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IP: The Objectivists Strike Back!

From the Mises Blog, 12/27/2009

Archived comments (2) below. Also from [MisesAM]

IP: The Objectivists Strike Back!

12/27/2009

Stephan Kinsella ¸

It is clear to anyone who pays attention that IP is under assault–both institutionally, as digital copying, encryption, distributed information, the Internet, and the inherent impotence of IP policing make attempts to monopolize information patterns increasingly futile; and intellectually, as more and more people, especially libertarians–and especially younger libertarians–see the injustice of IP made manifest and obvious. There is a growing body of work that explodes the myths–moral and utilitarian, principled and empirical–of the IP proponents (see the works listed at the final section of “The Case Against IP: A Concise Guide“). There has been a noticeable and growing migration of libertarians toward the anti-IP position. I have lost count of the number of people who have personally told me they have seen the light on the IP cause in recent years. Among the radical and principled libertarians I know, there is a lot of debate about a lot of things–abortion, federalism, activism, “thickism,” left- vs. right-, etc.–but on two issues there is a striking degree of agreement: these are anarchy, and intellectual property. That the state, and IP, are unjust, seem obvious to them after a little reflection. More and more libertarians are realizing that the case for IP being part of legitimate property rights is a hollow one that never needed to be accepted (see Have You Changed Your Mind About Intellectual Property?).

So it is no surprise that Objectivists would be distressed by this phenomenon. Not only are they among the most ardent modern advocates of intellectual property (in addition to Andrew J. Galambos [see Against Intellectual Property], and perhaps J. Neil Schulman), but Rand in a sense built her entire philosophical edifice on IP: to-wit, Rand incredibly said that “patents are the heart and core of property rights” and Objectivist law professor Adam Mossoff explicitly claims that “All Property is Intellectual Property” (see Objectivists: “All Property is Intellectual Property”). And so, realizing Rand’s arguments for IP are deeply flawed, and that fewer and fewer people are buying it, they are starting to fight back.Let’s survey a few. I’ve already mentioned neo-Objectivist (?) J. Neil Schulman’s logorights; I have pointed out problems I see in his view in On J. Neil Schulman’s Logorights and Reply to Schulman on the State, IP, and Carson. I think some of the mistakes Schulman makes are echoed in the tentative IP views of Machan; a problem with both is that they seem to think that any conceptually identifiable “thing” is ownable. For more on this, see Rand on IP, Owning “Values”, and “Rearrangement Rights”; my comments in the thread of the post Intellectual Products and the Right to Private PropertyNew Working Paper: Machan on IPOwning Thoughts and Laborthis comment to “Trademark and Fraud”; Libertarian Creationism; also Elaborations on Randian IP and Objectivists on IP.

Another one was Objectivist IP attorney Murray Franck’s defense of IP and his reply to my response in the IOS Journal, back in 1995 (I also discuss Franck’s views in Inventors are Like Unto …GODS… and Regret: The Glory of State Law). Here we can see glimmers of the idea that “all property is intellectual property”–or, at least, that IP is the most important type of right (just as Galambos held).

There is Greg Perkins’s piece, Don’t Steal This Article!“, from 2006. I’ve noted deficiencies in his or similar arguments in various publications, such as Perkins on Pursuing Insufficiently Abundant Intangible “Values”Against Intellectual PropertyObjectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation MetaphorsElaborations on Randian IPAn Objectivist Recants on IP; “Intellectual Property and Libertarianism” (in particular see here and the section on Libertarian Creationism); Rand on IP, Owning “Values”, and “Rearrangement Rights”Libertarian CreationismInventors are Like Unto …GODS…Intellectual Products and the Right to Private PropertyNew Working Paper: Machan on IPOwning Thoughts and Labor; and Objectivists on IP; and in media, I discuss problems with Rand’s view at length on the Peter Mac show and at the Mises University this year; also The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism.

Then there’s Objectivist law professor Adam Mossoff who is writing a defense of IP, as mentioned in the Objectivist “Noodlefood” blog post An Objectivist Recants on IP??. Roderick Long informs us that “the Ayn Rand Society session at the APA is also devoted to intellectual property”–indeed it is, with the topic “The Normative Foundations of Intellectual Property: Two Perspectives,” having as speakers Adam Mossoff and Eric R. Claeys, both of George Mason University Law School, and chaired by Allan Gotthelf (University of Pittsburgh), on Dec. 28, 2009 (sadly, I’ll miss it, since I’m here skiing in Steamboat, Colorado. Wait, not so sadly). I’m eager to see Mossoff’s paper (and curious to see what Claeys has to say), but suspect it will be built on the fallacies and errors noted in posts above such as this Objectivist blog post and Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors.

Also noted in Roderick Long’s post is his upcoming Molinari Society IP symposium at the APA later this month (Dec. 29 , 2009), including Bob Schaefer’s “Response to Kinsella: A Praxeological Look at Intellectual Property Rights.” I’ve taken a look at Schaefer’s piece, and it’s not pretty. It’s just a mess. Roderick Long ably dissects just a few of its glaring flaws here.

(Aside: Long’s comments are really superb and insightful. A few comments. Discussing the IP comments of another author, Long writes, “a strong case can be made for thinking that Lockean principles must be substantially distorted in order to press them into service on behalf of IP”. Long backs this up very ably. In the same article he makes an illuminating distinction between three conceptions of “capitalism” that helps to dispel the confusion among both right and left in addressing this issue.)

The Objectivist approach is mired in a number of problems. It anchors property rights to the idea of “creation”; it requires legislation, and the state; it believes in some intrinsic value and some property right in value; it advocates utterly arbitrary and/or unprincipled, utilitarian finite lengths for IP; it rests on an arbitrary distinction between discovery and innovation. In a world where we took the ideas of the IP advocates seriously patent and copyright would have to have infinite duration. And the gaps in coverage would be fixed, and the state’s arbitrary exceptions fixed, such as the “fair use defense” to copyright. At present patent and copyright cover a statutory class of “inventions” and artistic works, respectively. Many logos, idea-patterns, “creations,” values are not protected at present. These include: perfume smells, the fashion industry, food recipes, certain business methods, databases (unoriginal but useful collections of information), abstract ideas such as mathematical algorithms, proofs, and techniques and physical laws. Under the ideas of the IP fanatics, there is no reason not to grant state-monopolies to these patterns too. And the term should not expire in 20 or 100 years–does your property to your house expire after some time limit? And why the utilitarian fair use exception? No principled case for IP could tolerate it.

I would love to see libertarian IP advocates have to live in a world that truly implemented their IP views fully, consistently–it would be like a communist USSR stripped of its power to ape Western price structures, to ameliorate the effects of communism. They would either die out, as the material world was strangled by an impossible nettle of ghostly IP-rights tendrils, or they would cry uncle. Even today, one imagines the cognitive dissonance of Objectivists living in our digital age–cutting and pasting, linking, learning and reworking ideas of others–all the while maintaining that all the things they themselves cannot but help engage in are “immoral” or some such tedious nonsense. I think of modern do-gooder environmentalists–they must feel pangs of guilt while flying on a jumbo jet to a friend’s wedding 2000 miles away, or to attend UN conference or job posting on another continent. They must wring their hangs in agonized guilt and indecision about whether to use styrofoam, paper, or a washable coffee cup. They must feel tremendous guilt whenever they discard a scrap of soiled napkin instead of recycling it. Environmentalist parents must feel terrible pangs of guilt at using disposable diapers (or they suffer by using cloth ones: either way, I am pleased by the thought of their discomfort). Likewise, when an Objectivist emails a vandalized picture of an apostate like Alan Greenspan to a friend they must be conflicted–wait, no, there’s a fair use exception! Thank Rand for the State and its wise laws!

Addendum:

Book Essay: The strange world of Ayn Rand

Control freak

One striking feature of Objectivism is it outspoken support of intellectual property. A key scene in Atlas Shrugged is where metallurgist genius Hank Rearden is compelled by the government to hand over his intellectual rights to his innovative metal alloy, and Ayn Rand acted in kind. She passionately used the copyright on her works to bar people from forming “John Galt Societies”, citing that the name John Galt is her creation and her intellectual property.

For a person bent on propagating her ideas to the maximum extent possible, this would seem eerily counterproductive. Stealing an object from someone is obviously depriving the original owner of his property, but copying it isn’t. It may or may not be harmful to potential income, but that income remains potential, in the realm of the unprovable. This is a debate that incites extreme passion.

While Objectivists, libertarians and conservatives strongly agree on the principle of physical property rights, the picture is much more divided when it comes to ‘intellectual property’, a catch-all phrase for several different items, including patents, copyright and trademarks. In a landmark essay by Stephan Kinsella, Against Intellectual Property, argues that ‘Intellectual property’ is not only meaningless and harmful, it is in direct violation of the general principle of private property, and primarily constitutes a state-sanctioned creation of artificial scarcity, leading ultimately to poverty, not job creation and wealth.

The wider libertarian movement accepted the argument, put it into action (see www.mises.org/books) and moved on. Objectivists, on the other hand, maintain that what Ayn Rand spoke and practiced on the subject remains the unalterable truth.

(See also on this Jeff Tucker, If You Believe in IP, How Do You Teach Others?.)

Archived comments (more):

{ 152 comments }

Bob Kaercher December 30, 2009 at 12:48 pm

Russ: How is using *my own computer* to download a film or a song the equivalent of initiating aggression, i.e., using a “baseball bat” or a “gun” to assault someone and/or invade their property?

Your analogy should be pointed in exactly the opposite direction. It is, in fact, the *IP PROPONENT* who is against property, since they think that a creator has some right to use a “gun” or a “baseball bat” against others for doing completely peaceful, non-invasive activities with their own property, e.g., using one’s own computer to download a song from the web. Such a definition of property is, in fact–regardless of whether the IP advocate can see it or not–*anti*-property.

And what Stephan said.

But I’ll leave off for now and let you have any last words. I don’t see much point in arguing with someone who seems to be desperately looking for kind of semantic loophole in someone else’s argument for who-knows-what reason.

Jesse Forgione December 30, 2009 at 1:46 pm

Russ,

Owning intellectual property amounts to owning one or more possible uses for physical property.
For any given piece of physical property, the more of it’s possible uses are owned by others, the less it’s owner is free to use it. He may only use his physical property in ways that remain unclaimed or in ways that he himself owns which others who own similar property may not use (without his permission). If we follow IP to it’s extreme conclusion where all possible uses are owned, we reach the state where no two people may make the same type of use of similar physical property without one getting the permission of the other. If someone owned a piece of physical property, but none of it’s possible uses, he could not be said to own it in any meaningful way.

In principle, to own a method or pattern is to have a degree of control over all the physical property that exists. To the degree that the various possible uses of others’ property can be owned, those others are not it’s owners.
Let’s imagine I use my own materials to build a house of my own design. You, my neighbor, own similar materials, and seeing my method of building, you imitate my design for your own house. Now either I am justified in knocking your house apart to take back my intellectual property or I’m not. If IP is valid you have stolen my pattern and I should take steps to get it back. If IP is not valid than I’m a vandal violating your property rights. But we can’t both be right. Either I control the pattern you arrange your property in, or you do. If it’s the former, than you cannot really be said to be “owning” your physical property. This would amount to the fascist model where there is nominal private property but the state controls what can be done with it, rendering the “ownership” meaningless.

Also, there’s no reason in principle that IP couldn’t be applied to broader, more general or more obvious ideas. What if I owned not just the design of a specific car, but the very idea of a car? …or the very idea of mechanical transportation? …or the wheel? The difference is only in degree.

Jesse Forgione December 30, 2009 at 1:56 pm

Russ,

Sorry, I should have indicated that the above is in response to:

“Once again, no, IP does not negate classical property rights.”

Peter Surda December 30, 2009 at 1:58 pm

Hi Russ,

thanks for the reply. Yes, I believe in “sort of” property rights in EM and explained my position to Silas several times. I think since the last time I explained it I was able to think of a more coherent approach.

In my opinion, a property infringement means that the integrity of the property is compromised. I didn’t actually come up with the idea, it is one of the known libertarian approaches. In the case of EM, a sender can under certain circumstances cause disruptions in the recipients of other sender’s broadcast. I.e. the integrity of the reception is compromised. This can be prevented (by the second sender) for example by using a different frequency or by agreeing with the first sender to a transmission protocol that allows bandwidth sharing.

An analogy would be that the senders are producers and the recipients consumers. With IP, the provisioning of services by competing producers do not prevent each other. With EM, in certain cases, they do.

The analogy I gave to Silas was spraying a wall. Two sprayers can spray on the same wall in parallel, however the wall can only show one picture at a specific time.

Now, I have not come to the conclusion if it’s the sender or the recipient that “own” the EM spectrum. Arguments can be made with regards to both. Possibly it is a mix of those. Nevertheless, at least one of them has a right to prevent an unwanted sender from disrupting the reception. In some cases, that means they can’t send at all. But it is not the prevention of sending that is the core issue, rather prevention of disruption of reception. If the sender can somehow manage to send without disrupting the reception of another broadcast, there is no infringement.

Stephan Kinsella December 30, 2009 at 6:14 pm

Peter Surda: “I agree with Russ. Presented the way Stephan does it is circular logic. Please remember, both Russ and I are IP opponents. We do not oppose Stephan’s conclusions, merely consider the argument insufficient.”

Peter, I don’t think it’s circular because our view of property rights is grounded in a Lockean homesteading view as applied to scarce resources. Under that view you can perform any action you want so long as you do not invade the borders of (i.e., change the physical integrity of) another’s Lockeanly-owned scarce resource, without his consent. How is this circular?

And given this view, to oppose the use of my scarce resource by another, without my permission, is not circular either.

A consequence of this view is that you may use force to prevent others from committing such invasion. But other types of force would then necessarily be trespass, aggression. Force that is not consented to may be used only in response to trespass, otherwise it is trespass.

Now, the IP idea says that A may use force against B, if B is using B’s scarce resources according to a certain pattern that A claims some “right” to. In other words, A claims a right to use force against B, even though B never did perform any action that invaded A’s scarce resource, even though B never did change the physical integrity of A’s property.

That is why A’s claimed right to force is wholly unjustified and is indeed incompatible with the libertarian conception of property rights in scarce resources. We believe every scarce resource should be assigned an owner, based on Lockean principles. IP would set up a second rule for assigning property rights to scarce resources.

Bala December 30, 2009 at 7:05 pm

Bob Kaercher,

I know you posed this question to Russ, but since I seem to agree with him, I thought I’ll reply.

” How is using *my own computer* to download a film or a song the equivalent of initiating aggression, i.e., using a “baseball bat” or a “gun” to assault someone and/or invade their property? ”

If IP is valid, the very meaning of it is that the patent/copyright holder alone has the right to instantiate the idea/pattern. The very act of instantiation by someone else is an initation of force against the “owner”.

In typical Objectivist argumentation, the very existence of the idea/pattern being owed to the creator, there is no excuse anyone can give for claiming that they could not have known that someone created the idea. This is similar to saying “Once you have put a fence to your land, there is no way any person can fail to understand that it is your property”.

Whenever anyone asks “How do you put a marker to show that an idea is owned”, an Objectivist would respond saying that you probably do not even understand the metaphysical nature of ideas – that they cannot come into existence without a creator and that their very “existence” is their “identity” (more Objectivist language, in case you are unfamiliar). You will promptly be labelled “concrete-bound”.

Just as any person crossing a fence without your permission is guilty of initiating force against you, any person copying an idea is then considered guilty of wilfully ignoring the “metaphysical reality” of ideas and initiating force against the creator (who is the “owner”).

In this case too, it is the action of instantiating that which is clearly someone else’s idea that is a violation of his “property rights” just as the action of swinging a baseball into my face is a violation of my “right to life” or the action of invading my land is a violation of my “property rights”. In all 3 cases, it is the action that is being restricted. If…. that’s a big IF…. both classes of property rights (physical and intellectual) are valid, someone who disagrees with the “use” of force to defend one has to necessarily disagree with the use of force to defend the other.

Therefore, Russ is right that if you accept the validity of IP, copying is tantamount to invasion of owned land. Similarly, if you reject IP protection, you should reject physical property protection too on the same grounds.

Bala December 30, 2009 at 7:16 pm

Stephan,

” I don’t think it’s circular because our view of property rights is grounded in a Lockean homesteading view as applied to scarce resources. ”

It is because the basic Objectivist argument for IP does question the validity of the application of the Lockean homesteading view to ideas & patterns and then citing their lack of “scarcity” as the reason to say that they are not “property”.

Further, Russ’s point was “If IP were valid…..”. A response that says “Since IP is invalid…..” and then goes on to say that force is used to protect the “invalid” right and that that is further grounds to consider the right invalid, one is indeed guilty of engaging in circular reasoning.

This error is what I meant when in some other post, I said that your arguments are too libertarian. I can clearly see why most Objectivists will not agree with you and why any arguments you have with them turn heated and end in name-calling. You call them “wilful aggressors” and they call you “concrete-bound”.

Bala December 30, 2009 at 8:17 pm

Peter Surda,

” In the case of EM, a sender can under certain circumstances cause disruptions in the recipients of other sender’s broadcast. I.e. the integrity of the reception is compromised. ”

I was thinking on slightly different lines but came to similar conclusions. My thinking was that when I send a message on a frequency, the message is my property just as much as a letter I have sent out in the custody of a courier is my property till it is delivered to the recepient.

On these lines, my conclusion was that it is not the EM spectrum itself that is owned but the message that is being broadcast on it. Therefore, anyone broadcasting a signal that distorts my message (meaning it would have to be on the same frequency) is violating my property rights.

Interestingly, I was coming to the same conclusion that if the second user of the same frequency could use it without distorting my message, there would be no property rights violation just as your sending a letter through the same courier does not violate the property right I have in the letter I send.

Does this make sense? Is it simple to understand?

Silas Barta December 30, 2009 at 10:10 pm

Looks like Peter_Surda and I have a rare agreement on this issue.

@Stephan_Kinsella:

Peter, I don’t think it’s circular because our view of property rights is grounded in a Lockean homesteading view as applied to scarce resources. Under that view you can perform any action you want so long as you do not invade the borders of (i.e., change the physical integrity of) another’s Lockeanly-owned scarce resource, without his consent. How is this circular?

This has been explained to you several times by now, but let’s try it again a different way. The circularity lies in your assumption about which rights you gain by doing how much homesteading, and it is in no way obvious how the rights must work the way you think they do.

Say I homestead a plot of land. How far above and below does that homesteading entitle me to? Yes, you can justify a specific amount, but that’s the point: you have to justify why your rights extend to that boundary (abstract or otherwise), not just assume that your land ownership implies ownership of the airspace through which planes fly, and then argue that “airplanes necessarily violate the property rights in already-owned land” … which, when you think about it, is pretty much what your IP case is.

But that’s just the beginning: does homesteading the land entitle you to block (non-nuisance) concentrated sound waves from passing through your land (e.g. ultrasound)? And of course, back to the ol’ chestnut: does the land ownership entitle you to block every single frequency of the EM spectrum passing through?

Now, there are many cases where you can assume that homesteading entitles you to certain rights. However, here, the very debate is about which rights you are morally entitled to by virtue of homesteading what. And in that case, it is in fact circular to assume a certain level of homesteading-based rights, since you’re trying to prove what the homesteading-based rights are in the first place, which people dispute!

Note that since this is the central argument of Against Intellectual Property, its circularity isn’t very encouraging when judging its merit as an argument against IP.

Andras December 31, 2009 at 12:48 am

Not to mention that the act of homesteading itself is totally arbitrary. How do you homestead a land. Setting the horizontal size of it is as arbitrary as the vertical size. Fencing it? Who are you kidding?
At least a composition of matter patent is unambiguous.

Russ December 31, 2009 at 5:08 am

Bob Kaercher wrote:

“Russ: How is using *my own computer* to download a film or a song the equivalent of initiating aggression, i.e., using a “baseball bat” or a “gun” to assault someone and/or invade their property?”

I’ve already explained that several ways later on in this thread. I said that *IF* IP rights were valid, then using your computer to violate my IP rights would be initiating aggression. Or, if a person’s rights to EM spectrum were valid (which I believe they are), then using your transmitter to violate my EM spectrum rights would be initiating aggression.

“Your analogy should be pointed in exactly the opposite direction. It is, in fact, the *IP PROPONENT* who is against property, since they think that a creator has some right to use a “gun” or a “baseball bat” against others for doing completely peaceful, non-invasive activities with their own property, e.g., using one’s own computer to download a song from the web. Such a definition of property is, in fact–regardless of whether the IP advocate can see it or not–*anti*-property.”

Here you are assuming that which you wish to prove, just like Stephan is. Note the words “completely peaceful, non-invasive activities”. You are *assuming* that using a computer to download a song is a completely peaceful, non-invasive activity. But an activity is only completely peaceful and non-invasive if it does not violate rights. So, by assuming that using your computer to download a song is a completely peaceful and non-invasive activity, you are implicitly assuming that it does not violate rights, which implicity assumes that IP rights are invalid. A Randian would call what you are doing the fallacy of the smuggled premise.

“But I’ll leave off for now and let you have any last words. I don’t see much point in arguing with someone who seems to be desperately looking for kind of semantic loophole in someone else’s argument for who-knows-what reason.”

I’m pointing out what I believe to be a logical flaw in your argument, not looking for “semantic loopholes”. The reason why I am doing this is that I think your argument is both a flimsy argument against IP and a possible (although also flimsy) argument against classical property!

@Jesse Forgione:

I have already argued some of my points elsewhere in this post or thread, so I’ll let those speak for themselves. My comment to you specifically on your last post is that you seem to be going for a sort of reductio ad adsurdem argument against IP. The only problem with using reductio ad adsurdem arguments in philosophy is that some philosophers, being the armchair types they are, won’t find the conclusions absurd! Why not stick to the scarcity argument against IP? It’s perfectly reasonable, and once you have one disproof of the validity of IP, do you really need another?

Stephan Kinsella wrote:

“…I don’t think it’s circular because our view of property rights is grounded in a Lockean homesteading view as applied to scarce resources. Under that view you can perform any action you want so long as you do not invade the borders of (i.e., change the physical integrity of) another’s Lockeanly-owned scarce resource, without his consent. How is this circular?”

It’s not the scarcity argument for the validity of property that I think is invalid. I agree with this. I believe that the circularity is actually in another argument, which you seem to be melding together with your scarcity argument. This is the same argument that Bob Kaercher and Jesse Forgione are using without the scarcity argument to prop it up.

That second argument is that IP is invalid, because enforcing it violates the property rights of classical property owners. But it can’t be said that enforcing IP violates the rights of classical property owners, unless IP is invalid. Therefore, this argument implicitly assumes that which it intends to prove. As I said before, it is a smuggled premise.

@Peter:

However you want to slice the EM rights thing is irrelevant to my argument, I think. The main thing is that we agree that somebody has a right to use force to prevent a second sender from using his classical property (his transmitter) to interfere with the reception of a signal sent by a first sender. As long as we agree on that, we both agree that there is a case of “overlap” between classical property rights and a newer form of property right (EM spectrum rights), where the newer form rightly wins. That being the case, you should have no objection to overlap in general, hence the overlap argument against IP fails, IMVHO.

Peter Surda December 31, 2009 at 5:34 am

@Russ:
I believe you commit the same logical error as Silas does when arguing for similarity between EM and IP. In EM, it is not the overlap on the sender side that is the cause of the alleged infringement, rather the overlap on the receiver side. More accurate analogy to the IP case would be if person A was sending signal to person B (potentially A and B are the same), with both A and B’s agreement, instead of B receiving the broadcast by person C, and that was alleged to cause an infringement of C’s rights.

If one was to make that claim, one could also claim that preventing person A shooting his gun in a way that the bullet leaves person A’s premises and hits person B is equivalent to IP.

Russ December 31, 2009 at 8:12 am

@Peter:

I’m afraid I don’t understand your last post at all. Maybe not enough caffeine on my part? I’m not sure I understand your overlap theory completely, and I am trying to organize my thoughts on it as I am writing, so bear with me.

My understanding of your theory is that IP would be wrong because there is an overlap of rights with respect to a single object; a CD, for instance. Person A owns a CD, but person B owns the software on the CD, and thus could rightfully use force to prevent A from using his CD as he wishes, if that use violates B’s IP rights. You see this as a contradiction due to the overlap of rights, and thus as a disproof of IP, am I right? I don’t see it as a contradiction, and hence don’t see it as a disproof of IP. The reason I don’t see it as a contradiction is because B using force to prevent A from using his CD in any way he wishes, is in principle no different from me using force to prevent you from using your classical property any way you wish (i.e. using your bulldozer to crush my house). It’s the same with EM spectrum rights. It doesn’t really matter what side the overlap is on, receiver or transmitter (although I can’t see how EM spectrum rights could work if the “homesteading” trasmitter owner didn’t own the rights). All that matters is that *somebody* has the right to use force to prevent somebody else from using his classical property (his transmitter) as he wishes. This is an overlap of EM spectrum rights over classical property rights, since it prevents a second transmitter owner from doing with his own transmitter as he would like, but it’s still valid.

In fact, I would argue that since all property rights involve limitations of what others can do with their own property, all property rights involve overlap, in a sense. Hence, the overlap doesn’t invalidate anything, or all property rights would have to be thrown out the window. I would also argue that your overlap theory is just a more sophisticated packaging of the “IP violates classical property rights, therefore it’s invalid” argument.

Peter Surda December 31, 2009 at 9:27 am

@Russ:

I think you misunderstand me. Apparently my arguments are harder to explain than I anticipated.

You are correct in that overlaps are nothing specific for IP or EM. Which is why abandoned the circular reasoning. Yes, ownership overlaps can also happen if you have purely physical property only, and you are also limited in what you can do with physical property even without IP. Let’s split the argument into two parts.

Overlap: it is my observation that in case of an overlap, the more abstract aspect always takes precedence. The overlap prohibits (from legal perspective) the owner of the less abstract aspect from using it, but the owner of the more abstract aspect is not prohibited from using it. If you only have physical property, for the duration of the overlap both sides are prohibited from using their aspects. If I mix physical objects that do not belong to me (e.g. cheese omelette from stolen eggs & cheese), this prevents all owners equally from using the results (absent agreement).

While (hypothetical) ownership of immaterial properties can lead to prohibition of using physical objects, it doesn’t work the other way around. The more abstract takes precedence. Patents > copyright > physical. Ownership of the lower layer becomes insufficient justification for its usage, there is always an overlap between the layers. This is the core of my argument.

Limits: I don’t think this is an argument I can make within the creation theory of property, from that point of view all limitations whatsoever are irrelevant. I can only show the difference if property is interpreted as a right to integrity.

Stephan Kinsella December 31, 2009 at 9:47 am

Russ:

“It’s not the scarcity argument for the validity of property that I think is invalid. I agree with this. I believe that the circularity is actually in another argument, which you seem to be melding together with your scarcity argument. This is the same argument that Bob Kaercher and Jesse Forgione are using without the scarcity argument to prop it up.

That second argument is that IP is invalid, because enforcing it violates the property rights of classical property owners. But it can’t be said that enforcing IP violates the rights of classical property owners, unless IP is invalid. Therefore, this argument implicitly assumes that which it intends to prove. As I said before, it is a smuggled premise.”

I am not sure this is right. You say, “But it can’t be said that enforcing IP violates the rights of classical property owners, unless IP is invalid.” But it seems to me you can say that “enforcing IP violates the rights of classical property owners, IF classical property is valid.”

Russ December 31, 2009 at 10:14 am

Peter Surda wrote:

“I think you misunderstand me. Apparently my arguments are harder to explain than I anticipated.”

Yes, they are difficult. The medium we are using to communicate is not as good for “dialoguing” about this as a face-to-face talk would be, but what can be done?

“While (hypothetical) ownership of immaterial properties can lead to prohibition of using physical objects, it doesn’t work the other way around. The more abstract takes precedence. Patents > copyright > physical. Ownership of the lower layer becomes insufficient justification for its usage, there is always an overlap between the layers. This is the core of my argument.”

That this abstraction layer exists is a valid point, because it has to be that way. If IP or EM rights could be derived from classical property rights, there would be no abstraction layer issue. The fact that IP cannot be derived directly from classical property rights (AFAICT) means that IP or EM rights must necessarily be on a different layer of abstraction. This is where some people here fall down, IMO. They insist that only the classical property level is valid, and IP is valid only if it is derivable from classical property rights. It is not so derivable, hence IP is invalid. But assuming that *only* the classical layer is valid is when the smuggling of premises comes into play. If you assume that 1) only the classical layer is valid, and if 2) IP is not derivable from the classical layer, then you have implicitly baked your conclusion into your premises. One could argue that this is what logic is, and what can be done? What can be done is to prove the first premise, which these people don’t do.

That the layers exist, if IP is to exist, I agree with. That the IP layer must override the classical layer for IP to make sense, I agree with. That this somehow invalidates IP, I don’t agree with. Here’s why:

From a previous thread:

Peter Surda wrote:

“The point is that IP creates a dual reality scheme. There is the physical layer, and immaterial layer. These necessarily overlap, and the overlaps cause dual ownership. Therefore, they cannot both be valid at the same time. Since the IP proponents claim that the immaterial ownership takes precedence, that invalidates (classical) property rights.”

I object to the “therefore” part above. Yes, IP prevents a CD owner from using it in any way he might like. It does not, however, prevent him from using it in any way whatsoever. For instance, he could use it to install the software on it, in agreement with the IP owner’s terms of use. He could use it as a coaster. He could use it as a frisbee. He could, in short, use it in any way that does not violate the IP owner’s rights. This is no different than with classical property rights. I can use my gun to target shoot with on my own land. I can use it to hunt deer on my own land. I can use it as a decoration over my mantel piece. I cannot, however, use it to shoot your dog, because your property rights limit me from rightly doing do. What you are saying is equivalent to saying that your right to your dog means that my right to my gun is invalid. It is not invalid, it is only limited. I don’t see how the creation theory gives an IP owner unlimited rights over the CD, only over very specific uses of it.

Stephan Kinsella December 31, 2009 at 10:22 am

Andras: “Not to mention that the act of homesteading itself is totally arbitrary. How do you homestead a land. Setting the horizontal size of it is as arbitrary as the vertical size. Fencing it? Who are you kidding?”

HEy, even dogs are smart enough to recognize territory. It’s a wonder some libertarians are not.

Russ December 31, 2009 at 10:48 am

Stephan Kinsella wrote:

“… it seems to me you can say that “enforcing IP violates the rights of classical property owners, IF classical property is valid.”

Certainly, enforcing IP would violate the rights of classical property owners, if classical property rights always “trump” IP rights. But assuming that classical property rights are the trump suit is quite an assumption. It is basically assuming that which you want to prove. If, on the other hand, you assume that IP trumps classical property rights, then enforcing IP certainly does not violate classical property rights. As I said in my last post to Peter, since IP rights cannot be derived from classical property rights (at least I can’t see how), then it seems to me that for the extension of the concept of property called IP to be enforcable at all, assuming that IP trumps classical property rights would be necessary.

I don’t think this requires throwing out classical property rights, though. Enforcing IP would not mean completely negating *all* property rights to pieces of classical property; CDs, for instance. It would just *limit* the uses that the owner of the CD can make of it, just as my classical property rights limit the uses that others can make of their property. If you try to throw out the idea of property rights *limiting* the rights of others to use their own property, you effectively throw out the whole concept of property rights, AFAICT.

This is where I think Silas has a valid point. If classical property rights trump the extension of the concept of property called IP, then why doesn’t it also trump the extension called EM spectrum rights? If classical property rights are indeed the trump suit, then EM spectrum rights should also be invalid. After all, for EM spectrum rights to be enforcable, they would also have to trump classical property rights (i.e. the right to use a transmitter that interferes with homesteaded bandwidth), AFAICT. If you say that EM spectrum rights trump classical property rights, then you are admitting that some extensions of the concept of property can trump classical property rights. You can’t then say that any trump of classical property rights by an extended form of property right is invalid, because you’ve just admitted that it is valid in one case. In order to preserve the “can’t trump classical property rights” argument, you’d have to 1) throw out EM spectrum rights (thus consigning yourself to perpetual crankdom *grin*), or 2) somehow derive EM spectrum rights from classical rights, which I don’t think can be done.

Silas Barta December 31, 2009 at 11:18 am

Trying again, because I got a message that my comment is being help up for approval, probably because it was too long. Heres a shorter version:

@Stephan_Kinsella:

You say, “But it can’t be said that enforcing IP violates the rights of classical property owners, unless IP is invalid.” But it seems to me you can say that “enforcing IP violates the rights of classical property owners, IF classical property is valid.”

That’s still circular, because you’re assuming specific boundaries of classical property, which are the very matter in dispute, and which are far from obvious. Does classical property entitle you to the air above the land up to 60,000 feet?

Stephan Kinsella December 31, 2009 at 11:32 am

Russ:

“… it seems to me you can say that “enforcing IP violates the rights of classical property owners, IF classical property is valid.”

Certainly, enforcing IP would violate the rights of classical property owners, if classical property rights always “trump” IP rights. But assuming that classical property rights are the trump suit is quite an assumption.

But it’s not circular. It follows from the *Lockean* conception of homesteading applied to scarce resources. It may be unjustified, wrong, poorly argued, but it’s not circular.

Silas: ” You say, “But it can’t be said that enforcing IP violates the rights of classical property owners, unless IP is invalid.” But it seems to me you can say that “enforcing IP violates the rights of classical property owners, IF classical property is valid.”

That’s still circular, because you’re assuming specific boundaries of classical property, which are the very matter in dispute, and which are far from obvious.”

It’s not circular. You disagree with the Lockean-libertarian conception of property rights, perhaps, just as a criminal or socialist does too-so we have a disagreement. But that does not make my position circular.

Silas Barta December 31, 2009 at 12:21 pm

@Stephan_Kinsella: Where does the Lockean position imply that rights to land only extend to e.g. 30,000 feet? Where does it say that you get the rights to block EM radiation of 4 THz (light) but not 100 MHz (radio waves)? The Lockean position isn’t clear on this, so it can’t be used as proof that your property rights include IP rights.

To prove that without circularity, you would have to go back to the original Lockean justification of property rights, to all the premises for the argument, and establish exactly *which* homesteading acts entitle you to *which* uses, which requires a much finer-grained analysis of the origin of property rights than you gave in your paper, or, to my knowledge, that you have ever provided anywhere.

And that’s a lot of work, don’t you think?

Beefcake the Mighty December 31, 2009 at 12:42 pm

Speaking of 60,000 feet, that’s the height I’d like to see Silas dropped from.

Let’s make it our New Years resolution to ignore this twisted little ass-hat, deny him the attention he so clearly craves.

Silas Barta December 31, 2009 at 12:48 pm

Clearly inappropriate comment from Beefcake_the_Mighty, can we get a deletion over here please?

Andras December 31, 2009 at 12:49 pm

Stephan Kinsella:
“HEy, even dogs are smart enough to recognize territory. It’s a wonder some libertarians are not.”

Dogs are domesticated animals. They do what their master says. Wild dogs have an alpha for the pack and between packs territorial fights set the boundaries. However, people has no instincts, an universal code to set their behavior. The situation for people resembles to the jungle where different species try to set their boundaries without a universal code. They have anarchy. The situation is not “nice”, some consider the other “food”.
I hope this is not what you plan for us.

Russ December 31, 2009 at 1:15 pm

Stephan Kinsella wrote:

“But it’s not circular. It follows from the *Lockean* conception of homesteading applied to scarce resources. It may be unjustified, wrong, poorly argued, but it’s not circular.”

Stephan,

The meat of your earlier post was:

“enforcing IP violates the rights of classical property owners, IF classical property is valid.”

The above says nothing about Lockean theory, one way or the other. It just says that if classical (material) property rights are valid (for whatever reason), then enforcing IP violates the rights of material property owners.

Also, I never said that the quote above is circular; I said that an earlier formulation of yours was circular. I said that the above quote assumes that which you want to prove.

Also, how would you respond to this:

“enforcing EM spectrum rights violates the rights of classical property owners, IF classical property is valid.”

???

I recall that you approve of EM spectrum rights, correct? If so, then you must believe that it is OK to use force to prevent others from using their classical (material) property when that violates EMP (EM ‘P’roperty) rights, even though EMP rights are not compatible with classical (material) property rights. After all, radio transmission does not involve using a slot in the ether which can be homesteaded like land can be. It involves emitting photons, which can travel through empty space. The whole idea of “homesteading” EM spectrum is a sort of legal fiction. The “spectrum” itself, from a homesteading point of view, is a legal fiction. In reality, there is no “spectrum” out there to be homesteaded; all there is is photons, being transmitted by transmitters and being received by receivers. If you enforce EMP rights, you are then violating somebody’s property rights, according to the classical theory, because EMP rights cannot be based on the homesteading of something real.

In order to accept EMP rights, you must extend the concept of property beyond the classical formulation. If you think it’s OK to extend the concept in this case, then you are apparently not opposed to the idea of extending the concept in general. Therefore, you can’t say “IP is wrong, because enforcing it would violate the classical concept of property”. This is equivalent to saying “IP is wrong, because in order for it to be rightfully enforcable, it would require extending the concept of property”. But so does EMP, and you think EMP is OK. There must be another reason why IP is invalid.

My reason for accepting an EMP-extended concept of property is that it is necessary for radio transmission to be useful, not because EM spectrum can be homesteaded like classical property (it cannot; that’s a legal fiction). My reason for rejecting an IP-extended concept of property is not that such an extension is wrong in principle, but simply that it is unnecessary, since ideas and patterns don’t need such protection to be useful.

Stephan Kinsella December 31, 2009 at 2:26 pm

Andras: the point is not that dog fight over territory. It’s that even dogs can *recognize* (a crude version of) property boundaries.

Russ et al.: You guys are getting too fancy for your own good. The basic libertarian view is simple: if there is a scarce resource–something that might be contested because of its rivalrous nature–the libertarian view is that the Lockean-homesteader, or his descendant in title, has property rights in it–the right to right to exclude others, to grant or deny them permission to use it. That is all.It does not mean you can do “anything” with it for the simple reason that you are not permitted to do anything you want–you hav a right to engage in whatever actions you want except those that invade others’ property. This basic formulation does not answer all the gray areas or procedural or epistemic issues, but that does not make this a “circular” idea, Silas. but it is the libertarian idea.

Given this idea the only acts that are prohibited are that that use others’ property without their consent. A continuum issue might arise with somehting like sound or smell: a little bit is permissible, too much interferers w/ your neighbors’ use of their property, so is an invasion. This is a continuum issue.

But IP is not. There is no conceivable argument whereby A’s peaceful use of his own property–fashioning it into certain shapes, using it according to certain recipes or steps–invades the borders of others’ property. This is not circular. It follows directly from the Lockean libertarian conception of the very nature, purpose, and justification of property rights.

Bala December 31, 2009 at 2:33 pm

Stephan,

” It follows from the *Lockean* conception of homesteading applied to scarce resources. It may be unjustified, wrong, poorly argued, but it’s not circular. ”

Russ has already handled the “circular” part. So, I’ll stick to the “poorly argued” part because that has been a long-standing problem of mine.

There is a fundamental problem with having the Lockean conception of homesteading applied to scarce resources – you CANNOT apply them to entities that are not scarce by their nature. Since ideas and patterns are not scarce, you cannot even honestly apply this principle to them because that they will fail to meet the criteria is obvious to the lowest of intelligences. To then say that that is the reason for refusing to acknowledge them as property is equally ridiculous.

That is why you need to go beyond the Lockean conception of “property” and develop a whole new theory of “property”. Any such theory has to be based on a proper understanding of nature – that of man and of the objects to which we would be applying the label – and should be derived through a process of reasoning starting from self-evident axioms.

That’s what the Objectivists claim to do though I am quite confident that their approach uses some flawed ideas mid-course to justify labelling ideas and patterns as “property”.

You will need to do that too. If and while you do that, I think there is a lot in the Objectivist framework that gives an extremely good starting point, especially the definition of man, his nature and the very concept of “rights”. In particular, I find the idea that all “rights” are “rights to action” particularly fascinating because that, IMO, is where in the inductive process, ideas and patterns lose all claims to the status “property”.

(That’s also why I have NOT sloughed off Objectivism and still claim that I am an Objectivist.)

” You disagree with the Lockean-libertarian conception of property rights, perhaps, just as a criminal or socialist does too-so we have a disagreement. ”

No. I am (and I think Russ too is) saying that the Lockean-Libertarian conception of property rights is not applicable to all categories of entities to which the label “property” is being attached. Hence, there is a need to expand it by going to its root and starting inductively all over again.

Bala December 31, 2009 at 2:43 pm

Stephan,

” There is no conceivable argument whereby A’s peaceful use of his own property–fashioning it into certain shapes, using it according to certain recipes or steps–invades the borders of others’ property. ”

There is a conceivable argument (though I think it would be flawed for reasons very different from what you cite) and I think you are not even recognising it, leave alone trying to understand it.

You are insisting on forcing your premises (Lockean conception of “property”) on everyone else, even on those who think there ought to be a different basis because the Lockean basis is not good enough.

Here’s another reason why you are excluding (incorrectly) ideas & patterns from your analysis – they cannot be “homesteaded” because to be “homesteaded”, they must be in existence prior to the act of “homesteading”. Ideas & patterns need to be brought into existence first and the “creator” does just that.

Jesse Forgione December 31, 2009 at 2:46 pm

I don’t agree that EMP rights require extending the classical concept of property. A transmission, unlike the information itself, is physical. The message from the sender to the receiver is in the form of a sequence of photons. Blocking or otherwise damaging a transmission is no different from damaging someone’s mail. “Homesteading” a frequency would simply mean you were the transmitting your message first, and the latecomers are the ones interfering with it and damaging it.

Bala December 31, 2009 at 3:06 pm

Jesse Forgione,

” Blocking or otherwise damaging a transmission is no different from damaging someone’s mail. ”

This part I agree with and have stated so.

” “Homesteading” a frequency would simply mean you were the transmitting your message first, and the latecomers are the ones interfering with it and damaging it. ”

Not if one figures out a way of sending multiple messages on the same frequency without one message distorting the other.

Russ December 31, 2009 at 3:10 pm

@Jesse:

One problem with your argument is that a second transmitter does *NOT* block transmissions from the first transmitter. The receiver receives *both* transmissions. Unfortunately, it receives them as one waveform that is the superposition of both messages, and cannot separate them.

Another problem is that since the message is transmitted through the space in between the transmitter and the receiver, what says that the transmitter has the right to send the photons through the intervening space, if he doesn’t own all that space?

Peter Surda December 31, 2009 at 3:13 pm

@Russ:
> The fact that IP cannot be derived directly from
> classical property rights (AFAICT) means that IP
> or EM rights must necessarily be on a different
> layer of abstraction.
I am not sure I can prove the difference between IP and EM within the context of IP proponents’ assumptions. I can only do that by using the “property = integrity” definition. In this context, the concept of layers is irrelevant.

> I object to the “therefore” part above.
You have a valid point, I think the “therefore” was premature. I’ll think about a way to prove that some other way.

@Stephan:
You have proven that the definition of property via scarcity is incompatible with IP. I hope I won’t sound too rude if I say that this is nothing new. What however Bala, Russ and I are trying to achieve is to prove that the IP proponents’ premises lead to contradictions. At least that’s what I am trying to do. That’s much harder. I agree that your definition of property (via scarcity) is correct, I arrived at essentially the same one via multiple routes. However, I want to prove that this definition is not a premise, but a conclusion, by showing that other definitions are self-contradictory or useless.

Bala December 31, 2009 at 3:19 pm

Peter Surda,

” However, I want to prove that this definition is not a premise, but a conclusion, by showing that other definitions are self-contradictory or useless. ”

I agree. That is precisely my point too. If Stephan’s objective is to take on the (philosophically) strongest proponents of IP, then he needs to take on the Objectivists. To do so, he needs to start from their premises and show how ONLY entitites that are scarce by their very nature OUGHT to be treated as “property”.

Jesse Forgione December 31, 2009 at 3:41 pm

@Bala,

“Not if one figures out a way of sending multiple messages on the same frequency without one message distorting the other.”

I agree with that, but I don’t see how it’s an objection. The reason I put quotes around the word “homesteading” is because it’s not exactly the right word for the right to not have your property damaged in transit, provided it is not already infringing on another’s property.

@Russ,

The first problem is silly. I’m sure you’ll agree that if I mix feces into your food, it’s been damaged, and has become unusable.

The second problem only exists if the transmission is somehow infringing on someone’s property, which is not the case so long as it doesn’t interfere with the usefulness of said property to it’s owner. This is also important for the people who were talking about arbitrary heights above someone’s land. For more on this point I’ll refer you to Rothbard: http://mises.org/daily/2120

Russ December 31, 2009 at 4:36 pm

Stephan Kinsella wrote:

“But IP is not. There is no conceivable argument whereby A’s peaceful use of his own property–fashioning it into certain shapes, using it according to certain recipes or steps–invades the borders of others’ property. This is not circular.”

This circularity thing really bugs you, doesn’t it? Fine, I’ll take it back. I still think that your argument is a smuggled premise, i.e. you are implicitly assuming that which you wish to prove.

Here is what I understand your argument in your last post to be, in a nutshell:

Premise 1) The only valid theory of property is the Lockean homesteading theory of property.

Premise 2) IP cannot be derived from Lockean homesteading theory.

Conclusion) Therefore, IP cannot be enforced without violating property rights. Therefore, IP is invalid.

If the premises are true, then the conclusion is true, I’ll grant you. But the first premise is not obviously true. By taking it as a given, you are basically assuming all the rest.

Let’s go back to the quote above, which I’ll repeat part of:

“…There is no conceivable argument whereby A’s peaceful use of his own property–fashioning it into certain shapes, using it according to certain recipes or steps–invades the borders of others’ property. …”

Let’s say A fashions his own physical property into a machine. Then he uses the machine to emit “Barta rays” to a machine that Z built which is designed to detect Barta rays. B builds a machine similar to A’s, and also emits Barta rays. Z’s machine also detects these. Z would rather that B’s machine not emit Barta rays, because the Barta rays that A’s machine is emitting are modulated into a message that Z wants to receive, and B’s Barta rays are interfering with this. Nonetheless, B is not doing anything that invades the borders of Z’s *physical* property. Nothing B’s machine is doing is damaging either A’s or Z’s machines. And neither A nor Z has a real right to expect that only A can use his Barta ray emitter, or that Z can receive the message. Therefore, neither A nor Z really has a right to make B turn off his machine.

Then along comes a lawyer. He notes that Barta rays exist in a range of frequencies. He says, “What if we call this range of frequencies ‘Barta space’? Then we can pretend that Barta space is like real space; then it can be homesteaded and owned!” Voila, the concept of Barta space property, or BS property, is born!

The lawyer gets the government to enforce BS property rights. Pretty soon Barta ray emitters and detectors are everywhere, become a significant part of the economy, and people can’t imagine living without them.

Then another person, C, comes up with a machine he calls a “pattern manipulator”. It turns out that a pattern manipulator, if configured with the proper patterns, can do many useful things. He comes up with a really useful pattern. The only problem is, people get copies of this pattern from their friends instead of paying C for them, and this puts a real crimp in C’s business plan. But C can’t stop them. After all, if people make their own pattern manipulators out of their own property, then they can do what they want with them, right?

Along comes the lawyer again. He says, “What if we say that the set of all possible patterns is part of ‘pattern manipulator space’? Then we can pretend that pattern manipulator space is like real space, and can be homesteaded and owned!” Voila, pattern manipulator space rights, or PMS rights, are born!

Now, what is the essential difference between BS rights and PMS rights? After all, they’re both just legal fictions, that don’t involve homesteading a real space or piece of material property. If one is OK, why not the other?

(BTW, no offense was intended to Mr. Barta. All was written in the spirit of good, clean, silly fun.)

“but it is *THE* libertarian idea.” (emphasis added)

Ahem. No. It is *A* libertarian idea. It’s amazing how *THE* libertarian ideas always seem to agree exactly with what you happen to believe.

Silas Barta December 31, 2009 at 4:41 pm

@Stephan_Kinsella:

-the libertarian view is that the Lockean-homesteader, or his descendant in title, has property rights in it … This basic formulation does not answer all the gray areas or procedural or epistemic issues, but that does not make this a “circular” idea, Silas.

You clearly haven’t been reading my comments, because I answered this exact point already:

1) If you’re justifying property rights (in the abstract) through Lockean homesteading, it’s not a circular argument. I agree with you here. That’s not the problem.

2) But when the very topic of dispute is about which specific property rights a homesteading entitles you to, you cannot assume that it does or does not entitle you to specific rights. That is circular, because you’re essentially saying, “IP violates already-owned rights because those rights are already owned.” Um, but *why* are they owned?

3) When your 2nd biggest argument is that IP rights are vague, you make that argument irrelevant when you admit that your property system leaves property rights vague as well. Yes, it’s impossible to define a property system with arbitrary precision. So what?

Silas Barta December 31, 2009 at 4:55 pm

Great example, Russ. No offense taken. I would recommend, however, that people read my example about a dispute analogous to one over EM rights.

EM rights are basically the same as the “right to hit a gong in this area for the five minutes after 8am”. It is necessary for people to respect both rights in order for information to be transmitted through that medium. If more than one person transmits at frequency f, people cant measure frequency f and get a message out of it. if more than one person hits a gong at 8:03am, you can’t send messages via the gong at that time.

I think there’s an unfortunate tendency to blur metaphors with reality when talking about EM rights. When you send a message via radio waves, what’s really going on is that you’re exciting electric fields in a certain pattern, and people use a pre-defined method to decode the patterns. Everyone can transmit the waves at the same time, but *not* while also sending information. But why does this information transmission capability entitle one to claim a portion of it as their own? If you can justify that, you can justify IP. And yet most people intuitively see the scarcity in EM waves.

Russ December 31, 2009 at 5:36 pm

Peter Surda wrote:

“What however Bala, Russ and I are trying to achieve is to prove that the IP proponents’ premises lead to contradictions.”

That’s not what I am trying to do. I’m trying to show that the “IP is invalid because it violates classical property rights” argument is invalid. This is not because I am pro-IP; I’m not. It’s because I think this argument is poor; it assumes that no “extended” conception of property rights is valid, even though I think that an extended conception of property rights is needed to justify EMP. Also, I think the argument, when not explained in its Lockean fullness, could be used against classical property.

Jesse Forgione wrote:

“The first problem is silly. I’m sure you’ll agree that if I mix feces into your food, it’s been damaged, and has become unusable.”

Sure, but food is a material that I can own under a Lockean theory of property. Radio signals are not property in the same sense; I don’t believe there is a reasonable expectation under Lockean theory that a radio receiver will not receive signals that the owner doesn’t want.

“The second problem only exists if the transmission is somehow infringing on someone’s property, which is not the case so long as it doesn’t interfere with the usefulness of said property to it’s owner.”

What if I build a tall metal wall that blocks radio waves? Is that OK? That would interfere with reception just as much as another signal on the same frequency would. Is one OK, and one not?

Silas Barta wrote:

“But why does this information transmission capability entitle one to claim a portion of it as their own? If you can justify that, you can justify IP. And yet most people intuitively see the scarcity in EM waves.”

There is “scarcity” in the sense that there is a scarcity of useful channels, in the information theory sense of the word “channel”. Only one transmitter can use a channel at a time, and have it still be useful for transmitting information. I don’t think there is any scarcity of anything physical here, though, so it’s hard to derive EMP from pure Lockean theory, AFAICT. As I said above, I don’t think there is a reason under Lockean theory for a person to expect that a radio transmitter/receiver pair will be a useful information channel. In order to do that, somebody has to say “Wouldn’t it be nice if we all pretended that these scarce information channels are really scarce physical goods? Then we can treat them like property and get some use out of them!” But that introduces the bête noire of many people here; utilitarianism! AAARRGGHHH!!! *grin*

But with respect to IP, I don’t think there is a scarcity of any kind here. An indefinitely large number of people can get use from the same pattern at the same time, including the person who originated the pattern. Since there is no scarcity of any kind here, the argument falls back to “Let’s pretend that patterns are scarce physical goods; then people can sell them for money. If they can’t do that, nobody will make them. That’s unacceptable, so we need to pretend they’re like scarce physical goods.” My only problem with this logic is that I don’t think that people will stop programming, writing, making music, etc., if IP goes away. If I could be convinced that this is the case, then I would become pro-IP.

Andras December 31, 2009 at 6:40 pm

Stephan Kinsella:
“(To Andras): the point is not that dog fight over territory. It’s that even dogs can *recognize* (a crude version of) property boundaries.”

Your comment about dogs and property is totally irrelevant.
As an IP lawyer you should know that IP and IP laws are not about property but homesteading of properties, internalization of the external. They try to codify this arbitrary process. Of course, here your scarcity argument will not stand either, an original idea is unique by definition. My original comment, that even homesteading of land is at least as arbitrary as the IP laws was then thrown to the dogs. This issue is always ignored or ridiculed.

Jesse Forgione December 31, 2009 at 6:54 pm

Russ,

To own a “channel” or “frequency” would necessitate the kind of abstraction you’re talking about, but no imaginary “Barta-Space” is required given that what’s being transmitted is a useful physical object, and that sabotaging it’s function destroys it, as much as covering a written letter with more ink.
It’s not that you can homestead some imaginary territory, you simply have a right not to have your property destroyed. If you were broadcasting a signal that did not destroy someone else’s signal, than you have a right to continue doing so without your (quite physical) property being destroyed.

It’s funny you should mention a metal wall, because I almost used the example of erecting a giant lead wall, but I had already been accused of taking things to the level of absurdity, so I changed it to tampering with the mail. But the wall is a good example as it demonstrates the physicality of the signal itself, and no, you should not build a giant metal wall in cases where the the airspace was already in use for broadcasting. (You’ll like that Rothbard article, I promise.)

Silas Barta December 31, 2009 at 7:04 pm

@Russ: Thank you for your thoughtful analysis. Let me explain where i disagree with your attempt to distinguish IP from EMP.

In EMP, people recognize that there is a scarcity to the extent that people deem EM waves more valuable if people have exclusive rights in them. The desires of everyone in transmitting information cannot be all satisfied, so in the sense that people value using the EM spectrum to transmit information, there is scarcity. But people value *some* transmission capability over zero transmission capability, and the assignment of EMP eliminates some, though not all, of the scarcity.

It is in this sense that IP is parallel: people deem (both as creators and consumers) ideas more valuable when the creators can have exclusion rights in them. The consumers value the better ideas, and the creators value being able to do something they like when they can (choose to) have more control over its distribution. This allows more value to be extracted from the “idea space”, just as exclusivity in EM waves allows more value to be extracted from the EM spectrum.

It’s also parallel in that people can detect when others are transmitting their pattern in violation of their claimed rights, just as they can detect radio interference. Despite IP opponents’ protests of “how does this use of property enter your property’s boundaries?”, the IP infringement does in fact “leak out”. After all, how do IP rights holders ever know who to sue, and that they need to sue someone, when others infringe?

It’s also funny that I spent the earlier evening of the last two New Year’s Eves making the IP/EMP parallel on the Mises blog. Go fig.

Beefcake the Mighty December 31, 2009 at 10:00 pm

Since it’s not 2010 yet, I’d like to point out that Silas Barta is the intellectual equivalent of a dirty sanchez.

random troll January 1, 2010 at 1:41 am

Don’t read this post.

(sorry, I’m just trying to fix an error)

Jay Lakner January 1, 2010 at 1:44 am

I sent this post already, but the site seems to be a bit buggy at the moment. I apologise if this results in a double post. (the “random troll” above was me, my apologies)

The EM spectrum argument is exactly the same as a “sound waves” argument. The same problems arise, for example, when two bands decide to hold a concert on the same night right across the road from one another. It seems to me that “communication” is a special case of “property”. Another example which seems to fit into this area is whether or not someone is allowed to paint their skyscraper bright pink. This is clearly not in the “communication” category and demonstrates that their is a fuzzy line between the two.
It seems clear to me that more work needs to be done in this area from all camps.

I think the charges against Stephan Kinsella for “circular reasoning” or “assuming his own conclusion” are not justified. As usual, the source of the disagreement comes down to simple definitions. This all comes down to whether your definition of “ownership” is positive or negative.
If you define ownership as: ‘the right to transform your property in any arrangement or pattern’, then IP rights clearly violate classical property rights.
If you define “ownership” as: ‘the right to exclude others from transforming your property in any arrangement or pattern’, then IP rights do not violate classical property rights.

I adopt the first definition myself and therefore I think Stephan’s arguments are valid. Lastly, I should point out that, if in the process of transforming your property you interfere with someone else’s property, you are violating their rights. Hence I believe the first definition has the second definition embedded within it.

I’m not sure if I explained that well enough. In any case, I think everyone needs to clearly state their definition of “ownership” prior to engaging in a discussion like this. Otherwise we all just go round in circles.

Peter Surda January 1, 2010 at 4:06 am

@Silas:
I have tried to explain to you why your argument is wrong. First of all, it requires the value definition of property (which is demonstrably wrong). Then, it fiddles with the meaning of the word “scarce”, which only confuses, and doesn’t clarify. Last but not least, if the integrity definition of property is taken, the argument falls apart and the difference between EM and IP is clarified. Integrity aspect is equivalent with rivalry: non-rival goods do not have integrity.

It is theoretically possible that the integrity argument does not prove ownership of EM per se, but only of the transmissions, however from practical point the consequences are identical. Just like the right to prevent others from making noise and flashing you in the eyes is a consequence of you wanting to hear or see something else and does not necessarily require the ownership of sound waves and light.

In EM, concurrent signal sending sometimes changes what the recipient receives. In this case, one can assume a violation. There is no equivalent phenomenon in IP, no matter how many (unauthorised) copies are made, the (legitimate) customers of the original author still can use their own copies unaffected.

Peter Surda January 1, 2010 at 4:17 am

@Jay Lakner:
In a way I agree with you. However, our goals seem to be different. My goal is not to show that my own premises invalidate IP, but that my opponents’ premises either:
– invalidate IP too, or
– lead to contradictions, or at least
– are useless (void of meaning)

Jay Lakner January 1, 2010 at 5:32 am

@Peter Surda,

I know what you’re trying to do but I think the task is impossible when you consider how broad their premises are. Every Objectivist I’ve argued with has demonstrated a complete lack of willingness to precisely define their premises. The very fact that I have not yet once seen specific Objectivist definitions of “property”, “ownership”, “action”, etc is proof of how shaky their foundations are. Objectivists avoid doing this completely. They usually just start quoting Ayn Rand and calling me names when I raise these questions. The exceptions to this rule (eg Bala, Deefburger) have all converted to the anti-IP position.

“Intellectual Property” is a contradiction in itself. And the absurdities that result from following this concept to it’s logical conclusions should be obvious to everyone. Objectivists themselves realise the contradictions. That’s why they advocate these arbitrary limited time periods on “IP” and why they state that discoveries are ineligible for protection while creations are eligible (as if there was any difference between a discovery and a creation).

The contradictions are already present. No need to spend time finding even more of them. Now we have to show where their reasoning is false. And this, I believe, lies in the “broadness” of their premises. In particular their very definitions of property and action.

Once they define “action” as something along the lines of “a transformation of a tangible material from one pattern to another pattern”, the flaw in their reasoning starts to become apparent.

Surely the only way to make progress is by demonstrating the “broadness” of Objectivist premises and encouraging a more precise definition.

Bala January 1, 2010 at 6:16 am

Jay Lakner,

” Surely the only way to make progress is by demonstrating the “broadness” of Objectivist premises and encouraging a more precise definition. ”

I don’t think it has anything to do with the “broadness” of Objectivist premises but with errors in interpretation of a number of their own premises including the basic definition of “rights”.

For instance, after stating that rights are moral concepts sanctioning man’s freedom of action in a social context (Rand’s own emphasis was on the word “freedom”), Rand goes on to “deify” Intellectual Property even though copying an idea or pattern does not in any way affect the freedom of action of the originator.

By insisting that the originator alone should be free to instantiate the product, she has converted IP rights into a “right to an object” or an “exclusive right to perform an action” rather than a “sanction of the freedom of action”. That to me is as self-contradictory as it can get.

There is more. A thorough analysis can reveal all the errors.

That apart, the main defence that serious Objectivists offer to most refutations of their stand is that their position is inductively derived from a proper understanding of the man’s nature and is hence a position most suited to the survival of man qua man. They reject most refutations as arrived at through a process of deductive reasoning and hence unsuitable to disprove conclusions obtained through an inductive process originating in self-evident axioms.

As I understand it, there are errors that have crept into the inductive process leading to wrong conclusions. These errors include ignoring key aspects of the nature of man as well as the entities that one is attempting to assign the moral status “property”. This has led them to treat entities that they ought not to consider as “property” as just that.

Therefore, IMO, the correct way to take on Objectivists is to start from their own premises, go through an inductive process, correct the errors of omission and commission that they have made (pointing them out clearly) and show that the Lockean conception of “property” is the most moral one.

If and when that can be done, IP would stand automatically invalidated to any honest Objectivist.

Peter Surda January 1, 2010 at 6:24 am

@Jay Lakner:
I agree with you to a certain extent, I also bemoan the lack of proper definitions by IP proponents. That’s my point 3. But it is difficult for me to argue this way. Since I wasn’t able to bring (most) IP proponents to make proper definitions, I need can only attack a strawman (e.g. “creationist” definition of property).

MichaelM March 5, 2010 at 1:27 am

@Jay Lakner

Property: an owned value
Ownership: justifiable possession
Action: self-initiated exercise of a mental or physical function
Action (in the context of rights): self-initiated exercise of a mental or physical function to gain or keep a value

“… (as if there was any difference between a discovery and a creation).”

Facts are discovered, and they cannot be property because their existence and value to man is not a product or consequence of anyone’s reason and effort. Ideas, on the other hand, but for someone’s reason and effort would not otherwise exist as values.

@Bala

“… copying an idea or pattern does not in any way affect the freedom of action of the originator.”

You have dropped the context of “action”.

The actions rights protect are individuals’ applications of reason to their effort for the production of life-fulfilling values. The right to an action is the right to its product and consequences. There is no point to defining rights to actions in pursuit of life fulfilling values if the values that are the product and consequences of those actions would not be recognized as property.

Concrete-bound Misesians can’t see the values owned for the physical “actions” and “patterns” over which they obsess.

Dean West September 11, 2010 at 2:32 am

Why does Mr. Kinsella sign and copyright his work? I wouldn’t ordinarily make a big deal of such an inconsistency, but his above article seems to take pleasure in pointing out other people’s inconsistencies, so I figure fair is fair.

Admittedly, I’ve not read everything he’s wrote. He’s wrote a lot, and I just saw this site for the first time yesterday. But why sign your name to an non-”tangible”, non-”scarce”, non-commodity? I mean, it’s not like it’s real property, so why lay the putative claim of a name on it? And why copyright it, given the lovingly described evils of that “statist” system? And why are some monographs and such charged for? To charge for that which is claimed to be unownable – how does that work?

If “Kinsella” is but a pen name, and the copyright was against his will by evil statists who tricked him, and he never profits a cent from his unownable non-valuable, non-tangible writings, then my apologies in advance. I’ll be glad to hear it, mainly so I can start copying all his stuff, without that “Kinsella” name, and proceed to give it away to all comers for free.

Or maybe I’ll put MY name on it – after all, were he to forbid that, it would be like he was laying claim to my ink, and I know he’s not about that. I can use my ink as I please, so I’ve the freedom to write my name on his writings. Since I won’t sell it, I won’t be committing fraud, as no one will have lost any money.

And gee, he has put some of his stuff up on the net, and is letting people order copies of his stuff without signed, notarized and attorney approved contracts on each sale, so clearly he has – according to his arguments – gave up all interest in these non-works. I’m pretty sure they’re mine now. At least I won’t have to worry about a lawsuit, after all, “copying isn’t theft”, right? And he’ll still be able to look at his originals, right?

I would feel bad, but as he’s explained, mere creation of a thing gives no rights at all. Only the rights of the copiers, to be free to copy as they please have any relevence. Right to property in created ideas is non-existent, but the right to those created ideas by copiers is all encompasing.

Well, someone let me know.

(P.S. I am being facetious, and no matter how many silly arguments I see for stealing a person’s work, I would not do so.)

Stephan Kinsella September 11, 2010 at 11:28 am

Dean:

Why does Mr. Kinsella sign and copyright his work? I wouldn’t ordinarily make a big deal of such an inconsistency, but his above article seems to take pleasure in pointing out other people’s inconsistencies, so I figure fair is fair.

Your question displays utter ignorance. Why people who are ignorant about a topic pontificate about it I will never understand. I do not “copyright” my work. The state grants me a copyright in it automatically. You have a copyright in the comment you just left; and I have one in this message here. Why is it inconsistent for me to oppose a fake right that the state grants me and others? If the state granted me the right to own you, I would not use that right nor would I be inconsistent for opposing slavery.

But why sign your name to an non-”tangible”, non-”scarce”, non-commodity? I mean, it’s not like it’s real property, so why lay the putative claim of a name on it?

Signing it is not claiming it; your question is asinine. It’s just stating a fact: that I wrote it.

And why copyright it, given the lovingly described evils of that “statist” system? And why are some monographs and such charged for? To charge for that which is claimed to be unownable – how does that work?

I am about to self-publish a legal dictionary on Amazon’s DTP/kindle system, and will charge for it, but will not enforce copyright. I charge b/c I”m offering a package some might want; others are free to copy it and try to compete with me.

If “Kinsella” is but a pen name, and the copyright was against his will by evil statists who tricked him, and he never profits a cent from his unownable non-valuable, non-tangible writings, then my apologies in advance. I’ll be glad to hear it, mainly so I can start copying all his stuff, without that “Kinsella” name, and proceed to give it away to all comers for free.

Or maybe I’ll put MY name on it – after all, were he to forbid that, it would be like he was laying claim to my ink, and I know he’s not about that. I can use my ink as I please, so I’ve the freedom to write my name on his writings. Since I won’t sell it, I won’t be committing fraud, as no one will have lost any money.

I would not forbid it since I recognize that I do not own any information patterns adn you are not violating my rights if you sell something to a willing buyer. If you put your name on it one of your customers may have a fraud claim against you, but that’s between you and him. Doesn’t violate my rights any way. Are you ever aware that at the bottom of this very page there is a Creative Commons license that already gives you permissions to use things on this site as you see fit?

Another IP socialist suggested something similar to what you are suggesting, and I called his smartass bluff. http://www.stephankinsella.com/2010/07/29/russell-maddens-the-death-throes-of-pro-ip-libertarianism/

And gee, he has put some of his stuff up on the net, and is letting people order copies of his stuff without signed, notarized and attorney approved contracts on each sale, so clearly he has – according to his arguments – gave up all interest in these non-works. I’m pretty sure they’re mine now. At least I won’t have to worry about a lawsuit, after all, “copying isn’t theft”, right? And he’ll still be able to look at his originals, right?

You are talking again from pure ignorance. I don’t “give up” copyright because the state makes it almost impossible. see http://blog.mises.org/9240/copyright-is-very-sticky/ But I do use Creative Commons licenses to try to minimize the harm the state does.

Even if I somehow get rid of my copyright or don’t enforce it, doesn’t mean that the patterns are “yours”–they are nobody’s. And no, copying is not theft. To say that it is, is an amateur/newb/dishonest attempt to beg the question.

(P.S. I am being facetious, and no matter how many silly arguments I see for stealing a person’s work, I would not do so.)

By calling it stealing you assume your premise: that it is property. IF it’s not property, there’s no “stealing”. So this is just a stupid or disingenuous attempt to sneak in your premise without providing any argument. Calling it stealing does not make it so. (If I “steal” your girlfriend does that mean she is your property? Wow, you can prove so much by language games!)

***

More:

Comments (115) 

  • Kerem Tibuk

    I don’t understand what the big deal is.

    There will always be people who defend institutionalized theft and socialization of privately produced property, and there will always be people who will be against it. And if you look at history the people who fight for private property is always in smaller numbers.

    Published: December 27, 2009 1:31 AM

  • newson

    i don’t understand what the big deal is.

    there will always be people who defend institutionalized monopolies and socialization of the means to protect them, and there will always be people who will be against it. and if you look at history the people who fight for private property is always in smaller numbers.

    Published: December 27, 2009 1:54 AM

  • Jay Lakner

    Kerem Tibuk wrote:
    “There will always be people who defend institutionalized theft and socialization of privately produced property, and there will always be people who will be against it.”

    What a ridiculous statement!

    Apparently the phrase, “nobody owns it”, is exactly the same as the statement, “everybody owns it”.

    Who word of thought that “nobody” and “everybody” were synonyms?

    Published: December 27, 2009 2:09 AM

  • scott t

    of privately produced property

    maybe he means socialization as being something like krispy-kreme MUST give one doughnut to one person each day and they can sell a second one – although the doughnuts are privately produced?

    so it might not be so ridiculous

    Published: December 27, 2009 3:17 AM

  • scott t

    “The Objectivist approach is mired in a number of problems. It anchors property rights to the idea of “creation”; it requires legislation, and the state; it believes in some intrinsic value and some property right in value; it advocates utterly arbitrary and/or unprincipled, utilitarian finite lengths for IP; it rests on an arbitrary distinction between discovery and innovation.”

    from what i have read the libertarian-anarchist take differs in that any pattern control extends beyond ones physical patternized property is some type of property breach/tresspass/tyranny on anothers right to patternize their physical property?

    contracts are said to be able to govern action concerning acting on ip between contractees but not others.
    knowingly claiming pattern-ship over a pattern one did not pattern would be considered dishonest.

    it seems to make sense. is this correct in stating the anarchist/libertarian view on ip?

    Published: December 27, 2009 3:28 AM

  • Peter Surda

    I don’t understand what the big deal is.
    There will always be fundamentalists that are unable to argue logically and are limited to making up weird constructs to support their dogmas. Additionally, these constructs do not actually prove the dogmas, they merely allow for them as a possible conclusion.

    There will always be people like this. This is not the problem. The problem is when they want to use force to implement their fantasies.

    Published: December 27, 2009 3:37 AM

  • John Donohue

    Mr. Kinsella, are you still working as a patent attorney?

    Published: December 27, 2009 4:05 AM

  • John Donohue

    No, I would love to see YOU live in a world that truly implemented your fantasy: no government. Your IP obsession is only a subset of your anarchism. You have this pipe dream that civilization is possible without proper government and proper protection of intellectual property. It is dishonest. You never face the actual manifestation of your belief system: no businesses or corporations, no capitalism and no protection of individuals. Just gang violence and civil war. Basically….anarchy!

    Yes, I am imputing the pragmatic argument back onto you. You seem to have no end to energy for rationalizing anarchy, always on a floating island. You cannot show how this is in any way a practical political philosophy for man.

    Published: December 27, 2009 4:23 AM

  • newson

    let’s not confuse governance with government.

    Published: December 27, 2009 4:40 AM

  • newson

    small gangs wreak less havoc than big gangs.

    Published: December 27, 2009 4:46 AM

  • Seattle

    John, seriously? That’s the oldest argument against anarchy and it’s been thoroughly refuted more times than I can count. I’m even insulted you sunk so low as to try such a desperate argument.

    What’s worse, you say it as if we DO have capitalism and protection of the individual now! I have no idea what drugs you’re taking, but I want some.

    Published: December 27, 2009 4:55 AM

  • newson

    the crips can’t afford icbm’s.

    Published: December 27, 2009 4:56 AM

  • John Donohue

    It has not been refuted, only a whim in the anarchists’ fevered brain.

    It would be more honest for you people to admit that you are simply paranoid about Leviathan. That is an honest fear.

    When you expend this much energy on anti-IP and anti-government, it takes you off the playing field of worthy opponents of tyranny.

    The reason: anarchy is tyranny. You become the enemy.

    Published: December 27, 2009 5:19 AM

  • Russ

    John,

    One can be anti-IP without being an anarchist. You’re trying to “package deal” the two together, but it’s not necessary to be a anarchist to believe that IP is simply a legal fiction used to protect businesses that have a poor business plan.

    @Kerem Tibuk:

    I never got a chance to check out my previous post, regarding ownership of numbers, due to the holidays, so I’ll ask again now. Do you think it should be OK to copyright a number?

    Published: December 27, 2009 5:26 AM

  • jeffrey

    Great post, Stephan. Thanks. Another sector not subject to IP: recipes. You can copy them and distribute them. The web is stuffed with recipes sources. I marvel that 1) anyone publishes a recipe book at all and that 2) anyone publishes one today with everything online a million times over. And yet: this season, recipe books were the hottest sellers at B-a-M. The market at work!

    Published: December 27, 2009 5:37 AM

  • Fallon

    John Donahue,

    Before we ask which arrangement is more just or prosperous can we agree that the government you are talking about, a non-anarchic form, presupposes an a priori legal/political inequality between an individual not-in-government vs. an individual member in-the-government?

    Let’s not even assume to which side the imbalance tilts toward.

    Published: December 27, 2009 6:01 AM

  • Fallon

    John, sorry. Should read “John Donohue,”.

    Published: December 27, 2009 6:10 AM

  • Jay Lakner

    John Donohue,

    Do really think you’re going to achieve much by attacking Stephan Kinsella’s anti-IP position by bundling it with his anti-government position?

    If you truly think the anti-IP position is false, why don’t you demonstrate it by starting at fundamental assumptions and reason logically to sound conclusions?

    You have two ways forward:
    1. Demonstrating that Stephan’s assumptions and/or logical reasoning is false, or,
    2. Laying out your own position starting from fundamental assumptions and showing why the pro-IP position is the only logical conclusion.

    Most of the pro-IP crowd don’t ever do this. They make very generalised wishy-washy arguments filled with unsubstantiated statements, faulty definitions and unjustified implicit assumptions.
    (Kerem Tibuk is a rare exception to this. Even though I completely disagree with his position, I respect that he goes to the effort of laying it out)

    Published: December 27, 2009 7:08 AM

  • subzero

    When the author says that pretty much every libertarian is an anarchist, he is being an outright lier.

    Mises believed in a small state. So do Ron Paul, Peter Schiff, John Stossel. Would you not call any of these people libertarians? Ron Paul has a sizeable following of libertarians, and a good part of them, I’d say more than half, believe in a small state.

    Published: December 27, 2009 8:36 AM

  • Stephan KinsellaAuthor Profile Page

    Jeff, re recipes: good point. I’ll add it to the main post.

    Published: December 27, 2009 8:49 AM

  • Kerem Tibuk

    IP and anarchy are to separate issues but since Kinsella provokes Objectivist, they are bound to get tangled in these kinds of discussions. It helps the straw man arguments later on for Kinsella. After these arguments he can keep saying IP can not exist in a free stateless society, which obviously false.

    Published: December 27, 2009 8:51 AM

  • Kerem Tibuk

    “1. Demonstrating that Stephan’s assumptions and/or logical reasoning is false, or,
    2. Laying out your own position starting from fundamental assumptions and showing why the pro-IP position is the only logical conclusion.”

    This is not possible or fruitlful since Kinsellas IP theory is not part of any complete theory of property.

    I am claiming Kinsella can not write a complete theory of property as “Ethics of Liberty” and include the IP issue as a chapter. If he tried, IP chapter would be so divorced from the main theory, it would show what an arbitrary and positivist invention this IP socialism is.

    And I am not talking about fitting this anti IP stuff only within the Rothbardian property theory either. It can not be any part of any theory that supports private property rights in general.

    Published: December 27, 2009 9:00 AM

  • Kerem Tibuk

    Jay,

    “Apparently the phrase, “nobody owns it”, is exactly the same as the statement, “everybody owns it”.”

    Yes. Especially in the socialist framework. If you study socialism you will see that these phrases always are used interchangeably.

    Published: December 27, 2009 9:03 AM

  • Don

    We’ve been discussing this in the forum:

    http://mises.org/Community/forums/t/12960.aspx

    Published: December 27, 2009 9:07 AM

  • Luis Ramirez

    Not trying to derail the flow of the discussion…but, I highly recommend the movie: “Be kind, Rewind” (with Joe Black). It pretty much has the feel of why IP is unjust.

    Published: December 27, 2009 9:23 AM

  • Andrew

    @Kerem Tibuk:

    “Apparently the phrase, “nobody owns it”, is exactly the same as the statement, “everybody owns it”.”
    Yes. Especially in the socialist framework. If you study socialism you will see that these phrases always are used interchangeably.

    As the one who was raised in the Soviet Union I beg to differ. The socialist notion of (collective) property was very much about ownership. Ownership then served to justify “responsibility”: you were required to assist in upkeeping the property precisely because it was NOT “nobody’s” – it was YOURS AS WELL.

    Published: December 27, 2009 9:30 AM

  • Russ

    Kerem Tibuk

    “I am claiming Kinsella can not write a complete theory of property as “Ethics of Liberty” and include the IP issue as a chapter. If he tried, IP chapter would be so divorced from the main theory, it would show what an arbitrary and positivist invention this IP socialism is.”

    That’s funny. I believe that the anti-IP position flows quite naturally from a natural law based justification for property, such as Rothbard’s, which starts with the nature of material goods as scarce economic goods. That is why, to make a theory of IP that is not inconsistent with their property theory, pro-IPers have to start with a completely different theory of material property, such as the Randian idea that creation implies the right to ownership, or the idea of “extension of sovereignty”.

    Published: December 27, 2009 9:37 AM

  • Deefburger

    For me, there is no argument for IP.

    One of the most important natural laws is the law of uniqueness. This is the basic law that supports the notion of individuality and identity.

    If in such a universe as ours where every element is unique, where every element is having a unique experience of the whole, if our universe were to operate on the principals of IP, all time and action would cease, as there would be no possibility of anything but wholly unique experience, with no similarity and no reuse of any pattern. Human Being would have meaning for only one Human Being. Planet, star, moon, ocean etc. would be only one, the original.

    The universe has no State to grant such licence. The universe has no desire to have that kind of restriction on the possibilities of existence and the possibilities of Being.

    Quite the contrary. From the experiential perspective of a single Human mind, the experience of the Metaphysical, the Intellectual, is a non-physical space. This space is populated by objects that are real, but non-physical. We are aware of them as observations of thought and dreams. We cannot touch them, we can somehow manipulate them, choose them, sort them, re-arrange them, point others to them and they too can examine them, test them, re-arrange them, but none of us can delete them, remove their history, or banish them to the confines of a Metaphysical jar.

    But their being is clearly real. We measure all things against them. The number systems alone account for our ability to measure anything. Without the free and unencumbered access to these archetypal thought objects, knowledge as we know it, technology as we know it, indeed all complex thought as we know it would be impossible, and therefore non-existent.

    This area of space, this Meta-physical space, is within view of our minds and can be manipulated according to our will and intent, but cannot be deleted, we do not have that kind of access to the system. If I have not the ability to deny by deletion, deny by destruction, deny by any means that is Metaphysically permanent, then I do not have any “right” to do so by Physical reality declaration. Any attempt to own a portion of the Metaphysical is an attempt to control the uncontrollable.

    You can think up anything you want, all day long, every day of your life, and never once will you be able to delete a thought. Once created, the thought remains as an object within the larger space of the Metaphysical. The best you can do is to not observe it again yourself. You can not stop me from stumbling across it myself, or utilizing it.

    The Archetypes stand like statues in the thought-space. They are public constructs of thought objects. They are visible to all who direct their intent to see, and to all who wish to measure. No matter what edifice of intellectual reasoning you wish to build to support the notion of property ownership in the Metaphysical, you cannot create a thought, that can prevent observation, manipulation, and duplication.

    There is clearly a problem of control in the idea of IP. Let us bring it a little closer to physics. All of us can look up into the night sky and see the Moon and the Stars. Some have even begun to sell “rights” to these objects that everyone can see but no one can possess or control, or even reach. This is similar in scope to the notion of IP. Do we really believe for one moment that the “contract” granting exclusive “rights” to a star, named whatever you like, is just? If so, I would like to sell you a certificate of title to a crater on Mercury.

    A patent or copyright “contract” are no more valid or enforceable than the star registry. Worse, they are enforced against innocents. Metaphysical reality is as free and unencumbered as the vast expanses of Physical space, more so, for you can imprison a body, but you cannot imprison a mind.

    What if someday some one patents the gene that “makes” you Human? Will you then buy the License to have children? Will you have to buy the License to be considered legally Human? Will you have to rent your existence from the state or the Patent holder? These are not ridiculous notions if you assume that the Patent contracts and the Copyright contracts are valid, philosophically.
    More over, some of your genes, the pattern that made you from before your birth, are “owned” already. You have to pay the license holder for any drug used to affect it in your body.

    If anything is a birth right, it would be the gene sequence of my physical existence that I was given and is responsible for the pattern that is Me, and is the source of my Identity. A in my case is A because of the genes that make it so. Who has a right to deny me that? Who has the means? Want to buy a base-pair? I’ll throw it in with the crater on Mercury.

    Published: December 27, 2009 10:34 AM

  • Russ

    I don’t know about the metaphysical objections that Deefburger brought up, but I do think that it’s kinda silly to say that some individual has the exclusive rights to the use of a number! After all, that is all that any digital content file is; a number. It may be a rather large number, but nonetheless a file is just a positive integer in base 2 representation. How can somebody rightfully claim the exclusive right to control the use of a NUMBER? It’s just absurd!

    Published: December 27, 2009 10:44 AM

  • Jim FedakoAuthor Profile Page

    I attend a weekly Bible study. The man who runs the study also writes Bible study books, available on Amazon print-on-demand. And, get this, he uses some of our discussions as the basis for what is discussed in his books.

    A few weeks ago, I mentioned a point that caught his attention. He said something like, “Great example. I’ll use that in the future.”

    Oddly, no one in the Bible study even questioned his planned theft — the theft of my idea. Not one.

    Now, I know that if I search my emails long enough, I’ll find I had written down that very same example. I had committed the idea to paper, so to speak.

    Is it really only theft if, and only if, I can find the example on an email of mine? And, otherwise, my idea is homesteadable?

    Or is it the case that I still possess my idea, regardless of my friend’s future use of it?

    Someone may object: But you knew going into the study that the organizer may use any example you give.

    True. But that always is the case when I share an idea — someone else may use it, but I still possess it. A truly unscarce resource.

    Published: December 27, 2009 11:25 AM

  • Deefburger

    @Jim Fedako

    Indeed. The Metaphysical is available to all, always. Your idea did not get deleted from reality. It remains, and is there to share, always. You lose nothing in the sharing. In a very real sense it is like sharing a star.

    Your friend did not take it from you. You showed him the idea, and now he can see it too, whenever he wants. How he sees it, what it appears like to him, and how he uses it will depend upon him from now on. You have no control, nor do you have any real need to control. The “star in the sky” that your idea represents, is now a permanent fixture for anyone to view, as it should be.

    But he now has this idea incorporated into the other constructs that he is aware of. Just like you, reading this now, you are integrating the thoughts and ideas of my words into your own view of the Metaphysical. I have no control over this process, nor do I require any control, for the experience of thought that you are having right now is yours and your alone.

    Your observation of these ideas in no way affects my abilities to do with them as I please, nor does anything I think or write affect how you will or will not integrate them into your experience of thought.

    We exist within our own minds, but our minds are not isolated. We can observe the same ideas from our different perspectives without harming each other’s view in the least.

    Metaphysical Reality contains the Possibility for everything. That is a big collection of objects. Thought, even unique thought, occurs within the framework of possibility. Even the most complex and unique thought already existed as a possibility before any mind had any probability of discovering it. Finding a thought and sharing it’s existence with others increases that thought’s presence within the reality. It increases the gain to the system.

    Published: December 27, 2009 12:22 PM

  • Dennis Lee Wilson

    Butter gets thinner as it spreads, IDEAS GET THICKER!

    Ludwig von Mises’s view is that ideas are a free good, not subject to economic constraints.
    They are infinitely reproducible.

    Now THAT is an idea that is definitely getting thicker. Many thanks to Stephen Kinsella!!

    Published: December 27, 2009 1:08 PM

  • Anonymous

    What is truly ironic is that Rand’s system of Objectivism is itself built on the ideas of others, used without credit. Rand gave credit only to Aristotle and claimed that she formed the rest of her ideas herself, even though it is well documented that much of Objectivism came from Isabel Paterson and that the phrase “Who is John Galt?” was ripped off from Garet Garrett’s The Driver. It is truly ironic that the Randians are fanatical proponents of IP and that they accuse Rothbard of “plagiarism” (specifically, the Objectivists claim that the Rothbard-Rand split occurred because Rothbard supposedly “plagiarized” The Mantle of Science from Barbara Branden) when Rand herself “plagiarized” virtually all of Objectivism.

    Ayn Rand had valuable contributions to libertarianism by attempting to restore the classical liberal attitude of hostility to religious superstition and by attacking the altruist perversion of morality (Rand was particularly good at pointing out that Capitalism is incompatible with altruism). However, Rand had many crazy ideas, such as her ideas about IP and her foreign policy.

    I know from experience that people who believe in IP must inevitably feel the same type of guilt as religious believers (such as environmentalists or Christians) do when they “sin” against their faith (in all cases, this is inevitable as the “morality” advocated is impossible to follow).

    Published: December 27, 2009 4:35 PM

  • John Donohue

    “Do really think you’re going to achieve much by attacking Stephan Kinsella’s anti-IP position by bundling it with his anti-government position?”
    Yes. That is my game plan, I don’t mind it being out in the open. Mr. Kinsella is an anarchist*. That means, no ONE authority with the power to employ force in rectification of violation of individual rights, but many such authorities is okay. Who knows what he actually — actually — believes would devolve under this idea. Hundreds of thousands of police agencies rectifying thousands of interpretations of ‘individual rights?’ Regional authorities that magically do not step on each other’s toes? Remember, all of these “agencies” have police power. I have elsewhere pointed out that absent one ultimate authority, there is nothing stopping someone setting up a repressive system. Further, what would stop this thing from attempting monopoly? Well, I guess if you consider open civil war…if a coalition of non-greedy authorities defeat the one trying to become ascendant. But what if some of the coalition’s police forces are themselves slave states and the one they defeated was attempting to get ascendancy and was NOT a slave state….you see this is a valley of bad.

    Certainly some of the thousands of “authorities” would be anti-IP, right? Mr. Kinsella hopes. Well…(here goes the merry-go-round again) what happens when a pirate in an anti-IP locus steals from a business person in an IP-Protecting locus? Invasion? War?

    Mr. Kinsella (and apparently others) wish to decouple anti-IP from anarchism. I am rudely reminding you all what actual anarchism would look like (above). Why would the various jurisdictions (they are states so I’ll now call them that) go to war with each other? Frankly, protection of wealth on the ‘up’ side and greed for un-earned wealth on the ‘down’. Wealth cannot develop in anti-IP-Land (see obverse argument below), but that which makes the making of money possible, IP, can ‘legally’ be stolen in anti-IP-land. So the IP-states have wealth to deploy in protecting rights of its citizens, but the subsistence anti-IP states are impotent against invasion. Are anarchists sure they want to step into a world where a wealthy IP state is looking across the river at an impoverished anti-IP state harboring pirates that keep stealing from the IP state’s citizens?

    Here is the obverse, and an answer to another person above who claims one can be anti-IP and NOT anarchist. If anti-IP but not anarchist, then you have a government. One government. That government will be protecting the rights of the pirates when they steal logos, product names, secret processes, company names, advertising/branding, inventions, information, etc. In short it is open season on everything that makes commerce and capitalism feasible.

    There certainly is no capitalism under non-anarchy-but-no-IPRights. Subsistence farming? Barter?

    I also contend there would be no way an anti-IP state could last when people are free to start up a new IP state or migrate to one. Ask yourself which kind of people would choose an IP state and which ones an anti-IP state.

    So, let’s not kid ourselves. A country with no protection of intellectual property rights condemns its citizens to abject poverty or subsistence. Talk about Atlas Shrugging! If one goes further and declares anarchism on top of that, you lose control over splinter states who might wish to institute protection of IP. So you condemn the world to war.

    It is not honest to attempt to decouple anti-IP from anarchism. I will always challenge the idea that there can be a prosperous capitalist civilization if either anti-IP or anarchism is attempted. These two things go hand-in-hand and are both to be condemned.

    * If Mr. Kinsella claims he is not an anarchist I will make an appropriate retraction of this argument, depending.

    Published: December 27, 2009 5:38 PM

  • John Donohue

    Kerem Tibuk: “IP and anarchy are to separate issues but since Kinsella provokes Objectivist, they are bound to get tangled in these kinds of discussions. It helps the straw man arguments later on for Kinsella. After these arguments he can keep saying IP can not exist in a free stateless society, which obviously false.”

    I admit I don’t fully follow what you are saying here.

    My contention is that Mr. Kinsella and like minded should not be allowed to get away with de-coupling anti-IP and anarchism. My reasons are in the above post. If when attacking IP Mr. Kinsella is allowed to get away with an unchallenged assumption that we magically would still have a peaceful, prosperous proper anarchist civilization, even when IP protection is prohibited, he gets off the hook.

    Published: December 27, 2009 5:46 PM

  • John Donohue

    Fallon : “Before we ask which arrangement is more just or prosperous can we agree that the government you are talking about, a non-anarchic form, presupposes an a priori legal/political inequality between an individual not-in-government vs. an individual member in-the-government? Let’s not even assume to which side the imbalance tilts toward.”

    Mr. Kinsella has begun this thread specifically with Objectivism in the subject. I am an Objectivist and would not claim that if I had not vetted her politics for myself. Therefore, you can make the assumption should be I am talking about the political philosophy of Ayn Rand.

    However you may or may not be aware of Rand’s politics, so go ahead with whatever you wish to ask. However…As to whether this politics “presupposes an a priori legal/political inequality between an individual not-in-government vs. an individual member in-the-government?” is not completely clear to me. I am not evading your question; I just don’t want to respond to something you did not actually mean. Can you say your question again in another way?

    Published: December 27, 2009 6:03 PM

  • Stephan KinsellaAuthor Profile Page

    Donohue has a variety of confused comments. Let me try to cut through his confusion. First, of course I’m an anarchist. A brief glance at my site or any familiarity with my views would tell you this. Second, I do think that IP implies legislation and the state, which means anarchist-libertarians have yet another reason to oppose IP. But this does not mean only anarchists have a reason to oppose IP. Minarchist libertarians have a host of other reasons to oppose IP.

    Published: December 27, 2009 6:30 PM

  • Bala

    John Donohue,

    It would be really good if you could show us an inductive derivation of the validity of treating ideas and patterns as “property” starting from first principles (axioms). It will help a lot in understanding the Objectivist position.

    That apart, your attempt to bundle Stephan’s anti-IP position and his support for anarchy makes your replies equivalent to “He is immoral. Hence his arguments are invalid.”. Rand had something to say on that kind of argumentation. Just check it out.

    Published: December 27, 2009 6:57 PM

  • Bala

    John Donohue,

    ” I am an Objectivist …… ”

    Says who???? Someone once mentioned (on these threads to refute my arguments) that Rand had said that Objectivism is her personal philosophy and that everyone else should call themselves “students of Objectivism”. Just wondering…..

    OK. I shall not be as mean as you were. I shall also indicate the way by which you may free yourself from the burden of that question – Redeem yourself by responding to the request I placed in my other post (the inductive derivation bit) and convince us that you are an Objectivist who understands Objectivism.

    Published: December 27, 2009 7:03 PM

  • Bala

    Kerem Tibuk,

    There are still a number of questions that you haven’t yet answered or should I say charges that you haven’t addressed against the basis of your support for IP. (Refer our previous discussion on the blog “Have you changed your mind about Intellectual Property?”)

    Published: December 27, 2009 7:44 PM

  • John Donohue

    Sorry Bala, you must be dizzy. It was I that proved that YOU are not an Objectivist in your dishonestly-labeled thread “An Objectivist Recants IP.” In fact I proved you were neither an Objectivist nor a capitalist.

    Published: December 27, 2009 8:28 PM

  • John Donohue

    Stephan Kinsella:
    Accepted, stipulation you are an anarchist, no problem.

    As to cutting through my imagined confusion, the remainder of your paragraph was addressed to some other person or group, had nothing to do with my argument above or Objectivism.

    Published: December 27, 2009 8:33 PM

  • Bala

    John Donohue,

    ” It was I that proved that YOU are not an Objectivist in your dishonestly-labeled thread “An Objectivist Recants IP.” In fact I proved you were neither an Objectivist nor a capitalist. ”

    Proved???? Where are the arguments? Insinuations without arguments do not constitute proof. Continue to live in your fun house (I should thank mpolzkill for adding to my vocabulary).

    Published: December 27, 2009 9:09 PM

  • Jay Lakner

    John Donohue,

    Your speculation (and speculation is all is was) as to what would happen in an anarchist society contains so many flaws I don’t know even where to begin.

    Maybe I should point out your use of the words “state” and “greed”.

    Firstly, there are no “states” in an anarchist society. This very fact invalidates most of what you wrote.

    Secondly, “greed” is an innate characteristic of every individual. Every human aims to maximise their satisfaction. This is a fact. Everybody is “greedy”. Anarchy is the perfect form of society to utilise this human attribute because individuals can only maximise their wealth by satisfying the desires of others. A state is a terrible form of society because it works against human nature. It sets up a system where wealth can be attained by political means, such as wealth distribution, which lowers the satisfaction of others.

    Lastly, I’d like to point out some other general faults in your thinking. You haven’t seemed to grasp the concept of how private protection agencies would compete with each other. Also, you have failed to realise that private arbitration firms would be independent of protection agencies. And you have failed to recognise the role of insurance companies in all this.

    Overall, your speculative conclusions are based on false assumptions, insufficient attention to important factors and illogical reasoning skills.

    I should remind you of what I wrote in my first post to you in this thread: “[pro-IP people] make very generalised wishy-washy arguments filled with unsubstantiated statements, faulty definitions and unjustified implicit assumptions”. Your reply to me simply proved my point!

    Published: December 27, 2009 9:22 PM

  • Bala

    Stephan,

    ” Donohue has a variety of confused comments …… Minarchist libertarians have a host of other reasons to oppose IP. ”

    I am forced to ask the questions “What is your target segment?” and “What is the purpose of writing all these articles against IP?”. It appears as though you are preaching to the choir (no offence intended). IMO, it would help if your arguments were less “libertarian”. I doubt if you can get others to understand what you are saying unless you show them one of the following two

    1. That their conclusions are wrong because their premises are
    2. Their premises are OK but their conclusions do not derive from their own premises

    Further, with Objectivists, I think you would be better off adopting 2 over 1.

    As I understand it, your arguments are sounding like “Your conclusions are wrong because they don’t agree with these (my) premises”.

    Published: December 27, 2009 9:32 PM

  • Jay Lakner

    Bala,

    Doesn’t the entire IP debate simply boil down to the definition of “property”?

    It is the Objectivist definition of “property” that is wrong. Therefore, the only logical way to make progress is to show them the inconsistency of their premises.

    Once an Objectivist realises that “ownership” can only exist in the context of multiple cooperating humans in an environment of scarce resources, the anti-IP position naturally follows.

    I see this as the challenge.

    I cannot see how pretending their premises are correct can help the situation … except to show that the ultimate conclusion of logically reasoning with their premises leads to contradictions. But I would consider that a method of dispoving their premises.

    Published: December 27, 2009 9:50 PM

  • Bala

    Jay,

    ” It is the Objectivist definition of “property” that is wrong. ”

    As I understand it, the definition of “property” is not a premise but a conclusion that serves as a premise for other purposes.

    ” I cannot see how pretending their premises are correct can help the situation ”

    There will be no pretense as Stephan agrees with the 4 basic premises of Objectivism and has stated so on these comment threads. His difference stems from a deep disagreement on the subsequent definition of property.

    Published: December 27, 2009 9:54 PM

  • Jay Lakner

    Thanks for clearing that up Bala. But I am curious, how do objectivists come to their definition of property from their premises? I have never seen a line of logical reasoning that links Objectivist premises to a definition of property.

    Published: December 27, 2009 10:05 PM

  • John Donohue

    For the record: I definitely proved Bala is not an Objectist. I won’t repeat it. That is, unless he continues to insist he IS an Objectivist.

    Published: December 27, 2009 10:40 PM

  • Jay Lakner

    The way I see it, the concept of “property” is a direct consequence of the action axiom.

    Given the following:
    1) The action axiom is true.
    2) Multiple human beings exist.
    3) These humans require scarce resources to satisfy their desires.

    Then there must follow two possible scenarios:
    A. The satisfaction of these humans will be lowered by cooperation. This must lead to violence and war.
    B. The satisfaction of these humans will be increased by cooperation. This must lead to a system where resources are shared out. “Property” emerges.

    I want to know why Objectivists don’t see things this way. Is there an another logically-consistent way of arriving at the concept of “property”?

    Published: December 27, 2009 10:41 PM

  • John Donohue

    Jay Lakner

    a “private protection agency” with unchallenged power, authority, weapons and justification to arrest, detain, judge and punish a citizen AGAINST HIS CONSENT is a state. It is a government. Just because you call it a private police force or whatever does not change this.

    However, I will stand corrected to my shame if you tell me your private protection agencies do not have police power.

    “Anarchy is the perfect form of society to utilize this human attribute because individuals can only maximize their wealth by satisfying the desires of others.”
    This is nuts. There is nothing in anarchy, no ultimate power, to protect the citizens from the emergence of a private protection agency that initiates force to take over wealth because of greed.

    You can’t get to your arbitration, insurance and fair competition. Not under anarchy, and ESPECIALLY if in addition IP is verboten. It is impractical.

    You did not address my non-wishy-washy arguments, so your reply to me just proves that you have no answer to it.

    Published: December 27, 2009 10:51 PM

  • Bala

    John Donohue,

    ” I won’t repeat it. That is, unless he continues to insist he IS an Objectivist. ”

    Thanks for the clear message. Now, I insist that I continue to be an Objectivist. So, in keeping with your solemn word (I presume you are a man of your word), please repeat your arguments.

    Published: December 27, 2009 11:30 PM

  • Jay Lakner

    John Donohue,

    I cannot speak for other anarchists, but I propose that there will virtually always be competition. In rare cases one agency may do such an incredibly brilliant job that all others go bankrupt, but this will be a temporary situation because large businesses are always less efficient and more resistant to change than small ones. All monopolies eventually break down.

    Will it ultimately turn out that all anarchic societies eventually become minimalist states? Possibly. I can’t prove it one way or the other but I am always actively seeking new insights on this matter.

    Unlike yourself, I am not going to pretend to know things I do not know.

    As for your non-wishy-washy arguments, I didn’t see any. Unfortunately your post was a mish-mash of different ideas combined with false and unsubstantiated premises. It’s very hard to determine which of your arguments have merit and which do not.
    I request that you lay out your arguments against anarchy, point by point, so I can address each one individually. If you take me up on this request, please make sure each point is clear and concise.

    Published: December 28, 2009 12:01 AM

  • Alexander

    “Just gang violence and civil war. Basically….anarchy!”

    “Basically”, go read up on anarchism, John Donohue. Now.

    PS:

    You mises.org guys have lots of patience. So much typing energy/time spent trying to educate an ignorant-yet-pretentious troll. I’m impressed!.

    Published: December 28, 2009 12:20 AM

  • John Donohue

    I am aware of the bizarre imaginings of “anarchists.” I don’t need to read up. They can never exist in reality, therefore they are void.

    I am not a troll in a thread that specifically calls out Objectivism. It is I who am patient. Most Objectivists would not give this thing the time of day.

    Mostly I do it in memory of von Mises. And for any actual Objectivist or student of Objectivism who walks in here seeking the value that von Mises once stood for and gets confused by the thinking of the current squatters.

    Published: December 28, 2009 12:36 AM

  • John Donohue

    Bala proven to not be an Objectivist

    http://www.dianahsieh.com/blog/2009/12/objectivist-recants-on-ip.shtml

    posts 134, 136, 137 and on.

    QED

    Published: December 28, 2009 12:40 AM

  • John Donohue

    Jay Lakner:

    Don’t lecture me about clear and precise, your response is mashed potatoes to what I actually already clearly demonstrated.

    Let’s take on point at a time if you must, if I have the patience.

    1) Please confirm or deny or edify: do the “private policing agencies” have coercive control over a given geographical area? To say it again in another way: can the agency arrest, detain, judge, incarcerate, fine, expatriate a person against his will?

    Published: December 28, 2009 12:50 AM

  • Jay Lakner

    John Donohue wrote:
    “1) Please confirm or deny or edify: do the “private policing agencies” have coercive control over a given geographical area? To say it again in another way: can the agency arrest, detain, judge, incarcerate, fine, expatriate a person against his will?”

    No.

    They cannot judge, incarcerate, fine or expatriate people.

    They do not have coercive control over a given geographical region. Many different protection agencies will compete within the same geographical area.

    Private protection agencies only have a few limited functions:
    – Direct intervention when a client’s property is being violated. (This includes the client’s body as well)
    – Investigation of crimes committed against their client. (Although this may overlap with an insurance company’s role, if the insurance company itself is not a protection agency)
    – Arrest and detainment of criminal offenders, in cooperation with the offender’s protection agency.

    If a protection agency wrongfully arrests and/or detains someone, they are then liable to the protection agency of that person.

    If, in the course of investigation, a private protection agency violates someone’s property rights (for example, trespass), they may need to demonstrate that this violation was justified.

    Published: December 28, 2009 1:46 AM

  • Seattle

    Donohue, allow me to remind you that not every anarchist agrees with the “Private Defense Agency” vision of a “stateless” society. Personally I think the idea is so prevalent because of a lack of creativity: I’d certainly hope our children can think of a better way to maintain order in society without having armed patrols in the streets, no matter whose payroll they’re on. Of course every non-anarchist demanding to see the anarchist “solution” to social problems doesn’t help, and is probably what lead to such a rushed abomination of an idea.

    But this is irrelevant; You made it clear long ago you have no interest in actual discussion and your only desire is to cause trouble.

    Published: December 28, 2009 1:56 AM

  • Fallon

    John Donohue,

    Your belief in a one power from which society will arise is utopian and especially compared to much of anarcho-capitalist thought.

    This gets back to my original question about inequality. Not everyone will be in that entity you invest ultimate authority in. Who do you think such an authority will tend to favor and at whose expense?

    Why is it that, under your form of government, people who are members of government can act in such a way that would be deemed criminal for ordinary citizens? How does taxation- forced expropriation- square with Objectivism?

    On top of it all, the authority you wish to support gets to be final arbiter in disputes that it itself is a primary disputant in. How does this government scheme of yours answer the ages old question “Quis custodiet ipsos custodes?” (Who will guard the guards themselves?)

    It can’t satisfactorily because it is shackled by Hobbesianism. You are willing to have seats of the government be up for grabs- but you never question the existence of the government itself? It will live forever….like the Right Objectivism you embrace.

    When things cannot be held in market competition that leaves on balance Darwinistic competition, predator vs. prey relationships- between human beings! That is what is implied in your presumption of government outside personal sovereignty.

    Market competition is the only way to increase the probability that no dominant entity arises permanently. Even the ideological belief in personal sovereignty and in property rights is left open to challenge- even though civilization depends on its continuity.

    You already know that property rights incentivize cooperation. Why not extend the idea to eclipse government by political (coercive) means? Under a propertarian regime organizations will arise that exert influence and mitigate anti-civil elements still. There are no guarantees that civilization will not revert back to your current idea or worse though.

    Your scheme necessarily introduces a less-than-efficient price mechanism, at the very least. When the monopoly system expands to become de facto owner of all things the price mechanism is destroyed and the peaceful expansion of the division of labor ceases. You seek the middle ground but there is not one. I am sure you have read Mises on middle of the road policy and you know where it leads. I am placing government at the new middle.

    With this in mind I then ask why it is that for all the anti-Bolshevism government Randians claim why do they give the process down that road a head start?

    Of course, Objectivism tells you that your kind of monopoly government could never devolve into totalitarianism. What I am saying is that whatever sphere coercive government occupies is totalitarian. What else can be expected but privilege, status and producing the least quantity and quality for the most cost, from an institution resting on that inequality I mentioned?

    The state is the highest form of master-slave relationship yet invented by man. And you support it.

    Finally, I say you needn’t cling to what you believe is the proper Objectivism and honoring of Mises. Remember that Mises sought to improve on his heroes. He rejected Ricardo’s labor theory of value but completely embraced and expanded upon comparative advantage.

    Likewise, the Tannehill’s incorporated much Randian thought into The Market for Liberty. The dynamic Stefan Molyneux has as well. Both are anarchists.

    Is this all mere blasphemy?

    Published: December 28, 2009 2:22 AM

  • Bala

    John Donohue,

    You are fundamentally mistaking strongly worded accusations and insinuations for proof. A casual reading of that thread would reveal that you never once went through the following process.

    1. This is the definition of an Objectivist
    2. This is what Bala is
    3. Hence Bala is not an Objectivist

    You are suffering from an exaggerated assessment of the worth and substance of your arguments. Please revisit them and come up with something better.

    Published: December 28, 2009 2:34 AM

  • Jay Lakner

    Seattle,

    I disagree with the assumption that the existence of private defense agencies means there would be armed patrols in the streets. I never said anything about armed patrols. Where did you get this idea from? I certainly don’t envision armed patrols.

    But I do completely I agree that we really have no idea how a free society will meet its protection requirements.

    Donohue seems to believe, with absolute and complete certainty, that anarchy is ‘fundamentally flawed’. By showing him a way that anarchy can work (even if it’s way off), I am hoping to remove some of his certainty.

    It’s a small step, but better than no step at all.

    Published: December 28, 2009 2:46 AM

  • overtheedge

    For property to exist, labor is the activity that will secure it in the first place. This can be by homesteading, hunting, harvesting, mining and manufacturing of the raw materials secured by labor.

    Each person must either go through this process or secure it by trading labor or labor credits secured by expending the labor in pursuit of something desired.

    In every case manufactured goods are limitted in quantity. This limitation exists by virtue of hours of labor expended. This limits labor credits to secure another laborer to manufacture for you. Profits are limitted.

    To secure additional laborers and the requisite raw materials requires labor credits. The facilities, tools and design are supplied by the owner. Each laborer is renting the tools and raw materials for which the owner gains profit. Again, a limit is reached due to service area.

    Any additional increase in the business requires additional labor credits. The can only be secured by selling a portion of the business or getting a loan from other people. This will demand some logical reason to trust your ability to pay the labor credit back plus interest.

    If anyone can make the item, why would anyone loan you labor credits. Nothing stops the hired laborer from walking away with the design. If said laborer was frugal with their labor credits, they could secure the tools and materials to become a competitor.

    Limitted IP rights fulfill the need of security for the investor to loan the labor credits.

    The other option is a return to feudalism. If your product meets the Lord’s need, he might grant you monopoly rights as well as forced labor and seized raw materials.

    Philosophical arguments will never alter human nature. Utility at least understands human nature.

    Virtually every system of governance has been tried. They all worked after a fashion. Anarchy existed toward the tail end of the French Revolution. It didn’t work. IP has been respected for centuries. It works BUT it has been expanded too far in encompassing the not-so unique product and the duration.

    The Constitution is quite clear. Limitted Times is NOT renewable, 99 years or 17 years. Limitted means limitted.

    Published: December 28, 2009 3:02 AM

  • Bala

    Jay Lakner,

    ” I have never seen a line of logical reasoning that links Objectivist premises to a definition of property. ”

    Neither have I. My reading of Ayn Rand gave me an idea, in scattered bits, of what she meant by “property”. However, I did not come across a comprehensive theory of property.

    I would be happy if someone who claims that he is a real Objectivist (Like John Donohue out here) would direct me to readings that constitute an Objectivist theory of property.

    Published: December 28, 2009 3:11 AM

  • Bala

    Jay Lakner,

    This is what I meant when I said “scattered bits”

    http://aynrandlexicon.com/lexicon/property_rights.html
    http://aynrandlexicon.com/lexicon/patents_and_copyrights.html

    The more closely I look at it, the more convinced I am that it is incomplete because it lacks a proper definition.

    Objectivists typically claim that their proof is inductive starting from sound axioms (like “Existence exists”) using a process of reasoning. I am however waiting for an Objectivist who would provide an inductive justification for treating ideas and patterns as “property” or maybe even a general Objectivist Theory of Property.

    Published: December 28, 2009 3:24 AM

  • Peter Surda

    @Jay & Bala:
    I have not heard a reasonable property definition from IP proponents yet. In my opinion, the definition should have absolutely obvious demarcation rules, because that is the function of property. Without the ability to make a clear distinction between what is one’s property and what isn’t, the definition is useless.

    I agree with Bala that it is more fruitful to show the IP proponents that their own premises lead to contradictions or nonsense. That’s what I’ve been trying to do. Unfortunately, it usually ends by being ignored or is addressed with the Chewbacca defence.

    Published: December 28, 2009 4:34 AM

  • Russ

    John Donohue wrote:

    “Here is the obverse, and an answer to another person above who claims one can be anti-IP and NOT anarchist. If anti-IP but not anarchist, then you have a government. One government. That government will be protecting the rights of the pirates when they steal logos, product names, secret processes, company names, advertising/branding, inventions, information, etc. In short it is open season on everything that makes commerce and capitalism feasible.”

    You are a master of the “package deal” fallacy, apparently. Or at least you’re setting up an overly simplistic straw-man, and then knocking it down. In anti-IP-Land, stealing of “secret processes” would still be illegal, if that involves breaking into somebody’s property, of course. As for company names and branding, copying somebody else’s company logo or whatever would constitute fraud.

    As for “inventions”, patents would not exist, of course, but that would not make capitalism unfeasible. You’d just have to be more competitive in manufacturing, to make up for the lack of an artificial monopoly.

    Published: December 28, 2009 7:20 AM

  • Deefburger

    I’m an Objectivist who is IP reformed.

    Property, at least in my version of Objectivism has these requirements.

    Observability
    Manipulation
    Control

    The first is supported by it’s existence, and the Owners ability to see and recognize it. He must be able to measure it in some way.

    Manipulation requires that the owner be able to utilize it, or change it in some way.

    Control requires that the owner be able to secure it in some way. Control is the ability to prevent trespass.

    If all three of these premises can, in reality, be met, then you can begin to talk about it as Property.

    Ideas do not meet the requirements of Control. There is no way to fence them, place markers on them, contain them or warn of impending trespass. You can’t put a guard dog on your intellectual property to warn off would be thieves.

    You do not have control of the metaphysical. You have Observability, you have Manipulation, but you do not have Control.

    I see another area of difficulty as well. Ideas in and of themselves are never at issue in the IP arena. It is always the means by which they are transmitted to others via a physical medium. It is in the physicality of the transmission that the requirement of Control is met. But the medium of transmission is not the idea, it is the carrier medium of the Logo.

    Now you have two separate issues of property,

    1) the idea itself which is metaphysical and only meets the first two requirements, and

    2) the transmission medium which is physical and meets all three requirements.

    Let me define the transmission medium: Anything physical that can transmit enough information about a metaphysical object that the metaphysical object can be observed by the recipient.

    A piece of paper with words on it is a transmission medium. The metaphysical portion is the meaning of the words.

    So here is where we have difficulty in understanding the IP argument. Any product you produce utilizing your idea becomes, by default, a transmission medium.

    The idea of what you made and the thing you made are two different objects, with very different properties. The thing you made is physical, and therefore a Property (Big P for own-able thing). The idea of it, is now multiplied and will continue to multiply as more and more minds observe the transmission medium. This cannot be stopped, and can only be prevented by not creating the transmission medium in the first place!

    How is the transmission medium related to the idea? It is not the idea, but a patterning similar to the actual thought. We never make something exactly “perfect”. We get close enough. So if the transmission medium is never a perfect representation of the idea, then what part of the idea does it actually contain? Has the creation of the transmission medium captured some of the idea within it? No. It is an inexact copy. The original idea is still where it was in the first place, metaphysical reality.

    What the transmission medium accomplishes is the transmission of enough information that the receiver, the Observer of the medium, can locate the idea, can “find” it within the metaphysical space of mind. This happens even if the purpose of the medium is an end in itself, such as a painting, a moon rocket, a bridge or a bow and arrow.

    The perfect version of Atlas Shrugged never left Ayn Rand’s head.

    Published: December 28, 2009 11:34 AM

  • John Donohue

    well, you know what?

    There is an old joke, a one-liner that is appropriate here. It’s a parody of an Old Left slogan.

    “Anarchists, Unite!”

    Obviously there is no one idea of “a way the world would work under anarchism”; there are multitudinous ways.

    And I am not just talking about the fine points of differentiation. I am talking about truly fundamental differences. Essential differences. For instance, some of you seem to think the private police agencies can arrest someone against his will and some think they can’t. Some (seem) to think these agencies themselves are too much. I believe Mr. Kinsella is on record as saying “his” private agencies would indeed have arresting, incarceration powers. I will of course retract that if inaccurate. None of you can say how the rise of the petty tyrant (once called a ‘private police agency’) would actually be prevented.

    At least when Objectivists discuss proper government (that’s the phrase we use) we all agree on the deep essentials; it is only on details that we have creative differences. It is a normative science: “What is the proper political system for man qua man.”

    Here is why: Objectivism is an actual philosophy. One of its branches, politics, rests on Rand’s Primacy of Existence Metaphysics and a formal epistemology. Therefore, the organizing concepts of the politics can be traced back to these roots.

    So be it. The anarchism of anarchism prevents me from probing the validity of anarchism as a proactive political science, because it is not one; it is an amalgam or loose coalition of positions, not actually proactive of a metaphysical base. I honestly can’t even say what the positive organizing principle is. I know if I offer a possible proactive organizing principle you guys are very likely to jump all over it and claim “that’s not what anarchism means.”

    At best, it is probably safe to say all Anarchists Are United by a negative: they are “against the State” by which they mean the Rothbardian Leviathan. But just as atheism is not a “something”, it only says the belief system does not mention God, so anarchism is not a “something”; it is only against Big Brother.

    Absent an actual political philosophy, arguments “against protection of intellectual property” are meaningless.

    Last: there is an ultimate pathos about anarchism. It can never come about. Absent a proper government, and at the occasion (for a moment in time) of “no government”, there is zero chance that the “no government” status will obtain. Given the options of no government and totalitarianism, no government pathetically stands zero chance. Absent proper government, the boot of Attila will march. Therefore, Mr. Kinsella’s discussion of “Intellectual Property Should Not Be Protected”, given that he is an anarchist, are just dust in the wind.

    Published: December 28, 2009 1:01 PM

  • John Donohue

    Bala is not an Objectivist. The proof is in the link I provided. God only knows what cracked motivation he has for the posturing that he is.

    Published: December 28, 2009 1:04 PM

  • John Donohue

    Jay Lakner i appreciate your post which detailed your position.

    I think your described arrangement, which is congruent with others I have heard and read over time, does not hold together, that parts of it contradict other parts. Be that as it may, someday you and others would hope to get a chance to try it out.

    I am declining to discuss further, simply because I prefer to argue essentials, not implementation details. While I asked you to clarify that one point, and I appreciate you doing so, your answer and the ‘general noise’ of this room indicates going further is of no purpose. You and I do not share the root belief, so we would be speaking past each other.

    Published: December 28, 2009 1:23 PM

  • Seattle

    Donohue, for the rest of eternity you shall be known as “Mr. Meatcake.”

    Mr. Meatcake, it’s not a very good idea to call yourself, or anyone else, an “anarchist.” Problem is there’s no single idea which all people who call themselves “anarchists” happen to hold. If you’re willing to be a little liberal with definitions, you can make a legitimate case that anyone is an anarchist.

    Furthermore, you seem to be suggesting that this disconnect weakens the arguments of everyone under the flag of “anarchism.” In the future, please discuss the consistency and merit of actual ideas rather than keep up these childish games.

    Published: December 28, 2009 1:35 PM

  • PirateRothbard

    I would say John Donohue is an anarcho-capitalist and he doesn’t realize it. A pro-IP anarcho-capitalist like Rothbard.

    Consider this: suppose John Donohue encountered a city where multiple security companies were acting effectively to provide security. Th question: does Donohue feel he would be justified in forcing these groups to adopt a “government”.

    If he says yes, he believes in coercion. But Donohue has said before that he doesn’t believe in coercion.

    If he says no, he is an anarcho-capitalist.

    If he says it is irrelevant because that kind of city would never exist, then he is admitting that issue of multiple security industries is a moot point, since the market would demand security industries with geographic dominance that would be indistinguishable from his Objectivist state.

    Published: December 28, 2009 2:46 PM

  • Bala

    John Donohue,

    ” Absent an actual political philosophy, arguments “against protection of intellectual property” are meaningless. ”

    Absent an actual theory of property that outlines what may be called “property” and why, thus clearly establishing that labelling ideas & patterns as “property” is moral, arguments for protection of intellectual “property” are equally meaningless.

    Your persistence in discussing the validity (or the lack of it) of anarchism on a thread pertaining to “Intellectual Property” is interesting and reveals the total lack of arguments as well as the intent to engage in them.

    ” Bala is not an Objectivist. The proof is in the link I provided. ”

    I still wonder how that is proof. There is no argument from fundamentals (from your side) as on this thread. Only tall claims with a lot of bluster and posturing. Does that indicate your general approach to discussion? I guess it does.

    ” Therefore, Mr. Kinsella’s discussion of “Intellectual Property Should Not Be Protected”, given that he is an anarchist, are just dust in the wind. ”

    Here’s what Rand had to say in “The Argument from Intimidation” (The Virtue of Selfishness, Centennial Edition, pp 162).

    ‘The ad hominem fallacy consists of attempting to refute an argument by impeaching the character of its proponent. Example: Candidate X is immoral, therefore his argument is false.’

    Assuming that you think “anarchy” is an immoral choice, I guess we understand where that leaves you and your “argument”.

    Frankly, in the time that you took to type out this outburst, you could just as well have typed out the inductive derivation of the validity of IP starting from fundamental principles. You would have had a realistic chance of proving your point. Why aren’t you doing so and why are you choosing the ad hominem fallacy? An introspection is likely to hold the following possibilities.

    1. You do not have an idea of the inductive proof
    2. You understand the inductive proof but are scared to put it up out of fear it would be ripped apart and your fun house blown to smithereens

    I think it is more likely the latter than the former.

    Published: December 28, 2009 3:13 PM

  • John Donohue

    Pirate Rothbard: in your city in question, are the three security forces all strictly voluntary compliance? Or do they have force power, such as the practice of arresting, detailing, jailing, trying, finining and extradicting people against their will?

    Published: December 28, 2009 3:49 PM

  • John Donohue

    this is not about “geographic dominance”. I am asking you if the agency or agencies use coercion in the executing of its mission.

    Published: December 28, 2009 3:52 PM

  • PirateRothbard

    John,

    Before going into my example, I think I’ve found a better way to put it.

    Anarcho-capitalism is simply a philosophy where coercion is prohibited. You’ve said that Objectivism forbids coercion. Therefore I see the too philosophies as the same. You are just a pro-IP anarcho-capitalist.

    You seem to go on an on about how multiple security agencies enacting punishment in a geographic area won’t work.

    But anarcho-capitalism does not have a moral imperative that multiple security industries exist within a geographic entity. We believe such a society would society would be moral if it were sustainable, but if it isn’t sustainable it won’t exist.

    It could be that a company will only have customers within a certain geographic area and thus be indistinguishable from an Objectivist non-coercive state. The company would negotiate with all its customers on the outskirts of the geographic area to give it the power to enforce its borders so that anyone coming in to visit would agree to follow the rules of the security industry.

    Anarcho-capitalism and Objectivism use very different terminology and I feel this creates a lot of confusion.

    Published: December 28, 2009 4:40 PM

  • Jesse Forgione

    I just want to point out that John Donohue actually typed out the following, presumably with a strait face:

    “I have elsewhere pointed out that absent one ultimate authority, there is nothing stopping someone setting up a repressive system. Further, what would stop this thing from attempting monopoly?”

    Published: December 28, 2009 6:09 PM

  • Nick

    I can’t speak for Stephan but I think he explained it very well

    To be an anarchist only means that you believe that aggression is not justified, and that states necessarily employ aggression. And, therefore, that states, and the aggression they necessarily employ, are unjustified. It’s quite simple, really. It’s an ethical view, so no surprise it confuses utilitarians.Accordingly, anyone who is not an anarchist must maintain either: (a) aggression is justified; or (b) states (in particular, minimal states) do not necessarily employ aggression.

    Published: December 28, 2009 7:48 PM

  • Bob Kaercher

    Amidst all of Donohue’s fuming about the supposed evils of anarchism, he hasn’t once explained by what principle of justice do re-arrangers of scarce resources have the right to control by force the property of others, something every IP proponent has to answer in order to be taken seriously in the first place. Their consistent failure to resolve this moral dilemma is one of the big reasons they’re so on the ropes these days.

    Published: December 29, 2009 12:07 AM

  • Bala

    Bob Kaercher,

    ” he hasn’t once explained by what principle of justice do re-arrangers of scarce resources have the right to control by force the property of others ”

    John Donohue and other Objectivist IP proponennts will deny this charge because according to them,

    1. there is no rearrangement of property rights as you claim

    2. that defining property rights based on “scarcity” reflects a poor epistemology

    3. that the inability to see intellectual property as a distinct category of legitimate property reflects a concrete-bound mentality and

    4. that the so-called rearrangement of property rights is nothing more than the enforcement of legitimate property rights that they cal IP rights

    In effect, they would consider your question as not worthy of an answer and an attempt to escape addressing the legitimacy of IP using false arguments. Your question is, to them, very “libertarian” and does not address the moral issues that the Objectivist sees as being at the heart of the IP debate.

    In effect, they consider IP opponents as enemies of Capitalism because they do want to bring about a system in which “legitimate” property rights will not be secured and which would hence be a monstrosity in the name of Capitalism.

    I’m therefore not surprised that John Donohue is fuming.

    The better, or rather the only way of taking them on is to show that there is no inductive validation, starting from Objectivist axioms, for treating ideas & patterns as property. In other words, you are better off showing that IP is immoral in the Objectivist framework itself.

    Published: December 29, 2009 3:48 AM

  • Russ

    Bob Kaercher wrote:

    “Amidst all of Donohue’s fuming about the supposed evils of anarchism, he hasn’t once explained by what principle of justice do re-arrangers of scarce resources have the right to control by force the property of others…”

    All property rights are predicated on controlling what others can do with their property. If you are against IP for this reason, you must logically be against property for this reason as well.

    Published: December 29, 2009 5:48 AM

  • Jesse Forgione

    “Just as in the material realm the plundering of a country’s wealth is accomplished by inflating the currency — so today one may witness the process of inflation being applied to the realm of rights. The process entails such a growth of newly promulgated “rights” that people do not notice the fact that the meaning of the concept is being reversed. Just as bad money drives out good money, so these “printing-press rights” negate authentic rights.” –Ayn Rand

    Whether it’s a “right to a job,” a “right not to be offended,” or a “right not to be copied,” made-up rights are always a violation of real property rights. The opponents of IP are not making the pragmatic argument that they may steal the property of others so long as it’s not physical property. They are explaining (mostly to deaf ears) that the concept of non-physical property negates the concept of physical property. If you claim ownership of methods and patterns, and control the use of my real property by initiating physical force, you are not defending some ethereal piece of property, you are simply a criminal.

    Published: December 29, 2009 10:03 AM

  • Russ

    Jesse Forgione wrote:

    “… the concept of non-physical property negates the concept of physical property. If you claim ownership of methods and patterns, and control the use of my real property by initiating physical force, you are not defending some ethereal piece of property, you are simply a criminal.”

    Once again, no, IP does not negate classical property rights. You are simply stating that IP rights are not valid, instead of trying to justify why that is so, and then following the logic of that unbased assumption. But if IP rights are valid, that does not invalidate classical property rights, any more than my classical property rights invalidate your classical property rights. *ALL* property rights, classical or otherwise, imply the right to limit what others can do with their property, else they are useless!

    I agree that IP is not valid, but let’s not use specious arguments that could also be used to attack classical property rights. We’d be shooting ourselves in the foot if we did that.

    Published: December 29, 2009 10:43 AM

  • PirateRothbard

    Nick,

    The point is that Stehpen’s logic is sound, but it is possible for an Objectivist to have a different definition of the word “state” than what anarcho-capitalists have.

    If an Objectivist uses the word state to refer to a non-coercive entiy, that I would say he is a type of anarcho-capitalist.

    Published: December 29, 2009 11:57 AM

  • John Donohue

    I am not fuming. I am bored.

    It’s things like this:

    PirateRothbard I thought we were going to take one point at a time. I set that up, you changed your mind and sent back a reply full of things pointing in all directions, and none of them answered my 1). Not only that, when I specifically wrote that my first item was NOT about this geographical thing, you went off on it again. IPlus, if you didn’t like my “one thing” why didn’t you say so and counter offer one simple single clarifying idea?

    And this, quoting Mr. Kinsella:
    “To be an anarchist only means that you believe that aggression is not justified, and that states necessarily employ aggression. And, therefore, that states, and the aggression they necessarily employ, are unjustified. It’s quite simple, really. It’s an ethical view, so no surprise it confuses utilitarians.”

    But he does not even believe that himself! He supports your “private policing agencies” actually coercing people who, for instance, break into someone’s home to wreck their CD duplicating equipment being used to make/sell unauthorized copies of someone else’s music. That’s what I said, the arrested (against his will) person is the breaking-in-composer-guy. He is aggressively coerced into a private police car, etc. Isn’t that correct, Mr. Kinsella?

    Here’s why I am bored. Your ‘anarchist’ thing cannot ever come about. You are hoping for no less than the withering away of the state, same as Marx and hoping everyone will behave nice. At least Marx had the wisdom to know he had to allow the bourgeoisie some protection for their businesses so they could generate the loot so the proletariat could loot it. You people actually HATE that which makes wealth-building possible, namely protection of intellectual property and a central authority constricted to a response against the initiation of force, aka proper government.

    So your whims are more fantastical than Marx. You constantly talk about these “businesses” and “companies” as if they could actually magically come into existence and actually stay in business under your whacko setup.

    So it’s boring. You guys are worse than the monks spending years figuring out the number of angels that can fit on the head of a pin. They were being more practical than you.

    My parting shot is:

    I don’t think Mr. Kinsella actually WANTS his daydream anarchist culture to come into being. He wants to have his capitalism and eat it too. He has not responded to my inquiry about if he is still working as a patent lawyer. That is his right. Even without an answer to that, his position per his writings proves he wants to construct reality such that “business” and “companies” and “law” and “agencies” will materialize, even though he is a voracious eater of that which makes them possible. Miss Rand has a word for that and you all know what it is.

    John Donohue
    Pasadena, CA

    Published: December 29, 2009 12:15 PM

  • Stephan KinsellaAuthor Profile Page

    Donohue: force against agressors is not aggression. You seem to have a very undeveloped understanding of libertarian principles b

    Published: December 29, 2009 12:55 PM

  • Scott D

    John Donohue:

    “He is aggressively coerced into a private police car, etc.”

    The concept of aggression and retributive action taken against an aggressor is covered in much detail in libertarian literature. An aggressor opens him or herself up to retribution from the one who was aggressed upon. Self-defense in the face of an assault, for example, is not considered aggression. By using or threatening to use force, an aggressor gives the victim no other recourse but to respond with force. If I remember correctly, Stephan Kinsella has his own ideas here in the concept of estoppel. Look it up if you want his own answer to your objection.

    “You people actually HATE that which makes wealth-building possible, namely protection of intellectual property and a central authority constricted to a response against the initiation of force, aka proper government.”

    Your second point first. What you describe is a contradiction. Are we in agreement that government holds the monopoly on the legal use of force? Are we in agreement that, in the real world, such an organization must be funded? How is that funding obtained? What happens if there is a shortfall in “donations”? Anarchists hold out hope that there is another way, a better way, than forced servitude to even a hypothetically benevolent government.

    Now, as for the subject of IP, I am quite skeptical of the assertion that we (and capitalism itself!) are all doomed without it. I can see whole industries having to painfully readjust to the lack of government-enforced IP laws, but it is a bit of a logical jump to presume that trade and capital accumulation become impossible without them. I think that you are taking the idea of, “But if anything anyone creates can be copied, no one will want to create anything at all!” (patently false, no pun intended) and running with it.

    Published: December 29, 2009 1:50 PM

  • Russ

    John Donohue wrote:

    “You people actually HATE that which makes wealth-building possible, namely protection of intellectual property and a central authority constricted to a response against the initiation of force, aka proper government.”

    Your idea that IP makes wealth-building possible is patently ridiculous. There was wealth before IP laws came about. And people still make money manufacturing things after their patents run out on them. Heck, people still make money printing books that are freely available on the Internet. Intellectual property tries to apply laws developed for material property to immaterial property, which has a completely different nature. It is thus a legal fiction with no rational basis in natural law.

    Published: December 29, 2009 3:38 PM

  • Stephan KinsellaAuthor Profile Page

    Donohue: “You people actually HATE that which makes wealth-building possible, namely protection of intellectual property and a central authority constricted to a response against the initiation of force, aka proper government.”

    What makes wealth building possible is respect for private property. The state does not respect private property. It invades private property. The comment about a “central authority” betrays the Objectivist neat-freak zeal for having a one-world state that has a “final” say-so.

    Published: December 29, 2009 4:52 PM

  • Bob Kaercher

    Russ wrote:

    “All property rights are predicated on controlling what others can do with their property. If you are against IP for this reason, you must logically be against property for this reason as well.”

    You misread me.

    What I was saying was that implicit in the concept of “intellectual property” is the assumption that a creator/inventor/innovator by virtue of being such has a right to use *force* against another to prevent them from using *their own property* to reproduce the aforementioned creator’s work in some way, e.g., downloading music, films from the web, etc., using one’s own computer. To use force against someone for such activity would actually be a *violation* of property rights in the libertarian view.

    Published: December 29, 2009 7:20 PM

  • Bala

    John Donohue,

    ” He supports your “private policing agencies” actually coercing people who, for instance, break into someone’s home to wreck their CD duplicating equipment being used to make/sell unauthorized copies of someone else’s music. That’s what I said, the arrested (against his will) person is the breaking-in-composer-guy. He is aggressively coerced into a private police car, etc. ”

    Repeated attempts at question begging do not strengthen an argument. There is no rights infringement in copying. To do so, you have to first assume that the composer has a property right to the pattern he has “created”. What else do I call this but question begging?

    I repeat… Ideas and Patterns (or their instantiation) can NEVER be treated as “property”. That is an unalterable aspect of the very NATURE of ideas & patterns and of man as well. The term “Intellectual Property” is an OXYMORON.

    When you speak otherwise, you are violating the most fundamental principle of Objectivism. The Objectivist Metaphysics is based on an Objective Reality, a concept which Rand restated in simple terms as “Nature, to be commanded, must be obeyed.” or “Wishing won’t make it so”.

    Check this out

    http://aynrandlexicon.com/lexicon/objectivism.html

    You are therefore guilty of whim-worshipping. That automatically disqualifies you from calling yourself an Objectivist.

    On the other hand, everything about breaking into a person’s home and breaking his CD duplicating equipment is an infringement of legitimate property rights. As Stephan noted, force used against this person is legitimate retaliatory force used in self-defence. That you are unable to see this shows how clouded your mind is.

    Published: December 29, 2009 8:00 PM

  • Russ

    Bob Kaercher wrote:

    “You misread me.

    What I was saying was that implicit in the concept of “intellectual property” is the assumption that a creator/inventor/innovator by virtue of being such has a right to use *force* against another to prevent them from using *their own property* to reproduce the aforementioned creator’s work in some way, e.g., downloading music, films from the web, etc., using one’s own computer. To use force against someone for such activity would actually be a *violation* of property rights in the libertarian view.”

    No, Bob, I didn’t misread you. You’re just still not understanding my argument. If IP really were a valid right, then a person *would* have “a right to use *force* against another to prevent them from using *their own property* to reproduce the aforementioned creator’s work”. That’s what the word “property” implies! For instance, let’s say that you own a gun. Let’s say that I own a dog. By virtue of my ownership of the dog, I *do* have the right to use force against you to prevent you from using your own property (your gun) in any way you might wish (e.g. if you wish to shoot *my* dog with *your* gun). Similarly, any property right implies the right to use force to limit what another can do with their own property. If IP were a valid form of property right, it would then similarly be OK to use force to prevent others from using their property to violate that right.

    Saying that IP rights are invalid because they imply that people can use force to limit the use of other peoples’ property, is an invalid argument. Classical property rights also imply that people can use force to limit the use of other peoples’ property. If your argument invalidates IP, then it necessarily also invalidates classical property rights. I don’t think you intend this, but this is where your logic goes.

    Your mistake seems to be the assumption that property rights give you the right to do anything whatsoever with your property. They don’t. The right to swing your baseball bat ends where my front window begins. Similar, if IP rights were valid, your right to use your computer would end where my IP rights begin. Your argument just says that IP rights are invalid, because the limitations they necessarily impose on others’ property are invalid. But the limitations that IP rights impose are no different than the limitations that classical property rights impose. If these limitations are wrong, and invalidate IP, they also invalidate classical property rights.

    If you want to keep classical property rights, which it seems you do, you need to come up with another reason why IP rights are invalid. I prefer an argument that is based on the fact that material objects are scarce goods, while patterns of ones and zeroes are not.

    Published: December 30, 2009 12:47 AM

  • Bala

    Russ,

    ” I prefer an argument that is based on the fact that material objects are scarce goods, while patterns of ones and zeroes are not. ”

    Just to add to what you have said, I also think that the concept “scarcity” and its role in the recognition of an entity as legitimate “property” are often poorly or even incorrectly understood.

    To put it more elaborately, the term “property” is applied to specific units of a class of objects and not the class in general. A table may be my property but not the class “table”. Once we recognise that the term “property” applies to individual units, we see that the “scarcity” we are talking of is not about the limited supply of tables in general but the fundamental aspect of reality that there can only be 1 of a particular table. Either you have it or I do. If I have it and do not wish to give it to you, you will have to wrest it out of my hands, i.e., initiate force against me (in Objectivist lingo) or commit aggression against me (in Libertarian lingo) to gain possession of the said table.

    This “scarcity” is part of the nature of material objects and not of ideas and patterns (strings of 1s and 0s).

    Published: December 30, 2009 1:48 AM

  • Russ

    Bala,

    I understand what you mean, but I think that the word “property” in English can be used in two different senses (well, actually, more than two);

    1) A particular object that a person owns, and…

    2) The collection of all objects that can conceivably be property in the first sense.

    But I’m nitpicking.

    “This “scarcity” is part of the nature of material objects and not of ideas and patterns (strings of 1s and 0s).”

    Yes, exactly. This focus on the *nature* of material objects and patterns is of utmost importance, if you are interested in a *natural* law theory of property. Part of the nature of EM bandwidth is also that it is scarce.

    Published: December 30, 2009 2:08 AM

  • Stephan KinsellaAuthor Profile Page

    “Russ”:

    If IP really were a valid right, then a person *would* have “a right to use *force* against another to prevent them from using *their own property* to reproduce the aforementioned creator’s work”. That’s what the word “property” implies! For instance, let’s say that you own a gun. Let’s say that I own a dog. By virtue of my ownership of the dog, I *do* have the right to use force against you to prevent you from using your own property (your gun) in any way you might wish (e.g. if you wish to shoot *my* dog with *your* gun). Similarly, any property right implies the right to use force to limit what another can do with their own property.

    Sure. And if chattel slavery were valid, the whipping of one’s slave would not be aggression. And if pigs had wings they could fly. But chattel slavery is not valid, and pigs do not have wings–and IP is also not valid.

    Your mistake seems to be the assumption that property rights give you the right to do anything whatsoever with your property.

    No, the assumption is only that you may engage in whatever action you wish, except those that invade the borders of others’ property–where “property” is conceived of in the Lockean sense of scarce resources homesteaded by appropriation, based on the first-comer has better title than the latecomer principle.

    The fact that some actions are impermissible because they are invasions of others’ property rights has nothing to do with any “limitation” on one’s own property. You may not commit murder, whatever the means–whether it’s your gun or not. The limitation on action is not a limitation on property rights.

    They don’t. The right to swing your baseball bat ends where my front window begins. Similar, if IP rights were valid, your right to use your computer would end where my IP rights begin. Your argument just says that IP rights are invalid, because the limitations they necessarily impose on others’ property are invalid. But the limitations that IP rights impose are no different than the limitations that classical property rights impose.

    Wrong. The limitations you are speaking of are not a property rights limitation but rather a limitation on one’s actions.

    If these limitations are wrong, and invalidate IP, they also invalidate classical property rights.

    If you want to keep classical property rights, which it seems you do, you need to come up with another reason why IP rights are invalid. I prefer an argument that is based on the fact that material objects are scarce goods, while patterns of ones and zeroes are not.

    Because the question always comes down to: who owns this scarce resource–e.g., in a typical IP case, the IP “owner” claims the right to prevent A from using a scarce resource A himself homesteaded or acquired contractually from a homesteader. He claims the right to prevent this use even though A’s use–his action–does not invade any borders of A’s property. It is very different than your typical prohibition on murder etc.’

    Published: December 30, 2009 3:20 AM

  • Russ

    “Stephan”:

    What the heck is “Russ” in quotes supposed to mean? My first name is indeed Russ; I explained why I posted using another name earlier.

    “Sure. And if chattel slavery were valid, the whipping of one’s slave would not be aggression.”

    Correct.

    “And if pigs had wings they could fly. But chattel slavery is not valid, and pigs do not have wings–and IP is also not valid.”

    Also correct. And also a use of sarcasm in lieu of an actual argument.

    “The fact that some actions are impermissible because they are invasions of others’ property rights has nothing to do with any “limitation” on one’s own property. You may not commit murder, whatever the means–whether it’s your gun or not. The limitation on action is not a limitation on property rights.”

    I won’t contend against your argument that murder is wrong, whatever the means. Of course, it is just as wrong to murder with somebody else’s gun, or with bare hands. That’s completely beside the point, though. Your property rights *do* imply a limitation on what I can do with my property; I cannot do anything with my property that would violate your property rights. If you view all rights as property rights, ala Rothbard’s self-ownership, then your ownership of your own body also implies that my self-ownership is limited; I cannot rightfully use my body to initiate force against you.

    “Wrong. The limitations you are speaking of are not a property rights limitation but rather a limitation on one’s actions.”

    Again, if one buys into Rothbardian self-ownership, then it’s a matter of “six one way, half a dozen the other way”. The limitation is a matter of a limitation of what one can do (one’s actions) with one’s property (including one’s body). Since we are material creatures, then any action I take must involve use of my property (including my body). And so, any limitation of my actions must involve limitations on rightful use of my property. Even if I were to beg, borrow or steal somebody else’s gun (the last of which would be wrong in and of itself), I would still have to use my body (which I have self-ownership of) to pull the trigger. Any way you cut it, my self-ownership and ownership of my property does not give me the right to do anything I want with myself or my property. My ownership does not give me unlimited rights to do as I wish with my property. My ownership is thus *limited*.

    “Because the question always comes down to: who owns this scarce resource–e.g., in a typical IP case, the IP “owner” claims the right to prevent A from using a scarce resource A himself homesteaded or acquired contractually from a homesteader. He claims the right to prevent this use even though A’s use–his action–does not invade any borders of A’s property.”

    Once again, *if* IP were valid, then A’s use *would* invade the borders of the IP “owner’s” property. You are assuming that which you wish to prove (that IP is invalid), just as Bob Kaercher did. First, you must demonstrate that IP is invalid. Only then can you say that the IP “owner” is violating A’s property rights. You can’t say that IP is invalid because it violates A’s property rights, and it violates A’s property rights because it is invalid; that’s circular logic.

    Published: December 30, 2009 4:32 AM

  • Peter Surda

    I agree with Russ. Presented the way Stephan does it is circular logic. Please remember, both Russ and I are IP opponents. We do not oppose Stephan’s conclusions, merely consider the argument insufficient.

    For an alternative take on the overlap issue, which I hope to be logically correct, kindly consult my replies in another post: http://blog.mises.org/archives/011323.asp
    I added two replies since yesterday, hopefully they will clarify my position.

    Published: December 30, 2009 5:28 AM

  • Bala

    Russ,

    ” But I’m nitpicking. ”

    Actually, I don’t think it is nitpicking. The English language sure is confusing. Frankly, one of the main points I am making is that the term “property” is a moral concept denoting man’s relationship to objects in his environment. When you point at an object and say “This is my property” you are saying that morally speaking, the object “ought” (morally) to be in your possession with the right to act on it being solely yours with othere needing your permission to do so because not doing to is immoral.

    I therefore think that the best way forward is to develop a Moral Theory of Property that takes into account the nature of the entities involved in the concept “Property” – Man and the objects to which the term “property” is to be applied.

    And yes… I agree with you that Stephan was guilty of circular reasoning and assuming the invalidity of that which is to be proven invalid.

    Published: December 30, 2009 6:52 AM

  • Russ

    Peter,

    Do you believe in property rights in EM spectrum? If so, then consider the similarity between EM spectrum rights and IP (don’t worry, this is not Silas’ color argument). If a person owns EM spectrum rights to a certain frequency range in a certain geographical area, then that means that he has the right to use force to limit the use that others make of the transmitting equipment that they own. There is an “overlap” here; the EM rights of the EM spectrum owner overlap the classical property rights of the transmitter owners. Similarly, if IP rights were valid, then the owner of the IP rights would have the right to use force to limit the use that others make of the computers that they own. There is also an overlap here. I think the overlap would be OK in the IP case, given that IP were proven valid, just as the overlap is OK in the EM spectrum case. I don’t see the overlap as a problem. It’s just another example of the property rights of one person implying limitations on what others can do with their property.

    BTW, thanks to you and Bala for helping maintain my sanity. I felt like a voice crying in the wilderness for a while there.

    Published: December 30, 2009 11:38 AM

  • Bob Kaercher

    Russ: How is using *my own computer* to download a film or a song the equivalent of initiating aggression, i.e., using a “baseball bat” or a “gun” to assault someone and/or invade their property?

    Your analogy should be pointed in exactly the opposite direction. It is, in fact, the *IP PROPONENT* who is against property, since they think that a creator has some right to use a “gun” or a “baseball bat” against others for doing completely peaceful, non-invasive activities with their own property, e.g., using one’s own computer to download a song from the web. Such a definition of property is, in fact–regardless of whether the IP advocate can see it or not–*anti*-property.

    And what Stephan said.

    But I’ll leave off for now and let you have any last words. I don’t see much point in arguing with someone who seems to be desperately looking for kind of semantic loophole in someone else’s argument for who-knows-what reason.

    Published: December 30, 2009 12:48 PM

  • Jesse Forgione

    Russ,

    Owning intellectual property amounts to owning one or more possible uses for physical property.
    For any given piece of physical property, the more of it’s possible uses are owned by others, the less it’s owner is free to use it. He may only use his physical property in ways that remain unclaimed or in ways that he himself owns which others who own similar property may not use (without his permission). If we follow IP to it’s extreme conclusion where all possible uses are owned, we reach the state where no two people may make the same type of use of similar physical property without one getting the permission of the other. If someone owned a piece of physical property, but none of it’s possible uses, he could not be said to own it in any meaningful way.

    In principle, to own a method or pattern is to have a degree of control over all the physical property that exists. To the degree that the various possible uses of others’ property can be owned, those others are not it’s owners.
    Let’s imagine I use my own materials to build a house of my own design. You, my neighbor, own similar materials, and seeing my method of building, you imitate my design for your own house. Now either I am justified in knocking your house apart to take back my intellectual property or I’m not. If IP is valid you have stolen my pattern and I should take steps to get it back. If IP is not valid than I’m a vandal violating your property rights. But we can’t both be right. Either I control the pattern you arrange your property in, or you do. If it’s the former, than you cannot really be said to be “owning” your physical property. This would amount to the fascist model where there is nominal private property but the state controls what can be done with it, rendering the “ownership” meaningless.

    Also, there’s no reason in principle that IP couldn’t be applied to broader, more general or more obvious ideas. What if I owned not just the design of a specific car, but the very idea of a car? …or the very idea of mechanical transportation? …or the wheel? The difference is only in degree.

    Published: December 30, 2009 1:46 PM

  • Jesse Forgione

    Russ,

    Sorry, I should have indicated that the above is in response to:

    “Once again, no, IP does not negate classical property rights.”

    Published: December 30, 2009 1:56 PM

  • Peter Surda

    Hi Russ,

    thanks for the reply. Yes, I believe in “sort of” property rights in EM and explained my position to Silas several times. I think since the last time I explained it I was able to think of a more coherent approach.

    In my opinion, a property infringement means that the integrity of the property is compromised. I didn’t actually come up with the idea, it is one of the known libertarian approaches. In the case of EM, a sender can under certain circumstances cause disruptions in the recipients of other sender’s broadcast. I.e. the integrity of the reception is compromised. This can be prevented (by the second sender) for example by using a different frequency or by agreeing with the first sender to a transmission protocol that allows bandwidth sharing.

    An analogy would be that the senders are producers and the recipients consumers. With IP, the provisioning of services by competing producers do not prevent each other. With EM, in certain cases, they do.

    The analogy I gave to Silas was spraying a wall. Two sprayers can spray on the same wall in parallel, however the wall can only show one picture at a specific time.

    Now, I have not come to the conclusion if it’s the sender or the recipient that “own” the EM spectrum. Arguments can be made with regards to both. Possibly it is a mix of those. Nevertheless, at least one of them has a right to prevent an unwanted sender from disrupting the reception. In some cases, that means they can’t send at all. But it is not the prevention of sending that is the core issue, rather prevention of disruption of reception. If the sender can somehow manage to send without disrupting the reception of another broadcast, there is no infringement.

    Published: December 30, 2009 1:58 PM

  • Stephan KinsellaAuthor Profile Page

    Peter Surda: “I agree with Russ. Presented the way Stephan does it is circular logic. Please remember, both Russ and I are IP opponents. We do not oppose Stephan’s conclusions, merely consider the argument insufficient.”

    Peter, I don’t think it’s circular because our view of property rights is grounded in a Lockean homesteading view as applied to scarce resources. Under that view you can perform any action you want so long as you do not invade the borders of (i.e., change the physical integrity of) another’s Lockeanly-owned scarce resource, without his consent. How is this circular?

    And given this view, to oppose the use of my scarce resource by another, without my permission, is not circular either.

    A consequence of this view is that you may use force to prevent others from committing such invasion. But other types of force would then necessarily be trespass, aggression. Force that is not consented to may be used only in response to trespass, otherwise it is trespass.

    Now, the IP idea says that A may use force against B, if B is using B’s scarce resources according to a certain pattern that A claims some “right” to. In other words, A claims a right to use force against B, even though B never did perform any action that invaded A’s scarce resource, even though B never did change the physical integrity of A’s property.

    That is why A’s claimed right to force is wholly unjustified and is indeed incompatible with the libertarian conception of property rights in scarce resources. We believe every scarce resource should be assigned an owner, based on Lockean principles. IP would set up a second rule for assigning property rights to scarce resources.

    Published: December 30, 2009 6:14 PM

  • Bala

    Bob Kaercher,

    I know you posed this question to Russ, but since I seem to agree with him, I thought I’ll reply.

    ” How is using *my own computer* to download a film or a song the equivalent of initiating aggression, i.e., using a “baseball bat” or a “gun” to assault someone and/or invade their property? ”

    If IP is valid, the very meaning of it is that the patent/copyright holder alone has the right to instantiate the idea/pattern. The very act of instantiation by someone else is an initation of force against the “owner”.

    In typical Objectivist argumentation, the very existence of the idea/pattern being owed to the creator, there is no excuse anyone can give for claiming that they could not have known that someone created the idea. This is similar to saying “Once you have put a fence to your land, there is no way any person can fail to understand that it is your property”.

    Whenever anyone asks “How do you put a marker to show that an idea is owned”, an Objectivist would respond saying that you probably do not even understand the metaphysical nature of ideas – that they cannot come into existence without a creator and that their very “existence” is their “identity” (more Objectivist language, in case you are unfamiliar). You will promptly be labelled “concrete-bound”.

    Just as any person crossing a fence without your permission is guilty of initiating force against you, any person copying an idea is then considered guilty of wilfully ignoring the “metaphysical reality” of ideas and initiating force against the creator (who is the “owner”).

    In this case too, it is the action of instantiating that which is clearly someone else’s idea that is a violation of his “property rights” just as the action of swinging a baseball into my face is a violation of my “right to life” or the action of invading my land is a violation of my “property rights”. In all 3 cases, it is the action that is being restricted. If…. that’s a big IF…. both classes of property rights (physical and intellectual) are valid, someone who disagrees with the “use” of force to defend one has to necessarily disagree with the use of force to defend the other.

    Therefore, Russ is right that if you accept the validity of IP, copying is tantamount to invasion of owned land. Similarly, if you reject IP protection, you should reject physical property protection too on the same grounds.

    Published: December 30, 2009 7:05 PM

  • Bala

    Stephan,

    ” I don’t think it’s circular because our view of property rights is grounded in a Lockean homesteading view as applied to scarce resources. ”

    It is because the basic Objectivist argument for IP does question the validity of the application of the Lockean homesteading view to ideas & patterns and then citing their lack of “scarcity” as the reason to say that they are not “property”.

    Further, Russ’s point was “If IP were valid…..”. A response that says “Since IP is invalid…..” and then goes on to say that force is used to protect the “invalid” right and that that is further grounds to consider the right invalid, one is indeed guilty of engaging in circular reasoning.

    This error is what I meant when in some other post, I said that your arguments are too libertarian. I can clearly see why most Objectivists will not agree with you and why any arguments you have with them turn heated and end in name-calling. You call them “wilful aggressors” and they call you “concrete-bound”.

    Published: December 30, 2009 7:16 PM

  • Bala

    Peter Surda,

    ” In the case of EM, a sender can under certain circumstances cause disruptions in the recipients of other sender’s broadcast. I.e. the integrity of the reception is compromised. ”

    I was thinking on slightly different lines but came to similar conclusions. My thinking was that when I send a message on a frequency, the message is my property just as much as a letter I have sent out in the custody of a courier is my property till it is delivered to the recepient.

    On these lines, my conclusion was that it is not the EM spectrum itself that is owned but the message that is being broadcast on it. Therefore, anyone broadcasting a signal that distorts my message (meaning it would have to be on the same frequency) is violating my property rights.

    Interestingly, I was coming to the same conclusion that if the second user of the same frequency could use it without distorting my message, there would be no property rights violation just as your sending a letter through the same courier does not violate the property right I have in the letter I send.

    Does this make sense? Is it simple to understand?

    Published: December 30, 2009 8:17 PM

  • Silas Barta

    Looks like Peter_Surda and I have a rare agreement on this issue.

    @Stephan_Kinsella:

    Peter, I don’t think it’s circular because our view of property rights is grounded in a Lockean homesteading view as applied to scarce resources. Under that view you can perform any action you want so long as you do not invade the borders of (i.e., change the physical integrity of) another’s Lockeanly-owned scarce resource, without his consent. How is this circular?

    This has been explained to you several times by now, but let’s try it again a different way. The circularity lies in your assumption about which rights you gain by doing how much homesteading, and it is in no way obvious how the rights must work the way you think they do.

    Say I homestead a plot of land. How far above and below does that homesteading entitle me to? Yes, you can justify a specific amount, but that’s the point: you have to justify why your rights extend to that boundary (abstract or otherwise), not just assume that your land ownership implies ownership of the airspace through which planes fly, and then argue that “airplanes necessarily violate the property rights in already-owned land” … which, when you think about it, is pretty much what your IP case is.

    But that’s just the beginning: does homesteading the land entitle you to block (non-nuisance) concentrated sound waves from passing through your land (e.g. ultrasound)? And of course, back to the ol’ chestnut: does the land ownership entitle you to block every single frequency of the EM spectrum passing through?

    Now, there are many cases where you can assume that homesteading entitles you to certain rights. However, here, the very debate is about which rights you are morally entitled to by virtue of homesteading what. And in that case, it is in fact circular to assume a certain level of homesteading-based rights, since you’re trying to prove what the homesteading-based rights are in the first place, which people dispute!

    Note that since this is the central argument of Against Intellectual Property, its circularity isn’t very encouraging when judging its merit as an argument against IP.

    Published: December 30, 2009 10:10 PM

  • Andras

    Not to mention that the act of homesteading itself is totally arbitrary. How do you homestead a land. Setting the horizontal size of it is as arbitrary as the vertical size. Fencing it? Who are you kidding?
    At least a composition of matter patent is unambiguous.

    Published: December 31, 2009 12:48 AM

  • Russ

    Bob Kaercher wrote:

    “Russ: How is using *my own computer* to download a film or a song the equivalent of initiating aggression, i.e., using a “baseball bat” or a “gun” to assault someone and/or invade their property?”

    I’ve already explained that several ways later on in this thread. I said that *IF* IP rights were valid, then using your computer to violate my IP rights would be initiating aggression. Or, if a person’s rights to EM spectrum were valid (which I believe they are), then using your transmitter to violate my EM spectrum rights would be initiating aggression.

    “Your analogy should be pointed in exactly the opposite direction. It is, in fact, the *IP PROPONENT* who is against property, since they think that a creator has some right to use a “gun” or a “baseball bat” against others for doing completely peaceful, non-invasive activities with their own property, e.g., using one’s own computer to download a song from the web. Such a definition of property is, in fact–regardless of whether the IP advocate can see it or not–*anti*-property.”

    Here you are assuming that which you wish to prove, just like Stephan is. Note the words “completely peaceful, non-invasive activities”. You are *assuming* that using a computer to download a song is a completely peaceful, non-invasive activity. But an activity is only completely peaceful and non-invasive if it does not violate rights. So, by assuming that using your computer to download a song is a completely peaceful and non-invasive activity, you are implicitly assuming that it does not violate rights, which implicity assumes that IP rights are invalid. A Randian would call what you are doing the fallacy of the smuggled premise.

    “But I’ll leave off for now and let you have any last words. I don’t see much point in arguing with someone who seems to be desperately looking for kind of semantic loophole in someone else’s argument for who-knows-what reason.”

    I’m pointing out what I believe to be a logical flaw in your argument, not looking for “semantic loopholes”. The reason why I am doing this is that I think your argument is both a flimsy argument against IP and a possible (although also flimsy) argument against classical property!

    @Jesse Forgione:

    I have already argued some of my points elsewhere in this post or thread, so I’ll let those speak for themselves. My comment to you specifically on your last post is that you seem to be going for a sort of reductio ad adsurdem argument against IP. The only problem with using reductio ad adsurdem arguments in philosophy is that some philosophers, being the armchair types they are, won’t find the conclusions absurd! Why not stick to the scarcity argument against IP? It’s perfectly reasonable, and once you have one disproof of the validity of IP, do you really need another?

    Stephan Kinsella wrote:

    “…I don’t think it’s circular because our view of property rights is grounded in a Lockean homesteading view as applied to scarce resources. Under that view you can perform any action you want so long as you do not invade the borders of (i.e., change the physical integrity of) another’s Lockeanly-owned scarce resource, without his consent. How is this circular?”

    It’s not the scarcity argument for the validity of property that I think is invalid. I agree with this. I believe that the circularity is actually in another argument, which you seem to be melding together with your scarcity argument. This is the same argument that Bob Kaercher and Jesse Forgione are using without the scarcity argument to prop it up.

    That second argument is that IP is invalid, because enforcing it violates the property rights of classical property owners. But it can’t be said that enforcing IP violates the rights of classical property owners, unless IP is invalid. Therefore, this argument implicitly assumes that which it intends to prove. As I said before, it is a smuggled premise.

    @Peter:

    However you want to slice the EM rights thing is irrelevant to my argument, I think. The main thing is that we agree that somebody has a right to use force to prevent a second sender from using his classical property (his transmitter) to interfere with the reception of a signal sent by a first sender. As long as we agree on that, we both agree that there is a case of “overlap” between classical property rights and a newer form of property right (EM spectrum rights), where the newer form rightly wins. That being the case, you should have no objection to overlap in general, hence the overlap argument against IP fails, IMVHO.

    Published: December 31, 2009 5:08 AM

  • Peter Surda

    @Russ:
    I believe you commit the same logical error as Silas does when arguing for similarity between EM and IP. In EM, it is not the overlap on the sender side that is the cause of the alleged infringement, rather the overlap on the receiver side. More accurate analogy to the IP case would be if person A was sending signal to person B (potentially A and B are the same), with both A and B’s agreement, instead of B receiving the broadcast by person C, and that was alleged to cause an infringement of C’s rights.

    If one was to make that claim, one could also claim that preventing person A shooting his gun in a way that the bullet leaves person A’s premises and hits person B is equivalent to IP.

    Published: December 31, 2009 5:34 AM

  • Russ

    @Peter:

    I’m afraid I don’t understand your last post at all. Maybe not enough caffeine on my part? I’m not sure I understand your overlap theory completely, and I am trying to organize my thoughts on it as I am writing, so bear with me.

    My understanding of your theory is that IP would be wrong because there is an overlap of rights with respect to a single object; a CD, for instance. Person A owns a CD, but person B owns the software on the CD, and thus could rightfully use force to prevent A from using his CD as he wishes, if that use violates B’s IP rights. You see this as a contradiction due to the overlap of rights, and thus as a disproof of IP, am I right? I don’t see it as a contradiction, and hence don’t see it as a disproof of IP. The reason I don’t see it as a contradiction is because B using force to prevent A from using his CD in any way he wishes, is in principle no different from me using force to prevent you from using your classical property any way you wish (i.e. using your bulldozer to crush my house). It’s the same with EM spectrum rights. It doesn’t really matter what side the overlap is on, receiver or transmitter (although I can’t see how EM spectrum rights could work if the “homesteading” trasmitter owner didn’t own the rights). All that matters is that *somebody* has the right to use force to prevent somebody else from using his classical property (his transmitter) as he wishes. This is an overlap of EM spectrum rights over classical property rights, since it prevents a second transmitter owner from doing with his own transmitter as he would like, but it’s still valid.

    In fact, I would argue that since all property rights involve limitations of what others can do with their own property, all property rights involve overlap, in a sense. Hence, the overlap doesn’t invalidate anything, or all property rights would have to be thrown out the window. I would also argue that your overlap theory is just a more sophisticated packaging of the “IP violates classical property rights, therefore it’s invalid” argument.

    Published: December 31, 2009 8:12 AM

  • Peter Surda

    @Russ:

    I think you misunderstand me. Apparently my arguments are harder to explain than I anticipated.

    You are correct in that overlaps are nothing specific for IP or EM. Which is why abandoned the circular reasoning. Yes, ownership overlaps can also happen if you have purely physical property only, and you are also limited in what you can do with physical property even without IP. Let’s split the argument into two parts.

    Overlap: it is my observation that in case of an overlap, the more abstract aspect always takes precedence. The overlap prohibits (from legal perspective) the owner of the less abstract aspect from using it, but the owner of the more abstract aspect is not prohibited from using it. If you only have physical property, for the duration of the overlap both sides are prohibited from using their aspects. If I mix physical objects that do not belong to me (e.g. cheese omelette from stolen eggs & cheese), this prevents all owners equally from using the results (absent agreement).

    While (hypothetical) ownership of immaterial properties can lead to prohibition of using physical objects, it doesn’t work the other way around. The more abstract takes precedence. Patents > copyright > physical. Ownership of the lower layer becomes insufficient justification for its usage, there is always an overlap between the layers. This is the core of my argument.

    Limits: I don’t think this is an argument I can make within the creation theory of property, from that point of view all limitations whatsoever are irrelevant. I can only show the difference if property is interpreted as a right to integrity.

    Published: December 31, 2009 9:27 AM

  • Stephan KinsellaAuthor Profile Page

    Russ:

    “It’s not the scarcity argument for the validity of property that I think is invalid. I agree with this. I believe that the circularity is actually in another argument, which you seem to be melding together with your scarcity argument. This is the same argument that Bob Kaercher and Jesse Forgione are using without the scarcity argument to prop it up.

    That second argument is that IP is invalid, because enforcing it violates the property rights of classical property owners. But it can’t be said that enforcing IP violates the rights of classical property owners, unless IP is invalid. Therefore, this argument implicitly assumes that which it intends to prove. As I said before, it is a smuggled premise.”

    I am not sure this is right. You say, “But it can’t be said that enforcing IP violates the rights of classical property owners, unless IP is invalid.” But it seems to me you can say that “enforcing IP violates the rights of classical property owners, IF classical property is valid.”

    Published: December 31, 2009 9:47 AM

AM]

Comments

Stephan Kinsella writes: “I am pleased by the thought of their discomfort.”Why? That is negative-sum thinking and leads only to problems.

I still have an outstanding question concerning Objectivism and intellectual property. How do they (Objectivists) handle the obvious conundrum of people coming up with the same idea?Basically, many people can have the same intellectual “property“. So for the Objectivist’s, how do you deprive someone of an intellectual property right that they independently developed? For further reference on what I am getting at see Private Property – Don’t Touch!!!, which deals with a growing real property concern where people believe that they can tell (force) you what to do with your property on the mere assertion that it somehow affects their property.

I still have an outstanding question concerning Objectivism and intellectual property. How do they (Objectivists) handle the obvious conundrum of people coming up with the same idea?Basically, many people can have the same intellectual “property“. So for the Objectivist’s, how do you deprive someone of an intellectual property right that they independently developed? For further reference on what I am getting at see Private Property – Don’t Touch!!!, which deals with a growing real property concern where people believe that they can tell (force) you what to do with your property on the mere assertion that it somehow affects their property.

Hey speaking of the imagined cognitive dissonance of Objectivists, maybe you could help them through their discomfort. Last I checked, admittedly a long time ago, you made your living as a patent lawyer and chief IP counsel for a tech company. Are you still living a life of cognitive dissonance, or have you left behind productive activities to become a full time polemicist?

The reason I argue that “any conceptually identifiable ‘thing’ is ownable” — although I never put it that way — is that without identity differentiating things nothing could be ownable.The reason that creation is the beginning of the moral case for property rights is that without creation nothing other than brute-force possession defines ownership.

As for “the obvious conundrum of people coming up with the same idea” that is just one of the questions I answered 25 years ago in my essay “Informational Property: Logorights,” newly available at http://jneilschulman.rationalreview.com/2009/12/classic-j-neil-informational-property-logorights/.

“Creation is a Person’s action which imposes that Person’s logos on something which exists to give that thing a unique identity it did not previously have. … If the respondent succeeds in demonstrating independent creation, then the petitioner’s original “creation” wasn’t inherently improbable, therefore questionable as a unique creation — and therefore possibly not property at all — for either of them.”

“I would also caution anti-copyright libertarians against assuming their conclusion in using anti-monopoly and ‘privilege’ rhetoric against copyright. Arguments against ‘monopoly privilege’ in the exclusive ownership of a logos ignore the fundamental difference between all property rights, which are monopolistic in the sense of being held exclusively, and monopoly practices, which are invasive.” –J. Neil Schulman, “Informational Property — Logorights”, at http://jneilschulman.rationalreview.com/2009/12/classic-j-neil-informational-property-logorights/
All so-called “intellectual property rights” (or “logorights”, as you prefer to call them) are inherently invasive, though, or at least any enforcement of them must necessarily be. Because enforcing, say, a copyright requires the copyright holder or their agent to monitor consensual transactions between third parties and to stop some such transactions or punish some such parties after the fact.
@ schulman, Good answer. “If the respondent succeeds in demonstrating independent creation, then the petitioner’s original “creation” wasn’t inherently improbable, therefore questionable as a unique creation — and therefore possibly not property at all — for either of them.”

“Because enforcing, say, a copyright requires the copyright holder or their agent to monitor consensual transactions between third parties and to stop some such transactions or punish some such parties after the fact.”That’s true also of any situation where a stolen good is fenced.

I start that logoright is a moral issue before it’s a legal issue or an enforcement issue. The moral case needs to be made even if the only enforcement mechanism is social preferencing. But if people who believe in property rights won’t respect logorights on simple moral grounds then what hope is there for libertarian arbiters to respect them if we ever achieve a free society?

J. Neil, but the infringement of an artificial monopoly is not necessarily a violation of privacy as occurs in burglary.If you burgled my house and stole a copy of my diary, then the fencing thereof would be as immoral as that of any jewellery you might have stolen. However, if I give you a copy of my diary, then you cannot violate my privacy by making a further copy of it. You can only infringe the privilege I’ve been granted to exclude you from making further copies.

It is circular to say that copyright infringement is theft because it is immoral to infringe copyright, and copyright is thus legislated to prohibit such theft.

It would be like saying to free a slave is immoral as it diminishes that privilege of ownership which has been granted to their master, and thus slavery laws have been legislated to protect the master’s property against theft.

You can’t use copyright to justify itself, to pull it up by its own bootstraps. You have to refer to nature. It takes a potentate and a bloody great army to prohibit certain works or designs from being used, performed or copied. This is not the sort of power to find imbued in a lone individual.

We’ve been singing each other’s songs, telling each other’s stories, and copying each other’s baskets and bison paintings for a fricking long time. To say “Thou shalt not copy nor build upon the works of thy neighbour, that mankind can thus progress the faster” is a modern shibboleth that divides the intelligent from the moron. To further elevate it into a matter of morality is the resort of the latter grasping at justification. We need only wait for their brother, the religious nutter, to consolidate the moral imperative with the approval of a deity and the almighty folly will be complete.

You’re doing yeoman’s service, Stephan. Bravo!

J. Neil Schulman writes:”That’s true also of any situation where a stolen good is fenced.”

But here nothing has been stolen.

It is possible to enforce laws against theft without monitoring and interfering with consensual third-party transactions. For example, to stop my car from being stolen I can lock it, lock the garage it’s in, and sit out on my stoop with my shotgun. The police can arrest anyone trying to break in — that’s not monitoring and interfering with consensual third-party transactions because someone trying to break into my car lacks my consent.

On the other hand, if I publish a song, someone buying a copy from me is a consensual transaction. That someone then uploading a copy to someone else via bittorrent is another consensual transaction. It’s also copyright infringement unless I slapped a CC license on that song, but that infringement cannot be enforced against without preventing at least one of those two consensual transactions, or else punishing it, and thus cannot be done without monitoring at least one of them. In fact, there are only two ways it can be done: I avoid publishing the song at all, or else BitTorrent is monitored and some consensual BitTorrent transactions are stopped and/or punished.

This seems wrong.

Short version: without the ability to impede or punish consensual transactions, the fencing of say a stolen car can’t be stopped once the car has been stolen, but the theft itself remains preventable and deterrable. On the other hand, without such an ability, copyright infringement is neither preventable nor deterrable.

Creation can’t be the basis of property, because it begs the question of ownership, which is established with property. If Smith breaks into Jones’s home, goes into his ‘frige and whips up a four-course meal, he is the creator of the meal, but certainly not the owner. Or if he uses Jones’s artists’ materials to paint a masterpiece, he’s not the owner either even though he created it. Jones owns both the meal and the art. Similarly, Mr. and Mrs. Smith, the parents of young Master Smith Jr., are his creator, but certainly are not his owner, even if they have legal custody of him until he reaches his legal majority. Young Smith is a self-owner, and has rights that no one can violate, including his creator-parents. Creators can destroy their property as long as they violate no one else’s rights in doing so. All of these examples are implications of Rothbarian-formulated property rights in The Ethics of Liberty, which is webbed at the Mises Institute site.Interestingly, Rothbard eschewed patent, but accepted copyright. IMO, the reason he did so was based on following Locke headlong over a nasty cliff (“owning your labor,” which you can’t do, because labor is an activity), although JL accepted copyright too. There’s a libertarian paper waiting to be written on why Rothbard got patent right but copyright wrong.

Bill, re a paper about why Rothbard got patent right but not copyright, I have a section in my Against Intellectual Property about this.

The word “monitoring” has arisen in this discussion. Nobody writes: “Short version: without the ability to impede or punish consensual transactions, the fencing of say a stolen car can’t be stopped once the car has been stolen, but the theft itself remains preventable and deterrable. On the other hand, without such an ability, copyright infringement is neither preventable nor deterrable.“I am not sure what his implication is concerning “monitoring“, but the implication seems to be that copyright holders should somehow have an entitlement to intrude (trespass) into a person’s private space on the mere belief that an infringement may have occured. Not only that but there are even demands that third parties should be responsible for protecting the copyright privilege of a content holder.

This approach to copyright enforcement raises extensive concerns with our legal process. Under this “monitoring” concept; should I feel like it, I could break into anyone’s house to search it for the MP3 file I could not locate. Not only that, but I would have an entitlement to demand that the ISP search its data stream for that file too. What does this mean; that copyright holders can assume that we are all guilty and therefore are entitled to create a police state to protect themselves through “monitoring“?

Thanks for reminding me, Stephan, of your discussion about Rothbard. I’ll have another look.

I just want to see CCTV cameras installed at all water coolers with Joke police watching all of them 24x7x365 for Joke IP violations. I mean, why should someone be allowed to tell jokes that they did not think up themselves? Penalties should be something like those for copying a CD or DVD without permission. Say $20,000.00 fine and 4 or 5 years in jail per joke violation.all the best,

drew — Join the Free Music Pushe

There are some nice counterexamples to the ip-creationist fallacy. Another one came to my mind reading this article. Imagine you own one painting by a 18th century artist who created 20 of them. They depict a famous person and these are the only existing original depictions of him. Now what would happen to the value of your piece if I bought and destroyed the other 19 of them? No doubt the value of the only remaining painting would rise. But does that imply I now gained some partial property rights to it just because it was me who “created” the additional “value”?

Archived comments from AM:

Comments

Stephan Kinsella writes: “I am pleased by the thought of their discomfort.”Why? That is negative-sum thinking and leads only to problems.

I still have an outstanding question concerning Objectivism and intellectual property. How do they (Objectivists) handle the obvious conundrum of people coming up with the same idea?Basically, many people can have the same intellectual “property“. So for the Objectivist’s, how do you deprive someone of an intellectual property right that they independently developed? For further reference on what I am getting at see Private Property – Don’t Touch!!!, which deals with a growing real property concern where people believe that they can tell (force) you what to do with your property on the mere assertion that it somehow affects their property.

I still have an outstanding question concerning Objectivism and intellectual property. How do they (Objectivists) handle the obvious conundrum of people coming up with the same idea?Basically, many people can have the same intellectual “property“. So for the Objectivist’s, how do you deprive someone of an intellectual property right that they independently developed? For further reference on what I am getting at see Private Property – Don’t Touch!!!, which deals with a growing real property concern where people believe that they can tell (force) you what to do with your property on the mere assertion that it somehow affects their property.

Hey speaking of the imagined cognitive dissonance of Objectivists, maybe you could help them through their discomfort. Last I checked, admittedly a long time ago, you made your living as a patent lawyer and chief IP counsel for a tech company. Are you still living a life of cognitive dissonance, or have you left behind productive activities to become a full time polemicist?

The reason I argue that “any conceptually identifiable ‘thing’ is ownable” — although I never put it that way — is that without identity differentiating things nothing could be ownable.The reason that creation is the beginning of the moral case for property rights is that without creation nothing other than brute-force possession defines ownership.

As for “the obvious conundrum of people coming up with the same idea” that is just one of the questions I answered 25 years ago in my essay “Informational Property: Logorights,” newly available at http://jneilschulman.rationalreview.com/2009/12/classic-j-neil-informational-property-logorights/.

“Creation is a Person’s action which imposes that Person’s logos on something which exists to give that thing a unique identity it did not previously have. … If the respondent succeeds in demonstrating independent creation, then the petitioner’s original “creation” wasn’t inherently improbable, therefore questionable as a unique creation — and therefore possibly not property at all — for either of them.”

“I would also caution anti-copyright libertarians against assuming their conclusion in using anti-monopoly and ‘privilege’ rhetoric against copyright. Arguments against ‘monopoly privilege’ in the exclusive ownership of a logos ignore the fundamental difference between all property rights, which are monopolistic in the sense of being held exclusively, and monopoly practices, which are invasive.” –J. Neil Schulman, “Informational Property — Logorights”, at http://jneilschulman.rationalreview.com/2009/12/classic-j-neil-informational-property-logorights/
All so-called “intellectual property rights” (or “logorights”, as you prefer to call them) are inherently invasive, though, or at least any enforcement of them must necessarily be. Because enforcing, say, a copyright requires the copyright holder or their agent to monitor consensual transactions between third parties and to stop some such transactions or punish some such parties after the fact.
@ schulman, Good answer. “If the respondent succeeds in demonstrating independent creation, then the petitioner’s original “creation” wasn’t inherently improbable, therefore questionable as a unique creation — and therefore possibly not property at all — for either of them.”

“Because enforcing, say, a copyright requires the copyright holder or their agent to monitor consensual transactions between third parties and to stop some such transactions or punish some such parties after the fact.”That’s true also of any situation where a stolen good is fenced.

I start that logoright is a moral issue before it’s a legal issue or an enforcement issue. The moral case needs to be made even if the only enforcement mechanism is social preferencing. But if people who believe in property rights won’t respect logorights on simple moral grounds then what hope is there for libertarian arbiters to respect them if we ever achieve a free society?

J. Neil, but the infringement of an artificial monopoly is not necessarily a violation of privacy as occurs in burglary.If you burgled my house and stole a copy of my diary, then the fencing thereof would be as immoral as that of any jewellery you might have stolen. However, if I give you a copy of my diary, then you cannot violate my privacy by making a further copy of it. You can only infringe the privilege I’ve been granted to exclude you from making further copies.

It is circular to say that copyright infringement is theft because it is immoral to infringe copyright, and copyright is thus legislated to prohibit such theft.

It would be like saying to free a slave is immoral as it diminishes that privilege of ownership which has been granted to their master, and thus slavery laws have been legislated to protect the master’s property against theft.

You can’t use copyright to justify itself, to pull it up by its own bootstraps. You have to refer to nature. It takes a potentate and a bloody great army to prohibit certain works or designs from being used, performed or copied. This is not the sort of power to find imbued in a lone individual.

We’ve been singing each other’s songs, telling each other’s stories, and copying each other’s baskets and bison paintings for a fricking long time. To say “Thou shalt not copy nor build upon the works of thy neighbour, that mankind can thus progress the faster” is a modern shibboleth that divides the intelligent from the moron. To further elevate it into a matter of morality is the resort of the latter grasping at justification. We need only wait for their brother, the religious nutter, to consolidate the moral imperative with the approval of a deity and the almighty folly will be complete.

You’re doing yeoman’s service, Stephan. Bravo!

J. Neil Schulman writes:”That’s true also of any situation where a stolen good is fenced.”

But here nothing has been stolen.

It is possible to enforce laws against theft without monitoring and interfering with consensual third-party transactions. For example, to stop my car from being stolen I can lock it, lock the garage it’s in, and sit out on my stoop with my shotgun. The police can arrest anyone trying to break in — that’s not monitoring and interfering with consensual third-party transactions because someone trying to break into my car lacks my consent.

On the other hand, if I publish a song, someone buying a copy from me is a consensual transaction. That someone then uploading a copy to someone else via bittorrent is another consensual transaction. It’s also copyright infringement unless I slapped a CC license on that song, but that infringement cannot be enforced against without preventing at least one of those two consensual transactions, or else punishing it, and thus cannot be done without monitoring at least one of them. In fact, there are only two ways it can be done: I avoid publishing the song at all, or else BitTorrent is monitored and some consensual BitTorrent transactions are stopped and/or punished.

This seems wrong.

Short version: without the ability to impede or punish consensual transactions, the fencing of say a stolen car can’t be stopped once the car has been stolen, but the theft itself remains preventable and deterrable. On the other hand, without such an ability, copyright infringement is neither preventable nor deterrable.

Creation can’t be the basis of property, because it begs the question of ownership, which is established with property. If Smith breaks into Jones’s home, goes into his ‘frige and whips up a four-course meal, he is the creator of the meal, but certainly not the owner. Or if he uses Jones’s artists’ materials to paint a masterpiece, he’s not the owner either even though he created it. Jones owns both the meal and the art. Similarly, Mr. and Mrs. Smith, the parents of young Master Smith Jr., are his creator, but certainly are not his owner, even if they have legal custody of him until he reaches his legal majority. Young Smith is a self-owner, and has rights that no one can violate, including his creator-parents. Creators can destroy their property as long as they violate no one else’s rights in doing so. All of these examples are implications of Rothbarian-formulated property rights in The Ethics of Liberty, which is webbed at the Mises Institute site.Interestingly, Rothbard eschewed patent, but accepted copyright. IMO, the reason he did so was based on following Locke headlong over a nasty cliff (“owning your labor,” which you can’t do, because labor is an activity), although JL accepted copyright too. There’s a libertarian paper waiting to be written on why Rothbard got patent right but copyright wrong.

Bill, re a paper about why Rothbard got patent right but not copyright, I have a section in my Against Intellectual Property about this.

The word “monitoring” has arisen in this discussion. Nobody writes: “Short version: without the ability to impede or punish consensual transactions, the fencing of say a stolen car can’t be stopped once the car has been stolen, but the theft itself remains preventable and deterrable. On the other hand, without such an ability, copyright infringement is neither preventable nor deterrable.“I am not sure what his implication is concerning “monitoring“, but the implication seems to be that copyright holders should somehow have an entitlement to intrude (trespass) into a person’s private space on the mere belief that an infringement may have occured. Not only that but there are even demands that third parties should be responsible for protecting the copyright privilege of a content holder.

This approach to copyright enforcement raises extensive concerns with our legal process. Under this “monitoring” concept; should I feel like it, I could break into anyone’s house to search it for the MP3 file I could not locate. Not only that, but I would have an entitlement to demand that the ISP search its data stream for that file too. What does this mean; that copyright holders can assume that we are all guilty and therefore are entitled to create a police state to protect themselves through “monitoring“?

Thanks for reminding me, Stephan, of your discussion about Rothbard. I’ll have another look.

I just want to see CCTV cameras installed at all water coolers with Joke police watching all of them 24x7x365 for Joke IP violations. I mean, why should someone be allowed to tell jokes that they did not think up themselves? Penalties should be something like those for copying a CD or DVD without permission. Say $20,000.00 fine and 4 or 5 years in jail per joke violation.all the best,

drew — Join the Free Music Pushe

There are some nice counterexamples to the ip-creationist fallacy. Another one came to my mind reading this article. Imagine you own one painting by a 18th century artist who created 20 of them. They depict a famous person and these are the only existing original depictions of him. Now what would happen to the value of your piece if I bought and destroyed the other 19 of them? No doubt the value of the only remaining painting would rise. But does that imply I now gained some partial property rights to it just because it was me who “created” the additional “value”?
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