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The Case Against IP: A Concise Guide (2009)

The Case Against IP: A Concise Guide,” Mises Daily (Sep. 4, 2009).

Archived comments:

Comments (77)

  • Matthew
  • Like you, I am fully anti-IP, but your argument against “libertarian creationism” argument will be easily side stepped by pro-IP libertarians. They can simply make the argument that the laboring statue carver is simply exchanging his legitimately established ownership rights for wages in contractual exchange.

    You assert that creation is an invalid method for establishing property rights (and again, I side with you), but I do not think your argument in this piece is going to change anyone’s mind who has made up his mind that it is valid. I recommend that you bolster your argument in this area.

  • Published: September 4, 2009 10:11 AM

  • Stephan KinsellaAuthor Profile Page
  • Matthew:

    “your argument against “libertarian creationism” argument will be easily side stepped by pro-IP libertarians. They can simply make the argument that the laboring statue carver is simply exchanging his legitimately established ownership rights for wages in contractual exchange.”

    Except that this is not what happens. If the statue carver uses my marble with my permission, he simply never gains ownership of it. Further, this trick could not be used with the example of the thief using another person’s marble. Finally, it is clear that if you own the marble already, you don’t need to find another explanation of why you own the thing you carve it into–you owned the marble before you transformed it, so you own it even after transformation. There’s simply nothing to explain.

    “You assert that creation is an invalid method for establishing property rights (and again, I side with you), but I do not think your argument in this piece is going to change anyone’s mind who has made up his mind that it is valid. I recommend that you bolster your argument in this area.”

    If you follow the links, you’ll see I have. This was a concise piece and not the place to bolster in detail.

  • Published: September 4, 2009 10:33 AM

  • DixieFlatline
  • Matthew,

    Stephan’s points are usually addressed less at the IP supporter, and more at bolstering the confidence and foundation of the anti-IP argument.

    People who want to believe in mythical founding fathers, property rights which are nonsensical, and that they can sell ideas permanently out of their minds, will do so regardless.

    Reach for the low hanging fruit. For every person who wants to argue about IP being legitimate, there are several who have yet to think it through and are easier to reason with.

  • Published: September 4, 2009 10:44 AM

  • Silas Barta
  • I notice you left out discussion of rights to radio waves, which makes your criticism of claiming rights in what other people can do with their stuff, kind of ring hollow. Perhaps that’s why you left it out — didn’t want to let people know about the acknowledged holes in your argument. Anyway, here goes:

    ***

    Like many libertarians, I initially assumed radio spectrum property (RP) was a legitimate type of property right. But I had misgivings from the start: there was just something too utilitarian and results oriented in supposedly principled cases for RP, and something too artificial about the state’s bandwidth and usage class statutory classifications. I started listening to the radio around 1987, and the more I learned about RP, the more my doubts grew.

    I finally realized that RP is incompatible with genuine property rights. (This echoed the sloughing off of my initial Randian minarchism in favor of Rothbardian anarchism, when I realized the state is aggression incarnate and cannot be justified. See the article, “What It Means To Be an Anarcho-Capitalist.”)

    And so, in 2006 I started publishing articles pointing out problems with RP, finally culminating in my brief 2008 Setting Things Straight post “The Shortest, Safest Libertarian Case for IP”.

    ***

    Anyone want me to do the rest?

  • Published: September 4, 2009 12:11 PM

  • Michael A. Clem
  • Whatever one’s position on the radio spectrum, it doesn’t change the arguments against IP presented in the current post. At best, assuming you are right, you can claim hypocrisy or inconsistency, but not a legitimate argument for IP.
  • Published: September 4, 2009 12:35 PM

  • Bill in StL
  • Mr. Kinsella,

    Your assertion that enforcement of IP requires a state is not precisely correct. Like murder, theft, and failure to pay taxes, all that is required for enforcement is a critical mass of people who will support, or at least accept, an enforcement action.

    Such support is easily imagined for non-controversial crimes against person and property. It is only those actions about which opinions are divided, such as drug prohibition and abortion, where a state is required to enforce laws. It is the public opinion of, not the basic justice or injustice of a potential rule that determines whether it could be enforced in a stateless society.

    So, when you say one cannot enforce IP without the state, you are only correct to the degree that public opinion dismisses it. Should enough people decide IP is valid, a stateless enforcement could be achieved.

    For instance, it is not necessary to maintain a large database of inventions and artistic works along the lines of the patent and copyright offices. The demonstration of prior publication of an artistic work could be accepted as prima facie evidence of a copyright infringement, subject to the traditional common law refinement of details. Similarly, an invention could be presumed original until a plaintiff could demonstrate some theft of a trade secret.

  • Published: September 4, 2009 12:56 PM

  • Stephan KinsellaAuthor Profile Page
  • Silas Barta:

    I notice you left out discussion of rights to radio waves, which makes your criticism of claiming rights in what other people can do with their stuff, kind of ring hollow. Perhaps that’s why you left it out — didn’t want to let people know about the acknowledged holes in your argument.

    Silas, Silas, Silas, Person, John Sharp, Richard Harding:
    As you know I have not dodged this issue; it’s discussed here. But you know, there are plenty of issues that are not discussed in this concise guide to IP, such as punishment theory, causation, oil & gas law, and EM spectrum ownership.

    Bill in StL:

    Your assertion that enforcement of IP requires a state is not precisely correct. Like murder, theft, and failure to pay taxes, all that is required for enforcement is a critical mass of people who will support, or at least accept, an enforcement action.

    Copyright and patent are statutes, like the Americans with Disabilities Act. To have a statute, you need a legislature, which requires a state. You can’t have copyright and patent without a statute.

    True, some crude, primitive form of invention rights could conceivably evolve without a statute, in which case it would merely be unlibertarian, but not legislated.

  • Published: September 4, 2009 1:10 PM

  • mpolzkill
  • Bill in StL,

    I was just thinking along these lines and I was starting to allude to it on another forum. Isn’t there a pretty widespread and strong distaste for rip-off artists and counterfeiters? (I’m thinking of a fake Rolex, pairs of Jordache jeans) Wouldn’t a truly free market be a far more wary and thus far more informed market? And wouldn’t said market have the strongest market penalties for rip off artists and counterfeiters?

    On the other side of the coin: look at Michael Bolton. He may have made more money than every classic soul performer that he ripped off combined (and didn’t even thank Percy Sledge when he won his Grammy! Oh, that burns me!)

    On the other, other side though, he did provide a new, safely bleached product derived from the old dangerous one, and may well have brought people to Mr. Sledge who never would have heard of him otherwise.

  • Published: September 4, 2009 1:23 PM

  • jc butte
  • Kinsella writes:

    “True, some crude, primitive form of invention rights could conceivably evolve without a statute, in which case it would merely be unlibertarian, but not legislated.”

    So now you are declaring volutary asssociations in an anarchical society “unlibertarian?” That actually strikes me as pretty funny.

    Have you ever read DeToqueville? If the USPTO were abolished tomorrow, there would be a private firm(s) issuing patents and protecting IP soon afterwards, supported by every manufacturing and trade association. I’m amazed someone who actually practices law in that field couldn’t recognize that eventuality.

  • Published: September 4, 2009 2:59 PM

  • Stephan KinsellaAuthor Profile Page
  • “butte”:

    “True, some crude, primitive form of invention rights could conceivably evolve without a statute, in which case it would merely be unlibertarian, but not legislated.”

    So now you are declaring volutary asssociations in an anarchical society “unlibertarian?”

    No. If this was a private contractual rule enforced only against members of the contractual regime, that’s fine. I meant if it was enforced against third parties who had not consented to it.

    Have you ever read DeToqueville? If the USPTO were abolished tomorrow, there would be a private firm(s) issuing patents and protecting IP soon afterwards, supported by every manufacturing and trade association.

    Hhahaha, nonsense.

    I’m amazed someone who actually practices law in that field couldn’t recognize that eventuality.

    That’s like saying people would find ways to tax and regulate even without the state. Funny.

  • Published: September 4, 2009 3:02 PM

  • jc butte
  • “That’s like saying people would find ways to tax and regulate even without the state.”

    This sentence reveals the source of your error.

    You obviously have no experience with any manufacturing industry. You no doubt are also ignorant of the fact that many federal regulations are essential and would simply revert to private firms to enforce in their (state agency) absence.

  • Published: September 4, 2009 3:17 PM

  • Russ
  • If a stateless society could not enforce IP laws without effectively becoming a state, how could a stateless society enforce EM spectrum rights (against third parties who had not consented to it) without becoming a state?
  • Published: September 4, 2009 3:21 PM

  • Troy Camplin, Ph.D.
  • Why isn’t an idea property? You make the argument that there are property rights in people, places, and things — but why not ideas? With an idea, one is creating a new thing, and adding to the universe. It takes me a lot of time and effort to come up with an idea. IP ensures that I am compensated for the work I do.

    Think of it this way. Suppose I agree to work for someone for $5/hr. But when payday comes, he only pays me $2/hr. Doesn’t he rob me of the work I did if he pays me less than half we agreed to?

    Another way to think of it is like this: a patent or copyright is a contract, or a contractual rule. If I invent something, I can just keep it to myself, maybe produce it as a corporate secret. Or, I can offer to release the idea for others to use under the condition that people pay me for that usage. Why is that not a legitimate contract? And isn’t that cheaper for everyone to not have to keep reinventing the wheel because people are afraid they aren’t going to be compensated for the work they do?

    This anti-IP stance seems to me to devalue intellectual work. How can one get compensated for one’s ideas? You are suggesting that ideas are common property and belong to everyone equally. Why, then, come up with anything? As a creative writer, I have a hard enough time making money from my work. Without IP, it would be impossible.

  • Published: September 4, 2009 3:41 PM

  • filc
  • True, some crude, primitive form of invention rights could conceivably evolve without a statute, in which case it would merely be unlibertarian, but not legislated.

    Even if it was un-libertarian a non-government enforced IP is completely feasible in a libertarian society. It just won’t succeed or produce good profit, thats all.

    The difference is, I would speculate, that consumers would naturally tend to purchase goods not covered under encumbering IP licensing agreements. In the long run, any attempt to do this would be at the loss of business, so those firms would naturally over the coarse of time abandon the IP practices or go out of business.

  • Published: September 4, 2009 4:12 PM

  • mpolzkill
  • Dr. Troy,

    Did you read the whole article?

    “How can one get compensated for one’s ideas?

    Ask someone if they want to give you money for one.

    “You are suggesting that ideas are common property and belong to everyone equally. Why, then, come up with anything?”

    I don’t know exactly. But they sure do. Look at the history of jazz music and how it grew into an incredible and original art form with very little funds all around. I’ll venture to say Charlie Parker came up with more than you ever did without a getting a penny (no insult intended, take Thelonious Monk, or Beethoven if you don’t like Bird).

    “As a creative writer, I have a hard enough time making money from my work. Without IP, it would be impossible.”

    In the early days of jazz there were musicians who thought like this. You’ve probably never heard of them. They were overtaken by the musicians who were open and shared ideas. Their ideas were freely given, but they still made MODEST livings from people just wanting to be in the same room with them (“IP” created ultra wealthy artists but where is it written that artists must make a lot of money? Can any one show that art improved because of their newfound wealth. I have strong opinions that it is the inverse) They were great, maybe only a few in any art really are. Maybe a handful in any art are enough.

    Maybe exactly what you do now WOULD be rendered impossible without “IP”, maybe that would be good for you. Maybe you would move on to another, better plain. Again, no insult intended. I’m an average musician. I’ve worked thousands of hours on musical ideas and received a bit of beer for it. Great musicians get big halls to play, great writers used to read in big halls.

    Just some ideas here, hope I didn’t piss you off.

    PS. I know that the record companies in the first half of the 20th Century had “IP” and that the industry had less problems with copying technology. But, the royalties somehow evaded most jazz musicians. Louis Armstrong died with 100,000 dollars in the bank after a wildly successful 50 year career.

  • Published: September 4, 2009 4:18 PM

  • jc butte
  • filc, thats a valid point but I believe an incorrect one. Sure, pirated products and rogue firms would exist but they would exist on the fringe of society. You would find such products where you currently find fake Rolex watches. Reasons? Trade and merchandizing association rules, branding… At the level of industrial products, it would be virtually impossible for unauthorized products to gain a foothold; the market is too limited.
  • Published: September 4, 2009 4:21 PM

  • filc
  • Err, It’s also worth pointing out that the only way to enforce IP is via a state. IP ideologies in a libertarian society would have to come up with their own technological means to protect their so called IP rights. Presently the state has been ill-equiped to enforce these silly laws so business’s have attempted to prevent “Piracy” on their own. This is being realized in systems known as DRM.

    The result however ends up at a net loss for the music industry however rather then a gain. First they waste a huge pool of capital to develop these sofisticated tools at preventing so called ‘pircacy’. Secondly, customers naturally move away from such confining systems and platforms. In fact, some of these DRM applications in the past have been labled virus’s. Case in point. DRM is a natural customer deterrent. Therefore the whole system operates at an economic loss. Without the state to inflict fear of repercussion such a system would not sustain itself for a long period of time.

  • Published: September 4, 2009 4:25 PM

  • filc
  • JC Butte

    You would find such products where you currently find fake Rolex watches. Reasons? Trade and merchandizing association rules, branding…

    Thanks for the comment JC. I don’t think comparing software piracy is an apples to apples comparison. The laws of scarcity apply much differently in the digital world. 

  • Published: September 4, 2009 4:37 PM

  • jc butte
  • filc, I totally agree with the above. Often anti-IP advocates concentrate on copyright issues rather than patents. However Kinsella assumes a global anti-IP stance and makes the argument that IP protection itself is impossible without a state to grant and enforce it. I disagree. I just limit myself to the areas where I have direct experience. I’ll grant that without the USPTO, the realm of IP maybe become more limited.
  • Published: September 4, 2009 4:56 PM

  • Russ
  • jc butte wrote:

    “… Often anti-IP advocates concentrate on copyright issues rather than patents. However Kinsella assumes a global anti-IP stance and makes the argument that IP protection itself is impossible without a state to grant and enforce it….”

    I think that SK believes a contractually-based pseudo-IP scheme is compatible with anarchy, but would not be very effective. I also think he believes that a “true” IP scheme that would affect those third parties who had signed no contracts, would not be enforceable without leaving the bounds of anarcho-libertarianism. If my understanding of SK’s position is correct, I actually agree with it.

    I would be interested in how EM spectrum rights could be enforced meaningfully against third parties who have not signed contracts, without also leaving the bounds of anarcho-libertarianism.

  • Published: September 4, 2009 5:26 PM

  • jc butte
  • Russ, your comments above are interesting. They cause me to wonder whether yours and SK’s notion of anarcho-libertarianism would require a state to enforce it, or conversely that it would be possible that an anarcho-libertarian society would violate the principles that it’s theoreticians submit as essential.
  • Published: September 4, 2009 5:32 PM

  • Russ
  • JC,

    I won’t speak for SK here on the larger issue of anarcho-libertarianism. I only gave my interpretation of his opinion on IP because it seemed clear to me from his posts on this thread.

    My personal view is that I don’t think that anarcho-libertarianism necessarily requires a state, or that it is necessarily self-contradictory. I do believe it might evolve into a state, but that’s another issue.

    BTW, in the interest of full disclosure, I’m not an anarcho-libertarian. I believe EM spectrum rights are justifiable on utilitarian grounds. I believe “true” IP is *in principle* justifiable on utilitarian grounds, but am not convinced that a good enough utilitarian case has been made. I can’t see how either could be enforced without some sort of state.

  • Published: September 4, 2009 6:02 PM

  • Russ
  • JC,

    On second though, I’m not sure that even regular property rights or contractual rights could be enforced without some sort of state. Take EM spectrum rights as an example. Some people would think that EM spectrum rights are valid, others would think that they violate their property rights with respect to their own transmitters. How could you get everybody to agree to one version of EM spectrum rights without resort to coercion? You couldn’t. If you put two anarcho-libertarians in a room, you will probably get two opinions on the matter; maybe three. *grin* Similarly, how could you get everybody to agree to one version of property or contractual rights? You couldn’t. You’d have to resort to force. So maybe anarcho-libertarianism is self-contradictory.

    Thanks for making me think about this.

  • Published: September 4, 2009 6:30 PM

  • filc
  • Russ, JC,

    The Anarcho-Capitalist argument is that a free-market private organization could be realized to meet the services of things like protecting private property. A free market court system for dealing with contractual disputes, ect..

    Incidentally Stephan Kinsella has already written about this.

    Also read Chaos Theory by Robert Murphy.

    Enjoy the reading.

  • Published: September 4, 2009 6:38 PM

  • Russ
  • filc,

    I’ve read “Chaos Theory”, and it depends wholly on a contractual basis for society. This depends on a shared notion of what constitutes contractual rights. But how do you make sure that everybody works from a shared notion of contractual rights? If you don’t resort to force, the system breaks down. If you do resort to force, then you have a sort of state.

  • Published: September 4, 2009 6:43 PM

  • filc
  • Force isn’t necessary. In a free society business’s that choose to participate in more shadey types of agreements will naturally suffer since the consumer will responsibly decide not to associate with those providers.

    Consumers will then naturally be drawn to responsible firms and business’s they can trust. The market, through innovation, will also create technological means of protecting the consumer. Consider the now general retail standard, 30-day return policy agreements you see all over the place. This is a product of the free market, no government needed.

    You will also see “Contracts” as we understand them simplify in most cases. As stated before in this thread our beleif is that typical licensing laws would dwindle as they wuold not be desireable in a true free-trade environment. What that means is if you purchase something from you, you own it. You wouldn’t own a license to use it, you would simply own it.

    This makes fraud, theft, extortion, and other criminal acts extremely transparent or more black and white. Unlike our society where Fraud, theft, and extortion are a hazy gray area and in some cases not always illegal. This would never be the case in an an-cap society. The point is the market would regulate itself.

    If a man chooses to overtly be evil society will naturally tend to move away from doing business with him for fear of the ‘guilty by association’. Business’s incentive then becomes being honest and offering good business. Business’s equally have the right to discriminate against who they do business with. They may decide to revoke doing business with the town drunk for fear of bad press. This offers incentive to all individuals.

    I couldn’t honestly begin to explain everything here and there are others who could do a much better job then I. What I would recommend for you, if your interested, is ask your very question above on the mises.org forums. Just be sincere and you will get sincere responses from people far more intelligent on the matter then I. Thanks Russ!

  • Published: September 4, 2009 6:58 PM

  • Russ
  • filc,

    You’re assuming that I am a newbie to libertarianism and anarcho-capitalism. I’ve been interested in them for quite some time. I read Rothbard etc. in the mid to late ’90s, and for a time considered myself an anarcho-capitalist. After 9/11 I started to reconsider my position. I just have sincere differences of opinion regarding how well anarcho-capitalism would work. But thanks for your advice, and for not ridiculing me for my differences of opinion. There are others here that will take care of that! *grin*

  • Published: September 4, 2009 7:17 PM

  • newson
  • russ and silas barta show the risk to the anti-ip position of acknowledging electromagnetic spectrum rights. i think this needs more fleshing out by kinsella and tecnical experts in the field. i think this is work-in-progress.
  • Published: September 4, 2009 7:52 PM

  • filc
  • JC,

    If anything 9-11 should have you running from state-run protection. How can the worlds supposed most powerful military conveniently be running test operatives the day of 9-11? Where was or national defense that day? Oh thats right halfway across the country doing training ops! 🙂 Some defense. And instead of holding those officials accountable for pretty much disposing of our entire national defense we went to war. If anything 9-11 was further proves that our country doesn’t even have the managerial ability to protect us.

    Also we’ve been foreign occupying those middle-eastern countries for a decade. It becomes a chicken-egg argument, which came first? There those who believe that 9-11 was nothing more then blowback from us already illegally occupying other sovereign nations.

    I get your point though

  • Published: September 4, 2009 7:58 PM

  • scott t
  • “I was just thinking along these lines and I was starting to allude to it on another forum. Isn’t there a pretty widespread and strong distaste for rip-off artists and counterfeiters?”

    i dont know….i see something on tv called diamond-ique that is supposed to look like diamonds…and it apparently sells. numerous places serve ‘the taco’ are they ripping each other off?

  • Published: September 4, 2009 8:12 PM

  • jc butte
  • filc, the connection between IP and 9/11 is lost on me, lol.
  • Published: September 4, 2009 8:54 PM

  • Bob Alexander
  • I don’t quite follow this argument. Let’s say I come across some land and I’m the first human there. I start farming it, so now I have a claim to it. When someone else comes to use it, I basically say “I was here first. See all the labor I’ve invested.” And so the land, which was created with the planet, becomes mine. Everyone else has to find some other land. If they want the food I grow, I might consider selling them some, but they can’t just take it.

    Alternatively, I sit and think and come up with an idea. When someone else comes to use it, why can’t I say “I thought of it first. See all the thinking and experimenting and building I did”? Not only have I invested labor, but unlike the land that was created with the planet, I created something that didn’t exist before. Shouldn’t my claim be even stronger? Shouldn’t I be able to demand that everyone else come up with different ideas, just as I demand that use different land? If they want to use my idea, I might consider selling it to them, but they can’t just take it.

    Rand tried to make an ironclad proof of rights by asserting that an individual’s survival is good. But the reality is that her premise was not a fact; it was a value judgment. And the people she called anti-life would dispute it (e.g. saying that society’s well being is more important than the individual’s survival).

    If something as basic as that is a value judgment, then ownership of land vs. ownership of ideas is also a value judgment. And value judgments, alas, end up being argued on utilitarian grounds.

    I know libertarians (and I consider myself one) and objectivists hate to hear things like that. But all logical arguments start with a premise – an assumption. And in human affairs, the premises are always subject to debate.

  • Published: September 4, 2009 9:36 PM

  • newson
  • bob alexander says:
    “Alternatively, I sit and think and come up with an idea.”

    – a completely original idea, which owes absolutely nothing to the ocean of ideas in which we swim? does that sound likely?

  • Published: September 5, 2009 12:25 AM

  • Bala
  • SK,

    Thanks a ton for this post. This definitely is a better way of responding to my comment and request on your earlier blog (“Microsoft now wants a galactic IP”). This definitely makes the Libertarian position very clear to me. However, there is a very basic point I have to make. I will be brief now and will soon respond in detail. (The reason is that I live in India and it is now 2:30 pm. I am at work and will be able to post any detailed message only sometime tomorrow.)

    The simple point is that a theory is only as valid as its axioms. Your axiom, which you have made adequately clear and referenced Rothbard for, is that

    “All rights are property rights”.

    This is what I think is completely wrong. Yes. Like you said in an earlier response that Mises was wrong, I am now, with no loss of the respect I have for Murray Rothbard and his writings and ideas on Economics, saying that Rothbard was wrong on this one.

    Hence, you are too.

    More in my next post. Thanks once again for putting up this paper.

  • Published: September 5, 2009 4:04 AM

  • Bala
  • Sorry about the repetition. The first time I tried posting, I got an “error” message and hence, tried posting a second time and then found 2 occurences of the same comment.
  • Published: September 5, 2009 4:08 AM

  • Peter
  • You would find such products where you currently find fake Rolex watches

    Currently, at least where I live, people selling fake Rolex watches can be prosecuted and the watches destroyed. This is because of the government. For this reason, I wouldn’t know where to find fake Rolexes (I got mine at a street market in Kuala Lumpur, 25 years ago, for about $10). Get rid of the regulation, and that would change — I’d bet you’d find fake Rolexes wherever you went.

  • Published: September 5, 2009 6:08 AM

  • Shay
  • Excellent summarizing article. Sorry for the length of the quotes below.

    Troy Camplin wrote, “[…] there are property rights in people, places, and things — but why not ideas? With an idea, one is creating a new thing, and adding to the universe.”

    IP causes this “addition” to take property rights away from everyone.

    “IP ensures that I am compensated for the work I do. […] Suppose I agree to work for someone for $5/hr. But when payday comes, he only pays me $2/hr. Doesn’t he rob me of the work I did if he pays me less than half we agreed to?”

    Yes, and if there was an agreement (contract), you can sue for full payment. Regarding IP, your example applies regardless of the work you do for that person. You could be digging ditches, coming up with ideas, or whatever you contracted to do. If he doesn’t pay, you have a case against him. No IP laws are necessary for this arrangement.

    “If I invent something, I can just keep it to myself, maybe produce it as a corporate secret. Or, I can offer to release the idea for others to use under the condition that people pay me for that usage. Why is that not a legitimate contract?”

    Because it would have to bind all property owners now and forever, which is contrary to how contracts work, that is only binding those who agree to it.

    “And isn’t that cheaper for everyone to not have to keep reinventing the wheel because people are afraid they aren’t going to be compensated for the work they do?”

    The solution to being unable to find a viable way to make money isn’t necessarily state intervention to force people to pay you money; you might need to accept that your chosen way of making money isn’t going to work.

    “This anti-IP stance seems to me to devalue intellectual work.”

    The way I see it, ideas are valuable, due to the laws of nature making them virtually costless to share. But since they are so easy to share, they don’t naturally lend themselves to being sold. IP laws impose artifical restrictions on sharing, thus making it easier to use the standard “invest in product, sell product” model to find their creation. Thus, IP laws decrease the real value of ideas by making use of some of their most valuable aspects illegal.

    “Why, then, come up with anything? As a creative writer, I have a hard enough time making money from my work. Without IP, it would be impossible.”

    Explain the existence of works created before copyright.

    Bob Alexander wrote, “Let’s say I come across some land and I’m the first human there. I start farming it, so now I have a claim to it. When someone else comes to use it, I basically say “I was here first. See all the labor I’ve invested.” And so the land, which was created with the planet, becomes mine. Everyone else has to find some other land. If they want the food I grow, I might consider selling them some, but they can’t just take it.

    Alternatively, I sit and think and come up with an idea. When someone else comes to use it, why can’t I say “I thought of it first. See all the thinking and experimenting and building I did”? Not only have I invested labor, but unlike the land that was created with the planet, I created something that didn’t exist before. Shouldn’t my claim be even stronger?” Shouldn’t I be able to demand that everyone else come up with different ideas, just as I demand that use different land? If they want to use my idea, I might consider selling it to them, but they can’t just take it.

    In your land example, if they took your crops, you’d have fewer crops. If someone used your idea, you’d still have the idea. What you want is to be able to come up with an idea, and then tell everyone in the universe that they cannot use their property to implement that idea.

  • Published: September 5, 2009 8:15 AM

  • Troy Camplin, Ph.D.
  • I did read the entire article, and I’m not convinced. People do pay you for your ideas — if you can prove those ideas. A copyright is given once you prove your ideas work. The copyright makes it accessible to the public. Otherwise, there is going to be greater temptation to keep things corporate secrets. The bottom line is that those against IP are somehow arguing that intellectual work doesn’t create intellectual property, which itself isn’t valid. As someone whose work is almost entirely intellectual, I couldn’t disagree more.

    Now, the fact that I’m not compensated monetarily doesn’t mean that I don’t produce. Quite the contrary. I’ve had poems and short stories published without being paid — with one exception. Certainly, without IP, I would still be paid (or not) for original published work. But another problem would definitely come about.

    One of the things copyright does is protect writers, musicians, etc. from the predatory actions of others. That may be corporations who want to use a song without my permission to make money from advertising (which makes me think those against IP aren’t so much for the free market as for corporate interests — which is a very different thing). That may be other authors who want to take my work and pass it off as their own. In academia, we call that plagiarism. IP is a legal protection against plagiarism. At least, for those still living.

    One of the complaints I read against IP is regarding renewal. And on that, I agree. If the author is no longer living, the originator of the idea can no longer be compensated. The person’s family didn’t come up with the idea, so why should they receive compensation? I could be convinced of that argument. But not while the author of the idea is alive.

    Overall, I just don’t think China is a good example of how we ought to run things when it comes to IP.

  • Published: September 5, 2009 10:37 AM

  • gene
  • A good article and I agree that IP “rights” are a function of the State and not any “natural” or justified occurence.

    what I didn’t agree with is the ability of “contractual” monopolies to function in a free market.

    one can contract the ability not to “copy” a purchased product and also prohibit any “giving” or “reselling” of the product without a further restriction on the new owner. actual theft is illegal.

    in this way, although cumbersome and with transaction cost, monopoly is insured. it has a market cost and would have to compete against non restricted product. this is in contrast to the subsidized “idea” profit and “illicit” control of other’s property that is the norm now.

    it is a small disagreement and the article never states that such contracts should be made “illegal”, so there is no real debate, just conjecture.

  • Published: September 5, 2009 10:40 AM

  • Bob Alexander
  • Shay writes:
    “In your land example, if they took your crops, you’d have fewer crops. If someone used your idea, you’d still have the idea. What you want is to be able to come up with an idea, and then tell everyone in the universe that they cannot use their property to implement that idea.”

    In my land example, I also restrict other peoples’ rights. I’ve laid claim to an area, and they’re no longer allowed to walk onto it without my permission. Any property right imposes a restriction on others. Leftists frequently point this out as an argument that property is contrary to freedom.

    Similarly, an IP right would impose a restriction on others. The original article says this is invalid because it restricts another person’s freedom – essentially the same argument the leftists make.

    Libertarians accept that one person’s rights limit another actions – and that’s OK. My property rights restrict what you can do. A criminal’s actions can result in him losing his freedom. The question of whether to add IP to the list of things that can restrict freedom is a value judgment, not an objective principle.

  • Published: September 5, 2009 11:17 AM

  • Russ
  • Shay wrote:

    “…What you want is to be able to come up with an idea, and then tell everyone in the universe that they cannot use their property to implement that idea.”

    EM spectrum rights work the same way; an “owner” of EM spectrum rights wants to tell everyone in the universe that they cannot use their property (their transmitters) on a certain frequency, if it interferes with the “owner’s” broadcasts.

    And as Bob Alexander has pointed out, property rights work the same way, also; an “owner” of land want to tell everyone in the universe that they cannot use their property (their cars, for instance) to drive through the “owner’s” property.

    All notions of property rights involve limitations on what others can do with their property. If one form of property rights is invalid in principle for this reason, then they all are. Of course, you could admit that they are all valid in principle, say on a utilitarian basis, but argue that some forms of property (IP, for instance) would not result in utilitarian gains.

  • Published: September 5, 2009 12:03 PM

  • mpolzkill
  • Bala REALLY wants to know, and writes (where I think hardly anyone saw his question):

    “I wonder what would be the incentive for anyone at all to come up with good ideas if almost anyone could use a commercially viable idea that they produced (please note that I do not say created). I am somehow worried about the situation where no one at all is interested in investing a lifetime (or any portion of it) developing ideas that will inevitably be hijacked by someone else. I therefore have the sneaky feeling that Libertarianism is a one-way street to the Dark Ages. In simpler terms, I am saying that if you create an environment in which ideas cannot be given the status of property rights, you will have a world in which no one will create ideas or if they do create, share them. Is this not what the Dark Aages were all about? Would you care to prove me wrong?”

    I’m sure someone else here can give a powerful response; but will they PROVE that not respecting the concept of “IP” will lead to a “Dark Age”? Passing over the novel suggestion that the supposed “Dark Ages” were the result of insufficient enforcement of “IP” “rights”, I don’t know how such a thing can be proved.

    My response goes for Troy Camplin, Ph.D, as well. Particularly his, “how we ought to run things”:

    I plead with you both (and suggest to all who haven’t) to read this (if you two have read it, I hope you do so again):

    http://www.constitution.org/hs/ignore_state.htm

    Spenser brilliantly lays out “that a legislature is not “our God upon earth,” though, by the authority they [the politically superstitions] ascribe to it, and the things they expect from it, they would seem to think it is.” The State is a foul tool, and it will never be your tool but in the smallest way possible, and only if you are of use to the State. Hence, you ask them to enforce “IP” at an unknowable price. It is my OPINION (based on my understanding of the history of the world and the successful predictions of economists like Mises) that this is a bad idea, as it is YOUR opinion that it’s a necessary one. How shall this difference of opinion be resolved? Yes, if you somehow miss the powerful meaning of Spenser’s essay, you will appeal to the gun.

    As an aside: It is also my opinion that anyone who could ever believe that no one would create anything without IP, has never really created anything too earth-shattering. Creative people MUST create, I’d say they couldn’t stop it short of suicide. I only speak as a musician and from my knowledge of the great ones. I’m imagining a young Beethoven on our forum here, trying to get some assurances that his “IP” is safely protected by the State before embarking on his profound life.

  • Published: September 5, 2009 12:07 PM

  • Ned Netterville
  • Great article invoking a great discussion. I concur with Mr. Kinsella’s conclusion on the basis of his final argument alone. (“IP requires both a legislature and a state. For libertarians who reject the legitimacy of the state or legislated law, this is yet another defect of IP.”) And I think mposkill’s comments to Dr.Troy are most germane. (“Maybe exactly what you do now WOULD be rendered impossible without “IP”, maybe that would be good for you. Maybe you would move on to another, better plain. Again, no insult intended.”

    No one knows exactly what the world without states would be like, but many smart libertarians (viz., anarchists/voluntaryists) like Rothbard have logically deduced that we would all be better off without ’em. The essential problem with states is that their nature involves the initiation of force without provocation, if for no other reason than to collect the taxes upon which states depend.

    As I see it, there are two big barrier on the way to heaven (viz., that place without any states), which may actually be only one problem observed from two different angles. One is fear of the unknown and the other man’s (innate?) desire for security. For God-fearing people, Frederic Bastiat’s concluding advice in his magnificent essay, THE LAW, may contain the answer to overcoming these hurdles: “Let us cast out all artificial systems and give freedom a chance–freedom which is an act of faith in God and in His handiwork.” Libertarian atheists may vanquish the bogeyman of the state as a necessary evil by resort to common sense: the initiation of violence is certain to produce more violence and a state of unending conflict. Impirically, that is what we’ve always experienced under the sway of human governments. (For a simple, observable, repeatable, practical experiment available to doubters that should establish the truth of this common-sense conclusion, walk into any crowded bar and initiate violence by punching a patron in the nose, or, more in tune with the actions of a state, by grabbing the cash off the bar that is in front of some patrons. You mayl become a believer)

  • Published: September 5, 2009 12:20 PM

  • Russ
  • newson wrote:

    “russ and silas barta show the risk to the anti-ip position of acknowledging electromagnetic spectrum rights. i think this needs more fleshing out by kinsella and tecnical experts in the field. i think this is work-in-progress.”

    Thank you for saying this. This makes me feel that I have achieved a small victory, at least, in my self-appointed role as anti-ancap gadfly. *grin*

  • Published: September 5, 2009 12:25 PM

  • mpolzkill
  • I wanted to slightly amend and add to one passage of my sermon:

    It is my OPINION (based on my understanding of the history of the world, moral philosophy and the successful predictions of economists like Mises) that this is a bad idea, as it is YOUR opinion that it’s a necessary one. How shall this difference of opinion be resolved? Yes, if you don’t change your opinion, and I copy an idea of yours, if you believe you have been financially hurt, you will appeal to the gun. You will appeal to the gun when I have not assaulted you, taken anything that was truly in your possession or broken contract with you.

  • Published: September 5, 2009 12:32 PM

  • mpolzkill
  • Russ, tongue-in-cheek, I realize, but still on the mark:

    “my self-appointed role as anti-ancap gadfly”

    Yet another treasure we have to thank 9/11* for.

    (A very minor “treasure”, not up there with the Rape of Baghdad or anything. I know that I, as a self-appointed anti-Russ gadfly, must always carefully qualify the level and effects of Russ’s State advocacy)

    * The tragic events resulting on 09/11/2001 from the State’s self-appointed, exclusive and wildly incompetent protection of us.

  • Published: September 5, 2009 1:36 PM

  • mpolzkill
  • Ned Netterville,

    I very much appreciate your small kudos and your thoughts on this forum (Bastiat is definitely the right call here). You have caused me a bit of embarrassment however. I had hoped no one would notice my “move on to another, better plain”. And here you’ve unwittingly picked it out my error and reprinted it. That should have read, “better PLANE”. I’m over-sensitive, I know. Consider me the Anton Bruckner of blogging.

  • Published: September 5, 2009 1:48 PM

  • mpolzkill
  • * overly sensitive

    Ha ha, I didn’t go to finishing school and a thousand taunts forever ring in my mind.

    And I’m sorry to all for all the posts, and the unsolicited personal history, and amateur psychology, and generally going off topic. I’m done, even if I find another my gauchery. (I’m coining that, “gauchery”)

    Great forum, everybody.

  • Published: September 5, 2009 2:09 PM

  • filc
  • Sorry JC. I got confused. Apparently I should have responded to Russ.
  • Published: September 5, 2009 3:00 PM

  • Russ
  • filc,

    I’d love to respond to your 9/11 remarks, but JC is right; that would be far off topic. So why don’t we save such thoughts until a more opportune moment presents itself?

  • Published: September 5, 2009 3:19 PM

  • Mark Jones
  • This turned out to be quite long and is broken up into a few areas of inquiry. I think it worthwhile.

    —-
    Those who argue that patent or copyright rights are separate from property rights have not a leg to stand on.

    Disagree? Then, please, inform me of a definition of copyright and patent rights that make no mention of property rights, that are not defined by a description of property rights supposedly granted to the copyright or patent holder.

    ——

    Secondly, to those claiming to own ideas and who say that others should not be able to use the ideas of their “creation,” I ask how you expect people to know your idea and not use it.

    That is, perhaps, unclear. If you claim complete property rights over an idea, such that any use is theft, how can you even inform others of your claim without causing them to use your idea?

    ——–

    Thirdly, if you wish to declare a system of “intellectual property,” it is your onus to prove, first, that what you describe can be properly called property. You can not expect others to honor property rights where no property exists.

    ———

    Fourthly, while you may currently sustain yourself from profits made due to the existence of the fallacy of intellectual property, this does not support the continuation of said fallacy. That you live only by theft or unprovoked coercion at this time does not justify the perpetuation of a system of theft and unprovoked coercion.

    If what you do is not profitable without a bully acting on your behalf, then you must live by other means. It may be difficult for you, but that is just the way of things. I am both sorry for the state of mind which allows you to think otherwise in these matters and provoked to anger by your attempted usurpations of my property rights.

    ———

    As for how one might profit from ideas, I have a few suggestions that derive from the current state of affairs. All jobs require creativity to varying degrees. Consultants, lawyers, mechanics, and engineers all have jobs in which ideas and creativity are in great demand. Of course, these are all very “physical.” Less physical are the jobs of journalists, graphic artists, editors, copywriters, and advertisers.

    Now, perhaps not all jobs or work that is primarily “creative” will continue to be profitable. Some claim this would be a terrible occurrence. “What would happen to the artist? The musician!?” Current developments can provide a partial answer and an indication of a trend.

    As you surely know, with the advent of inexpensive personal computing, the Internet, and personal music devices, outlawed property rights due to copyrights with relation to music have been flagrantly ignored. Music is now widely shared for little expense and for little recompense, in some cases, to the writers and performers. What has happened to the industry? What changes have occurred? How do those artists who find little monetary profit deal with these circumstances?

    Despite the hubbub, many artists are very grateful for this state of affairs. Where 20 years ago their music would have had an exceedingly small effect without some providential occurrence, today their music is discovered, heard, and appreciated globally. Despite this, some benefit little monetarily and, yet, continue to produce music. Are these people mad? Perhaps, but they are still rational actors acting in their own benefit. To them, it brings them happiness that their music is so enjoyed.

    Yet others manage to reap appreciable sums from their efforts while imposing no or comparatively lax copyright restrictions. How do they do this? The particular method varies, but it can be said that creative marketing and the use of the fame to sell related services and products describes many such operations.

    Now, a similar approach can be used in any other creative industry. I know a fellow who invented numerous time, effort, and cost saving processes in the machining and mold and tool making industry. Many of these ideas were developed while working for others and freely shared. These ideas can be said to have allowed him to receive excellent recommendations to find very gainful employment. This then allowed him to save sufficient funds to go into business for himself and use his ideas and those he continued to create to great gain.

    If you wish to gainfully employ your creativity, you must determine the best way to sell your creativity. It is often not enough to have a good idea; its execution will determine one’s gain.

  • Published: September 5, 2009 4:55 PM

  • K Ackermann
  • Two examples that I see playing out right now speak poorly for the utility of IP ownership.

    The first one is the systematic “trolling” for IP by organizations that intend to use legal mechanisms to maximize financial gain by licensing IP, and by sueing for damages in cases of infringment. They may have the right to do so, but let’s look at what it does:

    They contribute nothing to the actual development of R&D;, and in all likelihood, tie up some amount of funding that would otherwise find it’s way to direct R&D; investment. Rather than feed the artist, they starve the artist and effectively invest in what can only be an inferior product, and probably delay the introduction of it to boot.

    On the practical side, one recurring complaint is that the IP ownership is often obfuscated, with the net result being that companies lose out on the normal process of writing contracts, and negotiating terms, as the terms wind up being dictated in the course of a settlement. They neither create wealth, nor promote the creation of wealth.

    The other example is the tax imposed by branding. Branding has great utility for the owner, but in most cases, it is a psychological phenomena. There is not practical value in a label to a consumer. For most products, I don’t know how to argue this, but for medicine, it is an undue taxation.

    Drugs are designed to fit very specific sites in biological organisms. In many cases, there are no other options, because the shape of the receptors cannot be changed. Drug companies effectively claiming rights to platonic Circles, and Squares, as
    their property.

    I find it impossible to completely divorce the issue from morality too. A charitable agent is actually prohibited from distributing life-saving, or life-enhancing platonic shapes that have no viable alternatives. Medicine is the one product people can be forced to consume, yet it is treated like any other product such as a car, even though you can pick from a wide variety of cars, and you will not die if you don’t purchase one.

    I don’t know the right way to frame this axiomatically.

    I do know that requests for me to rationalize the issue on free market principles over the years has so far left me unconvinced that medicine is not different. I would have to lie to myself that a company’s right to patent a platonic shape that is important to people’s very existance trumps all. I don’t feel that way about cars, or anything else except maybe food, air, and water. Food is readily available in a variety of flavors, and air and water are pervasive for the time being. We will have to burn that bridge when we get to it.

  • Published: September 6, 2009 12:07 AM

  • newson
  • to k ackerman:

    your argument that somehow medicine is different to other essentials like food, etc ignores why food is so abundant and cheap in the developed world – it’s an area where the government does not exercise total control.

    the non-ip pharmaceutical model would be different, to be sure; probably many more smaller, incremental developments rather than large-ticket projects. pharmaceutical companies may pool resources to fund the clinical trials (the largest cost item).

    abolishing the fda would lower barriers to entry, and smaller firms could also compete more effectively. consumers would have to rely on trusted names, and review services would spring up to fill the information void.

  • Published: September 6, 2009 4:36 AM

  • K Ackermann
  • @newson, hmmm, I don’t know about the gov’t and food. They still have their hands in too much of it, and in the wrong areas.

    I’m not against food safety inspectors. I am against subsidizing so much junk we put in our bodies.

    A girl that I date has a little niece, and they stayed the weekend a while ago. I was up late working, and I figured I would have a piece of the carrot cake I bought. It was about 1:00am, and I tried opening the plastic shell to get at my cake, and I woke everybody up, and one guest was very upset, and the other one wanted carrot cake.

    Instead of getting work done, now I’m babysitting a 3-year old who I watched become hyper after eating the cake. I only ate a couple of bites because I swear I could taste the chemicals in it.

    The next day, I went shopping to cook a big Sunday dinner for them, and I bought a cake mix and pudding, and yes, a can of frosting, and instead of that little girl sitting in front of a TV, we kept busy for an hour and a half making a superior product that does not cause sleep loss, polute, and has ingredients that the human body knows how to digest. I didn’t have to clean her, so it was a win all around.

  • Published: September 6, 2009 5:12 AM

  • Murray Rothbard
  • “Now the man who seizes another’s property is living in basic contradiction to his own nature as a man. For we have seen that man can only live and prosper by his own production and exchange of products. The aggressor, on the other hand, is not a producer at all but a predator; he lives parasitically off the labor and product of others. Hence, instead of living in accordance with the nature of man, the aggressor is a parasite who feeds unilaterally by exploiting the labor and energy of other men. Here is clearly a complete violation of any kind of universal ethic, for man clearly cannot live as a parasite; parasites must have non-parasites, producers, to feed upon. The parasite not only fails to add to the social total of goods and services, he depends completely on the production of the host body. And yet, any increase in coercive parasitism decreases ipso facto the quantity and the output of the producers, until finally, if the producers die out, the parasites will quickly follow suit.

    Thus, parasitism cannot be a universal ethic, and, in fact, the growth of parasitism attacks and diminishes the production by which both host and parasite survive. Coercive exploitation or parasitism injure the processes of production for everyone in the society. Any way that it may be considered, parasitic predation and robbery violate not only the nature of the victim whose self and product are violated, but also the nature of the aggressor himself, who abandons the natural way of production—of using his mind to transform nature and exchange with other producers—for the way of parasitic expropriation of the work and product of others. In the deepest sense, the aggressor injures himself as well as his unfortunate victim. This is fully as true for the complex modern society as it is for Crusoe and Friday on their island.

  • Published: September 6, 2009 5:41 AM

  • Gil
  • “This anti-IP stance seems to me to devalue intellectual work.” – Troy Camplin, Ph.D.

    “The way I see it, ideas are valuable, due to the laws of nature making them virtually costless to share. But since they are so easy to share, they don’t naturally lend themselves to being sold.” – Shay.

    Or should that be “intellectual work has been and still is artificially overvalued by threat of force”? People should be singing songs around campfires for the fun of it, it shouldn’t be a serious multi-billion dollar industry.

    “So, when you say one cannot enforce IP without the state, you are only correct to the degree that public opinion dismisses it. Should enough people decide IP is valid, a stateless enforcement could be achieved.” – Bill in StL.

    If I.P. is not real property and can be only be enforced through threat of violence then there can be no private equivalent as they are engaging in violence (or the threat thereof) too.

    Of course, it is interesting the way real property doesn’t need everyone to consent to it for it be held sacred in perpetuity.

  • Published: September 6, 2009 6:56 AM

  • thesixthsense
  • the channeled ghost of murray rothbard apologizes and says he screwed up on copyright. we are all dwarves standing on the shoulders of giants. he says the only parasites draw a public wage.
  • Published: September 6, 2009 7:08 AM

  • antiip
  • Let us do a basic thought experiment:

    Imagine a world full of tiny objects called atoms, which are indivisible. These atoms can be stuck together to make molecules. There exist many such molecules which on a greater scale are found as certain structures/objects.

    Imagine three inhabitants in this world: A, B, and C.
    Those inhabitants are themselves a structure consisting of molecules, which whatever the circumstances are produce in these inhabitants some sort of mind.

    Therefore A, B and C are considered to be some sort of intelligent acting agents.

    Questions arise: Who is to determine what A, B and C are allowed to do, that is how the can use their body consisting of these atoms?

    Questions of (natural) right arise.

    Who is allowed to use the objects of this world (that is the atoms, which are found in the molecules, which are found in the objects)?
    What is propertA, B and C

    Questions concerning natural right about self-ownership and ownership arise.

    The result:
    Property is the right to exclude others from using the owned objects, that is the molecules in these objects, that is the atoms. The right to exclude certain interaction with these atoms.

    So far so good.

    But what about IP?

    IP would be the right to PATTERNS of these object, the right to certain constellations of the atoms. The right to information.

    Could there be a super-right to patterns, that is higher that the right to the atoms themselves?

    Those rights (pattern-rights) would subsequently diminish the right to the object.

    Imagine A was the owner of object X and himself.

    Imagine B invented something with another object Y that was of the same kind as object X.

    Does the (later) invention of B give him the right to certain forms of use of object X? Does B have a right to say in which kind of patterns X could be used and in which not?

    What if A wants to sell object X to C? Does B have any right to forbid that?

    You see: Rights to patterns LOGICALLY would be superior to rights to atoms, molecules and objects..

  • Published: September 6, 2009 2:26 PM

  • antip
  • The case of EM spectrum rights:

    Imagine there is a large patch of unowned land. On the east of it there is land owned by person A.

    Person A uses very powerful light signals (high light density) and smoke signals from the second floor of his house to inform some persons in the west of this unowned patch of land with news.

    Imagine you homestead this patch of land.

    Does A have a right to transmit his EM signals (YES light is EM!) through your patch of land? Does he have the right to tell you not to build ANYTHING obstructing the path of his light on your property?

    Or do you have the right to build on your patch of land a house, even if that is in the way of the light stream?
    Do you have the right to tell A to stop using his very powerful light signals in the night, because he is harming your property (plants don’t grow too well if there isn’t a long enough break of light because they can’t rest)?

    Other example:

    Your neighbor B uses a powerful sender that emits certain EM waves, that do not harm anything you own at the moment. Sometime later you buy a certain machine that doesn’t work, because of this EM waves. On the long run your machine will be destroyed by those EM waves If in your opinion your neighbor B had the right to emit those EM waves, than it is your problem that your machine is destroyed. Is that your opinion?

    The problem of servitudes arise.
    http://en.wikipedia.org/wiki/Servitude_in_civil_law

  • Published: September 6, 2009 2:39 PM

  • Troy Camplin, Ph.D.
  • It’s not a matter of sitting around making sure my work is protected before I create. I create. Period. That being the case, why should I be forced to give everything away willy-nilly. I’m sorry, but that’s the same logic the socialists have with material production. It’s the duty of the capitalists to give away their intellectual labor that they put in that makes it possible to produce anything at all. That is the attitude of the Marxists and other socialists — something Hayek observed to be the case. It is precisely intellectual production that must be protected, as that is the soul of the catallaxy. In the end, the creative worker ends up giving the vast majority of his work away anyway. Why go out of our way to make it even more difficult to receive payment for that work? Here is exactly the wrong attitude:

    “People should be singing songs around campfires for the fun of it, it shouldn’t be a serious multi-billion dollar industry.”

    What a load of nonsense! Marxist to the core is what that attitude is. The fact that people can make billions from music and songs doesn’t in any way prevent people from atavistically sitting around a campfire and singing those same songs. In fact, there has been a proliferation of songs because of the music industry. In the end, though, if you don’t like IP-produced songs, stop buying music and only get the stuff made freely available online. There’s a pretty good reason why you and everyone else against IP likely don’t or won’t.

    As for guns, why is it okay to threaten people for stealing physical property, but not for stealing my ideas, which may in fact provide me with a real chance at making a living. It may be right that IP isn’t good law now, but that doesn’t mean we throw out the baby with the bath water. We need good IP laws, that allow the various artistic spontaneous orders to be maximally productive and creative. Part of that means people who want their works protected can get them protected.

    Intellectual work is not overvalued. Intellectual work is the only source of anything we have at all, is the source of all creativity and growth in all the spontaneous orders. If anything, we undervalue it. For the Marxist and socialists, it’s barely valued — or understood to have any value — at all.

  • Published: September 6, 2009 9:01 PM

  • newson
  • troy, because your ideas aren’t that original. what you think has also been thought and expressed by millions of others in the course of history.
  • Published: September 6, 2009 10:30 PM

  • Michael A. Clem
  • Troy, you are assuming that IP protection would increase creativity and creative works. This is the first argument and perhaps most important argument Stephan raised. Show that IP protection is truly beneficial, it’s not self-evident.
    Also, If intellectual “property” was truly property, then why shouldn’t it be passed down in perpetuity to the creator’s inheritors? Because it is not truly property. Can you imagine someone homesteading land, and when that person dies, it becomes common or public land instead of going to his heirs?
  • Published: September 7, 2009 9:25 AM

  • Bala
  • SK,

    Like I promised, I am responding to the specific point I objected to. I think your entire theory is flawed because at the root lies the assumption that “all rights are property rights”. Even more monstrous is to go on and talk of “scarce resources” and treat people and their bodies as scarce resources. Sounds very much like an economist trying to apply the tools of economics to politics.

    To begin with, I need to mention that while you may have read Ayn Rand, I think you don’t have a clue about the meaning and implications of what she said. Further, your entire understanding is from the perspective of a lawyer, not that of a political philosopher (though you seem to like to pretend like one). Hence the bundle of misunderstandings and misrepresentations.

    What Rand proposed, above all, was a MORAL FRAMEWORK.

    A moral framework is not a guide for designing a legal system (though it should be if the legal system is to make sense). It is a guide for individual action.

    Morals are a code of values. A moral framework is a code that helps a man assign a value to every option he ever faces and thus enables him to make choices from available options. Value is subjective and relative. Nothing has intrinsic value. Value is that benefit which something brings to me. It is the enhancement of my life that comes with it. The ultimate value for man is his life. Everything else is valued relative to it. Without life, no other value has any meaning.

    Life itself is a sequence of self-generated self-sustaining actions. While other animals engage in actions based on instinct, man acts based on rational choices worked out by his mind, which in turn works on the basis of the concepts he has gathered till-date and his (individual) assessment of reality. To sustain life, man needs to act. To act, he needs to what will enhance the conditions of his life and what will worsen them and thus make it tougher for him to sustain his life. This is where a Moral Framework comes in. Because man lacks the instinct that other animals have, he depends completely on his moral framework to guide his actions.

    Man is also apart from other animals in the range of concepts he can form. “Range” here refers to spatial as well as temporal. Man, unlike other animals, can form concepts of time. In particular, he can form concepts of time way beyond anything he may himself experience in the short-term. He can talk of a life-time and beyond. He can conceptualise aeons past and future. When man acts, he acts not just for the range of the moment (which too he does) but also for the immediate and not so immediate future.

    Man is different from other animals in another basic aspect – he lives by producing. He could live by hunting and gathering, but his rational mind led him into the task of production which greatly enhances his chances of survival and the period and quality of such survival. Modern man produces not just what he needs but also what he estimates other people need and to obtain which, they are prepared to give in exchange other products they themselves produce and which the man himself has need for. He produces not just for his own needs of today but for the needs of the distant future for himself and for others who are ready to trade with him.

    Man’s only guide in all this is his mind. Man lives by his mind and not by his physical labour. Physical labour got him his first berries and deer to eat. The working of his mind brought him the tools he produced, the crops he cultivated, etc. Without his rational mind, man would still be in the jungles, much like the dinosaurs did or the tigers still do.

    Man is a being of volitional consciousness. His senses bring him percepts of the world around him. His rational mind helps him make sense of these random percepts, organise them into concepts and thus derive principles according to which he may act. He chooses, on his own and based on his cognitive apparatus and the concepts he has formed using it, the course of action to follow in any circumstance.

    We now come to the most important point of all – the concept of morals and the definition of the concept “right”

    Life, especially human life, is not something that happens. It exists and sustains itself by choice. The most important choice man makes is the choice to live. Once he makes that choice, he has a whole lot of choices to make to be consistent with that. To a man who makes the choice to live, any action that tends to enhance his life (in terms of quantity and quality) is moral and that which diminishes it is immoral. As a simple example, to a man who wants to live, consuming poison knowingly is immoral.

    Having said this, there is only 1 axiomatic right – the Right to Life. This right is a completely moral principle that essentially means that Man, as a being of volitional consciousness, needs to be able to act as per the directions of his rational mind if he is to live as per his nature as man. Violating the Right to Life is nothing short of condemning man to death. The only way to prevent man from acting as per the directions of his rational mind is to initiate force against him. In other words, by taking away his Liberty to act as he deems fit.

    The Right to Life is very interesting indeed because it automatically prescribes the range of actions a man may undertake and simultaneously defines those that he may not undertake. This becomes clear when we realise that the very concept of Right to Life (and indeed all rights) makes sense only in a social context. In other words, the Right to Life, like all other Rights, is a political right. It is a statement that no man may prevent another from acting as per the directions of his own rational mind. Failure to acknowledge this principle is acceptance of the initiation of force. Since this is not in a man’s rational, long-range self-interest, he accepts the principle.

    A man who says “I recognise the Right to Life” automatically says that he recognises the Right to Life of every rational human being like himself on the principle of reciprocity. He does so because doing so has a better chance of guaranteeing that others likewise respect his Right to Life.

    The Right to Liberty is a logical corollary, though the most obvious one, of the Right to Life. Since preventing a man from acting as per the directions of his rational mind is a violation of his liberty, violation of the Right to Liberty is tantamount to violating his Right to Life. On the assumption of reciprocity, men thus realise that recognising the universality of this Right to Liberty is in their long-range self-interest.

    Property is a tricky question, but then a little application of mind soon reveals that it too is a logical corollary of the Right to Life, but is meaningless in an environment that denies the latter.

    Firstly, to recognise property, one needs to go back to the point that man acts to sustain his life as per the directions of his rational mind. He does this by seeking things of value. Value is that which one acts to gain or keep. On acts to acquire values because of one’s rational judgement that they add to one’s life. (In contrast, that which takes away from life would be called a disvalue).

    There are 2 ways of gaining something – taking possession of that which exists and producing something that did not exist before in the form in which it becomes the value sought. As far as the former is concerned, the fundamental principle of nature is that of “finders keepers”. The first person to stake claim to something found in nature becomes the rightful owner. Absurd statements like “What if someone stakes claim to all the air on earth?” are easily disposed off by the sheer irrationality of such a claim, especially on the implementation. It would take a really stupid person to make such a claim on the air (unless of course he has the ability to trap all the air on Earth).

    The tough part is production. Production is the act of modifying the environment to produce the value sought out of previously available materials. The key to this process is the production of ideas. The idea that something would be of value to his life logically and temporally precedes the actual production of the value. The ideas that make it possible for the creation of the value too go into the production of the value. These too are not given to man. He needs to produce them based on the range of concepts that he has managed to gather till date and their application and extension (meaning new ideas) to the problem on hand. Thus, a prerequisite for production of physical goods is the production of ideas. A world bereft of ideas will soon be bereft of valuable physical goods (except of course those that occur in nature).

    Having said this, it is now time to come to the Right to Property. The Right to Property is nothing more than the right to the fruit of one’s actions. In other words, if the value man produces to sustain his life as per the directions of his rational mind may be taken away from him, he is condemned to death. A rational mind working in a man’s own long-range self-interest would conclude that a productive man is most benefited by an environment in which there is no taking away of the fruits of one’s actions. Every rational man now needs to make a choice. Either he decides to respect the right of everyone else to the fruits of their respective actions and thus hopes to get his respected as a reciprocal gesture. Or else he prepares for a world where everyone is just trying to take away that which other people have produced. Once again, a rational man working for his own long-range self- interest has only one option – Recognise the Right to Property.

    By doing so, he immediately accepts the principle that the way to attain the value that someone else has acquired or produced is to deal with him on the principle of voluntarism – as a trader giving and receiving value.

    As mentioned earlier, physical goods or ideas need to be produced. They do not pre-exist. Every man needs to make a moral choice. Either he respects the Right of each person to the value (physical good or idea) he has produced and trade with him to get it or he soon creates for himself a world in which people have no incentive to produce and hence, where he has nothing of value to get from them, by trading or otherwise (unless of course he chooses to live as a cannibal).

    Rational men forced into a situation where others do not respect their right to the fruits of the ideas they produced have only two options. Produce ideas and stop sharing them with others (the beginning of the Dark Ages) or just keep mooching on others . The latter option of course assumes that others will continue to produce ideas which they can parasite on. Only a truly irrational person detached from reality will make that assumption. Such a world will soon become completely bereft of ideas.

    Thus, the case for IP is a completely moral one, on the same grounds as the case for the Right to physical property. Rational men would recognise IP because doing so would be in their long-range self-interest.

  • Published: September 7, 2009 12:55 PM

  • steve kowalski
  • Two thoughts on this article, one minor the other more important. The minor one. It is diningenuous to contrast a utilitarian perspective from a principled one. I’m sure that Jeremy Bentham and JS Mill thought their perspective was highly principled. The contrast should surely be between a utilitarian perspective and a rights-based (or deontological) one. (I agree, incidentally that the rights-based one is superior).

    The more major objection I have is with the thought that, to properly come to own a physical resource, there need be no element of creation or transformation. (We should be careful about using the term creationism, incidentally, for fear of confusion with the unscientific mumbo jumbo more usually associated with the term.) You yourself say that homesteading involves “using and thereby establishing publicly visible borders”. Using, in this sense, means creating something from the resource, transforming it in some way, such that the borders become established via this process. John Locke calls it mixing one’s labor with the resource. We do not, I presume, wish to claim that merely embordering a resource is sufficient to justify a claim – otherwise someone in the 19th century could have built a fence around the state of Iowa (or wherever) and made a just claim – even without doing any work on the land. Or, to use Nozick’s example, stuck a pole on the moon. It seems our theory must include a proper element of transformation, such that, were it to be taken away, one’s work on the resource would also be taken without justification. This introduces an element of something we may wish to call creation into the equation. (I agree entirely, incidentally, with all the points made about a hunk of marble). But if creation is necessary in this way in a theory of just ownership of resources, we have to admit that it opens the door for using creation as an element in justifying patentable objects.

    I am quite prepared to accept that there may be an additional relevant difference between the two, such that patenting is unacceptable, but I don’t believe we have yet been given it.

  • Published: September 7, 2009 1:29 PM

  • Russ
  • steve kowalski wrote:

    “The contrast should surely be between a utilitarian perspective and a rights-based (or deontological) one.”

    A rights-based argument does not have to be deontological. There is also a rule utilitarian approach that justifies the rules because they result in the best outcome.

  • Published: September 7, 2009 1:41 PM

  • Michael A. Clem
  • Not bad, Bala, Rand is always stirring and inspiring. But I think I detect a couple of flaws near the end. First of all, you must be clear on this: ideas in themselves cannot be property. An idea must be fixed in some physical form or media. Obviously, a novel is fixed in a manuscript and/or book. A collection of songs are fixed in a compact disc or, increasingly, a network drive or hard drive. Less obvious, but still the same thing, is the idea for a chair design, fixed in the production of an actual, material chair.

    I also find the right to property as the “fruits of one’s actions” to be a little less than specific as a guide to property rights. Many actions are possible, and some actions are more effective than others. Some actions are intended to create some durable product or result, and others aren’t. If I whistle a new tune without recording it, no property has been created, and thus, no property rights have been derived.

    You’re also making a leap that ideas have value to ideas should be protected. Obviously, in a more mundane sense, if I develop a unique accounting system to maintain my budget, it in no way interferes with my use of it if someone else also uses it. The only question is whether or not it is both unique and useful enough that others might value it, too. But even a common, ordinary budgeting system is valuable to many people, especially to young adults who have never had to juggle finances or keep a checkbook. So we see that an idea hardly has to be unique to have value. The question is, why should a unique idea be considered “property”, whereas a common idea is not property?

    Once again, no idea can be property. It can be unique only until more people know about it. But the fixed medium that holds an idea, be it common or unique, that is property. So, it comes back to Stephan’s argument once again. If I purchase a book, a cd, a computer porgram, etc., what are my rights in relation to it, given that it is only a copy of what the creator produced? Or to take a different example, if I purchase a chair that has an original, all-new design, is it wrong for me to make a copy of the chair with the same design, or is it wrong to produce copies of the chair and sell them, or is it just wrong to produce copies of the chair and sell them with the same brand or designer notice as the original chairs? Is the design intellectual property and deserving of protection, or is it just the brand name that should be protected?

  • Published: September 7, 2009 2:04 PM

  • Bala
  • Michael A Clem,

    ” First of all, you must be clear on this: ideas in themselves cannot be property. ”

    Whether you choose to recognise something as property or not is your choice. But remember that while you are free to make your choices, you are not free to escape the consequences thereof.

    ” If I whistle a new tune without recording it, no property has been created, and thus, no property rights have been derived. ”

    A person who whistles a tune without recording it is deriving happiness out of the tune he whistles. (the reasons for that could be many) That is the reason he does so. That is the fruit he desired from his action and that is what he got. Clear?

    ” You’re also making a leap that ideas have value to ideas should be protected ”

    I never said it. I said we each need to make choices. The choice in this case is “Am I going to respect the idea producer’s right to the fruits of his actions?”. You are free to make your choice, but once again, the consequences will be yours too.

    ” why should a unique idea be considered “property”, whereas a common idea is not property ”

    All these are your distinctions, not mine.

    ” Once again, no idea can be property ”

    It is not easy, but when it is a moral choice, which side do you want to be on, the right side or the wrong side?

    ” If I purchase a book, a cd, a computer porgram, etc., what are my rights in relation to it, given that it is only a copy of what the creator produced? ”

    Wrong questions to ask. Ask yourself which way you will be benefited in the long run. By deferring to the author’s and the publishers right to the fruit of their actions or by infringing on it? Remember that by reproducing the book and distributing it, you are adversely affecting their income. What would you expect the author and the publisher to do is a lot of people started doing that? Publish more books? Wishful thinking.

    ” Is the design intellectual property and deserving of protection, or is it just the brand name that should be protected? ”

    At the end of the day, it is a MORAL question. The issue at stake is your own long-term self-interest. All the best in making the choice.

  • Published: September 7, 2009 2:19 PM

  • Michael A. Clem
  • Oh, I get it. You’re failing to make the necessary distinctions, because at the end of the day, morality is instinctive, not a matter of rationality.

    Just kidding, I’m pretty sure that’s not what you mean. But the vagueness of your responses leaves little for rational decision-making. That’s exactly why I was trying to to make these distinctions and ask these questions that you’ve decided to avoid. Reason doesn’t work in a vacuum. Logic is useless without the necessary inputs to work with.

  • Published: September 7, 2009 2:34 PM

  • Stephan KinsellaAuthor Profile Page
  • Bala, thanks. But what is your question?
  • Published: September 7, 2009 2:46 PM

  • Bala
  • Michael A Clem,

    ” You’re failing to make the necessary distinctions, because at the end of the day, morality is instinctive, not a matter of rationality. ”

    Oops!!! That’s not the idea. The point is that the market is the best place to settle these distinctions but the idea of respecting the idea producer’s Rights to the fruit of his actions is a rational moral choice. Very simply, it is in your rational long-term self-interest to respect it and against your interests to violate it. Morality is indeed very hard and rational. The only problem is our respective individual ability to recognise reality for what it is.

    ” But the vagueness of your responses leaves little for rational decision-making. ”

    I was making a moral case. My responses too were moral. I cannot and should not provide all the answers because you too as a rational human are capable of arriving at conclusions on what is in your long-range self-interest. In fact, you are the only person who can make the choice. All I am saying is that respecting IP is a morally sound choice irrespective of the distinctions you have made. The distinctions are just splitting hairs trying to find a loophole.

    The quality of the idea and the returns the producer needs to get will be decided by the market, not by you or me.

    ” Logic is useless without the necessary inputs to work with. ”

    The inputs are clearly available – “Someone appled their mind and produced this idea. Am I going to respect his right to the fruits of his actions or am I not?”.

    Equally clear are the choices. A person seeking his own rational long-term self interest would choose to respect the producer’s rights to the fruits of his actions (profits in the case of commercially valuable goods).

  • Published: September 7, 2009 2:49 PM

  • Bala
  • SK,

    ” Bala, thanks. But what is your question? ”

    That was no question. That was a complete refutation of your position on IP. I have said, stating my premises and my arguments, that by completely misunderstanding the very concept of Rights, specifically Property Rights, you are presenting a false and indefensible case against IP.

    I would like to see your response.

  • Published: September 7, 2009 2:53 PM

  • steve kowalski
  • Russ – I agree that rule utilitarianism can be made to look rights based, but since the good precedes the right under utilitarianism, I doubt that it can be described as deontological. Anyway, it is a minor point. I don’t particularly want to debate defintions – the point I was making that it is not correct to suggest that utilitarianism is unprincipled.
  • Published: September 7, 2009 3:21 PM

  • Antiip
  • “but not for stealing my ideas”

    Ideas can NOT be stolen.

    Ideas are a type of information.
    Information itself can only be copied.
    Only the medium in which information itself is presented can be stolen.

    So if you write a manuscript and the manuscript itself is taken away against your will and without a contract that IT is stolen. But if only a person hears about your manuscript and its content NOTHING is stolen.

    Clear?

    Property rights only in physical matter can exist. There are no property rights in patterns/information.

    Only by declaring positive law legitimate you could define such “property rights in information”.

    But that is NOT possible regarding natural rights. Objectivism failed.

  • Published: September 7, 2009 10:14 PM

  • Antiip
  • “I never said it. I said we each need to make choices. The choice in this case is “Am I going to respect the idea producer’s right to the fruits of his actions?”. You are free to make your choice, but once again, the consequences will be yours too.”

    Wrong.

    Your statement is wrong, because you assert that there is right to an idea.
    The right statement would be: “Am I believing that someone has a right in an idea, an information, or a pattern.”

    This is the choice people have to make.

  • Published: September 7, 2009 10:20 PM

  • Bala
  • Antiip,

    ” Your statement is wrong, because you assert that there is right to an idea ”

    I never said that. I spoke only of respecting the right to the fruit of one’s actions. If that meant producing an idea, so be it. I never spoke of a right to an idea. That is your language.

    Your last statement reflects that you either have not read what I have posted or you have not understood it at all. I said “Morals are a guide to individual action”. I also said that whenever it comes to action, we need to choose from available options. In this case, the choice is from among 2 options – one that assumes the producer has a right to the fruit of his actions and another that assumes he does not. There is nothing to believe in. It is all about choices. All that each of us has to face up to is the choices we need to make in our actions, not in our beliefs.

    Talking in meaningless language like this is the anti-IP propagandist’s main problem. By doing so, he loses his touch with reality.

  • Published: September 8, 2009 12:00 AM

  • John Donohue
  • I second the posts of Troy Camplin, Ph.D. and Bala.

    The concept that an idea is not property — but the physical delivery system is — pushed forward by Michael A. Clem above is a mild subset of Kinsella’s deep hatred of the producer. Reality is quite different. Ownership, deep intellectual ownership of the soul has primacy. The creator owns his idea in the purest form when he thinks it. All of this sad anarchist mumbo jumbo to deny the root of ownership is like so much noise of insects crawling around in the basement compared to this.

    Just as a human owns his own soul and body as an absolute, a human owns his own original thoughts with no justification, outside sanction or permission of another.

    The creator can well discover totally original ideas. He can reference and build upon other truth, other original creations. Yet they can still be original themselves. Or, the owner/creator of the idea may have come upon something already thought of in total by another. He discovers this because the owner has published or invented or in some way publicly signaled his intent to exploit the idea. So be it. One can salute that person across the way and respect the steps the firstcomer has taken to profit by the idea. If one is of good soul, while perhaps being initially surprised or even crushed emotionally, one will soon be thrilled that the idea has validity and will look to expand into a branch or offshoot that leads to a new insight.

    Naturally, the intricacies of “who got there first” or “how much of his or my idea is actually new and not simply rehash of other discoveries” can become complicated — and not all are of good will.

    But make no mistake, the fire of creation in the mind is like the roaring sun compared to the pitiful twiddlings of those laboring in some dank cave to sunder the creator from his creation.

    Since this thread is totally against not only this creator soul ownership but also legal protection of the delivery of the content, I do not care to expound ways this complexity can be served by justice. Real justice with fair courts, monopoly of force, patent and copyright…everything the anarchist hates.

    I simply wish to call Mr. Clem and Mr. Kinsella on the perfidy of rejecting primal ownership of ideas. If they had any shred of respect for man they would be doing everything possible to bolster protection for the creator when he decides to put his idea into practice for profit. Instead, their hatred for the creator and his mind is virulent, vicious and unrelenting.

    Ayn Rand would not be happy with any Objectivist wasting time on this blog. She is probably right. However, I’ll speak to Ludwig von Mises. I have not looked in on his writings in 25 years until now. It cannot be possible that the great mind I knew back then would support under the banner carrying his name the kind of violent anarchism and anti-mind mentality exhibited by Stephen Kinsella. It is a disgrace.

  • Published: September 8, 2009 1:11 AM

  • Bala
  • John,

    ” Just as a human owns his own soul and body as an absolute, a human owns his own original thoughts with no justification, outside sanction or permission of another. ”

    This is something Stephan finds impossible to digest. His entire approach seeks sanction outside of the individual. Take for instance the way he harps on “the benefit to society” due to IP protection. That is nothing short of collectivism, but then that’s Stephan for you.

    You and I would think that Law ought to be true reflection of Morality. People like Stephan think otherwise. That’s part of the problem.

  • Published: September 8, 2009 1:28 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.