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There are No Good Arguments for Intellectual Property

From Mises Blog, 2009:

There are No Good Arguments for Intellectual Property

February 24, 2009 by Stephan Kinsella

There are some decent arguments out there that argue in favor of a state, welfare rights, war, democracy, drug laws, and so on. They are all flawed, since libertarianism is right, but there are coherent, honest arguments that we libertarians have to grapple with.

But it is striking that there are no decent arguments for IP–as Manuel Lora remarked to me, “You know, I haven’t seen a good pro IP article ever.” This is true. One sees the same incoherent or insincere claims made over and over, such as:

  1. It’s in the constitution (argument from authority; legal positivism)
  2. Intellectual property is called property! (argument by definition?)
  3. No movies would be made and kids would die without medicine (artworks and medicine have been produced for ages without IP law; and where’s the evidence?)
  4. If you “create” something you own it (despite all the exceptions, and despite the fact that creation is neither necessary nor sufficient for ownership; despite the fact that you either limit these rights in scope or time arbitrarily, or you extent them to infinity, choking off rights in real things and forcing life and commerce to a screeching halt)
  5. It generates net wealth–more value than its cost (no evidence, ever, for this contention–just assumptions; not to mention the problem of utilitarian summing of values)
  6. IP infringement is “theft” (even though the owner still has his property and ideas, and even though IP infringement is just learning and emulating)
  7. People “could” create variants of IP via private contracts… therefore artifical patent granting bureaucracies legislated by a criminal state are … justified?)

There are other arguments, I suppose, but they are so incoherent as to defy description. They often involve crankish initial caps, like Property and Rights, the Internet equivalent of crayons.

I have truly never seen a coherent, good argument for IP. The advocates are either utilitarian, with all the problems that accompany that (not to mention they never have any evidence for their claims); or the advocate a more “principled”, rights-based type of IP that, if taken seriously, would completely undermine all real property rights and make life on earth impossible, so they retreat from this and impose arbitrary, senseless limits on it. What a kluge.

In a recent discussion, What’s Wrong With Theft?, one of the IP advocates, when pushed into a corner, ended up arguing that rights to own property include the right to control all “access to” and “interactions with” one’s property–and that “interactions” include observing or knowing about or learning facts about the things owned by someone, and that when you use this knowledge you are “interacting with” the property, and thus “stealing” it (even though the owner still has it). So here we have it: IP means “interaction rights.” Wow. This is how kooky all IP arguments ultimately are.

[UpdateThere Are No Good Arguments for IP-ReduxAbsurd Arguments for IP]

Archived comments:

Comments (147)

  • Manuel Lora
  • That Manuel_Lora (thanks to Silas for this funky notation) has probably not read enough to know that there are good pro-IP arguments out there. What a crank!
  • Published: February 24, 2009 12:18 PM

  • Daniel Coleman
  • Enter Silas / Person and ktibuk to offer nothing of substance but claim victory anyway. . .without being willing to debate their own arguments. It’s going to be awesome.
  • Published: February 24, 2009 12:34 PM

  • Jeffrey G
  • Is that a challenge?

    Suppose I write a book. I show a couple of chapters to an entrepreneur who thinks he will be able to print and advertise the book and make money.

    I think you would agree that I can make a contract between me and the entrepreneur to trade. The rest of the book for payment of some sort.

    I think that is enough to demonstrate IP. I can’t contract something that isn’t mine. That’s nonsensical. The contract would be invalid if I did not own the book to begin with. How could such a contract be enforced? I would have to prove I owned that particular arrangement of alphabetical letters.

    The judge would say, he owes you money? What for? Nobody owns that particular arrangement of letters, he can print them and sell them at will.

  • Published: February 24, 2009 12:37 PM

  • Stephan Kinsella
  • Jeffrey G: Many thanks for helping illustrate my contention!

    Dan: No, if Silas/Person, Sasha, ktibuk, or assorted Galambosian nuts show up, it’ll just provide great illustrations.

  • Published: February 24, 2009 12:48 PM

  • I Hate Taxes
  • First of all, IP rights only benefits large distributors and seldom benefits creators.

    Because creators are more often than not broke and don’t have the money to sue or even apply for a patent in the first place.

    So they always partner with wealthy associates who then take a controlling stake in the idea. So IP rights really means the creator losing their ideas to the distributor or rich associate.

    Because the court systems are extremely expensive and lengthy, even if you have a patent you will not go far.

    Even large corporations spend large sums of money and a lot of time in never ending court battles and when the case is over, the invention is already obsolete or the art creation is out of fad.

    Really “justice” is too corrupt and expensive.

    I for one value my success by how much my ideas are copied.

  • Published: February 24, 2009 12:59 PM

  • I Hate Taxes
  • The most coherent argument I can think of is the cost factor.

    It costs so much money to develop an invention or develop a medicine or make a movie that you want to claim monopoly on your idea to make up for the cost.

    I think this is quite coherent for me. What’s the point of spending money in research and development when you will get shafted in the marketplace when everybody is going to copy you ?

    The main argument is that if you can’t own your idea, you will not have the incentive to spend to develop your idea.

    Please, how do you get around that argument ?

  • Published: February 24, 2009 1:04 PM

  • I Hate Taxes
  • Jeffrey,

    You don’t have to own the arrangement of letters to sell them. You can sell information, especially if you are the only one who knows the information.

    Therefore, even if you don’t own the book, you provide the service of informing the publisher and he will pay to know that information, especially because nobody else knows the information.

    You don’t have to own information to sell it, you just need to know it and the other party ignores it, then they will have to pay you for you to inform them.

  • Published: February 24, 2009 1:25 PM

  • Bob Shoof
  • @Jeffrey: Writer says to publisher: “Here are five pages of my book. You give me a million dollars, I give you the rest of it.”

    Of course, this brings up the obvious problem of how does the publisher then sell a book that can easily be copied once it hits the bookstores? This, I think, is where the real innovation of the marketplace would take hold to make IP unnecessary.

    To me, what really sells the book is the author. If an author has written great pieces in the past, fans will eagerly wait with dollars in hand when they hear the author is about to release a new book.

    Now perhaps that author could strike a deal with a website not unlike Napster to exclusively release the book at the stroke of midnight on a certain date. People would line up online to snatch up the book for free as soon as it become available. How does this site make money? Like any other site does: through advertising. If the site can bring in the traffic (with the attraction of this book), the money is right there for the taking in the form of advertising.

    Just a thought.

  • Published: February 24, 2009 1:38 PM

  • redshirt
  • Second IHT’s Q. How is that addressed without introducing IP? If IP isn’t protected couldn’t you just buy any and all “trade secrets” without legal repercussion. Then all sorts of products could be copied and sold to the detriment of the creator.

    What am I missing?

  • Published: February 24, 2009 1:41 PM

  • Bob Shoof
  • @redshirt: The sale of “trade secrets” wouldn’t be detrimental to the manufacture and sale of a product in question, any more than the fact that anyone can sell bananas means that no one will want to sell bananas.
  • Published: February 24, 2009 1:52 PM

  • brad
  • I see the experience of reality differed from your theory. You conceded the point through your actions.
  • Published: February 24, 2009 1:57 PM

  • Silas Barta
  • @Stephan_Kinsella[1]: You’re wrong. I have provided, right on my blog, three outstanding arguments for intellectual property. I haven’t fleshed them out into an academic paper, but I have provided more than enough to establish a case for interested libertarians, and definitely more than enough to count as “good”.

    You are well aware of these arguments, and, as the initial post linked establishes, you have been forced to concede serious weaknesses in your position because of them.

    The arguments are, in short:

    -IP is scarce in every relevant sense *because* there are conflicts over it. (More of a counterargument, but it shows you can’t distinguish IP on grounds of scarcity.) In general, trying to justify a right *in a conflict* by saying there is no conflict (“scarcity”) is gobbledygook.

    -IP is identical to obviously-justified EM spectrum rights, since both are pattern formation rights that only reference physical objects for purposes of jurisdiction.

    -The Mises/Hayek calculation argument carries over very precisely to ideas. Absence of IP fixes the price of the “right to instantiate a given idea” at zero, deleting all information the market provides to entrepreneurs, through the price system, about the relative merit of producing ideas, either compared to physical goods or to other ideas.

    If you want to know what is “lacking” in the IP debate, here’s a list:

    -Anti-IP libertarians who consistently use the concept of “scarcity”. In deriving a justification for property rights, they use it an extremely general sense: any disagreement between people, no matter how trivial, counts as “conflict” or “scarcity”, and justifies why there must be a method to resolve whose claim is superior. But then later on, they switch to a much narrower definition, thus assuming their conclusion, without justifying *why* the argument is applicable now for only this narrower definition. That is, why do only disagreements over the right to manipulation of physical objects “count”, and why must the rights always be resolved in favor of full usage rights for one person, um, unless the object is a radio transmitter?

    No libertarian has been able to explain how entrepreneurs decide which ideas to research, in the absence of IP, without simultaneously “proving” that planned economies are just as good as market economies. Every time they are challenged to, they come up with a method of profiting off of new ideas which is equally applicable to production of physical goods. Oh, maybe they’ll bundle the idea with something else. Maybe they’ll give it away and charge for “servicing it”.

    Either way, every last one of these arguments can be transformed, without loss of generality, into an argument that entrepreneurs can work around any lack of property rights, and thus property rights are unnecessary. And remember, any appeals to, “oh, come on, entrepreneurs are smart, they’ll think of something” can also prove that entrepreneurs will be able to produce goods unimpeded in a command economy.

    By the way, you just claimed that IP defenders must defend the present patent system exactly as it is, despite knowing that this is a non-sequitur. And strangely, despite your obsession with citing sources, not one of the strawmen you just torched has a citation. Funny how that works out.

    [1] I would *love* to address you as “Dr. Kinsella”, as you keep demanding I do. However, before that happens, you will need to either a) adopt the handle “Dr. Kinsella”, or b) require the same of everyone else. And even if you do a), you’ll still get the underscore. Sorry, that’s the best the software can do, given that it was developed by a hobbyist 😉

  • Published: February 24, 2009 2:00 PM

  • Jeffrey G
  • How about this.

    I give a publisher a couple of pages of Hamlet. Yes, that Hamlet. The publisher thinks it is great, but doesn’t recognize it. He makes a contract with me for me to give him the rest of it in exchange for money.

    Should the contract be recognized? Maybe you will say yes. If you are consistent you would say yes.

  • Published: February 24, 2009 2:03 PM

  • Bob Shoof
  • Wow. I think I’d rather be between a libertarian and a socialist than between two libertarians.
  • Published: February 24, 2009 2:05 PM

  • Bob Shoof
  • @Jeffrey: I don’t see any problem with fraud being against the law.
  • Published: February 24, 2009 2:07 PM

  • Michael A. Clem
  • Um, Jeff, if you make a contract with the publisher on the basis that YOU wrote Hamlet, then that’s fraud, and grounds for voiding the contract. Not IP.
  • Published: February 24, 2009 2:08 PM

  • Bob Shoof
  • Either way, every last one of these arguments can be transformed, without loss of generality, into an argument that entrepreneurs can work around any lack of property rights, and thus property rights are unnecessary.

    I think Silas makes a good point here. But the problem I have is IP laws are so brutally arbitrary. 75 years? Either you own something or you don’t. And if you own an idea forever and can pass it down to children, well that really would tie up our society, as Stephan pointed out.

  • Published: February 24, 2009 2:10 PM

  • Tiago Moreira Ramalho
  • Honestely I didn’t spent too much time thinking about it, but let me just say one thing: just because there are no good arguments that support the IP, doesn’t mean that it should not be protected. Maybe there are no good arguers. For instance, before Galileo, there where no good arguments which supported that Earth goes around the Sun, but that was true.

    I’m sorry for my rusty English, but I’m Portuguese, but I think you understand what I mean.

    Tiago M. Ramalho

  • Published: February 24, 2009 2:32 PM

  • Jeffrey G
  • I think selling Hamlet would be fraud, but I have trouble understanding why you would think it’s fraud. What I am selling is a certain arrangement of English letters. What could this contract possibly say with out IP that would make it fraud?

    Maybe a sample IP-less contract respecting the transfer of information would help me understand.

  • Published: February 24, 2009 2:40 PM

  • redshirt
  • Tiago… TY. If you had the choice between no toilet paper at all and toilet paper, you pick the TP. Maybe you can make better TP over time, but you still need the TP until there is a better option.

    Saying something is not perfect and that hypothetically there are other possibilities is not the same as proving other possibilities will work well enough to replace what is in use now.

    Are there really good counter examples?

  • Published: February 24, 2009 2:42 PM

  • Bob Shoof
  • @Jeffrey: Perhaps the contract could state: “I, the signer of this contract, certify that this work is original and has never been published before, either in whole or in part.” I’ll let the lawyers figure out the exact wording.
  • Published: February 24, 2009 2:44 PM

  • Michael A. Clem
  • It would be fraud IF you claimed that YOU were the author who wrote it. On the other hand, if the publisher knows that you didn’t write it, but is merely counting on you to provide the text instead of doing it himself, perhaps to have you do proof-reading, then it would be a valid contract. But he would probably pay a different amount for that kind of service than if he were paying an author, since he would value it differently.
  • Published: February 24, 2009 2:46 PM

  • Stephan KinsellaAuthor Profile Page
  • Silas Barta:

    [Lots of incoherent cranky stuff]

    Silas, I want to thank you to contributing to the cause by providing further confirmation and illustration of my contentions.

    “I would *love* to address you as “Dr. Kinsella”, as you keep demanding I do. However, before that happens, you will need to either a) adopt the handle “Dr. Kinsella”, or b) require the same of everyone else.”

    Done.

    And now comes one of the beauties of the day from the IP crowd:

    Tiago Moreira Ramalho: “Honestely I didn’t spent too much time thinking about it, but let me just say one thing: just because there are no good arguments that support the IP, doesn’t mean that it should not be protected.”

    Oh, this is beautiful. Wow, the IP arguments just keep getting worse and worse–“maybe we don’t have any good arguments, but protect it anyway!” I mean, it’s like IP socialist joke hour.

  • Published: February 24, 2009 2:46 PM

  • Andras
  • @Tiago,
    You are absolutely right. and even Mises (Human Action, Scholar Edition, p657.) agreed. Here is what he thought about this issue:
    “It is beyond the scope of catallactics to enter into an examination of the arguments brought forward for and against the institution of copyrights and patents. It has merely to stress the point that this is a problem of delimitation of property rights and that with the abolition of patents and copyrights authors and inventors would for the most part be producers of external economies.”
    (This part, as far as I know, conveniently left out from Kinsella’s book. Is it only me to see a trend here) This was a dichotomy Mises tellingly rather avoided. However, he was willing to accept this compromise to internalize IP.
    By the way, being externalized also means failure to calculate to second Silas.
  • Published: February 24, 2009 2:55 PM

  • Stephan KinsellaAuthor Profile Page
  • IP socialist: enjoy: Copyrighting Dance Steps–The Death of Choreography.
  • Published: February 24, 2009 3:17 PM

  • Brian
  • @Silas

    IP is identical to obviously-justified EM spectrum rights, since both are pattern formation rights that only reference physical objects for purposes of jurisdiction.

    What is this supposed obvious justification for EM spectrum rights? Why is it obvious that one person must be granted the exclusive use of ‘the color green’ in a certain area?

    Anti-IP libertarians who consistently use the concept of “scarcity”. In deriving a justification for property rights, they use it an extremely general sense: any disagreement between people, no matter how trivial, counts as “conflict” or “scarcity”, and justifies why there must be a method to resolve whose claim is superior. But then later on, they switch to a much narrower definition.

    What are the two different definitions used? I’m under the impression that scarcity is always meant in the sense of physical objects, aka things.

  • Published: February 24, 2009 3:19 PM

  • Stephan KinsellaAuthor Profile Page
  • For all you guys fumbling around with the idea of fraud–for God’s sake, why don’t you stop re-inventing the wheel and do a bit of research. Read, in particular: my posts The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types of Aggression; and Trademark versus Copyright and Patent, or: Is All IP Evil? (section on “Trademark,” discussing fraud).
  • Published: February 24, 2009 3:25 PM

  • Brian
  • @Andras

    You are absolutely right. and even Mises (Human Action, Scholar Edition, p657.) agreed.

    Because-Mises-said-so is not really an argument.

    Authoring, inventing, ‘creating’, researching, etc are all services that can be marketed. They fall under the general category of labor. The price for service is arrived at the same way as any other factor of production.

  • Published: February 24, 2009 3:30 PM

  • Egosumabbas
  • @Bob Shoof

    “Of course, this brings up the obvious problem of how does the publisher then sell a book that can easily be copied once it hits the bookstores? This, I think, is where the real innovation of the marketplace would take hold to make IP unnecessary.”

    In the era before our current IP tyranny, famous composers (Mozart, Beethoven) would collect subscriptions for their upcoming content. The meaning of “subscription” has changed, but basically you bought tickets to the concert premier beforehand, or you got an advanced order on a new piece of sheet music. Alternatively, composers were given lump sums (commissions) to create certain works for specific circumstances.

    Even today, musics make most of their money on live performance, since publishers own all the copyrights anyway. CD sales are miniscule by comparison. Some artists decide to just release their content for free in exchange for donations or purchases of enhanced content (Radiohead, Nine Inch Nails). This is also known as http://en.wikipedia.org/wiki/Street_Performer_Protocol

  • Published: February 24, 2009 3:55 PM

  • engine44
  • Right on Silas Barta!

    You anti-ip people are looney! Or, maybe you’re a bunch of socialists who have infiltrated libertarianism to corrupt it from the inside. If anything, all this anti-ip nonsense is going to drive people away.

  • Published: February 24, 2009 3:55 PM

  • Jason Gordon
  • To my mind, a great many of the proponents of IP mistakenly confuse authorship and the attendant “right” to correct attribution with control of usage. As if the referencing of, or elaboration upon a work – remixing if you will – were to claim authorship of the appropriated work in a kind of impersonation.

    Why should there be any distinction or practical difference when quoting what is now considered IP, with the commonplace practice currently in wide adoption by the scholarly community of footnotes, citation, and attribution based upon good faith and due diligence in verification?

    Is simply calling the technological innovation the Archimedean screw so insufficient for Archimedes that he needs a portion of the water each of us raise? In referring to the Platonic solids do we mean to say that before Plato the cube didn’t exist? Can it be, that no credit should accrue to Leonardo for the Mona Lisa because he was simply reproducing the face of a model?

    Is there a distinction between discovery and invention? Between invention and authorship? Authorship and creation? What credit goes to the inspiration?

    Is stubborn clinging to IP merely a veiled denial of the cosmic gift of reason and of the precious gift of life itself? That we mortal souls are entirely endogenous?

  • Published: February 24, 2009 3:56 PM

  • Ed
  • Stephen. From your perspective, are radio frequencies property or no?

    I do believe that for the most part the intellectual argument against IP has been won, though hardly understood by the general populace. I just think there are some very teeny tiny holes like the three mentioned by Silas.

  • Published: February 24, 2009 4:00 PM

  • Stephan KinsellaAuthor Profile Page
  • Andras: “@Tiago,
    You are absolutely right. and even Mises (Human Action, Scholar Edition, p657.) agreed. Here is what he thought about this issue:[] (This part, as far as I know, conveniently left out from Kinsella’s book. Is it only me to see a trend here)”

    Oh, you are so pwned.

    Apology accepted.

  • Published: February 24, 2009 4:00 PM

  • Stephan KinsellaAuthor Profile Page
  • Ed,
    “Stephen. From your perspective, are radio frequencies property or no?”

    I, too, am curious what Stephen thinks about this. Stephen?

  • Published: February 24, 2009 4:04 PM

  • Jay Lakner
  • I posted this this exact comment on Silas Barta’s blog but I thought I’d post it here as well.

    Hello all,

    I have been following the discussion and it seems nobody sees this the way I do.

    There seems to be 2 different types of IP.
    1. Business names, trademarks and logos.
    2. Copyrights and Patents.

    The the first type of IP I believe to be important and is essential to a viable economy because they establish identity.

    Establishing identity is crucial in order to uphold property rights. For example, someone who sells you a computer labelled as an apple macintosh which turns out to be fake has committed fraud because the voluntary contract you entered into was for a genuine apple macintosh.

    In fact, to classify names, trade marks or logos as IP in the first place is very silly, unless IP in this case stands for Identity Property.
    My argument here is that establishing identities is crucial in order to uphold normal property rights.

    The debate, as I have read so far, has circled around the second type of IP rights, namely patents and copyrights.
    I sit firmly against these types of IP for many reasons, but mostly because they are an infringement of property rights. If you own something, you have the right to do whatever you want with it, including copy, sell or distribute.

    I decided to enter this discussion to offer a refutation to the radio waves argument.
    My argument is this: Ownership of an EM frequency fits simply into the category of Identity. Whoever first establishes themself on a particular frequency adopts that frequency as their identity in much the same way the first company to use a red apple as a logo apopts that as their identity.

    Lastly, I should mention the conclusions of my own thoughts on the entire issue of IP.
    This is what I came up with:
    – IP which establishes identity is crucial to upholding property rights.
    – All other IP is in direct violation of property rights.

    May seem simple … but so far I haven’t seen an example which refutes this.

    I hope my comments have been constructive. 🙂

    Jay Lakner.

  • Published: February 24, 2009 4:06 PM

  • Andras
  • @Ergosumabbas:”In the era before our current IP tyranny, famous composers (Mozart, Beethoven) would collect subscriptions for their upcoming content.”

    Isn it telling that all these geniuses died dirt poor? I would challenge all to show one genius, before the IP Laws, who earned his living on his expertize and did not die dirt poor. I know it can be considered utilitarian but would not it be nice to “help” the Genius instead of testing them against all odds, in other word INTERNALIZE their gift?

  • Published: February 24, 2009 4:11 PM

  • John Tate
  • I think the distinction needs to be made between invention and innovation. If I use methods in a programming language I learned to write a program – I shouldn’t really be able to do much about someone else using them. The chances that someone can are astronomical and patenting such things is very destructive. Copyrighting something designed in this process would be okay.

    However if I invent a brand new molocule for a drug synthetically I think I should be able to patent it. Things that qualify invention can’t simply be configuration of existing things. In the case of the new drug the process to actually make the drug is easy to not reveal and isn’t the part that requires patenting.

  • Published: February 24, 2009 4:22 PM

  • Egosumabbas
  • @Andras
    “Isn it telling that all these geniuses died dirt poor?”

    They did not. You’ve been watching the movie Amadeus too often.

  • Published: February 24, 2009 4:30 PM

  • Silas Barta
  • @Stephan_Kinsella: That’s it? That’s all you have? Just claim my remarks are “rambling” and “incoherent”? Hm, that’s interesting. See, you didn’t seem to think they were incoherent when you replied in-depth[1] to me on the issue and conceded that your ENTIRE attempt to distinguish EM spectrum rights (which are OBVIOUSLY justified) and IP (which is OBVIOUSLY not), rests on the nebulous concept of “relevant use”, which is mentioned nowhere in your magnum opus on IP.

    In agreeing that your entire case against IP rests on the choice of “relevant use” for a resource, and that you have no justification for how to choose it, you have admitted your argument’s circularity.

    But I’m “rambling and incoherent” now … right?

    @Brian: What is this supposed obvious justification for EM spectrum rights? Why is it obvious that one person must be granted the exclusive use of ‘the color green’ in a certain area?

    I was referring to radio waves, not light waves.

    What are the two different definitions used? I’m under the impression that scarcity is always meant in the sense of physical objects, aka things.

    That’s the narrow definition. The broad definition of scarcity is equivalent to conflict, i.e., when it’s impossible to satsify everyone’s desires, no matter how trivial. If you read any of the libertarian treatments, including Stephan_Kinsella’s, you see that they have to be using the broad meaning at the start. That is, the existence of any kind of conflict establishes why there must be rights that say whose claim is more justified.

    And this *must* be the definition one uses at that stage. Otherwise, you’re basically saying, “All conflicts must be resolved as per libertarian property rights”, which is circular.

    On the other hand, if you consistently use the *broad* definition, then my argument about scarcity holds — that IP *is* scarce, in the broad sense, so Stephan_Kinsella’s argument falls apart that way. Pick your poison.

    @Ed: Thanks, but what about my points is “tiny”? The economic calculation problem is certainly not tiny!

    @Jay_Lakner: I decided to enter this discussion to offer a refutation to the radio waves argument.
    My argument is this: Ownership of an EM frequency fits simply into the category of Identity. Whoever first establishes themself on a particular frequency adopts that frequency as their identity in much the same way the first company to use a red apple as a logo apopts that as their identity.

    Then why can’t you say the same thing about ideas? That is, the first person to establish themself using a particular idea adopts that idea as their identity like the trademarks you describe.

    What’s really going on with respect to radio waves, in case anyone’s wondering, is that people are able to communicate using them, but *only* as long as certain aspects of reality (e.g. non-“interference”) hold. When they don’t hold, it’s no longer possible to infer the content of a message by examining particular frequencies. But there’s no reason, derivable from homesteading, why people have a right for these conditions to hold, unless you’re willing to expand the concept of a “resource” to the point that it encompasses IP.

    [1] Er, well, as much depth as you normally give to the topic anyway.

  • Published: February 24, 2009 4:34 PM

  • Jay Lakner
  • @Silas
    **Then why can’t you say the same thing about ideas? That is, the first person to establish themself using a particular idea adopts that idea as their identity like the trademarks you describe.**

    I sense your answer was rushed and I urge you to think about this a bit more.
    How is it possible for someone to use an idea as their identity?

    Regards,
    Jay Lakner.

  • Published: February 24, 2009 4:50 PM

  • Jay Lakner
  • Hello all,

    An extra comment if I may.

    Reading through the posts, I find all the specific examples to be rather unnecessary and they seem to overcomplicate what is really a very simple issue. This entire debate is solvable through pure logical thought.

    Try to follow the logic:

    1) Austrian economics fundamentally sits on the existence of property rights.
    2) Therefore it is a fundamental contradiction to include any condition on an economy which violates property rights.
    3) Copyrights and patents directly violate property rights.
    4) Therefore copyrights and patents can not be permitted in a free market.

    It really is that simple.

    Regards,
    Jay Lakner.

  • Published: February 24, 2009 5:03 PM

  • Andras
  • Stephan Kinsella:”Andras: “@Tiago,
    You are absolutely right. and even Mises (Human Action, Scholar Edition, p657.) agreed. Here is what he thought about this issue:[] (This part, as far as I know, conveniently left out from Kinsella’s book. Is it only me to see a trend here)”

    Oh, you are so pwned.

    Apology accepted.”

    Please see my reply at your next article: Mises on IP before you accept you apologies.

  • Published: February 24, 2009 5:12 PM

  • heuristic
  • Copyright is created naturally by the terms of sales contracts such as the typical EULA. That commonly happens already; no “hypothetical” is necessary.

    The natural creation of IP by contract is atrophied by the existence of State IP laws in the same way that private charities are atrophied by the welfare state, or in the same way that state monopolization of armed security atrophies the private use of defensive aemed force.

    Therefore one can reasonably expect that in a society of no State enforced IP laws the existing use of sales contract limitations on the usage and copying of a product would be much more elaborately enacted.

    Most people honor contracts that they freely agree to; they don’t have to be forced at gunpoint. Society would be impossible if that were not so.

    The minority of untrustworthy types who ignore their own contractual agreements can simply be logged in appropriate reputation management systems, so that prudent people can avoid doing business with them.

    Therefore IP exists, would exist in an anarcho-capitalist world, and has nothing to do with the state. (Except to attorneys).

  • Published: February 24, 2009 5:20 PM

  • Greego
  • I basically agree with Stephan on the general arguments against IP, and with Silas that EM property rights conflict in a similar way as IP does with real property rights. But the identification of that conflict doesn’t weaken the rest of the case against IP if you don’t hold simultaneously hold the belief that EM spectrum bands are homesteadable (which I, and I suspect many of the other anti-IPers here don’t.)
  • Published: February 24, 2009 5:21 PM

  • Silas Barta
  • @Jay_Lakner: I sense your answer was rushed and I urge you to think about this a bit more.
    How is it possible for someone to use an idea as their identity?

    …Probably the same way it’s possible for someone to use a frequency as their identity.

    Try to follow the logic:

    1) Austrian economics fundamentally sits on the existence of property rights.
    2) Therefore it is a fundamental contradiction to include any condition on an economy which violates property rights.
    3) Copyrights and patents directly violate property rights.
    4) Therefore copyrights and patents can not be permitted in a free market.

    It really is that simple.

    No, it’s not. You have to resolve the question of whether IP counts as “property rights” before you get to 1) … which is the very issue in question.

    (Gotta love those tags, Veksler)

  • Published: February 24, 2009 5:23 PM

  • Brian
  • @Silas

    @Brian: What is this supposed obvious justification for EM spectrum rights? Why is it obvious that one person must be granted the exclusive use of ‘the color green’ in a certain area?I was referring to radio waves, not light waves.

    What is the difference between radio waves and light waves? My high school physics teacher says they differ only in frequency/wavelength. No?

    What are the two different definitions used? I’m under the impression that scarcity is always meant in the sense of physical objects, aka things.That’s the narrow definition. The broad definition of scarcity is equivalent to conflict, i.e., when it’s impossible to satsify everyone’s desires, no matter how trivial. If you read any of the libertarian treatments, including Stephan_Kinsella’s, you see that they have to be using the broad meaning at the start. That is, the existence of any kind of conflict establishes why there must be rights that say whose claim is more justified.

    There are not two definitions. You say “scarcity is conflict” but conflict over what? The whole point is that conflict only arises over the use of scarce physical things, i.e. means that must be economized, and it is in this sense that Kinsella, Hoppe, et. al always use the term.

  • Published: February 24, 2009 5:31 PM

  • Greego
  • @heuristic:

    Private IP contracts don’t protect the original creator against third-party copying, so they’re not really the same as current IP laws. For example: I purchase a copy of a piece of software from you, and sign something to say I won’t make copies of it. Then someone breaks into my house, makes a copy of my copy and then lets it free onto the net. Unless it was specified in the contract that I would be liable for any copies of my copy made against my will (in which case I doubt I, or anyone else, would sign it and also it would be extremely hard to prove that it came from my copy), the private copy protection scheme has failed and you have no legal recourse against the perpetrator who distributed it against your will. Only I would be able to claim damages against him for breaking into my house.

    * I think a similar case happened with the latest Stephanie Meyer novel.

  • Published: February 24, 2009 5:35 PM

  • Brian
  • @Silas

    No, it’s not. You have to resolve the question of whether IP counts as “property rights” before you get to 1) … which is the very issue in question.

    Except that it has been shown ad nauseum that intellectual ‘property’ is an oxymoron.

  • Published: February 24, 2009 5:40 PM

  • Silas Barta
  • @Brian: What is the difference between radio waves and light waves? My high school physics teacher says they differ only in frequency/wavelength. No?

    They also differ in terms of how long they’ve been exploited, how they interact with various media, how easily they can currently be exploited to transmit information …

    There are not two definitions. You say “scarcity is conflict” but conflict over what? The whole point is that conflict only arises over the use of scarce physical things, i.e. means that must be economized, and it is in this sense that Kinsella, Hoppe, et. al always use the term.

    Then you agree with the point I’ve made thousands before: IP *is* scarce, because IP is a claim to how physical resources are used. If you’re right that all conflict is over scarce physical things, then yep, IP is one such conflict.

    So I guess it’s pretty nonsensical to dismiss IP on the grounds that there’s “no conflict over it”, don’t you think?

  • Published: February 24, 2009 5:45 PM

  • Silas Barta
  • @Brian: Except that it has been shown ad nauseum that intellectual ‘property’ is an oxymoron.

    Sure, by subtly assuming that in the course of proving it.

  • Published: February 24, 2009 5:47 PM

  • Jason Gordon
  • “…IP is a claim to how physical resources are used. If you’re right that all conflict is over scarce physical things, then yep, IP is one such conflict.”

    An illegitimate claim in an attempt to create state enforced artificial scarcity.First you must show that your claim is legitimate….

  • Published: February 24, 2009 5:53 PM

  • Fred
  • You have less understanding of intellectual property and economics than my cat.
  • Published: February 24, 2009 5:59 PM

  • Cat
  • Fred,

    That is Dr. Cat to you, my dear owner.

  • Published: February 24, 2009 6:02 PM

  • Jay Lakner
  • @Silas
    **No, it’s not. You have to resolve the question of whether IP counts as “property rights” before you get to 1) … which is the very issue in question.**

    In the fundamental assumptions of Austrian Economics, so called “Intellectual Property” is not in the definition of property.

    Your property, by defintion, is something belonging to you that you may do whatever you want with. (so long as it does not adversely interfere with another individual) It is something tangible and unique.

    Intellectual Property on the other hand is not tangible and is certainly not unique.

    Intellectual property does NOT come under the definition of property for the purposes of the fundamental foundations of Austrian Economics.

    I know once one gets deeply involved in a subject they can sometimes lose sight of the fundamentals. Your reasoning skills are excellent, however I fear to tell you that you have made a false assumption and maybe forgotten the principles and definitions upon which all of Austrian Economics is based.

    I suggest maybe go back and have a re-read of some of the starting materials of Austrian Economics. I think I’ll do the same … I’d hate to think that maybe I am the one who’s made the false assumption…

    Regards,
    Jay Lakner.

  • Published: February 24, 2009 6:08 PM

  • Brian
  • @Silas

    Then you agree with the point I’ve made thousands before: IP *is* scarce, because IP is a claim to how physical resources are used. If you’re right that all conflict is over scarce physical things, then yep, IP is one such conflict.So I guess it’s pretty nonsensical to dismiss IP on the grounds that there’s “no conflict over it”, don’t you think?

    Ok, so we agree that IP is a ‘claim to how physical resources are used’. But then you go to say “IP *is* scarce, because IP is a claim…”. This is nonsensical. The physical resources are the scarce goods, not the claim on them. The fact that IP makes a claim on scarce goods does not then make IP a scarce good. Is this really what you meant?

  • Published: February 24, 2009 6:13 PM

  • Greego
  • @Silas:

    “IP *is* scarce, because IP is a claim to how physical resources are used. If you’re right that all conflict is over scarce physical things, then yep, IP is one such conflict.”

    It doesn’t make sense to say that ‘IP is scarce’ for the same reason is doesn’t make sense to say that ‘property is scarce’. I assume you mean that the ‘things’ that IP rights are assigned to (ie, patterns) are scarce. But that’s blatantly false, as any pattern can be copied by anyone who owns a ‘thing’ with that pattern embedded (such as if I look at your Bentley, the pattern is now embedded in my brain, which is my property.) That is, the conflict resolution method for patterns is the act of copying itself. The conflict resolution method for scarce goods is property rights, assigned via homesteading or the voluntary trade of homesteaded items. Why forcibly assign an inferior conflict resolution method (property rights/free trade) to a category that already has available a clearly superior one (copying)?

  • Published: February 24, 2009 6:14 PM

  • Joseph Mises
  • They are coherent
  • Published: February 24, 2009 6:33 PM

  • Jay Lakner
  • @Silas
    **How is it possible for someone to use an idea as their identity?

    …Probably the same way it’s possible for someone to use a frequency as their identity.**

    I feel I should also answer this.

    A frequency can be used as an identity because there are an infinite number of different frequencies.
    Just like a name is viable due to the infinite number of names, and similarly a symbol due to the infinite number of different symbols.
    It’s not like the world is going to run out of radio frequencies.
    Also, an EM frequency is a real thing. It’s measurable. It exists.

    An idea is not a real thing.

    You seem to have missed the point I was making when I asked “How is it possible to use an idea as an identity?”

    I was trying to get you to think more deeply about the very definition of “idea”.
    Ideas are abstract.
    Ideas are thoughts in an individual’s mind.

    You cannot use them to identify yourself.
    For example, woodfired pizza.
    Let’s say you take that “idea” as your identity for your company. That doesn’t mean your identity are the words “Woodfired Pizza”. It means the abstract idea of woodfiring pizzas is your identity.
    How do you communicate with other people and tell them who you are? You identity is an idea, not words, not pictures, not actions, not a frequency of vibration, but an abstract idea.

    You cannot use an abstract idea to make yourself identifiable to others.

    Do you follow me?

  • Published: February 24, 2009 6:42 PM

  • Andras
  • @Jay Lakner:
    In our mind everything is an abstract idea even your identifiers, your name, your (SS) numbers, your e-mail address etc. So being not an idea can not be invoked to remove the identifiers from the argment.
  • Published: February 24, 2009 7:02 PM

  • Jay Lakner
  • @Andras
    **In our mind everything is an abstract idea even your identifiers, your name, your (SS) numbers, your e-mail address etc. So being not an idea can not be invoked to remove the identifiers from the argment.**

    I agree with your first sentence. Yes, in my mind even my identifiers are abstract ideas.

    But you have not disproven my point. Because in reality those identifiers are real, tangible, measurable things.

    The idea of my identifier if not my identifier, the actual identifier itself is.

    I think you strengthened my argument.

  • Published: February 24, 2009 7:26 PM

  • Jay Lakner
  • @Andras
    **In our mind everything is an abstract idea even your identifiers, your name, your (SS) numbers, your e-mail address etc. So being not an idea can not be invoked to remove the identifiers from the argment.**

    I agree with your first sentence. Yes, in my mind even my identifiers are abstract ideas.

    But you have not disproven my point. Because in reality those identifiers are real, tangible, measurable things.

    The idea of my identifier is not my identifier, the actual identifier itself is.

    I think you strengthened my argument.

  • Published: February 24, 2009 7:26 PM

  • Jay Lakner
  • OOPS! Sorry about the repeat message.
    Is there anyway to delete it?
  • Published: February 24, 2009 7:29 PM

  • Brian
  • @Lakner

    Also, an EM frequency is a real thing. It’s measurable. It exists.

    No, frequency is a property of an EM wave/photon. There is no such thing as an independent entity called a ‘frequency’. A frequency can’t be owned since it is not a thing and thus not scarce.

  • Published: February 24, 2009 7:33 PM

  • Andras
  • @Jay Lakner,
    Is your bank account number qualifies as “real, tangible, measurable thing(s).”?
  • Published: February 24, 2009 7:48 PM

  • Jay Lakner
  • @Brian

    I never said the EM frequency was “owned”. The EM frequency is used to identify one entity from another.

    Much like the little red apple is used to identify Apple Mac from other computer brands.

    You certainly cannot own a frequency. But it can be used to identify your organisation from other organisations. In this case one radio business from another.

    Similarly, you cannot own every little red apple picture in existence. But you can use the symbol to identify your computer company from others.

  • Published: February 24, 2009 8:01 PM

  • Jay Lakner
  • @Andras

    A number is an abstract concept. A number is an idea.

    Numerals are the representations of numbers.
    Numerals are symbols.
    Numerals are real.

    Therefore you cannot use the number 3 as an identity, but you can use the numeral “3” as an identity.

  • Published: February 24, 2009 8:06 PM

  • Gil
  • As far as I’m concerned:

    1. Lame strawman argument. I don’t know of people who’d do a cheap legalist tautology of “it’s legal because it the law”.

    2. I.P. is property because it was created and is valuable as people want to steal good ideas.

    3. No high-level medicine was made in times of yore. Art used to be valuable and scarce because people didn’t have the talent nor access to the materials.

    4. If you don’t own something via creating them then virtually nothing can be ‘owned’. You must be referring to times when the materials and resources were owned by someone else.

    5. Correlation sides with I.P. – all inventions and innovations occurred during the same period as I.P. protection. Show us the period when there was great innovation absent of I.P. . . .

    6. If the idea wasn’t valuable then why would want to steal it? Why didn’t they create their own from their own resources?

    7. Either I.P. is a valid concept or is invalid. It can’t be valid in one instance (the private sphere) or in another (the public sphere) – either it’s totally right or totally wrong.

  • Published: February 24, 2009 8:22 PM

  • Silas Barta
  • @Greego: t doesn’t make sense to say that ‘IP is scarce’ for the same reason is doesn’t make sense to say that ‘property is scarce’. I assume you mean that the ‘things’ that IP rights are assigned to (ie, patterns) are scarce. But that’s blatantly false, as any pattern can be copied by anyone who owns a ‘thing’ with that pattern embedded

    Er, yes, people do say “property is scarce”, because the term “property” is used in more than one sense. But here, you clearly couldn’t take the step of recognizing the the sense in which I was using the term. So let me step back again and say this as clearly as possible and without ambiguity:

    When someone makes an IP ownership claim, the claim is — like you agree all conflicts must be — about the use of physical objects. That is, their claim would imply that *physical objects* can’t be used a certain way. Therefore, scarcity exists: not everyone’s desires about the use of physical resources can be satisfied.

    Now, back to Stephan_Kinsella’s argument: he’s attempting to dismiss IP on the grounds that something isn’t scarce. (He says “IP isn’t scarce”, but, like you just criticized me for, he’s being imprecise with his terminology, and that statement can’t make sense, but it doesn’t matter for my point here.) But if there really were no relevant scarcity, there wouldn’t be a dispute in the first place! The very fact that there is an argument Stephan_Kinsella is responding to, proves that there is a relevant scarcity.

    So not only is his argument wrong, it’s not even in the right category. And he doesn’t even bother defending it anymore; he just says, oh yeah, well I can prove my case some other way … oh, here we go? You see, I homesteaded the thing that you’re claiming IP rights in, so obviously I can tell you to bugger off, even though I’m assuming my ownership extends to that use, which was the very point in dispute…

  • Published: February 24, 2009 9:09 PM

  • anon
  • “You know, I haven’t seen a good pro IP article ever.”

    Someone willing to take up Kinsella’s challenge?

  • Published: February 24, 2009 9:14 PM

  • Silas Barta
  • @Brian: My reply to Greego applies double for you.

    @Jay_Lakner: In the fundamental assumptions of Austrian Economics, so called “Intellectual Property” is not in the definition of property.

    Oh, okay, so you assume your conclusion. Gee, we haven’t had enough of that today!

    So, no more substantiation for your EM/IP distinction? Well, it was fun.

  • Published: February 24, 2009 9:15 PM

  • anon
  • “There are some decent arguments out there that argue in favor of a state, welfare rights, war, democracy, drug laws, and so on. They are all flawed, since libertarianism is right.”

    I am curious as to how libertarianism is “right”, the “absolute truth”, ‘absolutely correct”, so to speak.

  • Published: February 24, 2009 9:16 PM

  • Greego
  • @Silas:

    “Er, yes, people do say “property is scarce”, because the term “property” is used in more than one sense. But here, you clearly couldn’t take the step of recognizing the the sense in which I was using the term.”

    And you obviously didn’t read further than my first sentence. Let me repeat it for you:
    I assume you mean that the ‘things’ that IP rights are assigned to (ie, patterns) are scarce.

    “When someone makes an IP ownership claim, the claim is — like you agree all conflicts must be — about the use of physical objects. That is, their claim would imply that *physical objects* can’t be used a certain way. Therefore, scarcity exists: not everyone’s desires about the use of physical resources can be satisfied.”

    No, scarcity doesn’t exist – the very same pattern can exist and be used without conflict in any number of tangible items owned by any number of people. Therefore, there is no need to extend exclusive usage rights as there’s no conflict to resolve. It’s as simple as that.

  • Published: February 24, 2009 9:33 PM

  • Imagination
  • Let’s say I’m a famous author. I contact the top three publishers and offer to write a new novel if they pay me in advance. According to Silas, ktibuk, et. al the publishers would never agree due to the fact that smaller publishers could copy the book. But the question is not, “Can people copy your book?” The question is, “Will you sell more books than you normally would have if this author’s story is printed on them?”

    If the volume of book sales in the entire industry increases because everyone wants to read my amazing novel, then the revenue of every publisher increases. The fact that some publishers did not pay the author does not make it impossible for those who paid the author to profit.

  • Published: February 24, 2009 9:40 PM

  • Silas Barta
  • @Greego: No, scarcity doesn’t exist – the very same pattern can exist and be used without conflict in any number of tangible items owned by any number of people. Therefore, there is no need to extend exclusive usage rights as there’s no conflict to resolve.

    And your inability to understand my point has you going in circles like this again. If there’s no conflict to resolve, why are you arguing against a position?

    @Imagination: People can still profit in kleptocratic regimes too. Guess we don’t need property rights and production can proceed unabated without them … right?

  • Published: February 24, 2009 9:52 PM

  • Jason Gordon
  • @Silas

    When someone makes an IP ownership claim, the claim is — like you agree all conflicts must be — about the use of physical objects. That is, their claim would imply that *physical objects* can’t be used a certain way. Therefore, scarcity exists: not everyone’s desires about the use of physical resources can be satisfied.

     

    No, no one tries to limit the use to which another may put their physical property — one makes a valid ownership claim to the physical property itself.

    Let’s take an example:
    -You make an innovative mousetrap from $1 worth of raw materials yet are charging $10 for it.
    -I purchase the $1 worth or raw materials.
    -Do you believe you have a valid ownership claim to my $1 of raw materials?
    -Do you presume to dictate to me how I may or may not use my $1 of raw materials?
    -I decide to make a mousetrap identical to yours by substituting my labor saving myself $9.
    -Do you believe you have a valid ownership claim to my $50 mousetrap? (Yes, my time is more valuable than yours. I’ve made a bad choice.)
    -Do you presume to dictate to me how I may or may not sell my $50 mousetrap? (I sell it for $5 and take a loss.)
    -Do you believe you have a valid ownership claim to my $45 loss?

    What exactly is your claim again?

  • Published: February 24, 2009 10:05 PM

  • Silas Barta
  • @Jason_Gordon: I hate to be the one to break it to you, but all IP claims can be equivalently expressed in terms of the physical resources they imply restrictions on. So in some cases, yes, that will mean someone believes something equivalent to, “I have a right to stop you from forming object O into pattern P, but otherwise you may do whatever you want with O.” That’s not much different from, “I have the right to stop you from bringing object O into region R, but otherwise you can do whatever you want with O.”

    Don’t get so focussed on the choice of terminology. Instead, ask what actual rights are being asserted, and how the arguments are applicable to such claims.

  • Published: February 24, 2009 10:15 PM

  • Jason Gordon
  • @Silas

    Have I impoverished you with the making of my mousetrap?

    From whence did your “right to stop [me] from forming object O into pattern P?”

    Please derive this “right.” (And don’t just say government might.)

  • Published: February 24, 2009 10:24 PM

  • Peter
  • Tiago… TY. If you had the choice between no toilet paper at all and toilet paper, you pick the TP. Maybe you can make better TP over time, but you still need the TP until there is a better option.

    Saying something is not perfect and that hypothetically there are other possibilities is not the same as proving other possibilities will work well enough to replace what is in use now.

    Hey, just because you don’t know how to use the three shells…

  • Published: February 24, 2009 10:27 PM

  • fronzai
  • If the essential argument of this thread is whether or not intellectual property is property rights, then I think we need a better definition of terms.

    First of all, intellectual property would have to be an example of property rights, it cannot be rights, as Silas Barta believes. That simply does not make sense.

    Second of all, if intellectual property is a type of law-enforced property right, then when I tell an original idea of mine, or plot for a book, or tune for a song, or whatever, to another person, then it must be said that I no longer have that idea. In other words, that I no longer have a right to that idea. That is the only way law may be enforced when it comes to intellectual property. But this is not the case. When my original idea, plot for a book, tune for a song, or whatever, is copied by another person, I do not lose that idea but retain it just the same. So of what am I to convict the copier of my idea? Nothing has been stolen, no aggression committed, and no crime to punish. Am I to have them arrested on copy cat charges? I would certainly be laughed out of consideration and no longer taken seriously if I attempted that. (Fraud is the only legitimate charge: someone claiming service for payment when they have done no such service, as writing a book for a publisher. But then, we’re not dealing with intellectual property, but rather the performance of a service in return for payment.)

    The purpose of IP law seems to be to protect reputations. An author may be worried, in a society free of IP law, that his work will be copied and claimed by an impostor, and rightly so. All the more reason for that author to establish himself as a credible author before revealing his heart and soul on the market. Perhaps, as was mentioned about Mozart, he could have customers reserve copies of his work before it even becomes available. This is already done by established writers. Does this mean artists, intellectuals, and others will have to work harder to make a living in the liberal arts? Perhaps. But law cannot be made to bully, that is, initiate aggression against non-violence, simply because an author believes someone to be a copycat or would rather have his thoughts all to himself. In that case he should simply keep them concealed.

    Now the utilitarian might argue that this argument will stifle creative output and convince artists to simply shut away leaving the world devoid of creativity. Again, I am reminded of the childish bullying IP law proposes. At best, getting rid of IP law would clean the market of the mindless drivel that exists on the today because artists would have to exert considerably more effort to make their works known, e.g. by establishing a solid reputation.

  • Published: February 24, 2009 10:43 PM

  • Cosmin
  • I thought Silas Barta disappeared. I guess he was just avoiding. That’s what he does…

    He disappeared from here: http://blog.mises.org/archives/009486.asp

    And even avoided my question to him on his own blog.

    Tell me Silas, how is an idea stealable, exactly? I’ve always wanted to steal someone’s idea, but the fact that it’s only an abstract concept in his mind has foiled all my attempts until now.

  • Published: February 24, 2009 10:48 PM

  • Critical Observer
  • It’s very telling that Mr. Kinsella is a lawyer — a service based occupation. If his primary source of income was product creation, he might take a different view. I can only assume that if he spent untold years of his life creating a lawyer robot which would do his job for him, and a competing lawyer stole the schematics in ten minutes, built an exact replica and put Mr. Kinsella out of a job, he would find no fault with the man’s actions since those schematics were just “ideas”. But I digress…

    I will offer a natural rights argument in support for the idea of IP (I however am fairly hostile to the way IP is enforced nowadays).

    There is nothing physical about “rights” at all. Not just IP, but really any so-called “right”. This seems incredibly obvious. In a practical sense, the only thing that forms a “right” is whether there is a reasonable expectation of enforcement. Continuing this line of logic, if “rights” aren’t real in the brick and mortar sense, then you will probably agree with me that the reason we create institutions to enforce these abstractions called rights is because the violation of them has real physical consequences. This is the foundation of natural law. Societies codify a certain set of policies and enforcers in law and government, respectively, designed to attain specific results. If you agree with both of these aforementioned statements, it would be reasonable that we should judge IP not against some type of Platonic logical construct, but against the real effects that occur if certain types of IP are implemented. Basically I propose a realism which promotes practical liberty versus a skewed, albeit consistent, idealism which purports to do the same.

    To all of the people who make the claim IP is “just ‘ideas’ and therefore not morally enforceable through law,” I encourage you to hop out of your metaphysical tree house and join us grown ups down here in the real world. The development of certain “ideas” costs real quantities of life (time and effort) and property (capital investment). That being said, the implementation and communication of ideas is necessary for societies, economies, and cultures to flourish. Patents, copyrights, and other forms of IP are created and enforced by governments to strike a useful compromise between these two competing phenomena.

    The tendency of innovative companies is toward extreme amounts of research and “intellectual” activities. Typically, the work after formation of a prototype is fairly minimal and easily copyable. Without IP, many of these activities can become devoid of an incentive structure because a competitor can forgo the extremely high investment costs and instead focus on manufacturing efficiency, placing the innovator at a disadvantage (and very realistically, a negative investment). With these considerations in mind, many very high technology entrepreneurs would choose not to innovate.

    Now, this argument holds varying degrees of weight depending on how easily a technology is “reverse-engineerable” or how costly the initial investment is; but the point is the same: IP is designed to protect the sunk-costs and property consumed in investment and research. It is created to protect very real and tangible property and can be reasonably effective in accomplishing its goals if done right.

    In any case, without the expectation of of some type of temporary monopoly on these “ideas,” it is the natural tendency of the innovator to restrict and hide his information. Because the more information a competitor has, the more he can effectively steal. This leads to hidden proprietary standards and “security through obscurity.” However, patent protection is a two-edged sword: the innovator is forced to provide enough information to reasonably and effectively defend the patent. This results in the transmission of information into the public sphere very rapidly.

    Now, we can argue ’til the cows come home about the length of IP expiration or what “reasonable” IP is, but to say that in the total sense that IP isn’t connected to physical property and therefore shouldn’t exist is a pretty stupid statement. If IP wasn’t relevant and connected to the real world, it would seem there would be very little contention about this issue.

    I would contend then, that the argument over IP should be in regards to the effectiveness of protection, trade-offs and extent of the protection, and type of personages to be protected. To say that IP should be abolished in the strictest abstract sense denies reality. Last time I checked, the folks here at the Mises Institute were capitalists–IP is just property rights applied to the capital investment phase of business. I find it very hard to argue against IP as a blanket generalization if you espouse the beliefs of capitalism.

  • Published: February 24, 2009 11:00 PM

  • Cosmin
  • Observer,
    Libertarians believe the free market will find the most efficient ways to reward inventors, if it is not hobbled with patents.
    Patents are a governmental solution full of unintended consequences.
    What of the inventor who arrived second at the patent office? What of all the time and energy wasted to figure out if research can be even undertaken, out of fear that it will lead to something already covered by an obscure patent? What of the time and energy spend defending successfully a patent? What of the improvements not made on a patented object by millions of minds who are not allowed to work on it?
    Get more acquainted with the lecture presented on this site and see if you’ll understand the debate a little better.
  • Published: February 24, 2009 11:52 PM

  • Andrew
  • There are a few different types of IP: copyright, patents and trademarks.

    Copyright and patents can be good because it gives people money for creating content, which means more content will be created.

    The most important intellectual property right is trademarks. A company can establish a reputation in the market via a trademark.

    Say food quality was deregulated. Maybe Underwriter’s Laboratories or Lloyds would make a private food standard. But what if someone decided to trade on UL/Lloyds good reputation? Without trademark IP protections their reputation could be destroyed by anyone.

  • Published: February 24, 2009 11:56 PM

  • Critical Observer
  • Cosmin:

    Firstly, I am both an inventor and entrepreneur and my business is moving out of the initial capital formation stage right now. I have worked in many start-ups and have seen a patent successfully upheld against a large company who literally stole private source code. That company spent about 5 man years developing a specific and complicated algorithm and showed it to the bigger company with an NDA attached. The company proceeded to reject the sale offer, modified less than 1% of the algorithm and marketed it as their own. That small company wouldn’t be around if it weren’t for legal protection with patents.

    Also, I am a physicist involved in industrial robotics and am well versed with the so-called “difficulties” of searching through patent law. Quite frankly, if you’re involved in something truly innovative, there aren’t many patents specific enough to be considered legally enforceable. I assure you, only the extremely cowardly inventor is more concerned with stepping on someone else’s patent than they are with a big company recognizing competition and stealing their work. Honestly, it is extremely rare for a legitimate inventor to be sued for patent fraud early on as their visibility in the market is next to none. Being sued would be a good problem to have as you would probably be a much larger company and able to hire enough lawyers to defend the case. These hypotheticals you propose are pretty devoid of any actual reality as the vast majority of patents are fodder. In short, these encumbrances aren’t. Maybe if the Mises Institute didn’t consist of political theorists, fund managers, and trust-fund academics, but instead people who created non-trivial physical (non-book) products and marketed them, this argument would lose traction. But I digress again…

    So Cosmin, I regularly read here and understand the debate, I just think it’s a horribly bad one.

    Physical property is protected by law–I would like to believe that you would have the government enforce laws regarding physical property. An efficient “free-market” doesn’t exist without a physical enforcement of property rights. Otherwise, a person could come into my house, take my T.V. and say, “Hey, it’s a ‘free’ market.” That’s not a free market or a system governed by rule of law, but one of might-makes-right. If that happened with any regularity, I probably would quit making or buying T.V.’s…. I hope you can see where I’m going here.

    Likewise, my argument for IP has always attached the physical property consumed in the investment stage with the vulnerability of an inventor when entering the production stage of the market. If I can spend years of blood sweat and tears at a capital loss out of my own savings, and then the next day some company 1000 times my size takes all of my work and reproduces it at half the cost because of economies of scale, I am stuck with a loss. This is the might-makes-right economy and it is a physical reality without some type of abstract property enforcement. In this situation, I also got my metaphorical T.V. stolen, and probably don’t want to make another one.

    My whole argument is to attach the “intellectual” part of IP to the physical and labor capital consumed from savings in its creation. This is real property, and it is reasonable for society to confer an advantage to a content creator purely for the reason of innovation. Just because “ideas” are infinitely copyable doesn’t mean that the energy and work to create them are.

    IP is a reasonable compromise which allows the inventor some breathing room to re-coup sunk capital costs, and then places that specific ideological blueprint in the public domain after a certain time threshold.

    Also, to Stephan Kinsella:

    Regarding drug creation. Yes, people have been making medicine for millenia–poorly. Also, these “medicines” were more like nutritional supplements as the necessary chemistry and biology for any logical testable predictions did not come into fruition until the late 1800s. We were still leech bleeding patients into the 1900s. Nowadays, it takes billions of dollars, years of time, and hundreds of test subjects to confer reasonable certainty of the safety and effectiveness of drug chemistry interacting with the complex biology of the human animal. On the other hand, it takes about a week! of time for a smart analytical chemist to use a mass spectrometer, some infrared Fourier transform spectroscopy, and some computational cross-checking against databases of probable combinations of the base elements to reverse engineer the compound. No biological testing or understanding of the human biological pathways is necessary which is 99% of the work. If IP was not upheld in this case, we would see massive vulture capitalism and no incentive to sink so much capital into research. There is too much of a structural asymmetry rewarding the looters and not the producers.

  • Published: February 25, 2009 1:26 AM

  • Jason Gordon
  • @Critical Observer

    If a company 1000 times your size can use its economies of scale to more efficiently produce your invention why wouldn’t you partner with them to ensure an affordable product is brought to market and defray the cost of years of investment?

    The paradigm is different in that it demands efficiency and embraces the division of labor — but it hardly seems unworkable.

  • Published: February 25, 2009 2:26 AM

  • Critical Observer
  • @Jason

    “If a company 1000 times your size can use its economies of scale to more efficiently produce your invention why wouldn’t you partner with them to ensure an affordable product is brought to market and defray the cost of years of investment?”

    If you read my above post, you would have seen that a previous company I worked for tried to do this, and a large company tried to steal their work. You are very likely looking at a product that looter company made as you’re reading your screen. We tried to partner with a large company, but they essentially rejected our partnership offer and stole our work anyways. The specificity of our patent and the fact that it was publicly registered with the U.S. government was what upheld our legal claim to ownership of our work.

    In a world without IP, this couldn’t occur, because after all, it was just an “idea.”

    Secondly, large institutions aren’t historically good at research. We wouldn’t necessarily “defray the cost of years of investment” with a big company because the bureaucracy and structural inefficiencies of large corporations is often inimical to creativity. However, large corporations are wonderful at taking already established creative ideas and mass producing them. Once again, there is a natural partnership between start-ups and large corporations, but without IP that link would be severed, as no start-up with a great idea would reasonably talk to a megacorporation out of fear of being at a disadvantage against a company who blatantly took their technology and commercialized it.

  • Published: February 25, 2009 2:38 AM

  • scott t
  • “I can’t contract something that isn’t mine. ”

    — i guess…if you have a service contract…i mean you own your body but your service or labor is performed. action in other words. —

    you cant pick up your labor as your would your paintbrush or any other real good. —

    — if IP doesnt exist, wouldnt the contracts (which i thought were signed agreements) essentially be some variant of a service or action contract?

    for example, some webpage may say to not redistribute, and someone signs a contract saying not to redistribute the webpage – the information on the webpage still isnt property, i could remember the information or take a snapshot of the screen and rewrite the information with a calligraphy pen. its the same communicated information – just more of it in more places. —

    that couldnt be done with a blender. —

    — so it would seem to me that the ‘so-called’ IP contracts dont make information, ideas or sensory input and output a property, they are some type of action agreements. —

    — if a contract was made for, and say money exchanged for (the setting service, the gem and the metal ring) someone to set a stone in a ring and the stone was undesirably placed – i guess there would be harm to the ‘purchased real property’, the gem and metal ring.

     

     

     

     

     

     

     

     

     

  • Published: February 25, 2009 3:21 AM

  • Miklos Hollender
  • Well, what I have is not an argument against IP but simply a practical doubt that at least one effect of the lack of them probably wouldn’t be very good.

    Right now, you use your savings to start a small family business, research a product, and IP provides you protection, basically, a monopoly to sell the product derived from the fruits of that research. And the cool thing is that not even the richest corporation in the world can f*ck with you then. So they either make an offer to buy your whole company, for good money, or just suck it up and wait for the patent to expire. Similarly, you can negotiate with big-time venture-cap investors, because you have something to sell: your IP.

    In the absence of IP they could just copy your product, and having the economy of numbers, produce it at half the cost and your are finished.

    I’ve received two answers to it in that other topic, neither of them very convincing:

    1) small is often nimbler, first-to-market etc. Right, but wouldn’t the lack of IP hurt their chances to raise capital, to negotiate with investors?

    2) Work for them, not against them. Ugh, no. Everybody knows it’s sucky to work at corporations, most clever folks do it only as long as they need to and then start their own business. It’s a much better way to live…

    These aren’t really arguments against IP, because they are not really worked out, they are doubts, I simply can’t see how exactly would it work.

    Probably the best answer is private contract: have a potential investor sign an NDA, have all customers sign a contract not to disassemble the product, stuff like that. But that’s not no-IP, that’s private-law IP, a different kind of IP.

    If it can be demonstrated private-law IP could provide some similar arrangements to the current one to protect the investment of small businesses that they have put into research, I have no further objections.

  • Published: February 25, 2009 3:27 AM

  • Miklos Hollender
  • “These aren’t really arguments against IP, because they are not really worked out, they are doubts”

    sorry, I worded it ambiguously. So: these thoughts of mine aren’t really arguments against no-IP, because they are not really worked out, they are doubts.

  • Published: February 25, 2009 3:30 AM

  • Cosmin
  • Observer,
    Leech therapy is being rediscovered by modern medicine.
    Also, in your little world, chinese and other medicine with millenia-old traditions seems inexistant (or useless)
    You said: “Nowadays, it takes billions of dollars, years of time, and hundreds of test subjects to confer reasonable certainty of the safety and effectiveness of drug chemistry interacting with the complex biology of the human animal.”
    Reasonable certainty of safety and effectiveness? What world do you live in?
    http://www.guardian.co.uk/society/2008/feb/26/mentalhealth.medicalresearch
    http://www.sciencedaily.com/releases/2007/08/070827095231.htm
    http://www.mcmanweb.com/FDA_suicide.htm
    Billions of dollars and years of time for THAT?

    As for the rest of your rant, all I got was: “The way society is set up is the best way it can be set up. I lack the imagination to even entertain an alternative so you should all stop discussing it and instead bow down to your president who’ll tell you what work he has assigned to you to make your life fulfilled.”

  • Published: February 25, 2009 3:38 AM

  • Cosmin
  • Miklos,
    Why do you see economies of scale as a bad thing?
    It may appear to you that they are bad for the investor, but do you at least agree that they are good for the consumers?
    As for the investor, why can’t he get them to work in his favor?
    An example that people keep bringing up is of the evil corporation that steals and markets the idea. Why not go to their competitors then?
    Also, who’s to say that there wouldn’t appear companies offering services of manufacture and distribution to inventors, that would let them compete with established corporations? Or agents, like for athletes and moviestars?
    And how do you know corporations would be as big and dominating in the first place?

    Anyway, I’m more interested in this debate from the ethical perspective.

  • Published: February 25, 2009 4:03 AM

  • Critical Observer
  • Cosmin:

    Chinese and other medicine has not had a useful targeted effect for specific biological problems. It is very hard to argue against that with a straight face. The Chinese are a very healthy people and their “medicine” is more like long-term and general holistic wellness. I challenge you to argue that traditional Chinese medicine has been more effective in a short time span at curing or treating viral infections, bacterial infections, genetic diseases, auto-immune disorders, etc. than Western medicine. Not to mention the efficacy of surgical procedures, predictive medicine etc. The American lifespan is incredible considering how terribly we treat our bodies. If the West ingested the same foods as the Chinese, the difference in lifespan would be incredibly obvious.

    Additionally, the fact that there are known problems with medicines being placed on the market doesn’t hinder my argument–it helps it!!!! Biology is complicated. There are certain levels of reasonable testing necessary to jump through before a company feels that a product is ready to ship. If there are even more hurdles because shipping a product is more hazardous than originally thought, the costs (risks) are more extreme. Therefore, if someone can steal a properly functioning final product after multiple iterations of failure, then a looter gets the profit and the producer gets saddled with even more lawsuits and investment costs. The risk/reward ratio for the innovator is even higher than in my original argument. This is even more of a justification for a type of intellectual property, even if it is private and contractual such as an NDA (like Miklos Hollender’s very valid argument).

    Lastly, I placed very solid arguments for the existence of IP as a valid concept in general. I did not say that this was “the best way it could be set up” by any stretch of the imagination, merely that eliminating IP both in form and function is wishful thinking and won’t yield the objective results lots of people think it will. Also, I hate the FDA and think it should be eliminated. I also voted for Bob Barr, am an ardent libertarian, and don’t in any way approve of “bow[ing] down to a president who’ll tell you what work he assigned to you to make your life fulfilled.”

    I suggest you directly criticize my previous argument that IP is a reasonable societal law because it purports to protect the real property rights of capital investments (both labor and physical). Go ahead and argue about its morality, its efficacy, whatever. Otherwise, all I got from that last post was a bunch of ad-hominem attacks and an off-topic result regarding Chinese medicine that has nothing to do with the reasonableness of IP.

  • Published: February 25, 2009 4:19 AM

  • JerryLee
  • I wonder if separating physical and non-physical things to prove that IP laws are ridiculous is even necessary.

    You could say that an idea is indeed physical, insofar as it must reside inside the brain and that there is nothing mystical about the brain. An idea is just electricity and synaptic connections in the brain.

    Does this mean that ideas should be patentable? No. If you have an idea (meaning there is something physical representing that idea inside your brain) and you tell it to me, I will have my own version of the idea (something physical inside my brain). Whatever goes on in our brains when processing the same idea cannot be 100% identical; they are not the same thing.

    The abstract representation of the idea that encompasses both physical manifestations of the idea is just that, an abstract representation.

    @Silas: You’re assuming here that whenever there is a conflict, it automatically means that there is scarcity. But is this really so?

    Assume that I can snap my fingers to create an exact copy of your car whenever I like. Clearly, everytime I snap my fingers you still have the right to your one car, and me snapping my fingers does not result in any kind of claim to your car. There is no stealing involved here, is there?

    However, being an IP advocate, you might of course be enraged by the fact that I can have a car by snapping my fingers, whereas you had to work to buy yours. And thus, also being an advocate of the government, you will naturally feel you are entitled to at least some of the cars I have created by snapping my fingers. I tell you to stay away from my cars.

    What do we have here? A conflict, but WITHOUT scarcity. This conflict results only from your misunderstanding of the matter at hand; not from a scarcity of cars.

    Point is, there can always be conflicts no matter what, even in a world without any scarcity. Even if there was an endless supply of everything, one could still cause (or attempt to cause) a conflict by saying a particular item belongs to him. This is because a conflict need not be based on logic, as your argument has shown.

  • Published: February 25, 2009 5:09 AM

  • Critical Observer
  • JerryLee:

    “Assume that I can snap my fingers to create an exact copy of your car whenever I like. Clearly, everytime I snap my fingers you still have the right to your one car, and me snapping my fingers does not result in any kind of claim to your car. There is no stealing involved here, is there?”

    Garbage. You have destroyed the incentive structure and assumed humans will work just as hard without it. This is essentially ideological communism. If you take my idea, you have placed yourself on equal footing with me in the productive stage, while I put out all the effort in the investment stage. We are competitors and I have performed all the work and you have performed none. You however, may have saved up energy, effort, physical capital etc. to take advantage of my idea, and therefore initially produce it more efficiently because you have excess capital from not investing. You win the production battle, you win the money. Therefore, in this case, you win totally. You are stealing my natural advantage of investing time and effort by sitting around and waiting for some poor sucker to actually do some hard work.

    But how long will it take for the whole enterprise of discovery, innovation, and progress to break down if entrepreneurs systematically “lose” this type of battle? There is no incentive in this system to actually produce anything, because anything produced is the property of the collective.

    This is the complete embodiment of communism. “Well, if the idea is already there, shouldn’t everybody be able to capitalize on it?”

    The logical fallacy is that once the idea has been produced, of course it would be better if everyone used it. However, if this system of thought is consistently implemented, the ideas–the source and energy of the capitalistic process–will cease to flow.

  • Published: February 25, 2009 5:30 AM

  • Greego
  • @Silas:

    “And your inability to understand my point has you going in circles like this again. If there’s no conflict to resolve, why are you arguing against a position?”

    I’m clearly arguing against an unnecessary government-granted monopoly system as doesn’t solve any inherent conflict in our world (whereas property law does). I’m coming to the conclusion that you’re either a troll or just too stupid to understand that simple point.

  • Published: February 25, 2009 5:34 AM

  • Imagination
  • Silas:

    Earlier, I wrote that If the volume of book sales in the entire industry increases because everyone wants to read an amazing new novel, then the revenue of every publisher of that novel would likewise increase. This increased revenue would enable those who commissioned the novel to profit.

    “People can still profit in kleptocratic regimes too.”

    Great! So, you’re admitting that there WOULD be profit absent intellectual monopoly. Of course, increased revenue and profit are market signals. Kinda contradicts what you said earlier, though, huh…

    “Absence of IP fixes the price of the ‘right to instantiate a given idea’ at ZERO, deleting all information the market provides to entrepreneurs”

    Well, so much for THAT idea. Anyway, thanks for giving up so quickly! That was easier than I thought it would be 🙂

  • Published: February 25, 2009 6:22 AM

  • Tiago Moreira Ramalho
  • Hi again,

    Honestelly I think that IP is important because we like to be known for what we do. For example, if I publish a novel, I would not like that somebody else pick the novel and sign it with another name. It would be a kind of theft, I suppose. Like I said, I did not think too much about it, maybe in Portugal there is so few creations that it is not a problem (lol) but anyway, you are free of keeping the rights of what you do or not, just like you are free of keep you money or let anyone steele it: it is your option.

    Even in the economy it would be really bad if you could not be the only one to use your ideas. Do you imagine that someone would create something new if anyone could use it. Or, in the other hand, do you believe that producers would create something if they knew that they could use other producer’s ideas? No one would investigate anything.

    If you create a paper hat (origami) that paper hat will be yours. So, why couldn’t you own other type of creation: the intellectual one? Is, just like the paper hat, a creation of yours, the only difference is that the first one is build with your hands and the second one is build with your brain.

    By the way, I just noted that you have a creative commons license.

    Regards

  • Published: February 25, 2009 7:12 AM

  • John deLaubenfels
  • As is typical of anti-IP’ers, Kinsella glosses over the differences between patents and copyrights. As I argue in http://www.strike-the-root.com/91/delaubenfels/delaubenfels1.html , patents are indeed illegitimate, as they represent ideas which would come to the marketplace irrespective of the actions of any one person or group of persons, but a copyright protects a completed work that the world would most certainly not enjoy except for the efforts of its author. To take a copy of such a work without paying the author’s asking price is theft, pure and simple, and no amount of hand-waving can wish that fact away. People such as Kinsella bring discredit to the organizations which embrace them, and in the end I have no doubt that their morally bankrupt ideas will reside in the dustbin of history.
  • Published: February 25, 2009 7:25 AM

  • Peter Surda
  • @Silas:

    It has been pointed out many times that your arguments are flawed:

    > IP is scarce in every relevant sense *because* there
    > are conflicts over it.
    The only conflict is in people’s heads. It is not empirically observable in nature. It doesn’t matter whether the “thing” in question is material or immaterial.

    > IP is identical to obviously-justified EM spectrum rights,
    > since both are pattern formation rights that only
    > reference physical objects for purposes of jurisdiction.
    You fail to acknowledge the difference between the right to use something (which is what property is), and the right to exclude parties outside of contract from using it (which is what IP is). Frequency usage is exclusive, or if you want it in other words, rival, which means that the rights on them described in the previous sentence cannot be logically separated. Two persons using the same frequency interfere with each others’ ability to use it. This is empirically observable, I recall the communist regime in the country where I used to live jamming “illegal” radio stations. The underlying object of IP does not fullfill this criterion. If I download music over bittorrent, the “owner” of that song can still use it however (s)he wants. It might diminish its market value, but that’s what happens if you are exposed to competition, and has nothing to do with ownership.

    > The Mises/Hayek calculation argument …
    … is easily refuted by the fact that there are people making money with immaterial non-rival goods without the use of IP. I said on several occasions that I am one of them. I have my own company whose only product is freely downloadable from a website including the source code.

    In summary, you either deny that I exist, or are calling me a liar, or are plainly stupid. I think it’s not very surprising that I tend to prefer the last option.

  • Published: February 25, 2009 7:41 AM

  • Peter Surda
  • @heuristic
    > Copyright is created naturally by the terms of sales
    > contracts such as the typical EULA. That commonly
    > happens already; no “hypothetical” is necessary.
    Where do you get these things from people? Copyright deals exclusively with relationships that do not have an underlying contract! Contracts and copyright do not have an overlapping area of applicability! The very fact that you pointed out to a contract on an immaterial good confirms that copyright is not necessary.
  • Published: February 25, 2009 7:56 AM

  • Peter Surda
  • @heuristic
    > Copyright is created naturally by the terms of sales
    > contracts such as the typical EULA. That commonly
    > happens already; no “hypothetical” is necessary.
    Where do you get these things from people? Copyright deals exclusively with relationships that do not have an underlying contract! Contracts and copyright do not have an overlapping area of applicability! The very fact that you pointed out to a contract on an immaterial good confirms that copyright is not necessary.
  • Published: February 25, 2009 7:57 AM

  • Silas Barta
  • @Cosmin: Yes, I saw it, I didn’t consider it worth responding to at the time, because it’s not a very good argument. You said that the characterization “a second transmission interferes with the first one’s signal” doesn’t apply to ideas.

    Well, it does, so there’s not much more to say.

    When a second person transmits a radio wave, that interferes — as judged by the first transmitter — with the first radio wave. And, not surprisingly, the same happens when the second person copy’s the first’s ideas. In both cases, there is real physical interaction caused by the second person.

    @Greego: Me: “And your inability to understand my point has you going in circles like this again. If there’s no conflict to resolve, why are you arguing against a position?”

    You: I’m clearly arguing against an unnecessary government-granted monopoly system as doesn’t solve any inherent conflict in our world (whereas property law does).

    ??? In what sense does one resolve conflict while the other doesn’t? They both are ways to decide which person’s claim is superior, which is what a solution to the problem of conflict is supposed to accomplish.

    I’m coming to the conclusion that you’re either a troll or just too stupid to understand that simple point.

    *I’m* the one who’s too stupid to understand a simple point? You’re trying to resolve a *conflict* in favor of a copier, by saying there is no conflict. I’d laugh, but Stephan_Kinsella has expanded that “argument” into ten pages of an academic paper.

    @Imagination: Great! So, you’re admitting that there WOULD be profit absent intellectual monopoly. Of course, increased revenue and profit are market signals. Kinda contradicts what you said earlier, though, huh…

    So, here’s what just happened:

    Me: Lack of property rights deletes market signals…
    You: Not true! It still leaves a tiny sliver of the signal left, allowing for the productivity of a kleptocratic regime’s economy! You are wrong wrong wrong!
    Me: …Okay, lack of property rights significantly shackles the productivity of an economy. Point “conceded”. Enjoy your Pyrrhic victory.

    @Peter_Surda:me: IP is scarce in every relevant sense *because* there are conflicts over it.
    you:The only conflict is in people’s heads. It is not empirically observable in nature.

    Gee, then how do IP infringement cases ever make it to court?

    Frequency usage is exclusive, or if you want it in other words, rival, which means that the rights on them described in the previous sentence cannot be logically separated. Two persons using the same frequency interfere with each others’ ability to use it. This is empirically observable, I recall the communist regime in the country where I used to live jamming “illegal” radio stations.

    Peter_Surda, you’re not showing any evidence of having read my argument against this point. There are two senses in which we can speak of rivalry in frequencies:

    1) Two people cannot transmit waves at the same time.
    2) Two people cannot transmit information at that frequency at the same time.

    1) is false, and 2) is true. There is only rivalry in the second sense. Why does only the second one matter? That was the argument, and you’ve shown no evidence of having responded to it. When you do, you’ll have something.

    And remember, once you show how people can have a right to the desirable property of “information transmission” in their waves, you’ll prove how people have the right to the desirable property of “exclusivity” in their ideas.

    The Mises/Hayek calculation argument …
    … is easily refuted by the fact that there are people making money with immaterial non-rival goods without the use of IP. I said on several occasions that I am one of them. I have my own company whose only product is freely downloadable from a website including the source code.

    In summary, you either deny that I exist, or are calling me a liar, or are plainly stupid.

    No, I just deny that your example is responsive, as I have explained several times. Look, people give away free products all the time, like for samples. People produce physical goods all the time with no attempt to make a profit in doing so. Do either of these refute Mises’s calculation argument? No? Well, then, neither does your example refute the IP calculation argument.

    Sure, you’ve found a business model that doesn’t rely on IP rights in your software. Good for you! Still doesn’t say anything about the Pareto improvements that could be realized in the presence of IP.

  • Published: February 25, 2009 8:24 AM

  • Silas Barta
  • You know, I just see the same poor, incoherent arguments for libertarian physical property all the time.

    -It’s in the constitution (argument from authority; legal positivism)
    -Physical property is *called* property! (argument by definition?)
    -No houses would be made and kids would die without food(houses and food have been produced for ages without libertarian property law; and where’s the evidence?)
    -If you “touch something first” you own it (despite all the exceptions, and despite the fact that touching is neither necessary nor sufficient for ownership; despite the fact that you either limit these rights in scope or time arbitrarily, or you extent them to infinity, choking off rights like in airplanes flying over farms and forcing life and commerce to a screeching halt)
    -It generates net wealth–more value than its cost (no evidence, ever, for this contention–just assumptions; not to mention the problem of utilitarian summing of values)
    -Trespassing is “theft” (even though the owner still has his property, and even though trespassing is just traveling and visiting)
    -People “could” create variants of libertarian property via private contracts… (therefore artifical title-granting bureaucracies legislated by a criminal state are … justified?)

    Fun, fun.

  • Published: February 25, 2009 9:02 AM

  • Peter Surda
  • @Silas
    > Gee, then how do IP infringement cases ever make it to
    > court?
    According to your logic, if I enact a law which says that there is a pink unicorn, and make it punishable to deny it, the said unicorn becomes empirically observable? Talk about a high level debate :-(.

    > 1) Two people cannot transmit waves at the same time.
    > 2) Two people cannot transmit information at that
    > frequency at the same time.
    Both of them are irrelevant. The qualitative or quantitative features of the reduction of the owner’s ability to use his property is of no concern to us. The only important question is whether the reduction is empirically observable.

    > I just deny that your example is responsive, as I
    > have explained several times.
    You are applying the economic calculation argument in a very narrow way. Let us first assume that without IP, the market price for immaterial goods would indeed be zero (I don’t think it will but am trying to make an argument simpler). Just because you can’t market it directly doesn’t mean you can’t market it indirectly, for example by bundling or providing complementary products. In fact even with material goods, it is rare for a transaction to be infinitely divisible, i.e. for every part of it to be marketable on its own. If I wanted to sell one atom of gold, I don’t think I would find a buyer. Absent demand, there would be no price. Does that mean gold is not marketable? Evidence suggests otherwise. For non-homogenous goods, the non-divisibility is even more obvious. Half a CD of your favourite operating system is worthless. Someone might use it for decoration but I doubt they would buy it.

    In ideal socialism, you can’t market anything, it doesn’t matter if you bundle it or divide it. In capitalism, you can’t market everything, but by the application of entrepreneurship you can create something for which there is demand, and then it has a market price and you can make money.

    In summary, you misunderstand Mises. The ability to market something does not require the ability to market parts of it, neither does it require the monopoly to do so.

    You have yet to recognise the difference between the right to use and the right to exclude third parties from doing so. Once you realise that with non-rival goods, these are logically separable and have different effects, you will have to admit your defeat.

  • Published: February 25, 2009 9:09 AM

  • Jay Lakner
  • Hi everyone,

    Many of the arguments here are intelligently thought out and well written but unfortunately are based on false assumptions.

    Can we please look at this issue in terms of the fundamental assumptions of Austrian Economics?

    One of the core principles of Austrian Economics is the right of all individuals to own and aquire property.
    If an individual owns an item, then they have the right to use that item for any purpose as long as they do not physically interfere with other individuals.
    You cannot be limited from using your property (other than the prevention of interfering with others)otherwise that is a direct contradiction of the definition of ‘your property’.
    Copyrights and patents limit individuals in a society from using their property in some particular manner.
    Copyrights and patents are therefore a direct contradiction of property rights.
    That is, they are a direct contradiction of the fundamental core assumptions of Austrian Economics.

    Therefore there cannot be an Austrian School justification for copyrights and patents because, by definition, they are a direct contradiction of the Austrian School itself.

    You see what I’m saying? Any argument in favor of copyrights and patents is logically a direct attack on Austrian Economics itself.

    Lastly, any Austrian School argument in favour of copyrights and patents must be either self-contradicting or based on a flawed assumption.

    Jay Lakner.

  • Published: February 25, 2009 9:51 AM

  • crisco
  • You know, I just see the same poor, incoherent arguments for libertarian physical property all the time.

    Not sure what you mean. The earth’s EM field is a physical thing.

    Transmitting information by electrically stimulating a portion of the earth’s EM field is a form of use, and thus the used portion of the EM field can be homesteaded. This is analogous to acquiring property rights in otherwise unowned land, for example.

    I’m not sure what you’re referring to re: the libertarian position on the physicality of property, but if it means that something has to be physical to be property, then EM frequencies aren’t an exception.

  • Published: February 25, 2009 10:07 AM

  • Jason Gordon
  • @Critical Observer

    …IP is a reasonable societal law because it purports to protect the real property rights of capital investments (both labor and physical).

     

    As bank bailouts are “reasonable” since they purport to protect “investments” of capital and credit.

    With investment there is inherent risk. If you don’t want to invest your time developing a product — go on someone’s payroll to do the developing — or find venture capital.

    Don’t you recognize the argument that IP is an artificial propping up of risk? A distorting intervention that leads to resource misallocation in the direction of less efficiency?

  • Published: February 25, 2009 10:18 AM

  • Deefburger
  • Ok. Time for me to chime in. I love this argument! Many many good twists and turns.

    I believe that Branding and Trademark are solutions to part of the argument of ownership. First off, a brand or trademark is a form of IP in and of itself and is, or can be, treated as a “signature”. A signature is a unique mark of ownership. In our current monetary system it is the basis of the creation of money when applied to a loan.

    If I am an author, and I produce a work, and I sign it, I can publish it, copy it over and over again at my will. My signature, my trademark, on the product identifies it as having been produced by my hand or my devices.

    Someone else publishing my work cannot use my signature without my consent. That would be fraud. Nor can they publish my work with their own signature, as that would be plagiarism.

    They can publish with my name on it, as the author, but they cannot represent themselves as me without a contract. That contract will cost them money.

    What if it’s Shakespear? What distinguishes my product from my competitors in the market place? The quality of my publication, my brand as a publisher. My Brand uses better paper, easier to read type, good binding. Or perhaps my brand goes the other way and makes it cheaper to purchase with paper backing and small size. How well my brand does will depend on the qualities of my brand as perceived by the market, not the content, assuming the content is already known!

    What if my book was written by Tom Woods? What if the market for books by Tom Woods becomes popular? How does Tom Woods benefit from this? If my business is selling books, then I want to sell books written by popular authors. If I want to be first to market with the latest book by Tom Woods, then I need a contract with Tom Woods to put HIS signature on MY books. I need a contract with him to be first to market.Otherwise I have to wait for him to publish though another house before I can release my publication.

    Tom Woods is not going to have a book signing sale at one of my bookstores and sign books for me. He’s going to sign the books published with HIS trademark signature in them already. My books don’t carry his signature on the “copyright” page. So nobody is going to expect to find his hand signature on them either. My books are cheaper. His books are original by contract with his publishing house.

    Tom may benefit from the secondary market that comes from popularity. As a reader, I may wish to collect High quality publications of his work for my collection. As a publisher of high quality books, I want the right to have his signature on them. Tom Woods only grants that right by contract, and any publication containing that signature without contract is fraud. As a collector, I don’t want a fraudulent copy, I want the real McCoy. I’ll pay a premium price for it too if the quality of the publication justifies the cost.

    Suppose I invent a toaster. My toaster works so well that others begin to make toasters like mine. But my toaster has MY signature, MY brand, My trademark on it. My toaster, being the original version of the invention, commands a higher price in the market place because of my brand, provided my brand is associated with high quality. If I continue to build my toaster, with the highest quality I can, the demand for my toaster will remain high, even though it is not exclusive of my competitors. They can make a toaster like mine, but they cannot use my Brand.

    If my brand is junk, but the design is sound, I run the risk of having someone else produce a better version of the idea, my toaster. Their brand may win out, because of better quality. What should I do? Sue him? NO! Sell him my inventory in exchange for a share of his operation! That’s all. Perhaps make arraignments with him to produce the next idea I have. Or adopt HIS methods of production and improve the quality of mine.

    Be an entrepreneur not a litigator! Protect your Brand, Your Trademark and Your Signature, not your idea. The free idea sword cuts both ways. Your competition does not have any more exclusivity of idea than you do. The difference between competitors is in the quality and quantity of production, not the idea itself. Maintain a reputation for qood quality at a low price and you will own the market for the things you sell. And what makes your things stand out? What makes the market yours? YOUR BRAND.

    Yes, you will lose market share to competing brands, but if your brand is high quality, then your competition will disappoint that same market into desiring your brand even more, especially if the idea was a good one, but poorly implemented in the competitor’s brand. He’s doing you a favor!

    Brand loyalty. Coke or Pepsi? Can any of you really tell the difference? I can’t, and so I have no preference for either. They have been producing nearly identical products for almost a hundred years, and have been doing just fine. What they have is not a patent so much as a trade secret. It’s not the patent system that protects them, it’s the secret formulas. But secret formulas don’t win the hearts and dollars of the market. Taste, a subjective thing if their ever was one, and brand association is what drives the market, a market dominated by two nearly identical products. The quality of taste is what keeps people buying the same brand, over and over again.

    What brand of car do you drive? Why? Do you drive car X because the car maker is the only one who makes it? They are, but is that even a factor in your choice? It is, but WHY is it a factor? What qualities do you attribute to the BRAND of car you drive? Would you buy a cheaper version of it if it were available? Why?

    Branding, Trademark and Signature are the key to unlocking the IP problem.

  • Published: February 25, 2009 11:01 AM

  • Jay Lakner
  • @Deefburger

    You just described what I have been saying all along. There needs to be a distinction between IP that establishes identity and IP which does not.

    Brands, trademarks, signatures, logos, etc do not interfere with property rights. In fact they are crucial to the protection of property rights by establishing the identity of the producer and thus enabling honest trade.

    Copyrights and patents, on the other hand, are not used to identify market participants. They do not help protect property rights, rather they infringe on the property rights of others by preventing them from using their property in any manner they see fit.

    The problem, as I have stated before, is that all these things have been bundled into the one category, “Intellectual Property”, when they should not have.

  • Published: February 25, 2009 11:15 AM

  • Silas Barta
  • @Peter_Surda:

    @Silas
    > Gee, then how do IP infringement cases ever make it to
    > court According to your logic, if I enact a law which says that there is a pink unicorn, and make it punishable to deny it, the said unicorn becomes empirically observable?

    No, the “unicorn denial” is empirically-observable, just like IP infringement or idea-copying is.

    Both of them [capability of simultaneous transmission of waves or information] are irrelevant. The qualitative or quantitative features of the reduction of the owner’s ability to use his property is of no concern to us. The only important question is whether the reduction is empirically observable.

    Yep, and like above, IP infringement is empirically observable.

    You are applying the economic calculation argument in a very narrow way. Let us first assume that without IP, the market price for immaterial goods would indeed be zero … Just because you can’t market it directly doesn’t mean you can’t market it indirectly, for example by bundling or providing complementary products.

    Yes, and I already addressed this point in the original argument on my blog. Again, complementary goods only reveal demand for those goods, not the idea. Demand that the knowledge of cure for cancer exists, is not the same as demand for the labor effort (time + difficulty) to implement the cure. People might simply want to *know* how to do the cure, or they might want someone to perform a specific cure. They are demanding different things.

    Look at it this way: what if there were no property rights in anything but cheese; up to the final end-product of cheese, anything used in making it, and all other items, are under the “law of the jungle”. Would you agree that there is misallocation and calculational chaos and “non-price rationing” in such an economy? Would it change your mind if I pointed to “cheese bundling” schemes? Didn’t think so.

    In fact even with material goods, it is rare for a transaction to be infinitely divisible, i.e. for every part of it to be marketable on its own. If I wanted to sell one atom of gold, I don’t think I would find a buyer. Absent demand, there would be no price. Does that mean gold is not marketable? Evidence suggests otherwise.

    Um, what does this have to do with the discussion? You’re talking about a product for which there is no demand, even with property rights established for that product. That simply means that the combined supply and demand schedules don’t allow for it to be exchanged.

    That has nothing to do with the topic at hand, which is about the consequences of there being no property rights whatsoever for a specific good (and knowledge of useful patterns is indeed good).

    In ideal socialism, you can’t market anything, it doesn’t matter if you bundle it or divide it. In capitalism, you can’t market everything, but by the application of entrepreneurship you can create something for which there is demand, and then it has a market price and you can make money.

    Again, this is a distinction between physical and legal possibility. The law in a capitalist system permits ownership and transfer of individual atoms, it’s just that no one wants them. But if that system lacks IP, people will indeed want the informational content of intellectual works that are produced. They will often probably *only* want the informational content, and not the packaging or related goods. But since the system doesn’t have exclusion rights in the goods, there can’t be a market for them, so there can’t be market prices, no entrepreneurs have no basis on which to gage the relative usefulness of producing a cure for cancer vs. producing a new Jazz album vs. growing another apple.

    In summary, you misunderstand Mises. The ability to market something does not require the ability to market parts of it, neither does it require the monopoly to do so.

    Sorry, but you’re the one who doesn’t understand Mises. There’s no sharp drop-off in the ability to perform economic calculation once the system becomes socialist. It is a continuous change between the two. *To the extent* that a system does not recognize property rights, there is calculational chaos. It’s not all or nothing. If only the road system is socialized the ability to perform economic calculation is hindered, but still largely present. And so on.

    You have yet to recognise the difference between the right to use and the right to exclude third parties from doing so. Once you realise that with non-rival goods, these are logically separable and have different effects, you will have to admit your defeat.

    No, you need to recognize that rivalry is a function of the desires of the different parties, not of the physical attributes of inanimate matter.

    @crisco: Transmitting information by electrically stimulating a portion of the earth’s EM field is a form of use … I’m not sure what you’re referring to re: the libertarian position on the physicality of property, but if it means that something has to be physical to be property, then EM frequencies aren’t an exception.

    Yes it most certainly is an exception, since you can say the same thing about IP. Just replace “EM spectrum” with “capacity of reality to instantiate ideas”. By instantiating an idea, I’m stimulating reality so that it has a certain form that I want. If you also do it, you’re messing up the form I wanted reality to have, just like you claimed I did with the EM spectrum.

  • Published: February 25, 2009 11:20 AM

  • Cosmin
  • Silas said:
    “@Cosmin: Yes, I saw it, I didn’t consider it worth responding to at the time, because it’s not a very good argument. You said that the characterization “a second transmission interferes with the first one’s signal” doesn’t apply to ideas.

    Well, it does, so there’s not much more to say.”

    Our debate started when I posted this paragraph:

    “IP is not imbedded in any physical object, ktibuk.
    And ideas are not property because they are not homesteaded by individuals. There is no entity outside of ourselves, called an idea, that you can homestead.
    An idea is simply understanding some part of the world we live in. If you understand something about this world and then use that understanding to build an object, I can more easily understand that same world event by observing the object you’ve built. You can’t stop me from understanding.
    My idea and your idea are completely separate, even if they both describe the same event in an extremely similar fashion.”

    You never saw this as being worth responding to, but it was worth misrepresenting… You copied my paragraph, replacing “idea” with “radio frequency” or “transmission”.
    I pointed out that you new paragraph didn’t equate to mine, since your transmissions or radio frequencies are NOT completely separate.

    You NOW claim that ideas can also interfere with each other as they are not completely separate either.
    Go back to my original paragraph and tell me, in the context of having defined an idea as “understanding some part of the world we live in”, how does my understanding interfere with your understanding?
    It’s akin to saying that your love for your mother is being interfered with by my love for my mother, or my love for your mother.

  • Published: February 25, 2009 11:21 AM

  • Silas Barta
  • @Cosmin: The *intended use* is being interfered with, and that is what makes the cases identical. I had only ever intended the analog of “broadcasting at a frequency f” to be “instantiating an idea i“, since, you know, that’s all that IP ever restricts. If you’re using “idea” just to mean, understanding something from within your brain, then you’re not using it in any sense relevant to the IP, because no one intends to restrict such unobservables.

    If I’ve erred, it’s by not correcting sooner your improper definition of “idea” in the context of this debate. My apologies.

  • Published: February 25, 2009 11:31 AM

  • Cosmin
  • Jay and Deefburger,
    I also have no problem with trademarks. I’m sure many here agree, it just doesn’t come up in these debates as they are seen as different from IP anyway.
    More a question of fraud or misrepresentation.
  • Published: February 25, 2009 11:38 AM

  • Cosmin
  • Silas,
    I’m glad we’ve identified the definition of “idea” as the source of our discordance.
    I still think, however, that my definition is the one that should be used in this debate.
    I think that trying to protect the intended use of an idea is not a noble endeavour, as it comes at the expense of the freedom to act.
  • Published: February 25, 2009 11:53 AM

  • Silas Barta
  • @Cosmin: I still think, however, that my definition is the one that should be used in this debate.

    And you’re wrong. Why define “idea” as “understanding” when IP rights don’t attempt to assert ownership over that?

    I think that trying to protect the intended use of an idea is not a noble endeavour, as it comes at the expense of the freedom to act.

    Ditto for protecting the intended use of a radio transmission.

  • Published: February 25, 2009 11:56 AM

  • Jason Gordon
  • …trying to protect the intended use of an idea is not a noble endeavour…

    Yes, not to mention that using an idea for a new purpose is itself an idea. 🙂

  • Published: February 25, 2009 12:00 PM

  • Cosmin
  • Silas,
    The fact that IP rights don’t attempt to assert ownership over an understanding tells me that there should be no IP rights.
    One can’t have property in an intended use, as it arises inexorably and independantly in other people who have a similar understanding of a certain part of the world.
  • Published: February 25, 2009 12:11 PM

  • Silas Barta
  • @Cosmin:The fact that IP rights don’t attempt to assert ownership over an understanding tells me that there should be no IP rights.

    So, if they did assert ownership over an understanding, then there … should be IP rights?

    One can’t have property in an intended use, as it arises inexorably and independantly in other people who have a similar understanding of a certain part of the world.

    Good, so one can’t have property in the intended use of transmitting information via radio waves. Cool. So you can have the right to transmit radio waves, but not to stop others from doing the same thing. Cause, if everyone’s blasting waves, gee, that doesn’t seem like scarcity…

  • Published: February 25, 2009 12:19 PM

  • Cosmin
  • “So, if they did assert ownership over an understanding, then there … should be IP rights?”
    No, but there would be a debate. The debate would be lost. And we’d have no IP rights.

    Meh, transimission of radio waves is overrated… Protect your transmission better by using wires instead of air, or encoding it, or jumping frequencies, or whatever, if you don’t want it to have interfered with.
    The right of broadcasting at a certain frequency seems more like a societal convention than a fundamental right, as opposed to the right to act on knowledge and information from your own brain.

  • Published: February 25, 2009 12:28 PM

  • Jason Gordon
  • The fact that IP rights [fail] to assert ownership over an understanding tells me that there [exist] no IP rights.

  • Published: February 25, 2009 12:30 PM

  • Cosmin
  • Thanks, J.G.
  • Published: February 25, 2009 12:34 PM

  • crisco
  • Yes it most certainly is an exception, since you can say the same thing about IP. Just replace “EM spectrum” with “capacity of reality to instantiate ideas”. By instantiating an idea, I’m stimulating reality so that it has a certain form that I want. If you also do it, you’re messing up the form I wanted reality to have, just like you claimed I did with the EM spectrum.

    Who cares what form you wanted to have?

    The “desired reality” you keep talking about is a meaningless and crack-pot standard for legitimacy.

    Let’s say I were to claim that the fact that you breathe air is interfering with my desire to have the whole of the earth’s atmosphere un-breathed by any other person, ever. It would follow that, therefore, my desire to have a planetary atmosphere that no one else ever breathes is destroying that “reality.” Which is true. So, if any old “desire” under the sun is the guiding principle by which the legitimacy of other people’s actions are judged, then it follows that you don’t get to breathe, and I can use legitimate force to stop you from destroying my desired reality.

    That desire is unjust. The crack-pot desire to be the only person to breathe earth’s atmosphere does not magically make breathable air suddenly scarce and rivalrous. You can breathe it. I can breathe it. Your breathing does not interfere with my breathing. Your breathing only interferes with my INSANE and totally unjustifiable “desire” that no human being ever breathes earth’s atmosphere but me.

  • Published: February 25, 2009 12:41 PM

  • crisco
  • It would follow that, therefore, my desire to have a planetary atmosphere that no one else ever breathes is destroying that “reality.”

    Meant to say: “It would follow that, therefore, my desire to have a planetary atmosphere that no one else ever breathes is destroyed by the fact that you are breathing.”

  • Published: February 25, 2009 12:46 PM

  • Larry N. Martin
  • Silas has just about convinced me…

    …that there should be no ownership of electromagnetic frequencies!

  • Published: February 25, 2009 12:55 PM

  • Deefburger
  • @cosmin
    The point of my comment was to show that patent and copyright are unnecessary. Brand, Trademark, and Signature are the only forms of IP that are required, and they are negative rights, not positive rights, and therefore have the benefit of legal implementation without the need for external governmental protections. I attempted to show that the market place is the true battle ground for any idea, whether you have some state mandate to exclusivity or not. I tried to show that the market has it’s own solutions concerning the creation of salable product that have nothing to do with any state mandates.

    Entrepreneurship is all about the creation of salable product, the building of Brand and Trademark recognition, and the continued viability of the business as a whole, not the protection of an idea. The litigation over patent and copyright is an unnecessary expense and serves no useful purpose whatsoever except that it is needed because the state interferes in the market by issuing positive rights. Such rights are WRONG and complicate things to ridiculous degree. Positive rights protections require enforcement, and so require the state. Free Market capitalism has no need for the state, and can function on it’s own.

    Negative Rights are the only rights that make sense in a free society. They are self-evident in nature and easily dealt with in court should a violation be obtained. In the case of IP, Brand, Trademark and Signature are devices of identity and are the only forms of IP that CAN be owned exclusively.

    Take my name for example. Deefburger is a name I created. There is almost no one else out there that uses it. There is one other person, and they invented it too. Their story is different from mine, but other than him, there are no others. I have logos associated with my version of this name. I own the domain deefburger.com. I have branded the name Deefburger. Unless the other guy starts selling product with this name, I have no qualms about his use of it. If he tries to compete with me in the market place using my Trademarks, then we have a problem. I’m not going to go sue the guy because he came up with the same nonsense name I did. It is my product, my Brand, my identity surrounding the name that is my right. I have established the name as my brand, my signature. Google the name, and you will get page after page of – ME. For the other guy, it’s a login name he used on a forum once. For me it is my identity, and the identity of my products.

    It is the uniqueness, the identity in the market place that makes a product desirable or not. Not the idea alone. It is the qualities of production, taste, etc associated with a brand that has value, not just the idea behind the product.

    Only the negative rights associated with Identity are needed!

    Go make a NAME for yourself!

  • Published: February 25, 2009 12:55 PM

  • Cosmin
  • Deefburger,
    I didn’t disagree with you. I’m sorry if you got that impression. My post meant to say that there are more people agreeing with you than those who have maifested themselves. It’s just that many may not speak up because they don’t consider Identity part of the IP debate. But you’re right on as to its place in society and the marketplace.
  • Published: February 25, 2009 1:22 PM

  • Russ
  • One has no ownership right to an idea, i.e., to a discovery, only to an invention, the creation of X that did not exist in nature on its own before the person created it.

    One has ownership to a particular formulation that has a material/physical manifestation. (E.g., no one can own “quantum physics,” but a writer has ownership of his particularized and physical presentation of that idea.) We are not ghosts. We exist in a physical world.

    Without the input of a person’s mind, _no_ property of any kind would exist. The intellectual component involved in making “oil” into a “value” is no different in kind that the intellectual component of an author in making 100,000 words a “value” by placing them in a particularized order and publishing a book (electronic or physical) that contains his individualized presentation.

    A fundamental “right” is primarily about the ability to choose how to _use_ a particular X and less about the X itself.

    As Rand said, an IP declares that what is essential to production of values is _thought_, an idea, and not merely the physical effort required to produce it. The latter would endorse the “labor theory of value,” a theory incompatible with freedom.

    As for how long a copyright or patent should be granted, that is a matter for debate. But the for the life of the creator and, perhaps, X years after his death seems a reasonable place to start.

  • Published: February 25, 2009 1:40 PM

  • Deefburger
  • @cosmin – Sorry Dude, I didn’t mean to imply you were wrong! LOL.

    You are absolutely right. The debate seems to always fall back on the legalities of present Patent and Copyright Law, which are positive rights. Instead, we need to look more closely at how true IP in the form of negative rights, as in Identity, can be used legally, implemented in a framework of Law that requires no enforcement by the state, yet allows for reasonable argument in court should a conflict arise.

  • Published: February 25, 2009 2:00 PM

  • Peter Surda
  • @Silas
    I think I need to go more slowly.

    Violations of IP do not impact the ability of the “property” holder to use the said “property” according to his wishes. The “impact” is not empirically measurable, therefore is all made up. The only thing we observe is that people get excited and engage in legal battles, which is a completely unrelated thing. However, for non-IP, or if you want it, for rival goods, such as your favourite, the EM spectrum, the impact IS measureable, for example by hearing static in your radio. You don’t even need to be a physicist to do that.

    Now back to Mises. As you undoubtedly know, in ideal socialism, NO capital good has a price. This prevents economic calculation. That however does not imply the opposite approach, that in all possible cases, all capital goods must have a price. Rather, it is sufficient that by applying entrepreneurship, one is potentially able to market a capital good which has a non-zero price (e.g. by making it into a rival good). I think it was either Dr. Kinsella or Drs Boldrin&Levine; that argue that it is practically impossible to use “pure IP” decoupled from any non-rival goods, as an object of transaction. There is some merit to the argument, because even data transmission requires energy, observing someone’s machine requires light, etc. If this is true, it would mean that the the market price can never be zero anyway.

  • Published: February 25, 2009 2:06 PM

  • Stephan KinsellaAuthor Profile Page
  • Greego: “Silas … I’m clearly arguing against an unnecessary government-granted monopoly system as doesn’t solve any inherent conflict in our world (whereas property law does). I’m coming to the conclusion that you’re either a troll or just too stupid to understand that simple point.”

    Heroic!

  • Published: February 25, 2009 3:04 PM

  • Stephan KinsellaAuthor Profile Page
  • John deLaubenfels writes:

    “a copyright protects a completed work that the world would most certainly not enjoy except for the efforts of its author.”

    So? But-for causation does not imply property rights. This is absurd.

    “To take a copy of such a work without paying the author’s asking price is theft, pure and simple, and no amount of hand-waving can wish that fact away.”

    It is not a fact at all. It is just your opinion–a bizarre, bare assertion. And calling it theft is just another way of stating that there are property rights in such ideal objects, which is question begging.

    You are basically asserting this: if there is an idea that would not exist but for my originating it, I own the idea. This does not follow at all.

    “People such as Kinsella bring discredit to the organizations which embrace them, and in the end I have no doubt that their morally bankrupt ideas will reside in the dustbin of history.”

    Re “morally bankrupt”: Randroid alert!

  • Published: February 25, 2009 4:14 PM

  • Alexander S. Peak
  • I always capitalise the word Liberty, is that “crankish”?

    Regards,
    Alex Peak

  • Published: February 25, 2009 4:17 PM

  • Critical Observer
  • Jason Gordon:

    “@Critical Observer

    …IP is a reasonable societal law because it purports to protect the real property rights of capital investments (both labor and physical).

    As bank bailouts are “reasonable” since they purport to protect “investments” of capital and credit. ”

    I congratulate you on your ability to form straw man arguments. If you had quoted the next sentence of mine, you would see that’s not at all my line of logic. My next sentence reads:

    “Go ahead and argue about its morality, its efficacy, whatever.”

    I was responding to Cosmin, whose rebuttal to my argument in favor of IP as an idea in general was an irrelevant piece about Chinese medicine.

    “Don’t you recognize the argument that IP is an artificial propping up of risk? A distorting intervention that leads to resource misallocation in the direction of less efficiency?”

    Sure, IP is a “propping up of risk.” Hell, because it’s enforced by a government, it’s even “artificial” if you would like to call it that. I would hope you would at least be consistent then though and say that all property rights are an “artificial propping up of risk.”

    In a world where people steal physical products I make (how about chairs?), the government is promoting risk by providing an incentive structure for me to make chairs that exist in the real world because I will own them. Ye gods, no! How will we live with this “artificial propping up of risk?!” Think of all the “misallocation” that will occur if people actually think the fruit of their labor will be defended by the government! I mean, this Critical Observer dude should really not be shielded against the people who could come into his home at any minute and forcibly take the chairs he makes, because that would mean that the government is deciding that he actually owns those chairs. Once again, gasp, omg, gasp.

    My seething sarcasm aside, the argument for protecting IP (which I have outlined many times earlier) is just in preventing these metaphorical chair-stealers. So far, most of the arguments against my logic (besides the quite funny “Because Mises said so”) are basically moral statements approximating:

    “You can’t steal that which doesn’t exist and intellectual property doesn’t exist.”

    Well, let’s say I make a whole lot of chairs and consume three years of my saved income making them. Or, I come up with the specifications for a powerful cpu that uses 1/10th the wattage of those on the market and, in doing so, I consume three years of income. If a thief comes into my house and steals the schematics for my cpu, should I be less pissed or morally outraged if he took the chairs instead?

    Of course not.

    Yes, if the chairs are stolen, I no longer have that physical material. I also am out the cost of all the food, energy, and rent I consumed when producing those chairs. But are we to believe that only physical material has value? Did the labor not have value? Did the artistic craftsmanship have no value?

    Let’s ask the same question with my hypothetical cpu. If that thief sold that invention to Intel, should I have no moral ground to stand on because, after all, I could have sold that to Intel too? I have lots of moral ground to stand on–those are my schematics! Not just the paper they’re printed on–all the equations, the figures, the experimentation and the work which came up with the discovery as well. This man stole three years of my livelihood, three years of consumed property required to sustain me while I made them, and untold years of income which would be the fruition of that investment (much more money than a chair maker as well).

    Apparently, many people here don’t think that matters. The arguments against me are bleeding with forceful moral arguments, yet that scenario I just described doesn’t resonate with their moral compass, because the information contained in those schematics isn’t “real.”

    It’s fine to believe that, but if a person believes that will produce an optimal production of innovation and goods, he/she is deeply ignorant of both human and institutional nature. If it was likely that the ideas would be taken by the “collective,” the incentive structure breaks down. Paranoia abounds in the no-IP world; inventors become hesitant to make mutually beneficial partnerships because any of their partners can produce the goods after they have been designed….. it is a bad, bad world.

  • Published: February 25, 2009 4:35 PM

  • Deefburger
  • @Critical Observer –

    I don’t think anyone would argue against the assertion that the schematics are your property. And in the current world of IP they are salable to some entity like Intel. But they must remain secret to be of value to you and you alone. That is the nature of knowledge. In the world of No-Patents protection, the idea would require the use of Non-disclosure Contracts in order to secure Venture Capital to produce the chip yourself, or, the use of the same contracts, along with your credentials and a working prototype to sell the Idea to Intel.

    In the world of IP protectionism, you are totally screwed by the theft, because unless you patented your design, Intel would as soon as they received the schematics and You would be hosed. No recourse, and no legal means to obtain Venture Capitol and build your own compeating design, with your own idea! Furthermore, you would be barred from creating ANY similar design ever again.

    In the non-IP protectionism world, you would still own your idea, and would be able to compeat with a the same design using your own capital or the production services of an Intel competitor like AMD or Nvidia. Your superior design skills are still marketable commodities and further designs by you would also be marketable.

    In the non-IP protectionist world:
    Yes, the thief is a bastard, but your idea is not a chair, you still have it and can still use it. and there
    is nothing the thief or their client can do to stop you from using it, improving it, and possibly usurping their market share.
    You still have options.

    In the IP-protectionist world:
    YOU ARE HOSED! THAT is the REAL theft!

  • Published: February 25, 2009 7:20 PM

  • Peter Surda
  • @Deefburger

    The relationship between secrecy and IP is well known and has been subject of several research studies. A lot of them are quoted by Boldrin&Levine.; The results indicate that businesses prefer secrecy to IP. This of course doesn’t automatically mean IP is bad, it just explains that the underlying decisions are determined by the equillibrium between the cost/revenue comparison of two functions.

  • Published: February 26, 2009 3:56 AM

  • heuristic
  • Greego writes:

    >>
    Private IP contracts don’t protect the original creator against third-party copying, so they’re not really the same as current IP laws. For example: I purchase a copy of a piece of software from you, and sign something to say I won’t make copies of it. Then someone breaks into my house, makes a copy of my copy and then lets it free onto the net. Unless it was specified in the contract that I would be liable for any copies of my copy made against my will (in which case I doubt I, or anyone else, would sign it and also it would be extremely hard to prove that it came from my copy), the private copy protection scheme has failed and you have no legal recourse against the perpetrator who distributed it against your will. Only I would be able to claim damages against him for breaking into my house.

    Greego, you are trying to use an extreme case “lifeboat situation” to argue for/against the general case. That is false of course. One might call that the straining-at-gnats-fallacy.

    I already acknowledged that there is a minority of dishonest people. And obviously such people will not only flout their own word given in sales contracts but also freely exchange material that they know has been acquired by such dishonoring of contracts by someone else.

    An honest person would not knowingly trade in something stolen by someone else and use some legalistic argument that because they themselves didn’t steal it then they haven’t done anything wrong. Everyday observation of ordinary decent people suggests that they people don’t go through such legalistic, rhetorical gyrations in order to maintain a facade of being an honorable person. They don’t do that because it is simpler, and consistent, to just deal with others honestly and avoid liars and thieves.

    Thus IP is naturally derived from contracts.

  • Published: February 26, 2009 4:36 AM

  • newson
  • to critical observer:

    even in a land of competing jurisdictions, certain people would enter into mutual compacts to protect physical assets they deemed to be theirs. to have ip enshrined in only certain districts is to guarantee that copying will occur in ip-free areas. so, in effect, you’re arguing for standardization and centralization of both legal codes and policing.

    this is, in fact what we witness in the present, bad, bad world. large countries apply intense pressure to parts of the world where ip is less actively policed.

    go team usa, world police!

  • Published: February 26, 2009 5:48 AM

  • Mike Cuneo
  • The argument of “well who would innovate, sing songs, or make movies without IP??” is probably my favorite, just because it’s so easy to crush.

    The main reason is it misses the point entirely. The truth is, we don’t know for sure who would innovate, sing songs, or make movies, but there is strong anecdotal evidence that songs/movies/artwork would keep improving and expanding without IP. Blogs, youtube, the iPhone etc etc all make this easier and more user-friendly.

    Obviously companies and individuals are simply tailoring their actions to the reality of the situation, and when it comes down to “should I dream up new/creative ways to make money or distribute my music, movies, art, etc or just let the state effectively force people to choose from the limited selection that conforms to IP laws?” it’s smart business to just allow the state to effectively market and shut other, smaller players out of the market via IP. Ethically wrong, but smart business.

    Look, people will ALWAYS look for ways to game the system. This is part of the reason “stimulus plans” cannot work, because people respond to incentives and play the game with the rules we have in place.

    No real accountability? Spend tons of money on trash cans ($1,100 trash cans with Mayor Luke Ravensthal’s name have appeared in Pittsburgh. How people have allowed this to happen is mind boggling. You can get durable trash cans for a fraction of the cost, and it’s a huge advantage for the Mayor to have this free advertising, paid for by taxpayers. Plus I will never use the trash cans so why am I forced to pay etc etc.)

    Don’t know how I got on the topic of $1,100 trash cans, but yeah I’m getting more and more upset each day with politics, the media, and basically everything except what I read here and places like LewRockwell.com

  • Published: February 26, 2009 8:05 AM

  • Deefburger
  • I was having this argument with my wife last night. She’s Pro-IP-Protection. She admitted to the problem of the “stolen” plans getting tied up in a long legal battle that would undoubtedly end up in favor of whoever had the most money.

    Even if the plans were “protected” by a patent, the legal battle that would ensue from the plans falling into the hands of a major monied competitor would effectively remove any “protection” that is supposedly granted by the patent. This reality is similar to the blow-back that occurs from prohibition. Just because the use of the stolen plans is wrong, and possibly provable in court, doesn’t make it viable option in reality. The legal battle itself can cost more than the investment in time and materials that was “lost” when the plans were stolen!

    In the case of prohibition, the prohibition itself creates market forces that some will find irresistible because the prohibition increases the risk associated with trade in the prohibited commodity. Thus a black market arises that is outside the law, and the profits from the dealing in that market are much higher because of the prohibition.

    In the same sense, the protections granted by patent and copyright have a similar back-lash effect when unscrupulous dealings are afoot. The cure winds up being worse than the disease!

    In the world of patent protection, a stolen idea becomes unusable by the originator because of litigation, or because of use of the patent office if the idea was not yet patented. The wronged party cannot get venture capitol to compete because of the litigation. He can’t produce his own version because of the litigation. He has no options unless he has the money to litigate with and the money to produce with in spite of his rival having a copy of his plans.

    So the original problem of lost competitive advantage in the market place is replaced with a greater problem of no recourse in the market due to risk of pending litigation and a large and lengthy and expensive court battle. Nice solution to an otherwise inconvenient market set back.

    So, anyone want to explain to me how much better the “protections” of patent law are in reality than the inconvenience of a competitor “stealing” an idea in a world without patent? Go ahead, make my day!

  • Published: February 26, 2009 10:55 AM

  • Greego
  • heuristic:

    My example isn’t extreme, it’s illustrative – it only takes one breach and the material is available for everyone to see and copy themselves, and out of the protection of the original ‘private-IP’ contract. The basic point is that something equivalent to our current form of IP can’t be derived from contracts because the parties to a contract must be a finite number of people or entities – to be the same it’d have to apply to everyone in a legal jurisdiction.

  • Published: February 26, 2009 11:37 AM

  • Michael A. Clem
  • My seething sarcasm aside, the argument for protecting IP (which I have outlined many times earlier) is just in preventing these metaphorical chair-stealers.

    Chair-stealing? If the chairs are stolen from you, then clearly, you no longer can use them because the thieves are using them. Scarcity. But suppose you come up with a new design for a chair, and then make and sell chairs based on that design. Somebody legally buys one of your chairs, and likes it so much he copies the design to build and sell his own chairs, copycat that he is. Is the design of the chair IP? Has he “stolen” your design, and thus prevented you from using the design? After all, how much time and effort and other resources did you use while working on the design? Non-scarcity–his use of your design is not preventing you from using your design. So do you have a right for the government to step in and stop him from making chairs with your design, even though he legally acquired the chair that he got your design from? What if he looks at your chair and actually improves on the design?

  • Published: February 26, 2009 3:17 PM

  • Gary Hall
  • @Michael A. Clem:
    “So do you have a right for the government to step in and stop him from making chairs with your design, even though he legally acquired the chair that he got your design from?”

    I am yet to hear a response to this question that convinces me wholly that IP is necessary. I’m open to suggestions, though.

    Today I saw a small aside in the newspaper about an ‘innovative’ sandwich bag: http://boingboing.net/2008/09/16/sandwich-bag-has-fak.html

    I am a third party who has no contract with the innovator: I merely saw it in the newspaper. I have a green marker pen and a sandwich bag. If this mouldy-looking-sandwich-bag idea is protected by IP, then I can’t copy it with my own sandwich bag and marker pen?

    Same applies for the dog leash poo-bag: http://www.patentstorm.us/patents/6035809.html which is just as cheaply copyable with bits around my house.

    Granted, these ‘innovations’ are pretty trivial but surely discerning a ‘worthy’ innovation would be subjective.

  • Published: February 27, 2009 5:10 AM

  • Imagination
  • Silas:

    “By instantiating an idea, I’m stimulating reality so that it has a certain form that I want. If you also do it, you’re messing up the form I wanted reality to have”

    You wouldn’t happen to be quoting from “The New Age Guide to Libertarianism” now, would you?

  • Published: February 27, 2009 6:45 AM

  • Chad Rushing
  • Someone explicitly requests that you not copy their works, even if you own a physical object with those works encoded in/on it, so you voluntarily honor that request out of respect for the requestor. What is so complicated about respecting the explicit wishes of others?

    No government coercion of any kind is required, and the principle of respecting the explicit wishes of others who create things would work even in an anarchistic society.

    There is such a concept in reality as conditional ownership of physical objects even though many anti-IP individuals wrongfully deny such a concept exists. Parents may give their teenager a car, but that does not mean that the child is then allowed to give it away to a significant other, drag race with it, or set it on fire for kicks. The ownership comes with preset limitations. (I strongly suspect that there are those in the anti-IP camp who simply cannot stand the idea of there being any external limitations placed on their actions by others.)

    If a book, CD, or DVD I purchase comes with the printed limitation, “Do not copy,” then I am not going to copy it regardless of whether there are any legal ramifications to doing so because I respect the wishes of the persons who are providing to me that information or entertainment encoded on it. If I do not agree with that limitation on the ownership of that physical object, then I should surrender ownership of it by selling it, giving it away, or just destroying it. It is as simple as that.

  • Published: February 28, 2009 3:03 AM

  • Gary Hall
  • @Chad:

    You must have skipped a few comments. Please look at my last post, and others pertaining to it, then posit a solution to the uncontracted 3rd party problem. Preferably, a solution which does not violate private, physical property rights.

    I have absolutely no argument with limited-use contracts, provided there is consent from all involved, of course.

  • Published: February 28, 2009 6:56 AM

  • Julien Couvreur
  • Hi all,

    I find this discussion on intellectual property quite thought-provoking.

    I do wonder: what would a society look like without IP protection (copyright, patents)?
    In that world, wouldn’t the author of a book spend months creating literature, only to have it put for free on the web by anyone with a scanner or patience?
    Similarly, wouldn’t engineers and inventors spend a lot of time to research, find and design technical solutions to hard problems, only to find them replicated by an entrepreneur trying to spare some R&D; investment?
    On the other hand, no IP enforcement clearly helps the inventor who independently comes up with a similar solution.

    I guess many of these scenarios can be solved by use of contracts. Is that the hidden point in Kinsella argument?

    When you buy a CD or a book, the item would come of a “non-copy” or “limited-copy” contract. The same could be done with items containing technology.

    Cheers,
    Julien

  • Published: March 2, 2009 4:58 PM

  • Gary Hall
  • @Julien Couvreur

    “In that world, wouldn’t the author of a book spend months creating literature, only to have it put for free on the web by anyone with a scanner or patience?”

    As I understand it, yes.

    “Similarly, wouldn’t engineers and inventors spend a lot of time to research, find and design technical solutions to hard problems, only to find them replicated by an entrepreneur trying to spare some R&D; investment?”

    If the entrepreneur could find the solution path without resorting to violating property rights, yes.

    “I guess many of these scenarios can be solved by use of contracts. Is that the hidden point in Kinsella argument?”

    I believe so, although you would have to ask him.

    “When you buy a CD or a book, the item would come of a “non-copy” or “limited-copy” contract. The same could be done with items containing technology.”

    I would suggest so, although Stephan Kinsella posited an argument that they would be indistinguishable from non-contracted third-parties. Personally, I think the argument was needlessly contrived but the source I read was paraphrasing.

  • Published: March 4, 2009 8:44 AM

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