation?

  • Published: May 8, 2006 3:42 PM

  • Artisan
  • Paul Edwards rightly says (citing Rothbard and Hoppe I believe)

     


    “The institution of property arises from the need to make conflict avoidance possible. Conflict arises from two different people having conflicting desires to use the same scarce resource. With no scarcity, there can be no potential for conflict.“

     

    This sentence conceals a major definition problem.

    Can property ONLY be defined through scarcity. If this were the case, I agree, there would be no such thing as a justification for copyright retribution. Yet Hoppe and Rothbard clearly make their definition dependent of the need to avoid conflict. Their premise is

     


    “two people can’t have conflicting interests concerning something that they already fully own�?.

     

    If this premise was acceptable, copyright would be obsolete indeed. BUT the phrase above ISN’T always acceptable …

    The ambiguity in this definition arises through the concept of identity. Two persons have identities. Identities are theoretically completely scarce since they are all unique (Hoppe speaks about the “body�?, as the only property in Eden). No one is like someone else. And yet, as EVERYBODY possesses an identity, identity is also NOT scarce. People are playing on this syllogism when considering the justification for copyright abolition.

    It is obvious though that “air�? and “salted water�? are “not scarce�? in a different way: i.e. anonymously. (No need for the concept of “functionality�?.)

    An identity is a property. It is strictly speaking the first property for those who like philosophy. Don’t fool ourselves though, one can “steal” an identity. One can “loose�? an identity.

    For those who still think it’s bullshit, the last chance to grasp this (quite simple) concept comes with the new field of genetic cloning. Can a doctor make a clone (or ten?) of you, using secretions you produced while innocently sleeping in his hospital after a benign intervention. Well you can make him sign a contract not to reproduce you, but can you prevent the nurse next door to use those secretions, perhaps sell them millions because you’ve got such a swell IQ?

    If you say “sure”, I think I don’t want to be libertarian. I actually like my individual identity.

  • Published: May 8, 2006 4:06 PM

  • lorenzo sleakes
  • Stephan Kinsella said:
    if A sells one device embodying his invention to B, and makes B agree not to divulge the secret, is this agreement enforceable? Can it be used to construct a type of patent or copyright regime? I answer this in detail in my article Against Intellectual Property, pp. 35-41.

    If an object is stolen from person A and then person B sells it to person C – who is the legal owner? Most people would say person A. It is the same thing with copyrights. If person A buys a books (contactually agreeing to protect the secrecy) and then uploads it the web where person C changes the author name and sells it has his own – it is the same thing. It doesnt matter that person C did not agree to the contract. Somebody else MUST have violated the contact in order for person C to have found the exact words to copy. The state can know the secrecy contact was violated without knowing how it was – therefore the need for copyrights as a special part of the law to make the contract realistially enforceable.

  • Published: May 8, 2006 4:38 PM

  • Stephan Kinsella
  • Sleakes:

    If an object is stolen from person A and then person B sells it to person C – who is the legal owner? Most people would say person A. It is the same thing with copyrights.

    Two problems with this. First, it is not at all obvious that person A is necessarily the owner–and it is certainly not the case that “most people” would say A–maybe most libertarians would, but most modern legal systems will sometimes award title to C, if it is “more” A’s “fault” than it is C’s. Suppose A leaves a million dollar diamond in plain view on his kitchen table on a day when he is having a block party with lots of strangers attending. Lo and behold it turns up missing. Later the thief sells it to some innocent third party. The thief is long gone: who should get the jewel? It is arguable the third party is more of a victim than the careless original owner.

    But this is irrelevant. LEt us assume that you are right, that in all cases the original owner should get his property back. The real problem with your equation is your assumption that works of authorship are ownable things in the first place. They are not like the stolen object of your exmaple–objects are presumably tangible and thus ownable. So your example begs the question.

    Suppose you have discovered the largest prime number known–larger than the previously largest one known. You “own” this information. No one else knows it. IF some thief breaks into your house and steals your PC, and soon the new prime number is all over the Internet–would you say that mathemeticians have to “return” the information about the prime number to you? Do they have to “pretend” they don’t konw it?? Does a software company hoping to use this number in an encryption program have to get your permission to use it?

    If person A buys a books (contactually agreeing to protect the secrecy) and then uploads it the web where person C changes the author name and sells it has his own – it is the same thing. It doesnt matter that person C did not agree to the contract. Somebody else MUST have violated the contact in order for person C to have found the exact words to copy. The state can know the secrecy contact was violated without knowing how it was – therefore the need for copyrights as a special part of the law to make the contract realistially enforceable.

    The question is: is an innocent person free to manipulate his own property according to information or ideas in his head, or not?

  • Published: May 8, 2006 5:00 PM

  • bourbon
  • Kinsella:
    Is your argument that a good must be tangible?

    Also, isn’t the discovery of a fact of the universe (the largest prime number) just a “free good,” to use Riesman’s term. There is no invention in it, is there? Mustn’t one first answer the question of whether an idea can be a good, and when an idea is an ecomonic good, before one can wrestle with restictions of use and allocation.

  • Published: May 8, 2006 5:23 PM

  • Paul Edwards
  • Artisan,

    While I wasn’t citing anyone, I will very freely say that my thinking is strongly influenced by Hoppe’s discussions on ethics. I find his lingo precise and clear, so I think I’ve adopted it partially. While I think it is consistent with Rothbard’s references to what is and what is not a good, it is at odds with Rothbard’s conclusion that copyright is justified. Or in short, I think Rothbard was inconsistent in advocating copyright.

    Anyways, in respect to this question: “Can property ONLY be defined through scarcity�?, I think the answer is that the sole purpose of the institution of property is to allow us the chance at avoiding the conflict that arises from two people or more wishing to use the same scarce resource in a conflicting manner. From an ethical perspective, this is what property is designed to do and this is, in fact what property allows us to accomplish. Therefore it doesn’t make sense to extend the concept of property past this purpose. We can make up some other distinct, different, and contrasting term that is some kind of an extension of the term property that might apply to things that are not scarce and therefore do not give rise to conflict. But the term isn’t property.

  • Published: May 8, 2006 6:42 PM

  • Roy W. Wright
  • Also, isn’t the discovery of a fact of the universe… just a “free good,” to use Riesman’s term. There is no invention in it, is there?

    Any invention is simply a discovery of a fact of the universe.

  • Published: May 8, 2006 6:44 PM

  • quasibill
  • “If you say “sure”, I think I don’t want to be libertarian. I actually like my individual identity.”

    Um, you need to learn just a little bit about biology – a “clone” of me will not have my “identity” anymore than if I had an identical twin, and in fact, will have less of my identity than an identical twin.

    Beyond that – it’s unlikely that cloning will ever get to be so cheap that that will be possible, let alone likely. One clone, maybe, but thousands or more would bankrupt Bill Gates.

    And finally, if it did happen – okay. That’s a worst case scenario. Let’s compare it to the bad case scenarios that occur daily with IP law, and it’s a no-brainer that IP is worse on a continuous basis than the absence of IP.

  • Published: May 8, 2006 7:49 PM

  • bourbon
  • Roy W. Wright:
    Is an invention simply a discovery of a fact of the universe? I argue that there is an important distinction. A fact of the universe already exists — it is simply recognized. Inventions would not exist without the creative efforts of the inventor. An inventor uses discovered facts to create process that transform “free goods” to “tangible economic goods” thereby creating wealth. Discovery and invention are not synonymous.
  • Published: May 8, 2006 7:49 PM

  • Peter
  • And yet, as EVERYBODY possesses an identity, identity is also NOT scarce.

    You’re simply confused about the meaning of scarcity.

    For those who still think it’s bullshit, the last chance to grasp this (quite simple) concept comes with the new field of genetic cloning. Can a doctor make a clone (or ten?) of you, using secretions you produced while innocently sleeping in his hospital after a benign intervention. Well you can make him sign a contract not to reproduce you, but can you prevent the nurse next door to use those secretions, perhaps sell them millions because you’ve got such a swell IQ?

    Sure, why not?

    If you say “sure”, I think I don’t want to be libertarian. I actually like my individual identity.

    Is a libertarian something you “want to be” or “don’t want to be”, or just a description what you believe? What makes you think a clone of you would somehow “take” you identity? That’s as silly as believing that taking your photograph steals your identity!

  • Published: May 8, 2006 9:47 PM

  • Stephan Kinsella
  • bourbon:

    Kinsella: Is your argument that a good must be tangible?

    No. In fact, I don’t care, for my purposes, what “goods” are. This is not an economics lesson. What is at issue is what property rights pertain to–what property is. I maintain that only scarce resources are the subject of property rights. Whether or to what extent “scarce resources” correlates with the economic principles of goods I express no opinion.

    Moreoever, I never said a resource must be tangible to be owned. Only that it be scarce.

    Also, isn’t the discovery of a fact of the universe (the largest prime number) just a “free good,” to use Riesman’s term. There is no invention in it, is there? Mustn’t one first answer the question of whether an idea can be a good, and when an idea is an ecomonic good, before one can wrestle with restictions of use and allocation.

    Actually, one must answer the question: what types of things are ownable, and what types are not? Obviously you agree that some “things” are not ownable. What exaclty is your criterion? Mine is whether the thing is a scarce resource or not.

  • Published: May 8, 2006 11:32 PM

  • Roy W. Wright
  • Bourbon, could you either

    A) give me a definition of an invention that distinguishes it from the discovery of a fact of the universe, or

    B) give me an example of an invention that wasn’t simply the discovery of a fact of the universe?

  • Published: May 9, 2006 12:28 AM

  • bourbon
  • Roy W. Wright:
    From another blog: “An algorithm, on the other hand, is a step-by-step instruction guide in how to take information and use it in some meaningful way. The ways in which to use information are not facts of reality, just as the ways in which to use matter are not. Therefore, someone must see a need to use information in some way, and create its means — an algorithm. This is no different than someone identifying a need to use matter, and creating its means — an invention. In both cases, the creator may be directly dealing with metaphysical fact, but they apply fact to solve a problem, not discover it.”
    (Justin)
  • Published: May 9, 2006 1:06 AM

  • Artisan
  • Peter

    Is a libertarian something you “want to be” or “don’t want to be”, or just a description what you believe?

     

    I am ready to call myself “libertarian�? because that economical system seems to me, as Mises Rothbard and Hoppe describe, to very consistently defend in its core, my and other people’s individual identity in society. Now, just because another person reads those authors and interprets some of their definitions in a way that’s subjective and unfitting with that core, doesn’t make me of course reject libertarianism. But since you ask: if the logical price to be a libertarian was to renounce to the uniqueness of one’s own identity, I would definitely reject its set of rules.

    What makes you think a clone of you would somehow “take” you identity?

     

    Aldous Huxley wrote a book worth reading on the subject, it’s called “Brave New World�?.
    A clone would carry my genetic identity, just as my sperm does. You may yourself not care about it and distribute your own sperm to all the donor banks in the world, because you “believe�? genes are just random molecules, or you may think a man should be proud to have his genetic material distributed around anyways. However, while the set of rules protecting an identity doesn’t prevent you to live as you think in this respect, its contrary system, which would deny the control over one’s own genetic identity, does interfere with my conception of individual freedom (and it produces a conflict of interest that the major libertarian thinkers precisely wanted to ethically avoid!)

     

    Paul Edwards

    We can make up some other distinct, different, and contrasting term that is some kind of an extension of the term property that might apply to things that are not scarce and therefore do not give rise to conflict. But the term isn’t property.

     

    The term that best describes property is identity (not necessarily scarce thus, as in cloning). (think of the simplest sentences like … “What property does object A have?�? and “How do you define the identity of object A?�?). The definition of property you subjectively chose to favour is one with a footnote that takes out identity for some “ethical�? reason thus. The question is only: what ethical reason? How can an original identity not belong to its subject, ethically speaking? Just because it “SHOULD�? not generate a sense of property? In the name of what? It’s the same “ethical�? logic as saying people SHOULD’NT have any property, so there wouldn’t be any conflict of interest. I certainly am curious to read Hoppe’s opinion on copyright, as you say they are explicitly advocating copyright abolition though. Please, send me a quote or a link.

  • Published: May 9, 2006 4:24 AM

  • averros
  • The discussion of what exactly the property is is quite informative, but the REAL problem with copyrights is not in what is considered property but, rather, in the fact that copyright owners choosing to “enforce” their rights do in fact steal from everyone else — including those who have no interest in or benefit from the copyrighted works.

    This is because they force all taxpayers to pay for the legal enforcement primarily for the copyright owner’s benefit. These costs are far from trivial.

    Absent such enforced subsidy, the authors could’ve choosen other methods for restriction of distribution of their works, such as technological means locking the content within a physical object, or hiring private protection agencies to enforce contractual limitations on reproduction. They’d be forced to increase prices of their products, to offset these costs — which would make a lot of low-quality junk uneconomical to produce, thus allowing better quality content to get better exposure.

    Alternatively, they’d switch to indirect ways of generating revenue from their works – i.e. from performances and such. Even now, sale of copyrighted works is not always the primary source of income for successful artists.

    Because copyright owners demanding protection are in fact simply common thieves, I do not think we should care about their ability to make living. Being a supposed creative genius doesn’t give someone a right to steal, right?

  • Published: May 9, 2006 7:10 AM

  • Paul D
  • Quite so, Averros.

    Monitoring and enforcing copyright requires violating all the actual rights to life, liberty, and property that libertarians believe in. That’s not “putting the cart before the horse” like another poster suggested. That’s pointing out a contradictory set of assertions. Anyone who tells me I’m not allowed to use or share information in a free, non-violent manner is an enemy to me and to liberty. Anyone who tries to extort money from me for doing so is a thief.

  • Published: May 9, 2006 7:57 AM

  • Paul Edwards
  • Artisan,

    “…The definition of property you subjectively chose to favour is one with a footnote that takes out identity for some “ethical�? reason thus. The question is only: what ethical reason? How can an original identity not belong to its subject, ethically speaking? Just because it “SHOULD�? not generate a sense of property? In the name of what? It’s the same “ethical�? logic as saying people SHOULD’NT have any property, so there wouldn’t be any conflict of interest.�?

    I’m not aware of any conscious effort on anybody’s part to expressly delete the concept of “identity�? from the definition of property for subjective reasons. Ethics is the area of concern over allowing the possibility of conflict avoidance in a world of scarce and valuable resources. So from that angle, the question of “identity�? would not necessarily arise, since it is not something that gives rise to conflict. The concept of property is most adequate in dealing with conflict over scarce and valuable resources when it is defined as scarce and valuable resources that can be owned.

    “I certainly am curious to read Hoppe’s opinion on copyright, as you say they are explicitly advocating copyright abolition though. Please, send me a quote or a link.�?

    Now this brings an interesting fact to light in my mind. I actually do not recall having ever read a single line of text of Hoppe’s where he has expressed an opinion specifically on copyright. Maybe he has never said a thing about it. However, he has written reams on ethics and property, and of what I have read of it, it seems necessarily to point to the invalidity of copyright. HOWEVER, I would be very interested if you could cite me something of Hoppe’s where he sides with Rothbard on the question. It would be a real event, in my mind, to see how he could possibly do so.

  • Published: May 9, 2006 10:09 AM

  • Artisan
  • Paul Edwards

     

    the question of “identity�? would not necessarily arise, since it is not something that gives rise to conflict

     

    What about the distribution of a person’s genome, against his own will, for reproduction purposes, as in my example? No possible source of conflict in a sane mind? Is there a super-judge to decide what is a libertarian conflict of interest then?

     

    HOWEVER, I would be very interested if you could cite me something of Hoppe’s where he sides with Rothbard on the question. It would be a real event, in my mind, to see how he could possibly do so.

    My knowledge of von Mise, Rothbard or Hoppe is far too small, yet I see we’d both love to hear the opinion of this most prominent figure among all of von Mises’ followers. One of us should just send him this whole blog and ask him for a comment I guess… 

     

    Averros

    The discussion of what exactly the property is, is quite informative, but the REAL problem with copyrights is not in what is considered property but, rather, in the fact that copyright owners choosing to “enforce” their rights do in fact steal from everyone else — including those who have no interest in or benefit from the copyrighted works. This is because they force all taxpayers to pay for the legal enforcement primarily for the copyright owner’s benefit. These costs are far from trivial.

     

    I tend to agree on that one, but then let’s not mention “copyright justification”. Let’s just focus on mischievous State practices that are out of proportion with real economical situations…

  • Published: May 9, 2006 11:59 AM

  • bourbon
  • “copyright owners choosing to “enforce” their rights do in fact steal from everyone else”
    Don’t you have to own something before it can be stolen from you?
  • Published: May 9, 2006 3:23 PM

  • Stephan Kinsella
  • Bourbon: “”copyright owners choosing to “enforce” their rights do in fact steal from everyone else”
    Don’t you have to own something before it can be stolen from you?”

    Sure. Say I own my paper and ink. I am generally aware of the famous plot of the movie Bonnie & Clyde. Or of the character Superman. I feel like writing a book on my take on B&C–teh; further adventures of bonnie & Clyde. Or, I want to write a comic, “Superman & Kinsella”–about the adventures of Superman helping out libertarian adventurist Stephan Kinsella. The Bonnie & Clyde, and Superman, copyright holders and prevent me from using or selling my own property in this way.

    Or, suppose I own a car, and a carburator. I am aware that it is a fact that if I adjust my carbeurator *just so*, that I will improve my gas mileage. Unfortunately, someone 15 years ago filed for a patent on this “method of improving gas mileage” and they can literally prevent me, by force of an injunction issued from a court, from twiddling the knobs on my own carbeurator of my own car in my own driveway using my own hands.

    So yes, by asserting IP, the copyright and patent holders are seizing partial control of my own property–my paper and ink, my car, etc.–resources which, yes, I already own. Well, I should say, “owned,” since now I am only a co-owner–the IP owners have now become co-owners with me of my things, since they, and I, now have joint control of these things.

  • Published: May 9, 2006 3:33 PM

  • lorenzo sleakes
  • Stephen I totally agree as you show in all your examples that IP can be abused to restrict freedom …but what if I just make copies of the famous movie Bonnie and Clyde and start selling it without paying any royalties. Isnt that also theft? Do we have to eliminate the whole IP system because it has potential for abuse?
  • Published: May 9, 2006 4:16 PM

  • Stephan Kinsella
  • Lorenzo Sleakes:

    Stephen I totally agree as you show in all your examples that IP can be abused to restrict freedom …but what if I just make copies of the famous movie Bonnie and Clyde and start selling it without paying any royalties. Isnt that also theft? Do we have to eliminate the whole IP system because it has potential for abuse?

     

    It’s only theft if IP is property, which is what is under discussion. I fail to see how it is theft. In some cases the copier could be under a contractual obligation to pay monetary damages to the movie company if he breaks his contractual promise not to copy it. But not every copier would have privity of contract with the original maker.

  • Published: May 9, 2006 4:49 PM

  • bourbon
  • Wait. I’m confused. If “Superman” becomes your property, then wasn’t it property already? And if it was already property, aren’t you the one who sole it first? Or is the argument that once someone makes a competing claim on your use of “superman” it becomes property? Still fuzzy on how scarcity converts a thing into property. When did “Superman” become property?
  • Published: May 9, 2006 4:51 PM

  • Stephan Kinsella
  • bourbon:

    Wait. I’m confused. If “Superman” becomes your property, then wasn’t it property already? And if it was already property, aren’t you the one who sole it first? Or is the argument that once someone makes a competing claim on your use of “superman” it becomes property? Still fuzzy on how scarcity converts a thing into property. When did “Superman” become property?

     

    Yes, you are confused. I never said Superman becomes my property. I only said in the example that I wanted to use my paper and ink to write and sell a comic about the adventures of Superman and Kinsella. I never implied that I thereby “owned” Superman. If I prance naked in my back yard I don’t thereby own “prancing naked” either, do I?

    Imagine a world where if you want to buy a Mickey Mouse doll, you can buy it from Disney, or you can buy a cheaper version from a Chinese company. No one “owns” the idea of Mickey Mouse. There might be a dozen independent companies out there publishing their own adventures of Superman. So what?

    Yes, you are confused: no one said scarcity “converts” anything to property. Rather, what we said is that scarce resources–and only scarce resources–are such that they may be owned.

     

  • Published: May 9, 2006 5:00 PM

  • bourbon
  • Kinsella: Educate me further. You explained that scarcity is the competing claim on a thing. (As opposed to the abundance of a thing). Since ideas can not be restricted (without force), i.e. my simultaneous use of your idea does not restrict your use of the same idea, then they are not scarce and cannot be owned. Ownership of (a right to) a thing is governed by its scarcity, not its creation, utility or value. Therefore, only concrete things can be owned, and abstract things cannot be owned, and the issue of the value or utility of a thing is irrelevant to ownership (i.e. an abstraction that has value, such as an idea that improves resources, still cannot be owned because it is not concrete — the value can only be reaped in the concrete improved resources the idea creates). Additionally, one cannot sell an idea, because it is not owned. One can only require the voluntary restriction on use through contract in consideration for detrimental revelation of the idea. So trade secrets are a viable legal concept (arising out of contract), while copyright, trademark, and patent law artificially restrict free use of unowned ideas? And under such a system based on scarcity, producers would take great efforts (such as Coke) to keep their innovations secret so as to monopolize a process and reap the rewards of applying the process to the improvement of concrete goods. Am I getting this?
  • Published: May 9, 2006 5:29 PM

  • quincunx
  • “Additionally, one cannot sell an idea, because it is not owned.”

    Well you can sell an idea. All you need is a buyer. Certainly you can’t just sell an idea – you need to express it one way or another, be it on paper, in a journal, book, or podcast.

    ” And under such a system based on scarcity, producers would take great efforts (such as Coke) to keep their innovations secret so as to monopolize a process and reap the rewards of applying the process to the improvement of concrete goods. Am I getting this?”

    You are, but you are drawing the wrong conclusion. Anyone can still reverse engineer a given product. You also can’t stop those who already have the idea (there are other cola manufacturers). What good is telling everyone about something, and then using force to prevent them from implementing it?

  • Published: May 9, 2006 5:43 PM

  • bourbon
  • I’m confused again. How can I sell or steal something that can’t be owned?
  • Published: May 9, 2006 5:49 PM

  • quincunx
  • Well you certainly owned that statement before you told everyone.

    Now people are free to argue it, quote it, make a derivative comment, and so on. What can you do about it? (yes I know it was just a simple statement)

  • Published: May 9, 2006 6:20 PM

  • bourbon
  • Okay, I am focusing on Kinsella’s argument that a thing is not ownable unless it is scarce. Since an idea can be used simultaneously, it is by definition not scarce, and therefore not ownable. Are you arguing that an idea is scarce until published, and the act of publishing it renders it not scarce? What if we have simultanious ideas that we do not publish? Do they remain scarce, and therefore ownable? To sell an idea I have to publish it, and by the very act of publishing it, it is no longer ownable. Again, how can I sell something that is not ownable? Very confusing.
  • Published: May 9, 2006 6:33 PM

  • bourbon
  • Okay, I am focusing on Kinsella’s argument that a thing is not ownable unless it is scarce. Since an idea can be used simultaneously, it is by definition not scarce, and therefore not ownable. Are you arguing that an idea is scarce until published, and the act of publishing it renders it not scarce? What if we have simultanious ideas that we do not publish? Do they remain scarce, and therefore ownable? To sell an idea I have to publish it, and by the very act of publishing it, it is no longer ownable. Again, how can I sell something that is not ownable? Very confusing.
  • Published: May 9, 2006 6:34 PM

  • Manuel Lora
  • Okay, I am focusing on Kinsella’s argument that a thing is not ownable unless it is scarce. Since an idea can be used simultaneously, it is by definition not scarce, and therefore not ownable. Are you arguing that an idea is scarce until published, and the act of publishing it renders it not scarce? What if we have simultanious ideas that we do not publish? Do they remain scarce, and therefore ownable? To sell an idea I have to publish it, and by the very act of publishing it, it is no longer ownable. Again, how can I sell something that is not ownable? Very confusing.

    Let’s not forget that ideas are mental constructions. If two people listen to the same piece of music or watch a movie, different things are going on inside their heads. A “movie”, a “TV show”, a “performance” are, physically, just movements of particles.

    This makes it even harder to even thinkg about having the “same” idea. How can one even compare if they are the same?

    Kinsella makes the point that only things that are ownable, that is, things that can be exclusively (and this implies scarce, otherwise it would not be exclusive) owned by one and not the other, can be considered property. Otherwise, there would be no conflict at all.

    Thus, if I make a copy of something, with my own property, the original has not been affected and nothing has been stolen. The “movie” is not the DVD, for example. Those are just bits of plastic, which CAN be owned by someone (I can own plastic; it is scarce). The “movie” is a bunch of mental processes going on inside one’s heads.

  • Published: May 9, 2006 7:15 PM

  • quincunx
  • “Okay, I am focusing on Kinsella’s argument that a thing is not ownable unless it is scarce.”

    I think what he meant is that you can’t have exclusive ownership. You can have an idea, I can have an idea, Kinsella can have an idea – which each party owns – despite the fact that they may be the same idea.

    “Since an idea can be used simultaneously, it is by definition not scarce, and therefore not ownable.”

    An item does not need to be scarce to be ownable. I own my physical actions and my thinking. They are not scarce, but I certainly own them.

    “Are you arguing that an idea is scarce until published, and the act of publishing it renders it not scarce?”

    No. An idea is not scarce, but having to express it in a physical form or as an oratory service makes it a tradable good (scarce).

  • Published: May 9, 2006 11:00 PM

  • quincunx
  • To sum up my position:

    Scarcity exists.
    Scarcity is a subset reason for ownership, Scarce items can be exclusively owned.

    Things that fall outside scarcity, but are ownable include ideas and discoveries.

    EXPRESSIONS of ownable but non-scarce things become the realm of the scarce, but the ownable non-scarce thing itself can never be scarce (by definition).

  • Published: May 9, 2006 11:15 PM

  • quincunx
  • correction, the above should read:

    EXPRESSIONS of ownable but non-scarce things CAN become the realm of the scarce, but the ownable non-scarce thing itself can never be scarce (by definition).

  • Published: May 9, 2006 11:17 PM

  • quasibill
  • “I own my physical actions and my thinking. They are not scarce, but I certainly own them.”

    Your body is certainly scarce – either you are in control of it, or you are not. You don’t share control with someone else. It can only be in one place at a given time (corporally). So your body is scarce, which makes your actions with it scarce.

    Now, your thinking, well, that gets into all kinds of philosophical questions that I find akin to arguing the number of angels on the head of a pin. But I’m comfortable with saying that your brain is the source of your thoughts, so your thoughts are scarce in that manner. Which is why patent law, and to a certain (lesser) extent current copyright laws are among the most fundamental violations of your property rights (on a level with slavery!). Essentially, patent rights (and to a lesser extent current copyright) steal your right to the results of your labor when you think a new idea and set about implementing it with your own labor.

  • Published: May 10, 2006 7:26 AM

  • Stephan Kinsella
  • In response to several comments here, let me emphasize something. In my view, it is misleading and incorrect to say that ideas can ever be “owned”. If you say that I own a private idea inside my head but that I lose ownership when I publicize it, I think this is incorrect. I think ideas are not ownable things at all, ever. Ideas are not scarce resources (I believe the economist lingo would be “rivalrous” goods).

    If you maintain that I do own an idea so long as it is private to me, then you could also say that i “own” my memories, and even some bare facts that are known only to me. For example if I have discovered the largest prime number then I “own” it so long as I don’t tell others. This makes no sense.

    Also, I think it is misleading to say that you “sell” ideas. What you in fact do is make an agreement with someone whereby they agree to transfer title to certain property (like money) to you, IF you do such-and-such (like convey information to them). It is simply a conditional transfer of title to property. Using conditional title transfers, you can in effect “sell” services or ideas, but this is just misleading metaphorical lingo. I discuss a lot of this in my articles on contract theory, all available here.

    Likewise, I also think a problem arises with the notion that we own things that we create; and with the Lockean idea that we own things we “mix our labor with” because we own our labor and “therefore” we own things we mix our labor with. Again, confusion and misleading metaphors. Let me be clear. As I have pointed out in my “Against Intellectual Property” article, “creation” is neither necessary nor sufficient for ownership in a given scarce resource.

    Finally, I think there is confusion caused by overuse of economists’ concepts in a legal/ethical discussion. An economist might regard services or labor or ideas as a “good” if they can be “sold”. I don’t know, and I don’t much care, in this context. In the current discussion, only scarce resources are property; only scarce (rivalrous) resources can be owned. Other things may be economic “goods” if money can be obtained for them or if they are valued, but that does not mean they are literally “sold” or that they can be owned. A pretty model might be able to “sell” her “looks” but does she really sell her looks? No. She obtains money by agreeing to perform certain actions. Does she “own” her looks? No. Her looks are not a scarce resource; they are an attribute of a scarce resource (her body). Likewise, one does not own one’s labor; labor is not a scarce resource; it is action performed by a human being; it is what one does. Action is not ownable.

    ***

    So, now let me turn to some recent posts, in view of the comments above.

    Bourbon:

    I’m confused again. How can I sell or steal something that can’t be owned?

    You can’t.

    quincunx:

    Well you certainly owned that statement before you told everyone.

    I don’t agree. Ownership means right to control a scarce resource. Statements are not scarce resources.

    bourbon:

    Okay, I am focusing on Kinsella’s argument that a thing is not ownable unless it is scarce. Since an idea can be used simultaneously, it is by definition not scarce, and therefore not ownable. Are you arguing that an idea is scarce until published, and the act of publishing it renders it not scarce? What if we have simultanious ideas that we do not publish? Do they remain scarce, and therefore ownable?

    I understand your confusion; it is caused by the notion that ideas are ownable when they are private but not ownable after publication. This notion is indeed confusing, and untrue. Ideas are never ownable. Only scarce resource are. Ideas are not scarce (rivalrous) when private and then non-scarce thereafter; they are never scarce.

    To sell an idea I have to publish it, and by the very act of publishing it, it is no longer ownable. Again, how can I sell something that is not ownable? Very confusing.

    Again, your confusion is caused by the sloppy use of misleading descriptions and metaphors by laymen and economists who conflate economic concepts with legal ones. Ideas are never sold, technically speaking. Where an idea is “sold,” what this means is that the “buyer” simply agrees to transfer to the idea-originator title to some money, IF the idea guy performs certain actions (like handing over a disk with certain information on it).

    quincunx:

    An item does not need to be scarce to be ownable. I own my physical actions and my thinking. They are not scarce, but I certainly own them.

    Again, as noted above, I think this is an imprecise and confused way of looking at it. You do not own your actions and your thinking. It makes no sense to even say this. To own is to have the right to control a scarce resource. Now you certainly have the right to control your body–which is to say, your own yourself–and this implies, practically, the ability or power to manipulate it in certain ways and to profit from it, and to decide whether or not to speak about or reveal certain information or knowledge you have. It also gives you the power, say, to decide whether to drink tea or milk; or the power to (decide to) mow the lawn. But it would be nonsense to say that you therefore “own” mowing the lawn; that you “own” choosing-to-drink-tea-or-milk, that you “own” information you possess. You own your body. What you do with it is up to you.

    To sum up my position:Scarcity exists. Scarcity is a subset reason for ownership, Scarce items can be exclusively owned.

    Things that fall outside scarcity, but are ownable include ideas and discoveries.

    EXPRESSIONS of ownable but non-scarce things CAN become the realm of the scarce, but the ownable non-scarce thing itself can never be scarce (by definition).

     

     

    I think this is confused and flawed.

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

  • Published: May 10, 2006 10:02 AM

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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.