From the Mises blog; archived comments below.
Recently, re-listening to the 1991 lecture “Ayn Rand, Intellectual Property Rights, and Human Liberty,” by Objectivist attorney Murray Franck, I was struck by one of quotes given in defense of IP. During his lecture, Franck reads (most of) the following quote approvingly:
“When we come to weigh the rights of the several sorts of property which can be held by man, and in this judgment take into consideration only the absolute question of justice, leaving out the limitations of expediency and prejudice, it will be clearly seen that intellectual property is after all the only absolute possession in the world. The man who brings out of the nothingness the child of his thoughts has rights therein which cannot belong to any other sort of property. Land or chattels are pre-existing in some form, and the rights therein are limited in many ways, and are held in the great service of the world, but the inventor of a book or other contrivance of thought holds his property, as a god holds it, by right of creation; with his silence or inaction the sustenance and advance of millions yet to be may vanish into the great darkness again. His brain has brought the seed out of the infinite, planted it in good soil, tended it with the care that only the sower can feel. Surely the world should not deny him a share of the increase he has brought about, and if he, giving the reversion of his property for all time to his race, is granted the product of his creation for half a score of years, he should surely be secured against being plundered by the law as well as by the lawless.”
[Here is the audio:
]
Franck says the quote is from one “Forvold Solberg” [sp?], “a former register of copyrights”, but my google-fu indicates that the author is one Nathan Shaler, Professor of paleontology and geology at Harvard from 1869-1906, in his Thoughts on the Nature of Intellectual Property, and Its Importance to the State (1878). It’s perhaps a bit ironic that the author quoted approvingly by an Objectivist in support of IP was a racist, one-time Creationist, and author of a book about some idea’s “importance to the state”!
In any event, the latter part of the quote is extremely utilitarian: “the world” should give the innovator or creator “a share” of the wealth he contributes… by giving him a monopoly on it for about ten (“half a score”) years.
The first part–about how inventors are “like gods” calls to mind Rand’s embarrassing justification for smoking–that it’s symbolic of fire “tamed” at man’s fingertips.
The quote also emphasizes very explicitly that Randians and other IP advocates believe “creation” is an independent source of rights:1 you hold your intellectual creation like a god, “by right of creation.”
I note also that Franck says in the lecture that copyrights should survive in perpetuity.
Incidentally, I graduated from law school in 1991, the year of this lecture, and listened to it soon after, about the time I was beginning to practice IP law (1993 or so). I had recently morphed from an initial flirtation with Objectivism to Rothbardian anarcho-libertarianism.2 I was very interested in this lecture, since I had long struggled with Rand’s weak justification of intellectual property–which was especially troubling since she claimed that “patents are the heart and core of property rights.”3 The lecture failed to convince me; I kept searching for better justifications of IP than I’d seen from Randians. After shooting blanks for a few years, I finally came to the realization that I was unable to find a justification for IP … because it’s unjustifiable and contrary to individual rights. By 1995 I had reached my current views on IP, as can be seen in this exchange between me, Franck, and David Kelley, in the IOS Journal: Murray I. Franck, “Intellectual Property Rights: Are Intangibles True Property,” IOS Journal 5, no. 1 (April 1995); Kinsella, “Letter on Intellectual Property Rights,” IOS Journal 5, no. 2 (June 1995), pp. 12-13; David Kelley, “Response to Kinsella,” IOS Journal 5, no. 2 (June 1995), p. 13; and Murray I. Franck, “Intellectual and Personality Property,” IOS Journal 5, no. 3 September 1995), p. 7.
Comments (79) 
- See “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward,” the section “Lockean Creationism“; also “The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism,” “Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors,” “Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging’,” and “Succinct Criticism of Utilitarianism and Libertarian Creationism.” [↩]
- See “How I Became A Libertarian, December 18, 2002, LewRockwell.com, also in I Chose Liberty: Autobiographies of Contemporary Libertarians (compiled by Walter Block; Mises Institute 2010). [↩]
- See Rand and Marx. [↩]
nick gray
Stephan, maybe you can answer a point which was raised in Australia, by me, to anti-IPers? This is a valid point, and if non-IP can come up with a similar product, you’ll win over many people.
Pharmaceutical companies often take years to develop a new drug, and recoup their costs by having years of monopolies. Without IP, would we have, for instance, Viagra now?
Published: August 7, 2008 2:06 AM
Haas
Ok so Dan brown writes a new book called the da vinci code- can i just take off the covers front and back put my name on it and resell it? if the publishers get it from me much cheaper than dan brown himself why not? according to you that would be ok…
Published: August 7, 2008 4:29 AM
ee
If those are the best arguments for IP then this battle is already won.
Published: August 7, 2008 6:17 AM
Peter
if the publishers get it from me much cheaper than dan brown himself why not?
How would they get it from you cheaper than from Dan Brown? You don’t have it until after it’s already been published – the publishers already have it before you do, obviously, or you wouldn’t have it at all, so why would they pay you for another copy?
Published: August 7, 2008 6:25 AM
ktibuk
And what is wrong with the quote exactly?
The authors views about race or how the universe came about or whether he was an anarchist or a statist is irrelevant.
But to someone like Kinsella, with no tangible argument, using logical fallacies, ad hominem in this case, is not only normal but necessary.
Published: August 7, 2008 7:16 AM
Geoffrey Allan Plauche
“The first part–about how inventors are “like gods” calls to mind Rand’s embarrassing justification for smoking–that it’s symbolic of fire “tamed” at man’s fingertips.”
What’s embarrassing about that?
Published: August 7, 2008 10:27 AM
Person
@Haas: IP is a separate issue from plagiarism. In a world without IP, people wouldn’t have to claim the work as their own; they would freely admit it’s a work of Dan Brown, and that they’re copying it.
@ee: And if the best argument to show how EM spectrum rights are different from IP, is that OBVIOUSLY, the OBJECTIVELY RIGHT “relevant use” of the EM spectrum is to transmit information rather than just mere radio waves, then the battle for IP is already won.
@Peter: *some* people have bought the book already. But if everyone beyond about the first week of sales got it from a copycat, that means the profis are very low, and best, AND — here’s the kicker — would not come close to reflecting the actual demand for such books.
Did someone say “economic calculation argument”? And please don’t respond by defining away the problem.
Published: August 7, 2008 11:00 AM
Per-Olof Samuelsson
And how about reading Ayn Rand’s own view on the subject? There is a chapter on “Patents and Copyrights” in “Capitalism: The Unknown Ideal”.
Published: August 7, 2008 11:59 AM
fundamentalist
nick: “Without IP, would we have, for instance, Viagra now?”
Keep in mind that there are two groups of IP opponents. One opposes IP on “ethical” grounds. That group doesn’t care about practical arguments. For them IP is evil by definition and therefore must be abolished at all costs.
The second group opposes IP and patents because they think it stifles innovation and technical progress. You can actually discuss things with this group. They are probably right that IP does stifle innovation to some degree. But let’s separate the invention from the development part. Without IP, inventors of new drugs would have to rely upon the generosity and public spirited nature of the wealthy to finance research on new drugs because no entrepreneur will do it without a profit incentive. We would revert to the pre-capitalist mode of financing inventions where inventors were patrons of the nobility. After a new drug was invented, entrepreneurs may step in and produce it if sufficient barriers to entry by competitors exist in terms of capital and expertise. The entrepreneur would have the advantage of having invested no money in the research. His profit would come from his expertise in business organization and manufacturing.
So, in short, yes, Viagra may still exist without IP. We just wouldn’t rely on the profit motive for its invention, just the charity of the wealthy.
Published: August 7, 2008 12:43 PM
Stephan Kinsella
Plauche:
“‘The first part–about how inventors are “like gods” calls to mind Rand’s embarrassing justification for smoking–that it’s symbolic of fire “tamed” at man’s fingertips.'”
“What’s embarrassing about that?”
It’s so ridiculous I don’t know where to start. It’s self-important. It’s an obvious attempt to justify–even glorify–a nasty, unhealthy habit. It exemplifies the Randroid habit of melodramatically over-glorifying “Man” and elevating every personal preference into Holy Writ. And smoking is trashy.
Published: August 7, 2008 1:28 PM
rtr
fundamentalist: “Without IP, inventors of new drugs would have to rely upon the generosity and public spirited nature of the wealthy to finance research on new drugs because no entrepreneur will do it without a profit incentive.”
That’s why barber’s have to cut customer’s hair without permission while they are asleep and then demand payment when they wake up. That’s why painters have to paint your house without permission when you are away at work, and then demand payment when you arrive home from work. That’s why grocery stores have to put an unsolicited random supply of grocery goods on your doorstep with a bill, ring the doorbell, and run away.
What a ridiculous erroneous assumption fundamentalist makes. Who is ultimately going to pay for the drugs? Patients. All the market needs to solve any research and development funding problems is to adopt a service model connecting scientific researchers with patients, and friends and family of patients. If they want to pay for drug research (which they would have to anyway in a violently enforced government monopoly patent system), they are free to do so, or not, as they please. And discovers will have a brand name edge that can garner a higher price per pill than the no name, possibly riskier, competition.
There’s plenty of willing and able researcher scientist competition willing to put forth their resumes and be paid handsomely to work on finding cures for all sorts of diseases and ailments. There’s no need for an inefficient drug company middleman that only searches for cures that can be patented (eschewing vast swaths of potentially more efficient and far cheaper solutions), that only searches for cures that require hooked repeat business customers, and that price gouges as one of the most excessively obscene margin profit monopoly business models ever devised.
All IP is trespassing on the real property of others, is a theft of the full use of private property, to be shaped in any damn way well the owners of private property please.
I’ve never seen a proponent side of a debate just so thoroughly and quickly smoked on the merits of the argument, as IP proponents. It’s hard to believe people here are still unaware that there is no justification, economic or ethical, whatsoever for IP.
If IP was working, why do we still charity telethons? Why do we still see 10k runs and walkathons for things like breast cancer?
As genetics technology advances, it’s going to become ever easier and cheaper to cure all sorts of ailments. Yet IP sanctioned drug cartel companies are going to front run this technology, and gouge the hell out of the rest of the world, as they use government intervention to shut out competition. We can see the future of medicine just by observing the future of farming and Monsanto.
Published: August 7, 2008 1:36 PM
Florida Economist
There is nothing inherently wrong with the existence of IP. Though like with everything else, our nation of attorneys and corporations have gorged themselves on it. IP has become a cost of doing business (both offensively and defensively), for some their only business, it is a game of chess without any regard to who actually creates the property in the first place. With enough money, the right courtroom strategy and only a slight similarity between two sets of IP, a good attorney can legally steal complete IP right out from under the feet of the defender. I am not an attorney (as if that wasn’t obviously) so I can not voice a defensible position on types of IP and their worthiness. However as a strategist I can say very definitively that the lawful abuse of IP, not IP itself, has weighed heavy on innovation and thus the benefits that society may receive. It has slowed innovation down and made it far more costly than it needs to be.
Published: August 7, 2008 1:49 PM
Larry N. Martin
Walt Disney is long-dead. Free the Mouse!
Published: August 7, 2008 2:15 PM
Geoffrey Allan Plauche
“It’s so ridiculous I don’t know where to start. It’s self-important.”
So?
“It’s an obvious attempt to justify–even glorify–a nasty, unhealthy habit.”
Really? I don’t really follow cig politics and science all that closely. When Rand first made this comment was it widely known just how unhealthy smoking is?
Certainly I don’t like the smell. There are better smelling cigs (like cloves), cigars and pipes though.
Even though it’s unhealthy, it is a personal choice weighed against the pleasure of smoking. Who are you to denounce it, Mr. Thin Libertarian?
“It exemplifies the Randroid habit of melodramatically over-glorifying “Man””
This is a reaction, at times an over reaction, to the modern tendency to treat “Man” as no better, even worse, than other animals (even bacteria). As an atheist, I’m not against a little corrective glorification of Man. It can be overdone and sometimes is in Objectivism. There is an element of Enlightenment rationalism in Objectivism.
“and elevating every personal preference into Holy Writ.”
You’re right there, but this is not necessarily inherent in saying that smoking is symbolic of Man’s taming of fire.
“And smoking is trashy.”
Not if you use cig holders! 😀
Published: August 7, 2008 2:23 PM
rtr
I also want to add to my comment above that doctors can be customers of drug research scientists too. Doctors order all sorts of medical equipment with which to run their practice. They subscribe to newsletters and journals. There’s no reason they couldn’t subscribe directly to research scientists as well, to remain at the cutting edge (no pun intended). Ten doctors could probably fund 1 full time research scientist. And those ten doctors could put some advertisement research association sticker on their door to advertise they are not only at the top of current medical technology, but directly investing in future medical technology.
And as it is now, plenty of University hospitals are research hospitals. Just exactly where are those research results? Oh that’s right, paying Michelle Obama’s $900,000 diversity community outreach part time job.
Published: August 7, 2008 2:55 PM
Curt Howland
So, in short, yes, Viagra may still exist without IP. We just wouldn’t rely on the profit motive for its invention, just the charity of the wealthy.
Absurd. First of all, in the time between releasing Viagra and its reverse-engineering, development, production and delivery of the competition, the maker of Viagra gets to charge monopoly prices.
Once competition does begin, the original producer gets to undercut the price of the competition because their development process is already paid off (having been able to charge monopoly prices that the competition cannot charge), as well as having the benefits of an established reputation in that market.
One might as well as why Bayer still produces asperin, and makes a profit doing so, yet asperin has no IP protection what so ever.
Published: August 7, 2008 3:07 PM
hl
Whoa! Hold on. Surely you meant to say “it’s an obvious attempt to justify — even glorify — a habit that I, St. Kinsella, find nasty and unhealthyt.”
Published: August 7, 2008 3:16 PM
Jardinero1
I am with RTR. I think the drug company example is a canard. It’s far from a foregone conclusion that drug companies improve our lives or health in any substantive way.
Ninety nine percent of the gains in health and longevity of the last hundred years are the result of clean drinking water, sanitary sewers, childhood immunizations, elimination of infection and improvements in home and workplace safety. The few drugs that contributed to the above – childhood vaccines and penicillin – were not the product of an IP regime but of philanthropy.
The signature health problems of our day: heart disease, cancer, diabetes occur, mostly, later in life and are either hereditary or the end result of bad lifestyle choices made when young. The drug companies use their monopoly power to nibble at these edges providing very expensive solutions that extend life or improve health very slightly.
Published: August 7, 2008 3:36 PM
Walt D.
In the drug case, the major cost is the cost of the FDA mandated clinical trials. It would seem that we could do without the IP patent if the FDA insisted that any other drug company reverse engineering the drug would have to do their own independent clinical trials. This would work for the US market. However, it would allow other countries to free load.
Published: August 7, 2008 3:59 PM
Person
Curt: Absurd. First of all, in the time between releasing Viagra and its reverse-engineering, development, production and delivery of the competition, the maker of Viagra gets to charge monopoly prices.
Okay, so … six months’ worth (and of course, people figure they can just hold out until the ten-cent version is released)? The reverse-engineering time is zero because it’s a) just a recipe for making a pill, and b) they can secretly buy the formula from any one of the thousands of people who have access to the it. Codes of silence don’t work if all it takes is one person to let the genie out of the bottle.
So, Curt, are you okay with even the most POPULAR new medicines, only being developed if the six-month monopoly price justifies it?
Gee, I sure hope Mommy doesn’t get any kind of niche health problem.
(Btw, I thought your position was to dismiss the relevance of profitiability of producing intellectual works entirely, and just be content with the charity works, like Linux? Note, I’m asking, not assuming.)
One might as well as why Bayer still produces asperin, and makes a profit doing so, yet asperin has no IP protection what so ever.
One mightn’t not. The profit Bayer makes is on the labor involved and the brand equity, not on the intellectual work better known as the formula for aspirin.
Published: August 7, 2008 4:00 PM
Person
Walt D.: Do I have to refute that argument again?
Yes, the FDA pumps up R&D costs unnecessarily. (There would still be certification costs of course, but I accept that the FDA still makes them much higher.)
But research costs NECESSARILY go up over time, as part of the universal law that people (indeed, any successful self-replicator) seek the lowest-hanging fruit first.
So, let’s say that today, if there were no patents, and no FDA, drugs could still get cranked out because the loss from no patent is canceled by the gain from no FDA.
What about after 50 years of increasing costs? What’ll be your excuse then, for why no one wants to develop drugs?
Published: August 7, 2008 4:12 PM
Walt D.
Stephan
Suppose I go into the Mises Bookstore and buy a copy of each book. Are you saying that I should have the right to make an electronic version of each book and make it available on my website for free or charge a nominal fee?
Published: August 7, 2008 4:47 PM
Henry Miller
A large part of the cost of a new drug is pay for by charity today. Until it gets into trials few companies are actually willing to pay. Many drugs fail trials (either they don’t work, or they work, but the side effects are worse than the disese).
Published: August 7, 2008 4:56 PM
Alcibiades
Why is the development of pharmaceuticals always used by IP partisans as though it presents a convincing example of the need for IP? Many (if not most) of the drugs currently in development are designed to treat pseudo-disease (eg, ADHD) or to treat conditions which can be treated without pharmaceuticals (eg, sleep aids). Moreover, if IP is necessary for pharmaceutical companies to realize a profit why does the industry spend billions each year on direct-marketing to potential end-users rather than R&D? It’s because, again, many of the drugs being developed and marketed are luxury items, or worse, are inferior to existing treatments but offer the fantasy of improved health or quality of life in one little pill.
Published: August 7, 2008 5:59 PM
Jim C
Walt D.
Sorry but I think mises.org beat you to the punch, with over 2,000 books and articles posted for free download and more constantly being added.
Published: August 7, 2008 6:30 PM
Marcello
Walt,
why would that be bad?
Published: August 7, 2008 7:15 PM
Lowell Sherris
Nick Gray
Pharmaceutical companies often take years to develop a new drug, and recoup their costs by having years of monopolies. Without IP, would we have, for instance, Viagra now?
We probably wouldn’t have Viagra. Most likely, we would have a choice of better, safer, and less expensive alternatives.
IP and intrusive government in the form of the FDA are the reason we have such limited choices in pharmaceuticals at such ridiculous prices. The reason pharmaceutical companies take years and more than a billion dollars to bring a drug to market is FDA requirements. It is so expensive and difficult to bring drugs to market that literally only a handful of companies do so. When small companies try to develop drugs, they do so with the expectation that the drug (or the entire small company) will be bought out by a big company if they are successful.
There is actually very little innovation in the pharmaceutical industry. Many of the drugs that are approved are actually rehashes of old drugs with small modifications put in place since the patent monopoly is scheduled to expire. See this link: http://money.cnn.com/2007/03/21/news/companies/drug_patents/index.htm?section=money_latest
It is very common for drugs that go off patent, such as Zyrtec, to then be sold over the counter. If the purpose of requiring prescriptions was to protect the public from potential side effects or abuse of dangerous drugs, how did these drugs become less dangerous after the patent expires? The obvious answer is that the requirement of prescriptions benefits physicians, pharmacists, and mainly pharmaceutical companies.
Because of the huge cost of developing drugs, many companies or scientists try to play it safe by avoiding investigating long shots. Remember how important the unseen is in evaluating the effects of human action. Without IP there would undoubtedly be more investigators taking chances,and hence more innovation. IP also prevents innovation by scaring investigators away from promising findings if they believe there is a possibility of infringing on someone’s patent. Many people and their attorneys make good living by getting patents and waiting for someone to accidentally infringe.
I ask this question to my IP loving friends. If the Wright brothers had been given a patent for their aeroplane, is there any possibility that aviation would have developed as rapidly as it did? It only took 14 years for aviation to progress from the first flight 12 feet off the ground to the Red Baron having dog fights in a fairly sophisticated plane.
As a physician, for the most part I have seen only minimal improvements in the efficacy and safety of most new prescription medications at a time when the cost has sky rocketed.
Published: August 7, 2008 7:55 PM
Andras
Hey guys, why don’t you ask the creative genius if he still want to invent under the new conditions? How many of you ever invented anything? Most of the opponents of IP can not even distinguish between inventing and manufacturing. Don’t they just try to confiscate IP? Is there any historical precedent for mass invention without IP? Is the existing system so bad that you would risk a total Atlas Shrugged?
I the inventor of drugs (life saving antibacterials not recreationals like viagra) surely think twice not to mention the investors who risk billions for decades to develop a new (and better by definition) one.
Published: August 7, 2008 8:26 PM
Lowell Sherris
Andras
Is there any historical precedent for mass invention without IP?
How about fire, the wheel, writing, mathematics, Greek drama, Roman literature? This is similar to asking whether there is a historical precedent for a truly free market. The answer is no, but it certainly sounds like a good idea.
Is the existing system so bad that you would risk a total Atlas Shrugged?
Damn straight!
I the inventor of drugs (life saving antibacterials not recreationals like viagra) surely think twice not to mention the investors who risk billions for decades to develop a new (and better by definition) one.
You mean like Sir Alexanda Fleming who discovered penicillin and then didn’t file for a patent. How many unseen scientists are prevented from doing research because of the high cost of research directly related to the patent system and FDA regulation?
Published: August 7, 2008 8:37 PM
Stephan Kinsella
Andras: “Is there any historical precedent for mass invention without IP? ”
See my The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism [PPT, 32MB], slides 70-71:
For some links to some of this, see my blog post Patents and Innovation, Mises Blog (Mar. 7, 2008) (noting economic historian Eric Schiff’s conclusion that when the Netherlands and Switzerland temporarily abolished their patent systems, they experienced increased innovation; Petra Moser’s finding that countries without patent systems innovate just as much, if not more, than those with patent systems).
Published: August 7, 2008 9:10 PM
nicholas gray
Re- the airplane. Every self-respecting Aussie knows that Lawrence Hargraves actually invented the airplane before the Wright Bros.! (I believe that New Zealand thinks some local Enzedder got there first.) Still, if they had taken out an international patent on the aeroplane, that means that some of the worst horrors of WW1 wouldn’t have happened! They could have ensured that only the French and British and Americans had planes in the war. We can be sure that the honourable Germans would not have broken the sacrosanct Patent Laws!
As for Switzerland and Holland doing without patents, have any of them had innovative inventors? Has there ever been a Swiss version of Thomas Edison? I ask because I think that if such a man were around and patent laws were repealed, he would leave for a country that had strong patent laws. (By innovative, I mean ground-breaking. The light-bulb was not just an improved candle.)
Published: August 7, 2008 10:32 PM
Haas
Nick- how dare you 🙂 the first person to fly was Richard Pearse! we just get ignored because we’re at the bottom of the world…
Published: August 8, 2008 2:02 AM
theblob
In Thomas Edisons time many inventions were made parallel , and to reduce this boom to patent laws is… I think the utilitarian discussion comes down to “what is seen and what is not seen”.
The important part for me here is that their are million ideas out there, thinking up this things is not the hard part, the execution is. Not to mention the patents lying in someones desk, only to be used as legal weapons.
PS: Thomas Edison can’t hold a lightbulb to Nikola Tesla
Published: August 8, 2008 3:26 AM
Miklos Hollender
“the inventor of a book or other contrivance of thought holds his property, as a god holds it, by right of creation”
Interesting – this is EXACTLY the Roman idea of auctoritas (the authority of the creator, the auctor, the initiator)
Published: August 8, 2008 4:22 AM
Ron
It certainly makes sense to me that the absence of IP protection would result in an increase in competition. Rather than patenting an invention, then resting on one’s laurels while the monopoly profits roll in, the inventor would have to anticipate the duplication of his ideas and plan accordingly. As soon as (or possibly even before) his product is out the door he’ll have to be working on the next, improved version in order to retain his market share when all the copies of the original version hit the shelves.
I’m betting, too, that directly copied products would only be profitable for a short period of time following the repeal of IP laws. As inventors and producers become better at staying ahead of the copycats, the copycats themselves would have to offer not just a copied product, but a copy that includes some improvement or enhancement over the original. Though it’s possible that the lower price of the copy might make this point moot.
It’s also likely that a market for tools to prevent idea theft would evolve, providing a mechanism for inventors to protect themselves. Such things already exist, in the form of copy protection devices and encryption algorithms for digital media, for instance. Typically, these methods only serve to lengthen the amount of time before copying is possible, similar to the function of a patent, but without all the concomitant inefficiencies and bureaucratic arbitrariness.
Published: August 8, 2008 9:34 AM
newson
it’s hard to imagine any move towards abolition of ip laws that doesn’t start with the us.
any lesser breakaway country would presumably be the object of punitive measures, as is alluded to in the historical example of the netherlands/switzerland, cited above by
kinsella/schiff.
Published: August 8, 2008 10:43 AM
Michael A. Clem
Okay, so as a practical argument, we apparently can say that innovation would continue or even increase without patents. Tackling the assumption would go a long ways towards ending monopoly IP protection.
Published: August 8, 2008 11:01 AM
Ron
MAC: “Tackling the assumption would go a long ways towards ending monopoly IP protection.”
Definitely. I think this is the default position taken by most IP proponents, with little thought given to the ethical implications thereof. It’d be a tough nut to crack, though.
Just kinda thinking out loud here…
Something else to think about in a non-IP market are the effects on the methods of research themselves. The newfound push to get products “out the door” may result in more efficient research methods. If patents are intended to allow sufficient time to recoup costs for R&D, then the absence of that protection will necessitate reduced up-front R&D costs. Same thing if a producer must assume that they’re going to have to compete with copycats almost immediately after their product hits the market…prices will need to be low enough to render copying less profitable.
I would think, though, that a brand new product might not have to worry about copying right off the bat. In order for copying to be profitable, demand for the product must be high enough to warrant it. Copycats may therefore wait to gauge consumer demand before adding to supply. If consumer demand is low enough, copying may not be profitable enough to be worthwhile. Would that then imply, though, that demand for the product itself isn’t high enough to be profitable, even without copycats?
Published: August 8, 2008 11:26 AM
Person
It certainly makes sense to me that the absence of property protection would result in an increase in competition. Rather than constructing large captial equipment, then resting on one’s laurels while the capital rents[1] roll in, the inventor would have to anticipate the takeover of his factory and plan accordingly. As soon as (or possibly even before) his product is out the door he’ll have to be working on the next, improved version of the equipment to retain his market share when others are in control of his factory.
I’m betting, too, that output of stolen equipment would only be profitable for a short period of time following the repeal of property laws. As investors and producers become better at staying ahead of the invaders, the invaders themselves would have to offer not just a product of someone else’s equipment, but a product that includes some improvement or enhancement over the original machine’s output. Though it’s possible that the lower price of the stolen capital’s outputmight make this point moot.
It’s also likely that a market for tools to prevent invasion of factories would evolve, providing a mechanism for capitalists to protect themselves. Such things already exist, in the form of armed guards and fences for factories, for instance. Typically, these methods only serve to lengthen the amount of effortbefore successful invasionis possible, similar to the function of a property law, but without all the concomitant inefficiencies and bureaucratic arbitrariness.
[1] Sorry, this is the term for it.
Mad-libs for socialists. Nothing to see here, move along.
If IP is so unlike physical property, why are these reductios so easy?
Published: August 8, 2008 11:52 AM
Ron
Person,
Your reductio is “so easy” because it ignores a fundamental difference between physical property and ideas. Stealing physical property from its rightful owner prevents its owner’s use thereof. “Stealing” an idea from its creator does no such thing. The creator retains full use of his idea even though someone else is using it as well, ergo no violation of property rights has occurred.
Published: August 8, 2008 1:08 PM
Person
Ron: you were arguing about the EFFECT of removing IP, NOT whether violating it means a genuine violation of property rights.
Do you remember that?
So do you understand how my response dealt with the EFFECT of removing IP, not with the ethical issue of whether that violates property rights?
So do you kind of understand how responding to my refutation of the EFFECTS you claimed, by saying that removing IP doesn’t violate property rights, would kind of be non-responsive?
Yeah, let’s kind of rethink that one.
I need to set a limit on who I argue with about IP. Say, how long a chain of argumentation you must be capable of processing in order to argue with me.
If you really think the owner’s loss of the full factory is relevant, replace the situation in my example with a case of invaders taking over *half* the factory, such that both sides can produce the same product. We still have a nice, successful, productive, competitive market? No? Okay then.
Btw, all my points about how “then we can remove property rights because people can just put fences around their stuff” would be relevant either way.
Published: August 8, 2008 5:11 PM
????
ummm what’s your solution Person?
Published: August 8, 2008 7:39 PM
andras
Lowell Sherris & Stephan Kinsella,
You both focus on your argument that state enforced patents are not necessary for innovation. I agree. I would even grant that you do not need the state for patents. Though neither of your examples were mass inventions. I admit it is hard to find eras without patents in capitalism.
Lowell I would argue of the Fleming/penicillin case: Fleming did not know the structure of penicillin so he could not patent it. What he knew was too broad. as he was a microbiologist. On the other hand, all the chemical research around penicillin is patented.
Do you want me to voluntarily give up my inventions? I see Atlas Trembling.
Stephan, it seems all the arguments focus around whether IP is property. The rest is just practicalities. However, You cannot just strip owners of their properties with a decree even if you think, may be rightly, that those are imaginary. You have to persuade them to do so or initiate a revolution. This is too far a jump to the dark to be sure of the consequences. It very much reminds me to social engineering.
Published: August 8, 2008 7:47 PM
John Howard
The premises of IP are:
a) learning is stealing
b) customers are property
c) mind-reading is possible
All three are false premises.
If you have an idea and wish to keep it to yourself, do so. But if you show it to me and I take the time to understand it and apply it, it becomes my idea, and the product of my effort is mine, not yours.
My customers have the freedom to choose my application of the idea over yours. You do not own customers and so cannot claim a loss.
You can not prove that I did not think the idea up myself, or was nearly done doing so, nor can you prove that you originated the idea. Mind-reading is a myth. All you can prove is that you got to the government patent office first and were rewarded with a coercive monopoly.
Published: August 8, 2008 8:15 PM
Ron
Person,
So what is your objection to people putting fences around their stuff? How, exactly, would doing so negate the need for property rights? Are you saying that individuals shouldn’t protect their own property? Do you mean to imply that such a function should be left purely to the state? Do you see a difference between protecting one’s own property and relying on the state to do so?
Oh…I think I get it. Perhaps you mean that if we can’t justify putting the state in charge of protecting our property, then we can’t justify protecting it ourselves? Interesting. Your non-response to my argument regarding the effects of IP repeal was meant to illustrate this point, no?
If not, then I can only assume your point is that the effects of allowing “idea theft” would be just as disastrous as allowing wanton theft of physical property. I thought you were smarter than that, but maybe I’m giving you too much credit. 😉
Published: August 8, 2008 8:39 PM
Curt Howland
Person, yes. I am perfectly happy to have such innovation that has only a limited time to enjoy monopoly profits.
I can say this because I worked at a company that did just that. They made plastic. Not just any plastic, they made plastic to exacting customer specifications.
In the year that it took to reverse engineer, formulate, produce and deliver a replacement, this company made _serious_ profits. And during that year they were coming up with yet another customer’s perfect product, so there was substantial overlap.
Since strength, melting point, flow and all the other specifications are not “intellectual property”, anyone can produce whatever has the same properties.
If this plastics manufacturer is an example of the innovation that is possible in a non-IP environment, I can say with confidence that the world has nothing to worry about with a loss of copyright/patent.
Of course, Person, if history is any guide, you’ll just dismiss my real-world example as a pointless rhetorical exercise.
Published: August 8, 2008 9:09 PM
Ron
Y,know, Person, it occurs to me that perhaps I’m doing you a disservice by failing to respond to your non-response to my original non-response. So here I’ll respond, and I’ll try not to mix ethics with effects this time. 😉
If Silas owns a factory, and Ron comes and steals the equipment from the factory or, as in your example, kicks Silas into the street and takes over the entire factory, the effect will be that Silas no longer has a factory. Silas can’t make stuff because Ron has all the equipment. Ron can make stuff, sure, but if Silas wants to make more stuff he must buy more equipment. So, Silas must expend more resources than he otherwise would have to continue to make stuff. Obviously, this is bad for Silas, so Silas would naturally like to prevent such theft from happening.
Silas, then, has two choices: he can protect his property himself, or he can rely on someone else to do so. Protecting his own property might mean building a fence, installing a security system, hiring a security guard, or some combination thereof…all of which require that he spend his own money. Relying on someone else to do so means utilizing the state, thereby getting everyone else to pay to protect his property. (Oops…sorry, I got really close to some ethics there. I’ll be more careful henceforth)
In any case, if Ron writes a piece of software, and Silas somehow gets a hold of a copy of the source code for it, a magical thing happens…or rather doesn’t happen, as Ron still mysteriously has possession of his copy of the source code. Ron is therefore able to make more copies of his software. Of course, Silas is able to make copies as well, but it doesn’t stop Ron from continue to use the child of his mind for whatever purpose he chooses.
Okay…pop quiz. What’s the same about the effects in these two scenarios? C’mon, I know you can do it…
Right! In both scenarios there are now two people producing the same thing. Assuming identical quality of output, they will each presumably obtain half the market share.
So, what’s different about the effects in both scenarios? Give up? Aww…I’m kinda disappointed, but not surprised.
The difference is that in the first scenario, a net loss has occurred because Silas had to expend more resources than he otherwise would have if Ron hadn’t stolen his equipment. In the second scenario there is no loss to Ron. See how that works? The cost to Ron when Silas “stole” his source code, is nil. Ron’s no worse off than he was before. Therefore, the effects illustrate the ethics.
See? I can be patronizing, too. 😉 Did it make my argument more convincing?
Published: August 8, 2008 9:22 PM
Haas
ron loss can be potential profits too not just loss of what you have on hand
Published: August 9, 2008 9:51 AM
Curt Howland
Person, you are ignoring the fact that Lamborghini, Rolls Royce and the like make good profits making small numbers of cars entirely on their reputation.
But since I’ve never seen anything you wouldn’t ignore when it suited you, I must wonder why I bother to continue to be surprised.
Published: August 9, 2008 10:34 AM
Ron
Haas: “ron[‘s] loss can be potential profits too not just loss of what you have on hand”
This presumes that Ron can claim ownership of those profits to begin with. The problem with that is exactly as you said, they are potential profits, meaning they don’t yet exist. Can any producer rightfully claim ownership of anything that might result from his efforts, or only what actually has resulted from his efforts?
Published: August 9, 2008 11:37 AM
ktibuk
Geez,
Is it too hard for you socialists to keep your word and honor your contract?
All pro-private property people want is that you keep your word.
I wrote a novel, I put it on paper and I gave it to you on contract that says you can not copy it but just read it yourself.
If you dont believe you can abide by the contract, then dont buy it from me. Go away and either produce it yourself or find someone that gives you charity.
But if you do buy my book and promise me that you will abide by the rules of the contract, how dare you break your promise and claim the book was your right?
What you IP socialist are doing is defending inter species parasitism.
Published: August 9, 2008 12:56 PM
ktibuk
“Person, you are ignoring the fact that Lamborghini, Rolls Royce and the like make good profits making small numbers of cars entirely on their reputation.”
Not that it is relevant.
But those companies went bankrupt and brought back to life by bigger companies that make millions of cars per year.
BMW owns RR and VW owns Lamborghini.
Published: August 9, 2008 1:04 PM
Marcello
ktibuk
You are the socialist. You are calling for government intervention in a non existent market.
“I wrote a novel, I put it on paper and I gave it to you on contract that says you can not copy it but just read it yourself.”
um okay
That is a contract and not a copyright. What happens when I sell that book? Can I not give it to someone else to read?
Published: August 9, 2008 7:09 PM
Marcello
Also. Who are you protecting by forcing your consumer to “honor” such a silly contract? Pirates obviously won’t abide by it, but that doesn’t hurt you in any way. If a pirate makes 100 copies of your book and gives it away for free, he is not hurting or defrauding anyone out of their money.
Published: August 9, 2008 7:12 PM
ktibuk
“That is a contract and not a copyright. What happens when I sell that book? Can I not give it to someone else to read?”
Listen you parasite. There is a contract. It says you can only read it yourself. That is it. You can not do anything else with it. Is it that hard for you to grasp. If you dont like the terms of the contract, then walk away.
Stop trying to defend how my property is your right. But I guess that is what socialist do, isnt it?
Published: August 10, 2008 1:01 AM
Marcello
Okay then the market has proved your contract has failed. No book comes with such a crazy contract.
Published: August 10, 2008 2:32 AM
Lowell Sherris
Andras
You are correct, one cannot just strip another of his property. That would indeed be social engineering. The argument over whether ideas are indeed property is the crux of the matter.
It is easy to define the boundaries of real property. This pencil is mine; it is obvious where the boundaries of the pencil end. This house is mine; here is the survey indicating the exact boundaries of my land.
The boundaries of an idea are fuzzy and arbitrary. That’s why there is so much IP litigation and threatened litigation. That’s why IP legislation has such a chilling effect on innovation.
If I homesteaded some property and then claimed all the land as far as the eye could see you might object to my claim. In many cases IP claims are just as unreasonable. IP ownership is simply a monopoly privilege granted by the state. It is no more right or proper than the state’s granting of liquor licenses or taxi medallions.
Published: August 10, 2008 7:58 AM
Andras
Lowell,
(we may go off-line as this blog seems dying though I think it is great as the noise goes down)
I agree again. Ideas as Property is the crux. I have granted that this proposition might be imaginary. But even if it is just that you could expect a tremendous fight. Let’s consider historic precedents. In the middle ages, the Catholic Church had the same claim on the same. It took centuries of a bloody fight to change that. It almost obliterated the entire European culture. Are you ready? Are your arguments solid enough? I see big holes in your arguments in the field I know. I grant again the current system is not perfect but it works. It is what you said, a monopoly privilage. It is even declared that by the government. That is what they promise you for socializing your invention. It is an exchange as you do not have to patent.
I think it is a good idea to give an abstract of the pharmaceutical research because there are so many preconceptions out there. It is just a brief summary, in reality it is much more complex. Then you can decide if it is a property and your (Kinsella’s) system would work better. And I let you persuade me.
1) Target Validation: Biologist identify a biological target: enzyme or receptor control of which brings advantegous medical effects.
2) Hit Identification: Test millions of chemicals to find effects under in vitro assay conditions.
3) Hit to Lead: evaluate the best hits and make small focus libraries with the biology in mind then assay them further.
4) Lead Optimization: select the best leads and develope them to drug candidates. It usually involves making thousands of compounds testing them in at least twenty dimensions of chemistry, biology and pharmacology to satisfy expectations in drug (animal) efficacy, absorption, metabolism, safety etc.
Usually this is the stage IP is patented. By this time hundreds of millions might be spent. Then it enters the human trials in the cilinics. Average development cost is around $1.2B partally due to the fact that the failing rate is about 90% after stage 4. (Less than 1% of the hits will be drugs.)
What you patent is the chemical structure class with the pharmacological effect to protect your IP. When you come out with your drug, the active ingredients can be determined in five minutes with our modern analytical methods. Almost anybody can understand, copy and commercialize it in weeks if it is not protected. Entire industry is built on that called generics. You have about 5 years to recover your costs. That is how many left from your 18-20 years after patenting and the clinics. You see the structure patented is just the summary of all the above information packed in it.
You can try to keep it a secret though it involves hundreds of people.
This was the inventors’ side. You can imagine the investors’ side as well and ask why should they invest if they have no insurance even if they succeed in finding something new?
I don’t think benevolance will go too far here.
So what is your alternative?
Published: August 10, 2008 11:51 AM
Curt Howland
Hey, folks, ktibuk’s “contract” is not so far fetched as y’all seem to think.
His “You, and only you, may read this book” contract is just what Microsoft puts in their EULA.
So, anyone using Windows here and giving ktibuk a hassle at the same time? I thought so.
Published: August 10, 2008 2:05 PM
nick gray
Here is an idea I came across earlier- that real property is simply another form of intellectual property! After all, birds know nothing of our property rights- fences are just places to rest, for them. There ain’t nothing natural about our property laws! Lots of life-forms have territory, but this is usually marked by urine and spore- cats have a scent gland on their chins, and they are marking you as theirs if they rub your face with theirs. I’ve never heard of any other creature drawing lines in the sand or dirt, and pretending the line was a real barrier!
Published: August 10, 2008 10:18 PM
Marcello
You’ve honestly never heard about an animal having territory? Go into the den of a lion and tell me that. Typical socialist rhetoric.
Property is a scarce resource that requires an owner to utilize it to the full potential. Ideas no know bounds, they are free to everyone and that’s why IP laws try to artificially create scarcity by stifling innovation. We don’t live in fairy tale world, this is the real world with tangible property.
Published: August 10, 2008 10:25 PM
nick gray
Ideas do seem limitless (excluding talk of memory storage space), and physical property is limited. Therefore, leave ideas alone, but their physical expression can be regulated, since matter is limited. Problem solved!
Here is another solution- Public Intellectual Property. I am a minarchist, because I think we should convert local governments into property-owners- they own the spaces called ‘public’. (Someone will own the roads, after all!) The owners of property can control whatever happens on it, or through it, so Public Intellectual Property would be the only type which you could publicise on media going through public spaces. So my solution would entail a licence to publicise whatever you invented. People could still work in private on their own versions.
Published: August 11, 2008 12:23 AM
Lowell Sherris
Andras
I grant again the current system is not perfect but it works. It is what you said, a monopoly privilage. It is even declared that by the government. That is what they promise you for socializing your invention. It is an exchange as you do not have to patent.
First of all, I disagree that the current system works. The price of prescription drugs is completely out of control. I used to worry about prescribing medications for individuals without insurance. Now, many of my insured patients can’t afford the deductibles.
I am glad we agree IP is a government invention involving special privilege for the purpose of “socializing” inventions. Your description of the costs involved in bringing a drug to market are of course correct in our present society. But this would change drastically without the FDA and IP laws. I do not depend on the good will of individuals to develop new medical treatments any more than I depend on the good will of manufacturers to bring shoes to market.
Right now I am finishing my third reading of MIses’ Human Action. I am just beginning to understand the enormous concepts involved. Individual freedom produces the most human “happiness,” and government action is always the antithesis of freedom. I cannot prove it, but I am convinced the abolition of IP laws as well as government interference in virtually all aspects of society would improve the quality of our life. I truly believe that without IP, the FDA, or other government interference in health care, cancer would be eliminated in 10 years.
Obviously I cannot convince you my beliefs are true. My ability to employ praxeological arguments is very limited. Your arguments would seem to indicate your familiarity with Austrian economics is superficial. Unlike the pap emanating from the mouths of most politicians, the truths of Austrian economics are not readily apparent. Read some of the enormous resources available on the Mises website.
Published: August 11, 2008 11:32 AM
MichaelM
This thread provides an exemplary verification of Ayn Rand’s contention that libertarianism not grounded in philosophy — specifically ethics — is as prone to embracing tyranny as is liberalism and conservatism. It also illustrates the futility of attempting to fashion a politics out of concrete-bound pragmatism that persists in the false idea that wished-for ends justify all means imaginable.
For any newbies to secular morality on board, a quick review of the basics:
Man survives and flourishes solely by the values that are the product of his intellect and his physical actions. The recognition of that fact requires in ethics, that autonomy — the moral right to one’s own life on one’s own terms — shall be a virtue, and that in turn requires a politics of freedom. Politics is the extension of ethics in the context of an individual’s own life into the context of an individual’s life in a society of other men. The moral necessity to preserve one’s own autonomy in that extension and the responsibility to reciprocate implicit therein demands a politics in which no man may take, withhold, or destroy by physical force any value owned by another, i.e. laissez-faire capitalism. Capitalism is not the good because it works — it works because it is an implementation of the good.
Note the word values. That and only that is what a human can own: self-created value. The only way that a human being can morally acquire a value created by another is to trade for it in a voluntary exchange of values. In such an exchange, the terms are entirely up to the owners exchanging. No other human being can justify by reference to any moral principle a claim to be a party to the exchange nor the terms of the exchange without the permission of the principle parties.
Whatever political solution anyone conjures up in regard to the ownership of the products of the minds and bodies of men, to be moral, it must conform to the above principles. And in this thread it is ktibuk who has most accurately named the morally operative principle:
“If you dont believe you can abide by the contract, then dont buy it from me. Go away and either produce it yourself or find someone that gives you charity.
But if you do buy my book and promise me that you will abide by the rules of the contract, how dare you break your promise and claim the book was your right?”
In a moral society of men, all exchanges of values — ideas, physical objects, love, respect, friendship etc. etc. — are implicitly contractual and shall be voluntary. The government’s only job is to protect the contractual rights of those who exchange values. If you the creator wish to limit the length of your idea’s protection when you sell it in order to open it up to further development, you may, because that act does not take anything from anyone else by force. If you who oppose IP protection want to shun the creator who negotiates protection you view as excessive and/or boycott businesses that supply him with the necessities of his life or withhold your buying power or influence from any other involved businesses, you may. But no one may advocate that the government alter or nullify the terms of a voluntary exchange without implicitly forfeiting the moral right to his own life. As Rand was so fond of saying, you can’t have your cake and eat it too.
——————————-
To pursue this principle that the owned is only the part that is self-created to another level, consider the homesteading of previously unowned land. Occasionally in the past the initial standard to claim such land was properly defined as the addition of a significant improvement. That is proper, because acquiring control of land cannot be justified by merely claiming the land itself. The claimant did not create it. Rather land is justifiably controlled because it is the repository of value created (the improvements) — a value that morally may be defined and regulated solely by a free market per the laws of supply and demand. After being initially owned, it will in exchanges continue to be the repository of value created that previously resided in the money that was paid for it, even if the initial improvements are removed and the land is held vacant.
A broader statement of this principle is that man may own neither matter nor facts. Rather, objects of matter may be controlled to the extent they are the repository of values created and ideas concerning facts may be controlled to the extent that they constitute unique formulations about them.
Published: August 11, 2008 5:58 PM
Andras
Lowell,
You must be better than this. There is nothing praxeological in stating that it is true because I believe so. Your main argument seems to be that prescription drugs are expensive:
“The price of prescription drugs is completely out of control. I used to worry about prescribing medications for individuals without insurance. Now, many of my insured patients can’t afford the deductibles.”
Just wait till they are “free”. I agree they are expensive. They have a very high value, the reason you want to use them. Sometimes their value is as high as that of your life. These are the lifesavers. Right now you still have a choice. If you want to tinker with their price now and “bring in control” you will destroy the future opportunities.
In the drug discovery process I outlined in the previous letter there was no mention of the FDA. Those are common sense research guidlines. The FDA is just an extra burden and overhead cost. You have to realize that for high values you need high investment with a hope of high returns. So far what you offered is only a removal of the investors (capitalists) from the process. It will hardly decrease costs and prices. The US is the last stronghold of pharmaceautical research. This is one reason why. I agree there should be a better and cheaper way. Enforced (government) regulations surely increase the price. But our discussion was about whether there is such a thing as IP. And you did not offer any argument yet other than not being physical.
I have a side question. Let’s assume you are an oil/gold exploration company. You find oil/gold on the land you have claimed exploration rights. You again own nothing. Is there a value of your find? How do you ensure it? You may establish contracts, first rights and patents. Similarly can you move the IP universe to overlap with the contract universe (thus to property rights accepted even by Kinsella)?
P.s. I own and have read almost everything available from Mises, Hayek and Rand. But this should not be an argument.
Published: August 11, 2008 8:34 PM
Michael A. Clem
In a moral society of men, all exchanges of values — ideas, physical objects, love, respect, friendship etc. etc. — are implicitly contractual and shall be voluntary.
While this is essentially true, I see a fundamental epistemological problem as it relates to IP: you can share love, friendship, respect, etc, but you can’t own those things. So no, Rand did not adequately address IP with her talk of values.
Kinsella has a point about non-scarcity, but I’m not sure that adequately covers the topic, either. The true essence of IP still seems elusive.
If the value of land and other “real” property is what people do with it, then the value of IP is ALSO what people do with it–not the idea or design itself, but what use it is put to. Somehow, this seems more essential to me, but still insufficient to properly define the issue.
It’s not that a writer created characters and a plot, but that he wrote a story using characters and plot, and style and theme. Thus, the story itself should have protections, but that doesn’t grant the writer a monopoly on the separate aspects of characters, plot, style or theme.
Likewise a songwriter uses notes, melodies,chord progressions, rhythms, etc., but only the song as a whole should be protected, not those individual elements.
Published: August 12, 2008 10:14 AM
Lowell Sherris
Andras
Just wait till they are “free”. I agree they are expensive. They have a very high value, the reason you want to use them. Sometimes their value is as high as that of your life. These are the lifesavers. Right now you still have a choice. If you want to tinker with their price now and “bring in control” you will destroy the future opportunities.
I do not want to tinker with the price of pharmaceuticals. I would like to allow open competition of the development and sale of drugs. Right now government mandates restrict competition and raise costs. If we eliminate those mandates, which I believe are unjustified, the cost of medications will probably come down. Since I do not believe ideas are property, I do not think this will infringe on anyone’s property rights. You make the assumption eliminating these monopoly privileges will destroy future opportunities.
In the drug discovery process I outlined in the previous letter there was no mention of the FDA. Those are common sense research guidlines.
Here, I am going to disagree about common sense research guidelines. There is a good chance we could lower the number of auto accident fatalities if everyone were forced to drive a Volvo or Mercedes. However, the cost would be prohibitive for most people. I would not consider a rule forcing people to drive only the safest cars to be a common sense guideline.
Similarly, your guidelines for drug research are prohibitively expensive. An unanticipated result of our drug approval process is the huge profits possible motivate drug companies and researchers to bend the rules and fudge results.
So far what you offered is only a removal of the investors (capitalists) from the process. It will hardly decrease costs and prices.
I wonder how Linux became so sophisticated and advanced with IP removed from the picture. In a world without IP there would still be pharmaceutical investors, and there would still be profits. Without IP, the investment required to bring a drug to market would be much smaller than the estimated $1-2 Billion required now. Of course potential profits would be smaller.
The idea is not to formulate the government policy that will produce the best drugs at the lowest price. That doesn’t work. It should not be the province of government to manipulate the actions of individuals in order to accomplish its goals. I would like to give individuals the unhampered freedom to act in order to provide me (and everyone else) with a choice of effective drugs to use. I have faith that human nature alone, without government direction, will accomplish that task in the most efficient manner.
But our discussion was about whether there is such a thing as IP. And you did not offer any argument yet other than not being physical.
The argument is indeed whether one can own anything that is not physical. I am not sure how to define an idea. How can you own something that cannot be easily defined? A physical entity an be possessed. My wallet is in my pocket. My family and my house are on the land I homesteaded. This makes sense to me. You can’t build that mousetrap. I had a similar idea and the government gave me monopoly privilege over its production and marketing. Sorry, that doesn’t make sense to me.
Let’s assume you are an oil/gold exploration company. You find oil/gold on the land you have claimed exploration rights. You again own nothing. Is there a value of your find? How do you ensure it? You may establish contracts, first rights and patents.
You talk about claimed exploration rights. I would not invest time and money looking for oil/gold unless I had secured property rights at that location. I would either buy the land, negotiate exploration and development rights with the owner of the property, or else homestead property if it were not previously owned. So I do not own nothing. Now I have discovered oil/gold in an area where I can justly develop my claim and make a profit. In our world I ensure my claim by having the government protect my property rights. In an ideal world my private insurance/protection agency would ensure my property rights.
What if I were to develop of cogent theory of where to drill for oil? Suppose I could predict with almost 100% accuracy the best places to drill. Even if someone used my theory to drill for oil on his land, I would not have a claim to his oil. I suspect you disagree.
Published: August 12, 2008 5:57 PM
Andras
Lowell,
Great discussion.
Those research guidelines were not mandated by the government. They developed with the industry over almost a century. Just simply ignoring them would be foolish. I admit the ever increasing government regulations make the price prohibitively expensive. But our discussion is about the research before these. And the results of this research. It seems you miss the physical. If by physical you mean concrete you get it in a patent. It is formulated in concrete terms: structures, procedures. Then they are not naked ideas any longer. What you do with your ideas and their concrete manifestations is your personal decision. I’d like to keep them as this is my life and honestly I still don’t think I am a parasite.
Linux is a great example. However its capital demand is miniscule comparing to drug development. This idea is practiced in academia and the results are also miniscule. You have to understand, drug development is expensive with or without IP rights. Go to supplements, they are cheaper.
Back to oil exploration. Buying the land would be great. Just it is not available. 90% is government property. Yeah, you can start fumbling about homesteading the high seas etc. Tell this to the government, then we will not even start exporation for the next 50 years.
You shoot.
Published: August 12, 2008 9:54 PM
nicholas gray
Lowell, my last post answered you! The physical world is limited, therefore regulated. Ideas might be free, but their expression in matter involves costs.
And I think that Public IP would be a libertarian solution. On our lands, we should be able to make what like, including copies of things we have bought, BUT we could only publicise these across public spaces if we had a licence or copyright. My position is halfway between both camps.
Published: August 12, 2008 10:47 PM
MichaelM
“I see a fundamental epistemological problem as it relates to IP: you can share love, friendship, respect, etc, but you can’t own those things.”
Love, friendship, and respect are not “shared”. They are payments to other persons for holding and acting on values much like your own. Those values are definable, but not easily, because they are more often manifested in an overall sense of life. And you certainly do own them. Who else has total control over how you dispense your love and friendship but you? You are the originator. You are the owner. You set the terms by which others will earn them. They are your IP.
————————
“If the value of land and other “real” property is what people do with it, then the value of IP is ALSO what people do with it–not the idea or design itself, but what use it is put to.
The value of land is not (in your words) “what people do with it.” It is its being (in my words) “the repository of value created.” An idea and a design are values created. Labor is a value created. What people do with ideas and labor is they make products with them that have a value in the market that equals whatever someone is willing to pay for the sum of all of the ideas and labor they represent. The raw materials in any product of man were worthless until he applied his ideas and labor to them.
The right of every man to the product of his mind and his actions is absolute. Persuading men to deny that principle is a tyrant’s first order of business.
Published: August 13, 2008 1:28 AM
Michael A. Clem
MichaelM, I still don’t see how values discussion is related to IP. You seem to be agreeing that an idea and a design are NOT ownable, only the “repository” of ideas and designs.
Published: August 13, 2008 10:04 AM
MichaelM
The right to your own ideas and actions is absolute. You own them with or without being applied to a physical repository. You may exchange them on your own terms with or without applying them to raw materials.
If the raw materials were processed by others prior to your application of your ideas to them, then they already are the repository of the ideas and actions of those who discovered them, extracted them, and processed them. The application of your ideas by you or by anyone who purchases them from you will constitute value added to that.
No matter how long this chain goes on, the original raw materials, though inseparable from the ideas and labor applied to them, contribute nothing to the value of the product. Control of them is only incidental because they are inseparable and because no one else can claim to control them, since no third party has contributed any ideas or actions to the result.
Ownership is a political (socio-economic) principle. As such, it only has validity in reference to the consistency with which it applies a valid ethical principle. The operative ethical principle in this case is the necessity for all humans to sustain the independent exercise of their reason and action. Those who fail to get their philosophical — specifically ethical and political) principles in sync with reality and each other on this issue are ipso facto sitting ducks for any tyrant who can present a convincing argument that some pragmatic end can be achieved if they would just forfeit a tiny bit of that absolute right to own their ideas and actions.
Published: August 13, 2008 12:44 PM
Michael A. Clem
The right to your own actions is clear enough–if you don’t do them, then they’re somebody else’s actions, not yours. The right to your own ideas either follows the same trivial reasoning, or else is still unclear and vague.
Suppose I have an idea for an improvement to the autoharp (and, in real life, I do have such an idea). Yet suppose someone else has the same idea for the same kind of improvement. We clearly each “own” our own idea, because we each thought of it independently of the other. But I have no right to stop him from using “his” idea, and he has no right to stop me from using “my” idea.
But suppose I had the idea, and he came by my house and I explained the idea to him, no stipulations, no contract. The idea originated with me, not with him, so it wasn’t his idea. Do I have a right to stop him from using my idea? I don’t see how, even though it is clearly my idea, not his. In what way or sense is the ownership of my idea absolute?
Published: August 13, 2008 2:00 PM
MichaelM
I’ll opt for the same trivial reasoning: Your ideas are actions too.
Your right to your ideas and actions is absolute in a moral sense, meaning that it is yours whether or not you are fortunate enough to live under a government that protects them. And it is incumbent on a government to guarantee that right in the political context as perfectly as possible. How well it is actually protected will depend on how well defined the laws are and how efficient their enforcement is. But in any case, such protection will necessitate some kind of requirement for objective documentation that you were the first to produce the idea.
Thus, while two people could believably have the same idea at the same time independently, it is highly unlikely that they could both document it as occurring at exactly the same time. In that unlikely event, joint or separate but equal ownership would be a valid solution.
In the second example, your moral right would remain intact, but you would have forfeited your legal right to enforcement of it by not documenting it in some way that could verify your later claim to it. If on the other hand, you did and can document it, yes you can sue to stop his use of your idea.
Published: August 15, 2008 1:23 AM
ktibuk
“Thus, while two people could believably have the same idea at the same time independently, it is highly unlikely that they could both document it as occurring at exactly the same time. In that unlikely event, joint or separate but equal ownership would be a valid solution.
In the second example, your moral right would remain intact, but you would have forfeited your legal right to enforcement of it by not documenting it in some way that could verify your later claim to it. If on the other hand, you did and can document it, yes you can sue to stop his use of your idea. ”
If more than one person comes up with an idea, they don’t need to document anything to anyone, de facto that is.
If one of those people claims the other one copied his/her creation, then the burden of proof is on the accuser.
This may mean some intellectual creations can not be protected by the creator, or his representatives, but that is the inconvenience of circumstances (reality), not an ethical problem. You can not stop every crime and enforce every law whether there is a state or not. But knowing what is a crime and what is not is a separate thing.
Thus you don’t need a state to have IP, which is based on contractual copyright agreement. Rothbard had this exact view. And he was not confused, as Kinsella arrogantly claims on thsi subject.
There are many problems with the patent system because the system was design by statists, ie socialists. But this faulty system can not be an excuse to steal songs, movies, novels, software, trade secrets, etc.
Also whenever IP socialist attack IP, they talk about ancient creations like, fire, wheel, etc. They claim if there was IP these common goods wouldn’t be around.
Leaving aside the independent discovery issue, don’t you feel gratitude towards the ones that found the wheel? If so, this actually means acknowledging the right of the creator. He gives you something and you give your gratitude whether he is alive to receive it or not.
Or are you IP socialists claim who ever invented these things owed them to you?
Published: August 15, 2008 3:13 AM
Michael A. Clem
If on the other hand, you did and can document it, yes you can sue to stop his use of your idea.
But this is where Kinsella’s point about non-scarcity is significant. The idea itself is non-scarce: it can be passed on or duplicated thousands of times with no loss of use to the originator of the idea.
The real value of my idea is in putting it to use, actually developing the necessary mechanism for the autoharp to utilize the idea. That’s what takes real, physical resources. And suppose I create such a mechanism, but don’t do a very good job of it, while someone else who got my idea creates a much better mechanism? Does the fact that his mechanism is better make it his, or is he still violating my rights, somehow? He’s not stopping me from making and selling my own mechanism. And if his is better, doesn’t his mechanism deserve to win out on the market place?
Don’t get me wrong, I think there is a place for IP, but it seems to me that it’s a much more limited protection than most people make it out to be, and I’m trying to understand where those limits are. And, as others have pointed out, such IP protection must be possible in the marketplace, without a government to enforce it.
Published: August 15, 2008 11:28 AM
MichaelM
ktibuk: “If more than one person comes up with an idea, they don’t need to document anything to anyone, de facto that is. If one of those people claims the other one copied his/her creation, then the burden of proof is on the accuser.”
Correct. My “document” was not intended to mean with the government. I meant do something with it public enough to be able at a later date to meet the burden of proof that you were first, even if that is only showing it to a third party under contract not to copy it.
“Thus you don’t need a state to have IP, which is based on contractual copyright agreement.”
By itself, this statement is true. The state will not be needed until force is necessary to regain value lost to IP theft.
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Michael A. Clem: “But this is where Kinsella’s point about non-scarcity is significant. The idea itself is non-scarce: it can be passed on or duplicated thousands of times with no loss of use to the originator of the idea.”
No, that is where Kinsella’s point about non-scarcity is irrelevant. The originator/owner of an idea and any buyer of it will define its scarcity in the process of effecting a voluntary exchange. No one else may claim a right to confiscate the idea by devaluing that definition.
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If you create and protect an idea and someone improves it, they get to protect the improvement.
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“And, as others have pointed out, such IP protection must be possible in the marketplace, without a government to enforce it.”
You cannot protect IP without being able to use defensive force against an intransigent violator. Whatever you call it, you must have a neutral third-party institution to objectify that use of force. “Objectify” means 1) that the laws and methods of their enforcement shall be objectively defined and publicly known, and 2) that the use of force accordingly shall be universal and predictable within some specifically defined geographic region.
Published: August 16, 2008 11:21 AM
ktibuk
Scarcity argument is not significant at all. It is really irrelevant.
Kinsella claims scarcity is prerequisite of property. This is obviously false.
According to this logic, if you build a 1000 seat theatre in a city of 500, you can not own the seats, thus the theatre because there is no scarcity of seats.
Economic scarcity in many tangible stuff, as well as intellectual stuff, is artificial. And there is nothing ethically wrong with artificial scarcity.
Also one more thing about ideas.
Many people assume ideas are pure abstract, but they are not. Ideas, even when in someones head, are always in interaction with tangible matter. They dont float around in nothingness, multiply by themselves and are picked off like they are some fruit.
So “ideas are not scarce” is irrelevant in that sense too. Because in real life, in this universe, there are no “ideas” that are not somehow tied to matter, whether they are in the brain neurons, in the soundwaves, on paper, on magnetic tape, or some digital medium.
Published: August 16, 2008 12:59 PM
MadMark
downloadable Adobe Photoshop 7
Published: September 26, 2008 4:31 AM