≡ Menu

Absurd Arguments for IP

From Mises blog.

I’ve noted before “There are No Good Arguments for Intellectual Property,” and I’ve begun to collect some of the sillier arguments I’ve heard for IP. Here are a few:

  1. “Thank goodness the Swiss did have a Patent Office. That is where Albert Einstein worked and during his time as a patent examiner came up with his theory of relativity.” —Patent attorney Gene Quinn
  2. “It is true that other means exist for creative people to profit from their effort. In the case of copyright, authors can charge fees for reading their works to paying audiences. Charles Dickens did this, but his heavy schedule of public performances in the United States, where his works were not protected by copyright, arguably contributed to his untimely death.” —Willliam Shughart1
  3. If you are not for IP, you must be in favor of pedophilia. —Sasha Radeta
  4. If you oppose IP, you are advocating slavery. —Wildberry
  5. “Patents are the heart and core of property rights.” —Ayn Rand
  6. Song piracy and file-sharing are the cause of stage collapses at concerts. (Insurers blame stage collapse on copyright piracy)
  7. Postwar Japan prospered because it had a patent system; countries with the most IP are the most prosperous; America’s prosperity and growth since its inception is due to its patent and copyright systems (typical correlation is causation fallacy)
  8. IP contributes $5 trillion to the economy (because industries that IP is inflicted on generate $5T).
  9. Because you “can” treat IP as a form of property, it’s okay to do so (no offense, chattel slaves)
  10. a confused anarcho-socialist argument that “intellectual ownership” is needed, even though property rights are generally bad, to reward “the individual who laboured to discover,” but not “the owner of the idea itself, being an abstract piece of property”. Hunh? (The Worst Argument for IP Ever?)
  11. Copyleft advocates are like homophobic, anti-gay marriage bigots (some commentor at Techdirt)
  12. “To make a distinction between things which are ownable or not ownable with the difference being whether they’re constructed out of molecules or pixels is to create a new kind of apartheid, in which some kinds of property are just niggers.” —J. Neil Schulman
  13. If IP isn’t legitimate, then it’s okay to steal other people’s babies.
  14. Without IP you can’t have money: “Cool, so money can’t exist right? Since banks don’t have copyright for the cash they print, anyone can print any form of cash, thus destroying the economy…. cool story bro” —”sunny vegas” on Youtube comments

Update: See Intellectual Nonsense: Fallacious Arguments for IP (Libertopia 2012).

Archived comments:

{ 56 comments }

El Tonno September 19, 2011 at 11:25 am

Andrew Orlowski: “If you oppose IP, you want to curtail creators’ human rights.” (paraphrasing from here: http://www.theregister.co.uk/2011/09/19/pirates_berlin_protest_vote/ )

Dean Wilson September 19, 2011 at 1:02 pm

The point about Einstein seems to combine two fallacies, the second is that scientific hypotheses are so unique and rare that they could only come from the inventor who made them famous. Instead, they’re a dime a dozen and have to be rigorously tested. Not to diminish the discovery of relativity, but if not Einstein, someone else would have come up with it–just as someone else refined relativity into useful forms. Austrians, of all people, are well aware of the nearly simultaneous discovery of marginal utility.

And that’s assuming relativity is correct.

J. Murray September 19, 2011 at 1:09 pm

That’s because someone else did come up with relativity before Einstein.

James Maxwell wrote a paper on spacial reletivity 27 years before Einstein.

Hendrik Lorentz was an early pioneer in much of what Einstein is given credit for, 15 years prior to Einstein’s work.

Olinto De Pretto was the first to write e=mc^2, 5 years before Einstein’s work.

This is just the surface.

However, if Einstein didn’t violate the intellectual property “rights” of these and many more men, relativity would likely be stuck in some dark part of history as opposed to a well known concept.

Albert Einstein was the Steve Jobs of the turn of the century. He didn’t develop much of anything he’s famous for, but without him, we’d likely not know it even exists. And if we had a strong IP and Copyright law at the turn of the century, much of this and future research would have ceased to exist or delayed by decades or more.

El Tonno September 19, 2011 at 3:32 pm

>James Maxwell wrote a paper on special relativity 27 years before Einstein.

I don’t think so.

But otherwise yes – Einstein took an inductive leap of faith by looking at the by then well known Lorentz transformations in a new way. As written in Reflections on Relativity

Thus, Einstein’s contribution was to recognize that “the bearing of the Lorentz transformation transcended its connection with Maxwell’s equations and was concerned with the nature of space and time in general”. Instead of basing special relativity on an assumption of the absolutely validity of Maxwell’s equations, Einstein based it on the particular characteristic exhibited by those equations, namely Lorentz invariance [i.e. Maxwell’s equations must be valid for any moving coordinate system which can be transformed into each other using Lorentz transformations], that he intuited was the more fundamental principle, one that could serve as an organizing principle analogous to the conservation of energy in thermodynamics, and one that could encompass all physical laws, even if they turned out to be completely dissimilar to Maxwell’s equations. Remarkably, this has turned out to be the case. Lorentz invariance is a key aspect of the modern theory of quantum electrodynamics, which replaced Maxwell’s equations.

J. Murray September 19, 2011 at 5:13 pm

I stand corrected.

Still, if IP was involved, Maxwell could have sued Einstein and Lorentz for infringing on his “concept” of the nature of space and time.

JFF September 20, 2011 at 10:47 am

Speaking of Maxwell, Einstein’s synthesis was severely limited due to Heaviside’s truncation of Maxwell’s original work from quaternions to vectors. Supposedly, if Einstein used Maxwell’s Equations in their original forms, things would have worked out much differently.

coturnix September 20, 2011 at 4:59 am

Relativity is correct as far as humankind have tested it. It might approximate something even more general, but we don’t know it yet.

Stephan Kinsella September 20, 2011 at 10:12 am

People here interested in that issue ought to check out Bethell’s article Relativity and the Priesthood of Science http://www.lewrockwell.com/orig6/bethell4.1.1.html

Tim September 19, 2011 at 1:05 pm

If god didn’t patent the universe, someone else might have entirely stolen his ideas and we wouldn’t have had such great inventions as hunger, disease and death.

Wildberry September 19, 2011 at 1:08 pm

Kinsella:

Not that you are bothered by facts or acuracy, but this is the actual quote from your link.

Therefore, the ultimate challenge is to argue why IP should be subjected to a different property ethics than any other property. I think this is impossible, and in fact to do so by any means would be to create an ethics which endorses production for external markets. Without appeal to morality or utility, I have simply stated that production for external markets is in fact, slavery.

Therefore, as ironic as this may sound, IP opponents find themselves in the curious position of advocating slavery.

Andras September 19, 2011 at 1:20 pm

He is shameless, and this is under the name of Mises.
Kinsella should put himself on the top of his Libertarian Controversies list.
I bet it with triple the registration into his course.

Matthew Swaringen September 19, 2011 at 1:49 pm

You’re just jealous you weren’t put on the list for making your own absurd pro-IP arguments.

Peter Surda September 19, 2011 at 2:34 pm

Andras,

He is shameless, and this is under the name of Mises.

Says the faux scientist.

Andras September 19, 2011 at 2:55 pm

I have written “I bet it would triple the registration into his course”.
Somehow it changed.

Matthew Swaringen September 19, 2011 at 1:48 pm

“Therefore, the ultimate challenge is to argue why IP should be subjected to a different property ethics than any other property.”
This is question begging first of all, and if it is property it’s protection is inherently contradictory to other forms of property, as has been reiterated multiple times in various different ways.

Wildberry September 19, 2011 at 2:28 pm

Mathew,

Your use of the word “inherently” says it all.

You didn’t seem to catch the central thrust of the quoted passage, which is odd considering it was a challenge to your smuggled assumpton that the two, IP and all other property, cannot coexist.

Consider this: If, as Mises writes “property is a human device”, then ALL property is a function of positive law in a real sense; that is it can only exist if there is an enforcable “rule” establishing rights of ownership relative to an economy and a system of enforcement of those rights.

Given that, what is the distinction between “real” property and the “fake” property called IP?

Despite all the hand-waving about scarcity and such, the answer is whatever distinctions we chose to make. It is a question of means employed to achieve desirable ends, fundamental of which is the continued and improving cooperation within a division of labor society.

In this regard, if you think you can resolve the controversy by claiming it is “inherently contradictory to other forms of property”, then you don’t understand your own argument.

I mean that in a good way.

J. Murray September 19, 2011 at 2:34 pm

Put “intellectual” in a basket, show it to me in such a way I can’t confuse it with a song, film, piece of paper with words on it, or a DVD with grooves cut into it with a laser, and then we’ll continue this conversation as to whether intellectual can be property.

Andras September 19, 2011 at 3:00 pm

As long as you don’t consume the particular property you can ask similar questions about all property and its ownership.

J. Murray September 19, 2011 at 5:14 pm

You sure could, but apart from this “intellectual” everyone talks about but can’t show, I can show you a piece of land that is mine, or a calculator, or a DVD, or a bar of gold, so on, so forth.

Andras September 19, 2011 at 7:29 pm

@J.Murray,
Definitely, your land, calculator or DVD is yours as long as nobody puts a claim on it. Or you claim their property unjustly. Your ownership feeling is natural but the conflict resolution with another person’s similar feelings about the same property is absolutely subjective. Thus, property, after settled, is a human device.
Similarly, independently whether IP is acknowledged as property or not, new IP is just entering the economy from an external status. (I do not mean the strawmen IP but the real ones) The resolution of their entry then must be subjective as any other newly internalized property. One extreme of this resolution is by social engineer Kinsella with his focus on instant gratification but ignoring the unintended (?) consequences.
Since there are not much physical property left uninternalized this is not so obvious any more with physical property.
Moreover, even with settled property, with every type of property, whenever conflict arises the arbitration will always be subjective. Whatever anarchists will tell you, as long as humans are not automatons there always be different rationalizations for this arbitration and all will have different levels of arbitrariness in them. So all of them are subjective. However, if humans were like ants and bees, their arbitration would be done by their chemistry. That would be the manifestation of real natural property rights if you could still call that a “right” and their “property” in that “society”.
Thus, again, property is a human device!

Wildberry September 20, 2011 at 12:10 pm

Andras,

That is a unique explanation. Well done!

Peter Surda September 23, 2011 at 1:25 am

Andras,

Similarly, independently whether IP is acknowledged as property or not, new IP is just entering the economy from an external status.

If this was true, it would be possible to show an example of IP entering the economy without using physical objects. I have challenged IP proponents for a long time to provide an example of this.

Wildberry September 19, 2011 at 5:20 pm

J. Murray:

Even though I get you are not really asking, but think you have found some kind of homerun zinger that is supposed to leave me with my jaw at my knees, let me respond to you just for fun.

IP is a category of rights attributed to a type of thing. We have real property, personal property, future interests in property, community property, quasi-community property, etc. etc. etc.

We use such categories to facilitate communication and cooperation as we go about our daily activities. Despite your implication, it has meaning that any third grader can understand. “See, this is YOUR story. That’s HIS painting.” Are you smarter than a third grader?

The question is, what is the possible reason we woud invent something like IP? As Danny Sanchez pointed out today in his two excellent articles, it is social utility.

Now you tell me something; what is social utility? Whatever it is, that is the reason we have property, any kind of property, at all. After all, property is a human device, see?

J. Murray September 19, 2011 at 5:25 pm

I am asking. Put this thing called “intellectual” into a basket and show me how I can steal it from you in a way that you cannot utilize it and I’ll admit it’s property. I don’t want to hear about made up concepts like some form of objective “utility”, that belongs purely in the subjective camp. Objective utility is in the same category as dragons and leprechauns. When discussing property, it’s all objective, all the time.

Old Mexican September 19, 2011 at 5:09 pm

Re: Wildberry,

Consider this: If, as Mises writes “property is a human device”, then ALL property is a function of positive law in a real sense;

Non sequitur.

that is it can only exist if there is an enforcable “rule” establishing rights of ownership relative to an economy and a system of enforcement of those rights.

Break into my house and my two friends, Smith and Wesson, will show you how property can be enforced without the need for no stinkin’ laws.

Given that, what is the distinction between “real” property and the “fake” property called IP?

Oh, now you’re begging the question. “Since property is what law says, then IP is what law says! Great!”

Wildberry September 19, 2011 at 5:22 pm

Just how Old are you, Mexican?

Old Mexican September 19, 2011 at 5:35 pm

Re: Wildberry,

Just how Old are you, Mexican?

Old enough to know better than to make such question-begging arguments, Wildberry. There is NO direct link between this: “property is a human device,” and this: “then ALL property is a function of positive law in a real sense;”

That is a non sequitur. Certainly all concepts are man-made, but that does not mean concepts REQUIRE positive laws to be. Do you need an enforceable law to tell you what is a chair?

Wildberry September 20, 2011 at 12:07 pm

OM,
See my resonse to Mattew and see if you still think it is non sequitur. If you think these statements are not linked, then I would like to see your argument of how they are separate, if you have one.

Property is a member of the class “concept”. So you are correct, both concepts and property are a human device. Not all concepts are embodied in positive law, but certainly many are.

Wildberry September 20, 2011 at 12:02 pm

@Matthew Swaringen September 19, 2011 at 5:32 pm

“Consider this: If, as Mises writes “property is a human device”, then ALL property is a function of positive law in a real sense; that is it can only exist if there is an enforceable “rule” establishing rights of ownership relative to an economy and a system of enforcement of those rights.”

To say that property is a human device doesn’t necessitate the conclusion that it is a function of positive law, it could merely mean that property doesn’t exist without purposeful human action.

I suppose that would depend upon what you meant about “purposeful human action”.

The difference between these is that positive law is founded upon legislation or agreement while natural law is theoretically founded as the direct consequence of purposeful action, which would mean there is no other way to have society without it.

First, “legislative agreement” is a form of “purposeful human action.” Second, positive law can embody, say, historical, evolutionary common law. Third, when you define “natural law” being the “direct consequence of purposeful action”, you seem to be saying that natural law (whatever that actually is) and positive law may be (and are to the extent that “natural law” exists) equivalent, (which in many cases they are, if I grant what I believe to be your meaning.) Fourth, there is no other way to have society with rules that foster cooperation over conflict. In at least one interpretation, that is the function of positive law.

Positive law can be changed at a whim whenever humans decide to create a body of law that is different, it can be completely arbitrary if one desires.

While it is true that a legislative act entails the right of government to enforce and the obligation of citizens to obey under threat of enforcement penalty, it is also true that no law can forever stand without general public support. Also, the problem that you raise calls into question the theory of social governance you choose to assume. For example, if you assume monarchy or military dictatorship, perhaps there is a theory of positive law based on “whim”. If you assume something more towards self-government, “whim” does not really describe the process.
Also, what you would call “natural law” is already incorporated largely in legislative laws; the state criminal codes, for example. The fact that some legislatively produced codes are wrong is precisely the problem that we are discussing, but it does not de facto change the assertion I made, that all human and property rights, in the sense that they are an integral part of our system of self-governance, are the subject matter of positive law, and that such rights would not and could not exist without it or something similar.

If I agreed with your point that positive law was the basis of property, I would agree with your point that there is no inherent contradiction between physical and intellectual property, because property can be arbitrarily defined.

Yes, that is my point, except you smuggle in the assumption of “arbitrarily defined”, as if positive law is enacted with no incidence or means of opposition, or it never get revised or repealed once enacted, or exist as the result of what I describe as “legislative bias” (think of mercantilism applied generally. The fact that bad laws can be enacted is not contested, certainly not by me. Nonetheless, that only returns us to the question of how we can distinguish between good and bad laws, or whether such a distinction even exists, as is held apparently by Ancaps, and Kinsella in particular, who holds that any “State” action is “dripping with evil” and must be destroyed entirely.

However, then I would still say on utilitarian grounds that most of current IP law is both untenable and undesirable, and because it requires positive enforcement and infringements of the rights of 3rd parties (forcing ISPs, proxy services, etc to give up information about their customers, for example) the onus is on those advocating IP law to prove why it is a good idea.

Yes, I am familiar with this line of reasoning, which I hold to be erroneous. I agree that much of the positive law, including court decisions in support of the forms of expansion and protectionism that has been characterized in most of the revisions that have been enacted since the original Acts. However, there is a legitimate principle at the core of the debate.

If you peal everything about IP back to its core, you are left with the problem of external economies that Mises identified and discussed. Therefore, if I followed your theories of natural law, I would have to argue that IP is a natural law in the same ways that any other natural law, and is derived from self-ownership and as private property, where “property” as a human device designed in the service of cooperation and a division of labor society operating in a free market. In this regard it is not unlike any other property in this regard.

The lack of natural scarcity in the consumer goods is the nature of the subject matter of IP, and is the specific attribute that IP law is designed to address, and that Mises discussed. It is unique in this regard, its infinite servicabilty, and therefore not like land or chattel or intangible contractual property interest. Once you reach that philosophical point, from then on you are talking about positive law; the rules that we “choose” to enforce through our system of self-government, whatever you define that to be.

I would like to know exactly how it is altogether different in function from laws that created the supposed natural monopolies that I think most of us know did not work, contrary to the expectations of state officials at the time these monopolies were put in place.

First IP is in fact a monopoly, as is all private property; the right to exclusive use.
Second, I am not sure what you are thinking of here. I can think of monopolies granted by municipalities that exist today (i.e. Comcast cable) that in my view don’t work. There have been many examples of government granted monopolies, which generally have severe consequences for what would otherwise be a freely operating market. So if you are referring to a market monopoly, say where only one company can compete to deliver cable to your home or pick up your garbage, I tend to agree with you. Mises explains the difference between a market monopoly, however, and the kind of monopoly in which private property of all kinds is an example. In that sense of the word, monopolies are all around us and they work fine within a free-market context.

However, there is no denying that IP positive law creates monopolies that would not otherwise exist, except within the context of individual enforcement theories. Monopolies are inherently harmful, I agree, and so must be limited. All rights are likewise limited. Even the most absolutist interpretation of personal property acknowledges that some actions taken with one’s own property are forbidden to the extent that those acts infringe on the liberties of others. It is the task of positive law to make and codify those subtle distinctions. The philosophy and economics of law is always grappling with this dilemma.

I just don’t see how you are making the case easier for yourself going into positive law like this. You also seem to want to make the moralistic arguments, but you want the arbitrary rules, and you can’t convincingly have them both.

Danny Sanchez wrote a couple of articles posted yesterday, and I recently read William Patry on copyrights, and I am persuaded by the link between what Danny attributes to Mises in terms of utilitarianism, and the utilitarian argument in that sense that Mises makes for IP, and Patry describes in more detail.

In my view, IP positive law is a means to ends that have been historically determined by our society to be desirable; learning within the context of internal, (not external) economies. We may debate, as we should, as to whether contemporary enactment is consistent with that and other principles of free-market operation. But this does not touch the fundamental issue that property is a human device, and positive law is the means by which we create and enforces all property rights, and that there is considerable free choice concerning what form those laws take, and that they can change over time as our sophistication and understanding of our desired ends evolves, hopefully in a beneficial direction.
Despite Kinsella’s opposition to Patry on ideological grounds, there is substantial agreement between their views concerning the extent to which the principle of IP (which Kinsella denies exists) and the current implementation in positive law has become the means which directs to towards ends that many see as excessive and anti-competitive.

That is my view as well, but I do not hold for abolishment of the fundamental principles of IP; limited monopoly rights in exchange for disclosure and fair use. How limited, and what uses, are the important utilitarian issues under debate, in my opinion.

Stephan Kinsella September 20, 2011 at 12:51 pm

there is no denying that IP positive law creates monopolies that would not otherwise exist, except within the context of individual enforcement theories. Monopolies are inherently harmful, I agree, and so must be limited. All rights are likewise limited.

So… you admit IP is a monopoly, and monopoly is bad, and you conclude we ought to try to limit, instead of eliminate them? And then you say rights are limited to–? like monopolies/ So… individual rights are bad? They are inherently harmful, and we ought to try to limit property rights? I can see why you think this, given that your IP does invade property rights. The only way to justify this is to say property rights are to be limited, and setting up these monopolies is a good way to do it. How bizarre your thinking is!

Despite Kinsella’s opposition to Patry on ideological grounds

Ideology! principle! Heaven forfend!

Wildberry September 20, 2011 at 2:46 pm

Even I am not going to bother trying to unpack this pile of horse puckey. This is not even worthy of a straw man; it is more like tossing a bunch of hay in the air and saying “See???”.

As far as ideologies and principles go, I suppose it matters just a bit what, specifically they are, unless they are yours, of course! In that case, you are so obviously correct that it goes without saying, and anyone who sees it differently must be, let’s see, now did you put it again…”stupid or dishonest”.

Yea, that’s the ticket…

Old Mexican September 20, 2011 at 3:51 pm

Re: Wildberry,

See my resonse to Mattew and see if you still think it is non sequitur. If you think these statements are not linked, then I would like to see your argument of how they are separate, if you have one.

By all means – see below:

Property is a member of the class “concept”.

No. The CONCEPT of property is in the class “concept.” Property itself is very much a concrete thing – again, try and test if otherwise by breaking into my house so my two good friends, Smith and Wesson, give you a quick education.

So you are correct, both concepts and property are a human device. Not all concepts are embodied in positive law, but certainly many are.

So what? I can certainly write a law around the concept of “chair” to leave to posterity in no uncertain terms exactly what a “chair” is. That does not mean a) I invented the chair for all to behold and b) that by law, you cannot rest your buttocks anywhere else. Same with property and property rights: both do not exist by virtue of laws, but by virtue of our ability to defend our property. I do not need a law to have my two very good friends – Smith and Wesson – stop you from entering into my house and taking my LCD TV, or do I?

Wildberry September 20, 2011 at 5:33 pm

@Old Mexican September 20, 2011 at 3:51 pm
“Property is a member of the class “concept”.

No. The CONCEPT of property is in the class “concept.” Property itself is very much a concrete thing – again, try and test if otherwise by breaking into my house so my two good friends, Smith and Wesson, give you a quick education.

That S&W comment was cute the first few times you lifted it from Neil Schulman , but try to think of something else for variety sake.
As to your “point”, yes property is a concept to describe a certain class of things. This is meant to be helpful in some way, or are you just creating another opportunity to use your S&W line? This is not what I would expect from a Mexican that was actually old enough to know better.
“So you are correct, both concepts and property are a human device. Not all concepts are embodied in positive law, but certainly many are.”

So what?

Exactly.

I can certainly write a law around the concept of “chair” to leave to posterity in no uncertain terms exactly what a “chair” is. That does not mean a) I invented the chair for all to behold and b) that by law, you cannot rest your buttocks anywhere else. Same with property and property rights: both do not exist by virtue of laws, but by virtue of our ability to defend our property. I do not need a law to have my two very good friends – Smith and Wesson – stop you from entering into my house and taking my LCD TV, or do I?

Again with the Smith and Wesson? You are like canned laughter.

Look, you can’t be taken seriously and I am not your foil for your imagined stand-up routine. If you want to believe that all you need to get along is your own self and your trusty six-shooter, then perhaps you envision somewhere like Afghanistan or Libya to be your happy place. The rest of us would like to have some rules that we can have some assurance that other people, especially strangers, are generally going to follow, and that there is an alternative to OK corral to settle every socially relevant dispute.

By the way, the average gun-slinger typically doesn’t live very long, so I assume you are either full of it about your friends, or you are very young, which explains a lot.

Matthew Swaringen September 22, 2011 at 6:38 pm

First, “legislative agreement” is a form of “purposeful human action.”

No doubt, but being purposeful doesn’t make the action valid. There is an implication of the need to use force against people any time legislation is passed. Either you are preventing A from doing X, forcing A to do X, or taking money from A to pay for something.

If you are utilitarian then you need a cost/benefit test to pass to prove the point, or you need a fundamentally undeniable logical proposition, which I think you are trying to say Mises actually put in his writing, but from what I’ve seen this is simply not the case.

What we see from Mises is rather mixed on this matter, is far from a logical proof, and yes, I think it’s entirely valid to say Mises is wrong in large part because he couldn’t have known what something like the internet would do. He may have been a genius, but even geniuses have their limitations, this is in fact why we don’t believe in government interventionism even if we think the right people are doing it.

Fourth, there is no other way to have society with rules that foster cooperation over conflict.

Than legislation? I certainly disagree if that’s what you meant here… But when you say “no other way” I would say that self-ownership and property rights meet the test, however, that’s part of the reason I think they are “natural” and not positive (meaning they arise without any legislation or use of force, that it in fact will require force to violate them and doesn’t foster cooperation).

that such rights would not and could not exist without it or something similar.

Something similar being what? In my opinion, something not at all similar would be the use of social norms, contracts, ostracism, and having a purely voluntary society that rejects the initiation of force, but I think this is also the best way to ensure rights are respected, because positive law requires taking people’s rights away to enforce other laws (taxation, imprisonment, etc.)

If you assume something more towards self-government, “whim” does not really describe the process.

Self-government is a variable term, define it as you see it please, because I haven’t seen your definition elsewhere.

To me “self-government” would mean voluntarism, ie: I govern my own actions, but I think you mean something more like democracy and I’m not sure why that’s valid, I think Spooner made a very good argument on this in No Treason.

you smuggle in the assumption

Which isn’t an assumption at all, it’s based on the knowledge that well connected political classes develop, which is something even every minarchist admits, via the whole necessity to maintain “eternal vigilance” against expanding government. Too bad that hasn’t worked… The empirical evidence is strongly against repeal of laws that help out a special interest except where there is a huge body of people who have a bigger reason to be against that policy, and while I think we will get there with IP we are still a bit away from that.

The problem is that enormous damage can be done waiting for repeal.

If you peal everything about IP back to its core, you are left with the problem of external economies that Mises identified and discussed.

I have seen his discussion and found it a bit lacking, but if you can go back to specifics on his logic I’m certainly willing to say specifically where I disagree with certain statements of his on this matter, and you can explain why you think those are logically necessary. That said, I don’t think I’ve seen that Mises ever agreed with the idea that copyright is like property, just that it’s necessary.

“external economies” is a reason that statists call for all kinds of other kinds of intervention such as cap & trade, etc. Similar to Hayek’s call for a welfare system I kind of think Mises made a mistake here. Why is it ok to question Hayek on some things but not Mises?

The lack of natural scarcity in the consumer goods is the nature of the subject matter of IP, and is the specific attribute that IP law is designed to address

Address by attempting to force scarcity? I am not seeing how that is ever a good idea. Even a system of government payouts makes a heck of a lot more sense to me than IP.

Matthew Swaringen September 19, 2011 at 5:32 pm

Consider this: If, as Mises writes “property is a human device”, then ALL property is a function of positive law in a real sense; that is it can only exist if there is an enforcable “rule” establishing rights of ownership relative to an economy and a system of enforcement of those rights.

To say that property is a human device doesn’t necessitate the conclusion that it is a function of positive law, it could merely mean that property doesn’t exist without purposeful human action.

The difference between these is that positive law is founded upon legislation or agreement while natural law is theoretically founded as the direct consequence of purposeful action, which would mean there is no other way to have society without it.

Positive law can be changed at a whim whenever humans decide to create a body of law that is different, it can be completely arbitrary if one desires.

If I agreed with your point that positive law was the basis of property, I would agree with your point that there is no inherent contradiction between physical and intellectual property, because property can be arbitrarily defined.

However, then I would still say on utilitarian grounds that most of current IP law is both untenable and undesirable, and because it requires positive enforcement and infringements of the rights of 3rd parties (forcing ISPs, proxy services, etc to give up information about their customers, for example) the onus is on those advocating IP law to prove why it is a good idea.

I would like to know exactly how it is altogether different in function from laws that created the supposed natural monopolies that I think most of us know did not work, contrary to the expectations of state officials at the time these monopolies were put in place.

I just don’t see how you are making the case easier for yourself going into positive law like this. You also seem to want to make the moralistic arguments, but you want the arbitrary rules, and you can’t convincingly have them both.

Old Mexican September 20, 2011 at 6:52 pm

Re: Wildberry,

That S&W comment was cute the first few times you lifted it from Neil Schulman , but try to think of something else for variety sake.

I don’t know the guy.

As to your “point”, yes property is a concept to describe a certain class of things. This is meant to be helpful in some way, or are you just creating another opportunity to use your S&W line?

And again, the concept of property is one thing. Property is a very concrete thing for human beings. One does not eat concepts, WB.

Again with the Smith and Wesson? You are like canned laughter.

Oh, my God – I so sorry I brought it up, WB. Now, will you kindly address the problem with your “positive law” canard?

By the way, the average gun-slinger typically doesn’t live very long, so I assume you are either full of it about your friends, or you are very young, which explains a lot.

I appreciate very much you calling me “young.” Makes my day, kid.

Peter Surda September 19, 2011 at 2:33 pm

Wildberry,

Therefore, the ultimate challenge is to argue why IP should be subjected to a different property ethics than any other property.

I see that there is a need to repeat myself again: it is logically impossible for IP to be subjected to a different property ethics than other property, since IP is another property belonging to someone else. IP is a redistribution of other property. If you support other property, you need to reject IP.

I know elementary logic presents an insurmountable obstacle for you. But at least I can clearly point out your error to others before they get confused by you spouting voluminous dadaistic pamphlets.

Stephan Kinsella September 19, 2011 at 3:45 pm

I paraphrased you, I didn’t quote you. and I linked back to the original quote so people can see your wisdom in its full glory. How is that “inaccurate”? I didn’t pretned to quote you. I would have used “quote marks” had I wanted to do that.

Wildberry September 19, 2011 at 5:10 pm

Kinsella,

Yes, you “paraphrased” the meaning right out of my words, without ever attempting to actually address the actual point I was making about external economies.

Forcing someone to produce for external economies is literally slavery. Since people generally won’t volunteer to be slaves, they will choose to do something else with their time. Therefore creators of intellectual products will produce something else, something that pays. You can’t have it both ways: external economies and production.

But that’s OK. Most people who care to look know by now what you are up to.

Here is Sasha’s quote in context:

“- Do you support the alleged “right” to stalk and film children for online broadcasts based on the notion that you don’t violate their physical integrity while exercising your physical control of your tools?
This question is important because it demonstrates the key issue of the scope of property rights: do the[y] go beyond the right to physically alter the object, or to “change momentum” as some excentrics tried to imply.”

Somehow your “paraphrase” seems to miss the point, but what else is new? He is challenging your notion of the “unlimited” scope of property rights, but that would be hard to discern from your “paraphrase”.

Gee, that’s two for two. Is there a pattern here?

Old Mexican September 20, 2011 at 12:51 am

Re: Wildberry,

Yes, you [Kinsella] “paraphrased” the meaning right out of my words, without ever attempting to actually address the actual point I was making about external economies.

That’s likely because your argument is specious. You simply made up that concept to prop up your pro-IP argument.

Forcing someone to produce for external economies is literally slavery. Since people generally won’t volunteer to be slaves, they will choose to do something else with their time.

You’re begging the question, WB.

Stephan Kinsella September 20, 2011 at 10:08 am

IP proponents routinely engage in question-begging. Either they are stupid, or dishonest.

Wildberry September 20, 2011 at 12:19 pm

@Old Mexican September 20, 2011 at 12:51 am

Yes, I made it up, which is what particular offense to you?

Here is another guy that made it up before me: http://mises.org/resources.aspx?Id=07d1b2f6-fb91-4c45-acf5-63ed940ce86a.

Try to offer a meaningful criticism, if you have one.

Old Mexican September 20, 2011 at 3:41 pm

Re: Wildberry,

Try to offer a meaningful criticism, if you have one.

You’ve got to be kidding me. I pointed out the fact that you totally made up the concept of “external markets” and you proceed to give me a link to Mises’ description of property rights? You’re one to talk about “meaningful criticism”!

Wildberry September 20, 2011 at 4:46 pm

Sorry, wrong link.

Try this: http://mises.org/resources.aspx?Id=eac7e8e0-67c4-49a4-a880-e7ddc5b7498e

Starting here:

The External Economies of Intellectual Creation

Matthew Swaringen September 20, 2011 at 5:36 pm

The problems with Sasha’s argument are
1) The biggest flaw is that he implies that not seeing filming children as a property rights violation is the same as supporting it. Many of us would be disgusted with these sorts of people and ostracize them, which is totally within our rights even if we don’t think what they are doing is violating property rights.

2) Except in a few cases, the “stalking” would be done on someone else’s property, and more than likely they would not be ok with someone stalking children or filming them. I suppose you can talk about “filming” without stalking by inviting children, and not violating their rights because the cameras are hidden or something, and I agree this is extremely distasteful. So in no way is it right for Sasha or you or anyone to say anyone supports these things by virtue of not seeing them as property rights violations.

3) The view is arbitrary, as is the norm with IP advocates. How is taking a nude image different than drawing a child nude? Or drawing different than imaging? And yet do you think someone who merely thinks about a nude child is guilty of a property rights violation? Where is the logical point of delineation? Is it if the drawing is too accurate? If the resolution of the camera is greater than 320×240?

Wildberry September 20, 2011 at 6:32 pm

@Matthew Swaringen September 20, 2011 at 5:36 pm

The problem with your analysis is you miss his point. He is just raising the issue that all rights to the use of one’s own property are circumscribed by the rights of others.

All of your hair-splitting analysis here is non-responsive to this point. Whereas we may disagree as to where the lines should be drawn to delineate the boundaries between competing rights, the fact that we develop such lines is not really controversial, except to those who refuse to acknowledge an obvious truth because the wrong person said it.

Andrew from Russia September 20, 2011 at 3:54 am

@Wildberry:

Forcing someone to produce for external economies is literally slavery. Since people generally won’t volunteer to be slaves, they will choose to do something else with their time. Therefore creators of intellectual products will produce something else, something that pays. You can’t have it both ways: external economies and production.

Wasn’t that strawman dealt with a month ago or do they respawn?

Peter Surda September 20, 2011 at 5:08 am

Andrew,

Wasn’t that strawman dealt with a month ago or do they respawn?

A zombie strawman, that’s a good one :-) .

Wildberry September 20, 2011 at 12:28 pm

Kinsella brought it up but then fails to address it. That’s ok, anyone who is paying the slightest bit of attention here can see what is happening.

As far as I know, Andrew, no one including you has made any attempt, much less a serious one, to lead us all through the reasoning that shows that Mises was wrong because he was writing before the internet, hadn’t evolved as far a Rothbard, or whatever.

Did I miss something? Perhaps you can link us all to your monumental rebuttal?

Andrew from Russia September 20, 2011 at 3:05 pm

As far as I know, Andrew, no one including you has made any attempt, much less a serious one, to lead us all through the reasoning that shows that Mises was wrong because he was writing before the internet, hadn’t evolved as far a Rothbard, or whatever.
Did I miss something? Perhaps you can link us all to your monumental rebuttal?

Technology has nothing to do with this dogmatic reading/misreading of Human Action, and the non-issue of “external economies” has been painstakingly addressed here. In fact, back then I saw two problems with it: (a) the assumption that author’s sales to copiers can only happen at consumer-good prices, and (b) preoccupation with externalities as if the scope of internalization doesn’t count whenever externalities are present.
Rather than suffering the diseconomy of arguing with write-only pro-IPers, I believe we can simply make a Graphviz flowchart of a typical IP debate, with entry points like “you wouldn’t steal a car, would you?” leading into an endless loop of trite retorts: “taking the fruits of one’s labor”, “why would anyone spend a billion”, “no incentives = sovok*”, “ever-cheaper copying necessitates copyright”, “so you are forcing the author to give his work away for free”, and of course, the classic: “theft is theft, no matter how you rationalize it”. No memory variables, no exit conditions – just random jumps from one haphazard defense to another.

*sovok (совок) is a Russian informal word for decadent Sovietism, invoked copiously by IP propaganda on the Eastern front.

Wildberry September 20, 2011 at 5:12 pm

@Andrew from Russia September 20, 2011 at 3:05 pm

Considering your “painstaking” address resulted in a similar detailed response here http://blog.mises.org/18048/millions-and-millions-of-patents-oh-the-humanity/#comment-797776 there seems to be some question about the finality of your conclusion this is a “non-issue”.

This is especially evident from the fact that your two point summary of the “problems you saw” looking back to that exchange are both fallacious.

a) the price the author sells at is not at issue with externalities. It is not a matter of what price is possible and/or whether a “wholesaler” might be involved, although it is hard for me to imagine why a wholesaler (publisher?) would pay for something it cannot own, but perhaps there is a business model there that could operate under precisely assumed conditions. In any case, that is not my issue. Rather, it is whether the benefit of production “for the most part” accrues to the producer or some unrelated third party.

b) This makes b) an equally invalid rebuttal, because it is not a consideration of WHO this third party is, only that if the benefit accrues to ANYONE other than the producer, FOR THE MOST PART, then it is MOSTLY production for external economies. Such production has consequences for the rational calculations of the future producer as to whether it is PROFITABLE to produce. That in turn has consequences for production and supply aimed at demand. That is the Mises argument.

So to your so-called problem, it in fact matters what the proportion of internalization to externalization results from the introduction of products to the market. If the proportion, IN THE JUDGMENT OF THE PRODUCER is to the benefit of the producer, he is likely to produce. If it is not, he will reallocate his resources, which is the rational thing to do.

Of course there are those producers who do not care or do not intend to profit from their creations. Mises deals with this under the term “creative genius”. I think he cleverly does that to clear the decks of subjective discussions of “real” motivation of producers. He limits his argument to those who only produce for an economic purpose, like the producers of technical manuals. They are not in the class of “creative genius” and so will be subject to the presence of externalities in his calculation of means and ends.

There is always some amount of externalities and they can’t be entirely eliminated. But if production is PRIMARILY for the benefit of some non-producer, production will decrease in the absence of coercion to produce, i.e. slavery. If you disagree with that premise, then you are in your own domain of economic theory, and apparently intend to compete directly with Mises for the correct and coherent economic theory. Naturally, you have not such intent or capability. You are a blogger on a site called Mises.org, but don’t let that bother you. Mises is old, wrote before the advent of the internet, and can therefore be casually ignored when convenient by mental giants such as yourself.

So as to both of your “problems” as I tried to point out to you in my response, you miss the point. If you miss the point, your “rebuttal” is aimed at the wrong target.

In general this is what I find ironic about the anti-IP side of this debate; you are so convinced that the issue is elementary, you don’t even realize that you haven’t addressed the issue being raised, and declare victory without ever joining the fight. You make a big show of sharpening your knives against a dead adversary, or one that you construct with the weaknesses you wish to conquer. It is not a heroic act, nor particularly useful.

Andrew from Russia September 21, 2011 at 1:49 am

@Wildberry:

So to your so-called problem, it in fact matters what the proportion of internalization to externalization results from the introduction of products to the market. If the proportion, IN THE JUDGMENT OF THE PRODUCER is to the benefit of the producer, he is likely to produce. If it is not, he will reallocate his resources, which is the rational thing to do.

Nice try but it was illustrated that the proportion between the two does not matter because one does not generally eat away from the other. If any author/inventor/producer is, for some inexplicable reason, worried about externalities rather than his own pocket, then so be it – I admit that such whimsical types can, indeed, be motivated by IP. Perhaps it’s OK if we declare “maximizing creative output” as our “policy goal” and then go about “incentivizing” every producer. But that means Austrians out, Chicagoites in.

But if production is PRIMARILY for the benefit of some non-producer, production will decrease in the absence of coercion to produce, i.e. slavery.

It either pays, or it doesn’t. There’s no need to be concerned with interpersonal comparison of the degree of benefit.

Wildberry September 21, 2011 at 10:34 am

@Andrew from Russia September 21, 2011 at 1:49 am

it was illustrated that the proportion between the two does not matter because one does not generally eat away from the other.

Declaring victory, without actually trying to argue this point? What is your reasoning behind this bald assertion? Obviously Mises disagrees, so perhaps you could have the courtesey to explain to all us simple folk why he is wrong.

The policy goal is to link production with internal economies. That is the policy that leads to innovation and increasing supply; economics 101.

If an economic good has some price value, then the rule of private property requires that the benefit of that good acrue to the owner. You propose something else.

Note that Mises does not limit his explanation of external economies to IP, but only uses it for illustration as an “extreme example”. So you are in a peculiar position of arguing against the principle of private property. Like I said, socialism is a hard habit to shake.

It either pays, or it doesn’t. There’s no need to be concerned with interpersonal comparison of the degree of benefit.

Yes, but you fail to indicate whether it matters to whom it pays. As to the “interpersonal comparison”, this is nonsense. I am not engaging in such a comparison. Just follow the money in your “model” and see if it leads back to the producer/owner. If not he is producing for an external economy. This is not rocket science.

Wildberry September 21, 2011 at 10:43 am

One more thing:

First you said this:

b) preoccupation with externalities as if the scope of internalization doesn’t count whenever externalities are present.

Then this:

Nice try but it was illustrated that the proportion between the two does not matter because one does not generally eat away from the other.

Perhaps you can explain how these are not contradictory?

Andrew from Russia September 21, 2011 at 11:31 am

it was illustrated that the proportion between the two does not matter because one does not generally eat away from the other.
Declaring victory, without actually trying to argue this point? What is your reasoning behind this bald assertion?

I illustrated my point with an example of two producers in the thread I already linked to.

First you said this:
b) preoccupation with externalities as if the scope of internalization doesn’t count whenever externalities are present.

Then this:
Nice try but it was illustrated that the proportion between the two does not matter because one does not generally eat away from the other.

Perhaps you can explain how these are not contradictory?

The degree of externalities tells nothing about the degree of internal benefits. Didn’t I put it clear enough? The corollary is that an externality-prevention strategy (e.g. IP) is not necessarily an income-maximization strategy. And it must be repeated that, absent IP, internalization is always possible because there’s no information without media, and media is always privately owned.

JFF September 20, 2011 at 10:57 am

I see, a thoroughly beaten dead horse becomes a strawman zombie. Fascinating.

  1. He also wrote, “To paraphrase the late economist, John Robinson, patents and copyrights slow down the diffusion of new ideas for a reason, to insure there will be more new ideas to diffuse.” []
Share
{ 7 comments… add one }
  • Edgaras December 15, 2010, 1:58 pm

    hehe nice 🙂 I will try to think/find more. I actually intended doing a similar collection.

CC0
To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.