“Reducing the Cost of IP Law,” Mises Daily (Jan. 20, 2010)
Archived comments here, here, here, here, and reproduced below:
Comments (154) 
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{ 252 comments }
January 29, 2010 at 4:03 am-
Okay, so I can print 1 trillion U.S. dollars copies since they are not scarce because two people can have copies at the same time.
Yes…but you can’t print a trillion ounce-of-gold copies – which is precisely why gold is a better money than fiat paper!
- January 29, 2010 at 5:15 pm
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And do you think it is somehow wrong for a property owner to gain benefit from his property over and over again by keep renting it?
How is that any different than gaining the same benefit once by selling it? You’re confused.
- January 29, 2010 at 5:21 pm
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You can get linux for free but you want Windows
Most people get Windows for free, and pay for Linux…but who in their right mind would want Windows?
- January 29, 2010 at 6:43 pm
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IP doesn’t create a positive obligation on other people; it just puts limits on what they can do with their property, like other property rights do.
But other property rights don’t — see Stephan’s post a little above yours!
January 29, 2010 at 7:52 pm-
Peter Surda-
your whole premises rest on an arbitrary definition of “homesteading”. Just like many other IP proponents, you draw an arbitrary line on the causality scale. Maybe it would help if you tried to explain where exactly you draw the line, then you’d realise it’s arbitrary.
Not at all. The first Harry Potter novel is a creation. All duplications, authorized or unauthorized, depend on the first one. Yes, there is causality, but it is relatively easy to identify.
This is just a first step in the argument. In the second one, you need to establish how far the homesteading reaches and what takes priority if there is a conflict. That is the whole point of my objection. Causality does not answer that.
Self-ownership has its own set of proofs in natural rights. One inhabits one’s body first so they own their body and their labor, etc. Otherwise there is some kind of state of slavery – either another person (including parents) or the state would “own” the person so this is rejected. From there you simply branch out to homesteading.
It does not answer whether children’s ownership of themselves or parent’s ownership of themselves takes precedence (logically, the parent’s should, because it is predates the child).
No, rejected by self-ownership. One inhabits one’s body first, even in the womb. Then there are the slavery arguments. Some concessions are made to parents making decisions, etc. but these end on emancipation, adulthood, etc. Plus there are exceptions like fraud, abuse, neglect, other tortious and criminal conduct, etc.
It does not answer whether only “good” influences should be considered, there is no reason why Soviet Union should not co-own Atlas Shrugged. Besides, back to my original objection, there is no way to distinguish between immaterial goods and externalities. But according to theory, you can own the former but not the latter.
The Soviet Union’s claim would be rejected by both self-ownership (otherwise it’s slavery) and homesteading.
Your externality arguments are somewhat nebulous. I adressed the examples you gave. IP owners decide how they are going to profit by weighing what externalities they can forsee. But this isn’t too different from the process with physical goods and there isn’t too much controversy over that.
What is “proper party”? That’s just another arbitrary assumption. Governments also claim that some transactions are invalid without them being involved, but that does not make it true.
In a transaction there is a consensual buyer and a consensual seller. If someone is unilaterally taking property it isn’t a market transaction. And there is no legitimate price signaling occurring.
Exclusion in material goods is not “enforced”, it “is”. It is the natural feature of those things. It exists regardless of laws or people.
Not exactly with land. Physical exclusion in real estate is only truly present when we are talking about very small pieces of land when the owner is present. Plus land ownership and homesteading has to be widely recognized and acknowledged so a market in the asset can occur, if not by the state then by some other body or association.
It is.
Not any more than buying land is. Others are free to homestead or buy land to compete. No one is forcing any exchanges, like what occurs in the “duplication is equivalent to creation” IP model.
This is only valid from your point of view. From my point of view, it’s the opposite: competitors homestead new grounds, and a monopoly prevents them from using it. From my perspective, those new grounds are externalities of the original.
Not just from my view. Doing away with IP creates a public, collectivist claim on individual labor and creates mispricing like socialism does.
Exactly! IP owner, just like anyone else causing externalities, should consider the effects before making his move, instead of complaining how little he gained by using an infeasible business model.
Just because you want to unilaterally take something without paying for it doesn’t make sale of that something “infeasible”.
There are already property rights in the physical, those are sufficient to address the most common and harmful effects of undesired activities.
Right, there are currently IP rights that take care of externalities there as well. If you can argue from the status quo, so may I. Homesteading vests equivalent rights, status quo here I come.
This is merely another stage of the problem (i.e. you are trying to cure the symptom rather than the cause). The illicit photographer trespassed on physical property. When a woman with a miniskirt goes to a street, she needs to make herself informed about the rules regarding photographing that the street owner does (some might permit photos, some might not). There is no need for IP from this perspective.
Not at all, the camera placer might have been an invited guest. I was just illustrating how people are already aware of most of the externalities. People know they have less control over their image when they appear in public as opposed to when they are in their dwelling, etc.
But what does this mean? I fail to see how this can mean owning anything apart from that which is in one’s own head. The line where you draw the distinction between immaterial goods and externalities is arbitrary. That’s what you need to recognise. IP is the claim of ownership of other people’s minds. It does not bother you here, but it bothers you with children and Ayn Rand. You need to explain this dichotomy.
You are mixing your lack of awareness about self-ownership here. That addresses the issue of children, Ayn Rand, and the foundation of homesteading.
IP is not claiming “ownership” of other people’s minds, merely one’s own creations for a time. Anti-IP, on the other hand, results in collectivist claims on individual labor and the mispricing of intellectual property creation.
- January 29, 2010 at 9:06 pm
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I don’t see how, without EM spectrum rights. After all, if the land in between the two plots is not yours, how can you have the right to pass your radio waves through that property that you do not own?
The question isn’t “how can you have the right to pass your radio waves through that property that you do not own?”, the question is: who has the right to stop you? If your transmission doesn’t interfere with the current owners’ use of their properties, the answer is obvious: nobody. Hence, you have that right, because you have all rights that don’t interfere with anyone else’s! So when a latecomer starts interfering with your use of your property, he’s at fault.
- January 29, 2010 at 11:10 pm
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Theoretically, you could use and trade real property without exclusion but the value would be greatly reduced.
No. The value you could personally extract from it would be reduced, in the sense that it would sell for less; but the total value, to everyone, would be massively increased. If you could use real property without exclusion, that would be an unalloyed good.
- January 29, 2010 at 11:20 pm
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Exclusion isn’t necessary to use real estate either. You could squeeze a large number of people into the average 3br 2 ba house
So? How does that indicate that exclusion isn’t necessary? You can drive my car…but if you do, I can’t drive my car at the same time. If you squeeze all those people into my house, it will certainly interfere with my use of my house!
- January 30, 2010 at 12:21 am
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Jay Lakner-
Do you believe that Harry Potter the book is the same as (or similar to) Harry Potter the movie?
No, one is a novel and the other is a film based on it. Rowling created the first copy of the novel through her labor – thinking and writing. This can be thought of as intellectual homesteading. It is easy to see that someone making an unauthorized copy of the novel is not creating, they are duplicating. They did not do an equivalent amount of labor and indeed most people probably could not perform the same labor. (Although they are free to try – do their own homesteading – as long as they don’t duplicate.) And importantly, they would not have anything to duplicate if Rowling had not written – created – the first novel.
Or, do you agree with me that they are totally different and the perceived similarity is just a result of the subjective meaning humans place upon them?
No, they aren’t totally different because they have the same main plot, a lot of the same scenes, most of the same characters, etc. They are different because they are different mediums – film versus novel – and different mediums have different limitations. One of the main limitations being budget. They could have a film that followed the book exactly but it would wind up being twenty hours or more, very slow moving, and very expensive.
It still sounds like you are trying to equate creation with duplication. They are different. Rowling wrote the first novel (longhand, if memory serves, but this is unimportant) and any other duplicate depends on this.
- January 30, 2010 at 12:43 am
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Peter-
The question isn’t “how can you have the right to pass your radio waves through that property that you do not own?”, the question is: who has the right to stop you? If your transmission doesn’t interfere with the current owners’ use of their properties, the answer is obvious: nobody. Hence, you have that right, because you have all rights that don’t interfere with anyone else’s! So when a latecomer starts interfering with your use of your property, he’s at fault.
This isn’t really what we were talking about. Radio waves of certain frequencies are allowed because they don’t hurt anyone and are generally a public benefit. But you couldn’t, for example, beam high intensity microwaves at someone because that would be assault, battery, harassment, possible attempted murder, etc.
Plus in most jurisdictions you couldn’t illegally eavesdrop on people, etc. You don’t have “all the rights that don’t interfere with someone else’s”. Trespassing doesn’t generally involve interfering with someone else’s rights, but that doesn’t mean it’s not a tort/crime. Someone can keep you off their property or out of their dwelling if they want, they don’t need a reason.
No. The value you could personally extract from it would be reduced, in the sense that it would sell for less; but the total value, to everyone, would be massively increased. If you could use real property without exclusion, that would be an unalloyed good.
Doubtful. People would spend far less developing real estate. Why have a nice house when you could wake up to find a bunch of hippies and their pet pot-bellied pigs in your living room at any time?
So? How does that indicate that exclusion isn’t necessary? You can drive my car…but if you do, I can’t drive my car at the same time. If you squeeze all those people into my house, it will certainly interfere with my use of my house!
I do believe exclusion is necessary for real estate property rights. I was exposing on of the fallacies of the anti-IP case: they claim IP is “claiming ownership of market share” when it isn’t. I did this by showing that real estate exclusion is not “claiming ownership of market share” either – someone is free to homestead or buy other real estate and compete with you. Just like someone is free to create (homestead) or buy other IP and compete as well.
- January 30, 2010 at 4:18 am
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Why have a nice house when you could wake up to find a bunch of hippies and their pet pot-bellied pigs in your living room at any time?
But you couldn’t — that would interfere with your use of your property, which is precisely why physical property is exclusive. If you’re assuming some strange universe in which both you and the hippies can occupy/use the same space at the same time without interference — nothing they do there can interfere with you — then what difference does it make if they are in “your” living room (you can’t see them, smell them, touch them, etc., etc…that would imply an exclusionary universe!)
- January 30, 2010 at 2:17 pm
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Peter-
But you couldn’t — that would interfere with your use of your property, which is precisely why physical property is exclusive.
I could, it just would be difficult to turn a profit and people would be less likely to do it. Just like what would happen with IP if we did away with IP rights.
And as I said above real estate is only directly rivalrous in very small plots or pieces of land. So exclusion isn’t a necessity, we just provide it because that is the best way to make sure we have a healthy market in, and people will invest in, real estate. Basically, the ability to exclude from real estate ensures that the pricing mechanism works in that asset.
If you’re assuming some strange universe in which both you and the hippies can occupy/use the same space at the same time without interference — nothing they do there can interfere with you — then what difference does it make if they are in “your” living room (you can’t see them, smell them, touch them, etc., etc…that would imply an exclusionary universe!)
I don’t need to. Real estate is only directly rivalrous on very small plots. If you had a house the hippies could just crash when you were at work or asleep, and leave when you needed the kitchen, living room, etc. They could leave you your bedroom for “personal use”. Or they could just park a camper in your yard if you had a big yard.
It’s an absurd example, but it is no more absurd than claiming that someone who copies (duplicates) an author’s book is doing the same amount and kind of work, and has the same talent, as the author who spent hours and hours writing, rewriting, researching, etc. – creating – the book. Duplication/copying is not equivalent to creation. The ability to exclude in IP rights ensures that the pricing mechanism works in – that people will invest in and develop – that asset.
- January 30, 2010 at 6:42 pm
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And as I said above real estate is only directly rivalrous in very small plots or pieces of land.
In your idiolect, perhaps…you’re using the word differently from everybody else, hence your misunderstanding!
January 30, 2010 at 7:13 pm-
pro-IP-libertarian,
I see that you are falling into the very same error I mentioned. I believe you’re confusing the subjective meaning you assign to an entity with the entity itself.
pro-IP-libertarian wrote:
“No, they aren’t totally different because they have the same main plot, a lot of the same scenes, most of the same characters, etc.”The “plot”, “scenes” and “characters” are only similar in your mind. There is no objective similarity between the book and the movie.
Do you think someone who can’t read would consider them similar?
Do you think that someone who didn’t understand English would consider them similar?
Do you think my pet cat would consider them similar?The meaning you gain from reading the book is similar to the meaning you gain from watching the movie. But that does not make them similar. That is personal to you, to your mind.
It is only the subjective meaning that you apply to both the book and the movie that lead you to conclude similarity. But objectively, they are very different.So, what you are really advocating is that “meaning” is a form of property. You are advocating that artists should be granted property rights in the “meaning” of their works.
Before I explore the ramifications of this, I need to ask:
Do you understand my reasoning so far?
Do you agree? 
January 30, 2010 at 7:53 pm-
pro-IP Libertarian,
” I could, it just would be difficult to turn a profit and people would be less likely to do it. ”
????
If you squat on my land, I cannot dig it up to lay the foundation of the house I try to build on it without forcing you off. I cannot plough it without ploughing you into the soil too (unless you scoot or I throw you out). I cannot plant a tree on a spot I choose without uprooting you from there in the first place.
In every case, my freedom of action is affected adversely by your attempt to simultaneously use my land.
This is getting truly ludicruous. Since you are wrong at the root, I presume it is obvious that you are wrong in your conclusions as well.
- January 31, 2010 at 2:54 am
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Jay Lakner-
The “plot”, “scenes” and “characters” are only similar in your mind. There is no objective similarity between the book and the movie.
Wrong. The movie is based on the book. There would be no movie in that form if the book hadn’t been created.
Do you think someone who can’t read would consider them similar?
Do you think that someone who didn’t understand English would consider them similar?
Do you think my pet cat would consider them similar?Immaterial. You are talking about subjective perceptions. The movie is based on the book, this would be the case no matter how many people weren’t aware of or couldn’t understand this.
So, what you are really advocating is that “meaning” is a form of property. You are advocating that artists should be granted property rights in the “meaning” of their works.
No, just pointing out that the creators of intellectual property have natural rights interests in their creation through a homesteading model. They just should have rights to sell their own work. No one is forced to buy. But on the other hand no one should be permitted to force a transfer on them – nonconsensually copy or resell their work.
Before I explore the ramifications of this, I need to ask:
Do you understand my reasoning so far?
Do you agree?You seem to be focusing on subjective perceptions and therefore claiming that their are no objective facts with IP. That is incorrect, there are. I have noted where I disagree above.
- January 31, 2010 at 3:07 am
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Bala-
If you squat on my land, I cannot dig it up to lay the foundation of the house I try to build on it without forcing you off. I cannot plough it without ploughing you into the soil too (unless you scoot or I throw you out). I cannot plant a tree on a spot I choose without uprooting you from there in the first place.
Oh it could be done, it would just be very difficult, time consuming, etc. The market value of real estate would certainly be effected and people would be less likely to spend their time and resources on it. Just like what would happen if there were no IP rights.
In every case, my freedom of action is affected adversely by your attempt to simultaneously use my land.
Right – and so it goes with IP. Unilateral copying and reselling of IP adversely effects the efforts of those that create and sell it. Exclusion is necessary to effectively develop and make a market in real estate, it is also necessary to effectively develop and make a market in IP.
And note exclusion in real estate is owner-focused. We don’t say the right to exclusion in real estate is claiming a “right to market share”. So it is not correct when some claim this is what one is claiming with IP exclusion.
This is getting truly ludicruous. Since you are wrong at the root, I presume it is obvious that you are wrong in your conclusions as well.
No, if you are an advocate of the “duplication is equivalent to creation” model you are basing your model on a fallacy and the model itself runs counter to natural rights principles.
- January 31, 2010 at 3:11 am
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Jay Lakner-
Should be “there” in the first line of the last paragraph.
- January 31, 2010 at 5:48 am
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I wrote:
“There is no objective similarity between the book and the movie.”
pro-IP-libertarian replied:
“Wrong. The movie is based on the book. There would be no movie in that form if the book hadn’t been created.”You have made a major logical error here.
If two things are causally related, that does not mean they are similar.“You are talking about subjective perceptions.”
Exactly. I am pointing out to you that the similarity between the movie and the book are subjective and very much dependent on who is making the judgement.
“…just pointing out that the creators of intellectual property have natural rights interests in their creation through a homesteading model.”
But what exactly are they homesteading? What exactly is this “intellectual property” that they are homesteading?
Objectively speaking, there are only tangible entities and the arrangements they can take.
Subjectively speaking, there are characters, plots, scenes, heroes, villians, magic, goblins, giant talking elephants, and a multitude of other intangible meanings that different human beings can conceptualize. Things that only exist in the human mind.
Are you arguing for the ‘objective entities’ or the ‘subjective entities’ to be property?From your responses, it is clear that you have made two major logical errors:
1. You have defined similarity in terms of causality. Two things that are causally related are not necessarily similar, and two things that are similar are not necessarily causally related. Clearly, ‘causality’ can not be used as a measure to determine ‘similarity’.
2. You seem to often equate the subjective meaning humans assign to an entity with the objective reality of the entity itself. There is that which exists in your mind, and there is that which exists in reality. Two entities may induce similar brainwave activity in your head, but that does not mean the two entities are objectively ‘similar’.Do you follow what I’m saying?
(Keep in mind, agreement with me on these points does not invalidate IP. We have yet to explore the ramifications of considering objective patterns to be a form of property)
- January 31, 2010 at 11:04 am
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pro-IP-libertarian,
I can see why you are so thoroughly confused and (hence) pro-IP.
” Oh it could be done, it would just be very difficult, time consuming, etc. ”
It is NOT about how difficult it will be. It is about the fact that it is METAPHYSICALLY IMPOSSIBLE for me to engage in agriculture and for you to build and operate a factory on the same plot of land SIMULTANEOUSLY. The reason for that is that there is only 1 of THAT plot of land that CANNOT be used simultaneously for more than 1 purpose.
This is NOT TRUE of ideas. Any number of people instantiating your idea does not and CANNOT prevent you from doing so yourself.
If this obvious aspect of reality escapes you, I don’t think I am in a position to try and convince you any more.
February 1, 2010 at 4:55 am-
Dear pro-IP-libertarian,
regrettably, I don’t have enough time to address all of your arguments, so I’ll just concentrate on the core. The core has been mentioned by Jay: immaterial goods are subjective. They do not exist outside of people’s minds. It’s people’s minds only that give them “boundaries”. I made an example with a book summary earlier that demonstrates this, you can look it up. The second problem is a corrolary of this: you cannot distinguish between immaterial goods that are covered by IP laws and positive externalities. Either both violate rights and should be rejected, or neither violate rights and should be accepted.
- February 1, 2010 at 5:32 am
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Jay Lakner-
You have made a major logical error here.
If two things are causally related, that does not mean they are similar.When one is based on the other – has the same plot and many of the same characters – it does mean they are similar, and causally related. If there were no Harry Potter book there would be no movie based on the book’s story.
Exactly. I am pointing out to you that the similarity between the movie and the book are subjective and very much dependent on who is making the judgement.
No, you pointed out a bunch of examples of people that subjectively couldn’t determine the similarity. (Did not speak english, were not of the species, etc.) But they are objectively similar. There would be no movie without the book. So your examples are as I said immaterial.
Objectively speaking, there are only tangible entities and the arrangements they can take.
Subjectively speaking, there are characters, plots, scenes, heroes, villians, magic, goblins, giant talking elephants, and a multitude of other intangible meanings that different human beings can conceptualize. Things that only exist in the human mind.
Are you arguing for the ‘objective entities’ or the ‘subjective entities’ to be property?Your framing is incorrect. There is IP that is objectively new. The Star Wars universe was objectively different from the Star Trek universe that came before it.
Maybe the use of the word “objective” is throwing you off. There is one meaning that means only things in a physical sense. That is not the meaning used here. The meaning here refers to the characteristics of an object. The Star Wars universe is objectively different from the Star Trek universe. We can objectively tell that the movie adaptation of a Harry Potter book is similar to it, because that is what an adaptation means by definition.
From your responses, it is clear that you have made two major logical errors:
1. You have defined similarity in terms of causality. Two things that are causally related are not necessarily similar, and two things that are similar are not necessarily causally related. Clearly, ‘causality’ can not be used as a measure to determine ‘similarity’.
2. You seem to often equate the subjective meaning humans assign to an entity with the objective reality of the entity itself. There is that which exists in your mind, and there is that which exists in reality. Two entities may induce similar brainwave activity in your head, but that does not mean the two entities are objectively ‘similar’.No, I defined similarity in terms of things that are objectively (characteristically) similar. Causation came up because we were discussing a film adaptation of a book, which is by definitiong causally related to the book.
Your other point springs from you using a different meaning for the word “objective”, which isn’t the meaning I was referring to.
Aside from your errors there, you still seem to be simply attempting to equate duplication with creation. They are not equivalent. The first Harry Potter book was objectively (characteristically) different from Tolkein’s books. Claiming that an unauthorized copy of the Potter book are just another set of “patterns” is laughable. The copy wouldn’t exist without the original. The Potter book is different enough that it would still exist without the Tolkein books.
Your “duplication is equivalent to creation” model depends on you claiming that all IP is “subjective patterns” and therefore equivalent. That is a fallacy. IP can be objectively (characteristically) determined to be different from other IP, such that new or unique creations can be identified.
- February 1, 2010 at 5:56 am
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Peter Surda-
The core has been mentioned by Jay: immaterial goods are subjective. They do not exist outside of people’s minds. It’s people’s minds only that give them “boundaries”.
That seems to be a misunderstanding about how you are using the words objective and subjective. Your model depends on claiming that duplication is equivalent to creation. You simply extend this by claiming that “all IP is subjective” and therefore equivalent.
But IP can objectively (characteristically) be determined to be different from other IP. That is one of the reasons why documentation is required for IP to be recognized (homesteaded), so creations of the mind can be set down in concrete form.
I made an example with a book summary earlier that demonstrates this, you can look it up.
Not sure what you are referring to here.
The second problem is a corrolary of this: you cannot distinguish between immaterial goods that are covered by IP laws and positive externalities. Either both violate rights and should be rejected, or neither violate rights and should be accepted.
Not at all, we just deal with positive externalities as we deal with externalities from physical property. IP creators just decide how they want to sell their property and the price, consumers decide if they want to buy. They just aren’t allowed to take it if they don’t agree on price.
- February 1, 2010 at 6:16 am
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Bala-
It is NOT about how difficult it will be. It is about the fact that it is METAPHYSICALLY IMPOSSIBLE for me to engage in agriculture and for you to build and operate a factory on the same plot of land SIMULTANEOUSLY. The reason for that is that there is only 1 of THAT plot of land that CANNOT be used simultaneously for more than 1 purpose.
Not at all. You are just assuming things based on the current, exclusion-based business model. You just mark off where the factory will be and me and my squatter friends will just plant our organic crops where the yards and open spaces will be. There may be some hassle if our goats and sheep happen to wander onto the worksite, just shoo them off. I’ll give you some goat’s milk to compensate for any messes they may make.
This is NOT TRUE of ideas. Any number of people instantiating your idea does not and CANNOT prevent you from doing so yourself.
Wrong. Someone distributing free, unauthorized copies of a song crowds out sales of the same song. Just like authorizing someone to use or occupy your real estate for free would crowd out your commercial use of the property in many cases. But note again we don’t call real estate exclusion “claiming a right to market share”. IP exclusion isn’t “claiming a right to market share” either.
- February 1, 2010 at 6:22 am
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Dear pro-IP-libertarian,
> Your model depends on claiming that duplication is
> equivalent to creation.
No, rather I claim that this distinction is completely irrelevant. The only reason why anyone would need to claim it’s relevant is because they need it for their theory to be correct. To me, it’s just a random irrelevant assumption.> But IP can objectively (characteristically) be
> determined to be different from other IP.
No, it cannot. That’s the problem in your argument.> Not sure what you are referring to here.
Ok, let me repeat. I’ll summarise a book:
——————
This book is a story of a bright boy. He had trouble getting along with his family, but one day was selected for special (yet so far almost unmanifested) skills and sent to an elite school. The school allows him to hone his skills. He excels in combat disciplines and demonstrates great leadership abilities. Meanwhile, the world is being threatened by a powerful enemy. The enemy was temporarily beaten some time ago, but is planning a comeback. It is said that the special skills that the boy possesses are the only way to defeat the enemy. In the end, he defeats the enemy, but finds out that he had been skillfully manoeuvred into the confrontation by his own mentor.
——————So, what book am I summarising? Is it Harry Potter or Ender’s Game? There is no objective way of telling. The only way to know is to determine what I was thinking while I was writing this. Therefore, whether it refers to Harry Potter or to Ender’s Game depends wholly on my thought processes and nothing else. Therefore, immaterial features are not a part of objective reality, but subjective to one’s mind. Therefore, immaterial goods do not have objective boundaries. Therefore, they can’t be property (in the meaning of IP-proponents).
> … we just deal with positive externalities as we
> deal with externalities from physical property.
This underscores the problem in your argument. You do not provide a method to distinguish between an immaterial good that can be property and one that cannot (such as externalities). There is no way to make such a distinction, therefore, one must either reject IP or extend it to all causally related activities (i.e. externalities). - February 1, 2010 at 6:34 am
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Dear pro-IP-libertarian,
> You are just assuming things based on the current,
> exclusion-based business model.
This is another problem with your arguments, you redefine rivalry so that it matches your theory.There are only two ways of “using” a good. One is when you literally consume it, making it at least temporarily or partially unavailable to anyone alse. This can only happen with rival goods. The other one is the metaphorical “use”, when you try to gain some benefit that is causally related to that good, but without the unavailability aspect. This is what we call non-rival, externalities, and this also covers all “IP”. Since there is no unavailability, if you still want to increase your benefits, you need to cover your status with contracts and a working business plan.
> Someone distributing free, unauthorized copies of
> a song crowds out sales of the same song.
A good example. There is no “unavailability” present here. There is only “loss” of market share. “loss” and “crowding out” are a “meaning”, and you can’t own “meanings”. Furthermore, as I said before, the same effect would happen if you distributed substitutes or expressed negative opinion of that song, yet IP proponents typically don’t consider this a problem. - February 1, 2010 at 7:06 am
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Dear pro-IP-libertarian,
> No, they aren’t totally different because they have
> the same main plot, a lot of the same scenes, most
> of the same characters, etc.
But why is this relevant? As Jay correctly pointed out, the only similarity is in their meaning. Absent the meaning, they are completely distinct.Another example:
> The Star Wars universe is objectively different
> from the Star Trek universe.Oh is it? Allow me to another summary trick:
————————
It’s a story about a captain of a really cool space ship and his crew. The crew is a collection of people with different backgrounds, abilities, temperament and attitudes, some feature superhuman abilities, but they work well together. The captain is a bit macho. Get into fights and does not follow rules. They fly around the space, from time to time visit a planet. They fight the bad guys. They fights often include shooting. When they are outgunned, they win by using unconventional tactics. The stories have lots of fans and a cult status.
————————This actually not only matches Star Wars and Star Trek but also others, such as Farscape and Firefly.
- February 1, 2010 at 10:59 am
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pro-IP-libertarian,
It seems that you are unable to strip away the subjective human interpretation you give to the Universe and see what is actually there.
Consider the following sentence:
The giraffe ran off into the sunset.
What are the objective features of this sentence?
If you answered something along the lines of: “running, giraffe, sunset” then you are wrong.
If you answered something along the lines of: “small collections of black symbols separated by spaces on a white background” then you are correct.
The meaning you assign to that sentence is not an aspect of objective reality. It is a meaning that only you and other English speaking humans can derive from that sentence. Those symbols, upon being viewed, trigger brain activity of a giraffe running into the sunset.
But they do not trigger that brain activity in somebody who does not read english. Their senses are perfectly fine. Their perception is perfectly fine. They see the exact same symbols and spaces that you see. Yet when they view that sentence, it does not trigger brain activity of the sort that is triggered in you.It demonstrates that the sentence is nothing more than a pattern of symbols. The meaning that you derive from the sentence is an image of a giraffe running off into the sunset. If someone were to claim ownership of that sentence, what exactly are they claiming in your eyes?
1. Are they claiming ownership of a sequence of symbols and spaces?
or
2. Are they claiming ownership of the entire concept of a giraffe running into the sunset?Based on your answers so far, I’m guessing you answered 2. But then that get’s back to one of my original questions…
Do you consider the “meaning” that an artist/author conveys with their work to be a form of “property”?
- February 1, 2010 at 11:13 am
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pro-IP-libertarian wrote:
“When one is based on the other – has the same plot and many of the same characters – it does mean they are similar, and causally related. If there were no Harry Potter book there would be no movie based on the book’s story.”You continue to commit the same error. You seem to somehow believe that causality is the same as similarity.
If I choose a movie at random and then try to produce a second movie which is the exact opposite of the chosen movie, are the two movies similar?
They are definitely causally related. My movie would not exist if the movie I based it on did not exist.
But everything in my movie is the opposite of everything in the movie I based it on. How can they be considered similar? Aren’t they the exact opposite of similar?
Similarity and causality are completely different. One does not at all imply the other. How you can even dispute this is beyond me.
It’s like saying, the act of stealing and the act of sitting in prison are similar because one would not happen without the other.
- February 1, 2010 at 11:41 am
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pro-IP-libertarian wrote:
“No, I defined similarity in terms of things that are objectively (characteristically) similar.”“Objectively” does not mean “characteristically”. It has never meant “characteristically”. “Objectively” means to have actual existence.
Something can have objective characteristics and subjective characteristics. The objective characteristics of the word “giraffe” are seven black symbols on a white background. The subjective characteristics are whatever meaning you derive from looking at these symbols. They are subjective because they are characteristics that not everyone perceive to exist. You may think of a tall four legged animal, but someone who doesn’t speak English certainly doesn’t.
Objective:
1. Of or having to do with a material object.
2. Having actual existence or reality.
3.
a. Uninfluenced by emotions or personal prejudices: an objective critic.
b. Based on observable phenomena; presented factually: an objective appraisal.It should be clear from the context of our discussion that I have been using definition 2. Maybe you should reread everything again, with a correct definition of “objectively” in mind?
- February 1, 2010 at 8:16 pm
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pro-IP-libertarian,
” You are just assuming things based on the current, exclusion-based business model. ”
Not at all. Even in your example, can the squatters pland their organic croops or whatever on precisely the same spot on which I have a factory?
Instead of addressing this, you go off to the open spaces. What if the “open” spaces are not truly “open” but are uncovered parking lots for my trucks (which will routinely squash the squatters crops, organic or otherwise)? The 2 uses are then SIMULTANEOUSLY impossible.
” Someone distributing free, unauthorized copies of a song crowds out sales of the same song. ”
Crowding out does not reduce FREEDOM OF ACTION. It does reduce the compensation the original “creator” gets, but not the creator’s freedom. Is this that difficult to comprehend?
- February 2, 2010 at 3:26 am
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Peter Surda-
No, rather I claim that this distinction is completely irrelevant. The only reason why anyone would need to claim it’s relevant is because they need it for their theory to be correct. To me, it’s just a random irrelevant assumption.
I’m sure you would like to assume it is irrelevant, since your model depends on that assumption. They are different. True creation and innovation is scarce, that is why people want to copy and use the property created. Duplication ability is not scarce. If any IP was as good as the next the free music sites would be on their way to ruling the universe through ad revenue like Google – they are not.
So, what book am I summarising? Is it Harry Potter or Ender’s Game?
Or you could water down the archetypes even further and say that all art is about sex and/or death. There – now “there is no new intellectual property” or “all IP is the same”. But note how you undermine your own argument here. If people can’t objectively tell IP apart then why do they bother copying protected material? Why are some authors more popular than others? There is plenty of public domain material that is free or low cost. Human action is telling you that there are objective differences. Presentation, style, atmosphere, tone, characterization, etc. – dozens and dozens of variables.
As far as boundaries are concerned mentioning the archetypes actually harms your case. One simply has to make sure that they aren’t blatantly copying another author and they will be safe. How do we set these boundaries? The same way we set boundaries for other property violations that involve subjectivity, like fraud and related offenses. We make rules that generally catch the most serious, offensive, and blatant cases.
This underscores the problem in your argument. You do not provide a method to distinguish between an immaterial good that can be property and one that cannot (such as externalities). There is no way to make such a distinction, therefore, one must either reject IP or extend it to all causally related activities (i.e. externalities).
Wrong, the property can be identified. We set rules for subjective offenses like fraud and related offenses we can set rules for IP. Externalities are simply handled like they are with physical property, with the property owner just deciding on a product and price.
There are only two ways of “using” a good. One is when you literally consume it, making it at least temporarily or partially unavailable to anyone alse. This can only happen with rival goods. The other one is the metaphorical “use”, when you try to gain some benefit that is causally related to that good, but without the unavailability aspect. This is what we call non-rival, externalities, and this also covers all “IP”. Since there is no unavailability, if you still want to increase your benefits, you need to cover your status with contracts and a working business plan.
This coming from the person working with terms defined to support their model.
Real estate is quite a good parallel to IP. Land is only truly rivalrous in small parcels. We need homesteading and exclusion to optimally commercialize and make a market in the asset. Unavailability for commercialization IS present when one cannot exclude in IP, just as in real estate.
Your model is flawed because it involves defining terms to enable the taking of an asset from another without an agreement on price or indeed any agreement at all. And the ease of the taking isn’t an excuse or justification, as illustrated by numerous examples. Shoplifting actually involves approximately the same amount of effort as buying. Computer fraud can be easy. Trespassing can be easy. Etc…
Note we don’t claim those on the receiving end of those crimes/torts need a better living or business model.Without a bilateral transaction there is no pricing mechanism in effect. Therefore you have the same pricing problems that occur in socialism. (per Mises/Silas Barta)
A good example. There is no “unavailability” present here. There is only “loss” of market share. “loss” and “crowding out” are a “meaning”, and you can’t own “meanings”. Furthermore, as I said before, the same effect would happen if you distributed substitutes or expressed negative opinion of that song, yet IP proponents typically don’t consider this a problem.
See above. There is an “unavailibility” for commercial use. Just as if you had a farm and people squatted in your fields but left you your farmhouse. Note again, we don’t consider land exclusion “owning” market share.
Bad reviews are already accepted externalities, as long as they aren’t intentionally dishonest or misleading.
Substitutes are accepted as either externalities or competition, not a factor.
- February 2, 2010 at 4:05 am
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Jay Lakner-
Do you consider the “meaning” that an artist/author conveys with their work to be a form of “property”?
See the response to Peter Surda, above. Reducing everything to archetypes and claiming “it’s all the same” doesn’t help your case. It isn’t the meaning. Authors have different styles, atmospheres, characterization, etc. Human action tells us consumers can tell the difference between authors because some are more popular than others. In fact archetypes hurt your case since an author only has to make sure a work isn’t a blatant copy of another’s to avoid infringement claims.
You continue to commit the same error. You seem to somehow believe that causality is the same as similarity.
With adaptations by definition they are similar, and causally related. That is a fact. The error is yours.
If I choose a movie at random and then try to produce a second movie which is the exact opposite of the chosen movie, are the two movies similar?
No.
Similarity and causality are completely different. One does not at all imply the other. How you can even dispute this is beyond me.
In some cases they are different and in some cases they are not. We were talking about an adaptation, which by definition is both similar and causally related.
It’s like saying, the act of stealing and the act of sitting in prison are similar because one would not happen without the other.
That wasn’t the example we were discussing. The example we were discussing was one where the acts by definition were both similar and causally related.
“Objectively” does not mean “characteristically”. It has never meant “characteristically”. “Objectively” means to have actual existence.
“Characteristics” is a synonym for “observable phenomena”. So yes, it does mean characteristically. Especially if we are talking about science or law.
It should be clear from the context of our discussion that I have been using definition 2. Maybe you should reread everything again, with a correct definition of “objectively” in mind?
No thanks, I clarified my meaning. My points still stand.
- February 2, 2010 at 4:40 am
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Bala-
Not at all. Even in your example, can the squatters pland their organic croops or whatever on precisely the same spot on which I have a factory?
Sure, when it’s finished there should be space on the roof, walls, sunlit open spaces inside, etc. (Containers, window boxes, trellises, etc.) We’ll take a look at your plans, since you can’t exclude us from coming in and taking a peek.(Oops, we might take a look at very valuable R&D too and commercialize it ourselves or sell it to someone.)
Instead of addressing this, you go off to the open spaces. What if the “open” spaces are not truly “open” but are uncovered parking lots for my trucks (which will routinely squash the squatters crops, organic or otherwise)? The 2 uses are then SIMULTANEOUSLY impossible.
We’ll rotate containers from the roof or from nearby squats into open parking spaces when they’re on the road. And watch you don’t injure anyone, because there are still laws against negligence, battery, etc. there just isn’t exclusion from real estate. It would be difficult and it would dramatically effect your ability to commercialize your property, but it would not be “impossible”.
That said, isn’t it great that current real estate exclusion lets you more effectively commercialize your property? No one unilaterally decides that they will commercialize your property, or unilaterally uses your property in a way that interferes with your commercialization. Notice that it isn’t “claiming a right to market share”, because someone can buy or homestead their own real estate and compete.
Crowding out does not reduce FREEDOM OF ACTION. It does reduce the compensation the original “creator” gets, but not the creator’s freedom. Is this that difficult to comprehend?
Wrong. It reduces the creators’ freedom to commercialize their property. Just like doing away with real estate exclusion would reduce the owners’ ability to commercialize their property.
And it is a unilateral taking of someone else’s asset. Since there is no agreed upon transaction and no price, there is no price signaling and mispricing similar to that resulting from socialism occurs.(Mises/Silas Barta) Taking someone else’s asset without their consent certainly restricts their freedom. And no, offering items for sale does not mean one should accept them being stolen. (See above: Ease of computer fraud or shoplifting does not justify either property violation.)
- February 2, 2010 at 5:44 am
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Dear pro-IP-libertarian,
> I’m sure you would like to assume it is irrelevant,
> since your model depends on that assumption.
Actually, it doesn’t. Whether it is valid or not, my theory is unaffected.> They are different.
It is merely a matter of extent. They always share some commonalities and some distinctions. Yet you claim that sometimes the commonalities take precedence (“property”), and sometimes the distinctions (“externalities”) without explaining how you draw such conclusions.> Or you could water down the archetypes even
> further and say that all art is about sex and/or
> death.
Exactly. It’s a matter of where you draw the line.> But note how you undermine your own argument
> here.
I don’t. I never said that the aspects are never present, only that they sometimes aren’t. Elementary logic error on your side. The refutation of a claim “A always leads to B” is not “A never leads to B”, rather “A sometimes does not lead to B”.> If people can’t objectively tell IP apart then why do
> they bother copying protected material?
Because the similarities are more useful to them than the distinctions. This is a subjective evaluation. There is no need for anything objective in this.> As far as boundaries are concerned mentioning
> the archetypes actually harms your case.
I am afraid it harms yours and not mine.> How do we set these boundaries? The same way
> we set boundaries for other property violations
> that involve subjectivity, like fraud and related
> offenses.
Regrettably for you, fraud requires an underlying contract. You can’t defraud a third party. Which is precisely what I’ve been arguing about.> Wrong, the property can be identified.
No, it cannot. You merely assert this, without explaining how to actually do that.> Externalities are simply handled like they are with
> physical property, with the property owner just
> deciding on a product and price.
Exactly. And because the goods covered by IP are just a form of externality, the owner is free to decide what strategy and contractual relationships to pursue in order to maximise his personal gain off it. There is no need for IP anywhere.> This coming from the person working with terms
> defined to support their model.
This is coming from a person that is trying to base his assumptions on observation rather than theory-utilitarianism.> Land is only truly rivalrous in small parcels.
So you are saying that it is rivalrous in small scope but not in large? I am afraid you are using the “utility” to define rivalry. That is an invalid approach. Utility is subjective.> We need homesteading and exclusion to optimally
> commercialize…
So I am right. “Optimally commercialize”. You’re using an utilitarian approach. That invalidates your other part of the theory that tries a natural rights approach. You can’t mix them, you need to prove the independently.> … and make a market in the asset. Unavailability
> for commercialization IS present when one
> cannot exclude in IP, just as in real estate.
This has nothing to do with property rights. The ability to market something depends on entrepreneurship and not exclusivity.> Your model is flawed because it involves defining
> terms to enable the taking of an asset from
> another without an agreement on price or indeed
> any agreement at all.
Your theory is flawed because you assume there is an “asset” where there is none. There is no asset, only utility and that is subjective.> And the ease of the taking isn’t an excuse or
> justification, as illustrated by numerous examples.
Yet again you are assuming the utilitarian approach. I don’t mind it per se, but you can’t arbitrarily switch between those two approaches (natural rights vs. utilitarian).> Without a bilateral transaction there is no pricing
> mechanism in effect.
For the purposes of this debate, I’ll assume this is correct.> Therefore you have the same pricing problems
> that occur in socialism. (per Mises/Silas Barta)
Silas’ argument has been refuted. I wrote a five-point refutation. Suffice to say that the ability to exclude has nothing to do with the calculation argument. If it was, it would refute all trade altogether, since noone can exclude third parties from all externalities of any good whatsoever.> There is an “unavailibility” for commercial use.
Utility argument, metaphorical “unavailability”.> Bad reviews are already accepted externalities,
> as long as they aren’t intentionally dishonest or
> misleading.
Accepted by whom? What is different if they are dishonest or misleading? Why is any of this relevant?> Substitutes are accepted as either externalities or
> competition, not a factor.
Why is this relevant? It is only relevant because otherwise your theory is a fail. - February 2, 2010 at 5:48 am
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Dear pro-IP-libertarian,
> In some cases they are different and in some cases
> they are not. We were talking about an adaptation,
> which by definition is both similar and causally
> related.
Yet you fail to define either causality or similarity. You admit that some externalities do not lead to a property claim. So you admit that causality is an insufficient condition for defining property. Then you claim that in some cases, similarity does not lead to a property claim either. So you admit again that similarity is not a sufficient condition for defining property.These two conditions eliminated, your theory is left without a definition of property.
- February 2, 2010 at 12:55 pm
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pro-IP-libertarian wrote:
“Authors have different styles, atmospheres, characterization, etc.”All subjective. All dependent on human interpretation. All are “meanings” that humans derive from the work. Not one of these things is an objective characteristic of their work.
“With adaptations by definition they are similar, and causally related.”
No, no, no. Stop trying to evade the point.
I stated that the book and the movie were objectively completely different. To demonstrate their similarity, you continually brought up causality. I then demonstrated that causality doesn’t prove anything.Now you introduce this new word, “adaptation”, whose meaning is so broad that I’m sure you’re going to try to twist its definition around to suit your needs.
By my definition of adaptation, my “complete opposite” movie IS an adaptation of the movie it’s based on. But you’re going to deny that and say that I’m using the word “adaptation” wrong.
So please, you need to specifically define “adaptation” before using that word again.
“In some cases they are different and in some cases they are not. We were talking about an adaptation, which by definition is both similar and causally related.”
Now you’re changing your tune. I guess you realised that equating similarity with causality is indeed a logical error. Unfortunately, instead of just admitting it and moving on, you’ve desperately tried to cover up your error by introducing this “adaptation” word.
“The example we were discussing was one where the acts by definition were both similar and causally related.”
Please stop being intellectually dishonest. We were discussing an example where the acts are causally related, but similarity was in dispute.
I specifically stated:
“The two are very different. However, humans assign the same meaning to the book as they do to the movie. So an individual might come to the conclusion that they are the same story. But in reality they are not.”You countered by saying:
“Wrong. The movie is based on the book. There would be no movie in that form if the book hadn’t been created.”You tried to demonstrate that they must be similar because they are causally related. I demonstrated the flaw in this thinking and now you’re trying to cover up your mistake.
In the grand scheme of things this is a meaningless series of forum posts which will probably never be read again. So you made a mistake, who cares? Can you at least try to be intellectually honest and move on. I don’t want to waste my time arguing with someone who is more interested in their own self-image than the content of the discussion.
“”Characteristics” is a synonym for “observable phenomena”. So yes, it does mean characteristically. Especially if we are talking about science or law.”
“Observable phenomena” is a subset of “characteristics”. ie all observable phenomena are characteristics but not all characteristics are observable phenomena. This is because there can be both objective characteristics and subjective characteristics. So no, they are not true synonyms.
But this is irrelevant at this point.
We are not trying to decipher a text here. We are trying to convey meaning to one another.
I have explained to you what I mean when I say “objectively”.
You should now understand my intended meaning of the word “objectively”.
It would be intellectually dishonest to pretend I mean something different than the meaning I intend. - February 2, 2010 at 6:44 pm
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pro-IP-libertarian,
Thanks for revealing the kind of mind it takes to form a position such as yours.
” And watch you don’t injure anyone, because there are still laws against negligence, battery, etc. ”
Why are such laws justified? What is the basis of these laws? Why should I not injure anyone?
” It would be difficult and it would dramatically effect your ability to commercialize your property, but it would not be “impossible”.
That said, isn’t it great that current real estate exclusion lets you more effectively commercialize your property? No one unilaterally decides that they will commercialize your property, or unilaterally uses your property in a way that interferes with your commercialization. ”
Oh!!! So rights, specifically property rights, originate from the need for commercialisation? Quite interesting and revealing (as I said, of the state of your mind).
Frankly, that’s where this discussion should start because your basic concept of rights itself is nothing more than a grab bag of notions based on “convenience”. Yours is not a “natural rights” position and hence, any argument between you and a person starting from the concepts of “natural rights” is bound to end in this situation.
So, please do tell me where man’s rights originate from and then let us take the case up using reason.
- February 4, 2010 at 6:37 pm
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Peter Surda-
Actually, it doesn’t. Whether it is valid or not, my theory is unaffected.
Wrong. If you believe in natural law, Austrian economics, and libertarianism, it does. Homesteading is part of the foundation of natural law and the others.
It is merely a matter of extent. They always share some commonalities and some distinctions. Yet you claim that sometimes the commonalities take precedence (“property”), and sometimes the distinctions (“externalities”) without explaining how you draw such conclusions.
Basically, we start with exact copies of protected works being infringing and work from there. Legal rules have developed to sort these out. Just because distinctions are difficult to make doesn’t mean they shouldn’t be made. Note we make legal rules to make difficult distinctions involving natural law rights all the time. Physical property homesteading, contracts, fraud, etc. So if you want to abandon natural rights the minute a difficult distinction comes up perhaps you are in the wrong field.
Unfortunately I can’t address the rest of your points until later, just wanted to chime in when I could.
I will be addressing the other posters too if they are still following.
- February 4, 2010 at 7:39 pm
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Dear pro-IP-libertarian,
> If you believe in natural law, Austrian economics,
> and libertarianism, it does.
I still fail to see the connection. Some activities are harder to perform than others, that is correct. But this does not serve as an explanation for anything in natural law, Austrian economics or libertarianism. In fact, it’s a utilitarian approach.> Basically, we start with exact copies of protected
> works being infringing and work from there.
You begin with a faulty assumption already. There is no such thing as an “exact copy”. It’s just an abstraction, or a metaphor that we use when we deem the distinctions irrelevant.> So if you want to abandon natural rights the
> minute a difficult distinction comes up perhaps
> you are in the wrong field.
On the contrary, it is you who insists on squeezing natural rights in some place where there are none.> Unfortunately I can’t address the rest of your
> points until later, just wanted to chime in when I
> could.
I don’t have as much time myself as I would like to argue, so a slower pace is welcomed. - February 5, 2010 at 11:35 pm
-
Peter Surda-
I still fail to see the connection. Some activities are harder to perform than others, that is correct. But this does not serve as an explanation for anything in natural law, Austrian economics or libertarianism. In fact, it’s a utilitarian approach.
Because those are based partly on principles of self-ownership and homesteading.
You begin with a faulty assumption already. There is no such thing as an “exact copy”. It’s just an abstraction, or a metaphor that we use when we deem the distinctions irrelevant.
Not at all. You know what “copies” are from contracts and titles for physical property. There is an original, and then there is a copy. If you can’t understand the “abstract” concept of originals and copies there I guess there goes physical property too…
On the contrary, it is you who insists on squeezing natural rights in some place where there are none.
Wrong. Homesteading (and self-ownership) is one of the foundations of natural rights, and the same person that documented and perhaps originated the concept believed homesteading applied to intellectual property as well.
- February 6, 2010 at 4:40 am
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Dear pro-IP-libertarian,
> Because those are based partly on principles of
> self-ownership and homesteading.
We are moving in circles. We’re back to the causality argument, which you yourself admit is an insufficient condition for homesteading.> You know what “copies” are from contracts and
> titles for physical property.
I am not sure I understand. If a “copy” is made according to a contract, then it is the contract that defines the scope of copy, or, which attributes are relevant and which not. This still does not imply that the result is an “objective copy”.> There is an original, and then there is a copy.
Indeed. You yourself admit that there is a distinction between them by calling one of them “original” and one of them “copy”. Now, without using the causality argument, we are stuck with the “similarity”, which as shown before and above, is also subjective.> If you can’t understand the “abstract” concept of
> originals and copies there I guess there goes
> physical property too…
With physical goods, there is no “original” and “copy”. There is always just one. There is no way to distinguish one physical object from the same physical object. - February 8, 2010 at 6:38 am
-
Peter Surda-
We are moving in circles. We’re back to the causality argument, which you yourself admit is an insufficient condition for homesteading.
Not sure what context you are referring to. The only thing necessary for physical homesteading is enclosure, which is definitely “caused” by the homesteader. The process for IP homesteading is similar. This is a long thread, cite it or paraphrase the exchange please. If there is an inconsistency I’ll be happy to address it.
I am not sure I understand. If a “copy” is made according to a contract, then it is the contract that defines the scope of copy, or, which attributes are relevant and which not. This still does not imply that the result is an “objective copy”.
No, I wasn’t referring to a contract transaction.
I was referring to contracts as patterns. You claim it is some great mystery telling an original IP creation from a copy. Yet much of our physical property rights are based on written contracts – and copies of contracts. We have to recgonize different “patterns” for recording and transacting with physical property, so it is no great hardship to do so with intellectual property.
Indeed. You yourself admit that there is a distinction between them by calling one of them “original” and one of them “copy”. Now, without using the causality argument, we are stuck with the “similarity”, which as shown before and above, is also subjective.
Homesteading IS causality. With both physical property and intellectual property. With physical property you enclose or whatever and go down to the courthouse (or land office, etc.) and get your homesteading recognized. With intellectual property you put it down in writing and go get a copyright, patent, trademark, etc.
What’s different with intellectual property is you want to equate a duplicate of already homesteaded IP with the original. But it has already been homesteaded. It is like you coming into my apple orchard and picking the apples and claiming “look, I did the picking, these are mine”. That is incorrect because my homesteading claim is superior to yours.
With physical goods, there is no “original” and “copy”. There is always just one. There is no way to distinguish one physical object from the same physical object.
Couple problems with this. First of all, some physical property can and does need to be distinguised, that’s why we have deeds, etc. – a lot of land looks just like the land next to it. Next, with homesteading part of the process is to make sure your homesteading is recognized and easy to establish in court if that becomes necessary. Same with IP homesteading.
- February 8, 2010 at 7:22 am
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Dear pro-IP-libertarian,
let me first explain the moving in circles. Our debate goes like this:
You: Property is derived from causality.
Me: What about externalities?
You: Ok, you need the additional condition of similarity.
Me: Similarity is subjective.
You: Ok, but original and copy are causally related.So you see? You’re moving in circles. You admit yourself that both conditions are insufficient. Absent the condition that is sufficient, you are left without a definition of property and your theory falls apart.
> You claim it is some great mystery telling an
> original IP creation from a copy.
There is no mystery, merely subjectivity. Actually, the whole sentence is a bit confusing. I claim indeed that an original and copy are different, not that it is difficult to tell them apart. Sometimes it might be difficutl to say which is which, nevertheless there are still two of them.> Yet much of our physical property rights are
> based on written contracts – and copies of
> contracts.
This does not invalidate my argument. For this to work it is sufficient that both parties involved agree on the meaning to a sufficient degree. An arbiter only has to ascertain whether there is an overlap between what the parties involved mean. That overlap is the contract. If there is no overlap or an insufficient one, there is a mistake or fraud. None of this requries that anything objective, it wholly depends on the meaning that the involved parties derive from the communication. It does not depend on a third party opinion. Even the arbiter does not need to share the meaning.> What’s different with intellectual property is you
> want to equate a duplicate of already
> homesteaded IP with the original. But it has
> already been homesteaded.
As I am attempting to explain, so far IP proponents have failed to demonstrate the “already” part. I fail to see this description as anything else than a metaphor, there is no empirical evidence for this ever happening. Furthermore, as I pointed out again several times, this brings up the question of boundaries, which again has not been answered by any of the IP proponents.> It is like you coming into my apple orchard and
> picking the apples and claiming “look, I did the
> picking, these are mine”. That is incorrect
> because my homesteading claim is superior to
> yours.
While it is true that this example is valid within your theory, it is also valid within mine. Taking apples alters the tree and makes the apples unavailable to anyone else. However, making a copy of an apple does not alter either the idea of apple nor the existing “original” apples, nor does it make the existing “original” apples unavailable to anyone. Furthermore, unlike your theory, my theory does not have the boundary problem.> First of all, some physical property can and does
> need to be distinguised, that’s why we have
> deeds, etc. – a lot of land looks just like the land
> next to it.
I am not sure I understand this. Apart from the feature of “looks”, land has the feature of location. Precisely because “looks” are subjective, they are not a suitable determinant of boundaries.> Next, with homesteading part of the process is to
> make sure your homesteading is recognized and
> easy to establish in court if that becomes
> necessary. Same with IP homesteading.
Correct me if I’m wrong, but the courts do not recognise land ownership based on what it looks like, rather where it is located. - February 8, 2010 at 7:39 am
-
Jay Lakner-
All subjective. All dependent on human interpretation. All are “meanings” that humans derive from the work. Not one of these things is an objective characteristic of their work.
Subjectivity is everywhere, including in contracts for labor and physical property. That doesn’t keep us from distinguishing it. Same with other concepts involving natural law, like force and fraud. We deal with distinguishing “subjective” similarities all the time. (By using “objective” or observable criteria, phenomena, or characteristics.)
No, no, no. Stop trying to evade the point.
I stated that the book and the movie were objectively completely different. To demonstrate their similarity, you continually brought up causality. I then demonstrated that causality doesn’t prove anything.You picked a bad example to use, because the book and movie are causally related by definition.
In any case homesteading basically is and relies on causation. See Locke.
Now you introduce this new word, “adaptation”, whose meaning is so broad that I’m sure you’re going to try to twist its definition around to suit your needs.
I don’t need to twist anything. An adaptation is the process of “adapting” a story from one medium to another. Same main story. Same main characters. Same main plot. A movie adapted from a book is by definition both similar and causally related.
By my definition of adaptation, my “complete opposite” movie IS an adaptation of the movie it’s based on. But you’re going to deny that and say that I’m using the word “adaptation” wrong.
You are using it wrong. An adaptation follows the same basic plot. Doing things completely different could either be a completely different work or possibly a parody, depending on how it was done.
Now you’re changing your tune. I guess you realised that equating similarity with causality is indeed a logical error. Unfortunately, instead of just admitting it and moving on, you’ve desperately tried to cover up your error by introducing this “adaptation” word.
Not at all. I just pointed out that adaptations are both similar and causally related, which they are.
Please stop being intellectually dishonest. We were discussing an example where the acts are causally related, but similarity was in dispute.
Watch the spurious “dishonest” accusations. Up until now I’ve ignored your caustic, insulting, and condescending tone and ad hominems. If you’re going to start claiming I’m dishonest then I may decide to stop responding to your comments.
You tried to demonstrate that they must be similar because they are causally related. I demonstrated the flaw in this thinking and now you’re trying to cover up your mistake.
Didn’t make a mistake. Adaptations are both similar and causally related. I confirmed that other examples you gave were disimilar.
In the grand scheme of things this is a meaningless series of forum posts which will probably never be read again. So you made a mistake, who cares? Can you at least try to be intellectually honest and move on. I don’t want to waste my time arguing with someone who is more interested in their own self-image than the content of the discussion.
The mistake is yours. See above.
“Observable phenomena” is a subset of “characteristics”. ie all observable phenomena are characteristics but not all characteristics are observable phenomena. This is because there can be both objective characteristics and subjective characteristics. So no, they are not true synonyms.
I didn’t say they were “true synonyms”. Meanings don’t have to overlap completely for words to be synonyms.
It would be intellectually dishonest to pretend I mean something different than the meaning I intend.
I didn’t. And you now know my intended meaning. And you’ve been warned about the “dishonesty” nonsense.
- February 8, 2010 at 8:47 am
-
Peter Surda-
You: Property is derived from causality.
Me: What about externalities?
You: Ok, you need the additional condition of similarity.
Me: Similarity is subjective.
You: Ok, but original and copy are causally related.So you see? You’re moving in circles. You admit yourself that both conditions are insufficient. Absent the condition that is sufficient, you are left without a definition of property and your theory falls apart.
That’s a mischaracterization:
pil: IP is derived from homesteading.
PS: What about externalities?
pil: Basically, same as with physical property. The IP owner just decides how they’re going to sell/license their good.
PS: Similarity is subjective.
pil: Subjectivity is everywhere, including in numerous principles in the law dealing with physical property. So to claim subjectivity is an obstacle means we discard physical property too. To throw out the pricing mechanism for IP for basically collectivist claims on the grounds of “subjectivity” would be pretty unwise.
Homesteading and some rulemaking are sufficient for physical property, they are sufficient for intellectual property as well.
There is no mystery, merely subjectivity. Actually, the whole sentence is a bit confusing. I claim indeed that an original and copy are different, not that it is difficult to tell them apart. Sometimes it might be difficutl to say which is which, nevertheless there are still two of them.
There is plenty of subjectivity in the law dealing with physical property. Once you recognize homesteading for IP its just a matter of rulemaking. Just like with real estate and the rulemaking surrounding homesteading and exclusion there.
As I am attempting to explain, so far IP proponents have failed to demonstrate the “already” part. I fail to see this description as anything else than a metaphor, there is no empirical evidence for this ever happening. Furthermore, as I pointed out again several times, this brings up the question of boundaries, which again has not been answered by any of the IP proponents.
There are documentation requirements for IP. This is analogous to homesteading and getting one’s homestead recognized.
Boundaries – how much exclusion to allow – would be addressed with rulemaking.
While it is true that this example is valid within your theory, it is also valid within mine. Taking apples alters the tree and makes the apples unavailable to anyone else. However, making a copy of an apple does not alter either the idea of apple nor the existing “original” apples, nor does it make the existing “original” apples unavailable to anyone. Furthermore, unlike your theory, my theory does not have the boundary problem.
Your analogy is only relevant if you are talking about a new kind of apple that was created by me. If you took the apple and produced it commercially your theory has worse problems than the boundary problem. Your claim that you are entitled to copy my apple without my consent represents a unilateral, collectivist claim on another’s labor/property. And most importantly your unilateral appropriation of my apple design would throw out the pricing mechanism (per Silas Barda) for creating new apple designs and varieties, especially those that were costly or time-consuming.
The need for a little rulemaking, like we have with real property exclusion, is a lot better than throwing out the pricing mechanism and installing IP collectivism.
I am not sure I understand this. Apart from the feature of “looks”, land has the feature of location. Precisely because “looks” are subjective, they are not a suitable determinant of boundaries.
Correct me if I’m wrong, but the courts do not recognise land ownership based on what it looks like, rather where it is located.
What’s important with homesteading is not only that the land is identified, but that you are identified as the owner (the one mixing their labor with the land) and that this is acknowledged. The acknowledgement through documentation is what is important, just like with IP homesteading.
- February 8, 2010 at 9:04 am
-
Bala-
Why are such laws justified? What is the basis of these laws? Why should I not injure anyone?
Because each person owns themself (otherwise there is some state of slavery) and you would be infringing on their rights, etc. Our hypothetical only dealt with doing away with exclusion in real estate.
Oh!!! So rights, specifically property rights, originate from the need for commercialisation? Quite interesting and revealing (as I said, of the state of your mind).
No, that’s just one of the main reasons for exclusion. There are many others. But it’s pretty funny it was one of the first things you started focusing on prattling on about your factory and such.
Frankly, that’s where this discussion should start because your basic concept of rights itself is nothing more than a grab bag of notions based on “convenience”. Yours is not a “natural rights” position and hence, any argument between you and a person starting from the concepts of “natural rights” is bound to end in this situation.
Nonsense. My position is more strongly rooted in natural rights than yours.
So, please do tell me where man’s rights originate from and then let us take the case up using reason.
Man’s rights begin with self-ownership and the corresponding right to one’s labor (Note: Not a particular value on that labor, the right to sell or form a contract for it.) and branches out from there through homesteading.
- February 8, 2010 at 10:52 am
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Dear pro-IP-libertarian,
I’m glad we’re making some progress.
> Subjectivity is everywhere, including in numerous
> principles in the law dealing with physical property.
You use subjectivity here to denote different issues that I am pointing out. I am talking about measurable aspects, you are talking about utility or meaning. There is nothing subjective in physical objects. Their existence determines their scope. Of course, we can discuss what object belongs to whom, and how an apple can be used. But that is a completely different issue. An apple does not extend beyond the skin, and ownership of an apple does not extend to places outside this skin. Why should then (the immaterial) book extend beyond the author’s head, and the homesteading beyond his copies? That is a completely unfounded assumption. Whereas with physical objects, their scope is determined by measurement, with immaterial it is determined by meaning or utility. So you see, we are talking about different “subjectivity”. Even if we can’t be completely sure with regards to results of measurement, we are still sure that there is only one thing to measure. But with meaning and utility, the scope can be literally anything.Furthermore, you evaded the actual issue. The condition remains subjective. My condition (alteration and/or making unavailable) doesn’t.
> Homesteading and some rulemaking are sufficient
> for physical property, they are sufficient for
> intellectual property as well.
Of course, this misses that it is the scope of homesteading that we disagree about.> Once you recognize homesteading for IP its just
> a matter of rulemaking.
Yet already you are making a rule where you assert that the homesteading of immaterial extends beyond one’s head. That’s the equivalent of claiming that ownership of an apple extends to objects in its proximity, or to objects that taste sweet when eaten.> Just like with real estate and the rulemaking
> surrounding homesteading and exclusion there.
With physical objects, you homestead the actual objects based on their measurable properties (which are objective), rather than utility (which is subjective). That invalidates your real estate example. With immaterial objects, you again have a choice between two approaches, but regrettably for you, both are subjective: meaning and utility.> There are documentation requirements for IP.
> This is analogous to homesteading and getting
> one’s homestead recognized.
Yet, before we even come to this stage, we need to agree that homesteading ideas extends beyond one’s head.> Your analogy is only relevant if you are talking
> about a new kind of apple that was created by
> me.
What is “new kind of apple”? Is this again you trying to determine the limit where dissimilarities are relevant?> If you took the apple and produced it
> commercially your theory has worse problems
> than the boundary problem.
What do you mean “took the apple”? If I take an apple without your permission, that would be theft.> Your claim that you are entitled to copy my apple
> without my consent represents a unilateral,
> collectivist claim on another’s labor/property.
What are you talking about? If I copy an apple, I created an externality. Unless you covered such an occasion by contracts, your ownership does not extend to it. Exactly the same way as externalities are handled with regards to material goods.> And most importantly your unilateral appropriation
> of my apple design would throw out the pricing
> mechanism (per Silas Barta) for creating new
> apple designs and varieties, especially those that
> were costly or time-consuming.
Yet, for some strange reason, none of the IP proponents are bothered by the same effect being achieved by externalities or substitutes. For some strange reason, you keep asserting that there is a difference between an illegitimate copy and an externality, between an original and a substitute, without explaining anything. I keep explaining that there is no such difference, and you just shrug it off.> The need for a little rulemaking, like we have with
> real property exclusion, is a lot better than
> throwing out the pricing mechanism and installing
> IP collectivism.
Your argument fails on externalities, substitutes, etc.> What’s important with homesteading is not only
> that the land is identified, but that you are
> identified as the owner (the one mixing their labor
> with the land) and that this is acknowledged.
This is only at the second stage of the theory. In the first, it needs to be determined what a homesteading would mean. You have to define it first, which you haven’t because your conditions are insufficient.Explicitly or implicitly, you provide some of the following conditions for homesteading:
– causality (you admitted insufficient)
– similarity (you admitted subjective)
– utility (you denied as a condition)
– meaning (you have not mentioned this but I added it for completeness’ sake)I think that you are mentally stuck with this approach to defining property. As I have demonstrated however, this approach does not deliver a usable definition. This is the core issue that you need to solve before the rest of your arguments even are relevant. You need either to make your conditions sufficient, or abandon this approach. I did the latter: I abandoned this approach and favour a different one, that is based sufficient conditions and measurable boundaries.
February 23, 2010 at 7:50 am-
On a related note, I like this scheme for reorganizing patent law. The key idea is to change the law so that the value of a patent is proportional to how much effort it saved you in practice. This means that ideas which take a long time to think up but, once conceived, are easily reproduced, get more protection than ideas that are simply a lot of engineering effort. I think this intuitively lines up with what we expect from patents, while preserving the right of an inventor to invent freely without fear of what others might have done in the past.
October 26, 2011 at 9:51 pm-
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*****
{ 249 comments… read them below or add one }
January 23, 2010 at 7:17 am
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Dear Kerem,
> Lockean/Rothbardian theory that only justifies
> homesteading. It is not a positivist theory deciding
> what can and what can not property by arbitrary
> distinctions.
That what you are calling “Lockean/Rothbardian theory” is actually “Lockean/Rothbardian theory” + “Kerem Tibuk’s arbitrary axioms”. You need to understand this before we progress any further. January 23, 2010 at 8:04 am
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newson wrote:
“the justification of private property is not that it creates more wealth, that is a happy side-effect. it’s that it is the only way to avoid universal violence…”
Isn’t avoiding a war of all against all for material goods useful?
“…are you suggesting the imposition of violence to increase overall utility? or that a certain amount of violence is ok, but not too much?”
Well, you know the answer to that question, newson, because you know that I’m a minarchist. Do the math. Anyway, even in Ancapistan, you’d have to impose violence on some people to get them to leave other peoples’ property alone.
“besides the history of radio prior to the fcc shows regulation wasn’t necessary for a florid radio industry.”
When did I ever mention the FCC? I’m just talking about having rights in EM spectrum. That doesn’t necessitate a regulatory agency, only courts of law, and a registration mechanism of some sort.
“you surely don’t expect everyone in a given radius to shut up when you talk, using scarce audible frequencies, so give random a break.”
I expect that they don’t speak so loud that I’m not able to carry on a conversation.
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ABR wrote:
“Russ wrote: “Even if the airport came first, and then people buy surrounding land, what then? Would easement right conditions be attached to their property? How so?”
By action. The planes are flying over the newcomers’ land. Every day.”
So? The newcomer’s land was previously unowned, so there could have been no easement contracts with the non-existent former owners. So when the newcomers came, there were no easement contracts to bind them. So I don’t see how you could use easements to get this right to make noise, in this case.
If you’re saying that by making noise (or radio waves) before the newcomers came, the airport homesteaded the right to make noise (or radio waves) in that area, I’m not sure that follows from pure property rights. The so-called “homesteader” can emit noise, radio waves, pollution, whatever, as long as the surrounding area is unowned, sure. Who could object except maybe an eco-nazi? But once the land is homesteaded (and in a pure physical property rights system, only physical property such as land *can* be homesteaded), the first guy is now emitting noise, or whatever, onto somebody else’s property. He’s violating their rights.
If you still say that he has the right to “homestead” the right to produce noise in an area, that’s fine, you can do that, but I don’t think it can be derived from pure property rights. Likewise with homesteading the right to emit radio waves. If somebody homesteads land, they now own *physical* property. But if somebody homesteads “the right to emit radio waves at X Mhz over a given area”, they haven’t homesteaded *physical* property. They’ve homesteaded a more abstract right which we have been calling EM spectrum “property”. Once you say that somebody can do that, I think you’ve just admitted EM spectrum rights, as I conceive them.
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Peter Surda wrote:
“I already explained why this definition is problematic. Any action whatsoever that is undesired can be declared trespass.”
I think this is similar to the point I made against Silas when we were talking about his IP theory. I said that just because he desires to use his property to get such-and-such a result, and that I “interfered” with his desire, that does not necessarily mean that I violated his rights.
January 23, 2010 at 12:29 pm
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Russ wrote: “If you still say that he has the right to “homestead” the right to produce noise in an area, that’s fine, you can do that, but I don’t think it can be derived from pure property rights.”
I agree. That is, this form of homesteading is a weaker proposition than the primary form: mixing one’s labour with the land. However, I do think this form of homesteading is essential to life. Water rights, in particular, would not exist without this form of homesteading.
How can a person mix his labour with a river, other than by damming or diverting? If a person wishes to siphon water for drinking or irrigation, he establishes a right to proportional consumption. If we don’t grant him that right, then we’re back to the tragedy of the commons.
January 23, 2010 at 3:50 pm
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Kerem Tibuk,
Please answer Magnus’ question:
“Can Crusoe legitimately travel to the second island and use force to stop the islanders, whom he never met, from using the ideas that Friday transmitted to them?”
January 23, 2010 at 4:08 pm
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Peter Surda-
Duplication is a metaphor, it is not an empirical phenomenon.
No, duplication or copying is an identifiable and measurable human action.
The only reason that you claim that it is “the same product” is that it appears “too similar” to you, or has the same utility. This is a result of subjective evaluation rather than objective reality.
No, there was definitely a first Stephen King novel. Or a first motorcycle. These wouldn’t have existed without the intellectual and to some degree physical homesteading of the creator.
Duplicating or copying these can be distinguished from the creation of the first one. They wouldn’t be possible, by definition, without the creation of the first one.
So does the selling of substitutes, finding ways of increasing productivity or criticising the features of the product. It implies that the creator owns his market share.
Those don’t involve using the creator’s homesteaded or owned property. Me starting another beach house bed and breakfast further down the beach from yours isn’t stealing from you. Grazing my llama herd directly on the lawn of yours is akin to stealing.
To put it more succinctly: Duplication is not equivalent to creation. Competing, alternate creation is equivalent to creation.
This is why I dislike the word “scarce”. It leads to confusion. IP is non-rival, consumption does not decrease supply.
It is rivalrous in the way radio spectrum or real property is rivalrous – duplication without homesteading or license crowds out profitable use the way overlapping broadcasting or trespassing does.
Note again this is not preventing competition, alternate homesteading – true alternate creation – is available.
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Peter Surda-
The reason for this has nothing to do with property rights. It is the result of rivalry: exclusion is a necessary condition for the ability to use and trade the good. This principle exists regardless of the legal system. However, with non-rival goods, this principle is absent, and is artificially mimicked by the legal system.
You’re arguing by definition. In the case of real property, you are saying exclusion is a necessary condition for the ability to use and trade the good. The same is true for IP. Theoretically, you could use and trade real property without exclusion but the value would be greatly reduced. The value is created and maintained by the legal system. Likewise with IP.
Indeed, because these problems are the result of natural features of rival goods. Yet, if we took away exclusion from non-rival goods, apart from some revenue redistribution and some business models becoming unprofitable there are no other negative effects and a plethora of positive ones. The same results would occur when any artificial monopoly or redistribution scheme were cancelled.
Subjectively, there would be many positive effects for many people with the abolishment of real estate exclusions. The price for subsistence-level living would go way down – all you would need is a tent or car with a camper for shelter. If the “monopoly” or “redistribution scheme” for intellectual property homesteading is “artificial”, the one for real property can be characterized as such as well.
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Scott D-
This is where the socialists try to weasel their way through with much the same arguments that the pro-IP libertarian uses to justify their position. The money taken for government welfare programs is not theft because the benefits to society accrue back to the individual who is taxed, the socialist says. Functionally, this is little different from the arguments that claim the utilitarian benefits of an IP system.
Not at all. It’s akin to the real property rights system. The state provides a deed that proves ownership so that individual rights can be protected, trade can occur, etc. The IP law system does the same.
I could refer to the anti-IP crowd as collectivists for wanting to provide a public claim on homesteaded intellectual property. It’s “the people’s” music!
-
Jay Lakner/Magnus-
Kerem Tibuk,
Please answer Magnus’ question:
“Can Crusoe legitimately travel to the second island and use force to stop the islanders, whom he never met, from using the ideas that Friday transmitted to them?”
Not to speak for Kerem here, but you are mixing metaphors. The Crusoe example refers to a case involving a primitive age, different countries, different cultures, etc.
Let’s put it this way: In the present day if someone offered you a free music download and it wasn’t the musician and wasn’t on one of the free websites you have a pretty good idea that you are violating copyright, even if you never met the musician before. You also know you could download the same song for a $1 or so on one of the paid services.
January 23, 2010 at 5:31 pm
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pro-IP-libertarian wrote:
“Peter Surda wrote: “The reason for this has nothing to do with property rights. It is the result of rivalry: exclusion is a necessary condition for the ability to use and trade the good. This principle exists regardless of the legal system. However, with non-rival goods, this principle is absent, and is artificially mimicked by the legal system.”
You’re arguing by definition. In the case of real property, you are saying exclusion is a necessary condition for the ability to use and trade the good. The same is true for IP. Theoretically, you could use and trade real property without exclusion but the value would be greatly reduced. The value is created and maintained by the legal system. Likewise with IP.”
But exclusion is not a necessary condition for the ability to use and trade patterns. It’s certainly not necessary to use them; multiple people can easily use copies of patterns at the same time. People could also trade them, if they wished. Of course, the price would be very low, but that doesn’t mean that they couldn’t do it. It just means that can’t make the profit they would like out of it. You’re saying that this “reduces the value” just like with real property. But now you’re mixing meanings. Not having material property rights would “reduce the value” of real material in two senses; 1) the monetary value, and 2) the “use” value (the value you get out of something by using it). Not having IP rights would only reduce the value of the pattern in the monetary sense, but not in the use sense.
-
Stephan Kinsella wrote:
“…I’m the Uber-Lockean…”
Yeah, well I’m still the evil utilitarian Ãœbermensch! MWAHAHAHA!!!
“Kerem, very generous of you to self-PWN.”
Ya know, if you’re going to take pokes at Kerem this way, it’s not fair that you ask him to be civil, too.
Pick one. -
Dear pro-IP-libertarian,
> No, duplication or copying is an identifiable and
> measurable human action.
You are mixing two things. Indeed, when you claim that copying occurs, your base for that claim is that you observe some human action. But you do not observe “the copying”.> No, there was definitely a first Stephen King
> novel. Or a first motorcycle.
Yes, there were. So what?> These wouldn’t have existed without the
> intellectual and to some degree physical
> homesteading of the creator.
Yes, there is a causal relationship. So what? This does not prove that Stephen King’s novels or motorcycles, respectively, share some mystical identity.> Duplicating or copying these can be
> distinguished from the creation of the first one.
Yes, it can. But that does not prove that they are “the same”. You say yourself that they can be distinguished, and at the same time claim that they are “the same”. Does the dichotomy not bother you?> They wouldn’t be possible, by definition, without
> the creation of the first one.
Again, so what?(substitutes & critisizing)
> Those don’t involve using the creator’s
> homesteaded or owned property.
You are assuming your conclusion.> Me starting another beach house bed and
> breakfast further down the beach from yours
> isn’t stealing from you.
Yet according to you, selling another book is. Again, does the dichotomy not bother you?> Grazing my llama herd directly on the lawn of
> yours is akin to stealing.
At least we can agree on something.> To put it more succinctly: Duplication is not
> equivalent to creation.
Surprisingly, this does not stop you from claiming that the duplicate is “the same” as the original.> Competing, alternate creation is equivalent to
> creation.
This is a correct, however it only addresses the causality issue.> It is rivalrous in the way radio spectrum or real
> property is rivalrous – duplication without
> homesteading or license crowds out profitable
> use the way overlapping broadcasting or
> trespassing does.
A couple of paragraphs above you said that it does not bother you when another bed and breakfast crowds out profitable use of yours. Besides, you fail to explain why you reject my definition, other than that you need your in order for your theory to be valid.Rival goods are evident. If you consume them, they are gone. Forever. No more. No matter how you twist the meaning or change the laws.
> Note again this is not preventing competition,
> alternate homesteading – true alternate creation
> – is available.
This distinction is only valid if you re-define trade as a unilateral declaration instead of a bilateral agreement. In other words, if one owns a market share.> You’re arguing by definition.
No, you are.> In the case of real property, you are saying
> exclusion is a necessary condition for the ability
> to use and trade the good.
Actually, I’m not. I’m claiming that for rival goods, exclusion is a necessary condition for the ability to use and trade the good.> The same is true for IP.
No, it’s not.> Theoretically, you could use and trade real
> property without exclusion but the value would
> be greatly reduced.
Now you are using the value definition of property, which was discredited several times during the course of the IP debates on this blog, and before that by actual economists. Therefore, this sentence is irrelevant.> The value is created and maintained by the legal
> system. Likewise with IP.
Value is created by markets. IP or no IP. Irrelevant.> Subjectively, there would be many positive
> effects for many people with the abolishment of
> real estate exclusions.
Yes, there would. However, they real estate would become unavailable to those that owned it before. January 23, 2010 at 10:03 pm
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The documentary The Future of Food discusses some interesting problems with patents related to genetic engineering of plants.
The first fifteen minutes will discuss most of the patent problem which came to a head in the Monsanto Canada v. Schmeiser case.
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Stephan Kinsella-
Right. And you guys undercut this: you say that if there is a scarce resource, say a piece of paper owned by A pursuant to Lockean homesteading, then B gets to control and use and own it, if B thinks of a way to use B’s own property. That means B is the tie breaker winner, even though B is not the first comer.
Yet you think it is entirely reasonable for X to prevent Y from using their transmission equipment on certain frequencies. It’s Y’s transmission equipment! You’re violating Y’s property rights!
In a slightly more extreme example, you forbid me from herding my tired llamas across the yard of your beach house. But you have full use of the rest of the property, and the yard after I’ve moved them along. The humanity!
-
Russ-
But exclusion is not a necessary condition for the ability to use and trade patterns. It’s certainly not necessary to use them; multiple people can easily use copies of patterns at the same time.
Exclusion isn’t necessary to use real estate either. You could squeeze a large number of people into the average 3br 2 ba house. Exclusion aids in effective use and trade in both instances.
Not having IP rights would only reduce the value of the pattern in the monetary sense, but not in the use sense.
There is plenty of evidence to suggest people derive other benefits from restricting access. People derive lots of psychic and aesthetic benefits from “exlusivity”, not in the economic sense but in the sense of rarity, novelty, salience, etc.. Exclusive fashions, exclusive country clubs, cool/trendy teenage clothes, etc. So arguably use is effected as well. (Not saying this is rational or sensible, just stating it exists.)
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Peter Surda-
You are mixing two things. Indeed, when you claim that copying occurs, your base for that claim is that you observe some human action. But you do not observe “the copying”.
Yes, there were. So what?
Yes, there is a causal relationship. So what? This does not prove that Stephen King’s novels or motorcycles, respectively, share some mystical identity.
You admit that creation can be distinguished from duplication. Creation: creating a new item or type of item. Duplication: making a copy of a created item.
I’m not saying that there is anything “mystical” about creation, just that it is involves the intellectual homesteading of property, duplication does not. You are the one equating creation with duplication and claiming they are equivalent.
Yes, it can. But that does not prove that they are “the same”. You say yourself that they can be distinguished, and at the same time claim that they are “the same”. Does the dichotomy not bother you?
You are the one claiming that duplication is equivalent to creation, not me.
Surprisingly, this does not stop you from claiming that the duplicate is “the same” as the original.
Where do I claim that? When Stephen King licenses his publisher to make copies of his books, that is him profiting from his creation. If some copycat publisher made copies without permission, that would be infringing duplication. If the same copycat publisher actually got a license to print Michael Crichton books that would be alternate creation, which would be acceptable, honest competition. Where have I claimed they are “the same”?
On the other hand, you are the one claiming that the copycat publisher nonconsensually duplicating Stephen King’s original creation is the same as his publisher printing licensed copies. They are not the same.
A couple of paragraphs above you said that it does not bother you when another bed and breakfast crowds out profitable use of yours. Besides, you fail to explain why you reject my definition, other than that you need your in order for your theory to be valid.
With a competing bed and breakfast, the owner actually homesteaded their own property. With competing IP, the owner actually homesteaded their own property as well. With my llama herd, I am infringing or trespassing the homesteaded owner’s property. With unlicensed duplication, I am infringing the homesteaded owner’s property.
Rival goods are evident. If you consume them, they are gone. Forever. No more. No matter how you twist the meaning or change the laws.
Broadcasting band is perpetual and it is considered rivalrous. Real property is basically perpetual and it is considered rivalrous.
This distinction is only valid if you re-define trade as a unilateral declaration instead of a bilateral agreement. In other words, if one owns a market share.
Not sure about your phrasing here. The distinction already exists for broadcasting band and real property yet we don’t consider that “owning market share”. You are free to homestead or purchase other real estate or broadcast band and compete.
Now you are using the value definition of property, which was discredited several times during the course of the IP debates on this blog, and before that by actual economists. Therefore, this sentence is irrelevant.
Incorrect. It relies on homesteading, not valuation. Plenty of valueless IP has been homesteaded.
Value is created by markets. IP or no IP. Irrelevant.
Incorrect, quite relevant. You yourself stated that real estate relies on the state recognized ability to exclude so that it can trade effectively. So value is created by markets, but the state recognized ability to exclude enhances the value of the property on some markets.
Yes, there would. However, they real estate would become unavailable to those that owned it before.
No, they would just lose the ability to exclude. You would still own the beach house, you would just have to co-exist with my llamas and any other members of the public that wanted to occupy the property. With the right business model you might be able to turn a profit.
January 24, 2010 at 8:06 am
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Not to speak for Kerem here, but you are mixing metaphors. The Crusoe example refers to a case involving a primitive age, different countries, different cultures, etc.
Not to speak for Kerem, either, but (a) he brought it up, so I assume that he thinks Crusoe’s property rights are relevant, and (b) Kerem also spends a lot of time defending IP, and property generally, on the grounds that property rules arise even in a condition of social isolation, and he bjects strongly to the proposition that property rights are assigned by social convention.
I assume that means that Kerem Tibuk thinks that property rights exist independently of the “age,” culture, nationality, etc. of the people involved. You know, since he works so hard to purge himself of all contradiction and error, so he tells us.
But then again, since he has avoided answering a simple follow-up question about his Crusoe scenario for several days now, I really have no way of knowing what Kerem Tibuk thinks, other than that he’s afraid to answer the question.
Let’s put it this way: In the present day if someone offered you a free music download and it wasn’t the musician and wasn’t on one of the free websites you have a pretty good idea that you are violating copyright, even if you never met the musician before. You also know you could download the same song for a $1 or so on one of the paid services.
I would only know that I am “violating copyright” because the people who presume to call themselves “the state” and “legislators” tell me that copyright exists.
Like everything else legislators do, I ignore such verbiage as though it were idle wind.
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Magnus-
I would only know that I am “violating copyright” because the people who presume to call themselves “the state” and “legislators” tell me that copyright exists.
Like everything else legislators do, I ignore such verbiage as though it were idle wind.
If something is against the law – legitimately or illegitimately – that tactic works fine until they start enforcing the law.. And there are natural rights arguments supporting IP so it isn’t necessarily illegitimate.
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arrgh … my post got eaten. It seems to be happening more often recently. I’ll try and recap what I wrote.
pro-IP-libertarian,
Whether or not a person knowingly commits a violation of current copyright laws is irrelevent to the question as to whether those laws should exist in the first place.
Magnus’s Crusoe example to Kerem Tibuk was a good one as it outlines the dangers of believing that the Universe contains fundamental “oughts”. Kerem, as usual, ignores questions which outline deficiencies in his position. That is why I brought it up.
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Russ-
You wrote to Kerem:
As should you. The Lockean labor theory of property applies to physical goods, not patterns or ideas. It is not at all obvious that the concept should extend to patterns or ideas.
I’m not a Locke scholar, but apparently Locke advocated a copyright term for writers of life plus 70 years when the Stationers’ company monopoly was being considered for renewal. (Monopoly as in only members of the company could be in the printing business, not the so-called “monopoly” of IP.) I have also seen others cite passages where Locke extended or showed a tendency to extend his labor theory of property to IP. See this abstract:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=936353(Couldn’t find the 1694 memorandum, would have posted it if I could.)
That certainly shows a pretty strong tendency to support the notion of intellectual creations being the property of the creator. Stronger than present-day law, in fact.
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pro-IP-libertarian wrote:
“Exclusion isn’t necessary to use real estate either. You could squeeze a large number of people into the average 3br 2 ba house.”
So what? This argument is silly. You don’t even really believe that houses should be publicly owned property.
So let’s go back to my old post where I admitted that “use” of property wasn’t the issue with respect to exclusivity, but “possession” was, where “possession” can be understood as the ability to control the use of the property. Now, with that criteria, exclusivity *IS* necessary to *possess* real estate, since real estate is scarce. Exclusivity is also obviously necessary to possess radio channels, since they are also scarce.
It’s not so obvious that exclusivity is necessary to possess patterns or ideas, because they aren’t scarce. When you say that you “possess” IP, does that mean that you possess *an* instantiation of the pattern, or *every possible* instantiation of the pattern? If it’s the first, then you can still control the use of your instantiation without IP rights being necessary. Only in the second case do you need IP rights.
This raises the question, why *should* you have the right to control every possible instantiation of a pattern or idea? What is your justification for claiming this right? Because of causality; i.e. you created that pattern? So what? Because you want to make lots of money from selling the pattern as if it were scarce property? Again, so what? I still haven’t seen a good justification for why you should have this right.
As for Locke being for copyrights, I wasn’t aware of that. I haven’t actually read Locke for quite some time. At any rate, that doesn’t effect my argument, I don’t think, except that I was misusing the label “Lockean rights”.
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Russ-
So what? This argument is silly. You don’t even really believe that houses should be publicly owned property.
So what yourself. You said that exclusion wasn’t necessary to trade IP, I just pointed out that exclusion wasn’t necessary to trade real estate either. But it would be really, really difficult to do it and might be pointless in many cases. This is similar to how difficult it would be to profit from some kinds of IP without exclusion.
And no, I do believe in privately owned real estate, I was just playing devil’s advocate for the sake of argument.
So let’s go back to my old post where I admitted that “use” of property wasn’t the issue with respect to exclusivity, but “possession” was, where “possession” can be understood as the ability to control the use of the property. Now, with that criteria, exclusivity *IS* necessary to *possess* real estate, since real estate is scarce. Exclusivity is also obviously necessary to possess radio channels, since they are also scarce.
No, my examples pointed out it would be possible to use and even profit from real estate without exclusion, it just would be strained and difficult. Same for radio broadcasting band. This just illustrates how disingenuous the arguments are when applied to IP.
It’s not so obvious that exclusivity is necessary to possess patterns or ideas, because they aren’t scarce. When you say that you “possess” IP, does that mean that you possess *an* instantiation of the pattern, or *every possible* instantiation of the pattern? If it’s the first, then you can still control the use of your instantiation without IP rights being necessary. Only in the second case do you need IP rights.
They are scarce, you’ve admitted that elsewhere. There are free music services all over the place, yet people still want to copy protected music. Why? Because it is good. And because it is scarce. Duplication/copying is not equal to creation. And good creators – and their creations – are scarce.
About your other point: Exclusion – the creator being the only one to sell/license copies of their creation – is necessary for creators to reasonably profit from their creation. Just like real estate owners need exclusion to reasonably profit from owning real estate. That’s why real estate came into this.
This raises the question, why *should* you have the right to control every possible instantiation of a pattern or idea? What is your justification for claiming this right? Because of causality; i.e. you created that pattern? So what? Because you want to make lots of money from selling the pattern as if it were scarce property? Again, so what? I still haven’t seen a good justification for why you should have this right.
Natural rights – homesteading. Just like real estate homesteading. Why do you want to own real estate? Just because you want to make lots of money?
As for Locke being for copyrights, I wasn’t aware of that. I haven’t actually read Locke for quite some time. At any rate, that doesn’t effect my argument, I don’t think, except that I was misusing the label “Lockean rights”.
It does if you believe in natural rights. Even variations with a utilitarian basis.
January 26, 2010 at 11:52 am
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pro-IP-libertarian”
Broadcasting band is perpetual and it is considered rivalrous. Real property is basically perpetual and it is considered rivalrous.
I want to address this because I think you fail to make the distinction between why physical property and EM use (key distinction) are rivalrous, hence scarce, hence requiring exclusion and why IP is not. The former two may be “perpetual” but, at any given moment in time, they may only be used in an exclusive way. Two people cannot occupy the same space at the same time and two identical EM bands may not be used in the same space at the same time without interfering with each other. IP, on the other hand, can be used at the same time by unlimited amounts of people with no reduction in its supply or quality. In fact, its supply increases which, from a macro-utilitarian view, is typically good for an economy.
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Mashuri-
I want to address this because I think you fail to make the distinction between why physical property and EM use (key distinction) are rivalrous, hence scarce, hence requiring exclusion and why IP is not. The former two may be “perpetual” but, at any given moment in time, they may only be used in an exclusive way. Two people cannot occupy the same space at the same time and two identical EM bands may not be used in the same space at the same time without interfering with each other. IP, on the other hand, can be used at the same time by unlimited amounts of people with no reduction in its supply or quality. In fact, its supply increases which, from a macro-utilitarian view, is typically good for an economy.
Real estate would only be truly physically rivalrous in really small areas. Why not make those with estates and big yards allow the public to park their campers and tents on them? From a utilitarian view, that would drive lower income housing costs way down, which would typically be good for the economy.
And to stress again you are still equating duplication with creation – they are not equivalent. Good quality creators and creations are scarce. Allowing public claims on their creation misprices and disincentivizes their creation just like allowing public claims on private land would misprice and disincentivize its trade, investment, and development.
Now to head off claims that the examples aren’t equivalent, note that most anti-IP advocates claim that IP creators still have the use of their IP themselves, and can be first to market. In the “public claims on land” example land owners would still have use of their houses and living quarters for “personal use”, they would just have to cede their yards and estates to the public. Pretty equivalent. Ridiculous in both cases, but equivalent.
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Need to add: Note that it was Silas Barta that first pointed out that public claims on IP from the “duplication is equivalent to production” framing would lead to the mispricing of IP creation, similar to Mises’ exposure of mispricing as the fatal flaw of socialism.
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Pro-IP-libertarian wrote:
“Now to head off claims that the examples aren’t equivalent, note that most anti-IP advocates claim that IP creators still have the use of their IP themselves, and can be first to market. In the “public claims on land” example land owners would still have use of their houses and living quarters for “personal use”, they would just have to cede their yards and estates to the public. Pretty equivalent.”Scarce = rivalrous = two things can’t be used simultaneously. Have you misunderstood this point?
Other people using my land automatically forbid me from spontaneously going out and using it myself. Even for extremely large areas of land, what if my “use” of my land is the satisfaction that nothing is happening to my land? What if I bought it for the pleasurable feeling of knowing that a human-free ecology is developing there?
Your example is completely and totally incompatible with IP and this seems to have something to do with your misunderstanding of the concept of “rivalrous versus non-rivalrous”.
Pro-IP-libertarian wrote:
“Need to add: Note that it was Silas Barta that first pointed out that public claims on IP from the “duplication is equivalent to production” framing would lead to the mispricing of IP creation, similar to Mises’ exposure of mispricing as the fatal flaw of socialism.”This has been blown out of the water over and over again. Intangible entities can still be exchanged despite not having an owner because of their non-rivalrous nature. Hence economic calculation is not skewed through lack of ownership.
In fact, it has been shown that assigning ownership to intangible entities does the exact opposite – it creates an economic calculation problem. -
Jay Lakner-
Scarce = rivalrous = two things can’t be used simultaneously. Have you misunderstood this point?
I understand it just fine. Although you should talk to Peter Surda, he distinguishes scarcity and rivalrousness.
If you’re going by that definition though, understand that IP is scarce. This is shown by you bothering to copy protected material. If IP wasn’t scarce you would just pluck other IP from the “tree of infinite” IP that wasn’t protected. Good IP – good creators and their creations – are scarce.
Other people using my land automatically forbid me from spontaneously going out and using it myself. Even for extremely large areas of land, what if my “use” of my land is the satisfaction that nothing is happening to my land? What if I bought it for the pleasurable feeling of knowing that a human-free ecology is developing there?
Same arguments apply to IP. Maybe IP owners like the feeling of knowing that no one can duplicate their work but them. After all, duplication is not production. A duplicator doesn’t homestead or create their own work.
Your example is completely and totally incompatible with IP and this seems to have something to do with your misunderstanding of the concept of “rivalrous versus non-rivalrous”.
Your perspective comes from the absurdity of equating duplication with creation. Creators and their creators are scarce. Otherwise free music services would have ended any file-sharing controversy. If IP is infinite, why not just copy unprotected works?
This has been blown out of the water over and over again. Intangible entities can still be exchanged despite not having an owner because of their non-rivalrous nature. Hence economic calculation is not skewed through lack of ownership.
In fact, it has been shown that assigning ownership to intangible entities does the exact opposite – it creates an economic calculation problem.You may think so, but I haven’t seen this demonstrated. You are still operating under the assumption that duplication is equivalent to creation, when they are demonstrably inequivalent. Since they are inequivalent a model that equated them would be causing calculation problems. Trying to assume this inequivalency away doesn’t change it’s existence.
Now I realize there are different types of IP and some types are effected by this more than others, it still doesn’t completely change the argument.
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pro-IP-libertarian,
The arguments you are putting forth seem very strange to me, as is the way you are explaining them. This usually means that the problem here is very fundamental. I’m guessing that this entire difference of opinion comes down to a fundamental disagreement on the nature of the Universe.
Unfortunately it is often very difficult to identify exactly where this disagreement lies.
Where to start? I know …
What do you think of the following statement?:“Creation†does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation†means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before. (This is true of any human product, scientific or esthetic: man’s imagination is nothing more than the ability to rearrange the things he has observed in reality.)”
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The idea that copying is not production is plainly silly.
If you build a useful object, and I look over and make a copy, we made two useful objects. To see how wrong you are, imagine two publishers who decide to print up copies of the same book that is “out of copyright.” Think of something 200-300 years old. Don Quixote. Or older, like Aesop’s fairy tales. Printing these books is obviously a form of production. They are copies — not wrongful copies in the bizarro IP philosophy, but still copies, and yet making them is still a form of production.
You resent copiers, and think they ought to be punished. I get it. But still, pretending it’s not production is just dumb.
To use the form of one of your (rather tired) arguments against you, copying is OBVIOUSLY a form of production, because otherwise, the supposed copyright holder wouldn’t have any reason to object. The IP holder asserts this B.S. right to pattern-protectionism precisely BECAUSE the copyist is producing something that customers want. And that interferes with the SALES that the IP holder thinks he ought to be given without pesky competition.
Which brings me back to the point that none of you IP people want to address — the only “harm” that IP proponents can show arising from the act of copy-based production is a loss of market share. Copying entails no interference between uses of rivalrous goods. No physical displacement. No tangible rivalry at all.
Show me one other area of free market philosophy where maintaining a producer’s preferred market share is considered to be a cognizable, protected property interest.
No such thing.
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Dear pro-IP-libertarian,
> I understand it just fine. Although you should talk to
> Peter Surda, he distinguishes scarcity and
> rivalrousness.
Not necessarily. I just remarked that the word “scarce” tends to distract IP proponents away from the actual issue.I must also repeat what I said before. My opinion that non-rival-goods can’t be owned in an exclusive, non-unique way, is a conclusion, rather than a premise. It is what remains after eliminating faulty assumptions, mainly the causality theory of ownership and the objective identity of immaterial goods. Non-utilitarian IP proponents usually use at least one of those to define property. I think it’s possible, although unlikely, that some non-rival goods are not eliminated by this argument, but what is nowadays understood with IP is probably unaffected by this.
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Jay Lakner-
“Creation†does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation†means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before. (This is true of any human product, scientific or esthetic: man’s imagination is nothing more than the ability to rearrange the things he has observed in reality.)”
I assume this is Mises or someone and you are arguing from authority.
Doesn’t matter. Duplication can be distinguished from creation, otherwise everyone would create and no one would have to duplicate. Or no one would create and we would still be at subsistence level.
Creation exists by using one’s imagination, intellect, or some combination thereof and mixing it with their labor (which may include just thinking, thinking can be labor) to come up with a new idea, concept, design, or combination thereof. This is why it can be thought of as intellectual homesteading. And why it creates a natural rights based claim on individual intellectual property.
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Magnus-
If you build a useful object, and I look over and make a copy, we made two useful objects. To see how wrong you are, imagine two publishers who decide to print up copies of the same book that is “out of copyright.” Think of something 200-300 years old. Don Quixote. Or older, like Aesop’s fairy tales. Printing these books is obviously a form of production. They are copies — not wrongful copies in the bizarro IP philosophy, but still copies, and yet making them is still a form of production.
The notion that they are equivalent production is laughable. Stephen King’s newest book was produced with hours and hours of writing and rewriting, research and revision. Not pressing “print” or “download” on a computer. Also, King has a rare natural talent to produce compelling, entertaining novels and stories. So not only did you not put in the labor, you probably could not perform the equivalent labor even if you tried. This is because his talent is truly scarce. The “talent” necessary to press a button is near universal. So no, creation is not equivalent to production by any stretch of the imagination.
And equating the two would result in a gross mispricing in the market for IP.
You resent copiers, and think they ought to be punished. I get it. But still, pretending it’s not production is just dumb.
No, I just realize they are violating natural rights, which I don’t condone as a libertarian.
To use the form of one of your (rather tired) arguments against you, copying is OBVIOUSLY a form of production, because otherwise, the supposed copyright holder wouldn’t have any reason to object. The IP holder asserts this B.S. right to pattern-protectionism precisely BECAUSE the copyist is producing something that customers want. And that interferes with the SALES that the IP holder thinks he ought to be given without pesky competition.
Say what you will about my argument, at least it isn’t circular. Your argument relies on assuming creation and duplication are the same, they are not. And no, we went over your other point in this thread already. IP exclusion is just like real estate or radio broadcasting exclusion, there is plenty of room for competition left – just do your own creation/homesteading. Create your own horror novel. Oh, that’s right, the skill-set is truly scarce so that will be difficult…
Which brings me back to the point that none of you IP people want to address — the only “harm” that IP proponents can show arising from the act of copy-based production is a loss of market share. Copying entails no interference between uses of rivalrous goods. No physical displacement. No tangible rivalry at all.
Wrong. It throws the pricing mechanism off just like socialism does. Or like what would occur if exclusion was done away with in the real estate or radio wave markets. And note the arguments for exclusion in real estate/etc. are owner-focused, yet no one claims real estate owners are “claiming market share” when they want exclusion.
Show me one other area of free market philosophy where maintaining a producer’s preferred market share is considered to be a cognizable, protected property interest.
Just did. It’s called real estate. Again, arguments for exclusion are owner-focused yet no one accuses them of claiming ownership of market share. You are free to homestead or buy your own real estate and compete. Just like you are free to create or buy your own IP and compete.
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Peter Surda-
I must also repeat what I said before. My opinion that non-rival-goods can’t be owned in an exclusive, non-unique way, is a conclusion, rather than a premise. It is what remains after eliminating faulty assumptions, mainly the causality theory of ownership and the objective identity of immaterial goods.
Well then there are major problems here, because homesteading is based on causality. You cause ownership by mixing your labor with an object. Just like you cause ownership with IP by intellectual homesteading.
Non-utilitarian IP proponents usually use at least one of those to define property. I think it’s possible, although unlikely, that some non-rival goods are not eliminated by this argument, but what is nowadays understood with IP is probably unaffected by this.
And yet you’re left with the circular – and demonstrably absurd – concept that duplication equals production.
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pro-IP-libertarian,
I was not arguing from authority. I just felt that Ayn Rand would explain it better than I could.
And your response was not exactly clear.
I want to know whether you agree or not that creation is simply the discovery of a new arrangement that tangible materials can take the form of?
January 27, 2010 at 2:02 pm
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In that case, money is not scarce, and the banks should run 0% reserves. In fact they can spend all their depositors’ money, since obviously they are not using it at this time.
This was already addressed, but with different arguments. I say this argument fails because the value of the monetary unit is not equivalent to IP–the design on the currency is. Millions of people have the same design on their dollar bills, with no harm to others, but the quantity of currency in circulation obviously affects the value of money, to the benefit of first-takers and to the harm of latecomers.
It’s also not fair to compare this to the value or sales obtained or lost by the creators, because unlike money, there is not a direct, proportional relationship between illegal copying and lost sales. Each illegal copy is not equivalent to one lost sale. And while one can download a song and then buy it at a later date, it’s not possible to copy a dollar bill and then “buy” one later. -
Dear pro-IP-libertarian
(regarding harm from IP)
> Wrong. It throws the pricing mechanism off just
> like socialism does.
Just because the price of a good can change by the influence of external factors is insufficient to conclude that “the pricing mechanism is thrown off”. It is actually exactly the opposite: the pricing mechanism allows to reflect external factors in the price.> Well then there are major problems here,
> because homesteading is based on causality.
It might be or might not be. That’s not the problem. The problem is that if you consider causality a sufficient condition for homesteading, it leads to, in my humble opinion, absurd conclusions. All causally related activities become potential rights violations. All positive externalities will become exposed to payment enforcement. I’ll use two examples by Walter Block (although he didn’t necessarily use it in this context) and two of my own:(Block)
Using a deodorant will allow you to enforce payment from people who share the same vehicle when using mass transportation. A woman walking on the street with a miniskirt would be allowed to enforce payment from men looking at her.(me)
Children would be property of their parents. Soviet Union would co-own Atlas Shrugged.Unless you agree that these examples correctly reflect your idea of ownership, you need to admit that causality is not a sufficient condition for ownership, and the whole argument falls apart.
> And yet you’re left with the circular – and
> demonstrably absurd – concept that duplication
> equals production.
I fail to see how the “duplication does not equal production” leads to ownership of immaterial goods. Every act is unique. Why should that cause arbitrary sets of these acts to become “property” of one person? -
Jay Lakner-
I want to know whether you agree or not that creation is simply the discovery of a new arrangement that tangible materials can take the form of?
I wouldn’t put it that way. I would look at it as akin to intellectual homesteading. Mixing one’s labor – including thinking – to create a new combination of concepts, thoughts, materials, etc. for the first time. (And enclosing this by going to a recognized place to establish ownership – like one goes to establish homesteaded real property ownership.) Duplication would be distinguished as reproducing an existing, homesteaded piece of intellectual property.
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Michael A. Clem-
This was already addressed, but with different arguments. I say this argument fails because the value of the monetary unit is not equivalent to IP–the design on the currency is. Millions of people have the same design on their dollar bills, with no harm to others, but the quantity of currency in circulation obviously affects the value of money, to the benefit of first-takers and to the harm of latecomers.
Not quite in my opinion. At least in the US, they generally don’t care if you reproduce images on currency on other things as long as one doesn’t try to pass it off as currency. The US government just claims a right to produce what it considers legal tender and to exclude anything else as legal tender. They want to control production and supply for a particular use, they aren’t too concerned with the imagery as property.
It’s also not fair to compare this to the value or sales obtained or lost by the creators, because unlike money, there is not a direct, proportional relationship between illegal copying and lost sales. Each illegal copy is not equivalent to one lost sale. And while one can download a song and then buy it at a later date, it’s not possible to copy a dollar bill and then “buy” one later.
This reaches to the exclusion issue discussed earlier. Sure, you could still make money with real estate you couldn’t exclude the public from, but it would be difficult and strained. Likewise, you might not lose one sale for every song illegally copied, but there would certainly be some amount of legitimate sales crowded out. Plus there is still the issue of it being unilateral: the copier certainly wants the good or they wouldn’t bother copying, they just don’t want to bother agreeing on price and paying it. This has utilitarian as well as moral consequences.
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Pro-IP-libertarian wrote:
“I wouldn’t put it that way.”But do you agree?
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Peter Surda-
Just because the price of a good can change by the influence of external factors is insufficient to conclude that “the pricing mechanism is thrown off”. It is actually exactly the opposite: the pricing mechanism allows to reflect external factors in the price.
Yes, and under natural rights theory we use homesteading and exclusion to establish particular rights to property. This is reflected in price. Yet these pricing effects are considered acceptable.
Also, the whole pricing mechanism depends on ownership and bilateral agreement to transactions. Under the “duplication is equivalent to creation” model all IP is considered public domain and unilateral transactions are permitted. This is something libertarians don’t tolerate in an economic system for physical property, but it is somehow acceptable for some with IP.
(Block)
Using a deodorant will allow you to enforce payment from people who share the same vehicle when using mass transportation. A woman walking on the street with a miniskirt would be allowed to enforce payment from men looking at her.Not quite. By selling homesteaded property for a particular use one would agree to particular externalities. IP owners would have to decide what products they are going to sell and in what format. To a large extent we already do this. The woman would have to decide whether she is just going to wear a miniskirt to look nice in a particular location or license a calendar where a mass market can see pictures of her in a miniskirt. Now if I hid a camera in her room without her consent and was charging people money to watch her that clearly would be me profiting from her image and would be subject to legal action. This would be supported under various natural rights arguments – self-ownership, homesteaded intellectual property, etc.
(me)
Children would be property of their parents. Soviet Union would co-own Atlas Shrugged.Violates both self-ownership and homesteading, in both cases.
Unless you agree that these examples correctly reflect your idea of ownership, you need to admit that causality is not a sufficient condition for ownership, and the whole argument falls apart.
Not at all. First, some of the examples violate self-ownership principles. But the ones that don’t involve an owner decision to engage in a bilateral transaction taking externalities into account or safely ignoring them. McDonald’s knows its fries smell good too, but decide it is worth it to sell the fries and let some people get the smell for free. The miniskirt woman knows that some around her in places she chooses to go would receive a positive externality, but decides it is worthwhile. That still wouldn’t allow putting a camera in her room and charging for it, or making illegal copies of a licensed calendar, which are self-owned and/or homesteaded goods.
I fail to see how the “duplication does not equal production” leads to ownership of immaterial goods. Every act is unique. Why should that cause arbitrary sets of these acts to become “property” of one person?
The same dynamic that allows the creation of ownership in unowned land – labor and homesteading. The duplicated property wouldn’t exist without the created property. And the action of creation is rarer, and necessary for and superior to the action of duplication.
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Jay Lakner-
But do you agree?
Basically I agree with current IP law. Although I think there may be some room for changes, especially with patents.
I don’t have an exhaustive knowledge about how Rand felt about IP. So I don’t know the context of that quote and her overall beliefs so I can’t say outright whether I agree with all her views on IP. But the quote sounds OK.
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pro-IP-libertarian,
Ok. That’s a start at least.
Now what if I were to say that all intangible entities are nothing more than possible arrangements that tangible materials can be formed into. In other words, every idea, story, concept, pattern etc is simply a possible arrangement that tangible materials can take.
For example:
Every story is nothing more than an arrangement of ink symbols on paper.
Every song is nothing more than a pattern of air disturbances (sound waves).
Every TV show is nothing more than a pattern of photons of light.
Every thought is nothing more than a pattern of neurons firing in a human brain.Would you agree with me on this?
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Dear pro-IP-libertarian,
> Yet these pricing effects are considered acceptable.
Exactly. But you neglect to explain how to differentiate the “acceptable” from the “unacceptable”.> Also, the whole pricing mechanism depends on
> ownership and bilateral agreement to transactions.
Exactly. But IP proponents insist that a third party’s (the IP “owners”) agreement is a requirement.> This is something libertarians don’t tolerate in an
> economic system for physical property, but it is
> somehow acceptable for some with IP.
The only reason for this is that IP proponents fail to demonstrate how is the third party “owner” of the “property” in question with all the other necessary conditions (non-exclusivity and non-uniqueness). Should they manage to do that, I would have no problem with agreeing with enforcing rights thereupon.> By selling homesteaded property for a particular
> use one would agree to particular externalities.
I don’t understand. Who would agree to what? The way externalities manifest are not always foreseeable. You can’t agree to what you can’t foresee.> IP owners would have to decide what products
> they are going to sell and in what format.
They can do that without IP just as well. IP just allows them to regulate certain externalities in way they can’t without. But they still can’t control externalities per se.> The woman would have to decide whether she is
> just going to wear a miniskirt to look nice in a
> particular location or license a calendar where a
> mass market can see pictures of her in a miniskirt.
Exactly. That’s the whole point. No special laws or “property protection” is necessary. Contractual agreements are sufficient to handle externalities.>> Children would be property of their parents.
>> Soviet Union would co-own Atlas Shrugged.
> Violates both self-ownership and homesteading, in
> both cases.
If that is your conclusion, then IP violates self-ownership (of one’s mind) and homesteading (of physical objects) too. You can’t have it both ways. Just like copyright “preempts” ownership of books, higher level immaterial ownership preempt lower level ownership in my examples.> First, some of the examples violate self-ownership
> principles.
Like I said, this would also mean that IP violates the self-ownership principle. It’s just a matter of where you draw the line. That refutes the causality theory of ownership.> But the ones that don’t involve an owner decision
> to engage in a bilateral transaction taking
> externalities into account or safely ignoring them.
Like I said, this proves me right rather than you. Externalities should be handled by contracts rather than special laws.> The duplicated property wouldn’t exist without the
> created property.
Let’s ignore now the causal issue which I refuted above. What you are otherwise saying is that if I work harder, I have more claim on the beneficial outcomes than those that work less hard. That’s the labour theory of value. -
Jay Lakner-
Every story is nothing more than an arrangement of ink symbols on paper.
Every song is nothing more than a pattern of air disturbances (sound waves).
Every TV show is nothing more than a pattern of photons of light.
Every thought is nothing more than a pattern of neurons firing in a human brain.I think I see where you are going: You seem to be trying to lead me through a step by step process through which duplication is equated with creation. Sorry, not buying.
You forget about non-IP intangibles. Things like shares of stock, bonds, etc. These represent claims and contractual obligations – patterns, if you will. Are these just patterns? Can I print an endless amount of IBM share certificates? This is great – how many do you want for your house?
Besides that, you still have the scarcity problems. If IP – patterns – are infinite, why bother copying protected IP? Just copy some from the infinite supply from someone that doesn’t object. Oh, that’s right – IP isn’t really scarce.
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Peter Surda-
Exactly. But you neglect to explain how to differentiate the “acceptable” from the “unacceptable”.
I think I’ve stated it several times. Same as real estate – homesteading. Then once IP is homesteaded you have to come to a bilateral agreement with the homesteader.
Exactly. But IP proponents insist that a third party’s (the IP “owners”) agreement is a requirement.
No, there’s only two parties: owners(which includes licensees) and customers. Someone that isn’t licensed isn’t a proper party to the transaction, like someone trying to sell a bridge that they don’t hold title to. Someone that doesn’t bother to come to an agreement with the owners isn’t a party either, like someone tresspassing, etc.
The only reason for this is that IP proponents fail to demonstrate how is the third party “owner” of the “property” in question with all the other necessary conditions (non-exclusivity and non-uniqueness). Should they manage to do that, I would have no problem with agreeing with enforcing rights thereupon.
The owner establishes ownership through homesteading of unique or novel creations. Then exclusion is enforced, just like with real property.
This isn’t a “right” to market share just as real property isn’t a “right” to market share. Competitors are free to homestead or purchase their own IP and compete.
I don’t understand. Who would agree to what? The way externalities manifest are not always foreseeable. You can’t agree to what you can’t foresee.
Well, the IP owner will have to consider these. Someone who is not the owner is just that – not the owner – and is subject to whatever sanctions are available to the actual owner. Beyond that I would need examples to comment on.
They can do that without IP just as well. IP just allows them to regulate certain externalities in way they can’t without. But they still can’t control externalities per se.
But like property rights IP allows the owner to address the most common and harmful ones. Especially to the overall market from a utilitarian perspective.
Exactly. That’s the whole point. No special laws or “property protection” is necessary. Contractual agreements are sufficient to handle externalities.
Not quite. In the mass market scenario some slippery sorts will claim she doesn’t have self-ownership, ownership of her image. Then they will claim they weren’t bound by the agreement she had with the licensed calendar printer and will copy and print their own calendar. IP rights prevent this.
If that is your conclusion, then IP violates self-ownership (of one’s mind) and homesteading (of physical objects) too. You can’t have it both ways. Just like copyright “preempts” ownership of books, higher level immaterial ownership preempt lower level ownership in my examples.
Not at all. The homesteader only has ownership of their homesteaded IP. J. K. Rowling only owns her latest book, you are free to homestead your own magic and fantasy books by writing your own. Homesteading only stops you from copying hers without her permission.
Like I said, this would also mean that IP violates the self-ownership principle. It’s just a matter of where you draw the line. That refutes the causality theory of ownership.
Only if you want access to other’s homesteaded property without coming to an agreement with them. It’s pretty elegant that way. You are free to write or buy your own boy wizard stories, why do you have to copy hers?
Also this would seem to help the crowd that claims they want to “encourage” writers and artists to be more productive – more new creations will be produced because the old ones can’t be created without permission.
Like I said, this proves me right rather than you. Externalities should be handled by contracts rather than special laws.
Not at all. It heads off the claims of third parties that want access to homesteaded property without coming to an agreement.
What you are otherwise saying is that if I work harder, I have more claim on the beneficial outcomes than those that work less hard. That’s the labour theory of value.
Not at all. It just means you have the right to sell what you homestead. It doesn’t force anyone to buy. The labor theory of value forces compensation for labor, usually from funds taken by force from the collective. Again, there is plenty of worthless IP homesteaded, and no one is guaranteed purchases.
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pro-IP-libertarian,
What I am trying to do is to work out how you view existence. My questions are merely ways of gaining insight into how you think so that I can determine the exact area where our disagreement lies. Once we work out exactly where our point of view differs, then we can have a proper discussion on the subject.
In my view, existence is composed of tangible entities in specific arrangements. Nothing more.
Stocks and bonds are also just possible arrangements that tangible materials can take the form of.
I believe that a common error that most people make is that they confuse the subjective meaning we humans assign to entities with the entities themselves. (You may not consider this to be an error at all)
For example:
Harry Potter the book is composed of a configuration of ink symbols on pieces of paper.
Harry Potter the movie is composed of a configuration human actors, stages, lighting effects, etc.
The two are very different. However, humans assign the same meaning to the book as they do to the movie. So an individual might come to the conclusion that they are the same story. But in reality they are not.My question to you is:
Do you believe that Harry Potter the book is the same as (or similar to) Harry Potter the movie?
Or, do you agree with me that they are totally different and the perceived similarity is just a result of the subjective meaning humans place upon them? -
Dear pro-IP-libertarian,
your whole premises rest on an arbitrary definition of “homesteading”. Just like many other IP proponents, you draw an arbitrary line on the causality scale. Maybe it would help if you tried to explain where exactly you draw the line, then you’d realise it’s arbitrary.
> Then once IP is homesteaded you have to come to
> a bilateral agreement with the homesteader.
This is just a first step in the argument. In the second one, you need to establish how far the homesteading reaches and what takes priority if there is a conflict. That is the whole point of my objection. Causality does not answer that. It does not answer whether children’s ownership of themselves or parent’s ownership of themselves takes precedence (logically, the parent’s should, because it is predates the child). It does not answer whether only “good” influences should be considered, there is no reason why Soviet Union should not co-own Atlas Shrugged. Besides, back to my original objection, there is no way to distinguish between immaterial goods and externalities. But according to theory, you can own the former but not the latter.> Someone that isn’t licensed isn’t a proper party
> to the transaction …
What is “proper party”? That’s just another arbitrary assumption. Governments also claim that some transactions are invalid without them being involved, but that does not make it true.> The owner establishes ownership through
> homesteading of unique or novel creations.
Another meaningless construct that answers nothing.> Then exclusion is enforced, just like with real
> property.
Exclusion in material goods is not “enforced”, it “is”. It is the natural feature of those things. It exists regardless of laws or people.> This isn’t a “right” to market share …
It is.> Competitors are free to homestead or purchase
> their own IP and compete.
This is only valid from your point of view. From my point of view, it’s the opposite: competitors homestead new grounds, and a monopoly prevents them from using it. From my perspective, those new grounds are externalities of the original.(externalities)
> Well, the IP owner will have to consider these.
Exactly! IP owner, just like anyone else causing externalities, should consider the effects before making his move, instead of complaining how little he gained by using an infeasible business model.> But like property rights IP allows the owner to
> address the most common and harmful ones.
There are already property rights in the physical, those are sufficient to address the most common and harmful effects of undesired activities.> In the mass market scenario some slippery sorts
> will claim she doesn’t have self-ownership,
> ownership of her image.
This is merely another stage of the problem (i.e. you are trying to cure the symptom rather than the cause). The illicit photographer trespassed on physical property. When a woman with a miniskirt goes to a street, she needs to make herself informed about the rules regarding photographing that the street owner does (some might permit photos, some might not). There is no need for IP from this perspective.> The homesteader only has ownership of their
> homesteaded IP.
But what does this mean? I fail to see how this can mean owning anything apart from that which is in one’s own head. The line where you draw the distinction between immaterial goods and externalities is arbitrary. That’s what you need to recognise. IP is the claim of ownership of other people’s minds. It does not bother you here, but it bothers you with children and Ayn Rand. You need to explain this dichotomy. -
Dear Jay,
> I believe that a common error that most people
> make is that they confuse the subjective meaning
> we humans assign to entities with the entities
> themselves.
Very well put Jay, this is what I’m trying to get the IP proponents to recognise and they seem to have a hard time with it.*****
{ 249 comments… read them below or add one }
January 23, 2010 at 7:17 am
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Dear Kerem,
> Lockean/Rothbardian theory that only justifies
> homesteading. It is not a positivist theory deciding
> what can and what can not property by arbitrary
> distinctions.
That what you are calling “Lockean/Rothbardian theory” is actually “Lockean/Rothbardian theory” + “Kerem Tibuk’s arbitrary axioms”. You need to understand this before we progress any further. January 23, 2010 at 8:04 am
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newson wrote:
“the justification of private property is not that it creates more wealth, that is a happy side-effect. it’s that it is the only way to avoid universal violence…”
Isn’t avoiding a war of all against all for material goods useful?
“…are you suggesting the imposition of violence to increase overall utility? or that a certain amount of violence is ok, but not too much?”
Well, you know the answer to that question, newson, because you know that I’m a minarchist. Do the math. Anyway, even in Ancapistan, you’d have to impose violence on some people to get them to leave other peoples’ property alone.
“besides the history of radio prior to the fcc shows regulation wasn’t necessary for a florid radio industry.”
When did I ever mention the FCC? I’m just talking about having rights in EM spectrum. That doesn’t necessitate a regulatory agency, only courts of law, and a registration mechanism of some sort.
“you surely don’t expect everyone in a given radius to shut up when you talk, using scarce audible frequencies, so give random a break.”
I expect that they don’t speak so loud that I’m not able to carry on a conversation.
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ABR wrote:
“Russ wrote: “Even if the airport came first, and then people buy surrounding land, what then? Would easement right conditions be attached to their property? How so?”
By action. The planes are flying over the newcomers’ land. Every day.”
So? The newcomer’s land was previously unowned, so there could have been no easement contracts with the non-existent former owners. So when the newcomers came, there were no easement contracts to bind them. So I don’t see how you could use easements to get this right to make noise, in this case.
If you’re saying that by making noise (or radio waves) before the newcomers came, the airport homesteaded the right to make noise (or radio waves) in that area, I’m not sure that follows from pure property rights. The so-called “homesteader” can emit noise, radio waves, pollution, whatever, as long as the surrounding area is unowned, sure. Who could object except maybe an eco-nazi? But once the land is homesteaded (and in a pure physical property rights system, only physical property such as land *can* be homesteaded), the first guy is now emitting noise, or whatever, onto somebody else’s property. He’s violating their rights.
If you still say that he has the right to “homestead” the right to produce noise in an area, that’s fine, you can do that, but I don’t think it can be derived from pure property rights. Likewise with homesteading the right to emit radio waves. If somebody homesteads land, they now own *physical* property. But if somebody homesteads “the right to emit radio waves at X Mhz over a given area”, they haven’t homesteaded *physical* property. They’ve homesteaded a more abstract right which we have been calling EM spectrum “property”. Once you say that somebody can do that, I think you’ve just admitted EM spectrum rights, as I conceive them.
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Peter Surda wrote:
“I already explained why this definition is problematic. Any action whatsoever that is undesired can be declared trespass.”
I think this is similar to the point I made against Silas when we were talking about his IP theory. I said that just because he desires to use his property to get such-and-such a result, and that I “interfered” with his desire, that does not necessarily mean that I violated his rights.
January 23, 2010 at 12:29 pm
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Russ wrote: “If you still say that he has the right to “homestead” the right to produce noise in an area, that’s fine, you can do that, but I don’t think it can be derived from pure property rights.”
I agree. That is, this form of homesteading is a weaker proposition than the primary form: mixing one’s labour with the land. However, I do think this form of homesteading is essential to life. Water rights, in particular, would not exist without this form of homesteading.
How can a person mix his labour with a river, other than by damming or diverting? If a person wishes to siphon water for drinking or irrigation, he establishes a right to proportional consumption. If we don’t grant him that right, then we’re back to the tragedy of the commons.
January 23, 2010 at 3:50 pm
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Kerem Tibuk,
Please answer Magnus’ question:
“Can Crusoe legitimately travel to the second island and use force to stop the islanders, whom he never met, from using the ideas that Friday transmitted to them?”
January 23, 2010 at 4:08 pm
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Peter Surda-
Duplication is a metaphor, it is not an empirical phenomenon.
No, duplication or copying is an identifiable and measurable human action.
The only reason that you claim that it is “the same product” is that it appears “too similar” to you, or has the same utility. This is a result of subjective evaluation rather than objective reality.
No, there was definitely a first Stephen King novel. Or a first motorcycle. These wouldn’t have existed without the intellectual and to some degree physical homesteading of the creator.
Duplicating or copying these can be distinguished from the creation of the first one. They wouldn’t be possible, by definition, without the creation of the first one.
So does the selling of substitutes, finding ways of increasing productivity or criticising the features of the product. It implies that the creator owns his market share.
Those don’t involve using the creator’s homesteaded or owned property. Me starting another beach house bed and breakfast further down the beach from yours isn’t stealing from you. Grazing my llama herd directly on the lawn of yours is akin to stealing.
To put it more succinctly: Duplication is not equivalent to creation. Competing, alternate creation is equivalent to creation.
This is why I dislike the word “scarce”. It leads to confusion. IP is non-rival, consumption does not decrease supply.
It is rivalrous in the way radio spectrum or real property is rivalrous – duplication without homesteading or license crowds out profitable use the way overlapping broadcasting or trespassing does.
Note again this is not preventing competition, alternate homesteading – true alternate creation – is available.
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Peter Surda-
The reason for this has nothing to do with property rights. It is the result of rivalry: exclusion is a necessary condition for the ability to use and trade the good. This principle exists regardless of the legal system. However, with non-rival goods, this principle is absent, and is artificially mimicked by the legal system.
You’re arguing by definition. In the case of real property, you are saying exclusion is a necessary condition for the ability to use and trade the good. The same is true for IP. Theoretically, you could use and trade real property without exclusion but the value would be greatly reduced. The value is created and maintained by the legal system. Likewise with IP.
Indeed, because these problems are the result of natural features of rival goods. Yet, if we took away exclusion from non-rival goods, apart from some revenue redistribution and some business models becoming unprofitable there are no other negative effects and a plethora of positive ones. The same results would occur when any artificial monopoly or redistribution scheme were cancelled.
Subjectively, there would be many positive effects for many people with the abolishment of real estate exclusions. The price for subsistence-level living would go way down – all you would need is a tent or car with a camper for shelter. If the “monopoly” or “redistribution scheme” for intellectual property homesteading is “artificial”, the one for real property can be characterized as such as well.
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Scott D-
This is where the socialists try to weasel their way through with much the same arguments that the pro-IP libertarian uses to justify their position. The money taken for government welfare programs is not theft because the benefits to society accrue back to the individual who is taxed, the socialist says. Functionally, this is little different from the arguments that claim the utilitarian benefits of an IP system.
Not at all. It’s akin to the real property rights system. The state provides a deed that proves ownership so that individual rights can be protected, trade can occur, etc. The IP law system does the same.
I could refer to the anti-IP crowd as collectivists for wanting to provide a public claim on homesteaded intellectual property. It’s “the people’s” music!
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Jay Lakner/Magnus-
Kerem Tibuk,
Please answer Magnus’ question:
“Can Crusoe legitimately travel to the second island and use force to stop the islanders, whom he never met, from using the ideas that Friday transmitted to them?”
Not to speak for Kerem here, but you are mixing metaphors. The Crusoe example refers to a case involving a primitive age, different countries, different cultures, etc.
Let’s put it this way: In the present day if someone offered you a free music download and it wasn’t the musician and wasn’t on one of the free websites you have a pretty good idea that you are violating copyright, even if you never met the musician before. You also know you could download the same song for a $1 or so on one of the paid services.
January 23, 2010 at 5:31 pm
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pro-IP-libertarian wrote:
“Peter Surda wrote: “The reason for this has nothing to do with property rights. It is the result of rivalry: exclusion is a necessary condition for the ability to use and trade the good. This principle exists regardless of the legal system. However, with non-rival goods, this principle is absent, and is artificially mimicked by the legal system.”
You’re arguing by definition. In the case of real property, you are saying exclusion is a necessary condition for the ability to use and trade the good. The same is true for IP. Theoretically, you could use and trade real property without exclusion but the value would be greatly reduced. The value is created and maintained by the legal system. Likewise with IP.”
But exclusion is not a necessary condition for the ability to use and trade patterns. It’s certainly not necessary to use them; multiple people can easily use copies of patterns at the same time. People could also trade them, if they wished. Of course, the price would be very low, but that doesn’t mean that they couldn’t do it. It just means that can’t make the profit they would like out of it. You’re saying that this “reduces the value” just like with real property. But now you’re mixing meanings. Not having material property rights would “reduce the value” of real material in two senses; 1) the monetary value, and 2) the “use” value (the value you get out of something by using it). Not having IP rights would only reduce the value of the pattern in the monetary sense, but not in the use sense.
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Stephan Kinsella wrote:
“…I’m the Uber-Lockean…”
Yeah, well I’m still the evil utilitarian Ãœbermensch! MWAHAHAHA!!!
“Kerem, very generous of you to self-PWN.”
Ya know, if you’re going to take pokes at Kerem this way, it’s not fair that you ask him to be civil, too.
Pick one. -
Dear pro-IP-libertarian,
> No, duplication or copying is an identifiable and
> measurable human action.
You are mixing two things. Indeed, when you claim that copying occurs, your base for that claim is that you observe some human action. But you do not observe “the copying”.> No, there was definitely a first Stephen King
> novel. Or a first motorcycle.
Yes, there were. So what?> These wouldn’t have existed without the
> intellectual and to some degree physical
> homesteading of the creator.
Yes, there is a causal relationship. So what? This does not prove that Stephen King’s novels or motorcycles, respectively, share some mystical identity.> Duplicating or copying these can be
> distinguished from the creation of the first one.
Yes, it can. But that does not prove that they are “the same”. You say yourself that they can be distinguished, and at the same time claim that they are “the same”. Does the dichotomy not bother you?> They wouldn’t be possible, by definition, without
> the creation of the first one.
Again, so what?(substitutes & critisizing)
> Those don’t involve using the creator’s
> homesteaded or owned property.
You are assuming your conclusion.> Me starting another beach house bed and
> breakfast further down the beach from yours
> isn’t stealing from you.
Yet according to you, selling another book is. Again, does the dichotomy not bother you?> Grazing my llama herd directly on the lawn of
> yours is akin to stealing.
At least we can agree on something.> To put it more succinctly: Duplication is not
> equivalent to creation.
Surprisingly, this does not stop you from claiming that the duplicate is “the same” as the original.> Competing, alternate creation is equivalent to
> creation.
This is a correct, however it only addresses the causality issue.> It is rivalrous in the way radio spectrum or real
> property is rivalrous – duplication without
> homesteading or license crowds out profitable
> use the way overlapping broadcasting or
> trespassing does.
A couple of paragraphs above you said that it does not bother you when another bed and breakfast crowds out profitable use of yours. Besides, you fail to explain why you reject my definition, other than that you need your in order for your theory to be valid.Rival goods are evident. If you consume them, they are gone. Forever. No more. No matter how you twist the meaning or change the laws.
> Note again this is not preventing competition,
> alternate homesteading – true alternate creation
> – is available.
This distinction is only valid if you re-define trade as a unilateral declaration instead of a bilateral agreement. In other words, if one owns a market share.> You’re arguing by definition.
No, you are.> In the case of real property, you are saying
> exclusion is a necessary condition for the ability
> to use and trade the good.
Actually, I’m not. I’m claiming that for rival goods, exclusion is a necessary condition for the ability to use and trade the good.> The same is true for IP.
No, it’s not.> Theoretically, you could use and trade real
> property without exclusion but the value would
> be greatly reduced.
Now you are using the value definition of property, which was discredited several times during the course of the IP debates on this blog, and before that by actual economists. Therefore, this sentence is irrelevant.> The value is created and maintained by the legal
> system. Likewise with IP.
Value is created by markets. IP or no IP. Irrelevant.> Subjectively, there would be many positive
> effects for many people with the abolishment of
> real estate exclusions.
Yes, there would. However, they real estate would become unavailable to those that owned it before. January 23, 2010 at 10:03 pm
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The documentary The Future of Food discusses some interesting problems with patents related to genetic engineering of plants.
The first fifteen minutes will discuss most of the patent problem which came to a head in the Monsanto Canada v. Schmeiser case.
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Stephan Kinsella-
Right. And you guys undercut this: you say that if there is a scarce resource, say a piece of paper owned by A pursuant to Lockean homesteading, then B gets to control and use and own it, if B thinks of a way to use B’s own property. That means B is the tie breaker winner, even though B is not the first comer.
Yet you think it is entirely reasonable for X to prevent Y from using their transmission equipment on certain frequencies. It’s Y’s transmission equipment! You’re violating Y’s property rights!
In a slightly more extreme example, you forbid me from herding my tired llamas across the yard of your beach house. But you have full use of the rest of the property, and the yard after I’ve moved them along. The humanity!
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Russ-
But exclusion is not a necessary condition for the ability to use and trade patterns. It’s certainly not necessary to use them; multiple people can easily use copies of patterns at the same time.
Exclusion isn’t necessary to use real estate either. You could squeeze a large number of people into the average 3br 2 ba house. Exclusion aids in effective use and trade in both instances.
Not having IP rights would only reduce the value of the pattern in the monetary sense, but not in the use sense.
There is plenty of evidence to suggest people derive other benefits from restricting access. People derive lots of psychic and aesthetic benefits from “exlusivity”, not in the economic sense but in the sense of rarity, novelty, salience, etc.. Exclusive fashions, exclusive country clubs, cool/trendy teenage clothes, etc. So arguably use is effected as well. (Not saying this is rational or sensible, just stating it exists.)
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Peter Surda-
You are mixing two things. Indeed, when you claim that copying occurs, your base for that claim is that you observe some human action. But you do not observe “the copying”.
Yes, there were. So what?
Yes, there is a causal relationship. So what? This does not prove that Stephen King’s novels or motorcycles, respectively, share some mystical identity.
You admit that creation can be distinguished from duplication. Creation: creating a new item or type of item. Duplication: making a copy of a created item.
I’m not saying that there is anything “mystical” about creation, just that it is involves the intellectual homesteading of property, duplication does not. You are the one equating creation with duplication and claiming they are equivalent.
Yes, it can. But that does not prove that they are “the same”. You say yourself that they can be distinguished, and at the same time claim that they are “the same”. Does the dichotomy not bother you?
You are the one claiming that duplication is equivalent to creation, not me.
Surprisingly, this does not stop you from claiming that the duplicate is “the same” as the original.
Where do I claim that? When Stephen King licenses his publisher to make copies of his books, that is him profiting from his creation. If some copycat publisher made copies without permission, that would be infringing duplication. If the same copycat publisher actually got a license to print Michael Crichton books that would be alternate creation, which would be acceptable, honest competition. Where have I claimed they are “the same”?
On the other hand, you are the one claiming that the copycat publisher nonconsensually duplicating Stephen King’s original creation is the same as his publisher printing licensed copies. They are not the same.
A couple of paragraphs above you said that it does not bother you when another bed and breakfast crowds out profitable use of yours. Besides, you fail to explain why you reject my definition, other than that you need your in order for your theory to be valid.
With a competing bed and breakfast, the owner actually homesteaded their own property. With competing IP, the owner actually homesteaded their own property as well. With my llama herd, I am infringing or trespassing the homesteaded owner’s property. With unlicensed duplication, I am infringing the homesteaded owner’s property.
Rival goods are evident. If you consume them, they are gone. Forever. No more. No matter how you twist the meaning or change the laws.
Broadcasting band is perpetual and it is considered rivalrous. Real property is basically perpetual and it is considered rivalrous.
This distinction is only valid if you re-define trade as a unilateral declaration instead of a bilateral agreement. In other words, if one owns a market share.
Not sure about your phrasing here. The distinction already exists for broadcasting band and real property yet we don’t consider that “owning market share”. You are free to homestead or purchase other real estate or broadcast band and compete.
Now you are using the value definition of property, which was discredited several times during the course of the IP debates on this blog, and before that by actual economists. Therefore, this sentence is irrelevant.
Incorrect. It relies on homesteading, not valuation. Plenty of valueless IP has been homesteaded.
Value is created by markets. IP or no IP. Irrelevant.
Incorrect, quite relevant. You yourself stated that real estate relies on the state recognized ability to exclude so that it can trade effectively. So value is created by markets, but the state recognized ability to exclude enhances the value of the property on some markets.
Yes, there would. However, they real estate would become unavailable to those that owned it before.
No, they would just lose the ability to exclude. You would still own the beach house, you would just have to co-exist with my llamas and any other members of the public that wanted to occupy the property. With the right business model you might be able to turn a profit.
January 24, 2010 at 8:06 am
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Not to speak for Kerem here, but you are mixing metaphors. The Crusoe example refers to a case involving a primitive age, different countries, different cultures, etc.
Not to speak for Kerem, either, but (a) he brought it up, so I assume that he thinks Crusoe’s property rights are relevant, and (b) Kerem also spends a lot of time defending IP, and property generally, on the grounds that property rules arise even in a condition of social isolation, and he bjects strongly to the proposition that property rights are assigned by social convention.
I assume that means that Kerem Tibuk thinks that property rights exist independently of the “age,” culture, nationality, etc. of the people involved. You know, since he works so hard to purge himself of all contradiction and error, so he tells us.
But then again, since he has avoided answering a simple follow-up question about his Crusoe scenario for several days now, I really have no way of knowing what Kerem Tibuk thinks, other than that he’s afraid to answer the question.
Let’s put it this way: In the present day if someone offered you a free music download and it wasn’t the musician and wasn’t on one of the free websites you have a pretty good idea that you are violating copyright, even if you never met the musician before. You also know you could download the same song for a $1 or so on one of the paid services.
I would only know that I am “violating copyright” because the people who presume to call themselves “the state” and “legislators” tell me that copyright exists.
Like everything else legislators do, I ignore such verbiage as though it were idle wind.
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Magnus-
I would only know that I am “violating copyright” because the people who presume to call themselves “the state” and “legislators” tell me that copyright exists.
Like everything else legislators do, I ignore such verbiage as though it were idle wind.
If something is against the law – legitimately or illegitimately – that tactic works fine until they start enforcing the law.. And there are natural rights arguments supporting IP so it isn’t necessarily illegitimate.
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arrgh … my post got eaten. It seems to be happening more often recently. I’ll try and recap what I wrote.
pro-IP-libertarian,
Whether or not a person knowingly commits a violation of current copyright laws is irrelevent to the question as to whether those laws should exist in the first place.
Magnus’s Crusoe example to Kerem Tibuk was a good one as it outlines the dangers of believing that the Universe contains fundamental “oughts”. Kerem, as usual, ignores questions which outline deficiencies in his position. That is why I brought it up.
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Russ-
You wrote to Kerem:
As should you. The Lockean labor theory of property applies to physical goods, not patterns or ideas. It is not at all obvious that the concept should extend to patterns or ideas.
I’m not a Locke scholar, but apparently Locke advocated a copyright term for writers of life plus 70 years when the Stationers’ company monopoly was being considered for renewal. (Monopoly as in only members of the company could be in the printing business, not the so-called “monopoly” of IP.) I have also seen others cite passages where Locke extended or showed a tendency to extend his labor theory of property to IP. See this abstract:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=936353(Couldn’t find the 1694 memorandum, would have posted it if I could.)
That certainly shows a pretty strong tendency to support the notion of intellectual creations being the property of the creator. Stronger than present-day law, in fact.
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pro-IP-libertarian wrote:
“Exclusion isn’t necessary to use real estate either. You could squeeze a large number of people into the average 3br 2 ba house.”
So what? This argument is silly. You don’t even really believe that houses should be publicly owned property.
So let’s go back to my old post where I admitted that “use” of property wasn’t the issue with respect to exclusivity, but “possession” was, where “possession” can be understood as the ability to control the use of the property. Now, with that criteria, exclusivity *IS* necessary to *possess* real estate, since real estate is scarce. Exclusivity is also obviously necessary to possess radio channels, since they are also scarce.
It’s not so obvious that exclusivity is necessary to possess patterns or ideas, because they aren’t scarce. When you say that you “possess” IP, does that mean that you possess *an* instantiation of the pattern, or *every possible* instantiation of the pattern? If it’s the first, then you can still control the use of your instantiation without IP rights being necessary. Only in the second case do you need IP rights.
This raises the question, why *should* you have the right to control every possible instantiation of a pattern or idea? What is your justification for claiming this right? Because of causality; i.e. you created that pattern? So what? Because you want to make lots of money from selling the pattern as if it were scarce property? Again, so what? I still haven’t seen a good justification for why you should have this right.
As for Locke being for copyrights, I wasn’t aware of that. I haven’t actually read Locke for quite some time. At any rate, that doesn’t effect my argument, I don’t think, except that I was misusing the label “Lockean rights”.
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Russ-
So what? This argument is silly. You don’t even really believe that houses should be publicly owned property.
So what yourself. You said that exclusion wasn’t necessary to trade IP, I just pointed out that exclusion wasn’t necessary to trade real estate either. But it would be really, really difficult to do it and might be pointless in many cases. This is similar to how difficult it would be to profit from some kinds of IP without exclusion.
And no, I do believe in privately owned real estate, I was just playing devil’s advocate for the sake of argument.
So let’s go back to my old post where I admitted that “use” of property wasn’t the issue with respect to exclusivity, but “possession” was, where “possession” can be understood as the ability to control the use of the property. Now, with that criteria, exclusivity *IS* necessary to *possess* real estate, since real estate is scarce. Exclusivity is also obviously necessary to possess radio channels, since they are also scarce.
No, my examples pointed out it would be possible to use and even profit from real estate without exclusion, it just would be strained and difficult. Same for radio broadcasting band. This just illustrates how disingenuous the arguments are when applied to IP.
It’s not so obvious that exclusivity is necessary to possess patterns or ideas, because they aren’t scarce. When you say that you “possess” IP, does that mean that you possess *an* instantiation of the pattern, or *every possible* instantiation of the pattern? If it’s the first, then you can still control the use of your instantiation without IP rights being necessary. Only in the second case do you need IP rights.
They are scarce, you’ve admitted that elsewhere. There are free music services all over the place, yet people still want to copy protected music. Why? Because it is good. And because it is scarce. Duplication/copying is not equal to creation. And good creators – and their creations – are scarce.
About your other point: Exclusion – the creator being the only one to sell/license copies of their creation – is necessary for creators to reasonably profit from their creation. Just like real estate owners need exclusion to reasonably profit from owning real estate. That’s why real estate came into this.
This raises the question, why *should* you have the right to control every possible instantiation of a pattern or idea? What is your justification for claiming this right? Because of causality; i.e. you created that pattern? So what? Because you want to make lots of money from selling the pattern as if it were scarce property? Again, so what? I still haven’t seen a good justification for why you should have this right.
Natural rights – homesteading. Just like real estate homesteading. Why do you want to own real estate? Just because you want to make lots of money?
As for Locke being for copyrights, I wasn’t aware of that. I haven’t actually read Locke for quite some time. At any rate, that doesn’t effect my argument, I don’t think, except that I was misusing the label “Lockean rights”.
It does if you believe in natural rights. Even variations with a utilitarian basis.
January 26, 2010 at 11:52 am
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pro-IP-libertarian”
Broadcasting band is perpetual and it is considered rivalrous. Real property is basically perpetual and it is considered rivalrous.
I want to address this because I think you fail to make the distinction between why physical property and EM use (key distinction) are rivalrous, hence scarce, hence requiring exclusion and why IP is not. The former two may be “perpetual” but, at any given moment in time, they may only be used in an exclusive way. Two people cannot occupy the same space at the same time and two identical EM bands may not be used in the same space at the same time without interfering with each other. IP, on the other hand, can be used at the same time by unlimited amounts of people with no reduction in its supply or quality. In fact, its supply increases which, from a macro-utilitarian view, is typically good for an economy.
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Mashuri-
I want to address this because I think you fail to make the distinction between why physical property and EM use (key distinction) are rivalrous, hence scarce, hence requiring exclusion and why IP is not. The former two may be “perpetual” but, at any given moment in time, they may only be used in an exclusive way. Two people cannot occupy the same space at the same time and two identical EM bands may not be used in the same space at the same time without interfering with each other. IP, on the other hand, can be used at the same time by unlimited amounts of people with no reduction in its supply or quality. In fact, its supply increases which, from a macro-utilitarian view, is typically good for an economy.
Real estate would only be truly physically rivalrous in really small areas. Why not make those with estates and big yards allow the public to park their campers and tents on them? From a utilitarian view, that would drive lower income housing costs way down, which would typically be good for the economy.
And to stress again you are still equating duplication with creation – they are not equivalent. Good quality creators and creations are scarce. Allowing public claims on their creation misprices and disincentivizes their creation just like allowing public claims on private land would misprice and disincentivize its trade, investment, and development.
Now to head off claims that the examples aren’t equivalent, note that most anti-IP advocates claim that IP creators still have the use of their IP themselves, and can be first to market. In the “public claims on land” example land owners would still have use of their houses and living quarters for “personal use”, they would just have to cede their yards and estates to the public. Pretty equivalent. Ridiculous in both cases, but equivalent.
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Need to add: Note that it was Silas Barta that first pointed out that public claims on IP from the “duplication is equivalent to production” framing would lead to the mispricing of IP creation, similar to Mises’ exposure of mispricing as the fatal flaw of socialism.
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Pro-IP-libertarian wrote:
“Now to head off claims that the examples aren’t equivalent, note that most anti-IP advocates claim that IP creators still have the use of their IP themselves, and can be first to market. In the “public claims on land” example land owners would still have use of their houses and living quarters for “personal use”, they would just have to cede their yards and estates to the public. Pretty equivalent.”Scarce = rivalrous = two things can’t be used simultaneously. Have you misunderstood this point?
Other people using my land automatically forbid me from spontaneously going out and using it myself. Even for extremely large areas of land, what if my “use” of my land is the satisfaction that nothing is happening to my land? What if I bought it for the pleasurable feeling of knowing that a human-free ecology is developing there?
Your example is completely and totally incompatible with IP and this seems to have something to do with your misunderstanding of the concept of “rivalrous versus non-rivalrous”.
Pro-IP-libertarian wrote:
“Need to add: Note that it was Silas Barta that first pointed out that public claims on IP from the “duplication is equivalent to production” framing would lead to the mispricing of IP creation, similar to Mises’ exposure of mispricing as the fatal flaw of socialism.”This has been blown out of the water over and over again. Intangible entities can still be exchanged despite not having an owner because of their non-rivalrous nature. Hence economic calculation is not skewed through lack of ownership.
In fact, it has been shown that assigning ownership to intangible entities does the exact opposite – it creates an economic calculation problem. -
Jay Lakner-
Scarce = rivalrous = two things can’t be used simultaneously. Have you misunderstood this point?
I understand it just fine. Although you should talk to Peter Surda, he distinguishes scarcity and rivalrousness.
If you’re going by that definition though, understand that IP is scarce. This is shown by you bothering to copy protected material. If IP wasn’t scarce you would just pluck other IP from the “tree of infinite” IP that wasn’t protected. Good IP – good creators and their creations – are scarce.
Other people using my land automatically forbid me from spontaneously going out and using it myself. Even for extremely large areas of land, what if my “use” of my land is the satisfaction that nothing is happening to my land? What if I bought it for the pleasurable feeling of knowing that a human-free ecology is developing there?
Same arguments apply to IP. Maybe IP owners like the feeling of knowing that no one can duplicate their work but them. After all, duplication is not production. A duplicator doesn’t homestead or create their own work.
Your example is completely and totally incompatible with IP and this seems to have something to do with your misunderstanding of the concept of “rivalrous versus non-rivalrous”.
Your perspective comes from the absurdity of equating duplication with creation. Creators and their creators are scarce. Otherwise free music services would have ended any file-sharing controversy. If IP is infinite, why not just copy unprotected works?
This has been blown out of the water over and over again. Intangible entities can still be exchanged despite not having an owner because of their non-rivalrous nature. Hence economic calculation is not skewed through lack of ownership.
In fact, it has been shown that assigning ownership to intangible entities does the exact opposite – it creates an economic calculation problem.You may think so, but I haven’t seen this demonstrated. You are still operating under the assumption that duplication is equivalent to creation, when they are demonstrably inequivalent. Since they are inequivalent a model that equated them would be causing calculation problems. Trying to assume this inequivalency away doesn’t change it’s existence.
Now I realize there are different types of IP and some types are effected by this more than others, it still doesn’t completely change the argument.
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pro-IP-libertarian,
The arguments you are putting forth seem very strange to me, as is the way you are explaining them. This usually means that the problem here is very fundamental. I’m guessing that this entire difference of opinion comes down to a fundamental disagreement on the nature of the Universe.
Unfortunately it is often very difficult to identify exactly where this disagreement lies.
Where to start? I know …
What do you think of the following statement?:“Creation†does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation†means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before. (This is true of any human product, scientific or esthetic: man’s imagination is nothing more than the ability to rearrange the things he has observed in reality.)”
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The idea that copying is not production is plainly silly.
If you build a useful object, and I look over and make a copy, we made two useful objects. To see how wrong you are, imagine two publishers who decide to print up copies of the same book that is “out of copyright.” Think of something 200-300 years old. Don Quixote. Or older, like Aesop’s fairy tales. Printing these books is obviously a form of production. They are copies — not wrongful copies in the bizarro IP philosophy, but still copies, and yet making them is still a form of production.
You resent copiers, and think they ought to be punished. I get it. But still, pretending it’s not production is just dumb.
To use the form of one of your (rather tired) arguments against you, copying is OBVIOUSLY a form of production, because otherwise, the supposed copyright holder wouldn’t have any reason to object. The IP holder asserts this B.S. right to pattern-protectionism precisely BECAUSE the copyist is producing something that customers want. And that interferes with the SALES that the IP holder thinks he ought to be given without pesky competition.
Which brings me back to the point that none of you IP people want to address — the only “harm” that IP proponents can show arising from the act of copy-based production is a loss of market share. Copying entails no interference between uses of rivalrous goods. No physical displacement. No tangible rivalry at all.
Show me one other area of free market philosophy where maintaining a producer’s preferred market share is considered to be a cognizable, protected property interest.
No such thing.
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Dear pro-IP-libertarian,
> I understand it just fine. Although you should talk to
> Peter Surda, he distinguishes scarcity and
> rivalrousness.
Not necessarily. I just remarked that the word “scarce” tends to distract IP proponents away from the actual issue.I must also repeat what I said before. My opinion that non-rival-goods can’t be owned in an exclusive, non-unique way, is a conclusion, rather than a premise. It is what remains after eliminating faulty assumptions, mainly the causality theory of ownership and the objective identity of immaterial goods. Non-utilitarian IP proponents usually use at least one of those to define property. I think it’s possible, although unlikely, that some non-rival goods are not eliminated by this argument, but what is nowadays understood with IP is probably unaffected by this.
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Jay Lakner-
“Creation†does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation†means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before. (This is true of any human product, scientific or esthetic: man’s imagination is nothing more than the ability to rearrange the things he has observed in reality.)”
I assume this is Mises or someone and you are arguing from authority.
Doesn’t matter. Duplication can be distinguished from creation, otherwise everyone would create and no one would have to duplicate. Or no one would create and we would still be at subsistence level.
Creation exists by using one’s imagination, intellect, or some combination thereof and mixing it with their labor (which may include just thinking, thinking can be labor) to come up with a new idea, concept, design, or combination thereof. This is why it can be thought of as intellectual homesteading. And why it creates a natural rights based claim on individual intellectual property.
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Magnus-
If you build a useful object, and I look over and make a copy, we made two useful objects. To see how wrong you are, imagine two publishers who decide to print up copies of the same book that is “out of copyright.” Think of something 200-300 years old. Don Quixote. Or older, like Aesop’s fairy tales. Printing these books is obviously a form of production. They are copies — not wrongful copies in the bizarro IP philosophy, but still copies, and yet making them is still a form of production.
The notion that they are equivalent production is laughable. Stephen King’s newest book was produced with hours and hours of writing and rewriting, research and revision. Not pressing “print” or “download” on a computer. Also, King has a rare natural talent to produce compelling, entertaining novels and stories. So not only did you not put in the labor, you probably could not perform the equivalent labor even if you tried. This is because his talent is truly scarce. The “talent” necessary to press a button is near universal. So no, creation is not equivalent to production by any stretch of the imagination.
And equating the two would result in a gross mispricing in the market for IP.
You resent copiers, and think they ought to be punished. I get it. But still, pretending it’s not production is just dumb.
No, I just realize they are violating natural rights, which I don’t condone as a libertarian.
To use the form of one of your (rather tired) arguments against you, copying is OBVIOUSLY a form of production, because otherwise, the supposed copyright holder wouldn’t have any reason to object. The IP holder asserts this B.S. right to pattern-protectionism precisely BECAUSE the copyist is producing something that customers want. And that interferes with the SALES that the IP holder thinks he ought to be given without pesky competition.
Say what you will about my argument, at least it isn’t circular. Your argument relies on assuming creation and duplication are the same, they are not. And no, we went over your other point in this thread already. IP exclusion is just like real estate or radio broadcasting exclusion, there is plenty of room for competition left – just do your own creation/homesteading. Create your own horror novel. Oh, that’s right, the skill-set is truly scarce so that will be difficult…
Which brings me back to the point that none of you IP people want to address — the only “harm” that IP proponents can show arising from the act of copy-based production is a loss of market share. Copying entails no interference between uses of rivalrous goods. No physical displacement. No tangible rivalry at all.
Wrong. It throws the pricing mechanism off just like socialism does. Or like what would occur if exclusion was done away with in the real estate or radio wave markets. And note the arguments for exclusion in real estate/etc. are owner-focused, yet no one claims real estate owners are “claiming market share” when they want exclusion.
Show me one other area of free market philosophy where maintaining a producer’s preferred market share is considered to be a cognizable, protected property interest.
Just did. It’s called real estate. Again, arguments for exclusion are owner-focused yet no one accuses them of claiming ownership of market share. You are free to homestead or buy your own real estate and compete. Just like you are free to create or buy your own IP and compete.
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Peter Surda-
I must also repeat what I said before. My opinion that non-rival-goods can’t be owned in an exclusive, non-unique way, is a conclusion, rather than a premise. It is what remains after eliminating faulty assumptions, mainly the causality theory of ownership and the objective identity of immaterial goods.
Well then there are major problems here, because homesteading is based on causality. You cause ownership by mixing your labor with an object. Just like you cause ownership with IP by intellectual homesteading.
Non-utilitarian IP proponents usually use at least one of those to define property. I think it’s possible, although unlikely, that some non-rival goods are not eliminated by this argument, but what is nowadays understood with IP is probably unaffected by this.
And yet you’re left with the circular – and demonstrably absurd – concept that duplication equals production.
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pro-IP-libertarian,
I was not arguing from authority. I just felt that Ayn Rand would explain it better than I could.
And your response was not exactly clear.
I want to know whether you agree or not that creation is simply the discovery of a new arrangement that tangible materials can take the form of?
January 27, 2010 at 2:02 pm
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In that case, money is not scarce, and the banks should run 0% reserves. In fact they can spend all their depositors’ money, since obviously they are not using it at this time.
This was already addressed, but with different arguments. I say this argument fails because the value of the monetary unit is not equivalent to IP–the design on the currency is. Millions of people have the same design on their dollar bills, with no harm to others, but the quantity of currency in circulation obviously affects the value of money, to the benefit of first-takers and to the harm of latecomers.
It’s also not fair to compare this to the value or sales obtained or lost by the creators, because unlike money, there is not a direct, proportional relationship between illegal copying and lost sales. Each illegal copy is not equivalent to one lost sale. And while one can download a song and then buy it at a later date, it’s not possible to copy a dollar bill and then “buy” one later. -
Dear pro-IP-libertarian
(regarding harm from IP)
> Wrong. It throws the pricing mechanism off just
> like socialism does.
Just because the price of a good can change by the influence of external factors is insufficient to conclude that “the pricing mechanism is thrown off”. It is actually exactly the opposite: the pricing mechanism allows to reflect external factors in the price.> Well then there are major problems here,
> because homesteading is based on causality.
It might be or might not be. That’s not the problem. The problem is that if you consider causality a sufficient condition for homesteading, it leads to, in my humble opinion, absurd conclusions. All causally related activities become potential rights violations. All positive externalities will become exposed to payment enforcement. I’ll use two examples by Walter Block (although he didn’t necessarily use it in this context) and two of my own:(Block)
Using a deodorant will allow you to enforce payment from people who share the same vehicle when using mass transportation. A woman walking on the street with a miniskirt would be allowed to enforce payment from men looking at her.(me)
Children would be property of their parents. Soviet Union would co-own Atlas Shrugged.Unless you agree that these examples correctly reflect your idea of ownership, you need to admit that causality is not a sufficient condition for ownership, and the whole argument falls apart.
> And yet you’re left with the circular – and
> demonstrably absurd – concept that duplication
> equals production.
I fail to see how the “duplication does not equal production” leads to ownership of immaterial goods. Every act is unique. Why should that cause arbitrary sets of these acts to become “property” of one person? -
Jay Lakner-
I want to know whether you agree or not that creation is simply the discovery of a new arrangement that tangible materials can take the form of?
I wouldn’t put it that way. I would look at it as akin to intellectual homesteading. Mixing one’s labor – including thinking – to create a new combination of concepts, thoughts, materials, etc. for the first time. (And enclosing this by going to a recognized place to establish ownership – like one goes to establish homesteaded real property ownership.) Duplication would be distinguished as reproducing an existing, homesteaded piece of intellectual property.
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Michael A. Clem-
This was already addressed, but with different arguments. I say this argument fails because the value of the monetary unit is not equivalent to IP–the design on the currency is. Millions of people have the same design on their dollar bills, with no harm to others, but the quantity of currency in circulation obviously affects the value of money, to the benefit of first-takers and to the harm of latecomers.
Not quite in my opinion. At least in the US, they generally don’t care if you reproduce images on currency on other things as long as one doesn’t try to pass it off as currency. The US government just claims a right to produce what it considers legal tender and to exclude anything else as legal tender. They want to control production and supply for a particular use, they aren’t too concerned with the imagery as property.
It’s also not fair to compare this to the value or sales obtained or lost by the creators, because unlike money, there is not a direct, proportional relationship between illegal copying and lost sales. Each illegal copy is not equivalent to one lost sale. And while one can download a song and then buy it at a later date, it’s not possible to copy a dollar bill and then “buy” one later.
This reaches to the exclusion issue discussed earlier. Sure, you could still make money with real estate you couldn’t exclude the public from, but it would be difficult and strained. Likewise, you might not lose one sale for every song illegally copied, but there would certainly be some amount of legitimate sales crowded out. Plus there is still the issue of it being unilateral: the copier certainly wants the good or they wouldn’t bother copying, they just don’t want to bother agreeing on price and paying it. This has utilitarian as well as moral consequences.
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Pro-IP-libertarian wrote:
“I wouldn’t put it that way.”But do you agree?
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Peter Surda-
Just because the price of a good can change by the influence of external factors is insufficient to conclude that “the pricing mechanism is thrown off”. It is actually exactly the opposite: the pricing mechanism allows to reflect external factors in the price.
Yes, and under natural rights theory we use homesteading and exclusion to establish particular rights to property. This is reflected in price. Yet these pricing effects are considered acceptable.
Also, the whole pricing mechanism depends on ownership and bilateral agreement to transactions. Under the “duplication is equivalent to creation” model all IP is considered public domain and unilateral transactions are permitted. This is something libertarians don’t tolerate in an economic system for physical property, but it is somehow acceptable for some with IP.
(Block)
Using a deodorant will allow you to enforce payment from people who share the same vehicle when using mass transportation. A woman walking on the street with a miniskirt would be allowed to enforce payment from men looking at her.Not quite. By selling homesteaded property for a particular use one would agree to particular externalities. IP owners would have to decide what products they are going to sell and in what format. To a large extent we already do this. The woman would have to decide whether she is just going to wear a miniskirt to look nice in a particular location or license a calendar where a mass market can see pictures of her in a miniskirt. Now if I hid a camera in her room without her consent and was charging people money to watch her that clearly would be me profiting from her image and would be subject to legal action. This would be supported under various natural rights arguments – self-ownership, homesteaded intellectual property, etc.
(me)
Children would be property of their parents. Soviet Union would co-own Atlas Shrugged.Violates both self-ownership and homesteading, in both cases.
Unless you agree that these examples correctly reflect your idea of ownership, you need to admit that causality is not a sufficient condition for ownership, and the whole argument falls apart.
Not at all. First, some of the examples violate self-ownership principles. But the ones that don’t involve an owner decision to engage in a bilateral transaction taking externalities into account or safely ignoring them. McDonald’s knows its fries smell good too, but decide it is worth it to sell the fries and let some people get the smell for free. The miniskirt woman knows that some around her in places she chooses to go would receive a positive externality, but decides it is worthwhile. That still wouldn’t allow putting a camera in her room and charging for it, or making illegal copies of a licensed calendar, which are self-owned and/or homesteaded goods.
I fail to see how the “duplication does not equal production” leads to ownership of immaterial goods. Every act is unique. Why should that cause arbitrary sets of these acts to become “property” of one person?
The same dynamic that allows the creation of ownership in unowned land – labor and homesteading. The duplicated property wouldn’t exist without the created property. And the action of creation is rarer, and necessary for and superior to the action of duplication.
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Jay Lakner-
But do you agree?
Basically I agree with current IP law. Although I think there may be some room for changes, especially with patents.
I don’t have an exhaustive knowledge about how Rand felt about IP. So I don’t know the context of that quote and her overall beliefs so I can’t say outright whether I agree with all her views on IP. But the quote sounds OK.
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pro-IP-libertarian,
Ok. That’s a start at least.
Now what if I were to say that all intangible entities are nothing more than possible arrangements that tangible materials can be formed into. In other words, every idea, story, concept, pattern etc is simply a possible arrangement that tangible materials can take.
For example:
Every story is nothing more than an arrangement of ink symbols on paper.
Every song is nothing more than a pattern of air disturbances (sound waves).
Every TV show is nothing more than a pattern of photons of light.
Every thought is nothing more than a pattern of neurons firing in a human brain.Would you agree with me on this?
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Dear pro-IP-libertarian,
> Yet these pricing effects are considered acceptable.
Exactly. But you neglect to explain how to differentiate the “acceptable” from the “unacceptable”.> Also, the whole pricing mechanism depends on
> ownership and bilateral agreement to transactions.
Exactly. But IP proponents insist that a third party’s (the IP “owners”) agreement is a requirement.> This is something libertarians don’t tolerate in an
> economic system for physical property, but it is
> somehow acceptable for some with IP.
The only reason for this is that IP proponents fail to demonstrate how is the third party “owner” of the “property” in question with all the other necessary conditions (non-exclusivity and non-uniqueness). Should they manage to do that, I would have no problem with agreeing with enforcing rights thereupon.> By selling homesteaded property for a particular
> use one would agree to particular externalities.
I don’t understand. Who would agree to what? The way externalities manifest are not always foreseeable. You can’t agree to what you can’t foresee.> IP owners would have to decide what products
> they are going to sell and in what format.
They can do that without IP just as well. IP just allows them to regulate certain externalities in way they can’t without. But they still can’t control externalities per se.> The woman would have to decide whether she is
> just going to wear a miniskirt to look nice in a
> particular location or license a calendar where a
> mass market can see pictures of her in a miniskirt.
Exactly. That’s the whole point. No special laws or “property protection” is necessary. Contractual agreements are sufficient to handle externalities.>> Children would be property of their parents.
>> Soviet Union would co-own Atlas Shrugged.
> Violates both self-ownership and homesteading, in
> both cases.
If that is your conclusion, then IP violates self-ownership (of one’s mind) and homesteading (of physical objects) too. You can’t have it both ways. Just like copyright “preempts” ownership of books, higher level immaterial ownership preempt lower level ownership in my examples.> First, some of the examples violate self-ownership
> principles.
Like I said, this would also mean that IP violates the self-ownership principle. It’s just a matter of where you draw the line. That refutes the causality theory of ownership.> But the ones that don’t involve an owner decision
> to engage in a bilateral transaction taking
> externalities into account or safely ignoring them.
Like I said, this proves me right rather than you. Externalities should be handled by contracts rather than special laws.> The duplicated property wouldn’t exist without the
> created property.
Let’s ignore now the causal issue which I refuted above. What you are otherwise saying is that if I work harder, I have more claim on the beneficial outcomes than those that work less hard. That’s the labour theory of value. -
Jay Lakner-
Every story is nothing more than an arrangement of ink symbols on paper.
Every song is nothing more than a pattern of air disturbances (sound waves).
Every TV show is nothing more than a pattern of photons of light.
Every thought is nothing more than a pattern of neurons firing in a human brain.I think I see where you are going: You seem to be trying to lead me through a step by step process through which duplication is equated with creation. Sorry, not buying.
You forget about non-IP intangibles. Things like shares of stock, bonds, etc. These represent claims and contractual obligations – patterns, if you will. Are these just patterns? Can I print an endless amount of IBM share certificates? This is great – how many do you want for your house?
Besides that, you still have the scarcity problems. If IP – patterns – are infinite, why bother copying protected IP? Just copy some from the infinite supply from someone that doesn’t object. Oh, that’s right – IP isn’t really scarce.
-
Peter Surda-
Exactly. But you neglect to explain how to differentiate the “acceptable” from the “unacceptable”.
I think I’ve stated it several times. Same as real estate – homesteading. Then once IP is homesteaded you have to come to a bilateral agreement with the homesteader.
Exactly. But IP proponents insist that a third party’s (the IP “owners”) agreement is a requirement.
No, there’s only two parties: owners(which includes licensees) and customers. Someone that isn’t licensed isn’t a proper party to the transaction, like someone trying to sell a bridge that they don’t hold title to. Someone that doesn’t bother to come to an agreement with the owners isn’t a party either, like someone tresspassing, etc.
The only reason for this is that IP proponents fail to demonstrate how is the third party “owner” of the “property” in question with all the other necessary conditions (non-exclusivity and non-uniqueness). Should they manage to do that, I would have no problem with agreeing with enforcing rights thereupon.
The owner establishes ownership through homesteading of unique or novel creations. Then exclusion is enforced, just like with real property.
This isn’t a “right” to market share just as real property isn’t a “right” to market share. Competitors are free to homestead or purchase their own IP and compete.
I don’t understand. Who would agree to what? The way externalities manifest are not always foreseeable. You can’t agree to what you can’t foresee.
Well, the IP owner will have to consider these. Someone who is not the owner is just that – not the owner – and is subject to whatever sanctions are available to the actual owner. Beyond that I would need examples to comment on.
They can do that without IP just as well. IP just allows them to regulate certain externalities in way they can’t without. But they still can’t control externalities per se.
But like property rights IP allows the owner to address the most common and harmful ones. Especially to the overall market from a utilitarian perspective.
Exactly. That’s the whole point. No special laws or “property protection” is necessary. Contractual agreements are sufficient to handle externalities.
Not quite. In the mass market scenario some slippery sorts will claim she doesn’t have self-ownership, ownership of her image. Then they will claim they weren’t bound by the agreement she had with the licensed calendar printer and will copy and print their own calendar. IP rights prevent this.
If that is your conclusion, then IP violates self-ownership (of one’s mind) and homesteading (of physical objects) too. You can’t have it both ways. Just like copyright “preempts” ownership of books, higher level immaterial ownership preempt lower level ownership in my examples.
Not at all. The homesteader only has ownership of their homesteaded IP. J. K. Rowling only owns her latest book, you are free to homestead your own magic and fantasy books by writing your own. Homesteading only stops you from copying hers without her permission.
Like I said, this would also mean that IP violates the self-ownership principle. It’s just a matter of where you draw the line. That refutes the causality theory of ownership.
Only if you want access to other’s homesteaded property without coming to an agreement with them. It’s pretty elegant that way. You are free to write or buy your own boy wizard stories, why do you have to copy hers?
Also this would seem to help the crowd that claims they want to “encourage” writers and artists to be more productive – more new creations will be produced because the old ones can’t be created without permission.
Like I said, this proves me right rather than you. Externalities should be handled by contracts rather than special laws.
Not at all. It heads off the claims of third parties that want access to homesteaded property without coming to an agreement.
What you are otherwise saying is that if I work harder, I have more claim on the beneficial outcomes than those that work less hard. That’s the labour theory of value.
Not at all. It just means you have the right to sell what you homestead. It doesn’t force anyone to buy. The labor theory of value forces compensation for labor, usually from funds taken by force from the collective. Again, there is plenty of worthless IP homesteaded, and no one is guaranteed purchases.
-
pro-IP-libertarian,
What I am trying to do is to work out how you view existence. My questions are merely ways of gaining insight into how you think so that I can determine the exact area where our disagreement lies. Once we work out exactly where our point of view differs, then we can have a proper discussion on the subject.
In my view, existence is composed of tangible entities in specific arrangements. Nothing more.
Stocks and bonds are also just possible arrangements that tangible materials can take the form of.
I believe that a common error that most people make is that they confuse the subjective meaning we humans assign to entities with the entities themselves. (You may not consider this to be an error at all)
For example:
Harry Potter the book is composed of a configuration of ink symbols on pieces of paper.
Harry Potter the movie is composed of a configuration human actors, stages, lighting effects, etc.
The two are very different. However, humans assign the same meaning to the book as they do to the movie. So an individual might come to the conclusion that they are the same story. But in reality they are not.My question to you is:
Do you believe that Harry Potter the book is the same as (or similar to) Harry Potter the movie?
Or, do you agree with me that they are totally different and the perceived similarity is just a result of the subjective meaning humans place upon them? -
Dear pro-IP-libertarian,
your whole premises rest on an arbitrary definition of “homesteading”. Just like many other IP proponents, you draw an arbitrary line on the causality scale. Maybe it would help if you tried to explain where exactly you draw the line, then you’d realise it’s arbitrary.
> Then once IP is homesteaded you have to come to
> a bilateral agreement with the homesteader.
This is just a first step in the argument. In the second one, you need to establish how far the homesteading reaches and what takes priority if there is a conflict. That is the whole point of my objection. Causality does not answer that. It does not answer whether children’s ownership of themselves or parent’s ownership of themselves takes precedence (logically, the parent’s should, because it is predates the child). It does not answer whether only “good” influences should be considered, there is no reason why Soviet Union should not co-own Atlas Shrugged. Besides, back to my original objection, there is no way to distinguish between immaterial goods and externalities. But according to theory, you can own the former but not the latter.> Someone that isn’t licensed isn’t a proper party
> to the transaction …
What is “proper party”? That’s just another arbitrary assumption. Governments also claim that some transactions are invalid without them being involved, but that does not make it true.> The owner establishes ownership through
> homesteading of unique or novel creations.
Another meaningless construct that answers nothing.> Then exclusion is enforced, just like with real
> property.
Exclusion in material goods is not “enforced”, it “is”. It is the natural feature of those things. It exists regardless of laws or people.> This isn’t a “right” to market share …
It is.> Competitors are free to homestead or purchase
> their own IP and compete.
This is only valid from your point of view. From my point of view, it’s the opposite: competitors homestead new grounds, and a monopoly prevents them from using it. From my perspective, those new grounds are externalities of the original.(externalities)
> Well, the IP owner will have to consider these.
Exactly! IP owner, just like anyone else causing externalities, should consider the effects before making his move, instead of complaining how little he gained by using an infeasible business model.> But like property rights IP allows the owner to
> address the most common and harmful ones.
There are already property rights in the physical, those are sufficient to address the most common and harmful effects of undesired activities.> In the mass market scenario some slippery sorts
> will claim she doesn’t have self-ownership,
> ownership of her image.
This is merely another stage of the problem (i.e. you are trying to cure the symptom rather than the cause). The illicit photographer trespassed on physical property. When a woman with a miniskirt goes to a street, she needs to make herself informed about the rules regarding photographing that the street owner does (some might permit photos, some might not). There is no need for IP from this perspective.> The homesteader only has ownership of their
> homesteaded IP.
But what does this mean? I fail to see how this can mean owning anything apart from that which is in one’s own head. The line where you draw the distinction between immaterial goods and externalities is arbitrary. That’s what you need to recognise. IP is the claim of ownership of other people’s minds. It does not bother you here, but it bothers you with children and Ayn Rand. You need to explain this dichotomy. -
Dear Jay,
> I believe that a common error that most people
> make is that they confuse the subjective meaning
> we humans assign to entities with the entities
> themselves.
Very well put Jay, this is what I’m trying to get the IP proponents to recognise and they seem to have a hard time with it.
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Curt Howland
So, 400+ messages on just the last two blog entries about so-called “intellectual” property, sadly very repetitive, I wonder how many this one will get?
Those who wish to repeal I.P. are fighting against the emotional reaction that artists are entitled to these royalties. That it is somehow “theft”, with all the accompanying deprivation, if the artist does not receive all the monopoly profits they might get with statute I.P., without any way to determine what those might be or have been.
The “labor theory of value” arguments ignore the fact that labor does not determine value, even though someone who put his all for years into the Great American Novel ends up receiving practically nothing in return. But they ignore the fact that even with statute I.P. enforcement, that kind of thing happens too.
And those worried about blatant rip-offs don’t seem to consider that books like “The Sword of Shanara” get published and make lots of money, while “The Wind Done Gone”, an obvious parody that no one made any effort to pretend was anything else, gets slammed down because statute I.P. is arbitrary. Enforcement is on a whim, just like anti-trust and insider trading laws.
Yet didn’t the author of “The Wind Done Gone” work hard? Make contribution? Invest their very soul in the project? But that doesn’t matter this time. Maybe he should have parodied Shakespeare instead, like “Shakespeare In Love”, since the statutes say that’s OK to do.
Published: January 20, 2010 8:39 AM
Kerem Tibuk
Curt,
These are not “labor theory of value” but “labor theory of property”. I suggest you study a bit on the Lockean/Rothbardian theory of property a bit.
Published: January 20, 2010 8:57 AM
Kerem Tibuk
I say abolish all patent laws and let the courts decide if there was an aggression against property (unauthorized copying) or not.
The burden of proof would of course fall on the accuser to show that the similar IP was in fact not independently discovered but copied.
You do not need to register ownership of every bit of physical property and you do not need to register any IP either.
Further as a more optimistic wish, I say abolish the state and all the legislation regarding every property.
Property tangible or intangible is the outcome of human nature and not some social convention or state.
Published: January 20, 2010 9:03 AM
Russ
Kerem Tibuk wrote:
“These are not “labor theory of value” but “labor theory of property”. I suggest you study a bit on the Lockean/Rothbardian theory of property a bit.”
As should you. The Lockean labor theory of property applies to physical goods, not patterns or ideas. It is not at all obvious that the concept should extend to patterns or ideas.
Kerem Tibuk wrote:
“I say abolish all patent laws and let the courts decide if there was an aggression against property (unauthorized copying) or not.”
Ummmm, if there are no IP laws, then how can a court interpret the non-existent law? And what about the notion in our law that the law should be knowable, because if one cannot know that the law is being broken, there can be no mens rea?
Published: January 20, 2010 9:15 AM
Gil
There’s no point trying to argue for the watering down of I.P. protection – it’s the same arguments that would be used for its abandoment.
On the other hand, people argue for I.P. in that it gives inventors and innovators a right to control and profit their works. S. Kinsella’s view that “I.P. stifles inventions and innovations” isn’t supported by any historical evidence. His arguments for the costs are akin to the costs of R.P. – idyllic private landowners would like to have no enforcement costs of their land from physical invaders or invaders who would use some sort of private court system to try to steal their land but it is a part of living in the real world, even in Anarchtopia.
Published: January 20, 2010 9:16 AM
Kerem Tibuk
Russ,
“As should you. The Lockean labor theory of property applies to physical goods, not patterns or ideas. It is not at all obvious that the concept should extend to patterns or ideas.”
If you understand how they came to the conclusion that private property is justifies, instead of memorizing some lines, you would see that the same logic applies to IP and it is very much obvious. That is why I suggest everyone to study it, to think about it instead of repeating some memorized lines, from some famous person.
“”I say abolish all patent laws and let the courts decide if there was an aggression against property (unauthorized copying) or not.”
Ummmm, if there are no IP laws, then how can a court interpret the non-existent law? And what about the notion in our law that the law should be knowable, because if one cannot know that the law is being broken, there can be no mens rea?”
First there is no need for legislation for a law to exist. Laws are not made they are discovered.
Secondly, even if there was legislation, one law regarding property is sufficient and that legislation can cover every property tangible or intangible. Do you need to write legislation for every type of property? One legislation for cars, another for houses, etc?
Published: January 20, 2010 9:24 AM
Russ
Dang it, my last post got eaten. OK, here we go again…
Kerem Tibuk wrote:
“If you understand how they came to the conclusion that private property is justified, instead of memorizing some lines, you would see that the same logic applies to IP…”
It’s not at all the same. Mixing one’s labor with material gives one the right to *that* material. It does not give one the right to other material that other people have mixed their labor with in the same way.
“First there is no need for legislation for a law to exist. Laws are not made they are discovered.”
Even if this were true, which I don’t believe it is, letting the courts legislate from the bench would make the problem of “judicial activism” even worse than it is now.
“Secondly, even if there was legislation, one law regarding property is sufficient and that legislation can cover every property tangible or intangible. Do you need to write legislation for every type of property? One legislation for cars, another for houses, etc?”
Cars and houses are both material goods, so, no, of course separate laws are not needed for both. IP is not material, so the same laws don’t apply. Simply ignoring obvious distinctions such as this does not make them go away, Kerem.
Published: January 20, 2010 10:06 AM
Stranger
Mr. Stephan Kinsella is the unchallenged expert of the strawman attack, devoting entire essays to denouncing patents, then sneaking in a completely incorrect attack on copyright into the bundle as if it were somehow self-evident that they go together. Of course they do not, they are entirely different, and it suffices to read Rothbard’s undergraduate-level Man Economy and State to see why.
As if his reasoning were not ridiculous enough, in this case his proposal for reform of copyright increases the state’s violations of property instead of eliminating, as it still requires an administrative bureaucracy yet reduces the claim to property of the producer! The obvious reform is of course to eliminate registration entirely and grant copyright for perpetuity, as it is quite simple for any producer of information to demonstrate that he is the originator of a work.
As long as the Mises institute continues to publish these ridiculous articles, it will dishonor the memory of Rothbard and Mises.
Published: January 20, 2010 10:08 AM
Russ
Stranger,
My mother taught me not to talk to Strangers, but since it’s only the Internet, it should be safe enough…
How are patents and copyrights completely different? They both seem familiar to me. After all, they both prevent one from copying something. Could you put it in a nutshell for somebody who doesn’t want to slog through MES?
Published: January 20, 2010 10:27 AM
Russ
Oops. Brain fart.
“They both seem familiar to me.”
Should be:
“They both seem similar to me.”
Published: January 20, 2010 10:30 AM
Stranger
The patent is incompatible with the free market precisely to the extent that it goes beyond the copyright. The man who has not bought a machine and who arrives at the same invention independently, will, on the free market, be perfectly able to use and sell his invention. Patents prevent a man from using his invention even though all the property is his and he has not stolen the invention, either explicitly or implicitly, from the first inventor. Patents, therefore, are grants of exclusive monopoly privilege by the State and are invasive of property rights on the market.
The crucial distinction between patents and copyrights, then, is not that one is mechanical and the other literary. The fact that they have been applied that way is an historical accident and does not reveal the critical difference between them.[96]The crucial difference is that copyright is a logical attribute of property right on the free market, while patent is a monopoly invasion of that right.
http://mises.org/rothbard/mes/chap10e.asp#7._Patents_Copyrights
Published: January 20, 2010 10:34 AM
Russ
“…Patents prevent a man from using his invention even though all the property is his and he has not *stolen* [emphasis added] the invention, either explicitly or implicitly, from the first inventor. Patents, therefore, are grants of exclusive monopoly privilege by the State and are invasive of property rights on the market.”
This simply *assumes* that copying an invention (as opposed to independently discovering it) is stealing. It is not. The inventor will still have his invention, as long as the original invention is only copied, and not stolen.
“…copyright is a logical attribute of property right on the free market…”
I also fail to see how this is true. Copying an object in no deprives the original owner of his original object. Hence, copying any object in no way violates the original owner’s property rights.
I’m afraid Rothbard is simply mistaken here.
Published: January 20, 2010 10:50 AM
Nate
Gil,
You should check out the following daily article:
http://mises.org/daily/3280
for historical evidence that IP can stifle innovation.
Published: January 20, 2010 10:55 AM
Stranger
I also fail to see how this is true. Copying an object in no deprives the original owner of his original object. Hence, copying any object in no way violates the original owner’s property rights.
Strawman, as usual. The issue is not whether the original object has been taken away, but that it has been used in a way that its owner forbids. For this reason, copying violates property rights.
Published: January 20, 2010 10:58 AM
Kerem Tibuk
Yes Stranger, but you see Rothbard was confused when it came to IP. Mr Kinsella knows what is property and what is not and also can tell when Rothbard was confused.
Actually Kinsella doesn’t have the balls to take on Rothbard head on challenging his natural law ethics. He instead sneaks his positivist property theory in with his IP socialism. Although he admits occasionally that he doesn’t think there are natural laws or believes that individuals have self ownership.
Of course if he did honestly denounce natural law ethics, it would be very difficult for him to defend his position since natural law ethics is the strongest foundation for libertarianism and also the most consistent one.
Published: January 20, 2010 11:04 AM
Stephan Kinsella
Kerem:
This is question-begging, as is par for the course with IP proponents. It assumes the court would rule against someone if it could be shown they “copied” something. I.e., if they learned something! Kerem Tibuk does not seem to realize this would eviscerate patent law, since patent law does not require copying; in other words the system proposed by Tibuk would be called “anti-IP” by the IP shills and fascists. Further, his system would also be worse in that as the judge is going by some “copying” principle and not interpreting a statute, the terms would be infinite. At least copyright finally dies away–not Tibuk’s court-created legislation. To have any workable IP system would require a myriad of artificial rules. The judge would have to legislate from the bench. And other judges would not follow such dicta (for more on the role of judges and decentralized law-making see my Legislation and the Discovery of Law in a Free Society, esp. p. 176 et pass.).
Tibuk, please watch your incivil tongue. And your comments are nonsense. I’ve long been a proponent of Rothbard’s libertarian ethics, including improvements to and extensions of it by Hoppe (as was Rothbard himself).
Published: January 20, 2010 11:24 AM
Kerem Tibuk
Kinsella,
” It assumes the court would rule against someone if it could be shown they “copied” something. I.e., if they learned something!”
It doesnt assume anything. I am saying it should be that ways since copying without the consent of the owner is aggression against property.
” Kerem Tibuk does not seem to realize this would eviscerate patent law, since patent law does not require copying; in other words the system proposed by Tibuk would be called “anti-IP” by the IP shills and fascists. ”
Which part of “abolish all patent legislation” don’t you understand. Patent laws are unjust laws. They wouldnt exist in a free society. And I don’t care what an IP socialist like yourself or an IP fascist that defends patents might say. Why don’t you read Rothbard where Stranger quoted above.
“Further, his system would also be worse in that as the judge is going by some “copying” principle and not interpreting a statute, the terms would be infinite. At least copyright finally dies away–not Tibuk’s court-created legislation. ”
Who says property rights should die after some arbitrary time? Of course property rights are infinite.
“To have any workable IP system would require a myriad of artificial rules. The judge would have to legislate from the bench. And other judges would not follow such dicta (for more on the role of judges and decentralized law-making see my”
Applying one law to different circumstances is not legislation from bench. It is called judgment. And we do not need to see your anything since you can not distinguish between legislation and judgement.
“Tibuk, please watch your incivil tongue. And your comments are nonsense. I’ve long been a proponent of Rothbard’s libertarian ethics, including improvements to and extensions of it by Hoppe (as was Rothbard himself).”
Do you believe in natural law and self ownership or not? If you don’t you are lying when you say you are proponent of Rothbard’s libertarian ethics.
You may agree with some of his conclusions but that doesn’t mean you are a proponent. And hijacking natural law ethics, and injecting legal positivism in libertarianism is not an improvement of Rothbard’s theory. Not by Hoppe or certainly not by you
Have some courage man. Maybe if you are honest and come clean you could be a worthy intellectual opponent and genuine debate can take place.
Published: January 20, 2010 11:46 AM
DixieFlatline
This is circular reasoning. You admit the the owner has not lost control of the property, and yet you claim that someone is using the property in a manner he forbids.
Which is it?
The question I am getting to, which you have less-than-artfully dodged in the community and on the blog, is where does this right to forbid originate, if he never lost control of his property at all?
Really, this goes back to Stephan’s observation, that the property rights you propose (including some right of perpetual copyright which I will demonstrate to be nonsensical) are really rights over the property of others, and how that property may be used. You can’t know or prove that I know something, unless I translate it into some form of physical proof. So for all intents and purposes, any claims to property rights via IP you have would make, are claims over my physical property, not the contents of my mind. Your position is simply one of positivism.
As to your notion of copyright in perpetuity, if that was the standard, then you would not be able to utilize any technology that you did not have explicit permission to use, including the English language (language is a technology) because if you used it without explicit permission, you would be a rights violator and thief.
I have demonstrated to you, using your arguments, and quite publicly, explained, how your position is arbitrary and self-contradicting.
Lastly, your claim about Rothbard is also self-contradicting, because copyright and patent are the same thing. If you claim I can produce the same item independently, how can you prove that I did not copy? It’s more circular reasoning.
Much of Rothbard’s post-Objectivist natural rights libertarianism is arbitrary and confusing. This issue is (in my opinion) why Rand based Objectivist IP theory on her misunderstanding of how the American patent system worked. People try to fit square pegs into round holes when they have a commitment to ideology over truth.
Published: January 20, 2010 12:22 PM
DixieFlatline
Stephan, I am sure I am not the only person who has tired of the insults and poor social interaction from Kerem. It’s obvious he is here to troll these topics each day, simply remove his posts if they contain insults. He will have to stop being insulting if he wants his content to stick.
I suspect he will ultimately lose interest in trolling when he is not getting an opportunity to debate in bad faith because he has shown little inclination to debate consistently and rationally.
Likewise for the other folks who take the approach of petty ad hom.
Published: January 20, 2010 12:25 PM
Nate Y
Stranger says:
“Strawman, as usual. The issue is not whether the original object has been taken away, but that it has been used in a way that its owner forbids. For this reason, copying violates property rights.”
The problem here is that after an exchange has happened, the original owner is no longer the owner. The person doing the copying is now the owner and is free to do what he/she wants with his/her just property.
Published: January 20, 2010 12:27 PM
Stephan Kinsella
Kerem: yes, so you admit copyright should last forever. Good. So it’s very clear I was right, and that your system would even be worse than the current one; and it’s good that you are taking your ideas to their proper exteme: you are doing the argument from absurdity for me. THanks.
“Do you believe in natural law and self ownership or not? If you don’t you are lying when you say you are proponent of Rothbard’s libertarian ethics.”
Of course I believe in self-ownership; I’ve written a lot on this. As for natural law–sure, understood properly as having a hypothetical foundation (due to the is-ought gap) and grounded in an aspect of human nature–discursive justification, per Hoppe.
Published: January 20, 2010 12:46 PM
Stranger
“The problem here is that after an exchange has happened, the original owner is no longer the owner. The person doing the copying is now the owner and is free to do what he/she wants with his/her just property.”
Incorrect. The terms of the contract clearly stipulate limited rights to access the media, much like one who buys a home has limited rights to the land and the developer retains the other rights.
Published: January 20, 2010 1:00 PM
Jay Lakner
I agree with DixieFlatline.
I grow tired of sifting through pointless insults trying to get to the meat of an argument. Sometimes I get so frustrated with the person I’m trying to debate with that I throw an insult or two back at them. I usually regret it later and apologise to the community, but I think everyone realises that nobody has infinite patience.
Kerem is well known to initiate these sorts of skirmishes, which is a shame because his unusual viewpoint on many issues keeps me on my toes. (like when he proclaimed that all marriage contracts are invalid … that really got me thinking. I disagree with him wholeheartedly, but my understanding of the subject has increased greatly and I’m thankful that he made that claim) Kerem is not someone I want chased off this site. I just wish for him to lay off the slander.
Some of our (self-proclaimed) Objectivist visitors have been somewhat rude. For example, John Donohue and Mark Hubbard. Objectivists in generally tend to argue with extreme passion and sometimes it’s difficult to determine the difference between a hostile post and an emotionally-charged post. Working out where to draw the line can be tricky.
Whatever position is taken on deleting inappropriate posts, I just wish for it to be consistent.
Published: January 20, 2010 1:06 PM
Nate Y
Stranger says:
“Incorrect. The terms of the contract clearly stipulate limited rights to access the media, much like one who buys a home has limited rights to the land and the developer retains the other rights.”
What contract? It seemed like you guys were talking about IP in general. Not about a specific transaction with a contract.
Published: January 20, 2010 1:14 PM
Stephan Kinsella
A warning to Kerem, Donohue, Hubbard–disagree all you want. But keep a civil tongue, or you’ll be booted.
Published: January 20, 2010 1:14 PM
DixieFlatline
Nate, you have exposed another chink in Stranger’s argument.
Now he is arguing that property rights are based on contract, not on possession. This is typical of the people who shout “socialist” when it comes to IP. The capacity to redefine what copyright is several times a day, depending on the objections voiced to it.
If copyright depends on contract, then there is no way to form a contract without consent, and so the copyright only extends to those who agree to the contract, no one else.
In a free market, restrictive contracts are always undermined by less restrictive ones, and so it behooves someone else to offer the freest contract for his copyright that he can. LvMI is an example of this. They profit greatly from not enforcing their copyright, and enforcing their copyright would generate expenses they would not be able to recoup.
The other element of Stranger’s latest error is that one can simply emulate the pattern which is copyrighted, and used by someone who has a contract. That is, unless they manage to keep the copyrighted idea secret, which again, diminishes its utility, creating opportunities for less restrictive contracts with lower per-use costs.
The lesson to be learned from this is that when one starts with an irrational premise (property rights assigned to non-property) or a flawed conception of rights (property rights being contracts, contracts being implicit) the argument has been lost before it has begun.
Published: January 20, 2010 1:36 PM
Stranger
“What contract? It seemed like you guys were talking about IP in general. Not about a specific transaction with a contract.”
The contract that you yourself mentioned when you invoked the exchange of media before making this additional idiotic comment.
Published: January 20, 2010 1:39 PM
Nelson
The comments were civil enough, challenging though they were. Booting Kerem would prove that his assertions couldn’t be countered with facts and logic so force must be used instead. This parallels the real world in that conflicts are resolved between tribes and nations via force, not reason. This is why the Rothbardian non-state utopia can not exist (sadly even among utopian anarchists it seems).
Published: January 20, 2010 1:41 PM
DixieFlatline
Nelson, no utopia can exist. Not even the Randian night watchman state, that is based on a contradictory premise.
As to the civility of the comments, no one is questioning that the comments are uncivil, they clearly are at times. The assertions can and should be answered, but not when used as a vector to insult and berate. If Kerem is serious about his assertions and proving their worth, he will seek to debate in a manner conducive to discourse and interaction, not one which is anti-social.
And lastly, the claim that booting him would prove his assertions is a logical fallacy. It is a non sequitur.
This far the pro-IP crowd has made no headway in their arguments, and in the case of folks like Stranger, have lost ground with each new post.
Published: January 20, 2010 1:46 PM
Russ
I was prepared for long debate with Stranger, but Nate Y. has neatly anticipated every one of my responses.
Nate Y wrote:
“The problem here is that after an exchange has happened, the original owner is no longer the owner. The person doing the copying is now the owner and is free to do what he/she wants with his/her just property.”
Amen, brother! Unless there is a contract between buyer and seller, with the buyer agreeing that he won’t copy the object, and also agreeing that he will require others buying the object from him to sign a similar contract, the buyer/new owner can copy the item if he wants.
Nate Y wrote:
“What contract?”
Hallelujah, brother, Hallelujah! A sticker that say “You can’t copy this!” does not a contract make. Neither does a copyright notice inside a book.
Published: January 20, 2010 1:51 PM
Jay Lakner
Nelson,
Kerem has a tendency to fall into an “attack the man, not the argument” mentality.
For example I would consider the following quote to be inappropriate:
“Actually Kinsella doesn’t have the balls to take on Rothbard head on challenging his natural law ethics. He instead sneaks his positivist property theory in with his IP socialism.”
Kerem is not making an argument against Stephan’s position, he is making an argument against Stephan. It really irritates me when I see stuff like this. It’s unnecessary and counterproductive.
I do sympathise with Kerem though. I’m sure everyone here understands what it’s like to be alone in an argument against many. It’s extremely frustrating. And Kerem all too often finds himself in that position here on Mises.org.
The solution is to simply say “Here is the line, do not cross it” and then at least everyone knows where they stand. (the word “civil” is a bit too subjective for my tastes)
Published: January 20, 2010 2:05 PM
Magnus
Curt Howland: Those who wish to repeal I.P. are fighting against the emotional reaction that artists are entitled to these royalties.
I came across an interesting analysis of just HOW the phenomenon of file-sharing of music has affected the revenue streams of artists and labels since 2004.
Here’s the article, complete with helpful charts and stuff:
http://labs.timesonline.co.uk/blog/2009/11/12/do-music-artists-do-better-in-a-world-with-illegal-file-sharing/
File-sharing is an imperfect substitute for the abolition of IP, but file-sharing is the next best thing, I suppose, since it consists of the rampant disregard of IP protections, rendering IP protection of music all but unenforceable.
The article shows that the artists’ revenues have increased, while the labels’ revenues have decreased.
Suddenly, the plight of the artist who got robbed seems less … real. I don’t hear many people wringing their hands for the record label that makes slightly less than it otherwise would (other than the people who work at record labels).
As marketing guy Gareth Kay pointed out:
“Arguably, the last century of recorded music has been an anomaly in how we consume music and we’re going back to how we have always enjoyed it – live and together.”
Published: January 20, 2010 2:12 PM
Nate Y
Stranger says:
“The contract that you yourself mentioned when you invoked the exchange of media before making this additional idiotic comment.”
What the?
As if there’s a binding contract involved in every transaction. Give me a break.
The barter analogy helps with this confusion. Suppose we live in a barter economy. You produce a book and I produce a disc of music. You want my disc and I want your book. We agree to trade. What was once yours is now mine and vice versa. Just as you were free to do whatever you wanted to do with your book, you are now free to do with the disc. Afterall, we traded and it now belongs to you.
Published: January 20, 2010 2:41 PM
Stranger
“The barter analogy helps with this confusion. Suppose we live in a barter economy. You produce a book and I produce a disc of music. You want my disc and I want your book. We agree to trade. What was once yours is now mine and vice versa. Just as you were free to do whatever you wanted to do with your book, you are now free to do with the disc. Afterall, we traded and it now belongs to you. ”
The information producer would never agree to trade without limited copyright. It may seem to you that because you do not have to sign a multiple page agreement at the checkout counter of HMV that you are not bound by a contract, but in fact the contract is inscribed on the product you purchased, hence denying that the seller is binding you to it is pure idiocy, and would be laughed out of court.
Published: January 20, 2010 2:49 PM
Jay Lakner
Magnus, unfortunately that article doesn’t factor in inflation. The true revenues to artist may not have changed at all, or maybe even lower.
It would have been nice if they had of produced an inflation-adjusted version of that data, just to be sure.
Published: January 20, 2010 2:52 PM
Russ
Stranger wrote:
“The information producer would never agree to trade without limited copyright.”
That’s not true. Some people do exactly that. If the seller intends to limit the rights being sold, instead of selling the object with full rights, then he should explicitly make that clear with an explicit contract, and should assure that he has proof that the buyer consented to the terms of the contract.
“It may seem to you that because you do not have to sign a multiple page agreement at the checkout counter of HMV that you are not bound by a contract, but in fact the contract is inscribed on the product you purchased, hence denying that the seller is binding you to it is pure idiocy, and would be laughed out of court.”
I won’t go into this again, but no, a sticker or copyright notice is not a contract. So what if current law believes that the buyer is legally bound? There’s no debate about that; what we’re debating about is whether these laws are just. Appeals to the status quo are meaningless.
Published: January 20, 2010 3:04 PM
Andras
In the context of the arbitrariness of homesteading and “IP laws are to assist internalizing the external”, I think Kinsella’s proposal is a great start and compromise.
Some technicality though: how do you intend to
“Apportion damages to be proportional to the value of the patent”. What is the value of a patent?
I have posted this on both parts when I saw the debate was also going on here.
Published: January 20, 2010 3:27 PM
Magnus
Magnus, unfortunately that article doesn’t factor in inflation. The true revenues to artist may not have changed at all, or maybe even lower.
The more important information in the chart is that artists’ revenues and the labels’ revenues are going in opposite directions.
The same rate of inflation applies to them both, of course. So, regardless of what’s happening in real terms, the industry’s total revenues are clearly being divided up among the various parties in new and changing percentages.
I get tired of the hand-wringing about the poor artists — the Parable of the Popular-But-Starving Musician. I know why pro-IP people trot it out all the time — people clearly sympathize with artists more than they do with publishers and music labels.
When it turns out, however, that artists are getting a bigger cut and labels are getting a smaller cut, it really takes the wind out of the sails of that particular type of pro-IP propaganda.
Published: January 20, 2010 3:35 PM
Jay Lakner
Magnus,
File-sharing is clearly going to effect the record labels but it’s unclear what the effect on live performances is. If, via inflation-adjusted data, it is shown that there is no change in live-performance revenue while there’s a big drop in record label revenue, then the only conclusion one can draw is that file-sharing takes money away from artists. This is not the result I want to see. That’s why I’d like the data to be adjusted for inflation so we can see what is really going on.
Published: January 20, 2010 3:47 PM
pro-IP-libertarian
Stephan-
Good articles. And this is coming from someone who is pro-IP and thought reading them was going to induce nausea. I agree with most of your recommendations as well.
Published: January 20, 2010 5:37 PM
pro-IP-libertarian
Russ-
It’s not at all the same. Mixing one’s labor with material gives one the right to *that* material. It does not give one the right to other material that other people have mixed their labor with in the same way.
Assumes a “duplication is equivalent to production” framing. Duplication is not equivalent to production. If not for the labor and intellectual homesteading of the creator, the copier would not have the same product.
Cars and houses are both material goods, so, no, of course separate laws are not needed for both. IP is not material, so the same laws don’t apply. Simply ignoring obvious distinctions such as this does not make them go away, Kerem.
If you want your property rights in those goods recognized by the state, you better have deeds, titles, etc. Same with intangibles like corporations – if you want your equity recognized you better have your stock certificates. Same with IP.
Published: January 20, 2010 5:50 PM
pro-IP-libertarian
Stephan-
Correction: I should say that I agree with most of your recommendations for improving the current patent system, not your recommendations for doing away with all forms of IP.
Published: January 20, 2010 5:53 PM
Nate Y
What on Earth is “intellectual homesteading”?
Seems similar to the concept of “sex with my imaginary girlfriend”.
Published: January 20, 2010 6:01 PM
pro-IP-libertarian
Russ-
This simply *assumes* that copying an invention (as opposed to independently discovering it) is stealing. It is not. The inventor will still have his invention, as long as the original invention is only copied, and not stolen.
This reaches to the exlusion issue (beach house & llamas) discussed in the other thread. The duplication does effect the creator’s ability to use (including sell) his property.
I’m afraid Rothbard is simply mistaken here.
I think so too, but for a different reason. When real property is homesteaded we accept the state recognizing and granting a monopoly. Same for intellectual homesteading – IP. IP is even more flexible, since it allows someone who wants the property to license it, homestead similar use property themselves, or wait for it to expire. With real property homesteading if you want the production from a particular piece of property you are out of luck, and that is perpetual.
Published: January 20, 2010 6:10 PM
Russ
pro-IP-libertarian wrote:
“Duplication is not equivalent to production. If not for the labor and intellectual homesteading of the creator, the copier would not have the same product.”
Yeah. So? The copyer still used his own materials, which he owned, and did not steal the materials of the inventor. So there is no theft.
“If you want your property rights in those goods recognized by the state, you better have deeds, titles, etc. Same with intangibles like corporations – if you want your equity recognized you better have your stock certificates. Same with IP.”
OK. This somehow means that putting a copyright notice in a book actually means that people are not allowed to copy it?
Published: January 20, 2010 6:11 PM
pro-IP-libertarian
Nate Y-
What on Earth is “intellectual homesteading”?
Seems similar to the concept of “sex with my imaginary girlfriend”.
It’s a natural law approach to IP rights discussed in another thread. Under a Lockean or natural law approach to physical property homesteading is when you acquire property by mixing it with your labor or enclosing it. Similarly, IP can be thought of as “intellectual homesteading”, or acquiring a property by mixing it with your labor – creation, design, planning, thinking, etc.
It avoids some of the absurdities of the “duplication/copying is production” framing.
Published: January 20, 2010 6:16 PM
Russ
pro-IP-libertarian wrote:
“The duplication does effect the creator’s ability to use (including sell) his property.”
No, it doesn’t. It affects the creator’s desires (e.g. the desire to make money by selling the invention under monopoly protection). The creator can still make direct use of the property (e.g. he can still use the flux capacitor he invented to travel into the future).
“Same for intellectual homesteading – IP.”
The problem with “intellectual homesteading” is that it ignores the whole reason why homesteading is necessary; scarcity. Homesteading is a convention that deals with the problem of who gets what scarce goods by the simple expedient of “first come, first served”. But since IP is not scarce, the whole concept of homesteading is unnecessary with respect to it.
“IP is even more flexible, since it allows someone who wants the property to license it, homestead similar use property themselves, or wait for it to expire.”
I’ve never understood why people think that time-limiting the possession of IP is reasonable, but not for physical property. At least those who think that IP ownership should be perpetual are being consistent; absurd, but consistent.
Published: January 20, 2010 6:22 PM
pro-IP-libertarian
Russ-
Yeah. So? The copyer still used his own materials, which he owned, and did not steal the materials of the inventor. So there is no theft.
Not quite. It would be pretty funny on the first day I parked my herd of llamas on the front lawn of your beach house. But something tells me after a week or so you would start to consider it something akin to theft. Same thing with me broadcasting my polka show over your showtunes show on the same radio frequency. Something tells me your advertisers would want listeners to actually hear their ads. These are the exclusion issues we discussed before.
Published: January 20, 2010 6:25 PM
Nate Y
Russ says:
“So what if current law believes that the buyer is legally bound? There’s no debate about that; what we’re debating about is whether these laws are just. Appeals to the status quo are meaningless.”
We’re of the same mind.
Published: January 20, 2010 6:40 PM
Shay
Here’s an angle rarely touched on in these endless blog discussions: if IP really is property that’s worth a lot, why aren’t IP holders paying enormous property taxes each year on it?
Published: January 20, 2010 6:41 PM
pro-IP-libertarian
Russ-
The problem with “intellectual homesteading” is that it ignores the whole reason why homesteading is necessary; scarcity. Homesteading is a convention that deals with the problem of who gets what scarce goods by the simple expedient of “first come, first served”. But since IP is not scarce, the whole concept of homesteading is unnecessary with respect to it.
No, IP is scarce. Otherwise you wouldn’t spend time copying it. If it wasn’t scarce if someone complained you would just go pluck a substitute from the tree of infinite IP.(The “tree of infinite IP” representing the non-scarcity.)
Look at music file sharing. There are all these free services where musicians say you can have their music for free. Controversy over, right? You don’t have to copy anyone’s music without permission. But that’s the thing, not everyone wants the free music. They want to copy the music protected by IP. Why? Because a lot of it is good. Good IP is scarce.
This confusion is all due to the “duplication/copying is equivalent to production” framing. Just because something is easily duplicated doesn’t mean that it isn’t scarce. Duplication is NOT production.
I’ve never understood why people think that time-limiting the possession of IP is reasonable, but not for physical property. At least those who think that IP ownership should be perpetual are being consistent; absurd, but consistent.
IP is a different kind of property. Technology changes, past a certain point in certain areas new IP has replaced or leapfrogged the old. That said, with some changes perpetuity could work as well.
Published: January 20, 2010 6:43 PM
AC
securinginnovation.com
Published: January 20, 2010 6:46 PM
Stranger
“Here’s an angle rarely touched on in these endless blog discussions: if IP really is property that’s worth a lot, why aren’t IP holders paying enormous property taxes each year on it?”
Because it doesn’t need to be connected to a road and sewage system?
IP producers pay income and estate tax.
Published: January 20, 2010 7:11 PM
Mashuri
Not quite. It would be pretty funny on the first day I parked my herd of llamas on the front lawn of your beach house. But something tells me after a week or so you would start to consider it something akin to theft.
Talk about a straw man. A more accurate analogy would be you parking your herd of llamas on your own front lawn, with me then knocking on your door demanding a royalty because I parked a herd of llamas on my front lawn before you.
Published: January 20, 2010 7:39 PM
Victor
I’m not ready to abolish all IP protections just yet, but I do agree that patent trolling can be abusive. I also agree that the procedure to obtain a patent in the United States is absurdly inefficient. So I would suggest the following reform:
Abolish patent examinations and create a single, nationwide (or even multinational) invention registry, analogous to the trademark registry. An inventor could register his/her invention for a nominal fee, and then seek injunctive relief against persons who copy the invention — but only if the invention had been “placed into commerce” before or, say, two or three years after registry.
I know, the two or three year window is arbitrary, and the definition of placing an invention into commerce might be a bit slippery — but this system would be absolutely transparent and would also get the government out of the business of reviewing patent applications and issuing letters patent.
It would also eliminate the oppressive costs associated with filing and obtaining a letter patent.
And it would curb patent trolling by requiring an inventor to bring his or her invention to market within a reasonable time after the idea is registered.
Published: January 20, 2010 8:00 PM
Russ
pro-IP-libertarian,
In the context of IP, or anything else property-related, I understand “scarce” to mean that the item in question cannot be used at the same time by more than one person. In this sense, IP is not scarce, since more than one person can use it simultaneously.
And don’t tell me that this isn’t true, because the creator cannot sell it as he intended if others copy it. I’ve addressed that before. That is not “use”; that is a business plan. A creator has every right to expect that he will be able to use his creation. He does not have every right to expect that he will be able to make a lot of money by monopolizing the right to copy it.
Published: January 20, 2010 8:11 PM
Stranger
“In the context of IP, or anything else property-related, I understand “scarce” to mean that the item in question cannot be used at the same time by more than one person. In this sense, IP is not scarce, since more than one person can use it simultaneously. ”
In that case, money is not scarce, and the banks should run 0% reserves. In fact they can spend all their depositors’ money, since obviously they are not using it at this time.
Published: January 20, 2010 8:19 PM
Russ
Stranger,
*rolling eyes*
OK, my bad. Scarce is when two people can’t *possess* the same item at the same time. Two people can have copies of the same information at the same time, which makes it effectively possessing the same IP at the same time, which makes IP not scarce.
Why is it that the difference between intellectual “property” and normal property is so obvious, until people figure out that they can make obscene amounts of money by pretending that they’re the same thing?
Published: January 20, 2010 8:44 PM
Stranger
“OK, my bad. Scarce is when two people can’t *possess* the same item at the same time. Two people can have copies of the same information at the same time, which makes it effectively possessing the same IP at the same time, which makes IP not scarce.”
Okay, so I can print 1 trillion U.S. dollars copies since they are not scarce because two people can have copies at the same time.
Inflationism at work.
Published: January 20, 2010 8:50 PM
Stephan Kinsella
Pro-IP:
“I agree with most of your recommendations as well.”
Well, great!
Victor:
” I’m not ready to abolish all IP protections just yet, but I do agree that patent trolling can be abusive.”
Well, trolling is permitted. It’s not an abuse of the system. See my post Patent Trolls and Empirical Thinking. However, a working requirement (as I proposed) would reduce trolling.
“I also agree that the procedure to obtain a patent in the United States is absurdly inefficient.”
I don’t think it’s inefficient. Or rather, that’s not its problem. If anything it’s too cheap. Anyway we don’t want to make things the state should not be doing efficient. I don’t want more efficient tax collectors or narcotics police. If they have to exist I’d rather them be less effiicent. Same with the PTO.
“So I would suggest the following reform:
Abolish patent examinations and create a single, nationwide (or even multinational) invention registry, analogous to the trademark registry. An inventor could register his/her invention for a nominal fee, and then seek injunctive relief against persons who copy the invention — but only if the invention had been “placed into commerce” before or, say, two or three years after registry.”
This is not a good idea. First, trademarks applications *are* substantively examined. If you don’t have substantive examination of the patent application you can’t know if it’s novel or non-obvious. So if you don’t know that, why would you allow an injunction, just because the patent covers your product? That doesn’t prove that it’s novel or non-obvious. I think what you have in mind is the idea of a petty patent, which I mention in my article. This patent is not examined, just registered; but then there is no presumption of validity. You have to sue on merits to get it recognized before you can get damages or an injunction. But as I note above, I am not sure the petty patent system make any significant improvement in the patent system–that is, that it will reduce its cost and injustice.
“this system would be absolutely transparent and would also get the government out of the business of reviewing patent applications and issuing letters patent.”
Giving someone a right to get an injunction for an idea which doesn’t have to be shown to be novel or non-obvious would make the system much more injust. It would result in even more patents issued.
“It would also eliminate the oppressive costs associated with filing and obtaining a letter patent.”
The costs are not oppressive. I wish they were higher. I wish they were infinite.
“And it would curb patent trolling by requiring an inventor to bring his or her invention to market within a reasonable time after the idea is registered.”
A working requirement would do this. Anyway, trolling is not the problem. It’s the *legitimate* use of the patent system.
Published: January 20, 2010 9:25 PM
Magnus
Okay, so I can print 1 trillion U.S. dollars copies since they are not scarce because two people can have copies at the same time.
Your argument fails. If the bills you print were receipts for commodity money, then printing bills that were redeemable for specie you didn’t have would be fraud.
If you are a government, however, you grant yourself the unilateral power to print bills that are redeemable for nothing but more paper, and then declare that you have the sole power to print them, and then declare that everyone must accept them as payment.
None of which is remotely just, in a free market society or anywhere else.
The fact that you are relying on such transparently false arguments tells me that you have no real solution to the core problem in your position on IP — that patterns are non-rivalrous.
Published: January 20, 2010 9:41 PM
Stranger
The only problem with patents is that another inventor who independently arrives at the same invention cannot get the same protection. In fact he will be forbidden from independent production.
Copyrights do not do this, and for this reason Rothbard supported them for the protection of inventions. They are also essentially cost-free to enforce since one never has to look up whether the invention has been registered before.
Published: January 20, 2010 9:51 PM
Stranger
“Your argument fails. If the bills you print were receipts for commodity money, then printing bills that were redeemable for specie you didn’t have would be fraud.”
But the people aren’t using the specie, so it doesn’t matter. It isn’t scarce.
Published: January 20, 2010 9:53 PM
Magnus
But the people aren’t using the specie, so it doesn’t matter. It isn’t scarce.
In a free, non-fraudulent monetary system, the paper is a substitute for specie. Trading bills is a safer, more convenient method of trading specie.
In a free, non-fraudulent economy, there is no such thing as the unique power to create by fiat a paper currency that’s redeemable for nothing and can be printed ad infinitum. Cartel banking, as we have today, requires the twin mandates that, under penalty of force, (a) everyone must accept such paper as money, and (b) no one else can print more.
Specie is obviously rivalrous. Therefore, paper substitutes for specie are equally rivalrous. And risk-based notes that provide a right of re-payment in specie (or in its paper substitute) are also rivalrous.
Published: January 20, 2010 10:34 PM
Curt Howland
Kerem Tibuk, you wrote,
“These are not “labor theory of value” but “labor theory of property”. I suggest you study a bit on the Lockean/Rothbardian theory of property a bit.”
You completely misunderstood to what I was referring. It wasn’t your “these” at all. Thank you for your suggestion, but it doesn’t fit the facts.
Published: January 20, 2010 10:50 PM
Curt Howland
“copying without the consent of the owner is aggression against property.”
Then the owner is more than welcome to keep that property away from others.
To release that property, and then expect no one to learn from it, is insane.
Published: January 20, 2010 10:56 PM
Russ
Stranger,
WTF does counterfeiting have to do with IP?
Stranger wrote:
“But the people aren’t using the specie, so it doesn’t matter. It isn’t scarce.”
The specie would be scarce if it existed (and therefore were not fraud). Multiple people could not possess a given quantity of gold at the same time. I hope this won’t be taken as incivility, but your arguments are feeble.
Stranger wrote:
“The only problem with patents is that another inventor who independently arrives at the same invention cannot get the same protection. In fact he will be forbidden from independent production.
Copyrights do not do this, and for this reason Rothbard supported them for the protection of inventions. They are also essentially cost-free to enforce since one never has to look up whether the invention has been registered before.”
Firstly, how can you tell whether another person independently invented the invention, or copied it? People would just lie and say they re-invented it. Secondly, even if you could get around the first problem, in order to enforce such copyrights, you would still have to keep a registry of who was an independent co-inventor, so that they could be exempted from enforcement.
Published: January 20, 2010 11:04 PM
Nate Y
Not to be a jackass but Stranger’s posts just keep getting…stranger.
Hiyo!!
Published: January 21, 2010 1:41 AM
DixieFlatline
Stranger was always different but he really jumped the shark about a month or so ago.
With regards to intellectual homesteading, is that when I mix my brain with my brain?
If I already own my brain, how can I homestead it? Aren’t I already the defacto first owner, and perpetual owner under natural law already?
The pro-IP folks continue to manufacture all sorts of abstractions to support and defend IP. What they cannot do is propose a consistent and rational property rights theory, and that is because all IP is a monopoly claim on the property of others.
As Stephan has explained many times in painstaking detail, it’s illogical to claim an IP property right, if that property right interferes with existing non-IP property rights. To draw from Lockean homesteading, in order to override Lockean homesteading is contradictory.
If IP rights trump my right to use my blank DVD as I wish, then I don’t have full control of my blank DVD now do I?
And so the pro-IP crowd, proposes a property rights system, which undermines property rights.
Is it any wonder that many pro-IP folks are also minarchists, and believe that the way to protect property rights, is to violate property rights with a monopoly state?
Double think abounds. I swear I read this blog to see what sort of characters are online these days.
Published: January 21, 2010 2:20 AM
Kerem Tibuk
Regarding the civility of arguments on this blog please follow the link and read the exchanges between “Lord Buzungulus, Bringer of the Purple Light” “Silas Barta” and Kinsella’s reaction to the whole exchange as both a part of argument and a moderator.
http://blog.mises.org/archives/011042.asp
Published: January 21, 2010 3:31 AM
Kerem Tibuk
I don’t want this to turn into a personal thing but Kinsella and I go back a while. He has some moral failings but I wont get into those.
The problem is the logical fallacies he uses when he argues because that part is relevant to the ideas that are debated here.
Kinsella mostly uses straw man in his arguments and he engages in debate on the comments section just to build his straw man.
That is the reason he provokes Objectivists on IP. He knows Objectivist are sensitive to anarchism and use strong and emotional arguments. And he wants to build the straw man argument that “IP is not possible in a free society without a government” and “IP is an invention of the state and not a natural outcome”.
Look at Mike Hubbard’s posts where he both denounces anarchy and IP socialism and you can see Kinsella succeeds on some level.
Also the reason he engaged me on this thread is the same. To be build a different straw man.
He perfectly knows that I find patent laws unjust and not compatible with property rights which includes IP as legitimate property.
Notice where he says, “Kerem Tibuk does not seem to realize this would eviscerate patent law, since patent law does not require copying; ” as if I didnt say “abolish all the patent laws”. I am not proposing something that would cause another thing in the future. I am outright calling for the outcome.
Also notice when he says “Kerem: yes, so you admit copyright should last forever”. as I didn’t say it outright that there can not be a time limit regarding property rights.
The straw man here is, as if I am making contradicting arguments and he is the one catching me doing it. Also one of Kinsella s favorite straw man is, treat others like they approve every piece of IP legislation there is. You complain about the legislation too, but he answers you as if you are supporting the legislation just because you are not on the IP socialism band wagon.
I debated many people here and I write extensively. I challenge anyone to find my contradictions. I will welcome anyone who does this because all my goal in this life is to remove my contradictions. That is why I became an anarcho capitalist from a minarchist.
And that is why I am interested in IP: Not because I am obsessed with it, or my work is somehow related like being an artist or a patent attorney. I am interested in a general and just property theory and IP socialism contradicts it. The sad thing is instead of improving on Rothbards ethics, people here is putting a dynamite under it by this IP socialism.
Also I find this banding together thing amusing. I am an an-cap that is also an atheist and I am well used getting people gang up on me. How many people do you think there are that share all my views?
I don’t care about that a bit and I will never complain about it or become aggressive because of it. But I wont ask anyone who shares my views to back me up either. Because I care about ideas not winning an argument. As I said if someone can show me my inner contradictions I will be indebted to him.
Published: January 21, 2010 3:53 AM
Gil
“If IP rights trump my right to use my blank DVD as I wish, then I don’t have full control of my blank DVD now do I?” – DixieFlatline
If I can’t spray a hail of bullets into a crowd of innocent people then I don’t fully own my machine gun.
Published: January 21, 2010 4:46 AM
Peter Surda
Dear pro-IP-libertarian:
> Duplication is not equivalent to production.
Duplication is a metaphor, it is not an empirical phenomenon.
> … the copier would not have the same product.
The only reason that you claim that it is “the same product” is that it appears “too similar” to you, or has the same utility. This is a result of subjective evaluation rather than objective reality.
Published: January 21, 2010 4:56 AM
Peter Surda
Dear pro-IP-libertarian:
> The duplication does effect the creator’s ability to
> use (including sell) his property.
So does the selling of substitutes, finding ways of increasing productivity or criticising the features of the product. It implies that the creator owns his market share.
Published: January 21, 2010 4:59 AM
Peter Surda
Dear pro-IP-libertarian,
> No, IP is scarce …
This is why I dislike the word “scarce”. It leads to confusion. IP is non-rival, consumption does not decrease supply.
Published: January 21, 2010 5:08 AM
Kerem Tibuk
Peter,
“The only reason that you claim that it is “the same product” is that it appears “too similar” to you, or has the same utility. This is a result of subjective evaluation rather than objective reality.”
You keep claiming IP is not part of objective reality unlike a tangible thing, but I don’t think you know what you actually are implying.
You are actually implying that if nobody ever read Harry Potter after Rowling wrote it, it wouldn’t exist. That is a far reach from the fact that if Rowling didn’t exist, Harry Potter wouldn’t exist.
Do you think there is an independent source that proves whether a tangible thing exists or not, other than senses and human mind?
If Harry Potter depends other humans minds to exist, why doesn’t an apple depend on the humans minds to exist?
What qualities of tangible and intangible goods differ regarding their existence?
I said this before.
If you keep going on with this and apply it consistently you will need to reject objective reality in everything including your own existence. Maybe after that you may come to the conclusion that your ability to think proves your existence as a Frenchman did long ago or you may not and wonder if you really exist or not.
Published: January 21, 2010 5:26 AM
Peter Surda
Dear Kerem,
> You keep claiming IP is not part of objective reality
> unlike a tangible thing, but I don’t think you know what
> you actually are implying.
I am afraid it is the opposite. You, who claims IP is a part of objective reality does not understand all the consequences that follow.
> You are actually implying that if nobody ever read
> Harry Potter after Rowling wrote it, it wouldn’t exist.
No. I am implying that, apart from interpretations in people’s heads (whether Rowling or the readers), which are not empirical, Harry Potter does not exist. It is an abstraction, a metaphor, that we use to describe our thought processes.
> Do you think there is an independent source that
> proves whether a tangible thing exists or not, other
> than senses and human mind?
No, I don’t. However, we can assume that there is just one external reality (whether we know it’s features or not) independent of people. Whereas the thoughts of people are specific to each individual and always unique. To claim the contrary would be to allege that all people’s minds are connected in some sort of collective consciousness.
> If Harry Potter depends other humans minds to exist,
> why doesn’t an apple depend on the humans minds
> to exist?
Because apple, should it actually exist, is an external factor. Absent some assumptions, we obviously cannot know whether “the” apple is the same object for separate people, but that would mean each of us live in a different world. Such a theory is useless, we must therefore reject it.
> What qualities of tangible and intangible goods differ
> regarding their existence?
The ones are external, the others internal.
> If you keep going on with this and apply it
> consistently you will need to reject objective reality in
> everything including your own existence.
Yes and no. As I said above, indeed absent certain assumptions we have no way of knowing that external reality is objective. However, that would invalidate a lot of useful things, such as the ability of humans to interact with each other. I am prepared to accept this axiom on the grounds of usefulness and the absence of alternatives. However, I am not prepared to make an assumption that humans share collective consciousness. The alternative sounds perfectly reasonable.
Cogito ergo sum is, in my opinion, indeed sufficient to demonstrate the existence of self. Obviously, one cannot inductively demonstrate the existence of external from this axiom. But again, from the existence of the external, one cannot inductively demonstrate the identity of the internal among different people.
Published: January 21, 2010 6:02 AM
Kerem Tibuk
Peter,
“No. I am implying that, apart from interpretations in people’s heads (whether Rowling or the readers), which are not empirical, Harry Potter does not exist. It is an abstraction, a metaphor, that we use to describe our thought processes.”
Do you think there is a difference between the two proposition that says,
“If Rowling didn’t exist Harry Potter doesn’t exist.”
and
“Even though Rowling already wrote Harry Potter, if any other person didn’t see it it doesn’t exist.
It seems you are equating two different things. I want to make clear if there is a distinction between the two in your mind.
“No, I don’t. However, we can assume that there is just one external reality (whether we know it’s features or not) independent of people. Whereas the thoughts of people are specific to each individual and always unique. To claim the contrary would be to allege that all people’s minds are connected in some sort of collective consciousness.”
Firstly it is a non sequitur to claim that peoples minds must be connected in some sort of collective consciousness, from the possibility of production of exact copies of one thing. One source can be copied endlessly and we can easily claim they are the same as opposed being just similar. Copies are dependent on the source to exist but no collective consciousness is necessary. If we needed the whole society to produce (not reproduce but produce) the source then you might have had a point.
And secondly, even if you think copies are unique in some way that doesnt change the fact that they are dependent on the source. Yes, after associating yourself with Harry Potter, you may form some unique memory or a slightly modified copy of the original in your head but you still need to associate yourself with Harry Potter.
As I have pointed out before, this is the same as taking my apples and making yourself a unique apple pie. Yes you apple pie is unique because you mixed some of your own unique ingredients and other people who take the apples all can make unique apple pies different then yours. But this doesn’t change the fact that you needed my apples to make your apple pie in the first place.
What you are claiming is, because you change the source slightly this negates my ownership all together, but this doesn’t follow causality. My ownership comes first. Copying can come only after and cause comes before the effect, not vice versa.
Also the uniqueness of copies is not applicable to many things. There is nothing unique regarding a illegal copy of a song on your hard drive. The patterns of 0’s and 1’s is exactly the same. And even if you changed the encoding, the result is not unique at all. Some people may prefer to change the source in their copying but many do not want to. They want the exact same movie, or song and of course they dont want to pay for them.
“Because apple, should it actually exist, is an external factor. Absent some assumptions, we obviously cannot know whether “the” apple is the same object for separate people, but that would mean each of us live in a different world. Such a theory is useless, we must therefore reject it.”
IP if it means anything has to be externalized. So that difference is meaningless. And it is also useless to claim that IP is not part of the objective reality. If IP can cause a relevant change in the chain of causality it is part of the objective reality.
“Yes and no. As I said above, indeed absent certain assumptions we have no way of knowing that external reality is objective. However, that would invalidate a lot of useful things, such as the ability of humans to interact with each other. I am prepared to accept this axiom on the grounds of usefulness and the absence of alternatives. However, I am not prepared to make an assumption that humans share collective consciousness. The alternative sounds perfectly reasonable.”
You are making an arbitrary value judgment by claiming the acceptance of objective reality in tangible things are useful but acceptance of IP as a part of objective reality is not useful. There is no objective ( see you can not excape from objective reality) reason for the distinction.
Published: January 21, 2010 6:34 AM
Peter Surda
Dear Kerem,
> Do you think there is a difference between the two
> proposition that says, …
Yes, there is. First of all, both of them can be interpreted in multiple ways, so I need to reformulate them (see below). Furthermore the first one revolves around causality, and the other one around identity. These are two separate issues (as demonstrated on the analogy with a graph with two axes).
> If Rowling didn’t exist Harry Potter doesn’t exist.
The modified version lacking the ambiguity would be: If Rowling didn’t exist, then the books, movies, etc, wouldn’t exist either. This does not prove that she produced an immaterial good, what its extent is and whether she owns it.
> Even though Rowling already wrote Harry Potter, if
> any other person didn’t see it it doesn’t exist.
The modified version would be: Even though Rowling already wrote Harry Potter, each individual’s interpretation of it is unique and distinct from the interpretation that is in Rowling’s head.
> Firstly it is a non sequitur to claim that peoples minds
> must be connected in some sort of collective
> consciousness, …
First of all, you are to a very small extent correct. There is no necessity for a collective consciousness, the alternative would be that all minds work exactly the same way. Again, an unproven and highly doubtful condition.
> … from the possibility of production of exact copies
> of one thing.
The only reason one would have to claim it is exact is that it appears similar enough to him. There is no reason to believe that there is even such a thing as “exact” copy. That’s an unproven assumption (axiom). All the possible measurements available to him undoubtedly show that these are two distinct objects.
> One source can be copied endlessly and we can
> easily claim they are the same as opposed being
> just similar.
The hypothetical existence of exact copy is an axiom. To paraphrase yourself, you pulled it out of your ass. There is no reason for making that assumption, other than you need it for your theory to be valid. The danger of inductive reasoning.
> Copies are dependent on the source to exist but no
> collective consciousness is necessary.
You jump from the issue of identity to the issue of causality. A separate issue, which so far you have not conclusively addressed. I am not addressing the rest of your post dealing with causality, because I deal with that elsewhere. Note, I do not claim that causality never leads to property, rather that it either sometimes doesn’t, or absurd conclusions follow. I reject the causality principle not because it is always false, but because it it sometimes false.
> The patterns of 0’s and 1’s is exactly the same.
Again, this only follows after one accepts the axiom that exactness. Which is, to paraphrase yourself, purely utilitarian and positivistic one.
> IP if it means anything has to be externalized.
This does not actually mean anything. This only means that there is a causal relationship between your thinking and an external object. This does not demonstrate the existence of any external immaterial good. Or, for that matter, the difference between an immaterial good and immaterial externality.
> If IP can cause a relevant change in the chain of
> causality it is part of the objective reality.
Again, this only demonstrates a causal relationship. It does not demonstrate identity.
> You are making an arbitrary value judgment by
> claiming the acceptance of objective reality in
> tangible things are useful but acceptance of IP as a
> part of objective reality is not useful.
This is the problem with inductive reasoning. I create an axiom, but you make three! I make mine that that which is empirically observable is objective. You make the axioms that:
– that which is empirically observable is objective
– that which you think but cannot observe is objective too
– causality is a sufficient condition for ownership
Published: January 21, 2010 7:20 AM
Stephan Kinsella
Kerem Tibuk:
Tibuk, instead of devolving this to boring meta-arguments and distractions, just be civil. So much easier on everyone.
Ha! Thanks for this. You Objectivists just keep helping make yourself look like ridiculous cultist robots. Unbelievable.
That is the reason he provokes Objectivists on IP. He knows Objectivist are sensitive to anarchism and use strong and emotional arguments.
Why, why, how dare I use strong arguments that I know Objectivists won’t like. What am I, some big meanie?
Straw man? It’s a reasonable argument that a huge, state-created legislative scheme that never existed until the state, well, legislated it, would not be, um, legislated in a free society that did not have, um, legislation. Sort of like taxes, antitrust law, and the Patriot Act.
He perfectly knows that I find patent laws unjust and not compatible with property rights which includes IP as legitimate property.
How dare I disagree with an Objectivist!
Oh, I can’t keep you IP fascists’ ad hoc “nuances” straight; there is no coherent reason to oppose patent but favor copyright (see Rand on this), or whatever imaginary system you think you have in your head that you think you think is legitimate.
Also notice when he says “Kerem: yes, so you admit copyright should last forever”. as I didn’t say it outright that there can not be a time limit regarding property rights.
Yes… you admitted you believe in extending copyright to infinity… and I said you admitted it, which was true… and now you are … upset that I truthfully stated a fact. Interesting. I think it’s worth saying you admitted it b/c it highlights to observers how utterly insane is the pro-IP view if you try to take it seriously. So thank you for engaging in your own reductio.
Oh, there are many: pretending you support reason, while arguing like a robotic guppy; pretending you favor property rights, while supporting laws that undermine them; pretending you oppose the state, while favoring the (state) legislation needed to create copyright; favoring copyright but not patent (or do I have your contradiction backwards?); and so on.
Published: January 21, 2010 10:56 AM
Nate Y
Gil says:
“If I can’t spray a hail of bullets into a crowd of innocent people then I don’t fully own my machine gun.”
So you seriously contend that digital media is as dear as a person’s body/life? The world must be a dark place under this mindset. The suffering and violations increase almost infinitely with this outlook.
Published: January 21, 2010 11:14 AM
Magnus
If I can’t spray a hail of bullets into a crowd of innocent people then I don’t fully own my machine gun.
This is wrong, but more importantly, the way in which it is wrong highlights a major source of the errors committed by pro-IP thinking.
It’s a basic principle of freedom that we are all free to do what we want with our property, up to the limit encountered when one interferes with others and their rights.
In this case, the bullets interfere with the peoples’ use of their own bodies, which we can all agree they own. You can in general shoot your own gun however you want, but not in a way that the bullets hit innocent people.
This is because the shooting of the gun and the uses that people make of their bodies are mutually exclusive — people can’t both be (a) healthy and (b) shot, at the same time. The bullets interfere with the use and enjoyment that people make of the bodies. Therefore, peoples’ bodies are, in a sense, rivalrous with flying bullets.
The copying of a book doesn’t interfere with anything other than the author’s market share. The author still has his copy, which he can do with as he wants. Even if the copyist doesn’t sell the copy on the market, the idea behind copyright is that the copy displaces the purchased copy that someone (even the copyist) would have bought, if the desire for the book had not been satisfied with a copy.
There’s no other possible form of interference with uses of property going on when a book (or song or whatever) is copied. The only effect of copying is on the market, or the potential sales, that the holder of the so-called IP right claims he was not able to make.
It should be rather obvious that no one has a property interest in preserving a preferred market share. You don’t own your customers. You don’t have the right to interfere with other vendors’ opportunities to enter the market, and attempt to satisfy people’s market desires with alternative goods and services. Locking out the competition is the essential feature of an un-free market.
None of the pro-IP crowd here has really addressed the nature of rivalrous objects and uses, and how that rivalrousness defines the scope of legitimate property rights.
Also, despite all of Mr. Tibuk’s protestations about being so interested in finding the truth without contradiction, he still has not answered my prior question about his Robinson Crusoe scenario.
Let’s say Friday comes to Crusoe’s island, and is allowed to stay there as a guest of Crusoe for some period of time, during which time Friday reads the short story Crusoe has written, learns to use Crusoe’s unique calendar, and observes Crusoe’s new and creative ways of productive farming and fishing.
But, after a month or so, Crusoe tells Friday to leave, and being a great respecter of property, he does. Friday lands on the next island, where they welcome him openly. Friday then shares with the islanders all that he knows how to do, which is a lot. He shows them how to keep Crusoe’s special calendar, how to fish and farm better, etc. He recites from memory the short story that Crusoe wrote (and let him read), and the islanders incorporate it into their mythology and teach it to their children. Friday then dies of dysentery.
Then, a year or so later, Crusoe paddles over to the second island, and discovers the various uses to which the islanders have put his writings and technologies.
Does Crusoe have the right to use whatever force is necessary to prevent the islanders from farming, keeping a calendar and re-telling the story?
Really? Because that’s what IP is — Crusoe rolling onto an island of people he never met, and busting up the joint because of all the “property” the islanders supposedly stole.
Published: January 21, 2010 2:51 PM
Stephan Kinsella
Gil:
“If I can’t spray a hail of bullets into a crowd of innocent people then I don’t fully own my machine gun.”
The prohibition on your shooting bullets is not a limitation on your ownership of your gun. It’s a limitation on what action you can perform–whether the action uses your own gun and bullets or those of another person. Ownership has nothing to do with hit. (See my comments here.) The reason I may not shoot people (with whatever gun) is just a specific application of the genernal notion that I may not act so as to cause the invasion of the borders of another’s property; I may not invade their property borders; I may not interfere with the physical integrity of their property; I may not use their property without their consent. I may not trespass. All these things are actions that employ some means, of course, but the means need not be owned by me, and it is irrelevant whether they are (see also Intellectual Property and the Structure of Human Action). So the prohibition on my action is a result of presupposing the validity of property rights in scarce resources.
For you to make an analogous case about IP, to argue that my putting a pattern on my own DVD may also be prohibited, you have to argue that the action itself is trespass. That is, that my impatterning my own DVD somehow invades the borders of someone else’s property right.
There are only two ways this is so. First, if the DVD is not my property. But this is false, per assumption. The other way is if my action somehow invades the borders of some other scarce resource that another person owns. But clearly it does not. I am not interfering whatsoever in your abiltiy to use your own body and resources.
The only remaining way out of this is to say well, it doesn’t trespass against any physical property you own, but it does trespass against your property in a certain idea, since it prevents you from using and exploiting that abstract, disembodied idea as you see fit–it uses the idea without your permission. And this is true. It does use the idea without your permission. But this is only trespass if you own the idea. Which is the question under consideration when IP rights is debated: so it’s merely a circular, question-begging assumption. It is a totally invalid argument.
Published: January 21, 2010 2:59 PM
Silas Barta
Any argument that merely involves relabeling things is an automatic fail.
(Which includes the quoted one above)
If I can’t do X with my machine gun, that is a limitation on my right to use the machine gun. It doesn’t matter if it arises from someone else’s rights, or the lack of a specific right to do X.
If you want to make a crucial, insightful argument, these relabeling tricks just don’t work.
Published: January 21, 2010 3:16 PM
Stephan Kinsella
Person,
Silas, the trick is in people who say that there is nothing wrong with IP’s infringement of property rights since after all, your property rights are limited in all sorts of ways. This is a common argument; and it is wrong.
The reason I am not able to use my bullets to kill you is because using them in this manner invades the borders of your own property–your body. Using my blank DVD to impattern it in a certain way, however, does not use your body or other scarce resources, so you can’t say the two limitations are analogous. To make them analogous you have to presuppose that you own the pattern itself, which is question-begging.
Now do you get it?
Published: January 21, 2010 3:50 PM
Peter Surda
Grudgingly, I have to agree with Silas. The argument presented this way is circular. It might be in future possible for me or someone else to “fix” this problem, however so far the approach has failed.
There is a slightly similar issue however, one that Silas has failed to address. The only way to conclude that trespass in IP occurred is to observe the trespasser. With rival goods, including EM transmissions, this is not necessary, because a trespass on those leads to an observable change occurring at objects in the rightful owners’ possession or at their premises. For example, a stolen car is observable by the lack of the car in the parking space. EM inteference is observable by receiving a different wave than the one expected.
Besides the practical question of how to monitor everyone, there is a more fundamental problem. If the only way to conclude trespass is that the trespasser performs a certain action (regardless of his location), any action whatsoever can be claimed to be a trespass. Why is “copying” singled out as the only action that leads to such conclusion? Why not any writing? Why not any attempt to create a machine, or a drug? Why not laying on one’s bed? Or blowing one’s nose?
Published: January 21, 2010 3:59 PM
Stephan Kinsella
Surda, what argument is circular? I disagree, if you are talking about mine about action etc. To say an action (or use of property, whatever) is prohibited because it infringes on the property of others, in typical cases such as trespass, does indeed presuppose the validity of property rights in scarce resources. It presupposes only that invasion of the borders of others’ owned scarce resources, is prohibited. Thus, if we assume both sides to the debate accept this, it does not follow that we have to accept that it’s okay to prohibit a use of property that does NOT amount to such trespass. This argument is not circular in the slightest. The argument simply points out that B does not follow from A.
Published: January 21, 2010 4:28 PM
Russ
I think that Gil’s point was; normal property rights also imply limitations on what others can do with their own property. Any right implies and imposes an obligation on others. That is why we should be so careful about discovering or inventing new “rights”, because every right involves a duty. That duty may be positive, or negative, but it is still there, lurking under the surface like the Loch Ness monster.
EM spectrum rights infringe on peoples’ normal property rights, so by a strict application of normal property rights, we’d have to forego the usefulness of radio broadcasts as well. The only ways you can get around this problem are by 1) pretending that you’re homesteading something real, and so pretending that EM spectrum rights are the same as normal property rights, or 2) extending the concept of property to include exclusive use of EM spectrum.
Similarly, any meaningful IP would have to extend the concept of property past that of (normal property+EM spectrum) rights. Arguing that IP is wrong because it violates normal property rights misses the whole point. When we debate IP, what we are debating is whether the concept of property should be extended past normal property rights or not.
I think this opens up the concept of IP as conceivable, but it is not enough to justify it on its own. Something more is needed. I don’t believe that Silas’ IP=EM argument is sufficient to justify IP for reasons I went into in the last thread. I don’t think it’s any better than EM=normal property arguments.
Published: January 21, 2010 4:46 PM
Bala
Stephan,
” Why, why, how dare I use strong arguments that I know Objectivists won’t like. ”
No. The problem is that Objectivists find your arguments flawed at their root (as I do too). I have said this before and I repeat that now – You are (in effect) assuming that only scarce (and hence physical) entities can be “property” in order to “prove” that ideas and patterns cannot be “property”.
I have no love lost for Kerem Tibuk and find his “arguments” flawed at their root (as I find yours), but to use his flaws to hide your own is not very helpful.
Published: January 21, 2010 6:28 PM
Russ
Bala wrote:
“…You are (in effect) assuming that only scarce (and hence physical) entities can be “property” in order to “prove” that ideas and patterns cannot be “property”.”
I agree, Stephan. In Randian terms, you are smuggling in as an assumption that which is to be proved; that only scarce goods can qualify as property. In your own terms, you’re begging the question, every bit as much as you accuse others of doing.
And in order to save EM rights, you assume that EM communication channels are goods, when really they are just an abstraction; they are no more real than patterns are.
Published: January 21, 2010 7:00 PM
pro-IP-libertarian
Mashuri-
Talk about a straw man. A more accurate analogy would be you parking your herd of llamas on your own front lawn, with me then knocking on your door demanding a royalty because I parked a herd of llamas on my front lawn before you.
That’s a stretch. Just illustrating how exclusion applies to this debate.
What’s really great is you thinking you should be able to copy and sell someone else’s work because it “isn’t scarce”. Yet somehow you are able to profit by selling it (Huh? Thought it wasn’t scarce.) and you mysteriously only want to copy theirs, not someone who doesn’t object from the limitless supply. (Huh? If it isn’t scarce why can’t you just copy from someone that doesn’t care about you copying?)
Published: January 21, 2010 10:39 PM
pro-IP-libertarian
Russ-
In the context of IP, or anything else property-related, I understand “scarce” to mean that the item in question cannot be used at the same time by more than one person. In this sense, IP is not scarce, since more than one person can use it simultaneously.
This is additional framing to support the “duplication is production” framing. Exclusion is a big component of other forms of property, like the real estate and radio frequency examples we discussed. If we took exclusion away from those forms of property all kinds of serious problems would result. You homestead real property so you can exclude others and profit/use/etc. You homestead intellectual property so you can exclude and profit/use/etc. as well.
And don’t tell me that this isn’t true, because the creator cannot sell it as he intended if others copy it. I’ve addressed that before. That is not “use”; that is a business plan. A creator has every right to expect that he will be able to use his creation. He does not have every right to expect that he will be able to make a lot of money by monopolizing the right to copy it.
And you can still use you beach house, just walk around the llamas and their droppings. It doesn’t matter if you want to make it a bed and breakfast and profit that way – that’s just your “business plan”. You just need to think of a better one. I’m sure with the right business plan you’ll be able to find guests that don’t mind llama droppings.
Homesteading in real property has a natural rights foundation, homesteading in intellectual property does as well.
Published: January 21, 2010 10:57 PM
Russ
pro-IP-libertarian wrote:
“What’s really great is you thinking you should be able to copy and sell someone else’s work because it “isn’t scarce”. Yet somehow you are able to profit by selling it (Huh? Thought it wasn’t scarce.)”
Ummm… if you’re talking about something like a downloaded file, then why would anyone want to buy it from me after I download it? They could just as easily download it themselves.
If you’re talking about copying an idea for an invention, then my selling would be selling *material* in the form of the invention, not just the idea itself. After all, anybody could also copy an idea, just as they could copy a file. And the *material* that I would sell is scarce, even by your standards, I would hope.
“…and you mysteriously only want to copy theirs, not someone who doesn’t object from the limitless supply. (Huh? If it isn’t scarce why can’t you just copy from someone that doesn’t care about you copying?)”
Huh? You’re making no sense now.
Before, you mentioned a “tree of infinite IP”. Even if there were such a thing, you’d still have to go to the tree to pluck ideas. Instead, the “tree” is the inventor; he doesn’t have infinite IP, but maybe a few good ideas. So instead, to copy an idea, a person has to go to him (or rather, his inventions). That doesn’t make the IP scarce. It makes the “trees” scarce.
I really don’t get this supposed moral objection to “stealing” an idea from somebody. When a person makes a material object, he may put a lot of work into it, just as a creator of IP would. Then he sells it and makes money off it. Once. Why can’t it be the same with IP? Why must an IP creator be allowed to sell his creation over and over again? After all, a creator of a material object only gets to sell it once.
Published: January 21, 2010 10:58 PM
Russ
pro-IP-libertarian wrote:
“You homestead intellectual property so you can exclude and profit/use/etc. as well.”
No. Normal property requires exclusivity to be used or possessed. But IP doesn’t require exclusivity for it to be possessed or used in a direct sense. If I am reading an ebook, for instance, that does not stop you from reading the ebook as well. Profit from monopoly selling of IP would require exclusivity; but profit is not a use, it is a desired outcome.
“And you can still use you beach house, just walk around the llamas and their droppings. It doesn’t matter if you want to make it a bed and breakfast and profit that way – that’s just your “business plan”. You just need to think of a better one. I’m sure with the right business plan you’ll be able to find guests that don’t mind llama droppings.”
Ah. But what if another person wants to “use” my beach house by tearing it down, dumping it into a land fill, and building a putt-putt golf course there? There cannot be a beach house and a golf course on the same exact stretch of land. This material possession must be held exclusively to get my desired use out of it. It is a “rivalrous” good. IP is not.
It is as if you decide you like my beach house property, so use your Copy-anator (made by Doofenschmirtz Evil Incorporated, TM, Patent Pending), and instantly you are teleported to some parallel dimension where my beach house property is still there, but I’m not. You then tear down *your* new beach house, put up the putt-putt golf course, and I could not rightly object, because that does not deny me the use of my copy of the beach house property. If I should complain that I should be able to use the force of law to prevent you from using your Copy-anator, because I wanted to sell my beach house property to you for a profit, well… that’s tough for me. Who ever said that you are obliged to buy my property, when you could simply Copy-anate it?
“Homesteading in real property has a natural rights foundation, homesteading in intellectual property does as well.”
No. You’re ignoring the differences in nature of normal property and IP. Since their natures are so different, the rights attaching to them must be different too.
Published: January 21, 2010 11:17 PM
pro-IP-libertarian
Russ-
Ummm… if you’re talking about something like a downloaded file, then why would anyone want to buy it from me after I download it? They could just as easily download it themselves.
Just convenience, possibly liability. Like those guys that sell bootleg DVDs on the street.
If you’re talking about copying an idea for an invention, then my selling would be selling *material* in the form of the invention, not just the idea itself. After all, anybody could also copy an idea, just as they could copy a file. And the *material* that I would sell is scarce, even by your standards, I would hope.
Duplication still isn’t equivalent to production. You are simply claiming a more substantial copying equals production. The invention wouldn’t exist (in this form) without the actual production of the creator.
Before, you mentioned a “tree of infinite IP”. Even if there were such a thing, you’d still have to go to the tree to pluck ideas. Instead, the “tree” is the inventor; he doesn’t have infinite IP, but maybe a few good ideas. So instead, to copy an idea, a person has to go to him (or rather, his inventions). That doesn’t make the IP scarce. It makes the “trees” scarce.
Not necessarily. It makes good “trees” or inventors – and by extension their creations – scarce. Remember the music file example – there are plenty of free music services out there, yet still people want to copy the protected music because it is of good quality.
I really don’t get this supposed moral objection to “stealing” an idea from somebody. When a person makes a material object, he may put a lot of work into it, just as a creator of IP would. Then he sells it and makes money off it. Once. Why can’t it be the same with IP? Why must an IP creator be allowed to sell his creation over and over again? After all, a creator of a material object only gets to sell it once.
This reaches to the idea of IP as intellectual homesteading. And also the concept that duplication does not equal production. The creator creates (homesteads) something that did not exist before, the duplicator duplicates something that already did.
As far as profit is concerned, why should you be able to rent out your beach house again and again? It’s because you have invested your time and/or capital in the property, you own it, and you have a right to exclude. And that’s why it’s akin to stealing if I park my llamas on it and prevent you from using it.
———
Anyone else concerned-
Won’t be able to respond anymore right now. Will try to get to other comments and responses later if people are still following the thread.
Published: January 21, 2010 11:26 PM
Russ
pro-IP-libertarian wrote:
“Duplication still isn’t equivalent to production. You are simply claiming a more substantial copying equals production. The invention wouldn’t exist (in this form) without the actual production of the creator.”
Well, yes and no. In one sense, duplication is equal to production. When GM or Ford *produce* cars, they’re not re-inventing every car. But I know what you mean. A duplicator doesn’t have to undergo the same labor as the original inventor, writer, whatever. I agree. My answer is a resounding… So what?
“The invention wouldn’t exist (in this form) without the actual production of the creator.”
Yes, I agree. Again, so what?
“It makes good “trees” or inventors – and by extension their creations – scarce. Remember the music file example – there are plenty of free music services out there, yet still people want to copy the protected music because it is of good quality.”
OK (although part of the reason for this is simply because radios don’t play these bands, so people don’t know about them, not because they’re not good). Anyway, even if you were right, so what?
“The creator creates (homesteads) something that did not exist before, the duplicator duplicates something that already did.”
You guessed it; so what? Calling it homesteading does nothing for me. I think “intellectual homesteading” is a legal fiction, just like I think EM spectrum homesteading is.
Your argument does nothing to sway me. Call me immoral if you want to, I don’t care. If you want to sway me, you’re going to have to come up with a consequentialist argument to the effect that without IP, everyone (or at least pretty much everyone) will be worse off. Then I will be willing to accept the fiction of intellectual homesteading, just as I do the fiction of EM spectrum homesteading.
Published: January 21, 2010 11:40 PM
Kerem Tibuk
Russ,
“I really don’t get this supposed moral objection to “stealing” an idea from somebody. When a person makes a material object, he may put a lot of work into it, just as a creator of IP would. Then he sells it and makes money off it. Once. Why can’t it be the same with IP? Why must an IP creator be allowed to sell his creation over and over again? After all, a creator of a material object only gets to sell it once.”
Do you have a problem with conditional exchange, otherwise known as “renting”? Do you not think it is a valid exchange? Do you claim if a person rents some property all the conditions regarding the use of that property (including a time limit where he returns the property) is invalid? And do you think it is somehow wrong for a property owner to gain benefit from his property over and over again by keep renting it?
And on this issue tangible and intangible property is not different. IP is both rented and sold once, depending on occasion. If you buy a copy of Harry Potter, you are actually renting it on certain conditions. And you pay 10 dollars for it.
If you want Rowling to sell it only once, you could buy the whole property rights of Harry Potter but I dont know how many billions of dollar she would ask.
I amazed to see people never ever, put a tangible property in the place of IP and try to think if it made sense while theorizing on IP. Silas Barta sometimes points this out to no avail.
Published: January 22, 2010 12:44 AM
Kerem Tibuk
“Surda, what argument is circular? I disagree, if you are talking about mine about action etc. To say an action (or use of property, whatever) is prohibited because it infringes on the property of others, in typical cases such as trespass, does indeed presuppose the validity of property rights in scarce resources. It presupposes only that invasion of the borders of others’ owned scarce resources, is prohibited. Thus, if we assume both sides to the debate accept this, it does not follow that we have to accept that it’s okay to prohibit a use of property that does NOT amount to such trespass. This argument is not circular in the slightest. The argument simply points out that B does not follow from A.”
How is, “IP is not valid because it infringes on the property rights of others” is an independent argument when it depends on the never proven but often assumed assertion that only scarce things can be property?
Published: January 22, 2010 12:49 AM
Kerem Tibuk
Magnus,
“It’s a basic principle of freedom that we are all free to do what we want with our property, up to the limit encountered when one interferes with others and their rights.”
Yes your copying of my movie on your dvd interferes with my property rights regarding the movie.
Just like you taking my apples and mix them with your property, sugar flour what not, and bake an apple pie.
Apples are property and IP isn’t you say?
Welcome to circularity. Otherwise known as assuming your conclusion.
Published: January 22, 2010 12:55 AM
Kerem Tibuk
Kinsella,
“Regarding the civility of arguments on this blog please follow the link and read the exchanges between “Lord Buzungulus, Bringer of the Purple Light” “Silas Barta” and Kinsella’s reaction to the whole exchange as both a part of argument and a moderator.
Tibuk, instead of devolving this to boring meta-arguments and distractions, just be civil. So much easier on everyone.”
This is not a meta argument or a distraction. My civility has been questioned here and I showed the precedent that was set by you regarding the civility of arguments. Anyone who cares about civilty of debate here can go and check the exchange I linked.
What you want actually is not civility but respect and I must say that is a very optimistic wish.
“I don’t want this to turn into a personal thing but Kinsella and I go back a while. He has some moral failings but I wont get into those.
Ha! Thanks for this. You Objectivists just keep helping make yourself look like ridiculous cultist robots. Unbelievable.”
I am not an Objectivist. Although I respect Rand very much I know she was a bitter and unpleasant person (probably because of her life experiences) and also she was wrong on anarchy, IP and some other things. I am a natural law libertarian, and austrian an cap and if needed I prefer to be called Rothbardian.
Also your attitude against Objectivist only shows your character. Your trying to ridicule and gang up on Objectivist is not different then neo cons ganging up on Ron Paul.
“Oh, I can’t keep you IP fascists’ ad hoc “nuances” straight; there is no coherent reason to oppose patent but favor copyright (see Rand on this), or whatever imaginary system you think you have in your head that you think you think is legitimate.”
Why don’t you see Rothbard on this. Stranger just quoted from MES above that show exactly why you would oppose patents but favor copyrights. You care more about what Rand thinks then Rothbard, and I am the Objectivist?
“Yes… you admitted you believe in extending copyright to infinity… and I said you admitted it, which was true… and now you are … upset that I truthfully stated a fact. Interesting. I think it’s worth saying you admitted it b/c it highlights to observers how utterly insane is the pro-IP view if you try to take it seriously. So thank you for engaging in your own reductio.”
English is not my mother tongue, but I thought “admitting” meant “finally coming clean after an effort to hide something”. That is your straw man. When I say outright what I meant, you still have the nerve to call that admitting as if you caught me.
“Oh, there are many: pretending you support reason, while arguing like a robotic guppy; pretending you favor property rights, while supporting laws that undermine them; pretending you oppose the state, while favoring the (state) legislation needed to create copyright; favoring copyright but not patent (or do I have your contradiction backwards?); and so on.”
These are just you assertions and nothing else. If you think that these are pointing out contradictions you have a long way to go to reach intellectual maturity.
Now, why don’t you call on your fellow IP socialists to an Objectivist blog so they can get your back while you aggravate them?
Published: January 22, 2010 1:11 AM
Nate Y
Kerem Tibuk ,
Well at least you acknowledge that, under IP, nobody really buys, sells, exchanges, or trades. Nope. Under the crappy notion of IP, everybody rents. All exchanges come with strings attached. And the strings eventually become chains.
The fact that you can’t see how this actually undermines property rights is astounding. The answer is right in front of your face man! You’re saying it. You’re using an argument that destroys the notion of IP (under IP essentially everything is rented or comes with conditions) in order to support it. Unreal. This is like someone arguing that the inability to calculate under Socialism actually strengthens the case for Socialism.
Published: January 22, 2010 1:20 AM
Kerem Tibuk
Well Nate if you do not want strings attached, just dont associate with yourself with people who wants strings attached.
Or do you think you have right to IP, produced by other individuals?
Also many IP is exchanged not rented. Very good and valuable IP is expensive so the volume of exchange is low and the volume of rent is high. But you can find a new coming talentless author and buy his IP for a relatively low price.
I can find you the novel Jimmy Cricket and get all the rights for a penny, but you want Harry Potter dont you? And you dont want to pay do you?
Published: January 22, 2010 1:31 AM
Kerem Tibuk
A better analogy is of course software.
You can get linux for free but you want Windows and you argue that you have right to Windows.
Why is that Nate?
Published: January 22, 2010 1:33 AM
Peter Surda
Dear pro-IP-libertarian,
> Exclusion is a big component of other forms of
> property, like the real estate and radio frequency
> examples we discussed.
The reason for this has nothing to do with property rights. It is the result of rivalry: exclusion is a necessary condition for the ability to use and trade the good. This principle exists regardless of the legal system. However, with non-rival goods, this principle is absent, and is artificially mimicked by the legal system.
> If we took exclusion away from those forms of
> property all kinds of serious problems would
> result.
Indeed, because these problems are the result of natural features of rival goods. Yet, if we took away exclusion from non-rival goods, apart from some revenue redistribution and some business models becoming unprofitable there are no other negative effects and a plethora of positive ones. The same results would occur when any artificial monopoly or redistribution scheme were cancelled.
Published: January 22, 2010 1:42 AM
Kerem Tibuk
Peter,
“The reason for this has nothing to do with property rights. It is the result of rivalry: exclusion is a necessary condition for the ability to use and trade the good. This principle exists regardless of the legal system. However, with non-rival goods, this principle is absent, and is artificially mimicked by the legal system.”
The relationship between an individual and the property he homesteads, doesn’t depend on the nature of the property but only on the nature of humans.
Why?
Because an effect can not come before the cause and homesteading, acquiring of property must necessarily come before any arbitrary conditions, thought of, argued, debated or put forth regarding the property owner and his property.
Otherwise you would reach absurd conclusions.
Like Peter claims exclusion can only be natural and not based on the decision of the owner. But this implies in the case of abundance of tangible goods, the owner, since there is really no need for natural exclusion, loses his right on the property.
Imagine Crusoe and Friday. Crusoe worked so efficient and became so productive that he produced tangible goods more than he can possibly consume. And Friday just sat lazily.
If Peters argument were true, then Crusoe would lose his ownership over the goods that he can not consume and Friday could claim that, just as Peter did. Because there would be no natural rivalry regarding the portion that exceeds Crusoe’s ability to consume other than “the artificial” rivalry initiated by Crusoe’s whim. If you are full to the point that you are going to explode if you ate more, then you are not a rival for the pie that is sitting on the table.
Of course Peter uses the concepts “trade and use” when he says “It is the result of rivalry: exclusion is a necessary condition for the ability to use and trade the good” and he thinks he has a escape route.
But “use” is a very subjective verb. What is “use”?
When an IP owner still has all the rights and no one copies his IP, can’t we say that in that exact state he is “using” his property, and unauthorized copying prevents him from that exact “use”?
Or even with trade.
If the ability to trade is an important aspect,
Why is it different, when one can not trade a good when he is physically deprived of it, and when can not trade when the copies flood the market? Ability to trade depends on people valuing the good you want to trade, as much as it depends having the good to trade.
Published: January 22, 2010 3:16 AM
Peter Surda
Dear Stephan,
any theory of property restricts the way some people may act. And, if you have two theories that draw the property boundaries differently, each can claim of the other that it limits the way one can use their property. I think you are misled by the distinction between the material and immaterial. From the “meta-theoretical” point of view, there is no reason why this should be relevant.
That being said, extending property into the immaterial creates a lot of questions and ambiguity which the proponents thereof need to address. Again, from the “meta theoretical level”, there is no reason to assume that exclusivity is an inherent feature of property, that there is such thing as the identity of immaterial goods, that causality always leads to property, that immaterial goods objectively exist despite not being empirically observable and that there is an objective way to define what “copying” is. There are other issues too, but these are my chief objections and so far the IP proponents have failed to provide a satisfactory explanation for any of them. In some individual cases, an IP proponent agrees with me that this or that claim is indeed unfounded.
Published: January 22, 2010 3:33 AM
Peter Surda
Dear Kerem,
> The relationship between an individual and the
> property he homesteads, doesn’t depend on the
> nature of the property but only on the nature of
> humans.
This is either incorrect or at least misleading.
> Because an effect can not come before the
> cause and homesteading, acquiring of property
> must necessarily come before any arbitrary
> conditions, thought of, argued, debated or put
> forth regarding the property owner and his
> property.
This makes no sense to me. Of course the relationship depends on the features of the property. You probably mean that some aspects of the relationship do not depend on the features of the property. This is correct, but again which are those that depend and those that do not? You arbitrarily say that exclusivity is the one that does not depend. There is no reason to make this conclusion, unless you need it for you theory to be valid.
> Otherwise you would reach absurd conclusions.
Please elaborate.
> … this implies in the case of abundance of
> tangible goods, the owner, since there is really no
> need for natural exclusion, loses his right on the
> property.
This is incorrect on several levels, I’ll begin from the end. Your analogy is not a proper match, because in the case of non-rival goods, nobody loses a right. Rather, he never acquires the right to that part that is “stolen” in the first place. It is a homesteading of the unowned by the “thief”. The other reason for the incorrectness is that abundance is a subjective matter. We have no way of knowing if currently the owner considers the resource to be abundant, and if this doesn’t change in the future. Indeed, even if the owner said that he considers it abundant, we have no way of guaranteeing that the abundance is a permanent state of affairs. The third reason is that it is only your interpretation that leads you to the conclusion that the “stolen” part is identical to (or a subset of) that which he already owns. This is not an observable occurrence. As I said several times and you failed to address, this only follows from another axiom whose only reason for being is that you need it for your theory to be correct.
> But “use” is a very subjective verb. What is “use”?
This is a very interesing remark from someone who bases his assumptions on the very subjective verb of “copying”.
Indeed, you are correct. “Use” is subjective. You might recall that I said that with regards to immaterial goods, “use” is a metaphor because we cannot observe it. Even with rival goods, “use” is sometimes subjective and metaphoric. But in order for my theory to be correct, we do not need to determine the “upper” boundary (beyond which there is no use), rather the “lower” boundary (before which use is certain). However, because you base your theory on exclusivity, you need to determine the upper boundary. I claim that this is impossible. You would need to show the point beyond which causality ceases to lead to property, something that you so far avoided.
> Why is it different, when one can not trade a
> good when he is physically deprived of it, and
> when can not trade when the copies flood the
> market?
Why indeed? Because in order for the trade to actually occur, both parties need to agree. The absence of agreement of one party leads to non-occurrence of the trade. It is not the non-occurrence of the trade per se that constitutes a right violation, rather only the non-occurrence of the trade despite the presence of a bilateral agreement.
Published: January 22, 2010 4:07 AM
Kerem Tibuk
Peter,
“> The relationship between an individual and the
> property he homesteads, doesn’t depend on the
> nature of the property but only on the nature of
> humans.
This is either incorrect or at least misleading.
> Because an effect can not come before the
> cause and homesteading, acquiring of property
> must necessarily come before any arbitrary
> conditions, thought of, argued, debated or put
> forth regarding the property owner and his
> property.
This makes no sense to me. Of course the relationship depends on the features of the property. You probably mean that some aspects of the relationship do not depend on the features of the property. This is correct, but again which are those that depend and those that do not? You arbitrarily say that exclusivity is the one that does not depend. There is no reason to make this conclusion, unless you need it for you theory to be valid.”
Well Peter this is the danger of inductive reasoning.
There is a natural thing called property. It is not a fantasy that we cooked up. We are analyzing after the fact. And it is a common mistake to get lost and forget what actually really happens when you sit down and theorize on it.
Property must necessarily come out of homesteading. And for this to happen only one individual is needed. Crusoe, comes across a nature given resource and starts changing its nature and using it to stay alive. This way he start a relationship with the property he homesteads.
This part is not a wishy washy theory, and not something that we wish to happen but what actually happened, and still happens at some parts of the world. And all the natural law dictates is this process above.
Now after homesteading another human comes across the individual and his property.
This individuals, Friday’s, arrival doesn’t, or shouldn’t change the relationship of Crusoe and his property. In fact it is what we call liberty if it doesn’t. Fridays action that are against the wishes of Crusoe, regarding the relationship between Crusoe and his property is what is called “aggression” and there is no objective definition of aggression other than this.
Why?
Because establishment of the relationship between Crusoe and his property, the homesteading, doesn’t rely on Friday or any other person. It is natural outcome of the interaction of an individual and a nature given resource..
Up to this part there is no need to establish a difference between the tangible and the intangible or scarce or non scarce. It doesn’t matter for the property to be an apple or a poem.
So any other condition regarding the legitimacy of property is purely arbitrary and irrelevant, and against the nature of property.
“> … this implies in the case of abundance of
> tangible goods, the owner, since there is really no
> need for natural exclusion, loses his right on the
> property.
This is incorrect on several levels, I’ll begin from the end. Your analogy is not a proper match, because in the case of non-rival goods, nobody loses a right.”
By the concept of “non-rival good” you are assuming your conclusion. Crusoe’s tangible property that is above the level of his consumption is a non-rival good as much as a novel is non-rival good. That is actually my point.
“Rather, he never acquires the right to that part that is “stolen” in the first place. It is a homesteading of the unowned by the “thief”.”
Are you denying the fact that a person, before sharing it with anyone else, can not acquire, or posses or own the poem he thought of? Then what is the meaning of these acquire, posses and own? And why can a person acquire a tangible but not intangible. Are we assuming our conclusion again?
“The other reason for the incorrectness is that abundance is a subjective matter. We have no way of knowing if currently the owner considers the resource to be abundant, and if this doesn’t change in the future. Indeed, even if the owner said that he considers it abundant, we have no way of guaranteeing that the abundance is a permanent state of affairs.”
Abundance of tangible goods are as subjective as non scarcity of IP. The essence of non scarce or non rival, is the fact that “the producer does not lose anything”. Well in the case of abundance the owner of the tangible goods do not lose anything either. We can even say he didn’t even own the excesses by the way of your thinking because he had no way of consuming or using it other than the subjective feeling which also would be true for IP:
“The third reason is that it is only your interpretation that leads you to the conclusion that the “stolen” part is identical to (or a subset of) that which he already owns. This is not an observable occurrence. As I said several times and you failed to address, this only follows from another axiom whose only reason for being is that you need it for your theory to be correct.”
I don’t really want to get into this because you are literally denying the concept of copying, and I don’t know what to say to that. Copying is an objective concept and it is very much possible and the essence of this great IP debate is the possibility of copying.
You keep claiming that “you are not actually copying because we have no empirical evidence of the exactness” but I can say a similar thing regarding tangible property,
“You can not actually claim the apple I took from you to be stolen from you because you can never be sure or empirically show that it was in deed the same apple. It only looks very similar to you”
“> But “use” is a very subjective verb. What is “use”?
This is a very interesing remark from someone who bases his assumptions on the very subjective verb of “copying”.
Indeed, you are correct. “Use” is subjective. You might recall that I said that with regards to immaterial goods, “use” is a metaphor because we cannot observe it. Even with rival goods, “use” is sometimes subjective and metaphoric. But in order for my theory to be correct, we do not need to determine the “upper” boundary (beyond which there is no use), rather the “lower” boundary (before which use is certain). However, because you base your theory on exclusivity, you need to determine the upper boundary. I claim that this is impossible. You would need to show the point beyond which causality ceases to lead to property, something that you so far avoided.”
Copying is a very objective and definable concept unlike use but I have already dealt with this.
The rest I can not understand you point. You need to elaborate.
“> Why is it different, when one can not trade a
> good when he is physically deprived of it, and
> when can not trade when the copies flood the
> market?
Why indeed? Because in order for the trade to actually occur, both parties need to agree. The absence of agreement of one party leads to non-occurrence of the trade. It is not the non-occurrence of the trade per se that constitutes a right violation, rather only the non-occurrence of the trade despite the presence of a bilateral agreement.”
That is not the only requirement for trade to occur as I have said. For you to only focus on one show you are trying to find justifications for a conclusion you have already reached.
Published: January 22, 2010 6:00 AM
Peter Surda
Dear Kerem,
> There is a natural thing called property.
Before there is property, there is the physical. Property requires people. The physical does not. Again, you are making an assumption although there shouldn’t be any need to.
> It is not a fantasy that we cooked up.
You consider this axiom to be relevant. I don’t.
> We are analyzing after the fact. And it is a
> common mistake to get lost and forget what
> actually really happens when you sit down and
> theorize on it.
As you like to say with regards to other people’s theories, you are assuming what you want to prove.
> Property must necessarily come out of
> homesteading.
This does not determine the scope and conditions of homesteading. This is just rephrasing.
> And for this to happen only one individual is
> needed.
Again, this is just rephrasing. This does not explain anything.
> Because establishment of the relationship
> between Crusoe and his property, the
> homesteading, doesn’t rely on Friday or any other
> person.
From my point of view, this is competely irrelevant (unlike e.g. Jay who argues with you about this). However, the features of that which you want to homestead indeed influence the aspects of the homesteading and the property.
> Up to this part there is no need to establish a
> difference between the tangible and the intangible
> or scarce or non scarce. It doesn’t matter for the
> property to be an apple or a poem.
There already is one before even the people exist. If a horse eats an apple, that makes the apple uneatable by other animals. However when crows clap their beaks (to use Deefburger’s example), it does not prevent other crows from clapping their beaks in a similar manner. If they are in proximity to each other, they might get annoyed, just like some people do when others “steal” their books, but it does not mean that there is some inherent exclusive aspect in the clapping.
> So any other condition regarding the legitimacy
> of property is purely arbitrary and irrelevant, and
> against the nature of property.
Already your condition of a human existing is arbitrary.
> By the concept of “non-rival good” you are
> assuming your conclusion.
I do not comprehend this. Are you denying that some goods are non-rival?
> Crusoe’s tangible property that is above the level
> of his consumption is a non-rival good as much
> as a novel is non-rival good. That is actually my
> point.
I can only repeat myself. The conclusion is subjective. We have no way of knowing whether this is true and even if it was, if it’s permanent.
> Are you denying the fact that a person, before
> sharing it with anyone else, can not acquire, or
> posses or own the poem he thought of?
I do not deny this. However, I deny that this also means that he acquires and possesses other poems. You are assuming this does, you are assuming your conclusion.
> Then what is the meaning of these acquire,
> posses and own? And why can a person acquire
> a tangible but not intangible.
See above. They indeed can. However, this does not magically extend to anything else beyond that which is in his head. Just like ownership of an apple in my hand does not magically extend to the apple that another person is holding in his hands.
> Abundance of tangible goods are as subjective as
> non scarcity of IP.
Kindly consult my previous posts for a demonstration that they aren’t. Alternatively, read below.
> The essence of non scarce or non rival, is the
> fact that “the producer does not lose anything”.
Incorrect. That would be the value theory of property. Non-rivalry is defined in that the supply does not decrease through consumption. Not the value of the supply.
> I don’t really want to get into this because you are
> literally denying the concept of copying, and I
> don’t know what to say to that.
You don’t need to say anything, rather you can spend your time thinking about this. Try to apply your deductive reasoning to somehow come to the conclusion that identity of immaterial goods exists. Otherwise, it’s just an unfounded assumption. Or try to come up with a way of distinguishing “similarity” and “identity” that is different from “they appear so to me”.
> Copying is an objective concept …
I have said several times that if the only way to distinguish copying from non-copying is the thought processes of a specific person, then it cannot be objective. Furthermore I showed you examples where inded only the thought process of a single person determines whether something is a copy or not. Do you have trouble following this argumentation or are you rejecting it merely due to cognitive dissonance?
> … and it is very much possible and the essence
> of this great IP debate is the possibility of copying.
This whole claim rests on an unfounded, utilitarian and positivistic assumption.
> You can not actually claim the apple I took from
> you to be stolen from you because you can never
> be sure or empirically show that it was in deed the
> same apple. It only looks very similar to you.
You concentrate on a very minor aspect of the problem and miss the bigger picture. If you steal an apple, subsequently to that I observe the absence of the apple in the place where it was before. There is no need to know whether my neighbours hold an apple in their hands or what some arbitrary person on the other side of the planet was thinking. This of course is insufficient to determine who the thief was, but a theft (or a natural phenomenon leading to depletion of my resources) occurred nevertheless.
> Copying is a very objective and definable concept
> unlike use but I have already dealt with this.
“Copying” is just as arbitrary as “use”.
> The rest I can not understand you point. You
> need to elaborate.
This is odd, because I elaborated several times. You claim that causality always leads to property. I claim that it sometimes does not. So, are children the property of their parents? Is Atlas Shrugged co-owned by Soviet Union? As these are causally related, according to your theory, that must be correct.
> That is not the only requirement for trade to occur
> as I have said.
I don’t understand this. I did not say that something was the only requirement for a trade to occur, but a necessary one. If your assumption was correct, it would mean that trades come to existence by unilateral declaration, in other words one “owns” their market share. Is this what you claim?
> For you to only focus on one show you are trying
> to find justifications for a conclusion you have
> already reached.
It is exactly the opposite. I am trying to find the lowest common denominator. My approach is to eliminate parts of theory until there is nothing more to remove without the theory losing applicability. You on the other hand build up arbitrary axioms and when it turns out that the concusions you want to reach are unreachable, you come up with another axiom.
Published: January 22, 2010 7:30 AM
Magnus
Magnus — “It’s a basic principle of freedom that we are all free to do what we want with our property, up to the limit encountered when one interferes with others and their rights.”
Kerem Tibuk — Yes your copying of my movie on your dvd interferes with my property rights regarding the movie. Just like you taking my apples and mix them with your property, sugar flour what not, and bake an apple pie. Apples are property and IP isn’t you say? Welcome to circularity. Otherwise known as assuming your conclusion.
Uh, no.
My statement about how property rights generally work (that they are as broad as they can be, limited only by infringement) is a general proposition that applies to ANY kind of property right, even to IP, if IP were valid.
This proposition is not circular because it is true for both IP and ordinary property.
I mentioned it as a rebuttal to the oft-cited (and wholly erroneous) argument that because rights in things like machine guns are limited, it’s also OK to limit rights in paper and ink and blank DVDs.
All property rights are limited. That limitation says nothing about the distinction between IP and ordinary property.
My point, which you conveniently ignored again, is that the only so-called infringement that IP proponents can point to is an infringement on the author’s market share. Copying an article does not interfere with the author’s use of the original in any way.
When are you going to answer my question about your Robinson Crusoe scenario? Can Crusoe legitimately travel to the second island and use force to stop the islanders, whom he never met, from using the ideas that Friday transmitted to them?
Sooner or later, you’ll address the issue. I am an optimist that way.
Published: January 22, 2010 9:10 AM
Russ
Kerem Tibuk wrote:
“Do you have a problem with conditional exchange, otherwise known as “renting”?”
No, but renting generally involves a contract, which proves that the rentee agreed to the terms of the rentor. Also, only one person can rent an apartment at a time.
“…If you buy a copy of Harry Potter, you are actually renting it on certain conditions. And you pay 10 dollars for it.”
If there is no contract that I agreed to, then I didn’t rent the book. I bought it.
Published: January 22, 2010 10:00 AM
Russ
Kerem Tibuk wrote:
“English is not my mother tongue, but I thought “admitting” meant “finally coming clean after an effort to hide something”. That is your straw man. When I say outright what I meant, you still have the nerve to call that admitting as if you caught me.”
If you “admit” that X is true, that means that you “acknowledge the truth of” X. An admission of guilt is one possible connotation, but not necessarily what SK meant. I agree that sometimes SK can be a bit abrasive (can’t we all?). But I don’t think he was insulting you here in the way you think he was.
He was just saying (I think) that you acknowledge that you believe in perpetual IP, which (he believes) is absurd. That’s the trouble with reductio ad absurdem arguments, I’ve found. After reducing something to “absurdity” (in your opinion), you find out that you’ve wasted your time, because the other person does not consider it absurd. He considers it having the integrity to stick to principles, no matter where they might lead.
Published: January 22, 2010 10:25 AM
Stephan Kinsella
Russ:
Kerem: “How is, “IP is not valid because it infringes on the property rights of others” is an independent argument when it depends on the never proven but often assumed assertion that only scarce things can be property?”
It does not assume that ONLY scarce things are property, but it assumes that scarce things ARE property–don’t we all agree on this? The one that is up for debate is property in anything else. My contention is that assigning rights in non-scarce things necessarily undermines rights in scarce things. Since we all agree with rights in scarce things, we should oppose the type of rights-inflation that undermines this.
Surda:
Let’s be precise here. It is the nature of scarcity that restricts how people may act. Consider Guido Hülsmann’s comments in his 1997 article Knowledge, Judgment, and the Use of Property, p. 28:
(I discuss this also at note 9 and accompanying text of my Knowledge, Calculation, Conflict, and Law.)
Now, the fact of scarcity is part of the world. It is this which limits how we can act. The fact is that if there is a scarce resource, A and B cannot both use it at the same time. If they can, there is no scarcity, and no conflict. Conflict can only arise when there is scarcity, and conflict can only be conflict over the use of scarce resources. People say there is conflict over religion, etc., say–nonsense. Religion is the reason why A wants to kill or control B’s body, perhaps, but the conflict is over B’s body–a scarce resource.
The only question is whether the use of scarce resources will be conflict-free or not. If there are no property rules then the use of scarce resources is precarious and people will waste time in violent struggle rather than in productive use of resources.
To avoid such conflict and permit peaceful, productive use of scarce resources, property rules can assign ownership to identifiable individuals. As I have explained in What Libertarianism Is, all political and legal systems assign property rights–someone is assigned the legal right to control each particular scarce resource. The libertarian approach is unique in that the assignment is based on a consistent desire to avoid conflict, and so we follow a Lockean type of property assignment rule–the first user of a resource has a better claim, ceteris paribus, than later claimants. Now this is not a complete argument for the libertarian case, and in a libertarian forum where we all agree with this one need not argue for it–but you can see that the very nature and purpose of any property system is to permit the conflict-free use of scarce resources, and that the libertarian approach is the one most consistent with this purpose and nature.
So: it is not a theory of property that restricts how people may act. It is the omnipresent, undeniable fact of scarcity. A theory of property permits peaceful use of resources, by prohibiting violent struggle over them, which is not productive. The only question is whether the property rules are just or not. If they are all assigned to Donald Trump or the State, then this would technically allow conflict to be avoided but at the cost of injustice. The libertarian thus favors a just rule: assigning property rights in a given scarce resource to the first appropriator thereof.
This is not a restriction on action. It permits the resource to be used peacefully, and justly.
Now even the advocates of IP, such as Silas, are too happy to admit that they don’t really favor property rights in mere abstract “ideas”. No, they readily admit it’s only in physical instantiations of the idea. That is, they admit that what they want in their IP theories is to grant to A property rights in all the physical media (say) owned by B1, B2, … Bn. So the real dispute is always about scarce resources. If B owns a piece of plastic (a blank DVD) then the IP advocate wants A to have some property rights in B’s disk. He wants A to have a veto over B’s use of B’s own disk.
Now, there are many non-libertarian property rights theories–theories that undercut or are contrary to the libertarian-Lockean first-use-first-own rule. This is just one of them. It is not “circular” to point this out. It is not “circular” to be a libertarian, any more than it’s “circular” to be a socialist, communist, theocrat, or IP advocate. They all advocate property assignment rules that differ from the libertarian’s Lockean homesteading rule.
The attempt to analogize this to the gun shooting or murder prohibition example fails. If A is prohibited from murdering B, this is just a way of restating one application of the libertarian conception of rights: it is saying that B owns his body, and that A’s actions of shooting bullets into it violate’s B’s rights in that scarce resource. To say A is limited in what he may do is to recognize property rights in scarce resources.
In other words, the libertarian idea is that we do not live by permission. We live by right. We may do anything we wish in life, perform any action, unless it is an unconsented-to use of another’s property. In other words, unjustified interpersonal violence–conflict–is prohibited for the sake of establishing a regime where peaceful, productive use of scarce resources may occur. I can use my gun for anything one can think of: the possibilities are open ended–anything except narrow cases where it would be an act of aggression against others. But it is not as if there are 1,136 permissible things I can do with the gun, each one a “right,” and 17 things I cannot do with the gun. Rather, it’s as if there is an ocean of liberty–open-ended, infinite, with small islands of things that I may not do. The IP advocate has to view us as living by permission: you have those 1,136 things you may do with your gun, and only those things. It is a finite list, fixed at some moment in time. If B thinks of way number 1,137 to use a gun, then he owns this way-to-use-guns. That is to say, he owns all guns in the universe, to the extent they are used for method 1,137. And, they say, this does not harm owner A, since he never had that right in the first place. It doesn’t take away his right to use his gun for method 1,137; he only had homesteaded the first, known, 1,136 ways to use it. In fact, the IP fascist says, A is now better off, since he can learn from 1,137, and get permission for a small fee from B to use his gun in a new way. Everyone wins!
Except this is the totalitarian way of looking at things. We do not live by permission. Rothbard has explained that there is no right to free speech; it’s just one implication of property rights. In my Against Intellectual Property (p. 53), this is precisely why I pointed out that
I am restricted in my use of my gun to murder B only because of property rights in scarce resources. Unless you can point to such an act of aggression (trespass), I can use my gun as a means for any action whatsoever. I don’t have to find an enumerated right #1,132 in my bag-of-rights, in my “permissions”, to do it. I can do any action, so long as it is not a use of another person’s property.
And this is precisely why this is not analogous to the IP case. Pointing out the above as an implication or explication of how libertarian property rights is not circular. It does not assume there are only property rights in scarce resources; rather, it unwinds a theory about allocating property rights in scarce resources. The nature of such a system is what implies that assigning rights in “ideal objects” is really simply a different way of assigning rights in scarce resources–an assignment rule that differs from the libertarian-Lockean one; this is exactly why in my 2000 LRC article on IP explicitly opposed “the Second Homesteading Rule.”
The IP advocate’s argument is dishonest. He says, well, my IP rule limits your property rights, but so do all property rights. So what’s the big deal? The big deal is that the only limits we recognize are that you may not violate others’ property rights! Murder or normal theft or trespass is obviously an instance of this. But using my own property peacefully is not! The IP advocate needs to show that my use of my own DVD somehow interferes with his own property in his own scarce resources. Obviously, it cannot. So, it fall back on IP itself: it says, well, it doesn’t violate B’s physical property, but it does violate his intellectual property. Hellooooo–THIS is the circularity. The circular reasoning is done by the IP advocates, NOT by the libertarian who is simply a consistent opponent of aggression.
Published: January 22, 2010 10:58 AM
Bala
Stephan,
” My contention is that assigning rights in non-scarce things necessarily undermines rights in scarce things. ”
That does not necessarily make them invalid. That’s where your argument fails miserably.
Published: January 22, 2010 11:49 AM
Russ
Stephan Kinsella wrote:
“It [your argument] does not assume that ONLY scarce things are property, but it assumes that scarce things ARE property–don’t we all agree on this?”
Yes. So far, so good.
“The one that is up for debate is property in anything else. My contention is that assigning rights in non-scarce things necessarily undermines rights in scarce things.”
Agreed. But as Bala just pointed out, that does not necessarily make rights in non-scarce things invalid. It would just make the concept of property a little more complicated.
“Since we all agree with rights in scarce things, we should oppose the type of rights-inflation that undermines this.”
Not necessarily. I believe we should be very cautious about inflating rights, yes, but I also believe there can be instances where this is acceptable.
For instance, take EM spectrum rights. We used to just have normal property rights, with no EM spectrum rights. Then radio came along. Radio transmission involves transmitters, receivers, and radio waves. That’s pretty much it. Radio “channels” (in the information theoretic sense of the term), are not material things. The concept of a radio “channel” is, in a real sense, just an abstraction. There are no slots in the ether, sitting there, waiting to be grabbed. There are just radio waves emitted by a transmitter. There is no way to get from normal property rights to EM spectrum rights; you’d be violating the rights of some transmitter owners. So, we extended the concept of property so that now, instead of a thing having to be a material good in order to qualify as property, it has to be “scarce”, since radio channels qualify. In effect, EM spectrum rights are a “rights-inflation” of normal property rights that undermines rights in normal property (radio transmitters, to be precise). But we all live with this, because radio communication is useful. Since we did this rights-inflation from normal property to (normal +EM spectrum) property, I don’t see any a priori reason why we can’t also rights-inflate from (normal +EM spectrum) property to (normal +EM spectrum+IP) property. I just think that a good consequentialist case needs to be made before doing so, which none of the pro-IP people are doing, IMHO.
Published: January 22, 2010 12:41 PM
Scott D
Bala:
[blockquote]” My contention is that assigning rights in non-scarce things necessarily undermines rights in scarce things. ”
That does not necessarily make them invalid. That’s where your argument fails miserably.[/blockquote]
It is much the same conception as the idea of positive vs. negative rights. Positive rights cannot coexist with negative rights. Any “right” that in some way compels action to the benefit of a group of people violates the negative rights that originate with self-ownership.
This is where the socialists try to weasel their way through with much the same arguments that the pro-IP libertarian uses to justify their position. The money taken for government welfare programs is not theft because the benefits to society accrue back to the individual who is taxed, the socialist says. Functionally, this is little different from the arguments that claim the utilitarian benefits of an IP system.
Arguments that claim a natural rights origination for IP cannot explain why intellectual property trumps physical property. They also consistently fail to define what property is, let alone justify rights in it. As soon as you accept rights in patterns (or instantiated patterns), you are obligated to explain away an unending list of things which no sane person would claim are property, but which by your theory MUST qualify as property, simply by virtue of the ambiguous concept of creation.
Published: January 22, 2010 1:27 PM
Magnus
Radio “channels” (in the information theoretic sense of the term), are not material things. The concept of a radio “channel” is, in a real sense, just an abstraction.
No, that’s not true. EM radiation is real. It’s behavior can be measured, predicted and observed. It is a phenomenon of the physical, material world. It is not abstract in the slightest.
“Channels” are merely modes of use of EM radiation that permit multiple users engage in non-rival communication. They are not abstract at all either.
Published: January 22, 2010 1:34 PM
Russ
Scott D,
I can’t see how IP would be a positive right. Normal property rights are obviously negative rights. Likewise, EM spectrum rights are negative rights; all they say is that others with transmitters must leave the bandwidth that is owned alone (i.e. not transmit on that frequency), or pay the owner for the privilege of doing so. Likewise, all that IP rights says is that people must leave the IP alone (not copy it) without the permission of the owners. IP doesn’t create a positive obligation on other people; it just puts limits on what they can do with their property, like other property rights do.
“Arguments that claim a natural rights origination for IP cannot explain why intellectual property trumps physical property.”
This is trivially simple. IP rights would trump physical property for the same reason that EM spectrum rights do; because they have to in order for EM spectrum (or IP) rights to exist.
Published: January 22, 2010 1:40 PM
Russ
Magnus wrote:
“…EM radiation is real. It’s behavior can be measured, predicted and observed. It is a phenomenon of the physical, material world. It is not abstract in the slightest.”
EM radiation is real, yes. I’ve never said otherwise.
“”Channels” are merely modes of use of EM radiation that permit multiple users engage in non-rival communication. They are not abstract at all either.”
No, a radio channel is abstract. As I said, there are no slots in the ether, waiting for somebody to homestead them, as land can be homesteaded. When you broadcast radio waves on a certain frequency, and claim that you have “homesteaded” that frequency, you are not homesteading anything real. You are simply emitting photons at frequency X (and claiming that you have the exclusive right to do so).
An analogy might help. Take the example of TCP sockets. These are not “real”, either. In the “real” physical world, there are no physical partitions or slots in a wire that these sockets occupy. There are only electrons going through the wire (or photons through a fiber optic cable, etc.). TCP sockets are an abstraction, an abstract protocol layer built on top of the physical protocol layer of Ethernet (or whatever). Likewise, radio channels are an abstract protocol layer built on top of the physical layer of radio waves.
Published: January 22, 2010 2:04 PM
Scott D
Russ:
[blockquote]For instance, take EM spectrum rights.[/blockquote]
I utterly reject the notion of EM spectrum rights on practical, real-world grounds. The use and proliferation of wireless networks and devices in the “public” spectrums demonstrates how this supposedly BIG PROBLEM is really a trivial one, solved by ingenuity and mutually beneficial cooperation rather than the application of law.
If you look at the deployment of a wireless network, what you see is territorial control over the particular frequency range used. It is not the frequency that is homesteaded, but the transmission medium that constitutes the physical location.
What happens when two people who live very close together try to use their own wireless networks? Here, we have an easy solution, already anticipated by the vendors of the wireless devices. One of the people will choose a different channel and the conflict is resolved.
I could go into further technical discussion of how small modifications to existing communications technology would make this situation analogous for broadcasting, but it’s a bit off-topic. What I’m getting at is that consistent application and respect for property rights, along with the incentives for cooperation and the benefits that would accrue from decentralized, distributed communications networks, we no more need to assign ownership in the EM spectrum than ownership rights in the market.
To reiterate, EM spectrum rights are not necessary and only serve as a diversion to the argument over IP. My big picture view is that we would be immeasurably better off without monopoly rights in EM communications.
Published: January 22, 2010 2:07 PM
Scott D
Oops, forgot that I need to use html tags rather than bb code for the formatting.
Published: January 22, 2010 2:09 PM
Russ
Scott D wrote:
“To reiterate, EM spectrum rights are not necessary and only serve as a diversion to the argument over IP. My big picture view is that we would be immeasurably better off without monopoly rights in EM communications.”
It would be great if all broadcast technology played nice together. But that depends on people playing nice together, and that doesn’t always happen. What if you are at a Starbucks, let’s say, and you are happily surfing, along with a bunch of other people, over Starbuck’s complimentary wireless network. Then some enviro-whacko nutjob who doesn’t like Starbuck’s paper cups pulls into the parking lot and turns on his jammer, set to the frequency that the wireless network is on. Then what? Call law enforcement officers? What can they do, if Starbucks has no EM spectrum rights to that store?
No, sorry, if we want to communicate over radio waves without any random dickhead ruining it for everyone else, then we need EM rights.
Published: January 22, 2010 2:26 PM
Scott D
{blockquote}I can’t see how IP would be a positive right.{/blockquote}
Actually, I never claimed that IP is a positive or a negative right. I was only putting out the analogy where conflicting rights cannot coexist, at least not with any degree of consistency.
{blockquote}This is trivially simple. IP rights would trump physical property for the same reason that EM spectrum rights do; because they have to in order for EM spectrum (or IP) rights to exist.{/blockquote}
So you are saying that IP rights (and EM spectrum rights) are, in fact, superior to physical property rights? Where does self-ownership stand in that hierarchy?
Published: January 22, 2010 2:27 PM
Scott D
Screw the blockquotes.
Russ:
“Then some enviro-whacko nutjob who doesn’t like Starbuck’s paper cups pulls into the parking lot and turns on his jammer, set to the frequency that the wireless network is on.”
Too easy.
Maybe Mr. Nutjob turns his car stereo up to nosebleed levels. Or he whips out an Uzi and starts firing. In all of these cases, he is emitting things that travels over to you and have a harmful effect on your property. So you call the Ancapland Security Agency and they force him to stop. No EM property rights are needed, just consistent application of physical property rights.
Published: January 22, 2010 2:37 PM
Russ
Scott D wrote:
“Actually, I never claimed that IP is a positive or a negative right. I was only putting out the analogy where conflicting rights cannot coexist, at least not with any degree of consistency.”
OK. I agree that conflicting rights can’t coexist, but I don’t think that poses a problem. Is it a conflict of our property rights, if I want to fire my machine gun into your mailbox, but can’t do so thanks to your property rights? I don’t think so. I just think that I don’t have the right to do anything I want with my machine gun. There’s no conflict there, though.
(Sorry I “stole” your machine gun idea, Gil. How much do I owe you for that? *grin*)
“So you are saying that IP rights (and EM spectrum rights) are, in fact, superior to physical property rights? Where does self-ownership stand in that hierarchy?”
I don’t buy into IP rights, at least not yet, anyway. I am not absolutely opposed to them either, though. I do believe in EM spectrum rights, and do believe that they prevent others from using their transmitters anyway they like, if that would violate the EM spectrum rights. I see this as similar to my machine gun argument above.
As for self-ownership, gee, how do I explain this? If I say that self-ownership trumps everything else, even normal property rights, that would imply that I have a right to punch dents in your mailbox, even though I don’t have a right to shoot it. (I don’t believe I have a right to punch dents in your mailbox, BTW.) All I can say is that I believe I have the right to do anything with my body or my property that doesn’t violate your rights to your body or property. I don’t consider that a conflict.
Published: January 22, 2010 2:47 PM
ABR
I see EM rights as a right to use a volume of space in a particular way. Ditto for landing and take-off rights that an airport requires.
Ditto also for gardening and sunlight. If I homestead a property in the middle of nowhere, and plant a garden, and then X comes along and homesteads a neighbouring property, and builds a giant wall that blocks the sun from my garden, then he has infringed on my property. Yeah or nay on this one?
Published: January 22, 2010 2:54 PM
Russ
Scott D wrote:
“Screw the blockquotes.”
Hehehehehe…..
“Too easy.”
Yeah. Taking down strawmen usually is easy.
“Maybe Mr. Nutjob turns his car stereo up to nosebleed levels. Or he whips out an Uzi and starts firing. In all of these cases, he is emitting things that travels over to you and have a harmful effect on your property. So you call the Ancapland Security Agency and they force him to stop. No EM property rights are needed, just consistent application of physical property rights.”
Sure, for the instances that you described, physical property rights are all you need. But what about the example that I *actually* gave, instead of the ones you put in my virtual mouth? What about somebody jamming radio signals? How does that “have a harmful effect on your property”? Granted, it would cause interference, but it would not “have a harmful effect on your property” unless those radio waves your wireless emitted are also your property. So what then, without EM spectrum rights? Without them, who are you to say that the nut-job doesn’t have a right to transmit on that frequency, just like you do?
Published: January 22, 2010 2:57 PM
Scott D
“How does that “have a harmful effect on your property”?”
It is disrupting communication within my property. Just like blaring his stereo disrupts verbal communications. What I’m arguing is that no one should have a guaranteed right to freely broadcast signals that have a disrupting effect on another’s property. This means that Mr. Nutjob can’t erect a giant jamming tower on his property and blanket his city in white noise, but it also means that anyone who does want to use high-energy broadcasting on a frequency in use by people within the affected area must either contract for it or use other means, such as directional transmissions.
Why would the market be suddenly unsuitable for solving this problem?
Published: January 22, 2010 3:22 PM
Stephan Kinsella
Bala,
it does for those who favor property rights in scarce tings; or who think they are compatible. Or, it highlights that the IP advocate is favoring a rule other than Lockean appropriation for homesteading scarce resources. Sure, it’s useful.
It makes it unlibertarian, and, b/c I’m a libertarian–most people here are –that means it’s invalid.
This isn’t rights inflation. IF it is, it’s invalid. If Em homesteading is legitimate, then it’s not inflation. If it’s not legitimate, we should not favor it. Easy.
Scott D:
Ding ding ding ding ding–we have a winner.
Published: January 22, 2010 3:50 PM
Russ
Scott D wrote:
“What I’m arguing is that no one should have a guaranteed right to freely broadcast signals that have a disrupting effect on another’s property.”
But it wouldn’t have a disrupting effect on your property. The radio waves from your property would still be emitted just as they were before, and radio waves from Starbuck’s property would still be received just as they were before. They would just be superimposed with the nutjob’s radio waves. Your and Starbuck’s equipment would still work just fine. Of course, it would render communication between your and Starbuck’s equipement impossible, but what makes you think you have the right to expect that, without EM spectrum rights?
“This means that Mr. Nutjob can’t erect a giant jamming tower on his property and blanket his city in white noise, but it also means that anyone who does want to use high-energy broadcasting on a frequency in use by people within the affected area must either contract for it or use other means, such as directional transmissions.”
By saying “anyone who does want to use high-energy broadcasting *on a frequency in use* [emphasis added] by people *within the affected area* [emphasis added] must either contract for it…” you are in effect saying that whoever starts broadcasting on that frequency in the area in question first has dibs on that right, which is effectively EM spectrum rights, isn’t it?
Also, if somebody doesn’t want any radio waves impinging on his property, can he sue a radio station? Even a perfect directional signal with bleedover into other areas would still need to pass through other’s property to reach some receivers. So radio waves would only be able to reach receivers on property right next to the radio station, if people didn’t want the directional waves to go through their property.
“Why would the market be suddenly unsuitable for solving this problem?”
I’m not saying that the market couldn’t handle it (although I’m not an anarchist). I’m simply saying that some sort of property rights system above and beyond simple property rights is needed to guarantee useful radio communication. The EM spectrum rights could be enforced by the market, I suppose.
Published: January 22, 2010 3:54 PM
Scott D
“Is it a conflict of our property rights, if I want to fire my machine gun into your mailbox, but can’t do so thanks to your property rights? I don’t think so. I just think that I don’t have the right to do anything I want with my machine gun. There’s no conflict there, though.”
Conflict isn’t perhaps the most concise word to use here. Substitute the word contradiction. Now, to rephrase what I said earlier, positive and negative rights contradict each other. Material and intellectual property rights contradict each other. You cannot apply one consistently without violating the other.
Now, you have no positive right to attack mailboxes, but neither is there a negative right which says you cannot fire your machine gun, or even aim it at targets and fire it. Where negative rights does take effect is when you try to use your machine gun, which you have full ownership and control over in almost any circumstance, to attack my mailbox. My negative right not to have my mailbox destroyed is the same right you enjoy to own and shoot your gun. Without my right of mailbox integrity, you do not have a right to keep me from smashing your machine gun, or perhaps demanding it in restitution. The only limitation placed on your ownership right is the one that ensures the greatest possible degree of ownership and control while remaining consistent and universally applicable.
“As for self-ownership, gee, how do I explain this? If I say that self-ownership trumps everything else, even normal property rights, that would imply that I have a right to punch dents in your mailbox, even though I don’t have a right to shoot it.”
What I’m saying is that self-ownership is not a higher form of property rights, but a subset. There is no hierarchy, only the limitations necessary for consistency. For this to work, self-ownership must not contradict property ownership and vice versa. In the case of IP, if I use my computer to make a CD of a copyright song, I can be compelled to either turn over the CD or destroy it. How can this be when no actual damage to either the pattern or instantiated objects has taken place? Sounds like a higher form of ownership to me.
Published: January 22, 2010 4:04 PM
Peter Surda
Dear Russ,
> The radio waves from your property would still be
> emitted just as they were before, and radio waves
> from Starbuck’s property would still be received
> just as they were before. They would just be
> superimposed with the nutjob’s radio waves.
This is kind of like saying that if I smash your car, you still have all the original atoms. In other words, correct but irrelevant.
Published: January 22, 2010 4:16 PM
Mashuri
Russ, I think you need to focus on ABR’s point. EM spectrums by themselves are not scarce but the space they occupy is — and it’s within that finite space (for that particular use) where homesteading takes place. I’m quoting his response to reiterate:
“I see EM rights as a right to use a volume of space in a particular way. Ditto for landing and take-off rights that an airport requires.
Ditto also for gardening and sunlight. If I homestead a property in the middle of nowhere, and plant a garden, and then X comes along and homesteads a neighbouring property, and builds a giant wall that blocks the sun from my garden, then he has infringed on my property. Yeah or nay on this one?”
Think of EM spectrum use as sort of like easements. If I homestead two plots of land and set up a communication pathway between them, someone else coming along and disrupting that communication would be infringing on my property rights in a similar fashion to ABR’s garden and airport scenarios.
Published: January 22, 2010 4:22 PM
Russ
Stephan Kinsella wrote:
“Russ wrote:”But as Bala just pointed out, that does not necessarily make rights in non-scarce things invalid.”
It makes it unlibertarian…”
No, it doesn’t make it unlibertarian, unless you take it for granted that only Lockean property theory is libertarian. Once again, you’re begging the question.
“This isn’t rights inflation. IF it is, it’s invalid. If Em homesteading is legitimate, then it’s not inflation….”
Hmmm… let’s see….
Premise 1) If something involves “rights inflation” (“rights” not permitted by Lockean/Rothbardian scarcity theory), it’s invalid.
Premise 2) Assume for sake of argument that EM rights are “rights inflation”.
Conclusion) EM rights are invalid.
The big problem here is premise 1, where you simply assume or assert that any right beyond that permitted by Lockean/Rothbardian scarcity theory is invalid. Then of course, the conclusion you desire follows simply, but without any real justification.
I just looked up the “begging the question” fallacy on Wikipedia, and it looks like what you are doing here is the related “fallacy of many questions”.
http://en.wikipedia.org/wiki/Begging_the_question#Related_fallacies
If you then argue that premise 1 is the libertarian premise, and if one disagrees with it one is not libertarian, then you’re just begging the question.
“… If it’s not legitimate, we should not favor it.”
Tautology.
“Easy.”
Yeaaaaah. It’s easy to prove that 1=2, also. Unfortunately, that proof is not logically valid, either.
Your big problem here is your continued insistence that only Lockean/Rothbardian property theory is valid libertarianism. (And you just happen to believe in Lockean/Rothbardian property theory; what a coincidence!) But libertarianism is just a political philosophy that believes that individual liberty should be the primary (or only) political concern. Lockean/Rothbardian property theory is only one of many possible manifestations of libertarianism. It’s ironic in the extreme that you (an anti-IP person) apparently think that you are the arbiter of what the word “libertarianism” means! Is the word your property?!
Published: January 22, 2010 4:34 PM
Russ
Scott D wroe:
“Now, you have no positive right to attack mailboxes…”
I agree with the whole above paragraph (only partly quoted). But the same applies to EM spectrum rights or conceivably IP rights, if they were valid rights. Say for sake of argument that EM spectrum rights are valid. Let’s say we live in the same area, and I have the right to broadcast in the area at X MHz. Let’s also say for simplification that nobody else has EM spectrum rights in the area. You still have the right to your radio transmitter, *except for the right to transmit at X MHz*, because this would violate my rights. This is the same as my having the right to my machine, *except the right to shoot your mailbox with it*, because that would violate your rights.
“…In the case of IP, if I use my computer to make a CD of a copyright song, I can be compelled to either turn over the CD or destroy it. How can this be when no actual damage to either the pattern or instantiated objects has taken place? Sounds like a higher form of ownership to me.”
It’s not a matter of whether you damage the pattern or the physical property on which it was instantiated. IP rights, if they were valid, would simply impose a limitation on what people can rightly do with their property, just like regular property rights do. You would still have the right to your computer, *except the right to copy other peoples’ IP with it*, because that would violate their rights. After all, if property rights didn’t impose limitations, what good would they be?
Published: January 22, 2010 4:48 PM
Scott D
“Of course, it would render communication between your and Starbuck’s equipement impossible, but what makes you think you have the right to expect that, without EM spectrum rights?”
You’re getting stuck on this needing a right to a particular activity. Your property is your property. As long as your use of it does not infringe upon mine in some measurable way, do whatever you like. But if you start throwing transmissions at me that interfere with my ability to use my property as I like, I’m going to complain.
“you are in effect saying that whoever starts broadcasting on that frequency in the area in question first has dibs on that right, which is effectively EM spectrum rights, isn’t it?”
That is one possible interpretation of it that at one time I accepted as true, the important distinction being that the homesteading is geographically defined and limited. You can transmit on X frequency to reach Y radius around Z. This differs in significant ways from the much simplified concept of homesteading a frequency.
However, I’ve since changed my mind on that. What I’m saying is that if you want to put up a radio station that sends possibly disrupting frequencies through the properties of however many people, you had better be able to take into account those people who might object to their property being affected in this way.
“Also, if somebody doesn’t want any radio waves impinging on his property, can he sue a radio station? ”
To be sure, there would have to be some measurable claim made against you. If a claimant could not demonstrate any injury whatsoever, it would not hold up. This is an obvious necessity to avoid claims like, “He walked past my yard and reflected sunlight into it!”
“I’m simply saying that some sort of property rights system above and beyond simple property rights is needed to guarantee useful radio communication.”
Useful to whom? I just see so many similarities between this argument and the idea of market-failure, arguing that everyone is worse off without intervention X. Yes, it makes dealing with the odd anti-radio curmudgeon a bit harder, but I believe that the problem is in no way insurmountable and an implementation in such a framework would likely have huge benefits. Our current use of the EM spectrum is based on a model that has changed little in the last century, thanks to government-granted EM rights. It’s no wonder that wired communications is so much cheaper and faster.
Published: January 22, 2010 4:48 PM
Russ
Peter Surda wrote:
“Russ wrote: The radio waves from your property would still be emitted just as they were before, and radio waves from Starbuck’s property would still be received just as they were before. They would just be superimposed with the nutjob’s radio waves.
This is kind of like saying that if I smash your car, you still have all the original atoms. In other words, correct but irrelevant.”
I disagree. Property rights imply maintained physical integrity and functionality of the object. In my example, Scott’s and the Starbuck’s wi-fi and computer would still be intact and functional, strictly speaking; they would still be able to send and receive radio waves just as before. It’s just that they wouldn’t receive the radio waves that they *want* to. So no property rights are being violated, if you limit “property rights” to rights to actual physical property, radio waves not included.
Anyhoo… I have to go for a bit. I will be back to run the Mises blog gauntlet (*grin*) some more, after a dinner break.
Published: January 22, 2010 4:57 PM
Silas Barta
@Russ: I am interested in getting the IP debate resolved, including its relationship to EM spectrum rights. And as I’ve mentioned in the other thread, I want to hold an e-symposium on the issue that will allow quicker exchanges than a journal might, and will avoid having to rehash the same arguments over and over.
Despite your constant disagreement with many of my positions, you have shown an excellent understanding of many subtle points that take a lot of effort to get across to people, and a willingness to call people on flaws in reasoning, even if they oppose IP.
Therefore, I would be honored to have you participate when I hold it.
Published: January 22, 2010 5:25 PM
Russ
Silas,
Firstly, thank you for the compliment. Secondly, if I have the time, I would be happy to “attend” your e-symposium. Could you post something on your blog, spelling out how this would work?
Published: January 22, 2010 6:13 PM
Bala
Stephan,
” it does for those who favor property rights in scarce tings; or who think they are compatible……. It makes it unlibertarian, and, b/c I’m a libertarian–most people here are –that means it’s invalid. ”
Two problems. Firstly, unlibertarian and hence(??) invalid? Am I to read it as “invalid because it contradicts your convictions”? I am not sure how many people with a different set of convictions (like the Objectivists of the world) are ever going to see eye to eye with you on this.
Secondly, you are still preaching to the choir.
Published: January 22, 2010 6:48 PM
Russ
Mashuri wrote:
“Think of EM spectrum use as sort of like easements. If I homestead two plots of land and set up a communication pathway between them, someone else coming along and disrupting that communication would be infringing on my property rights…”
I don’t see how, without EM spectrum rights. After all, if the land in between the two plots is not yours, how can you have the right to pass your radio waves through that property that you do not own? If you somehow get easement rights from all other property owners in the area, fine. What if you cannot?
“…in a similar fashion to ABR’s garden and airport scenarios.”
I find those scenarios problematic, as well. For instance, if the airport comes in after the surrounding property is already owned, which is usually the case, how does it get easement rights? In our society, it usually just basically takes them. If it cannot do that, then it would have to buy them, which would be difficult. Even if the airport came first, and then people buy surrounding land, what then? Would easement right conditions be attached to their property? How so? After all, if the land was unowned previously, then the airport didn’t own it, and couldn’t have had an easement contract with the (non-existent) previous owners.
Published: January 22, 2010 7:05 PM
newson
russ says:
“No, sorry, if we want to communicate over radio waves without any random dickhead ruining it for everyone else, then we need EM rights.”
and the impossibility of interpersonal utility comparison? who’s to say whether random’s or starbuck’s use of the spectrum is more valid? utilitarianism necessitates the übermensch. and that always ends unhappily.
Published: January 22, 2010 7:08 PM
Stephan Kinsella
Russ:
“No, it doesn’t make it unlibertarian, unless you take it for granted that only Lockean property theory is libertarian. Once again, you’re begging the question.”
? It’s not question-begging to believe in Lockean appropriation as the basis of property rights, or to think this is libertarian.
Bala:
Yes, — convictions which I hold to be true as do other libertarians with whom I’m talking.
All 10 of them? Who cares, really?
Anyway, what’s the relevance of this? So what if you are right? besides, most Objectivists do believe in Lockean-style property rights in scarce resources. They just don’t understand they have to choose between this and IP fascism.
I don’t undersatnd the relevance of this remark. Who are you preaching to, pray tell?
Published: January 22, 2010 7:27 PM
Russ
Stephan Kinsella wrote:
“? It’s not question-begging to believe in Lockean appropriation as the basis of property rights, or to think this is libertarian.”
It’s questioning begging if your logic is 1) Only libertarianism is valid, and 2) only Lockean theory is libertarian. That seems to be what your logic is.
Published: January 22, 2010 7:45 PM
Russ
Scott D wrote:
“…Your property is your property. As long as your use of it does not infringe upon mine in some measurable way, do whatever you like. But if you start throwing transmissions at me that interfere with my ability to use my property as I like, I’m going to complain.”
So you complain? So what? Does that mean I have violated your property rights? If I have a store, and you have a store that outcompetes mine, you have used your property to interfere with my ability to use my property as I like (to make a living). Is that a violation of my rights? No, it’s not. Given just physical property rights, I don’t have the right to always get what I want out of my property, whether that’s the ability to make a living, or the ability to communicate with radio equipment (barring some sort of problematic pseudo-EM rights involving easements).
“That is one possible interpretation of it that at one time I accepted as true, the important distinction being that the homesteading is geographically defined and limited. You can transmit on X frequency to reach Y radius around Z. This differs in significant ways from the much simplified concept of homesteading a frequency.”
So only one owner has the right to broadcast at frequency X anywhere in the world, just because he broadcast a signal a frequency X in a limited area, before anybody else in the world did? So someone else would not be able to use that frequency in another area unless he buys permission from the owner, even though the broadcast in the second area does not interfere with broadcasts in the first area?
“Russ wrote:””Also, if somebody doesn’t want any radio waves impinging on his property, can he sue a radio station?”
To be sure, there would have to be some measurable claim made against you. If a claimant could not demonstrate any injury whatsoever, it would not hold up.”
Why not? If I have land, I should be able to sue somebody for trespassing on it, even if the land is in no way injured by his trespass, right? How is this different from radio waves “trespassing” through my property without my permisson?
“This is an obvious necessity to avoid claims like, “He walked past my yard and reflected sunlight into it!””
These kinds of pathological problems are why I think that introducing the concept of EM spectrum rights is a simpler solution to the problem that trying to derive it from property rights and easements, etc.
“Russ wrote: “I’m simply saying that some sort of property rights system above and beyond simple property rights is needed to guarantee useful radio communication.”
Useful to whom? I just see so many similarities between this argument and the idea of market-failure, arguing that everyone is worse off without intervention X. Yes, it makes dealing with the odd anti-radio curmudgeon a bit harder, but I believe that the problem is in no way insurmountable and an implementation in such a framework would likely have huge benefits. Our current use of the EM spectrum is based on a model that has changed little in the last century, thanks to government-granted EM rights. It’s no wonder that wired communications is so much cheaper and faster.”
Firstly, I am amused that taking into account the concept of usefulness as a criterion when considering property rights offends you. After all, if I “start throwing transmissions at [you] that interfere with [your] ability to use [your] property as [you] like”, isn’t that annoying precisely because it renders it impossible to get your intended *use* out of your property? IOW, isn’t it the fact that I am affecting the usefulness of your property that is the problem in the first place? Yes, we could try to cobble together a faux EM rights system out of property rights, easements, etc. But I think this would be much more trouble-prone than simply extending the concept of property to deal with the problem of EM interference. That way, it only solves the problem it was intended to solve, without introducing “unintended consequences”.
Secondly, yes, “[o]ur current use of the EM spectrum is based on a model that has changed little in the last century…”. But that is because the basics of radio transmission haven’t changed much in the last century, because the physics haven’t changed. New technological tricks will not get around the fundamental limitations imposed by the laws of physics and information theory. Besides, the majority of people probably still use outmoded technology. What should be done? Should the government dictate that people have to buy new radios, or adapters, like they did with TV sets?
Published: January 22, 2010 8:01 PM
Russ
newson wrote:
“russ says:
“No, sorry, if we want to communicate over radio waves without any random dickhead ruining it for everyone else, then we need EM rights.”
and the impossibility of interpersonal utility comparison? who’s to say whether random’s or starbuck’s use of the spectrum is more valid? utilitarianism necessitates the übermensch. and that always ends unhappily.”
So we should forego radio communications just so we don’t violate the tenents of interpersonal utility, and some random nut-job’s whims? No thanks.
What is the best primary justification of physical property rights? I would say the best justification is that it is the system of allocating property that is the most useful! The fact of scarcity is a reason for arguing *why* we need a system of some sort to begin with. We probably wouldn’t need one if material goods were not scarce. But why not some other system beside property rights? Because the other systems don’t work as well. In other words, they are not as useful!
Besides, your objection applies just as well to physical property rights. Who is to say that a random nut-job’s or Starbuck’s use of Starbuck’s cash register is more valid? After all, interpersonal utility says we can’t say one way or the other, right?
Published: January 22, 2010 8:16 PM
newson
most likely “we, the people” should take the car you leave in your garage for long periods, unused, and use it more efficiently.☺
after all, we are many and you are but one. how important are you in comparison to the rest of society?
the justification of private property is not that it creates more wealth, that is a happy side-effect. it’s that it is the only way to avoid universal violence. are you suggesting the imposition of violence to increase overall utility? or that a certain amount of violence is ok, but not too much?
besides the history of radio prior to the fcc shows regulation wasn’t necessary for a florid radio industry. you surely don’t expect everyone in a given radius to shut up when you talk, using scarce audible frequencies, so give random a break.
http://mises.org/daily/1662
Published: January 22, 2010 10:38 PM
ABR
“Even if the airport came first, and then people buy surrounding land, what then? Would easement right conditions be attached to their property? How so?”
By action. The planes are flying over the newcomers’ land. Every day.
Published: January 23, 2010 1:27 AM
Kerem Tibuk
First of all I don’t know how it became that Kinsella is in the position of defending Lockean/Rothbardian property rights but it is absurd for anyone who actually understand the said homesteading theory.
Lockean/Rothbardian theory that only justifies homesteading. It is not a positivist theory deciding what can and what can not property by arbitrary distinctions. In the said theory no rights are “assigned” or “established” or “granted”.
And nowhere it is implied on scarce resources can be homesteaded. “First comer” principle can confuse people but that principle doesn’t say scarcity is prerequisite but instead it means “if there is scarcity, then the tie breaker is the first comer” principle.
In short something happens as a natural outcome and theory anlalyzes that thing.
One individual homesteads a nature given resource to stay alive, and then another comes and a possibly of conflict arises.
The theory at this point says what two parties individually “ought to do” and identifies who is the aggressor and who is the victim in the case of a conflict leading to action.
Kinsellas theory on the other hand is nothing like this.
He sits down and thinks of a fantasy or a utopia and imagines how would people live peacefully and happily, given some conditions he thinks that are important. For example he doesn’t think equality is important but he may just as well because nothing is actually stopping him.
That is why Lockean/Rothbardian theory of property is a part of Natural Law Ethics, where as Kinsellas is a positivist society creation.
Published: January 23, 2010 2:22 AM
Peter Surda
Dear everyone,
allow me to propose an alternative approach, one that analyses the issue without the concept or property.
We have a radio receiver. We can agree that some person A possesses a radio. It is on his/her premises. The radio’s speaker vibrates in a specific manner. This is causally related to person B emitting EM waves. Now, person C starts emitting EM waves in a way that causes the speaker to vibrate in a different manner. This is a simple phenomenon that does not depend on how people interpret this or that. Can we all agree on this?
Kindly note that I did not use any concept of property or ownership. I was merely talking about measurable changes and causality. I do not claim anybody violated any rights or anybody owns anything.
Now, let’s say person A gives a book to person B. Persons B and C read it together and C retypes it (he never touches the book). None of the actions of person C cause measurable change in the book.
Now, person A pays C a visit and claims that C “copied” “his” book. How does he know? The book C possesses is causally related to the other book, and shares similar characteristics with it. This very much depends on how people interpret various things. Furthermore, the only way to conclude that “copying” occurred is to observe person C. It is insufficient to observe either A, B or the book.
In the first case, some people conclude from the situation that a trespass occurred. We can abstract this principle into “if person B causes a measurable change in an object owned by person A against A’s will, and the causal relationship was not present when the ownership started, it means there is a trespass”. I label this principle “the minimum scope of property”. Note I did not say that there was a trespass against A’s property. This avoids the problem with EM, it could mean that illicit broadcasts are trespass against sender’s or recipient’s property. I leave this question open.
In the second case, some people claim that a trespass occurred too. However, if we tried to abstract a principle, we have to conclude that it would be “even if no measurable change on objects a person A owns occurs, if another person B acts in a way that is causally related to a previous act of A, appears similar to A, against person A’s will, it is trespass too”. In the case of people who consider even independent discovery of patents trespass, the “causally related” part from the principle is dropped. I call this “the IP definition of property”.
I already explained why this definition is problematic. Any action whatsoever that is undesired can be declared trespass. Pseudoscience, imaginary things and emotions can be claimed to be sufficient conditions for trespass.
Published: January 23, 2010 6:46 AM
Peter Surda
Dear Kerem,
> Lockean/Rothbardian theory that only justifies
> homesteading. It is not a positivist theory deciding
> what can and what can not property by arbitrary
> distinctions.
That what you are calling “Lockean/Rothbardian theory” is actually “Lockean/Rothbardian theory” + “Kerem Tibuk’s arbitrary axioms”. You need to understand this before we progress any further.
Published: January 23, 2010 7:17 AM
Russ
newson wrote:
“the justification of private property is not that it creates more wealth, that is a happy side-effect. it’s that it is the only way to avoid universal violence…”
Isn’t avoiding a war of all against all for material goods useful?
“…are you suggesting the imposition of violence to increase overall utility? or that a certain amount of violence is ok, but not too much?”
Well, you know the answer to that question, newson, because you know that I’m a minarchist. Do the math. Anyway, even in Ancapistan, you’d have to impose violence on some people to get them to leave other peoples’ property alone.
“besides the history of radio prior to the fcc shows regulation wasn’t necessary for a florid radio industry.”
When did I ever mention the FCC? I’m just talking about having rights in EM spectrum. That doesn’t necessitate a regulatory agency, only courts of law, and a registration mechanism of some sort.
“you surely don’t expect everyone in a given radius to shut up when you talk, using scarce audible frequencies, so give random a break.”
I expect that they don’t speak so loud that I’m not able to carry on a conversation.
Published: January 23, 2010 8:04 AM
Russ
ABR wrote:
“Russ wrote: “Even if the airport came first, and then people buy surrounding land, what then? Would easement right conditions be attached to their property? How so?”
By action. The planes are flying over the newcomers’ land. Every day.”
So? The newcomer’s land was previously unowned, so there could have been no easement contracts with the non-existent former owners. So when the newcomers came, there were no easement contracts to bind them. So I don’t see how you could use easements to get this right to make noise, in this case.
If you’re saying that by making noise (or radio waves) before the newcomers came, the airport homesteaded the right to make noise (or radio waves) in that area, I’m not sure that follows from pure property rights. The so-called “homesteader” can emit noise, radio waves, pollution, whatever, as long as the surrounding area is unowned, sure. Who could object except maybe an eco-nazi? But once the land is homesteaded (and in a pure physical property rights system, only physical property such as land *can* be homesteaded), the first guy is now emitting noise, or whatever, onto somebody else’s property. He’s violating their rights.
If you still say that he has the right to “homestead” the right to produce noise in an area, that’s fine, you can do that, but I don’t think it can be derived from pure property rights. Likewise with homesteading the right to emit radio waves. If somebody homesteads land, they now own *physical* property. But if somebody homesteads “the right to emit radio waves at X Mhz over a given area”, they haven’t homesteaded *physical* property. They’ve homesteaded a more abstract right which we have been calling EM spectrum “property”. Once you say that somebody can do that, I think you’ve just admitted EM spectrum rights, as I conceive them.
Published: January 23, 2010 8:43 AM
Russ
Peter Surda wrote:
“I already explained why this definition is problematic. Any action whatsoever that is undesired can be declared trespass.”
I think this is similar to the point I made against Silas when we were talking about his IP theory. I said that just because he desires to use his property to get such-and-such a result, and that I “interfered” with his desire, that does not necessarily mean that I violated his rights.
Published: January 23, 2010 9:21 AM