December 14, 2010 • 3 comments

Renaming Intellectual Property

From Mises Blog, 2008; archived comments below.

Renaming Intellectual Property

March 6, 2008 by Stephan Kinsella

In If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?, Techdirt writer Mike Masnick discusses various proposd replacements for the misleading term “intellectual property.” Contenders include “intellectual monopoly,” “intellectual privilege,” “imaginary property,” and “None of the Above.” There are problems with each of these. Masnick concludes: “In general, because of common usage, I don’t think it’s bad to use the phrase “intellectual property” just so that people know what you’re talking about — but we should be careful to not use it in a way that reinforces the concept that it’s property just like other kinds of property.”

I tend to agree. What IP law does it give legal (positive) rights to people to try to protect or stimulate innovation or creation. It gives them rights in innovations, creations, recipes, or patterns. If one keeps in mind the distinction between natural and positive rights, then it’s easy to see that laws do create legal rights, and of course all rights are, in the end, types of property rights. So IP laws do create (positive, or legal) (property) rights. And they do have to do with products of the mind, or intellect. So “intellectual property” rights seems fine to me, if one realizes that there is a difference between positive right (positive law) and natural rights (natural law).

Still, some ideas came to me (and I own them, heh heh!). It would be nice to take the word “property” out, and just refer to the rights conveyed. Copyright gives authors of original works certain (legal) rights to their “works” or creations. Books, songs, paintings are regarded as “original works of authorship”. There is an element of “creativity” to these things. Patents give certain (legal) rights to inventors of practical inventions–methods or processes for doing things (recipes) or arrangements of matter (designs). What do inventions and “works of authorship” have in common? One is practical, aimed at some gizmo or method that produces a practical result (a machine or process). Another is aimed at “creative” things–paintings, novels, songs. J. Neil Schulman, in his neo-Randian/Galambosian [I don’t know if he would accept this label] IP theory groups them all under the term “logorights,” where the “logo” refers to a “pattern”. I think this is a pretty good description: a recipe is a type of pattern; as is the design for a practical machine or device. Likewise, original works like paintings, music, etc., are obviously representable digitally, as patterns. Copyright and patent law clearly grant rights … to whom? To creators–inventors and authors–of “logos”–patterns, such as machine designs, process steps, or the patterns that represent the song, painting, etc.

So as much as I disagree with Schulman’s justification for “logorights,” the term is a pretty good one–except that it is so arcane. A variation on it using more standard terms might be better: pattern rights, or perhaps innovation rights. Or, to make the label a bit less “neutral,” replace “rights” with “monopolies” or “privileges,” since that is what is being granted by the state. So we have “pattern monopolies” or “pattern privileges,” “innovation rights” or “innovation privileges.” I think I like “pattern monopolies” the best.

***

Archived comments (alternate version):

{ 96 comments… read them below or add one }

David Bratton March 6, 2008 at 10:18 pm

I nominate the term scarcity privilege.

Jeremy March 6, 2008 at 11:27 pm

I like intellectual monopoly and intellectual privilege. I lean toward privilege only because it retains the “IP” designation.

If you use pattern monopolies or many of the other suggestions it would take an explanation every time it’s used and seems less likely to catch on.

iceberg March 6, 2008 at 11:30 pm

I personally prefer ‘pattern monopoly’, but I’ve referred to its enforcement as “the war on patterns” and ‘pattern tyranny’.

http://iceberg18.blogspot.com/search/label/pattern%20monopoly

Adam Knott March 7, 2008 at 1:20 am

From a libertarian point of view, the most important aspect of IP law may be its prohibitionary aspect; the way it attempts to prohibit acts of the individual.

So then perhaps “pattern prohibitions”.

IP law seeks to criminalize normal mimicking, copying, replicating, (i.e., learning)

So maybe “copy crimes” or “replication incarceration” or “learning tax” ??

“information penalization” ?

Imitation is the most sincere form of flattery.

So maybe “imitation criminalization”.

There is “copy cat” and “monkey see, monkey do”.

Maybe “animal rights” is apropooo?

If Hoppe and Rothbard have insight, then “pattern homesteading” could be right.

If earning while not working is the game, then Don Corleone says “pattern protection” is the name.

But my favorite rhyme of all, concerns the way I collect my toll.

I put something in the public space, practically right in front of your face.

And when it moves you as it certainly will, I’ll have you deposit into my till.

And when you protest that this is merchantile, I’ll cite libertarian philosophers with a smile.

Jean Paul March 7, 2008 at 2:51 am

+1 for pattern tyranny…

kingmidas March 7, 2008 at 6:43 am

Forgive me, for I may just need some enlightenment. But I am unable to reconcile why people would use their creative aspirations if they did not have any protection in reserving those rights. I only state this, because all the terms that are being used to describe creative interest have a derogatory meaning. “Monopoly”, “Privilege”, “Prohibition”, “Tyranny”

I present one question, why would somebody create, without some kind of protection. Example, Murray Rothbard gets an advance to write “History of Economic Thought” from publishing company “A”. The work eventually takes Murray 5 years to complete, which publishing company “A” eventually has to pay Murray $100,000. A day after the book is published, publishing company “B” purchases a book for $50 and starts reproducing the book. My question is why would publishing company pay Murray $100,000, when they could just wait until the book is produced and copy it? There would not be anything unjust about this practice, if as Stephan Kinsella claims Murray’s interest is not property.

Using the word “property” is the only way I can reconcile the need for protection; since I believe people only have a fundamental right for protection of life and property. The book that Murray Rothbard has produced is a tangible item. Thus, this original version is Murray’s property and he retains an interest in all subsequent versions should he choose. Or he has the right to sell that interest (property) to somebody else, who then becomes owner of that interest (property). Murray has the right to prevent somebody from infringing on his property. Just as neighbor “A” has the ability to prevent neighbor “B” from trespassing on his property.

I personally do not need see the need to differentiate between property, rather it be real, personal, or intellectual. But since people are predisposed with segregating property, I would call it “creative property”

jaqphule March 7, 2008 at 8:24 am

I think we need a new, quantitative SI unit to express discrete amounts of intellectual property.

I propose we call the unit the “kinsella”. The definition of the unit kinsella shall be defined by Stephan, who will decree that all ideas contain zero kinsellae.

Therefore, all works of Kinsella have no kinsella.

I’m sure this makes an argument about IP, but I’m not entirely certain what it is.

jeffrey March 7, 2008 at 8:26 am

Why do people who favor IP on innovation grounds assume that production of goods and services occur with zero cost, that the only real barrier to entry into a market is IP? That is clearly not the case. Even if texts are open source, the major work of enterprise is marketing. Anyone can publish Mark Twain today but only those who have a marketable package and good distribution channels do so. Recipes are open source. There is a massive market in public domain texts. Font packages are completely unprotected and yet I’ve bought many over the years. Now, it’s true that in absence of IP, the economics of publishing would change in ways that we can’t entirely predict. But even now, there is a vast amount of publishing that occurs under the Creative Commons license. For that matter, music production with the voluntary relinquishment of IP is everywhere. I would like to see an article that lays out all these examples as a means of disproving the argument that profitable innovation requires IP.

George Gaskell March 7, 2008 at 8:58 am

Pattern slavery.

Person March 7, 2008 at 9:07 am

Like Stephan_Kinsella, I agree that IP is a fine term since people understand what you’re talking about (to the extent that they understand the concept to begin with); and that IP is a form of property, though we can all debate about whether that kind of property is justified.

I think think Masnick’s argument is sophomoric, but whatever.

“Pattern rights” accurately conveys it, so that’s a great one, and neutral. Whatever you suggest, it should be fair if applied to physical property. If you’re going to call it “pattern privileges“, you should be prepared to refer to physical property rights as “item privileges”. Or better, “item monopolies”!

jeffrey: Why do people who favor IP on innovation grounds assume that production of goods and services occur with zero cost, that the only real barrier to entry into a market is IP?

Easy: They don’t. The problem, which I’ve laid out before, can be expressed in terms of Mises’s calculation argument. (On a libertarian mailing list, I’m always aggravated when Max Chiz defines away this argumen.)

Entrepreneurs face a choice between producing intellectual works, and producing other goods. (Don’t worry about the “goods” label — just look at the underlying choice, Max.) If he cannot put a *price* on those possible outputs, he cannot rationally factor in their relative utility to everyone else. And if there is no property in them, there can be no prices.

Scott D March 7, 2008 at 9:14 am

I present one question, why would somebody create, without some kind of protection.

There are many possible answers to your question. Here are a few:

1. The question ignores ethical considerations. You cannot justify IP without resorting to appeals to intrinsic or objective value, which quickly leads us to violating the rights of some for the benefit of others. If fewer people publish with the removal of IP law, it is incorrect to presume that society is worse off for it. If IP is distorting the market, removing it should be a net gain.

2. People who wish to create will still do so. Even if we assume that without IP, money can never be made from creative works (a very poor assumption, in my opinion), inventors will invent, authors will write, musicians will still write and perform. It is what they are driven to do.

3. Fashion is an example of an industry that is not “protected” by IP, except for trademark. Companies can and do copy fashions and produce them more cheaply (knockoffs), but designers still apparently make out quite well from the sale of the more expensive product, and they keep on creating.

4. The market will provide a way. Many options, such as contracts that limit the user’s ability to copy, have been proposed, but I think that most such schemes are both too limiting and too limited. The blogosphere is a great example of alternative ways for people to profit from writing. Bloggers make money primarily through advertising. This relationship and the mechanics of internet addressing, combined with pressure from the readership, tends to keep people from copying, even though it would fairly easy to get away with. I could elaborate more on why this is so, but I think it should be obvious to anyone familiar with blogging.

People want to read stories, hear music and see performances as much as other people want to create them. It is foolhardy to assume that IP is the both the only and the best means for the former group to trade with the latter.

ktibuk March 7, 2008 at 9:50 am

Socialist that lived before you have already named property as theft.

Why do you bother?

Person March 7, 2008 at 9:55 am

Scott_D:

1) No, it finds that the merit of IP outweighs those considerations.

2-4) All of those methods can exist with or without IP. What cannot exist are methods that do depend on IP, and are pareto improvements. With IP, we get BOTH kinds of works.

4) The market would provide a solution for providing lumber even if property rights in wood were abolished. Does that mean there would be no ill effects from doing so? Does that make property rights in wood obsolete?

kingmidas March 7, 2008 at 10:06 am

Just to rebut some arguments, eventhough, I agree with the majority that there are other barriers to entry. However, in a truly free market, profit will always be zero. Since competitors wills enter the market until profit reaches zero. (I am not debating whether this is a good idea – for I wish we had a free market) I just cannot fathom somebody spending 5 years researching and writing a work of art without anticipation of some kind appreciation at the end. Whether that is novelty of appreciation from other writers, love from family, or most likely compensation from a publisher.

A publisher is not going to pay compensation for a work, who knows as soon as the book is released will be copied and redistributed by a competitor. Some have stated they must have the means to enter the industry, however, there are already numerous publishers in the industry, which would require little additional cost to change words on a page. It is not like they have to completely change the format.

As for marketing and knock-offs, the effects have not taken effect. Since they still have marketing / production copyrights. The people, who they initially market their items, are the wealthy. These people do not want to be little themselves by obtaining some cheap knock-off. So the fashion industry has lost minimal sales by allowing knock-offs. The majority of people purchasing knock-offs were not purchasing the real product any way. So in this sense the knock-offs, eventhough similar, are a completely new product.

As for music, the industry is in chaos. Musicians are not getting paid, since there music is getting bootlegged on the internet. This is why the industry had to result to sue people for illegal downloads.

If there were no copyright laws, then what would prevent Pepsi from flooding the market with replica Coke cans that contain nothing more than tap water. People would not be able to differentiate between the two cans before purchasing. Thus, people will stop purchasing the cans, because they get tired of getting tap water. In turn Coke does the same thing to Pepsi. Both taking the approach that if people stop purchasing the other’s product, then in turn the people will purchase their product. I realize this is an extreme and the stores and vendors would create a barrier by only purchasing from authorized Coke or Pepsi distributors. It is only to show a point.

Inquisitor March 7, 2008 at 10:49 am

Or Pepsi could simply be sued for fraud…

Stephan Kinsella March 7, 2008 at 11:09 am

Person: “Like Stephan_Kinsella, I agree that IP is a fine term since people understand what you’re talking about (to the extent that they understand the concept to begin with); and that IP is a form of property, though we can all debate about whether that kind of property is justified.”

The problem is “property” has positive connotations. So I think that word should not be used. “Rights” would be better, but even that has some positive connotations. So I think “Pattern Privileges” is the best term.

“”Pattern rights” accurately conveys it, so that’s a great one, and neutral.”

Not quite neutral, b/c “rights” has a positive connotation. This is why rights-inflation is bad.

“Whatever you suggest, it should be fair if applied to physical property.”

Not so, since we all here already agree that physical property is justified, so it’s okay to use property for it. And physical property rights are not creatures of the state or state legislation, as state-granted pattern privileges necessarily are.

“If you’re going to call it “pattern privileges”, you should be prepared to refer to physical property rights as “item privileges”. Or better, “item monopolies”!”

No, because they are not privileges granted by the state; they are natural. Property rights can exist without a state; pattern privileges cannot.

“2-4) All of those methods can exist with or without IP. What cannot exist are methods that do depend on IP, and are pareto improvements. With IP, we get BOTH kinds of works.”

The problem is that for works that depend on IP — the IP has a cost, in terms of infringing others’ rights. It destroys wealth since it’s a state intervention, which leads to less innovation and creative works, since wealth is clearly a precondition to producing works, and the mroe wealthy society and people are, the more works they create.

Person March 7, 2008 at 11:20 am

Not so, since we all here already agree that physical property is justified, so it’s okay to use property for it. … No, because they are not privileges granted by the state; they are natural.

Whatever happened to coming up with a neutral term, and not assuming your conclusions?

The problem is that for works that depend on IP — the IP has a cost, in terms of infringing others’ rights.

Assuming conclusions again.

It destroys wealth since it’s a state intervention,

Arresting murderers is a state intervention — does it destroy wealth?

which leads to less innovation and creative works, since wealth is clearly a precondition to producing works, and the mroe wealthy society and people are, the more works they create.

Applies equally well to abolishing property rights in lumber.

Scott D March 7, 2008 at 11:52 am

kingmidas,

If there were no copyright laws, then what would prevent Pepsi from flooding the market with replica Coke cans that contain nothing more than tap water…

Scenarios like this don’t hold up. Pepsi has an interest in maintaining its reputation, stores have an interest in guaranteeing genuine product to its customers. Trying to pull off a con on this scale is incredibly risky, and not likely to succeed, in the long or short term. Much safer and more productive to try to cultivate Pepsi’s market-share and improve its own product than waste enormous amounts of money on a scheme that will surely backfire and turn public perception against Pepsi.

You may contend that I am missing the point, picking over the details, but I think that this is precisely the point. Most people choose not to murder other people, not because it is against the law, but because killing for any reason but self-defense is repugnant.

Person,

IP promotes pareto efficiency: prove it.

Jean Paul March 7, 2008 at 12:01 pm

Ownership of stuff is the exclusive right of determination over that stuff.

Property in physical stuff then defines a physical zone over which the owner is ruler – his actions in that zone are UNCONSTRAINED because he has the exclusive right of determination over that zone.

IP claims to infiltrate that zone regardless of the owner’s consent (violation of prior wholly owned property) requiring the owner to now limit his actions – actions which, prior to the new song/book/invention materializing, were fully unconstrained by the definition of what property is.

Thus IP undermines the very meaning of ownership, all the way to undermining self ownership – it is a constraint on action claimed to permeate the entire universe at the instant of discovery of the IP.

In other words, although IP materializes later in the timeline, it supposedly trumps the ownership of everyone else’s physical property held earlier in the timeline, without their consent.

Total nonsense. Unlibertarian, anti-freedom, nonsense.

Person March 7, 2008 at 12:17 pm

Scott_D: The same reasons physical property rights are pareto-efficient: They give producers and consumers strictly more choices of utility-enchancing actions.

Next?

David Spellman March 7, 2008 at 12:46 pm

The argument that lack of patent/copy rights and intellectual property rights will discourage innovation and production of knowledge is quite disingenuous.

Most inventions are created a work for hire by employees of corporations who earn a salary and gain very little for the patents they produce. Most books and other works of art are produced by people without advance knowledge of whether anyone will pay for them. They are not solely motivated by the anticipated profit since the odds of doing so are slim to none.

In the absence of protections, people will still be motivated to create new knowledge, inventions, and art. It is true that people would not profit spectacularly from it, but they would be paid by those who desire the results. In most cases, that is exactly how new things get created already.

If all book publishers merely plagiarized, they would quickly run out of material. Someone will pay. The arguments against it amount to rehashing the free rider problem. All the great classical composers of music had no copyright protections, but they had patrons who paid them to write and perform music. Artists will have to go back to patronage and performance to make their money, but they will make money.

And like I said, very few inventors gain much more than a salary for their patents. Invention is a work for hire. By not protecting that work as intellectual property, we merely say that the government cannot confer monopolies on knowledge. The knowledge will still be generated based upon its value to those who utilize it.

It is ridiculous to say that progress will stop and technology will cease advancing if we have not patent and copy right protections. Civilization has advanced quite nicely without any protections for thousands of years. And when was the last time anyone patented anything as useful as fire or the wheel?

Jean Paul March 7, 2008 at 1:05 pm

The reason people don’t spend more of their time in the pursuit of expression / innovation / etc, is that they are too busy collecting legal tender by other means to feed the tax man.

The primary reason creative people are so motivated to become IP rent-seekers in today’s world is simply to get free of all the other rent-seekers the poisonous state creates.

Instead of finding ever more elaborate ways to enslave each other, driving everyone into an overworked, overstressed frenzy of self preservation, we should disarm and fall back to a relaxed and respectful natural anarchy.

Person March 7, 2008 at 1:18 pm

David_Spellman’s argument that the low salary of many existing inventors proves the impotence of IP is quite disingenuous.

Most inventions are created a work for hire by employees of corporations who earn a salary and gain very little for the patents they produce.

And if the person hiring them to do that didn’t have the potential of the massive profits later due to having a patent on this thing that no one else could produce, that would make his offered salary higher or lower?

In many cases (like this post), yeppers, that’s exactly what would happen. But, like I’ve said several times, that can happen with or without IP. However, it will eliminate most large-scale, for-profit endeavors. No Lord of the Rings movies, no massive competition for high-grade actors, no Nintendo Wii games, etc etc etc etc.

If all book publishers merely plagiarized, they would quickly run out of material.

The problem isn’t plagiarism; when I pirate stuff on a P2P network, I can quite clearly see the true author/producer of the material.

arguments against it amount to rehashing the free rider problem. All the great classical composers of music had no copyright protections, but they had patrons who paid them to write and perform music.

Great, so the only intellectual works we would ever get would bet those that people do as charity, or that some rich person pays to have done.

(Note the similarity to what socialists say about the possibility of production of physical goods without Lockean property rights…)

Jean Paul March 7, 2008 at 1:27 pm

I don’t need an armed government to enslave us all for the sake of Lord of the Rings. I am not willing to make that trade, and it’s my right to reject it. If this is the best argument you have, you’re already sunk. Why don’t you give up already?

Stephan Kinsella March 7, 2008 at 1:37 pm

Person: “Whatever happened to coming up with a neutral term, and not assuming your conclusions?”

Patent grants are privileges granted by the state. this is just descriptive.

“Arresting murderers is a state intervention — does it destroy wealth?”

Prohibiting or punishing murder doesn ot requires the state. Granting a monopoly over an idea does.

Person March 7, 2008 at 1:43 pm

Jean_Paul: I don’t need an armed government to enslave us all for the sake of Lord of the Rings. I am not willing to make that trade, and it’s my right to reject it.

Okay, and the millions that were willing to make it?

Stephan_Kinsella:Patent grants are privileges granted by the state. this is just descriptive.

So are most existing property rights. Hey, I’m just DESCRIBing how it is.

Prohibiting or punishing murder doesn ot requires the state. Granting a monopoly over an idea does.

Nope. Social conventions could conceivably allow for IP, just as surely as they could allow physical property. Whatever premise you want to use for the property rights that you like, in order to prove they “don’t need the state” will carry over just the same to IP.

Jean Paul March 7, 2008 at 1:57 pm

I’m sure we’ve all seen kids putting on make believe ‘plays’ or ‘movies’ on a playground. The kids profit from the act itself, not from some state-protected ritual of dollar exchange. They play their game with an honesty and purity of purpose the rent seekers cannot hope to match. Theirs is a consumption activity – its success is measured not in terms of arcane legalisms, but purely on the basis of wants satisfied. The kids spend their time on this for the simplest reason: because they can.

When you grow up and leave the playground, you can bring your pure motives with you. After all, the reason anyone builds a better mousetrap is to catch more mice. Simple enough. Pure. Honest. But the reason a cynical grown-up *patents* his moustrap is so he never has to sweat to pay the greedy tax man ever again. It’s an escape from a burden that no one should be carrying in the first place. It’s the carrot that the state dangles, to spare you from the state’s stick.

In other words: the incentive is not the profit inherent to the activity, but the FREEDOM FROM STATE OPPRESSION that the state-secured rent buys.

Get rid of tax slavery, and people will be free to do good for goodness’ sake, rather than to secure their desperate survival.

Jean Paul March 7, 2008 at 2:04 pm

Person: “Okay, and the millions that were willing to make it?”

They’re free to not copy, or to voluntarily go to jail if they do, or to band together and ‘figure out a way’ to get what they want using their pooled resources, without violating anyone else’s prior, wholly owned property.

See how that works?

They’re obligated to be respectful of prior wholly owned property and the absolute and inalienable rights that property confers.

The rest of the world is NOT obligated to surrender their rights to make the LOTR party happen.

David Spellman March 7, 2008 at 3:28 pm

How would a movie like “Lord of the Rings” be made in the absence of IP laws? One way would be through subscription organizations. Movie producers or script writers would pitch their idea to the board of a subscription company. If it was something that the subscribers would like to see done, then a budget would be allocated and the movie would be made.

The subscribers would get a high quality copy for their own use–which might be to show in a theatre, view at home, or copy without limit to sell to other people. This would be done with the understanding that non-subscribers would also be free to copy and use the work without recourse. There is no problem because the subscribers got what they wanted and paid what they were willing to.

Yes, the general pubic would benefit without paying. Everyone could sit back and say “I will just wait until someone makes a great movie and copy it without paying for it.” If everyone does, no movies get made. But some people will inevitably say, “I would pay 10 bucks to subscribe to make Mr. Jackson’s next movie because I want to see it even if other people get it for free.” Movies will get made, and movie makers will make plenty of money if they are good and negotiate their terms.

Subscription organizations can finance all forms of art, medical research, technical innovation, education, and other social goods that require invention or creation of knowledge. It will get done because people want it to be done. It requires no government compulsion or intervention. The inventors, artists, and authors will very likely make more money than they do now, too.

David Spellman March 7, 2008 at 3:44 pm

Let’s take another example–medical research. Defenders of patents argue that drug companies would have no incentive to develop new drugs if they could not patent their medicines and charge high prices to recoup losses and motivate investment. Is that the only workable model for developing cures?

No, in fact it encourages drug companies to supress competition in order to make their patented solution more valuable. This encourages lobbying the government not only to protect their patent, but to also prevent competition through regulation. In other words, our system encourages killing people for profit.

Medical research could be financed by subscription companies instead. Who would join and pay? Obviously those suffering from disease, a long with their friends, families, and altruistic individuals. Researchers would pitch their proposals to subscribers with a vested interest in promoting every promising avenue of cure rather than begging government officials for politicized grants or doing the bidding of corporations with mixed agendas.

When your doctor told you that you had a particular disease, you could use the drugs or treatments already developed for nominal costs if that is all you can afford. Or you might decide to join a subscription research company and promote even better treatments because it is in your interests to do so. How many people would say “I am not paying a dime for life saving research if someone might benefit without paying?” I suppose a few might be stubborn enough to die for that view, but I would hazard to guess that subscription research companies would get plenty of financial support and make faster and better progress that our current pharmaceutical racket does now.

Actually, we already have subscription research organizations operating today for dozens of diseases. We just need to expand the concept to more areas of our society and eliminate the government granted monopolies that hold back progress in our health care and standard of living.

George Gaskell March 7, 2008 at 4:09 pm

The validity of IP cannot be determined by resort to consequentialist arguments that, without IP legislation, some particular work of art would not have come into existence.

Consequentialist arguments are not reasoned arguments. They are rhetorical pleas to get people to support some form of political action. (“Let’s abolish IP!” or “Let’s preserve IP!”) Like propaganda, consequentialist appeals flourish like a fungus in democracies.

One of the reasons that consequentialism fails in this context is the classic Bastiat question — how can you account for what is unseen, for what never exists as a result of some governmental action?

In any event, it’s pretty clear that in the absence of IP (copyright) statutes, the market for the kinds of works of art that are now covered by copyright law would change. For starters, there would probably be a cultural shift away from the plastic arts, and toward the performing arts.

Performing arts can’t be replicated like plastic arts. Music, for example, used to be more performance-oriented, before electronic technology made it possible to create a plastic object (the recording) out of a musical performance. The artistic qualities that audiences would pay to experience were the performances — something that was unique to that moment. People would pay good money to be in the room when Franz Liszt performed, but not as much to hear Joe Schmoe perform a copy of a Franz Liszt performance.

Fashion design tends to be one of the most performance-oriented arts today precisely because it has no copyright protection. It constantly changes to keep ahead of the copiers. The appeal of a top fashion designer comes from wearing what he is designing today, not what he designed last year. Every season is a performance.

A great chef (also working in a field without copyright protection) is one who can perform, right there on the spot, for his consumers. His product includes the theater of his restaurant, and the performance is the production of a meal that is very time-sensitive.

So, yes, art would survive without IP. But there would be a cultural shift in favor of arts that are more ephemeral, performance-oriented or otherwise incapable of exact replication.

Scott D March 7, 2008 at 4:30 pm

The same reasons physical property rights are pareto-efficient: They give producers and consumers strictly more choices of utility-enchancing actions.

Next?

Let’s think about that statement. “They give…more choices of utility-enhancing actions. ” To confirm that statement, I need your baseline of comparison. If I define that baseline as “No information may be bought or sold. All knowledge must be given away freely,” then I would say you are correct. However, I suspect that a free market would not behave in that fashion. My contention is that the spontaneous order of the market would provide those choices in due course, and that it would operate more efficiently than IP.

Person March 7, 2008 at 4:50 pm

David_Spellman: Those can all exist with or without IP. Why aren’t they happening today?

Jean_Paul: Okay, you don’t believe that people should have a set of rights you don’t like. We’re a little think on justifications there though.

Scott_D: If any information can be legally shared, people would set up databases such that you can download sufficient information to reproduce it. That would make it effectively equal to “all knowledge must be given freely”, so you agree.

George_Gaskell: Bastiat’s argument doesn’t refuse consequentialism; it just shows you should account for the unseen as best you can.

The rest of your response to admit that production would shift to favor the kind that you can only access if you can afford the live performance. So, all the people who can only afford the non-live-oriented version are worse off.

That’s not very appealing. I can’t afford performances every day. I can’t afford to hire someone to write a new software suite every time I want to get something done.

Oh, I should rely on charity (people making stuff for free and giving it away)? If you make that argument you have to accept that physical goods can feasibly be produced this way, which is communism, and why people criticize the anti-IP position as communist.

Jean Paul March 7, 2008 at 6:45 pm

Person says: Okay, you don’t believe that people should have a set of rights you don’t like. We’re a little think on justifications there though.

It has nothing to do with what set of rights I like or don’t like.

Prior ownership of physical stuff trumps the actions of the latecomer IP creator – not the other way around. I dunno how I can state it simpler. The actions of a latecomer have no power to erode the property rights that preceded it – which means IP has no power at all.

That’s all the justification that’s needed, and I don’t know why you keep ignoring this simple and basic point in favor of silly consequentialist arguments, especially since you claim to be anti-IP anyway. Perfectly good debunking right there, in crisp incontrovertible black and white. Why do you keep insisting on the contrary?

kingmidas March 7, 2008 at 7:09 pm

David Spellman was starting to sway me away from property interest with his analysis of subscriptions. As his two examples do illustrate how a product could be produced without IP. And since only people who wants or needs the item will subscribe to the subscription, only those people will be paying for the item. This in theory is my idea of a true libertarian state.

However, subscriptions are not without flaws. It still does not account for why people would subscribe to a company, when they know they can get the same item for free. Even David Spellman acknowledges that nobody will subscribe until there is a demand. At this point it is too late for the people, who would be paying for the item, to benefit from it. Which leads us back 360 degrees to having people pay for items they are unable to use and a majority of people getting it for free. Sounds like welfare to me. The rich paying while the poor benefiting. If this your stance, then yes Intellectual Property should be banned.

I am on board with Person, without the communist remark, that the majority of people cannot afford physical performances. This creates waste. People are willing to purchase plastic arts, but nobody is willing to produce, since they know they will be unable recoup their expenses.

Jean Paul stated: “Prior ownership of physical stuff trumps the actions of the latecomer IP creator – not the other way around.”
I believe the majority of IP interest involves the creator prior to ownership, not the other way around. The original creator wants to protect his property interest from subsequent owners.

Jean Paul March 7, 2008 at 7:53 pm

kingmidas says: “I believe the majority of IP interest involves the creator prior to ownership, not the other way around. The original creator wants to protect his property interest from subsequent owners.”

I think you misunderstand.

A person is born owning themselves fully. No matter what the state of the world is, that person is born ‘king’ of themselves, and within their body as ‘kingdom’ they may do any action they wish. This is what ownership means.

As the person grows and lives in the world, interacting with the other people who came before and the people who come after, they recieve gifts, or they take from the unowned state of nature, or they trade with others, and by all these methods they accumulate more “stuff” into their kingdom, expanding the zone where they are supreme ruler – that is, the zone where they can do whatever they want, and no one else can say otherwise.

All of this grows outward from the bubble of absolute self-ownership they were born with.

Now along comes a second person. Is there anything at all – any action at all – that the second person can do which will take away the powers of the king inside his kingdom?

No, there isn’t, because that’s not what being king of the kingdom is. That’s not what ownership is. Ownership is absolute and persists until relinquished, and the only way for it to be reduced is for the owner to willingly volunteer for that to happen – either by giving some of his stuff away, or by trading it with someone else, or by abandoning it, or by entering into an agreement with someone else not to do certain actions.

Given all of the above, how can IP possibly exist? The ONLY way is for a person to voluntarily agree to respect this IP notion, perhaps in exchange for some other privilege.

This all flows from self ownership: the fact that you are born the king of yourself, free to do whatever you want inside the zone of your own body.

To allow IP would require the rejection of these facts – facts which underlie the entirety of libertarian justice.

kingmidas March 7, 2008 at 9:22 pm

I believe property rights are the central theme that underlie libertarian prospective. And just like Jean Paul, I believe you are king of your kingdom (property). Should you decide to replicate a book, make your version of LOTR, or imitate a singer on your property confined within your kingdom that is your choice. However, just like you are unable to expand your kingdom to encompass your neighbors kingdom, you should not be able to infringe on your neighbors intellectual property. When you start reproducing a book and distributing it to other people, you have ventured outside your kingdom.

For example, your neighbor creates an invention, he should be free to contract how that item is replicated. Just as you as a land owner can state how a renter uses the property. Should you decide that no pornography will be sold on the property, the renter is not allowed to sub-contract that land to allow pornography.

You may make a case this is limited to the life of the owner. But property can be devised to enforce restrictions upon the land for future generations and should that devise be violated the land resides back to the heirs or anybody the devisee chose.

Sherman March 8, 2008 at 8:22 am

Question: Is Kinsella’s excellent body of work on this subject copyrighted? Or am I free to publish it at will and represent it as my own without consequence?

Stephan kinsella March 8, 2008 at 9:33 am

Sherman: “Is Kinsella’s excellent body of work on this subject copyrighted? Or am I free to publish it at will and represent it as my own without consequence?”

Copyright is not a verb–u can’t “copyright” something. An authored work automatically receives copyright protection. It has nothing to do with putting a copyright notice on it or registering it with the Copyright Office. So this reply of mine is subject to copyright too.

If you misrepresent yourself as the author you will look like a fool, and maybe subject to a fraud claim.

Your point however is a subtle, snide one–u are accusing me of hypocrisy. The charge is irrelevant and ad hominem; and based on ignorance of the law and on a false martyrdom/blame the victim set of premises.

Stephan kinsella March 8, 2008 at 9:34 am

Sherman: “Is Kinsella’s excellent body of work on this subject copyrighted? Or am I free to publish it at will and represent it as my own without consequence?”

If you misrepresent yourself as the author you will look like a fool, and maybe subject to a fraud claim.

Pro_IP_libertarian March 8, 2008 at 9:57 am

Adam Knott-

IP law seeks to criminalize normal mimicking, copying, replicating, (i.e., learning)

No it doesn’t. You can learn about the publicly released intellectual property of someone else all you want, you just can’t copy it and sell it as your own.

If earning while not working is the game, then Don Corleone says “pattern protection” is the name.

Socialist, “labor theory of value” claptrap. What about passive income from real estate, stocks, and bonds? Is that “earning without working”? No, it’s capital formation and it’s the foundation of the world’s economies. IP creators who earn great rewards from the marketplace should be rewarded because they have created great value.

Pro_IP_Libertarian March 8, 2008 at 10:01 am

Adam Knott-

But my favorite rhyme of all, concerns the way I collect my toll.

I put something in the public space, practically right in front of your face.

And when it moves you as it certainly will, I’ll have you deposit into my till.

And when you protest that this is merchantile, I’ll cite libertarian philosophers with a smile.

What do you mean here?

George Gaskell March 8, 2008 at 10:15 am

I am on board with Person, without the communist remark, that the majority of people cannot afford physical performances.

You know what the prices of all performances would be, even after a hypothetical major shift in the entire economic structure of goods currently covered by copyright? Wow, that’s amazing!

(Of course, by “amazing,” I mean “impossible.”)

Should you decide to replicate a book, make your version of LOTR, or imitate a singer on your property confined within your kingdom that is your choice. However, just like you are unable to expand your kingdom to encompass your neighbors kingdom, you should not be able to infringe on your neighbors intellectual property. When you start reproducing a book and distributing it to other people, you have ventured outside your kingdom.

If you own yourself, and your neighbor owns himself, then some third guy down the street (or across the continent) doesn’t have the right to control both of you and dictate the terms of the voluntary transactions between you.

That’s what this is all about — making sure that one designated person enjoys a protected market for all instances of a particular good. Just like some crony getting a charter from a monarch to sell all the pineapples from Hawaii, or all the curry from India, or all the corn from America, etc.

I guess we can add “Pattern protectionism” to the list of accurate terms for IP.

Pro_IP_Libertarian March 8, 2008 at 10:19 am

Jean Paul-

Not unless you already had a copy of the exact work in your possession. You can do whatever you want with the work – wallpaper your bathroom with it – you just can’t copy it and sell it as your own. Plus you are free to create your own work as long as it is not exactly similar. How is not being able to sell someone else’s work a violation of your rights?

Pro_IP_Libertarian March 8, 2008 at 10:24 am

Jean Paul-

How is the government enslaving you when you are free to make “Jean Paul of the Rings” at any time, providing it is not an exact copy of the original?

Jean Paul March 8, 2008 at 10:26 am

kingmidas says: “When you start reproducing a book and distributing it to other people, you have ventured outside your kingdom.”

Aha – we are getting somewhere. In my kingdom I am king, and In my neighbor’s kingdom he is king. What happens along our border is a matter for who to decide? Well, it’s between me and him and no one else.

So when the third neighbor gets upset at me for my dealings with my first neighbor, what is his justification?

He has none – because the only place he is allowed to get upset is in HIS kingdom, which is not involved in the transaction.

IP would deny this.

Pro_IP_Libertarian March 8, 2008 at 10:36 am

Stephen Kinsella-

Prohibiting or punishing murder doesn ot requires the state.

It does if you don’t want to be a criminal yourself, except in cases of imminent self defense.

Granting a monopoly over an idea does.

The state recognizes a right rather than grants one, much like the title to real property. The attorney hired to enforce those rights is paid by the property owner, not the state.

Jean Paul March 8, 2008 at 10:45 am

Pro_IP_Libertarian says: “…you just can’t copy it and sell it as your own.”

You say “can’t” – but being king of the kingdom, there is no such thing as “can’t”.

Copying and selling are two actions which are included under the umbrella of “in my kingdom I can do anything.”

They are not exempt; they are included in the powers that being king of the kingdom gives me – the power to do anything and everything with no constraints.

The only place “can’t” comes into being is in someone else’s kingdom. In your kingdom, you have a list of certain can’ts. In another person’s kingdom, they have a different list.

The only places I can’t copy and sell X are the kingdoms that prohibit the copying and selling of X. In my kingdom, and all the other kingdoms that are permissive of the action, I am free to do so.

Jean Paul March 8, 2008 at 10:51 am

Pro_IP_Libertarian says: “How is the government enslaving you when you are free to make “Jean Paul of the Rings” at any time, providing it is not an exact copy of the original?”

When I am not party to the agreement that prohibits ‘exact copies of the original’, it is enslavement (or if you prefer, lets just call it aggression) for the government to compel me to adhere to the agreement.

Forcibly compelled to adhere to an agreement without consent = ???

… = aggression.

Pro_IP_Libertarian March 8, 2008 at 10:58 am

George Gaskell-

Not really. The creator owns the rights to sell their “unique” good. Their only concern is you selling that good as your own. You are free to produce and sell “George of the Rings” at any time providing it is not identical to the original.

Now if someone was claiming that they had the rights to sell all fantasy movies without actually obtaining those rights that would be wrong.

Inquisitor March 8, 2008 at 11:00 am

Punishing criminals only requires the state if you’re a law enforcement socialist.

Pro_IP_Libertarian March 8, 2008 at 11:11 am

Jean Paul-

You say “can’t” – but being king of the kingdom, there is no such thing as “can’t”.

Copying and selling are two actions which are included under the umbrella of “in my kingdom I can do anything.”

You left out the “sell someone else’s intellectual property as your own”, which is the important part. That reaches into the creator’s “kingdom”.

You don’t have an agreement with each individual landowner in your town not to camp out in their yards, but it’s still trespassing when you do, isn’t it? The same principle applies to intellectual property. What you’re claiming is a right to sell someone else’s work as your own, which is an infringement of their rights. Which in light of the fact that you are free to create your own works provided they aren’t identical seems a little unfair, doesn’t it?

Pro_IP_Libertarian March 8, 2008 at 11:20 am

Inquisitor-

Punishing criminals only requires the state if you’re a law enforcement socialist.

Not at all, that’s the letter of the law. And one doesn’t have to be a socialist, collectivist, communist, etc. to feel that way. Otherwise you might have people punishing “criminals” who weren’t criminals just because they wanted to use false accusations as an excuse to steal from, abuse, and harass people.

That’s why the founding fathers set up a legal system which requires a rigorous fact-finding process: notice, counsel, speedy trial, public trial, confrontation of witnesses, etc. And also mechanisms which forces the government to prove its accusations, like habeas corpus. Without it you would have the abuses and atrocities that one sees in totalitarian dictatorships.

Sherman March 8, 2008 at 11:29 am

Kinsella: “Copyright is not a verb–u can’t “copyright” something. An authored work automatically receives copyright protection. It has nothing to do with putting a copyright notice on it or registering it with the Copyright Office. So this reply of mine is subject to copyright too.”

I apologize for any offense taken. Thanks for the free legal advice.

One more question: Is it legal for authors to annotate their work in such a way that their work would become part of the public domain? In other words, can an author legally disavow government copyright protection of his work?

Inquisitor March 8, 2008 at 11:35 am

Pro_IP_Libertarian, rationalize it however you please, I don’t care. Coercively taxing to provide law and order and outlawing competition IS socialism, by definition. If that makes you cringe (and it should), too bad. Now if you’re for some sort of Randian voluntarily-financed ‘state’ that’s another matter entirely, but I doubt it…

Jean Paul March 8, 2008 at 12:36 pm

P.I.L. says: “You left out the “sell someone else’s intellectual property as your own”, which is the important part. That reaches into the creator’s “kingdom”.”

The action “sell someone else’s intellectual property as your own” does not reach into anyone else’s ‘kingdom’ as we are calling it, except mine and the purchaser’s.

I start with my body and acquire some medium. This is my kingdom – my body plus the medium. I perform the action of rearranging the medium into some altered form, and of course this is my right as king of the kingdom, because there is no action prohibited to me in my kingdom.

I then approach another person, and we exchange meaningful words – our ears and voices being strictly contained in our kingdoms, there can be no prohibition on the content or the act of conversation.

The meaningful words invite him to give me a piece of his kingdom, for which I will give him a piece of mine – an arrangement which we both find agreeable. As no other kingdoms are involved – only mine and his – this agreement is not subject to prohibition.

We perform the exchange. The piece of his kingdom that he gives me is a couple of dollars. The piece of my kingdom I give him is the rearranged medium. This exchange involves no third kingdom, so there can be no prohibition on this action.

What did I rearrange the medium into? It doesn’t matter. That’s the whole point – that`s the core debunking of IP. For IP to exist, it has to matter. But it doesn’t, because none of the steps along the way involved a third kingdom; thus there can be no prohibition on any of the steps; thus there can be no prohibition on the entire exercise as a whole.

kingmidas March 8, 2008 at 12:50 pm

Jean Paul states:
“Aha – we are getting somewhere. In my kingdom I am king, and In my neighbor’s kingdom he is king. What happens along our border is a matter for who to decide? Well, it’s between me and him and no one else.”

According to this theory if I happen to visit your kingdom and leave my jacket, you have the right to sell that jacket to your neighbor. Since you are king of your kingdom and the neighbor is king of his kingdom. You cannot deny that you have sold something that does not belong to you. The same premise applies to IP. Again I state you have the right to make it, but as soon as you distribute it; you have sold something that you do not own. Thus, you have just committed theft.

As for not being privy to the contract, again the sub-contractor is not privy to the contract between the original owner and the original leasee, but that sub-contractor must abide to any terms in the original contract. The only difference, with IP where you have millions of products, it is impossible to determine who breached the original contract. Even if you did find out who breached, what happens when that person has no money. Any laws trying to hold an indigent defendant liable for a million dollar contract breach is moot. Thus the need for IP law. This way you are able to hold the new producer of the product liable. This person is usually easily identifiable and is in the position to gain the most, thus in turn should be also in the position to lose.

Jean Paul March 8, 2008 at 1:33 pm

“According to this theory if I happen to visit your kingdom and leave my jacket, you have the right to sell that jacket to your neighbor.”

I don’t think anything I said implies this. The jacket remains a bubble of your ‘kingdom’, just as you remain yours when you enter my home. I can justly evict it (toss it on the sidewalk, say)… but I can’t claim to own it, or act as owner (sell it, say). The jacket physically defines the boundary between you and me, and as a de-facto part of you, it enjoys the freedoms you were born with, but also the obligations – thus its influence ends where my inborn boundary begins.

My medium, which I wholly own, also defines a boundary between you and me – and that boundary is not voided by my manipulating the medium. As a de-facto part of me, it enjoys the same freedoms I was born with – it is justly subject to my will and no other, unless I consent.

If you want to say an idea sets up a boundary, then sure, I will allow this – but that boundary does not suddenly cross-cut and penetrate through mine. Mine remain intact, and my freedoms within those boundaries remain intact. That is, your idea holds no influence inside my boundaries.

The fact that your idea defines a boundary does not mean I cannot duplicate that idea inside my borders; my right to do so is protected by those borders, which are inviolable. Neither do the boundaries of your idea intervene or constrain my interactions with other people. The boundaries of your idea constrain my interactions with you and you alone.

The way to see this is that since all ideas are embodied in physical media, the boundaries of your idea are identical to the boundaries of your medium where it is embodied, nothing beyond that.

Inquisitor March 8, 2008 at 2:16 pm

Umm, how does IP solve the problem of the indingent person? Suppose the person actually manages to copy the item in question – they STILL won’t be able (if I go by the hypothetical) to compensate the harmed individual. All it does is prohibit the activity; but that doesn’t mean it solves the problem of compensation…

Jean Paul March 8, 2008 at 2:28 pm

I think the argument is, there is nothing to compensate if the copying is prevented, so society attempt to prevent it by putting strict penalties on it. It does not guarantee compensation for harm, it just attempts to eliminate the harm.

Typical punishment-oriented socialist attitude. To a socialist, everything is a firing range.

Artisan March 8, 2008 at 2:33 pm

Why would opponents of IP ever want to change that word? It rather serves their purpose since original artwork or technical inventions protections are NOT based on their essence as “intellectual productionâ€. The words IP suggest arbitrary rule.

The fact that both privileges are always mentioned together under such title is very unfortunate for finding legitimacy anyways.

However, for the free-market apologist defending the natural law of copyright (not patent), another term would be better than logorights or pattern rights: identity rights.

For what philosophically links but also differs between patent and copyright, is the level of protection of an identity. Copyright assumes some property right derived from a unique human identity. Patent even extends them (to a mock identity).

Now, does an IP opponent like Dr. Kinsella acknowledge any link between the concept of free will and some “protection of individual identityâ€ (well he already mentioned he condemns identity fraud â€¦ but why? It isn’t material really, is it? Is it intellectual perhaps?)

A law teacher suggested this simple example to me to make the identity issue clearer:

If an unknown uncle dies without having written his last will, and without even knowing his only distant relative in another country, how come the law says that guy should inherit his property?

How can such old law be justified in the mind of an IP-opponent, without coming closer with the “immaterialâ€ idea of identity? I wonder.

Jean Paul March 8, 2008 at 2:39 pm

Oh, I think I misunderstood.

What kingmidas is saying is that since the poor person who does the harm (breaches the contract) can’t pay for his crime, IP law lets you go after the richest beneficiary you can find, even if they didn’t breach anything or do anything strictly wrong.

And this is why IP is… a GOOD thing!

Jean Paul March 8, 2008 at 2:43 pm

Identity fraud is a subset of fraud, which is a subset of breach of contract. You cannot establish fraud without establishing a implied contract to be truthful.

Artisan March 8, 2008 at 3:02 pm

Fine Jean-Paul, contract law seems very important to you here… but if you apply the same contract law limits as in copyright,
wouldn’t that mean that someone selling without knowing he’s selling plagiarized works is not bound by any legal obligation to cease?

Never mind.

And what about the example below? Who should get that heritage and why, according to you?

Inquisitor March 8, 2008 at 3:35 pm

JP, I understood the argument, I just find it illogical. A contractual scheme could also prohibit the copying of a good, making anyone who violates it liable for punishment of whatever sort the contract stipulates. My point is that if this person, in spite of IP laws, still copies, their economic situation again is a problem for the person harmed; there is absolutely no change from a contract-based scheme. So it’s a non-issue. But I agree with you that this is symptomatic of a socialist mindset.

Jean Paul March 8, 2008 at 3:50 pm

The heritage thing: I am not certain I understand the question but here goes – apologies if this misses the point.

I don’t see really why inheritance should follow bloodlines. It’s up to the dead uncle to forge relationships over his lifetime that he values; it is arbitrary of society to elevate a particular relationship like ‘nephew’ to significance, and impose that valuation on the inheritance outcome. Perhaps the best friend of the dead uncle, or the loyal bed nurse, or some other person, would be a more suitable recipient.

Without the will, it is impossible to say who should get it, and maybe then it becomes a case of abandonment, in which anyone may stake a claim versus any other claimaints.

Jean Paul March 8, 2008 at 3:50 pm

The heritage thing: I am not certain I understand the question but here goes – apologies if this misses the point.

Without the will, it is impossible to say who should get it, and maybe then it becomes a case of abandonment, in which anyone may stake a claim versus any other claimaints.

Artisan March 8, 2008 at 4:05 pm

JP: That makes little sense. Who’s to judge? The State monopoly??? On what grounds?

I believe the actual law is not as “arbitrary” as you imply by forcing yourself to find just another “arbitrary” solution.

What are the essential ways, according to the respect of human free will, to acquire property titles? What fits?

Jean Paul March 8, 2008 at 4:20 pm

If the guy dies without a will, his remains (including his estate) become unowned, and subject to homesteading anew. Of course there may be stainding claims on that estate – creditors, for example, or a verbal promise made to a friend that “it’s all yours when I go”, or (although this was not the scenario you posed) clear dependents (who may not be blood kin). Although not formally a ‘will’, these arrangements voluntarily entered into by the uncle would constitute de-facto his will, and should be respected.

Who is to judge? Certainly not an authoritarian state. Perhaps an arbiter agreed to by the claimants? If two people alone in the universe have a dispute, who do they go to? Ultimately the judge and recourse in all cases is pure reason, and we can hope that civilized actors would not go to war over this, but talk it out and come to an agreement (in the context of a real society with multiple claimants, the professional assistance of an arbiter would be of great value in settling any dispute).

Beyond all that, if the uncle doesn’t know or care about his long lost nephew, I don’t see any legitimacy to giving the nephew any part of the estate.

Pro_IP_Libertarian March 8, 2008 at 10:35 pm

Inquisitor-

It’s not rationalizing and you should care, if you’re going to call someone a “criminal” and try to steal from them or punish them you had better have the guts to face them, present your evidence, and actually prove your accusations beyond a reasonable doubt. Otherwise I would call you a criminal yourself, and also a coward. (It’s interesting your handle references people that specialized in assuming guilt, torturing “confessions” and “conversions” out of people, etc.)

As far as alternate private justice schemes go, fine. But you had better make damn sure that they are just as rigorous as the current state-funded schemes, otherwise it will just degenerate into swindlers, thieves, and goons. And by the way that has been a problem with justice schemes throughout history – people profiteering by lying and making false claims.

Pro_IP_Libertarian March 8, 2008 at 11:18 pm

Jean Paul-

The action “sell someone else’s intellectual property as your own” does not reach into anyone else’s ‘kingdom’ as we are calling it, except mine and the purchaser’s.

No, you’re taking someone else’s work and profiting from it. If you wanted to stay within the boundaries of your kingdom you would create or buy your own. What you’re arguing is like claiming that leading someone else’s cow off their land and into your barn, milking it, and selling the milk to a third party isn’t stealing milk when it clearly is theft.

This is the equivalent of claiming that because you milked the neighbor’s cow in your barn that the milk is yours, which is incorrect.

Sure it does, under the cow example you are selling the neighbor’s milk. Selling your own milk is fine, selling your neighbor’s milk is theft.

What did I rearrange the medium into? It doesn’t matter. That’s the whole point – that`s the core debunking of IP. For IP to exist, it has to matter. But it doesn’t, because none of the steps along the way involved a third kingdom; thus there can be no prohibition on any of the steps; thus there can be no prohibition on the entire exercise as a whole.

It certainly does matter. It involves a third kingdom because you are selling a third party’s property. You took the information from a third party, copied it, and sold it as your own. If you were selling intellectual property that you created it would not involve a third party, but that’s not the hypothetical.

Pro_IP_Libertarian March 8, 2008 at 11:39 pm

Jean Paul-

You take the idea into your boundary when you obtain the idea and then copy and sell it. Otherwise you would simply create and sell your own ideas.

Again, you’re arguing that if you led your neighbor’s cow onto your land that the milk would suddenly be yours. The principle is the same, why do you think you should be able to sell other people’s property as yours? Why can’t you create your own?

The way to see this is that since all ideas are embodied in physical media, the boundaries of your idea are identical to the boundaries of your medium where it is embodied, nothing beyond that.

When you attach someone’s idea to your media to sell you are selling someone else’s property.

Pro_IP_Libertarian March 8, 2008 at 11:48 pm

Jean Paul-

The uncle could easily address these things by actually making a will.

Without the will, it is impossible to say who should get it, and maybe then it becomes a case of abandonment, in which anyone may stake a claim versus any other claimaints.

In most jurisdictions rules have it going to relatives or the state in various combinations. If you disagree with these rules lobby to change the law and make sure you have a will.

Pro_IP_Libertarian March 9, 2008 at 12:05 am

Jean Paul-

If the guy dies without a will, his remains (including his estate) become unowned, and subject to homesteading anew.

No it doesn’t. Each jurisdiction has different rules about what happens in these cases. If you disagree with them, make sure you have a will and lobby to change them.

Something tells me you wouldn’t have a problem going to the courts if a squatter was on your property. And there’s nothing wrong with that – libertarians don’t have a problem with laws per se, some would just prefer private arbitration schemes provided they were unbiased, competent, honest, objective, etc. But these arbitration schemes would have rules as well, and these would likely be very similar to what is on the books now.

Jean Paul March 9, 2008 at 1:57 am

PIPL, If you want to equate ideas to a cows, then to be fair you need to be talking about the kind of cow that can be replicated purely at my expense, with special machinery wholly owned by me, in such a way that you never lose posession of your fully functioning cow aganst your will – and then still call this theft.

Strangely, you would never call it theft if my apple tree brings me a crop of apples identical to the apples you posess. And you would certainly call it theft if I took your cow and incinerated it, leaving us both with nothing. IP demands such inconsistency.

“But”, you protest, “I lose the *potential* profits that I *maybe* might have had, if idea gainers didn’t freely gain.”

Well, your apple profits would also be higher if I were prevented from freely gaining apples from my tree – perhaps both apples AND ideas should be made artificially scarce, by only letting the first posessor of a tree harvest the apples from it?

Lastly, it is unfortunate that you invoke the status of ideas as property in your defense of whether or not ideas can justly be considered property. Can you clarify: on what basis do you justify that ideas are property – other than simply stating it to be so?

Inquisitor March 9, 2008 at 9:59 am

“It’s not rationalizing and you should care, if you’re going to call someone a “criminal” and try to steal from them or punish them you had better have the guts to face them, present your evidence, and actually prove your accusations beyond a reasonable doubt. Otherwise I would call you a criminal yourself, and also a coward. (It’s interesting your handle references people that specialized in assuming guilt, torturing “confessions” and “conversions” out of people, etc.)

Oh spare me the melodrama. It is incumbent on you, and all minarchists, qua advocates of violent, aggressive seizure of property, to explain why your position does not lead to rights-violations, and why we should put up with it. In fact, you ought to explain why the calculation argument and typical problems with monopolies do not apply to socialized provision of law and order – and spare us the banal “but property can’t exist without government”, Marxist tripe which has been refuted to death.

BTW, you’re right on the last bit. Governments excel in that. It’s called propaganda.

Inquisitor March 9, 2008 at 10:05 am

BTW, there are works that offer convincing accounts of private law provision, from the Tannehill’s The Market for Liberty, Stringham’s Anarchy and the Law and Hoppe’s The Myth of National Defense to Rothbard’s For a New Liberty and Friedman’s The Machinery of Freedom, as well as Hoppe’s Democracy – the God that Failed. Not to mention Benson’s and Leoni’s works. So it’s not like there is no positive argument for it.

Glen March 9, 2008 at 6:26 pm

Kind of like pattern monopoly. It reminds us that monopoly is a feature of the state.

Francisco Torres March 9, 2008 at 10:41 pm

Pro_IP,
You can do whatever you want with the work [by someone else] – wallpaper your bathroom with it – you just can’t copy it and sell it as your own.

You misunderstand the implications of IP Law: You cannot sell the work you bought to someone else for a profit, EVEN if you did not copy it. You cannot even tell your spouse the content of the work, word by word, because that IS unauthorized reproduction. IP law gives undue possession of people’s property to the person that created the first work or prototype.

Plus you are free to create your own work as long as it is not exactly similar.

The “exactly” generates a problem, since it has been the historical fact that the “exactness” of a work measured against another is in the eye of the beholding judge in any IP case, whether the judge has merit for judging two works or not.

How is not being able to sell someone else’s work a violation of your rights?

That someone else already relinquished his or her rights on the property during the exchange of titles – money for the book or CD. This is how property is exchanged. It is illogical to assume that a person exchanges titles only not to possess what he or she just bought – that is the MAIN contradiction behind IP law.

Jean Paul March 10, 2008 at 4:14 am

Francisco, great point – and if we apply it to the cow example, we note that when we first purchase the cow / book, it cannot then possibly be ‘theft’ at that point to milk the cow / duplicate the book, nor to sell the milk / copies.

IP is anti-common-sense – it has just been so ingrained into people’s heads as a foundational component of their understanding of the world, that it’s hard to let go of.

State socialization has left us all brain damaged in ways we struggle to realize… it seems for a lot of libertarians, and even some supposed anarchists, it takes the form of supporting IP.

Jean Paul March 10, 2008 at 4:32 am

Think about your first run-in with IP… it’s probably much earlier than you might think… probably something like, children horsing around and one kid gets mad at the other, “hey, that’s my move, don’t steal my move!!!” or maybe even one kid destroying the other’s preschool fingerpainting because “they copied!”

Think about what these kids are saying. “Constrain your actions! I forbid you from doing that! I’ll use violence to get my way!”

This rude behavior, of menacing orders and outright terrorism – the expedient use of force to control the actions of others – this is the genesis of the IP mentality.

From vile origins are born unsurprising offspring.

Pro_IP_Libertarian March 10, 2008 at 5:40 am

Jean Paul-

In this case, is the theft measured by my gaining a cow – or by your losing a cow? It must be measured by my gain, because on your end there is no loss. This is the bizzare definition of theft you get with IP.
Strangely, you would never call it theft if my apple tree brings me a crop of apples identical to the apples you posess. And you would certainly call it theft if I took your cow and incinerated it, leaving us both with nothing. IP demands such inconsistency.

With IP there can certainly be losses. If you’re copying and selling books that someone else wrote you are robbing them of those potential book sales.

“But”, you protest, “I lose the *potential* profits that I *maybe* might have had, if idea gainers didn’t freely gain.”

No, the profits weren’t “potential”. If you made the sale clearly there was demand and market clearance at the price charged. It’s just that you sold the product, not the person who created the value, and who should be rewarded for creating that value.

The creator of intellectual property didn’t just “possess” it, they created it. They created the value, so they should be rewarded. If you created the value then you should be rewarded. But if you didn’t create the value you shouldn’t be rewarded.

Probably the most apparent one is rooted in labor. Note this isn’t labor for it’s own sake a la the Labor Theory of Value, but more like labor homesteading unowned land. Thus the creator of IP creates property by laboring and creating property which is subjectively valuable in the marketplace.

Pro_IP_Libertarian March 10, 2008 at 6:25 am

Inquisitor-

It certainly does lead to rights violations in some cases, I wasn’t arguing that it didn’t. But the founding fathers set up some pretty stringent fact-finding mechanisms to weed out the fraud, bullshit, and mistakes, any private justice system better have at least those kinds of controls.

In fact, you ought to explain why the calculation argument and typical problems with monopolies do not apply to socialized provision of law and order – and spare us the banal “but property can’t exist without government”, Marxist tripe which has been refuted to death.

Who said they didn’t? If you think the state does a horrible job with law and order why would you try to lower the fact-finding standards that would tend to make private providers even worse?

BTW, you’re right on the last bit. Governments excel in that. It’s called propaganda.

It wasn’t propaganda. Private justice systems, especially ones that incentivized the reward per criminal, often had to be discontinued due to fraud and abuse.

There is a recent modern example of this too. Look at what happened in Afghanistan when the military offered bounties to the warlords for bringing in Al Qaeda members, Taliban members, and other terrorists. They often brought in innocent people, brought in or made false claims about their enemies or competitors, falsely reported people to settle scores, etc. just so they could collect the reward money per person delivered. So not only were the “police” collecting money for work they didn’t actually do, they were also committing and causing the military to commit serious crimes, torts, and rights violations against innocent people, and also causing opportunity costs because resources and time were wasted imprisoning and interrogating innocent people. This is very similar to what happened throughout history to similar systems.

BTW, there are works that offer convincing accounts of private law provision,…

I’m aware of that and one day I might get around to reading those. But there are certainly problems with private justice systems that can be noted and discussed without having to perform a full review of the literature.

Pro_IP_Libertarian March 10, 2008 at 6:43 am

Francisco-

Perhaps theoretically, but generally IP holders can’t effectively sue and collect unless there are readily provable economic damages. And I freely acknowledge that IP laws may be too strict or downright crazy in some areas, but that doesn’t mean they should be done away with completely.

I also acknowledge that this is a problem as well, there are probably even corrupt judges as well. IP law certainly has its warts, and I’m not arguing against remedying them. But I do think that doing away with them and basically socializing intellectual property is not the answer.

I don’t agree with this characterization. The creator has only granted the rights for certain uses. When you buy a DVD player you are only purchasing the rights to use the technology on a small scale, you aren’t buying the rights to manufacture and sell the technology itself. This is clearly implied by the price and the documentation that comes with it. The DVD player costs $100 or whatever, while the technology behind it and the rights to manufacture and resell it would sell for orders of magnitude more.

Pro_IP_Libertarian March 10, 2008 at 6:53 am

Jean Paul-

…if we apply it to the cow example, we note that when we first purchase the cow / book, it cannot then possibly be ‘theft’ at that point to milk the cow / duplicate the book, nor to sell the milk / copies.

No, it is theft to copy and re-sell the book. When you purchase the book you are only buying the property for certain uses – reading, etc. You aren’t buying the rights to copy and sell it – this is expressed by the price and documentation. When you buy a cow it is understood that you are buying livestock and it’s understood that milking is one of the uses. (Of course there are limits to this as well – people can’t be bought because that is the crime and tort called slavery.)

State socialization has left us all brain damaged in ways we struggle to realize… it seems for a lot of libertarians, and even some supposed anarchists, it takes the form of supporting IP.

No, doing away with the IP laws would be socialization. You would be forcing creators to give away their property to the public for free, that is the epitome of socialization.

Pro_IP_Libertarian March 10, 2008 at 7:05 am

Jean Paul-

Not very convincing, kids do a lot of goofy things. But taking other people’s property or demanding that they give away that property to the public for free is certainly serious business. (Which also happens to be childish as well.) Do you work for free? Should we be able to make you work for “the common good”? (Which is slavery.)

Think about what these kids are saying. “Constrain your actions! I forbid you from doing that! I’ll use violence to get my way!”

And listen to what you are saying:

“Give me your property. If you won’t give it to me I should be able to take it.”

“I bought your book for $5, now I should have the right to copy it and make millions while I take millions from your sales.”

“You shouldn’t profit from your work, no matter how valuable it is or how much value it creates. The public should be allowed to take it from you at will.”

From vile origins are born unsurprising offspring.

I don’t know about this, it sounds sort of racist or classist, which is distinctly unlibertarian.

Inquisitor March 10, 2008 at 10:25 am

“It certainly does lead to rights violations in some cases, I wasn’t arguing that it didn’t. But the founding fathers set up some pretty stringent fact-finding mechanisms to weed out the fraud, bullshit, and mistakes, any private justice system better have at least those kinds of controls.”

In paper, they did. Which of those mechanisms still operates as it is supposed to?

“Who said they didn’t? If you think the state does a horrible job with law and order why would you try to lower the fact-finding standards that would tend to make private providers even worse?”

How does that even follow?

“It wasn’t propaganda. Private justice systems, especially ones that incentivized the reward per criminal, often had to be discontinued due to fraud and abuse.

And this is analogous to the systems proposed by market anarchists, how? BTW. you missed my point – I meant that governments lie, cheat and commit fraud at every possible turn. So I have no particular sympathy for a professional class of thieves, or the socialists who support it.

ktibuk March 10, 2008 at 10:26 am

If IP laws are unjust, or IP doesnt exist, and people can copy whatever they want then I claim counterfeiting money is also ok.

Money is valued because of whatt it represents. If I a central bank counterfeits money and increases the supply of money according to whim, they are not aggressing against the physical property of every other money holder.

The counterfeiter just copies, the existing money and increases its total. Technology is wounderful. Just like people can copy songs, software and movies, they can also very easily copy money and increase its supply.

But the purchasing power of the previous money holders of money decreases you say?

Maybe, but affecting the value of something is not aggression against property. It is just an externality.

I may keep my house looking like a dump and it may lower my neighbours houses value, but I am not aggressing against the physical object so that negative externality is not a crime.

And if you try to stop the counterfeiter it is you who are aggressor since you try to control his kingdom, being his body.

George Gaskell March 10, 2008 at 1:29 pm

If IP laws are unjust, or IP doesnt exist, and people can copy whatever they want then I claim counterfeiting money is also ok.

Also wrong.

Counterfeiting is unjust not because the bank that issues a note has IP rights in the language printed on the face, or in the complex security-diagram contained in its illustrations.

Counterfeiting is unjust because it is a fraud — it is a document that purports to be issued by a bank. The bank has given good value to issue that note, and in doing so obligates itself to honor it when presented with legitimate instances of those notes. People in the economy who accept these notes in payment do so with the belief and expectation that the bank will honor them when presented or deposited.

Therefore, counterfeiting is unjust for the same reason that trademark infringement is unjust — it perpetrates a fraud on the person who receives the object, regardless of whether that object is a claim check, currency note, or television marked as a Sony that was actually made in some guy’s basement.

Fraud is not a component of copyright infringement. To prove copyright infringement, the holder of a copyright does not have to prove anyone was or could be defrauded, only that the copying is unauthorized. Even if the copyist informs all of his buyers that the copy is 100% bootleg, and no party to that sale is remotely deceived as to the fact that the item is an unauthorized copy, copyright law still purports to make such a transaction illegal.

ktibuk March 11, 2008 at 6:41 am

It is not fraud.

I just copy the existing money and increase the amount without damaging the integrity of the original.

Just like you do with songs, software and money.

I dont even have to use printing press in this new day and age. A couple of key strokes is enough.

You know, money (at least fiat money) is not naturally scarce at all, it is all digits.

If you are going to argue against artificially limiting the supply of IP and create artificial scarcity, then I suggest you do the same with money and hail the central banks.

Maybe we will have hyper inflation, maybe the economy will break down but we shouldn’t worry about utilitarian arguments should we?

George Gaskell March 11, 2008 at 8:07 am

It is not fraud.

Of course it is.

A bank note is a document evidencing a liability of the issuing bank, payable on demand to the bearer.

Therefore, even if the forgery is never discovered by the bank on which it is falsely drawn, by copying (and passing) these notes, you are defrauding the bank by falsely asserting that it has a liability that it didn’t actually assume.

Or, if the note is discovered to be a forgery, then you are defrauding the person who gave good value in exchange for the note by falsely asserting that it was issued by the bank and thus would be honored by the bank.

I don’t know how many times this has to be explained, but copyrights and trademarks are based on two entirely different sets of principles and justifications.

scineram March 11, 2008 at 1:58 pm

Since fiat money is not backed by anything, there is no liability on the issuing bank. Ehnce no fraud.

Jesse March 11, 2008 at 6:37 pm

Actually there is a liability on the issuing bank so long as they continue exchanging the bills for other denominations, even if there is no other backing. If you print up a pair of $10 bills you increase the Fed’s liability in terms of $1, $5, and $20 bills.

There are other issues. For example, the design of the note is understood to identify its origin; in all likelihood the recipient doesn’t care where the note came from — so long as others will accept it — but paying someone in notes which only appear to be bank-issue could easily be considered fraud. If the notes are later determined to be counterfeit, and thus worthless in trade, the defrauded payee will suffer a real loss for which the counterfeiter would be liable.

pupnik May 10, 2008 at 8:06 pm

‘Intellectual property’ is a legal fiction which violates the natural rights of man.

Property is a description of a state of nature; namely the state of having exclusive control over a physical object, or a ‘good’ to use the more precise economic term.

Libertarians (should) reject the concept of ‘intellectual property’ because the nature of an idea is completely different from the nature of a physical object or an economic good. To be an ‘economic good’, the object must be scarce in nature, it must serve some human end, and it must be controlled by one or more natural persons. This applies to all the common objects you consider to be your property; your house, your car, your food, your land et cetera.

Randians are pro-IP because they think that ideas have value due to being a product of human intellectual labor and by virtue of this, the author ‘deserves’ remuneration. In doing so, they essentially rely upon Adam Smith’s (and Ricardo’s and Marx’s) ‘labor theory of value’. Am I the first to point-out the irony of Ayn Rand incorporating communist theory?

The labor theory of value was shown to be false by Ludwig von Mises and other Austrian economists. Value is a property ascribed to an economic good by the consumer/purchaser; “I want that thing, and I’m willing to exchange these things for it.” For proof of this, imagine yourself starving of hunger and meeting someone trying to sell a diamond that he laboriously dug up, ground and polished. That diamond will be of little value to you at that moment because in your ordinal ranking of goals, fending off death by acquiring food is vastly more important than acquiring a pretty stone. By contrast, the diamond might be of great value to a plump duchess riding-by. Or imagine us standing in the garden of eden and you try to sell me an apple; it has no value to me because I can reach out and pick as many as I want. Thus the economic value of a good is always subjective, individual and situation-dependent. It is not defined by the effort expended to make the good, nor can it be measured by some abstract calculation of social utility.

The Randian position on ‘intellectual property’ claims that I have the right to go into a marketplace, perform an interprative dance involving jumping jacks and push-ups, then demand (using state force) money from passerby for having witnessed the spectacle. — simply because I broke a sweat. (Thanks to Walter Block for this reducto ad-absurdum).

So ideas are not property because by their nature they can be freely copied and spread without diminishment. An idea, once released into the modern world, exists in effective superabundance because the natural opportunity cost of obtaining it is as close to zero as picking an apple in Eden. We therefore must reject the term ‘intellectual property’ as incorrect and fundamentally misleading.

Now let us consider circumstances in which scarcity has been imposed upon ideas. We can distinguish between two forms: One is a consumption good; “I want many people to hear my song”. The other is a production good; “I want only select associates to be able to use my innovative process, so that we may gain a competitive advantage in producing some goods”. The former generally accords to copyright, the latter to patents or trade secrets which are the focus of our debate.

In a non-patent environment, the profit-seeking innovator keeps his cards close and only shares the innovation with associates who agree by contract to not divulge it. It should be emphasized that such an arrangement conforms to the right to contract which libertarians espouse. Libertarians also generally accept that the state has the duty to enforce such contracts.

The impetus behind the patent scheme was to encourage innovators to publish their work, so that after a period of time, the idea would be free and shareable and thus lead to greater technological advancement and overall wealth in society. Now this sounds fine from a social utilitarian point of view, but the downside is that it extends the power of coercion to non-contracting parties. Someone else might independently produce the same idea, publish or implement it, then find himself forced by the state to pay fines to a stranger half-way around the world. Thus, we must reject the utilitarian-driven argument for monopolistic patent privilege because it violates our fundamental rights to speech, property and contract.

The current copyright regime for ‘consumption media’ is also illegitimate and violates rights. Data once released to the public is not property because it is no-longer scarce or under the unique control of an individual. Any attempt to imbue it with the attributes of property in the modern age inevitably requires a control regime consisting of continual invasive spying into private communications and personal effects (storage media).

Thus we arrive at the final question; “In the absence of patent or copyright law, what form of restriction of ideas is compatible with liberty, justice and natural rights?”

The answer is simply enforcement of mutually consensual contract. An inventor has the right to make contracts with others which stipulate that they may not further sell or divulge the invention. If such a party breaks contract, the inventor has the right to seek redress according to the terms of the agreement.

Voluntary contractual restriction can also be a functional replacement for copyright (at least with music and film) since algorithmic means are available to individually mark or sign each copy of a work. The person who wishes to consume video or audio works simply enters into a contract with the producer/distributor to not redistribute the work, or pay an agreed-upon fine. If a particular watermarked copy is discovered ‘loose’ in the wild, the origin can be traced to the buyer suspected of violating the contract and legal redress can be obtained.

In such a world, no-one would have the right to claim an idea as “property” and then seek redress from any and all parties who acquire the idea either by invention or discovery. If I were to find a copy of an improved process for synthesizing aspirin lying on the street, no-one would have the right to punish me for using it. Likewise, if I were to find a copy of a book, song or movie on the Internet, no-one would have the right to appropriate my real property as punishment for viewing or sharing it.

Ideas are not property and to legally define them as such is an abomination of truth and nature. Any claim by you to my property begins and ends with the terms specified in a contract formed by mutual consent.

TLWP Sam May 10, 2008 at 9:13 pm

It looks like you got a lot of anti-IP people squirming ktibuk! I can’t see what wrong with your counterfeiting argument – the main reason people complain about IP is because the owner isn’t deprived of the original product hence the money example makes sense. In fact the concept of ‘it devalues my money’ is the reason why people here complain about paper money. The obvious answer to that problem is to issue precious metal coins.

Geoffrey Allan Plauche May 11, 2008 at 11:47 am

Pupnik wrote: “Randians are pro-IP because they think that ideas have value due to being a product of human intellectual labor and by virtue of this, the author ‘deserves’ remuneration. In doing so, they essentially rely upon Adam Smith’s (and Ricardo’s and Marx’s) ‘labor theory of value’. Am I the first to point-out the irony of Ayn Rand incorporating communist theory?”

I don’t think this is an accurate description. They believe that values are (or can be, rather) created by intellectual labor, an uncontroversial claim, but the value of the idea does not depend on or derive from the labor itself.

Renaming Intellectual Property

Renaming Intellectual Property

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Renaming Intellectual Property

Renaming Intellectual Property

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