Rethinking IP

by Stephan Kinsella on February 10, 2011

From Mises Daily. Archived comments below.

Rethinking IP

02/10/2011Stephan Kinsella

In previous decades libertarians viewed intellectual property as a boring and technical area of the law, the province of legal specialists. They also assumed it to be a legitimate, if arcane, type of property in a capitalist, free-market society. After all, it’s in the Constitution, and Ayn Rand blessed it. But we don’t ignore it anymore, and we don’t take its legitimacy for granted. We can’t. The injustices of IP have multiplied in the Internet age, and they are staring us in the face.

The advent of the Internet, digital information, and easy file sharing and duplication have been met with ever more draconian enforcement of the state’s IP law and with incessant lobbying for legislation to make IP stronger and longer lasting. Just as the state wants to tax everything that moves, intellectual properteers want to cover ever more subjects of life with IP protection. But everyone — the young, students, and libertarians — copies files, and we all regularly hear stories about insane patent and copyright lawsuits.

Single moms and college students are sued for file sharing. The IP barons seek three-strikes-and-you’re-out laws banishing accused offenders from the Internet for life. They seek international enforcement of their national monopoly rights, in order to harass street vendors in Third World countries. The legislators, who are in their pockets, have already outlawed the possession of devices that might be used to crack encryption codes. Their propaganda — in TV commercials, video games, magazine ads, and unskippable warnings at the beginning of DVD movies — hectors kids and college students about how uncool it is to copy.

We hear regularly about multimillion- or even billion-dollar patent lawsuits, and about the millions of dollars spent by corporations on patent attorneys and litigators just to cross-license with each other, leaving smaller companies outside the walls of the barriers to entry erected on these patent arsenals. In the name of IP, books are banned, movies are ordered destroyed, singers are prevented from singing, car owners prevented from photographing their own cars, churches are prohibited from having Super Bowl parties, and imports of watches and ramparts of drugs are blocked. And a little mouse keeps getting his life extended, thanks to copyright — from the original 14 years to more than 100. Trumped-up charges of IP infringement are used as an excuse by the government to investigate political opponents.1 IP may still be arcane, but it’s not boring anymore. Scary and outrageous, maybe, but not boring.

Everyone knows something is wrong here. Everyone. Except perhaps for patent lawyers, federal judges, and Orrin Hatch. I take that back. I think even most patent lawyers know something is wrong. But mired in a mainstream, quasi-statist mindset, most people are unable to think clearly about this issue. For libertarians — especially those with a principled view of individual rights and an understanding of Austrian economics — there is more hope.

We must start by taking a close look at the traditional libertarian assumption that IP is, in fact, a legitimate type of property right. And it turns out that advocates of the free market have made a mistake all along. Patent and copyright, to take the two worst manifestations of IP, are nothing but state monopolies that violate property rights. IP is antithetical to capitalism and the free market.

And should this be any surprise? Copyright is rooted in censorship. No wonder it still leads to censorship today. Patent law finds its origins in mercantilist monopoly grants, and even legalized plunder — letters patent were used to legalize piracy in the 16th century — making it ironic for IP to be used against modern-day “pirates” who are not real pirates at all.

Once IP is seen this way, the scales fall from one’s eyes. It’s a transformative moment in one’s libertarian life, akin to the moment when one finally admits to himself that even the minimal state is criminal and thus adopts anarchism. Realizing that IP is not part of a free-market order makes possible a reassessment of aspects of libertarianism, economics, or social thought hitherto neglected or seen confusingly through the IP haze.

But this does not mean that once you realize IP is unlibertarian that is all there is to know. There is so much more. This is a difficult subject in the sense that it requires serious thought, not just a quick intuition. As noted above, libertarians are beginning to grapple with this issue in recent years as we enter the digital-information age. The realization that IP is incompatible with libertarianism is forcing a rethinking about topics that have been neglected or taken for granted.

While the fairly recent advent of the digital revolution has caused most libertarians to turn their attention to this issue, I started focusing on it intensely almost 20 years ago, as a libertarian beginning to practice patent law. I have been criticizing the validity of IP in print since 1995,2 and I kept learning as other insights unfolded in the ensuing 15 years. The history of IP is illuminating. For example, it was not simply invented by infallible, well-intentioned, protolibertarian framers of the Constitution; it originated in censorship and mercantilism. Seen in this light, IP is just another mercantilist-corporatist state intervention in the free market.

And one simply must have a sound, coherent, and libertarian understanding of property rights, the nature of homesteading, and the nature of contractual exchange, to understand the IP issue. Or, more precisely, in wrapping your head around IP, you hone and deepen your understanding of property rights and make new connections. In so doing, new insights become possible, indeed inevitable.

To develop an understanding of property, contract, and homesteading sophisticated enough to understand the nature of IP and exactly how and why it does not fit into libertarianism and the free market, you must look closer at the nature of homesteading (Locke), contract theory (Evers–Rothbard), and at the nature and function of property rights. This last category, in particular, provides a good illustration of why Austrians are especially suited to libertarian theorizing, as it requires a close study of praxeology and the very structure of human action. On this topic, we must examine the work of such Austrian luminaries as Mises, Rothbard, and Hoppe to fully appreciate the relationship between scarcity and property rights, and the unique role of ideas and emulation in a free market and in society in general.

The purpose of my Mises Academy course, Rethinking Intellectual Property: History, Theory, and Economics (six weeks, starting March 22, 2011, Tuesday evenings, with Thursday afternoon office hours for Q&A) is to explore these issues in detail. The history of IP is little known; we will cover it and expose its statist, mercantilist, monopolistic origins. Advocates of IP are often shamelessly ignorant of the nature and details of the very system they support; even skeptics and critics are often unclear about what IP law is. The course will therefore provide an overview of modern intellectual-property law, distinguishing between the various types of IP, with examples and illustrations.

The course will explore and offer critical analysis of various utilitarian and deontological justifications offered for IP. We will seek to analyze the proper relationship between property, scarcity, and ideas, and to integrate the proper perspective on IP and the nature of ideas, emulation, and information with Austrian economics and libertarian theory.

As to putting some of these ideas into practice, the course will conclude by studying or proposing various legal and political reforms that might be implemented. Finally, because even those skeptical of IP naturally ask, “but how would I make money doing X without copyright and patent?” we will discuss types of market and social institutions and practices that could be expected to arise in a post-IP world.

Here are some of the topics that the course will cover:

The statist origins of patent and copyright, and how IP, used to persecute “pirates” today, was used in the past to support actual piracy;
The types of IP, and the difference between copyright and patent — and trade secret, trademark, moral rights, reputation rights, database rights, and sui generis IP rights like boat-hull designs and semiconductor mask work protection;
Problems with utilitarian arguments in general, and with utilitarian arguments for IP;
Why empirical arguments for IP’s “success” are flawed;
How open-source software depends on IP;
Why it’s almost impossible to get rid of copyright, and why it’s not hypocritical to oppose IP and still “have” a copyright;
Why patent and copyright cannot originate in the common law (also: what is wrong with legislation, anyway; and what “common-law copyright” was; bonus: what a “poor man’s patent” is);
What the most libertarian type of copyright license to use in today’s world is;
The relationship between scarcity and property;
Homesteading theory, the nature of human action and contract, and their relationship to property and scarcity;
Why IP cannot be based on contract;
How most patent lawsuits have nothing to do with “copying”;
Central mistakes and confusions of natural-law arguments for IP;
Common fallacies and mistakes of pro-IP arguments, such as the implicit idea that there are property rights in labor, or that creation is an independent source of rights;
What Mises, Hayek, and Rothbard, as well as other notable economists such as Fritz Matchup, thought about IP;
The IP arguments of early libertarians like Benjamin Tucker and Lysander Spooner;
Legal and political reforms to improve or abolish IP; and
Market and social institutions and practices that would arise in a post-IP world.

This is the second run of this course. I presented this course the first time in Winter of 2010 (see “Rethinking Intellectual Property: History, Theory, and Economics,” Mises Daily, Oct. 22, 2010). As I noted in “Teaching an Online Mises Academy Course”:

I had originally planned to ignore the chat window and take up questions in a Q&A session at the end of the lecture. However, I found that I was able to scan the chat window while I was lecturing and see an occasional question pop up among the students’ chatter. They were usually on topic; there was no reason to wait till later — so I would pause to address that question or to clarify. It was very similar to a student’s raising his hand in class during a lecture to make a brief and pertinent comment, to ask a clarifying question, or to request elaboration on a given point. It worked very well. During the 90-minute period, I would usually lecture for about 50 minutes and take questions for 30 or more minutes (with a short break between) — and we often went past 90 minutes; I usually stayed until the questions petered out.

It was gratifying to see the students typing things like the following at the end of the lectures (these are from the actual IP-lecture chat transcripts):

“Thank you, great lecture!”

“Thanks, excellent lecture.”

“Great job.”

“Great lecture!”

“Thank you, Sir. Great lecture!”

“Thanks for an excellent talk.”

And, at the end of the sixth and last lecture, “Thanks for a great course!”

Student feedback was very positive and gratifying. It included the following:

Thank you so very much for all the excellent work — very few classes have really changed my life dramatically, actually only 3 have, and all 3 were classes I took at the Mises Academy, starting with Rethinking Intellectual Property (PP350) (the other two were EH476 (Bubbles), and PP900 (Private Defense)). …

My purposes for taking the classes are: 1. just for the fun of it, 2. learning & self-education, and 3. to understand what is happening with some degree of clarity so I can eventually start being part of the solution where I live — or at least stop being part of the problem.

The IP class was a total blast — finally (finally) sound reasoning. All the (three) classes I took dramatically changed the way I see the world. I’m still digesting it all, to tell the truth. Very few events in my life have managed to make me feel like I wished I was 15 all over again. Thank you. …

[M]much respect and admiration for all the great work done by all the members of the whole team.

For more student feedback, click here. More information on Mises Academy may be found in my article “Introduction to Libertarian Legal Theory,” and Daniel James Sanchez’s, “The Significance and Success of the Mises Academy.”

The truth is that coming to grips with IP is not easy. Thinking it through helps firm up the case for property rights and contract. And the implications of what we learn extend far beyond just this area; it reaches into social theory and competition theory as well.

Those already convinced by the general argument against IP thus have much to learn in this course, which will deepen and extend their understanding of, not only IP theory, but also libertarian theory and economics. The course is also ideal for those who are on the fence, or who are confused, about IP: no intellectual conformity is required. Libertarians who think there are good arguments for IP are also welcome — at the least, they can test their arguments against the best we critics have to offer, and perhaps strengthen, modify, or deepen their own views about the nature of ideas, government, and property rights. (For further details about the course, see my interview about it with Jeff Tucker.)

This should be a fun course. I look forward to sharing ideas with you!

1.Some examples are collected in my post “The Patent, Copyright, Trademark, and Trade Secret Horror Files.”
2.See my various IP-related publications here.

Archived comments:

{ 198 comments… read them below or add one }

J. Murray February 10, 2011 at 11:28 am

As a gamer, I have a personal beef with the whole DRM process. Anti-piracy programs and policies, apart from basically never working, create major system instabilities and conflicts by simply existing. A major problem I had was with a program called SecuROM. The thing embedded itself into my PC, without permission, and started interfering with legitimate programs from operating. It even completely disabled my DVD drive. It was so invasive that it required a special program just to get rid of it and even then I had to go through hell just to get the DVD drive working again. I make it a regular habit of breaking all the copy protection in all the software I purchase.

I’ve never had any urge to just download software and prefer to pay the creator for his time and efforts, but I’d like a product that works and doesn’t interfere with my machine. I’m technically “breaking the law” by wiping out all copy protection on each of my legitimately purchased software, but it’s the only way I can get the best experience out of it.

Daniel February 10, 2011 at 2:15 pm

I bought Assassin’s Creed 2

Never again will I buy a product from Ubisoft, what a horrible company

J. Murray February 10, 2011 at 4:13 pm: Oh, that. Man, what a joke. “Ya, you have to be online the whole time. If you lose connection, the same shuts down and you lose all progress.” Then their servers don’t work for a few weeks.

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Vanmind March 7, 2011 at 7:50 pm: Ubisoft is a Quebec company that survives only through subsidies. Please boycott.

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Ned Netterville February 10, 2011 at 11:31 am

Stephan, if we get rid of IP, how will Sarah and Bristol Palin protect their precious names against plundering name robbers?
http://www.reuters.com/article/2011/02/04/us-palin-trademark-idUSTRE7135WI20110204?wpisrc=nl_pmfix

J. Murray February 10, 2011 at 11:37 am: Not doing stupid stuff to convince people to use the names?

As long as their names aren’t used in a way that causes creditors to show up at their door or, if they happen to do something useful in the future like produce a product for sale, someone trying to get a refund on a knockoff they didn’t make, then it doesn’t matter.

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Sarah Palin February 10, 2011 at 3:49 pm: I’ll only be able to do this a little longer, before they get those signatures. So fun.

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Shadeclan February 10, 2011 at 12:38 pm

I had an epiphany this morning as I was driving to work. I realized that copyright is the same as fiat currency. That is, just as banks are creating money out of thin air, copyright creates copies of real goods out of thin air and through the same means.

IP therefore is just as fraudulent as fiat currency and should be opposed just as vehemently.

Peter Surda February 10, 2011 at 1:41 pm

You know, if I was an IP proponent, I would accuse you of “stealing”, because I said the same thing already a couple of times ago on the blog, here are a couple of links:

http://blog.mises.org/13399/the-death-throes-of-pro-ip-libertarianism/comment-page-1/#comment-706311
http://blog.mises.org/14045/locke-on-ip-mises-rothbard-and-rand-on-creation-production-and-rearranging/comment-page-1/#comment-728420
http://blog.mises.org/14320/understanding-ip-an-interview-with-stephan-kinsella/comment-page-1/#comment-733692

Well, since I don’t think that fiat currency is fraudulent, you probably did not know about my posts. But that’s even better. It shows that the conclusions can be reached by different people independently and do not depend on controversial assumptions.

Stranger February 11, 2011 at 8:46 pm

Actually, it is intellectual communism that is an inflationist fallacy – that you can make people wealthier by increasing the number of copies of a media to infinity.

Peter Surda February 12, 2011 at 4:51 am: If you think that a world without IP is “communism”, please provide any example of an action that is covered by IP but not covered by physical property rights. Otherwise you are contradicting yourself and merely advocating redistribution of physical property.

REPLY
sweatervest February 18, 2011 at 2:05 am: Which makes way less sense than restricting the number of copies of a good to make people wealthier!

Besides, it’s only natural that the producers of creative works should oppose free advertising of their creations. Turns out advertising actually hurts producers!

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Allen Weingarten February 10, 2011 at 3:33 pm

Physical property (such as land or a mechanism) belongs to the owner, so anything done with it requires his contractual agreement. Information property which one possesses, ought not prevent others from developing similar information, but only from copying what he does not choose to release.

As Rothbard argues elsewhere, there is no justification for a patent, for it would deny the right of another party to develop that capability independently. Conversely, an owner has the right to a copyright, wherein another party uses it in accordance with his contract. To deny this would deprive consenting adults from making a contract.

Is there anything left out in the above summary on property rights?

Peter Surda February 10, 2011 at 4:33 pm

Is there anything left out in the above summary on property rights?

No, not really. Only the voluminous amount of fairy tales IP proponents make up to cover this, and the historical development that lead to the current mess.

Anthony February 10, 2011 at 7:04 pm

Only that the contracts you mention are binding ONLY on the signatories. As long a you agree that third parties are not bound by contracts they didn’t sign I don’t think anyone here will have a problem with that.

Allen Weingarten February 10, 2011 at 7:32 pm

Anthony, isn’t it understood that a contract (if it truly is a contract) is only binding on the signatories?

Anthony February 16, 2011 at 12:00 am: Not by many IP advocates…

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Wildberry February 10, 2011 at 7:06 pm

Allen,
This is so imprecise that I can’t tell the purpose you mean to derive from it.

“Physical property (such as land or a mechanism) belongs to the owner, so anything done with it requires his contractual agreement.”

“anything done with it” could mean selling it (which is essentially a contract) or abandoning or using it (which does not require a contract). Preventnig someone else from possessing or using it does not require a contract, provided it is actually owned as property.

“Information property which one possesses, ought not prevent others from developing similar information, but only from copying what he does not choose to release.”

Possession of information is not sufficient for property rights to arise.

Do you mean to assume that the possessor has property rights in some given information?
If so, then it matters what you mean by “developing” similar information. For example, a derivative work, whcih is protected under copyright law, is almost by definition “developing similar information”.

Copying means derived from an original, which is protected if the original is protected.

“Choosing to release” could be by contract, or a contract would not be required if the rights were property rights. That is one distinctino between contract and property rights. Contracts can only be enforced on the parties to the contract. Property rights are universal, in that no prior contract is required.

Although independend invention is an issue that patent law resolves by a rule of “first to invent”, it is a special case, not then general case. Simultaneous invention disputes are a small percentage of all patents, I would guess. It is analogous to the problem of “simultaneous homesteading” in reall property. How would you solve that hypothetical situation?

Finally, your idea of “depriving consenting adults from making a contract” can be expanded to derive legitimate “laws” for limited rights transfer. If everyone became a party to a contract, it would then operate as a “law”. Some refer to this as a concept of “social contract”.

My point is not to nit pic you, as there are elements of truth in what you attempt to summarize. My point is that to point out that it is not so simple, and yet is not equivalent to making up fairy tales. General rules work for the general case. When you add addtional facts, general rules are not sufficient and need to be refined and expanded.

For example if you think of the concept of “economic rights”, it seems simple until you think of all of the many, many ways that these right can be defined and used in free markets. This begins to explain the complexity of the body of laws covering these subjects, and why they resist the application of one simple rule that is meant to apply to all fact patterns.

You can make a complex subject simple by simply assuming away the complicating factors, like additional facts. Many who post here like to do that.

Regards,

Allen Weingarten February 10, 2011 at 8:29 pm: Wildberry, you believe that my statement of principles was imprecise.

Now it is true that my statement ‘anything done with one’s property requires his contractual agreement’ is technically incorrect (not imprecise) because he can simply use it, without dealing with anyone else, let alone requiring a contract. Yet the context of the discussion on IP presupposes that we are dealing with what occurs with other people. *Did you really believe that I was suggesting that if someone picked a flower, it would require a contractual agreement, or that anyone would give it that interpretation?* Or would you now say that I am imprecise because I did not specify that the flower had to be on one’s property? Such criticisms are called ‘cavil’.

Similarly, when I said that having ‘information property ought not prevent others from developing it’ you counter that “Possession of information is not sufficient for property rights to arise.” Yet that does not contradict or refute that if I have some information, it in no way should prevent another from developing that information. This concept does not depend on whether of not there is copyright law.

Next you ask how I would solve the problem of simultaneous homesteading. Yet whether or not I have a clue, does not mean my formulation had to deal with it. Any and every law can be given boundary conditions that are problematic. Suppose a car is required to provide 20 miles per gallon. Even if one specifies the road, the wind, the speed, etc., etc., there will be cases that do not decide between 19.99 and 20.01.

Now you say that you are not trying to nit pic but want to take into account various additional facts. *Here we have a different perspective on laws.* I hold with Cicero that complicated laws are akin to no laws at all. I do not think it advisable to seek complicated laws that can capture the wide variety of possibilities. Rather it is manageable to get a simple clear concept that handles most things by common sense. Once one tries to go far beyond that (except in science or in developed technical disciplines) the law becomes more of a problem than an aid. That is why my intent is to get brief, simple, and clear laws, rather than what we have today. Consider that the Declaration of Independence was 3 pages (and could have been halved), and our Constitution was 9 pages. Contrast this with the tens of thousands of pages that are in operation today. I submit that if a law is not able to be dealt with in a commonsensical manner it should not have been written at all.

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Tcostel February 10, 2011 at 4:28 pm

What about copyrights on books? I understand the patent argument, but without a copyright on books, people could literally write the exact same story word for word and sell it as their own work, potentially making more money if they have better marketing skills. Is that not a theft of labor?

Stephan Kinsella February 10, 2011 at 4:33 pm

1. can you give a single example of this EVER happening?

2. what is a “theft of labor”? Do you “own” your “labor”? Really? Labor is just a type of action. How can you own it? How.

Wildberry February 10, 2011 at 7:19 pm

Tcostel and Stephan,

1. Of course it is so unlikely as to be impossible, so it has probably never happened. But a derivative work is what T is probably trying to point to, where the standard is similarity, not exactness. Nonetheless, in a copyright free world, one could do what he describes with impunity.

2. I bet T probably really doesn’t mean “theft of labor” as you mean it. He seems to be raising the issue of production for external markets. If you don’t control the economic rights to your private productive output, then you can only produce for external markets, which breaks the economic relationship between output and income. Your “output” of a book does not translate to your “income” from its sale.

Of course one could answer that you need a contract to protect that, but that is a solution that is only required in the absence of property rights. Establishing property rights removes the requirement that you have a contract with everyone that could acquire your product. Either way, the boundaries of property rights would have to be well understood in order for any efficient form of economic calculation to take place between potential trading partners. Therefore, it is a matter of economic policy, or social convention.

Tcostel, let me know if I missed your intended meaning.

Tcostel February 10, 2011 at 8:57 pm

Stephan and Wildberry:

1. Plagiarism in education is a common example. One individual labors to write a paper, another simply copies it and turns it in to be rewarded with a high grade if he is successful at pulling it off. Something about that does not seem like production. In fact, the individual who did the copying loses out on becoming a better writer himself, the original writer does not receive credit for his work, and the individual who brought the whole mess about is rewarded. Yet he didn’t really produce anything himself, he only copied some other work. And Wildberry I agree with your analysis of what I was saying.

2. When I was referring to theft of labor, I was not being literal. Wildberry summed up what I was getting out nicely. Copyright is a means of protecting private property, in the case of an author his original book. Sadly, I don’t think we can assume people will respect private property with zero enforcement. There will always be those trying to gain an advantage.

Peter Surda February 11, 2011 at 8:06 am

Tcostel,

you have not explained what is “wrong” with copying, other than you don’t like it. You also have not explained what copying is, a typical flaw in the arguments of IP proponents. Copying is omnipresent. Competition is also a form of copying. If you were to ban all copying, you would not be able to do almost anything, including eating, preparing food or even moving, and the society adhering to such a rule will die out within a couple of weeks.

Second of all, what you refer to as “theft of labour” is merely a byproduct of the physical property rights. If you want to use force to prevent “theft of labour”, you need to expropriate physical property. Just like some people do not like other people smoking marihuana, trying to stop them by force requires expropriation of physical property.

So, you’re without an argument.

Wildberry February 11, 2011 at 11:05 am: The context of this discussion is IP laws. No one is discussing the general act of copying. If you want to use genetic replication as an anti-IP argument, well go for it.

Likewise with competition. Who is trying to outlaw competition?

So, if you want to ask questions about IP, you must be for starving?

And for the shining finish, we have this:

“Second of all, what you refer to as “theft of labour” is merely a byproduct of the physical property rights.”

Huh?
Jay Lakner February 11, 2011 at 11:40 am: Wildberry wrote:

Who is trying to outlaw competition?

You are.

You want threats of physical violence to be used to set up market situations where only one person has the right to sell a certain class of good.

“Outlawing competition” is the perfect expression for what you’re advocating.
Peter Surda February 11, 2011 at 11:54 am: Wildberry,

The context of this discussion is IP laws. No one is discussing the general act of copying.

Now you are trying to divert the flow of the debate again. The argument of Tcostel was based on a very vague term “theft of labour”, which, like other nonsense, IP proponents do not explain.

However, based on the arguments IP proponents provide, I was able to extract the two most common characteristics of IP: causality and similarity/utility (i.e. from economic point of view, externalities and substitutes). IP proponents argue for a mix of:
– the author should have a claim on the outcomes (causality) of his actions
– you can’t sell goods that are similar enough to the one’s author produces

But these criteria are so generic that they match almost everything, including competition in general. I have challenged IP proponents for over a year to explain the difference, but none do.

Likewise with competition. Who is trying to outlaw competition?

In case you do not want to outlaw competition, please explain how to distingiush between enforcing IP and banning competitition, or how you can enforce IP without banning competition.

Huh?

Please explain what part of the argument you do not understand.

Let’s say X performs action A which results in an integrity change of a good G1, and Y is causally influenced by this, performs action B, which in an integrity change of a good G2. X does not like that action B happened, or that G2 changed its integrity, without his approval. However, because G2 belongs to Y, the change of its integrity is a byproduct of Y’s exercising his property rights. If X does not like it, he can screw himself. To call this “theft” is ridiculous.

Stephan Kinsella February 11, 2011 at 8:26 am

“1. Plagiarism in education is a common example.”

But this has nothing to do with IP. It can be prohibited by contract and property rules; and what is wrong with it is that it is dishonest. But dishonesty is not a crime or illegal. The only remedy is reputational, or for the school to eject or punish the student per its policy. Copyright prohibits even cases where you put the author’s actual name on it.

“2. When I was referring to theft of labor, I was not being literal.” But this shows how your arguments are equivocating. If it’s not “literally” theft, then how is it a rights violation, any more than “stealing” your customers or your boyfriend is aggression?

Wildberry February 11, 2011 at 11:27 am: Stephan,

As you well know, copyright has nothing to do with student’s cheating on an exam or stealing someone’s boyfriend.

Tcostel is trying to understand the issue from his common sense, not within a context of copyright laws, with which he clearly is not familiar. But instead of leading him down a road that is a legitimate reading of the law, which you Stephan know and Tcostel obviously doesn’t, you attempt to turn his misunderstandings against him.

He is simply saying, it seems to me, that when someone goes to all of the work and effort to write a book, he ought to have some protection from those who would attempt to profit from his work. Common sense indicates this is “wrong”.

The metaphor of plagiarism seems to be meant to show the immorality of trying to get something for nothing. So why not help him out and re-direct him to the subject matter of copyright law and show him why his common sense is actually wrong?
Peter Surda February 11, 2011 at 12:03 pm: So, if you perform an action, and this has a causal relationship to someone else performing an action, they owe you money?

Wildberry February 11, 2011 at 11:42 am

Tcostel,

Your common sense approach, like I said before, leads you to the right conclusion.

It is morally wrong to profit from the work of others, at their expense.

To use an analogy, we generally believe that if you go to the trouble to buy all the ingredients and apply your labor and bake a cake, you ought to be the one who eats it, sells it, or gives it away. We don’t have to recalculate the morality of that and defend it every time we bake a cake, because civilized people have a general sense of morality, and we punish those who try to breach that code of conduct. We try to make the “punishment” fit the “crime”. Common sense.

To apply that common sense to IP law, copyrights for example, you have to learn more about what the law actually is and what it actually does. Few IP opponents here will be that helpful to you, because they have a specific conclusion they want you to reach, and they don’t mind banking on your misunderstandings of the law to get you there.

So Stephan responded to you in a way that only increases your confusion about the law, and in the context of his response, you are supposed to begin questioning the validity of your own common sense.

Fundamentally, IP laws, especially copyright, which you seem to be referring to, are in pretty good alignment with your sense of morality, although you would never know it by Stephan’s response to you.

Regards,

Peter Surda February 11, 2011 at 12:07 pm: Wildberry,

It is morally wrong to profit from the work of others, at their expense.

But you just said that copying isn’t always wrong, and competition is good. Make up you mind. Also, since causality extends to infinity, are all actions whatsoever wrong?
Jay Lakner February 11, 2011 at 12:11 pm: Wildberry wrote:

It is morally wrong to profit from the work of others, at their expense.

By this logic, it is morally wrong to set up a business in competition to other businesses. When a new market opens up, anyone who “copies” the original business is acting immorally because they’re taking away the profits from the first business.

Wildberry, your idea of “morally right” completely arbitrary. It is clear to just about everyone here that you have never sat down and reasoned out your beliefs from a fundamental starting point.

Your entire set of morals comes down to this:
If you don’t like what others are doing, you want to make their actions illegal.
Basically you’re a socialist. You wanna stick your nose in other people’s lives and tell them how they can and can’t live. You’re certainly not a libertarian of any sort.

The libertarian position can be summed up as: all actions are legal so long as no property rights violations occur.

Does “copying” violate property rights? No. Therefore copying should be legal.

End of story. There is no more to discuss. Yes you hate copying. Too bad. I don’t like it when people pick their nose in front of me but you don’t see me making arguments to make nose-picking illegal. It’s absurd. Just like your no-copying arguments. Get over it. Move on.
Wildberry February 11, 2011 at 3:46 pm: Jay Lakner.

“By this logic, it is morally wrong to set up a business in competition to other businesses.”

Are you making an effort to understand the plain meaning of language? It is not morally wrong for a competing hotel to open across the street. It is morally wrong to rent rooms to a hotel that you don’t own. Can you see the difference?

“It is clear to just about everyone here that you have never sat down and reasoned out your beliefs from a fundamental starting point.”

Which is what? That property rights can only legitimately arise from an act of homesteading scarce resources? I reject that premise. While a rule of capture is one way to establish ownership of property, it is not the only way. Property is a human device, and therefore rights associated with property can be established by natural rights, contract, or law. That is not necessarily arbitrary.

“The libertarian position can be summed up as: all actions are legal so long as no property rights violations occur.”

Ignoring your insults, I agree with your statement. Of course it avoids the central issue of how, when, and upon what basis are property rights established. How else could you determine if “property rights violations occur”?

“Does “copying” violate property rights? No. Therefore copying should be legal.”

I get your logic, your premise is incorrect. If I have monopoly economic rights to something, and you take it, by copying or any other means, my rights have been violated.

“Move on.”

Are you suggesting that I am not welcome here?
Peter Surda February 11, 2011 at 4:48 pm: Wildberry,

Are you making an effort to understand the plain meaning of language?

Are you?

I reject that premise.

Ok. But you do not provide an alternative. What you provide instead is vagueness.

While a rule of capture is one way to establish ownership of property, it is not the only way. Property is a human device, and therefore rights associated with property can be established by natural rights, contract, or law. That is not necessarily arbitrary.

A great example of what I’m protesting against. What does this even mean? How does it address any of the objections that were brought up to you?

Let’s try it without homesteading or property then. They are not necessary to demonstrate the flawed logic in IP theories.

If you have any system of law, any action can be one of the following:
(1) covered by law and be allowed
(2) covered by law and not be allowed
(3) not covered by law
There cannot be logically any other option.

Most of the IP theories base their arguments on the assumption that in a system without IP, there are actions which fall into category (3). I claim that it’s false. If I was wrong, then it should be trivial to disprove me, simply be providing an example of such an action that falls into that category. I challenged you as well to do that. Did you do that? No. Other IP proponents did not do it either so at least you’re not an anomaly.

If I have monopoly economic rights to something, and you take it, by copying or any other means, my rights have been violated.

So if I make up gobbledygook, I can select any arbitrary action by any arbitrary person and claim that it violates my rights. I think that’s an accurate description of your position.

However, regardless of this, you do not address the self-contradiction. So even if the above claim was correct, the ultimate conclusion regarding IP would still be wrong.

Shay February 11, 2011 at 12:39 pm

Sadly, I don’t think we can assume people will respect private property with zero enforcement. There will always be those trying to gain an advantage.

Agreed. I buy a stack of paper and ink, and have the silly notion that it’s mine and I can deposit the ink in any pattern I like on the paper. But then I find out that someone who doesn’t respect property rights has established an ever-growing list of things I cannot do with my property, without my consent and that I cannot defend myself against.

Matthew Alexander February 12, 2011 at 9:35 am: Bingo! This is the number one argument against IP, in my opinion. Property rights serve the purpose of establishing who may do what with scarce resources without resorting to violence and might-makes-right. IP necessarily violates rights in property. It CANNOT exist along with property rights.

Peter Surda February 11, 2011 at 7:03 am

Wildberry,

If you don’t control the economic rights to your private productive output, then you can only produce for external markets, which breaks the economic relationship between output and income.

That’s nonsense. First of all, externalities (causality) extend to infinity, so if its presence is your objection, then there is no solution (i.e. IP does not fix it). Second of all, as I said like a zillion times. all acts, including those that allegedly create a claim on IP, involve alteration of physical property, so you cannot claim that absence of IP “breaks the relationship between output an income”. The most you claim is that it causes a redistribution of the results caused by action. And since IP proponents do not want to explain what IP actually is, the only thing IP can cause is to increase confusion regarding what actions are permitted and what not.

Wildberry February 11, 2011 at 10:57 am

Peter, Peter, Peter…

First of all, externalities (causality) extend to infinity, so if its presence is your objection, then there is no solution (i.e. IP does not fix it).

The words were “external markets” so don’t talk about butterfly wings and hurricanes. If you don’t know what I mean, see LVM.

“all acts, including those that allegedly create a claim on IP, involve alteration of physical property, so you cannot claim that absence of IP “breaks the relationship between output an income”.”

In the context of “external markets”, this statement is incomprehensible. Even if I could somehow make a connection, who cares? I don’t know what you are trying to argue, but don’t care about your “alteration of physical property”. It is not relevant to anything I am saying.

“The most you claim is that it causes a redistribution of the results caused by action.”

Huh???

“And since IP proponents do not want to explain what IP actually is, the only thing IP can cause is to increase confusion regarding what actions are permitted and what not.”

With the kind of responses you offer, how can anyone expect you to grasp the concept of IP? I grant you, talking with you leads to an increase of confusion.

Peter Surda February 11, 2011 at 11:30 am: Wildberry,

The words were “external markets”

If you want to nitpick, then the term “external markets” has nothing to do with our debate. That’s not an economic term. Just look it up on google. Mises uses the word “external economies”. A more modern word is simply “externalities”. Again, an excellent example of you trying to confuse everyone and avoid confrontation.

It is not relevant to anything I am saying.

On the contrary. It is the core error. You base your argument on an empty set. There is no such phenomenon that fulfills the criteria of your assumptions. There is no IP without the physical.

Huh???

I’ve been talking about this for months and you still are completely oblivious. Can you show me an example of a use of IP that causes something else than a redistribution of the physical goods?

With the kind of responses you offer, how can anyone expect you to grasp the concept of IP? I grant you, talking with you leads to an increase of confusion.

I have been debating IP on this site for about two years now. I have made many claims and provided many definitions. In general, my arguments can be summarised in a couple of sentences. You, just like all the other IP proponents, avoid confrontation and revel in vagueness. Where have you provided any coherent claim? Just look at your current post. Did you address my claim about causality extending to infinity? No. Did you address my claim that IP cannot do anything else than redistribute physical goods? No. What did you do instead? Who knows. Arguing it is not.

Snipe February 12, 2011 at 3:33 pm

“1. can you give a single example of this EVER happening?”

Hmmm, sounds pretty “utiliatarian” to me.

“Do you “own” your “labor”? Really? Labor is just a type of action. How can you own it? How.”

Read For a New Liberty.

TokyoTom February 20, 2011 at 6:38 am

Tocsel: people could literally write the exact same story word for word and sell it as their own work, potentially making more money if they have better marketing skills

SKinsella: can you give a single example of this EVER happening?

Stephan, isn’t what Tocsel described precisely the commercial practice for publishing in the US and other countries before copyright and treaties? I understand that US publishers frequently freely copied and republished English books without permission or knowledge of the author or original publishing house.

Allen Weingarten February 10, 2011 at 8:42 pm

When something such as a book is made public, it is not capable of being enforced by a copyright. The idea that something available in libraries could be prevented from being copied views the law as having powers that are unattainable.

I recall needing to use the information from a graph in a math book which was protected by copyright from being used. So instead, I took the formula, and generated the same graph by Excel. Can anyone say what the advantage of the copyright law was?

Tcostel February 10, 2011 at 9:02 pm

It is not simply about copying, but copying, reselling, and claiming something to be your own work. As for your math example, if all you did was make a graph on your own from a formula in the book I doubt you are violating any copyright law. Math books are intended to give users formulas to..well…do math. If you copied a few pages out of the math book and tried to sell it as your own math book, then there would be a problem. In the case your are referencing, how exactly did copyright infringe on any of your rights, and how was it even involved at all?

Peter Surda February 11, 2011 at 8:09 am: If you copied a few pages out of the math book and tried to sell it as your own math book, then there would be a problem.

Why? That’s what we call competition. Are you claiming that competition is a problem?

In the case your are referencing, how exactly did copyright infringe on any of your rights, and how was it even involved at all?

Copyright prevents the use of physical property, e.g. ink, paper, computers, printers, monitors, and most importantly, brains, by their owners.

REPLY
Stephan Kinsella February 11, 2011 at 8:27 am: “It is not simply about copying, but copying, reselling, and claiming something to be your own work.”

Do you think the RIAA is okay with people copying movies as long as they don’t pretend to have produced them?

REPLY

Bill Ross February 10, 2011 at 5:27 pm

Two points:

a) As a viable force, states are going down by their own self-inflicted wounds. Who’s gonna enforce IP? Or, anything? Its up to individuals and those they trade with, including for security needs.

b) As an engineer, I realized long ago, it is better to obfuscate IP to protect it, rather than risk lawyers who will just impoverish me in the protection and, the deeper legal pockets will prevail.

sweatervest February 18, 2011 at 2:18 am: “it is better to obfuscate IP to protect it, rather than risk lawyers”

Yes!!! This is what I love about Austrian economics. If you have a problem, there is definitely a better solution to it than sticking a gun in someone’s face.

REPLY

Wildberry February 10, 2011 at 6:36 pm

Hi Stephan,

Although responding to an advertisement for your lecture may not be the best forum to express these thoughts, I can’t seem to resist.

“But we don’t ignore it anymore, and we don’t take its legitimacy for granted. We can’t. The injustices of IP have multiplied in the Internet age, and they are staring us in the face.”

First, I think it is presumptuous of you to speak in the third person, as if your peculiar brand of libertarianism is representative of majority libertarian thought, rather than the particular “Rothbardian/Hoppeian” brand of ancap-speak that is clearly in the minority everywhere else except perhaps on this misnamed website.

“Patent and copyright, to take the two worst manifestations of IP, are nothing but state monopolies that violate property rights. IP is antithetical to capitalism and the free market.”

Case in point. LVM doesn’t seem to hold your views on this issue, but according to you and others, that is simply because he didn’t live long enough; his student Rothbard has since corrected his original oversights, and you carry his torch. For example, LVM in plain language acknowledges the monopoly rights of proprietors as both essential and common features of free markets.

There are those who reject your entire premise regarding property rights and their legitimate origins, including LVM, who properly regards them as a human device for facilitating rational economic calculation. Whether you claim that they arise on the basis of natural rights (as may be the case in some circumstances), claim to better title (as is the case for almost all real property, while “homesteading” can only account for some very small, un-measurable percentage), or legal convention (which is the way rights to real property rights are ACTUALLY established, ie. a human device), property is a result of something, not the definition for something which must pre-exist by virtue of one specific “rule” of property; ie.. “if it isn’t homesteaded, it can’t be property” or something similar.

Property rights define the exclusivity of the proprietor’s claim to the legal use and disposition of a thing. To use or dispose of a thing is an economic activity. Copyright is rooted in economic policy, and thus is not automatically antithetical to capitalism or free markets. They define one’s economic rights to something we agree to treat as property. Certainly by “free markets” you don’t mean that everything that exists is “free for the taking”. You must mean that owners of property are free to trade or not to trade based on their individual freedom to defend their exclusive rights to the use and/or disposition of their property. You simply deny that authors of original works have any legitimate claim to exclusive economic rights to their work. Why? Because you do not believe, in this particular instance, that people should not believe they are immoral simply because they take value from other’s property without compensation. That is your ethics of “free markets”. Producers should be “free” to produce goods for external markets.

“And should this be any surprise? “Copyright is rooted in censorship”

Censorship is a prohibition on expression, and is a Free Speech issue. It is the public domain aspect of the public/private property dichotomy. You only bring censorship into the argument because you know nearly everyone opposes censorship. That copyright has nothing to do with censorship does not bother you, because it is not important WHY libertarians are opposed to IP, as long as they can be counted in your camp.

“Once IP is seen this way, the scales fall from one’s eyes”

Much like saying that “once you see the real meaning of the labor theory of capital, the scales of oppression fall from your eyes and you come to embrace socialism”. If the premise is wrong, the conclusions are wrong, even if logically derived.

“It’s a transformative moment in one’s libertarian life, akin to the moment when one finally admits to himself that even the minimal state is criminal and thus adopts anarchism. .”

As if all libertarians have had this epiphany, or should. At least you didn’t wait too long before you exposed your real agenda. It is not that IP is conceptually illegitimate; it is that ANYTHING that implies a system of governance other than ANCAP radicalism is rejected by definition.

“Realizing that IP is not part of a free-market order makes possible a reassessment of aspects of libertarianism, economics, or social thought hitherto neglected or seen confusingly through the IP haze.”

Of course, the fact that IP has been a part of the “free-market order” for over 200 years is a small detail. Or are you asserting that because we have lived with IP all this time, we have had nothing that could be said to even approximate a free market?

“This is a difficult subject in the sense that it requires serious thought, not just a quick intuition.”

Unless of course you can develop quick intuition by using slogans, like “ideas are free” and “only scarce, homesteaded resources can be property”, or “Even a minimal state is criminal”. Once memorized, then all arguments can be quickly dispensed with. Quick and easy.

“Seen in this light, IP is just another mercantilist-corporatist state intervention in the free market.”

See how quick it is? If you think there are ANY legitimate justifications for a concept of IP in a libertarian world view EVER, then you must also be for mercantilism, and state intervention in free markets! Finito!

“And one simply must have a sound, coherent, and libertarian understanding of [Hoppean]property rights, the nature of [Rothbardian] homesteading, and the nature of [Rothbardian] contractual exchange, to understand the [ANCAP interpretations of the] IP issue.”

To be a little more precise…

“To develop an understanding of property, contract, and homesteading sophisticated enough to understand the nature of IP and exactly how and why it does not fit into libertarianism and the free market, you must look closer at the nature of homesteading (Locke), contract theory (Evers-Rothbard), and at the nature and function of property rights.”

Not that there are any other systems of relevant thought. Read Rothbard and you have the entire subject of contracts nailed. Read Locke, and you know all you need to know about property.

“This last category, in particular, provides a good illustration of why Austrians are especially suited to libertarian theorizing, as it requires a close study of praxeology and the very structure of human action. On this topic, we must examine the work of such Austrian luminaries as Mises, Rothbard, and Hoppe to fully appreciate the relationship between scarcity and property rights, and the unique role of ideas and emulation in a free market and in society in general.”

Nice of you to at least mention Mises, if only in the context of praxeology, although you disavow his views on IP, especially his analysis of the problem of production for external markets. How odd that you would link to Locke and Hoppe, and not Mises. I am curious just where and how you claim to depend on the work of Mises? To my recollection, you simply discount him when he conflicts with Rothbard (or should I say you adhere to Rothbard when he conflicts with Mises?)

An honest and forthright treatment of this subject would contrast existing status-quo legal theories on property, contracts and IP, the principles of Austrian economic theory, and the economic policy of limited property rights in original works. But presenting a parade of horrors is much more fun.

A clear and consistent concept of private property is a necessary condition for free market exchange. How property rights are defined depends upon the means that are adopted to accomplish desired ends. You support a definition of property rights which assumes away the common realities of human activity and production, and which allows you to deny property rights in one case and grant them in other similar circumstances, and then attempt to deal with this contradiction by using a theory of contracts that assumes a similar narrow set of rules, (which by the way, leaves it up to the future legions of libertarians to fill in the gaps in the new “legal code” to try to resolve the contradictions.)

It seems to me that property rights in the context of exclusive economic rights, are a manifestation of economic policy, not merely an outgrowth of a particular theory of natural rights. This is the meaning of the concept of property as a human device. It really doesn’t matter what basis you use to justify their existence as long as it is consistent with an accepted code of ethics. What matters is the economic policies they are meant to support. Those policies are designed to balance the relationship between output and income on the one hand, and the dissemination of new works and the protection of the public domain of ideas on the other. To simply skip this entire analysis because you believe “ideas are free” is far from instructive or useful.

Sorry Stephan, I won’t be signing up.

Peter Surda February 10, 2011 at 7:13 pm

I agree Wildberry,

it is pointless for you to sign up. You are not interested in studies. You are interested in writing as much as possible with as little meaning as possible. Have you explained how you can interact with IP without interacting with physical goods? No. Until you do that, your stance is self-contradictory.

Wildberry February 10, 2011 at 7:40 pm

Peter,
You are a broken record. At least I try to say something responsive to what is being published here.

As you have been referencing your own voluminous posts here, I have been noticing that I am not the only person who finds your posts impossible to follow.

For example, you keep asking me this ridiculous question. Last time you used the term “immaterial property”, which means irrelevant. So I guess you are assuming your conclusion.

“Have you explained how you can interact with IP without interacting with physical goods? No. Until you do that, your stance is self-contradictory.”

Nice to know the rules.

Anyway, I have no idea what this question has to do with anything, especially since I have no idea what you mean. I have no clue why you think this is important, and anyway, why would I want to try to prove this ridiculous premise? Here is what I do know:

A single person can interact with his own process of cognition, which is a precursor to what may later become intellectual property. I suppose my act of cognition results in some physical interaction with neurochemicals and burns some calories, neither of which are tangible phenomena to human sensory organs. So what?
Intellectual Property rights, as I’ve explained to you countless times, deals with economic rights, which implies another human being and the concepts of communication and understanding, which again, if you want to argue are physical, they are intangible in the absence of a tangible medium of fixation.
When I interact with another human, I do so through tangible phenomena, by definition. Such fixation is a pre-condition for an IP right, such as copyright for example. But not allfixations are sufficient. They must be a permanent (practically speaking). It is only through the fixation of intangible “goods” in a tangible medium that IP rights arise. Limited property rights in the intangible work arises when fixed in a tangible medium of a permanent nature.

Now, what can that possibly have to do with your question or anything else related to the topic of whether limited property rights in the intangible original works of authorship are legitimate?

Beats the hell out of me.

Jay Lakner February 11, 2011 at 2:03 am

Wildberry,

Maybe if I break things down you will be able to see the contradiction in assigning ownership to the intangible. I’ll try and go through this step by step. Please tell me the exact point where you disagree.

1. The Universe (ie all of existence) is nothing more than tangible materials existing in various arrangements.
2. These arrangements are spacial (eg geometric configurations like shapes) and temporal (these spacial arrangements change both internally and relative to each other as time goes by).
3. Every entity that we humans describe as “intangible” is simply a possible configuration (either spacial or temporal) that tangible materials can be arranged in to.
4. If two or more humans exist, then a natural conflict arises due to the fact that it is physically impossible for more than one person to alter the integrity or momentum of anything tangible at the same time.
5. Therefore, a system of “rights” must emerge determining which humans can and cannot perform actions that alter tangible materials.
6. This system of rights maybe violent (the guy with the bigger stick wins) or peaceful (all members of a group recognise and respect the assigned rights of others).

It should be obvious from the above points that rights themselves are a natural outcome of the fundamental nature of the Universe.

Now, for some reason you seem to think that the “intangible” should be given the status of “property”. From my above points the following should be clear:

a) The concept fundamentally makes no sense. Property rights exist because it is impossible for two or more humans to alter the integrity or momentum of the same tangible object. By assigning someone ownership of an “intangible” you are giving them the exclusive right to alter the integrity or momentum of an intangible. But an intangible is merely a possible arrangement, a possible pattern. What you propose is granting people the right to rearrange an … arrangement. ‘Tangible property’ and ‘intangible property’ are clearly two completely different concepts.

Now given that the two concepts are different, let’s say you wish to define “intangible property” differently. For example, you wish to grant people the exclusive right to alter tangible materials into the “owned” arrangement. The problems with this should be clear:

b) The is no fundamental conflict between “use” of intangibles. Every human in existence can each “use” the same intangible. Why the exclusivity? This is clearly an arbitrary set of rules. There is no fundamental reason to restrict “intangibles” in this manner.

c) Now getting to Peter’s point. Since the entire universe is simply tangible materials in varying arrangements, then property rights in tangible materials covers EVERYTHING. ie, with simple physical property rights, 100% of the universe is accounted for. The ramifications for this is that by inventing a new type of property, ie your arbitrary “intangible property”, you MUST overlap with physical property. Therefore the two different types of property rights which you wish to implement must continually contradict one another. Enforcing intangible property rights must contradict tangible property rights and vice versa.

If you don’t understand any part of what I just explained above, then please ask for clarification.

Wildberry February 11, 2011 at 10:32 am

Jay,
Unfortunately, I have a problem with #1. Certainly you don’t believe that everything that exists in the universe is perceptible by the human senses?

J. Murray February 11, 2011 at 10:38 am: Anything with physical form (anything made up of the smallest known particles and occupying space dictated by static repulsion) can be viewed and identified with proximities. Electron scan microscopes, EM shifting, etc. The day you can provide evidence of the physical form of your IP and how that the IP is no longer in your posession by my using it, then the argument may have some merit.
Peter Surda February 11, 2011 at 10:51 am: If you cannot perceive something with your senses (with or without the help of measuring tools), then the existence thereof is empirically indistinguishable from the non-existence thereof and the whole question becomes nonsensical. Such an approach “elevates” the explanation of IP into the realm of the flying spaghetti monster. If that’s your argument, then you succeeded.
Jay Lakner February 11, 2011 at 11:20 am: Wildberry wrote:

Certainly you don’t believe that everything that exists in the universe is perceptible by the human senses?

When the hell did I mention human senses??

And what has your question even got to do with … anything???

Wildberry,
You claim you have a problem with #1.
So does this mean that you do not hold the view that the universe is composed of tangible materials in various arrangements?
So can you please replace #1 with what you believe to be a more accurate sentence.

(I’m not holding my breath while waiting for a response. IMO, disagreeing with #1 demonstrates that Wildberry is one of the stupidest people in the history of mankind. I predict he’ll try to further confuse the issue with nonsense-talk and then run and hide.)
Jay Lakner February 11, 2011 at 2:07 pm: I’m still waiting for Wildberry to reply.

He claims that the Universe is not a bunch of tangible materials in varying arrangements. But then he doesn’t explain why this is incorrect or offer an alternative.
J. Murray February 11, 2011 at 2:14 pm: Try to avoid ad hominems, it only dilutes your argument.

And nothing is really made up of materials. The entire universe is only one of two things: pure energy and empty space. What we think of as “physical” is just energy bound in such a way that it repulses other energy forms such as light and other “objects”. IP isn’t made up of these sub-atomic energy particles and, therefore, doesn’t really exist.
Peter Surda February 11, 2011 at 2:44 pm: It does not really matter what universe is made of. You could also say that the universe is made of causality and states. What matters is that if it is possible to distingiush between the existence and non-existence of something. Or you can put it yet another way, if different interpretations refer to the same phenomenon or different phenomena.
Wildberry February 11, 2011 at 3:31 pm: J.Murray,

Please be patient, I’m not operating in real time here. I have a job, too.

I don’t deny that evidence of physical matter can be obtained through instrumentation, or that there is no doubt matter which we have not figured out how to detect, which would make them intangible by any means.

However, “tangible” means perceptible by human senses, and that is important because “tangible fixation” is relevant to copyright law. So it is irrelevant to talk about a scope of physical matter that is outside the scope of the IP context.

The issue is the nature of the “intangible” that is the subject of IP law. Peter seems to think there is no difference between a book with blank pages and one that has a novel fixed upon otherwise blank pages. He seems to think that it is the physical pages of the book that is the beginning and end of all property.

I don’t know what he makes of other intangible goods, like a security interest, for example. You’ll have to ask him.

Anyway, if the context of your post was copyright, then intangibles outside the scope of an “original work or authorship” is not relevant. This is generally true for other areas of IP as well.

Perhaps we can discuss metaphysics another time.
J. Murray February 11, 2011 at 3:39 pm: Not sure how it came off as me being impatient…
Peter Surda February 11, 2011 at 4:29 pm: Wildberry,

The issue is the nature of the “intangible” that is the subject of IP law.

Yes. And since the “intangible” is an interpretation of the tangible, rather than a separate phenomenon, you cannot have IP when you already have rights in the physical.

Peter seems to think there is no difference between a book with blank pages and one that has a novel fixed upon otherwise blank pages. He seems to think that it is the physical pages of the book that is the beginning and end of all property.

It looks like you still do not comprehend my argument, although I have formulated it many times. I often wonder if you even read what I write. What you describe is not my argument. My argument is that rearranging ink on a page is already covered by physical property rights, therefore it cannot be also covered by other rights (e.g. IP), i.e. IP results in a redistribution of physical property rights. My proof that it is impossible to act without altering physical property. It’s really straightforward.

I don’t know what he makes of other intangible goods, like a security interest, for example. You’ll have to ask him.

Are you claiming that one has a right to security interest without entering into a contract with someone? Really? So who is this third party that owes you money? I’m really interested because it looks like they owe money to me too!

intangibles outside the scope of an “original work or authorship” is not relevant

Of course, none of he IP proponents will the you what “original works of authorship” are, or how to distinguish between goods that are considered a violation IP and those that are not.

Perhaps we can discuss metaphysics another time.

Metaphysics is irrelevant for the debate. That just confuses everyone. The question is not whether IP is real, but whether it can be interacted with directly, without involving the physical word. The question is whether two states that are empirically indistinguishable can contain other differences. The question is whether two different interpretations refer to the same phenomenon or to distinct phenomena. The question is if it is possible from the point of view of property rights to divide causality into relevant and irrelevant. But IP proponents do not want to address these questions.
Wildberry February 11, 2011 at 4:42 pm: Sorry J. Murray, that was meant for Jay.

Got my J’s mixed up.
Jay Lakner February 12, 2011 at 4:18 am: Wildberry,

I’m not interested in your attempts to confuse the issue by redefining the word “tangible”. You know exactly what I mean. Grow a pair and face the actual argument being made.

The Universe is made up of some substance (or substances). Whether we are capable of detecting them or not is irrelevant. I am using the word “tangible” to be a term to describe all these substances. Most people would agree with this definition. Whether or not you do is irrelevant. All that matters is that you know what I mean by the term. Whether you choose to call them “Tangible materials”, “energy”, “space-time curvature”, etc is irrelevant since they all different approaches to the same concept.

It is this fundamental nature of the univese that leads to the concept of property. It is impossible for both human A and human B to simultaneously alter the integrity or momentum of the same chunk of matter. Either A or B will alter the matter, but both cannot. Violence might be one way to decide. Peacefully establishing a system of “rights” is another way.

What we call “intangible” is the possible configurations (spacial and temporal) that “tangible” materials can be arranged into. It should be clear that “intangibles” do not suffer from the same problem of mutually exclusive uses that “tangibles” do.

Either make a genuine counter-argument to this line of reasoning or agree with it. I have neither the time nor the patience to deal with people who aren’t interested in honest debate.
The Kid Salami February 12, 2011 at 7:25 am: “It is this fundamental nature of the univese that leads to the concept of property.”

You Jay (and all the other ancappers) take this as axiomatic. Others don’t. For example, in “Are Patents and Copyrights Morally Justified?”, Tom Palmer says:

“Another tradition of property rights argument bases itself on the necessity of property for the development of personality. Personality develops itself in its interaction with the world; without a sphere of property over which we exercise control, for example, moral responsibilty is unlikely to develop. Property rights, in this tradition, may incorporate and “economic” aspect, but it is fundamentally distinguished from other conceptions of property rights. Rather than looking to moral desert, or to maximisation of utility, or to the omnipresence of scarcity, personality based rights theories begin with a theory of the person. Often harkening back to Kant’s discussions of the nature of authorship and publication to Hegel’s theory of cultural evolution, personality based rights theory forms the basis of German and French copyright law”

The rightness or wrongness of this particular approach is not the point – the point is the fact that this, and other approaches that would question the consistency of your position with an advanced division of labour society, are just dismissed outright with what I would call a “pretence of knowledge” and without so much as a wave of the hand; and calls to study any past or existing laws are ignored as they are “empirical”. This isn’t analysis, it is just the repeating of mantras.

I really wonder why Kinsella had to write 50 odd pages for his Against IP paper. All he had to say was:

1) property comes from scarcity
2) all rights are property rights
3) patterns/information/whatever is not scarce
4) so there can be no rights in patterns/information
Peter Surda February 12, 2011 at 9:05 am: Kid Salami,

my two chief objections (IP contradicts other rights and is too vague) do not require you to accept a libertarian theory of property. Kinsella’s/Hoppe’s even. They do not require any specific system. The examples you bring up does not fix those problems either. I am quite aware that it is possible to construct other theories of rights. But desires cannot beat logic. Merely because people want rights to do something does not mean they can contradict themselves.

I really wonder why Kinsella had to write 50 odd pages for his Against IP paper.

The voluminous amount of crap IP proponents would seem to be a good reason for Stephan’s decision. Stephan attempts to do more than merely refute IP, he attempts to construct a full libertarian theory of property. My goals are not as grand, I merely wish to refute nonsense. So, my position can be summarised in one sentence. It does not refute IP per se, it merely refutes the positions explained by IP proponents. They can, in theory, fix the logical errors. Apparently, they don’t want to do that. But that’s not my problem.
Wildberry February 12, 2011 at 10:20 am: Kid Salami, Pro-IP Libertarian, Stranger,

Thank you for dropping in. I appreciate the company. Your comments were excellent.
Jay Lakner February 12, 2011 at 10:25 am: Kid Salami,

What you seem to miss when commenting on my writing is that I am more than happy to entertain the notion of a different theory of rights. If someone were to form a line of argumentation from a different starting point and demonstrate a consistent theory of rights, I would certainly not object to that.
What I object to is contradictory positions. The point I’ve been trying to convey is that “ownership” of the intangible is entirely contradictory to ownership of the tangible. They overlap and one must take precedence over the other.
This is actually the point that Peter tried (in vain) to explain to Wildberry in about a thousand different ways. (Reading through those exchanges and watching Wildberry continually confuse the issue and evade is the very reason I’ve been somewhat hostile towards him in my posts – that and the fact that he endlessly made ridiculous accusations against people like Kinsella of being dishonest and misrepresenting the law.)

The problem is that none of these pro-IP clowns have yet to present a theory of rights which isn’t immediately contradictory. I don’t think I’ve met anyone with a pro-IP stance who has started from a fundamental level. It nearly always simply boils down to some irrational hatred towards copying and therefore a desire to make it illegal. Maybe it’s something that our socialistic schools brainwashed them into believing during their youth. Hard to tell really.

and calls to study any past or existing laws are ignored as they are “empirical”.

I have no idea why you would say this. If someone presents a law, I immediately analyse whether it is consistent with property rights or not.
If someone presents a theory of property rights, I immediately check to see if it’s self-consistent or not.

Kid Salami, once again I get the feeling you are simply trying to argue for the sake of arguing.
Wildberry February 12, 2011 at 10:38 am: Peter,
“my two chief objections (IP contradicts other rights and is too vague)”

First, there have been so many responses to your “contradiction of other rights” ojection, that they are too numerous to list again. Suffice to say that all rights have limits, and at the margins they encounter the boundaries of the rights of others. In this regard, you would have to make an argument that all rights are anti-libertarian, or why IP rights are a special case.

Second, your vagueness complaint; this comes from someone who refuses to acknowledge the body of laws which clarify your complaints. You expect someone should satisfy your personal standards of “vagueness” yet not use knowledge or language to which you object.

So now we see why discussions with you lead nowhere. But I have learned something; the meaning of that label you love to hang around your neck: “Falsificationist”.

What it means is that you contort the simple meaning of words and language in such a way that they lose their meaning, and then claim that the contradictions you create be explained by someone else. Under such conditions, communication is impossible.
Peter Surda February 12, 2011 at 2:39 pm: Wildberry,

there have been so many responses to your “contradiction of other rights” ojection, that they are too numerous to list again

So instead, you list zero. That trick is too obvious. You are metaarguing again.

suffice to say that all rights have limits, and at the margins they encounter the boundaries of the rights of others.

I have explained my position many times. What you present is not it.

you would have to make an argument that all rights are anti-libertarian

Now, even if I made the assumption that you made a genuine mistake and did not understand it, I think you are deliberately lying. I do not recollect having said that the problem with IP is that it is “anti-libertarian”. I think that you made that up to cover up your fraud.

this comes from someone who refuses to acknowledge the body of laws which clarify your complaints

You are trying to fabricate some nonsense again. To my best knowledge, the law does not mention “IP”. It mentions copyright, patents, trademarks, trade secrets and so on. It does not provide a theory explaining them either individually or as a group. It merely says “don’t do this or be punished”. That’s not a scientific theory.

So now we see why discussions with you lead nowhere.

Since you are not discussing, but evading, I agree that this is kind of pointless.

What it means is that you contort the simple meaning of words and language in such a way that they lose their meaning…

No, that is what you do. You pull random terms (like recently “injury”, “economic rights”, “external markets”) out of nowhere, do not define them and pretend to make scientific arguments.

If you do not understand my definitions, then ask for clarification. If you do not agree with my definitions, feel free to provide your own. Have you done that? No. Instead you fabricate more and more vagueness.

Under such conditions, communication is impossible.

Well, you have yourself to blame for not making sense.
The Kid Salami February 12, 2011 at 7:43 pm: Peter

“my two chief objections (IP contradicts other rights and is too vague) do not require you to accept a libertarian theory of property. Kinsella’s/Hoppe’s even. They do not require any specific system.”

In order to know that “IP contradicts other rights”, we need to know what those other (ie. property yes?) rights are. I’m using the Kinsella theory of PR for this. I don’t see how your first claim can stand with the last sentance above – we need a property rights theory (or system) and then we can see if IP rights would contradict it.

“I am quite aware that it is possible to construct other theories of rights. But desires cannot beat logic. Merely because people want rights to do something does not mean they can contradict themselves.”

You are categorically ruling out the theory outlined by Tom Palmer above then as being not logical? You can prove there is nothing in this? Or is it that even if there is, the only thing consistent with liberty is ignoring it – we need refer only to Kinsella PRs? What?

“The voluminous amount of crap IP proponents would seem to be a good reason for Stephan’s decision.”

This is probably true. But, still, his argument is at root no more sophisticated than those 4 points.

Jay

“What you seem to miss when commenting on my writing is that I am more than happy to entertain the notion of a different theory of rights. If someone were to form a line of argumentation from a different starting point and demonstrate a consistent theory of rights, I would certainly not object to that.”

Ok. So what though? It’s your line of thought i’m interested in, and whether it makes sense. And you’re pretty clear about it.

“What I object to is contradictory positions. The point I’ve been trying to convey is that “ownership” of the intangible is entirely contradictory to ownership of the tangible. They overlap and one must take precedence over the other.”

What’s contradictory about my position? You said elsewhere “The only important issue here is whose property rights were violated and who was the one committing the violation.” and have said the same many other times. The theory I presented above suggests that there my be other considerations aside from what you say is the only important thing. As I asked Peter, I would like to know how you can categorically rule out this or any other subtle variables/processes and categorically state that the only issue is “invasion” in the Rothbard/Kinsella sense. Is this something you’ve arrived at by logic, is a belief/faith? Have you already considered this alternative theory and rejected it? What?

“The problem is that none of these pro-IP clowns have yet to present a theory of rights which isn’t immediately contradictory.”

I’m talking about your theory, that only the Rothbard/Kinsella property rights violations are to be considered.

“I have no idea why you would say this. If someone presents a law, I immediately analyse whether it is consistent with property rights or not.”

On the other fashion thread you said:

“Jay Lakner February 11, 2011 at 6:23 am
Wildberry can you please stop spewing nonsense.
As I already explained to you once before, these discussions are about what the law should be, not what the law currently is. I am sick and tired of seeing you post volumes and volumes of utter crap accusing people of misrepresenting the law, when they in fact are discussing “should” rather than “is”.
The only important issue here is whose property rights were violated and who was the one committing the violation. A third party, whose name/logo/whatever was present when the fraud was committed, SHOULD be completely irrelevant to case.
This is pretty much Stephan’s position. It is so extremely logical and simple that it completely baffles my mind that you were able to completely misunderstand it the way you have.”
Peter Surda February 13, 2011 at 4:25 am: Kid Salami,

You are categorically ruling out the theory outlined by Tom Palmer above then as being not logical?

I am ruling it out because of the second problem: it’s too vague. It’s just blah-blah-blah.

You can prove there is nothing in this?

There is nothing coherent in it.

Or is it that even if there is, the only thing consistent with liberty is ignoring it – we need refer only to Kinsella PRs? What?

Because of it’s vagueness, it is impossible to evaluate it from a scientific point of view. I can’t fix that. The people constructing the vagueness need to do that.

I already did that work for the typical IP proponents. I constructed a definition of copying. Their reaction? They ignore it. Do they provide an alternative? No. To me, this is an indication, just like Stephan said, of stupidity and intellectual dishonesty

By the way, what’s your point?
The Kid Salami February 13, 2011 at 6:08 am: Peter

“I am ruling it out because of the second problem: it’s too vague. It’s just blah-blah-blah.”

I wasn’t putting this forward as a theory of IP per se – IP wasn’t mentioned at all in the Tom Palmer paragraph. You are i fact saying that this theory of (tangible) property is too vague. “Too vague” for what? I don’t know.

“There is nothing coherent in it.”

You think this is “incoherent”? Reads fine to me.

“The people constructing the vagueness need to do that.”

They “need” to do it? What if this theory were true? What if the human personality did have some in-built, instinctive needs over what in its domain, and what from its own labour, is and isn’t considered property? What if the customs and laws in a division of labour society had evolved over many many generations to take care of this but not by way of a single super-law like you seem to demand but in the form of small tweaks here and there, distributed over the entire system of laws and customs? Would anyone trying to explain it then “need” to distort it so it satisfies the almost arbitrary requirements you put on it? So we can argue about it more easily on blogs?

“I already did that work for the typical IP proponents. I constructed a definition of copying. Their reaction? They ignore it. Do they provide an alternative? No. To me, this is an indication, just like Stephan said, of stupidity and intellectual dishonesty”

Well, books that constantly tell the reader that they should be scared aren’t scary. If you want me to appear stupid and intellectually dishonest, it would be better if you just let the exchange speak for itself.

“By the way, what’s your point?”

I don’t know why you’re getting tetchy, although I can guess. Anyway, ditto my last answer. People can see for themselves whether they think I have a point or not.
Peter Surda February 13, 2011 at 11:15 am: Kid Salami,

<blockquote.I wasn’t putting this forward as a theory of IP per se – IP wasn’t mentioned at all in the Tom Palmer paragraph.
And both Jay and me answered that our objections have also nothing to do with IP per se.

You think this is “incoherent”? Reads fine to me.

It says that it might be possible to build a theory of property based on some attribute. But it does not explain how to actually do it. It’s a precursor to a theory, not a theory.

They “need” to do it?

If they want to be taken seriously, they better do.

What if this theory were true?

Well, since the quotation does not actually present a theory, it makes no sense to debate whether it is true or not.

As a falsificationist, I divide claims into three categories:
– (1) not a theory
– (2) false theory
– (3) falsifiable (but not yet falsified) theory

The quotation belongs to the first category. I am merely requesting that my opponents produce something that falls into the third category. Typically they can’t even reach level 2 though.

What if the customs and laws in a division of labour society had evolved over many many generations to take care of this

That still does not address my objection(s). Even if the customs actually developed in some way roughly in the direction the quote describes, that still does not mean that the quote is an accurate description of it, or that a specific attempt to formulate a theory about this is not self-contradictory.

Well, books that constantly tell the reader that they should be scared aren’t scary.

Those aren’t scientific books. Their purpose is not to show that the reader is wrong or correct. Their purpose is to instil emotions.

If you want me to appear stupid and intellectually dishonest, it would be better if you just let the exchange speak for itself.

Well, I know you’re not an IP proponent, and I don’t think you are either dishonest or stupid. But often, just like now, I don’t understand what the purpose of your posts is. Is it that there could be other, non-self-contradictionary, positions unlike those we (e.g. Jay and I) formulate, and those could include things that are kind of like IP? Sure. I have absolutely no problem with that. But where are they? It’s for the proponents thereof to provide them. Not for me.
Wildberry February 13, 2011 at 5:26 pm: Peter says:
” I constructed a definition of copying. Their reaction? They ignore it. Do they provide an alternative? No. ”

Say Peter constucts an alternative the Declaration of Independence forthe purpose of debating government. Their reaction? They refer to the original document to show relevant differences. Peter doesn’t like that.

Peter makes up a definitin of copying relevant to copyright law. Wildberry refers to the law itself to show relevant differences. Peter doesn’t like that.

He also doesn’t like analogies. They are too vague.
The Kid Salami February 13, 2011 at 7:04 pm: I don’t think this is going anywhere now, I don’t think you’re really answering my objection. You’re addressing the specifics of that one paragraph outline of that theory (which I’m not even saying I’ll defend, I know little more than I quoted above) instead of the more general notion of the possibility of there being additional considerations to what should and shouldn’t be considered “ownable property” beyond the “physical invasion” concept. That was an example – I have many other examples like this, but thought that was a good one as it was concise and was the words of someone else who opposes IP.

You say you are amenable to alternative theories, but your arguments do not support this statement. I presented this as an example of a variable that might be a factor but is entirely ignored by the Rothbard/Kinsella notion of “invasion” or “aggression” that you (and Jay and many other) simply take for granted. But you insist that others start from this same point of “property comes from scarcity” and “all rights are property rights” or else say they are contradicting themselves.

“But often, just like now, I don’t understand what the purpose of your posts is.”

I’m trying to get someone to tell me why they think the NAP alone is enough. I’m not encouraged by the answers. All I’ve got so far is “Why, have you got anything better?”. I mean, seriously – non-ancappers are labelled “statists” when this is the kind of thing propping up the ancap edifice?

“Is it that there could be other, non-self-contradictionary, positions…”

You’re missing the point – I think the Kinsella approach (and that of all ancappers) is self-contradictory. And where I think I agree with Wildberry (I think I remember him saying this) is that the anti-IP stance of Kinsella is really just him defending ancap – defend one, you have to defend the other. And cave to one, you have to cave to the other. And I personally don’t think an advanced division of labour society can function unless we add to the NAP – that is, as Frank Van Dun says, there should be some things that are not “aggression” but that are considered “unlawful” in some sense. But if you want me to “prove” this, then ok I can’t. But I don’t insult ancappers with a perjorative term like “statist”, I can accept the limitations of my position.
Peter Surda February 13, 2011 at 7:30 pm: Wildberry,

Say Peter constucts an alternative the Declaration of Independence forthe purpose of debating government. Their reaction? They refer to the original document to show relevant differences. Peter doesn’t like that.

I was not aware that the Declaration of Independence is a scientific discourse, nor that it applies outside of the US.

Peter makes up a definitin of copying relevant to copyright law. Wildberry refers to the law itself to show relevant differences. Peter doesn’t like that.

Again, I was not aware that the law is a scientific discourse or has validity outside of the country who’s legislative body enacted it.

I recommend that next time you bring up the bible, Alice in Wonderland or even better, the Constitution of the Soviet Union.

He also doesn’t like analogies. They are too vague.

It is you don’t like analogies, because they would require you to think, which you apparently also don’t like.

I got an analogy for you in the form of a question. Is it possible to pull a pint of beer without pulling 473.176473 milliliters of beer?
Peter Surda February 13, 2011 at 7:55 pm: Kid Salami,

I don’t get it. I’m not saying that you cannot formulate a consistent theory, let’s call it a theory of law, that contains IP, or is based on personality, or the assumption that it should encourage the division of labour. But where are those theories? Why aren’t the proponents thereof formulating them? And, what I really don’t understand, why are you trying to portray this as my fault? What have I to do with that?

Let me tell you a joke. A fire breaks out in a hotel and affects three rooms. In one of them, a “normal” guy is sleeping. The fire wakes him up, he takes a bucket and keeps it filling with water from the sink and spilling it over the fire. Eventually, he extinguishes the fire and goes back to sleep. In a second room, a physicist is sleeping. He wakes up and realises there is fire. He sits down behind the table, makes some calculations on paper, then fills a bucket and with one swoosh extinguishes the whole fire and goes to sleep too. In the third room, a mathematician is sleeping. The fire wakes him up too. Just like the physicist, he sits down behind the table and makes calculations. After a while, he finishes, proclaims “The problem has a solution” and goes back to sleep.

The mathematician might have been right, but we’ll never know, because he did not explain his position and the paper burned down and so did he.
Wildberry February 13, 2011 at 8:29 pm: Peter,
You say nothing and add nothing.

As to your question about beer, let me share something new I learned.

Meh.
The Kid Salami February 14, 2011 at 4:39 am: Like I say, you (and Jay) rule out arguments with statements that assume your conclusion. Couple of random quotes from each of you, on this page alone:

Jay
“The libertarian position can be summed up as: all actions are legal so long as no property rights violations occur. Does “copying” violate property rights? No. Therefore copying should be legal. End of story. There is no more to discuss. Yes you hate copying. Too bad. I don’t like it when people pick their nose in front of me but you don’t see me making arguments to make nose-picking illegal. It’s absurd. Just like your no-copying arguments. Get over it. Move on.”

“4. If two or more humans exist, then a natural conflict arises due to the fact that it is physically impossible for more than one person to alter the integrity or momentum of anything tangible at the same time.
5. Therefore, a system of “rights” must emerge determining which humans can and cannot perform actions that alter tangible materials.”

Peter

“Did you address my claim that IP cannot do anything else than redistribute physical goods? No.”

“Copyright prevents the use of physical property, e.g. ink, paper, computers, printers, monitors, and most importantly, brains, by their owners.”

******
I regard your two statements, for example, as essentially true though I might word them differently. You regard them as arguments to stop Wildberry in his tracks – they are only this if you assume what I, for one, don’t agree with ie. one only need consider the Rothbard/Kinsella NAP when discussing rights. Am I wrong? How can I interprent these statements without this?
The Kid Salami February 14, 2011 at 6:24 am: My objection is in fact perfectly described by Frank Van Dun:

“To be sure, one may posit non-aggression as the axiom of a liber-
tarian legal code. However, one can hardly maintain without further
argumentation that no legal code can be libertarian if it does not start
from that proposition. At any rate, I have yet to see a convincing proof
that non-aggression is the only axiom that yields a coherent conception
of justice. Besides, I have reasons—not just hunches—for believing
that we shall never get such a proof. There is no inconsistency in the
belief that force may be used lawfully in defence against unlawful acts
that are not physical invasions of person or property. Yet Block and
Kinsella proceed with their arguments on the supposition that such
acts are not unlawful because they are not aggressions. Accordingly,
they also suppose that the use of force in retaliation against such acts
must itself be an aggression, and therefore unlawful. In their system of
thought, the dichotomy of aggression and non-aggression coincides
with the logical opposition between unlawful and lawful acts.”
Peter Surda February 14, 2011 at 7:25 am: Kid Salami,

I regard your two statements, for example, as essentially true though I might word them differently.

Well, that’s why I don’t understand the purpose of your posts.

You regard them as arguments to stop Wildberry in his tracks – they are only this if you assume what I, for one, don’t agree with ie. one only need consider the Rothbard/Kinsella NAP when discussing rights. Am I wrong? How can I interprent these statements without this?

Even if the theory in Wildberry’s head was correct, he uses invalid logic to address my arguments, and he does not formulate his own position with sufficient clarity.

He could say, for example, that my argument is irrelevant for his theory, because at least sometimes, the damage to physical integrity of objects is irrelevant to determine whether “injury” occurred, and exactly those cases are covered by IP (or “economic rights” or whatever) instead. That’s fairly trivial and if he actually had a theory, it would be the obvious first step.

But no, he says it’s incorrect because my theory of rights leaves some areas uncovered. That’s plainly false.
Peter Surda February 14, 2011 at 8:04 am: Kid Salami,

I think I already mentioned I consider myself a falsificationist. So, for me, there is no such thing as a positive proof. You cannot prove, you can only disprove. So at least from this perspective, I can agree with the objection presented by van Dun.

However, unmentioned in the quote is something else. Let’s make the assumption that NAP was insufficient. However, because the Rothbard/Kinsella theory already covers everything, this would logically mean that if you construct a theory that contains rights other than physical property rights, these things need to violate the NAP. That’s all.

People who advocate things like this are typically very uncomfortable with admitting that they want to violate NAP. They will squirm to avoid confronting this. Now, I am not familiar with van Dun in detail. I have read some of his papers but I certainly am not expert on it. He could quite well understand this and address it elsewhere.

I would also understand if someone said that a good society requires more than the NAP. For example, that people need to treasure freedom and avoid self-damaging lifestyles. But that’s not the issue at hand. From the perspective of rights, the question would be whether violating the NAP is either necessary or sufficient to have this effect. It’s a completely separate issue.

nate-m February 11, 2011 at 2:42 am

A single person can interact with his own process of cognition, which is a precursor to what may later become intellectual property. I suppose my act of cognition results in some physical interaction with neurochemicals and burns some calories, neither of which are tangible phenomena to human sensory organs. So what?

meh

Intellectual Property rights, as I’ve explained to you countless times, deals with economic rights, which implies another human being and the concepts of communication and understanding, which again, if you want to argue are physical, they are intangible in the absence of a tangible medium of fixation.

The problem is that ‘Intellectual Property rights’ are manifested in copyright law and patent law which absolutely control what people can do with their own private property.

If you want to argue that people _should_ have some sort of rights regarding pure intellectual activities I suppose you could do that, but your going to have a very hard time figuring out how to actually implement such a beast without invoking the need for the applied government violence and infringements on the individual private property rights.

It’s very easy to go off into lala land about intellectual rights and properties, but when it comes to a actual practical realization of such concepts it’s all ends up really quite horrible and limiting.

IP law in it’s current form does nothing to protect ‘Property of the Intellect’ or promote anything. It’s just draconian and the negative effects of the laws are being amplified by changing technology and human societal evolution. They are misbegotten and ill advised laws in their own age, but as time progresses they are rapidly getting worse and worse with the negative effects they are having on innovation and individual Liberty in the developing world.

To put it another way:
Whatever your arguing about intellectual property has nothing to do with copyrights or patents.

Wildberry February 11, 2011 at 10:46 am

Nate-m

“meh”

My sentiments exactly.

“The problem is that ‘Intellectual Property rights’ are manifested in copyright law and patent law which absolutely control what people can do with their own private property.”

There is no “absolute control”, at least in copyright law. As SK likes to point out, actions with property are limited, not property. Therefore you can do whatever you want with your paper, ink and scanner, as long as you refrain from infringing upon someone else’s intellectual property rights for the term of their limited rights. It is a simple case of limiting your rights to engage in economic activity with someone else’s property, which you would support in any other context, I presume.

“If you want to argue that people _should_ have some sort of rights regarding pure intellectual activities”

Neither I nor copyright laws, for example, seek to create rights in “pure intellectual activities”. The subject is “original works or authorship”. So start your argument from a fair reading of the law’s purpose.

“Whatever your arguing about intellectual property has nothing to do with copyrights or patents.”

If you mean my interactions with Peter Surda, I think you are correct.

Peter Surda February 11, 2011 at 11:18 am: Wildberry,

There is no “absolute control”…

But elsewhere you say:

Property rights define the exclusivity of the proprietor’s claim to the legal use and disposition of a thing.

How can property be both exclusive and not provide absolute control at the same time?

Therefore you can do whatever you want with your paper, ink and scanner, as long as you refrain from infringing upon someone else’s intellectual property rights for the term of their limited rights.

You omit an important point. If a system does not cover 100% of everything, then there are at least some uses of goods which do not result in a legal limitation. The existence of such actions is a proof that the system does not cover 100% of everything. If, for example, apples were not covered by property rights, the action of eating an apple that someone has on a tree would be uncovered by property rights. Furthermore, there would still be the empirical problem of the impossibility of two people consuming the apple simultaneously (mutually exclusive options), so the legal system would be suboptimal.

However, in a system without IP there are no such actions. There is no action that involves IP but is uncovered by legal rights in physical goods. Also, there is no empirical problem of mutual exclusivity. Copying does not prevent other actions you can do with the “IP”. It only changes the value of the goods the author offers and changes the likelyhood of various interactions that third parties might have with you. But almost anything changes the value of the goods other people sell or the likelihood of interactions with third parties. Which of those are then “injurious” and which not? IP proponents do not explain that.

The concept of mutual exclusivity (which is anoter way of phrasing scarce goods) is a very important one. Without mutually exclusive states, there can’t be an identity. There is no conceptual difference between saying that selling copies requires the approval of the author and saying that any other characteristic of good requires approval of a third party.
nate-m February 11, 2011 at 5:44 pm: There is no “absolute control”, at least in copyright law.

What I meant was that there is absolutely no way you can avoid infringing on my rights to do what I want with my own property.

As SK likes to point out, actions with property are limited, not property.

That is a false distinction. My ability to own property and the liberty I have with the property is one and the same. Controlling my actions on what I can do with the property IS a violation of my private property rights.

Therefore you can do whatever you want with your paper, ink and scanner, as long as you refrain from infringing upon someone else’s intellectual property rights for the term of their limited rights. It is a simple case of limiting your rights to engage in economic activity with someone else’s property, which you would support in any other context, I presume.

Intellect is a property of thought and such things have no physical manifestation. They exist on a plane of reality that is separate and distinct from the physical world. If I copy a idea from you it does not infringe on your ability to use that idea or benefit from your actions in any feasible way. Copying ideas denies nothing to anybody.

Copyrights and Patents only apply restrictions to items that exist in the physical world. This is how they work, their function, their reality. You can argue that ‘oh they only restriction what you can do with another person’s intellect, economically’, but they very plainly do not do that. There is no way that they can do that.

james b. longacre February 14, 2011 at 10:53 pm

which absolutely control what people can do with their own private property……

do contracts do the same thing??

“Whatever your arguing about intellectual property has nothing to do with copyrights or patents.”

the constitution says to ‘secure’ writings and discoveries….if copyright and patents are that effort of securing it seems like they have everything to do with intellectual property.

what does secure mean??

Peter Surda February 11, 2011 at 7:36 am

Well, based on the feedback I get, the ones that have problem following my arguments are those that live in a fairy-IP-land. I rephrased my arguments in many ways, and approached them from various angles, arriving at the same conclusion of self-contradiction. I have formulated very careful falsifiable arguments to offer my opponents. Do you tackle them? No.

Stephan Kinsella February 10, 2011 at 8:50 pm

tl;dr

Wildberry February 11, 2011 at 10:59 am: meh

REPLY

Shay February 11, 2011 at 12:50 pm

“And should this be any surprise? “Copyright is rooted in censorship”

Censorship is a prohibition on expression, and is a Free Speech issue. It is the public domain aspect of the public/private property dichotomy. You only bring censorship into the argument because you know nearly everyone opposes censorship. That copyright has nothing to do with censorship does not bother you, because it is not important WHY libertarians are opposed to IP, as long as they can be counted in your camp.

Censorship is about exerting control over what others can publish, because it benefits the censor in some way. Copyright is about exerting control over what others can publish, because it benefits the copyright holder in some way.

Wildberry February 11, 2011 at 4:02 pm

Shay, February 11, 2011 at 12:50 pm

“Censorship is about exerting control over what others can publish, because it benefits the censor in some way.”

Yes, that is why under the constitution it is prohibited in all but the most extreme cases; i.e. shouting “fire!” in a crowded theatre.

“Copyright is about exerting control over what others can publish, because it benefits the copyright holder in some way.”

This is true, but why is it “bad”?

You are incorrect in your analogy that censorship is equivalent to copyright protection. Copyrights assign limited economic rights to the author of an original work. Expressions in all but the very restricted act of copying are explicitly allowed and protected by the individual rights of free speech. IP law has as one of its primary objectives protecting information in the public domain. Fair use is an integral part of copyright law.

So how is preventing one from violating the economic rights of another censorship?

Peter Surda February 11, 2011 at 4:57 pm

Wildberry,

Yes, that is why under the constitution it is prohibited in all but the most extreme cases; i.e. shouting “fire!” in a crowded theatre.

I was not aware that constitution prohibits shouting fire in a crowded theatre. But you are still wrong. Since it is impossible to shout fire in a crowded theatre without being in the theatre, if you are doing this, you are either trespassing or, if that goes against the wishes of the owner of the theatre, violating a contract. Furthermore, it is possible to have a theatre that specialises for masochists and sadists and allows them to shout fire. If a government forbids this, they would need to violate their rights. Walter Block writes very good stuff like this (reductio ad absurdum).

This is true, but why is it “bad”?

Why is it “good”? That’s not the argument. The argument is that it’s a self-contradictory position.

Copyrights assign limited economic rights to the author of an original work.

Gobbledygook. You’re trying to mask that you are talking about causality. If X performs an action A, and Y performs an action B causally related to A, does that mean that Y is violating X’s rights? That’s the essence of your claim.

So how is preventing one from violating the economic rights of another censorship?

How is gobbledygook arguing?

Stephan Kinsella February 12, 2011 at 10:01 am

Plus, if there IS a fire, you should probably shout it.

Wildberry February 12, 2011 at 12:11 pm: Hah!

I agree. However, if there wasn’t and people were injured, could the shouter successfully defend on First Amendment grounds, counselor?
Peter Surda February 12, 2011 at 2:54 pm: Wildberry,

are you saying that unless government limits speech, cinema owners cannot make a contract with their customers to not yell fire in the cinema unless there is a fire? Are you serious?
nate-m February 13, 2011 at 7:27 am: > are you saying that unless government limits speech, cinema owners cannot make a contract with their customers to not yell fire in the cinema unless there is a fire? Are you serious?

This is highschool level BS that they teach kids during civics classes. Standard fair. I used to hear this all the time as did most people I knew since I heard it referenced many times during my time there.

It’s a bad way to try to explain how freedom of speech needs to be limited by government to keep us all safe.

Ironically I also worked at a movie theater. Quite a few years. People yelled all sorts of things. The one that came closest was when a man walked in with a gun in a shoulder holster. One of my fellow employees saw it and, being the asshole-moron he was, came tearing around the corner yelling “He’s got a gun!”. It was hilarious. Nobody freaked out, nobody got trampled to death. The two responses that the crowds gave were a combination of “WTF is wrong with him?” and “So?”. Most people didn’t notice and the ones that did didn’t care.

pro-IP-libertarian February 10, 2011 at 8:08 pm

Right – collective ownership of someone else’s labor (which is what anti-IP results in) is a much better way to “honor” property rights. What better way to promote “capitalism and the free market” than to take someone else’s property without paying for it and then use or even resell it as your own. (And possibly even claim some kind of moral superiority…)

Sorry I don’t have time for a long exchange on this, especially not until I’m in a situation where I am actually compensated for my work product. Just wanted to chime in to let you know the pro-IP libertarian view is still out here, underrepresented as we are.

Tcostel February 10, 2011 at 9:12 pm

I agree with you completely. Collective ownership of labor does not seem like free market capitalism to me. It falls almost more in the socialist camp where property belongs to everyone, no matter who created it.

Dan February 11, 2011 at 1:02 am: How do you own labor again?

REPLY

Peter Surda February 11, 2011 at 7:57 am

You have it reversed, pro-IP-libertarian. It is IP that is based on theft of other people’s property. If you disagree, please explain how any of the processes involving IP (creating, trading, copying) can be done without alteration of the physical. If it cannot and physical property is already covered by property rights, then IP needs to expropriate physical property.

Also, please explain what how one can own labour. Labour is an action, an alteration of the physical world. Same problem as in the previous paragraph: if physical property is already covered by physical property, how can the alteration of the physical be covered by other rights too?

I claim that it cannot. It’s a self-contradiciton, just like all the other explanations of IP.

pro-IP-libertarian February 11, 2011 at 1:39 pm

Peter-

I’ll make a quick response while I have a moment:

[It is IP that is based on theft of other people’s property. If you disagree, please explain how any of the processes involving IP (creating, trading, copying) can be done without alteration of the physical. If it cannot and physical property is already covered by property rights, then IP needs to expropriate physical property.]

Aspects of your line of argument actually support my case. In order for a creator to have their ownership of IP recognized they do have to carry out some physical manifestation that proves their mental work – drawings, patents, manuscripts, mailing writings to themselves, etc. So there is some minimum amount of physical labor to prove them mental labor has been carried out. Mental homesteading requires some physical component, just like physical homesteading.
And note again that your framing still equates duplication with creation, and they are not at all equivalent.

[Also, please explain what how one can own labour. Labour is an action, an alteration of the physical world. Same problem as in the previous paragraph: if physical property is already covered by physical property, how can the alteration of the physical be covered by other rights too?]

Perhaps that was a little sloppy, I was emphasizing the idea that anti-IP advocates collectivism. “Fruits of one’s labor” or maybe is a better expression. In any case anti-IP promotes collective ownership of valuable property created by individuals. (Property that does require physical labor to be recognized.)

J. Murray February 11, 2011 at 1:57 pm

“In order for a creator to have their ownership of IP recognized they do have to carry out some physical manifestation that proves their mental work – drawings, patents, manuscripts, mailing writings to themselves, etc.”

That doesn’t really answer the question. How is my manipulation of ink, paper, binding, and glue that I own actually alter, damage, or steal the ink, paper, binding, and glue of the original author? The author can still copy, produce, and offer for sale the work at any chosen price point and at no point is derived of the use or utility of the work in question. As no individual has any inherent right to engaging in an actual transaction at a specific price point, arguing that copying and selling a work can reduce the market price is not valid any more than an argument of opening a restaurant next door to an existing one can reduce the customer base of the original establishment is valid, even if they serve the exact same food.

The problem with the argument is that no one can put in a basket what IP is. They can show me ink, paper, photonic images being translated from a series of magnetic patterns on a disk, etc, but can’t actually show me, either directly or indirectly through technology and tools, that “intellectual property” actually exists and has the elements that identify it as property.

For IP to be legitimate property, the following has to be demonstrated:

1. It can be stolen. Stolen as such that the original author is rendered unable to use the property from that point forward until it is confiscated from the theif and returned.

2. Can be damaged or altered in such a way that it impairs the author’s intended use. Itended use such as the author is incapable of writing a science fiction story because a character or universe was altered irreprably by a perpetrator, not as in the author is going to be unable to sell the story for the desired price point.

3. When transferred or sold, the item can no longer be used by the original author in any shape, form, or fashion.

To make the concept of IP possible, it necessitates to not interfere with property rights of another. If an author for instance wants his IP returned to him, he will have to do so in a way that does not block an individual from manipulating paper, ink, binding, and glue in whatever manner of his chosing, block the transaction of the completed work, or alter the pattern of the ink on the pages.

If you can establish an IP system that avoids the problems mentioned in the prior paragraph and rationally answer the three questions above, it’ll be much easier to argue IP as being legitimate property.

pro-IP-libertarian February 11, 2011 at 4:32 pm

J. Murray-

[That doesn’t really answer the question. How is my manipulation of ink, paper, binding, and glue that I own actually alter, damage, or steal the ink, paper, binding, and glue of the original author?]

It doesn’t, really. Unless you insist on duplicating (note again – this isn’t creation, it’s based on the fruit of his labor) his work and selling it as your own. Then it interferes with his free market right to set a price for and sell his work.

[As no individual has any inherent right to engaging in an actual transaction at a specific price point, arguing that copying and selling a work can reduce the market price is not valid any more than an argument of opening a restaurant next door to an existing one can reduce the customer base of the original establishment is valid, even if they serve the exact same food.]

Actually, since your production is based on a physical manifestation of his work, it is more like you setting up a hot dog stand in the front lobby of his restaurant, which he does have a right to bar you from. You just have to move your production a little way down the mental street, and of course do creation of your own. (Or use creations that were bought or donated from someone else or in the public domain.) Note this isn’t a monopoly – you are free to create your own competing products, you just can’t block the entrance to his restaurant with your hot dog stand.

Basically, see Rothbard on copyright. Don’t completely agree with him on patents, but I’m not going to get into that here. And any gaps about found works and third parties can be filled with a clause that states found or gifted copies can only be used or sold, not duplicated for resale.

As far as your three points, here’s a quick take:

[1. It can be stolen. Stolen as such that the original author is rendered unable to use the property from that point forward until it is confiscated from the theif and returned.]

Not at all, we recognize all kinds of property torts or offenses that rely on someone interfering with another’s ability to use or market property – both real property and objects – that fall short of or are different from theft. Trespassing, tortious interference, conversion, libel, slander, defamation, fraud, etc.

[2. Can be damaged or altered in such a way that it impairs the author’s intended use. Itended use such as the author is incapable of writing a science fiction story because a character or universe was altered irreprably by a perpetrator, not as in the author is going to be unable to sell the story for the desired price point.]

Similar point as above. We do recognize economic torts of this nature with property.

[3. When transferred or sold, the item can no longer be used by the original author in any shape, form, or fashion.]

Unnecessary. Note that many of the economic torts above do not require that the property be destroyed, made physically inaccessible, be in another’s possession permanently, be fully depleted, etc.

Peter Surda February 11, 2011 at 5:21 pm: pro-IP-libertarian,

Unless you insist on duplicating (note again – this isn’t creation, it’s based on the fruit of his labor) his work and selling it as your own. Then it interferes with his free market right to set a price for and sell his work.

So, one has a right to prevent others acting in a way that is causally related to his acts?

his work.
Metaphor. Goods causally related to goods you produce are not “your work”.

And any gaps about found works and third parties can be filled with a clause that states found or gifted copies can only be used or sold, not duplicated for resale.

This still only can bind people who agree to such contracts, but not third parties.

Trespassing, tortious interference, conversion, libel, slander, defamation, fraud, etc.

So, if I change someone’s opinion about you, that violates your rights?

Wildberry February 11, 2011 at 4:36 pm

J.M,
“How is my manipulation of ink, paper, binding, and glue that I own actually alter, damage, or steal the ink, paper, binding, and glue of the original author?”

Does this really address the issue at hand? Let me ask you this: Do you think that a book with blank pages is the same economic good as a book with a novel fixed upon it?

To put it another way, why would you want to manipulate your own paper and ink in a way that would otherwise infringe on a protected work, if that work was really nothing more that blank pages? If they are not equivalent (blank pages/novel), then what’s the difference?

That difference is IP.

Peter Surda February 11, 2011 at 5:34 pm: Wildberry,

Do you think that a book with blank pages is the same economic good as a book with a novel fixed upon it?

Do you think that altering the integrity of your property gives you the right to prevent other people from altering the integrity of their property?

why would you want to manipulate your own paper and ink in a way that would otherwise infringe on a protected work, if that work was really nothing more that blank pages?

What does this have to do with the problem? Nothing. It does not explain why such an act violates author’s rights. It just explains the author might not like it. I already told you that not liking something does not necessarily mean there was a violation of rights involved.

If they are not equivalent (blank pages/novel), then what’s the difference?

The question is not whether there is a difference, but whether there is other difference than the physical one.

<blockquote.That difference is IP.
That’s just an interpretation of the physical difference. It’s not a separate phenomenon. Just like swinging a flyswatter and killing a fly refer to the same phenomenon, interpreted differently based on which description is more useful to you at that time. Just like the executioner executing a person, and the state killing the person are the same phenomenon. I already challenged you to disprove this, but you do not even address it.
Wildberry February 13, 2011 at 7:19 pm: Peter,
One more futile shot.

I said: “Do you think that a book with blank pages is the same economic good as a book with a novel fixed upon it?”

You answer by asking:

“Do you think that altering the integrity of your property gives you the right to prevent other people from altering the integrity of their property?”

Have you ever tried to directly answer the question I ask?

Anyway, yes, I do. I am presuming you are asking if property rights have any limits, and you think they do not. And by “altering the integrity” you mean copying the protected works of another. Now that I’ve made my understanding clear so you can interpret my response, I’m sure you will deny the simple meaning of these words, as is your style.

“What does this have to do with the problem? Nothing.”

Are you sure? You believe you have an absolute right to use tangible goods in your possession however you wish. Such an absolute right would mean that if you own a baseball bat, you can use it however you wish, but you don’t really mean that.

You want to raise the non-aggression principle at this point to explain how your actions are limited, even with your own property? Well, that leads us back to the central issue of whether rights in IP exist. If they do, then to violate them would be aggression. This is what I hold. You do not, yet you can’t seem to explain why this is unless you revert back to your belief that intangible property and tangible property are a contradiction of terms, while others at this point revert to the Rothbard/Kinsella homesteading principle, both of which assume their conclusions.

“The question is not whether there is a difference, but whether there is other difference than the physical one.”

Again, I asked a simple question and you ignored it. This is a bad habit of yours and conveys the idea that you are the only one allowed to ask questions. I object.

To make matters worse, I can’t understand what you mean by “other difference than the physical one”. I would answer yes, there is a difference between a book with blank pages and one with a novel inscribed, but I don’t have clue if that is what you want to know.

“That’s just an interpretation of the physical difference.”

And so you grand conclusion is what? That an interpretation of something is meaningless? My interpretation of what a book intends to convey is not meaningless. Why is that?

“It’s not a separate phenomenon. Just like swinging a flyswatter and killing a fly refer to the same phenomenon, interpreted differently based on which description is more useful to you at that time. Just like the executioner executing a person, and the state killing the person are the same phenomenon. I already challenged you to disprove this, but you do not even address it.”

This entire line of reasoning is nonsense, as any rational person can plainly see.

Swinging a fly swatter does not always result in the killing of a fly. Every fly that dies does not do so at the hand of a fly swatter. They are only causally connected if IN FACT the swinging is the CAUSE of death.

And lest you now move on to your “causality stretches to infinity” cliche, let me remind you of the doctrine of proximate cause. It is not relevant that an act which causes an effect may reverberate forever. What is relevant is whether a certain act is the proximate cause of a specific event. In your example, if the fly swatter causes the death of the fly, it is the proximate cause of that death. The fact that a butterfly in Brazil somehow caused the fly to be in that particular spot at that particular time is irrelevant.

Get it?
Peter Surda February 13, 2011 at 8:44 pm: Wildberry,

Have you ever tried to directly answer the question I ask?

I thought I did, but just in case I didn’t, my answer is that you have not defined what “economic good” is. So, I cannot answer whether it’s the same economic good or not. Besides, what does it have to do with my objection? If A and B are different “economic goods”, why should that mean that they can be covered by different rights? That’s a non-sequitur.

I am presuming you are asking if property rights have any limits, and you think they do not.

No, I don’t think that. Again, “limit” is a vague word. I already explained my position by the three different types of evaluations in any given system. You did not address that.

You believe you have an absolute right to use tangible goods in your possession however you wish.

Where did I say that? I certainly don’t believe that. Besides, the problem is not in “beliefs”, it’s in logic.

If they do, then to violate them would be aggression.

If the constitution of the soviet union guarantees the communist party absolute power over the political spectrum, then violating it would also be, within that context, aggression.

Again, I asked a simple question and you ignored it.

I must have missed that. Maybe I was a bit impatient, waiting for you to answer all the questions I posed.

I can’t understand what you mean by “other difference than the physical one”.

Since the physical differences are covered already by physical property rights, and you think that’s not enough, then logically there needs to be another difference.

I would answer yes, there is a difference between a book with blank pages and one with a novel inscribed

So, there is no physical difference between a book with blank pages and one where pages are covered with ink?

And so you grand conclusion is what? That an interpretation of something is meaningless?

No. That’s not my conclusion. Let’s rephrase this into set theory. We have some elements and want to create two sets (A and B) out of them. I have challenged my opponents to show elements which are in set B, but not in set A. They did not do that. So I form the hypothesis that the set A already contains all elements. Then logically the the set B must be a subset of the first one. The sets cannot be disjunct. However, the IP theories presented to me are based on the assumption that the sets are disjunct. So, the theories are self-contradictory. A simple way to disprove my theory is to show an element that is in set B but not in set A, in other words, an action that does not involve alteration of the physical world.

Swinging a fly swatter does not always result in the killing of a fly.

I don’t claim that. I was merely showing an example of one phenomenon having two different interpretations.

They are only causally connected if IN FACT the swinging is the CAUSE of death.

That depends on how you scope each of the phenomena. Admittedly, this example is vague. But I suspect you got my point. The example with a pint versus 473.176473 milliliters is better.

let me remind you of the doctrine of proximate cause

I’ll overlook that it is another deus ex machina and vague. The explanation is still insufficient to support your position. There are tons of examples of proximite causes which still do not result in a legal claim. My favourite is if you find out as a consequence of an illegal act you did not participate in (e.g. a burglar who happened to see them tells you) that your wife is cheating on you, whereupon you decide you to want to divorce her and her friends decide to leave her too. You can’t say that that’s not a proximite cause. However, should anyone do that, that would be benefiting without her permission. So, according to your logic, friends must continue liking her and you must not leave her.

Of course, I formulated the whole problem in abstract terms, the X doing action A and Y doing causally related action B and X not liking it. Did you address this? No.

Wildberry February 11, 2011 at 4:17 pm

Pro-IP,

Well put. Thank you.

matt470 February 11, 2011 at 10:08 pm

Okay Wildberry and other IP proponents… if we were to accept that copyright is a valid property right, why should it only exist for 10 years, 75 years or 99 years or whatever before expiring?

Most IP proponents I’ve heard certainly do not suggest that IP “rights” such as copyright should last indefinitely (until exchanged by the owner or the owner’s heirs) yet none of you seem to have a problem with that being the case for tangible (real) property rights.

You may argue this is more a technical issue regarding application and scope (which it is) but I think it helps demonstrate the arbitrary nature of this claimed “property” of an intellectual nature (IP). Clearly IP cannot be alienated from physical property and as Stephen Kinsella and Peter Sudra have I think clearly pointed out… protecting/enforcing IP laws necessarily infringes on existent private property laws.

Another demonstration of IP arbitrariness is how different does my work have to be from an original authorship to then mean I’ve stolen it? What about if I write a novel set in middle earth (ie. as in The Lord of the Rings) or I write a novel about a character (who happens to be called Bilbo Baggins) located in modern day Lithuania? Surely this wouldn’t be “duplication” but yet wouldn’t I still be considered as having stolen the ideas of another or the fruits of their labor?

Maybe IP proponents could suggest a complex algorith depending on the number of words/concepts/characters that have a percentage of similarity and then decide the number of years that others are prevented from expressing those ideas based on that coefficient (reductio ad absurdum).

The case for the IP proponent is dependent on the principle of protecting ideas yet it’s only the manifestation of those ideas that they care about because that’s wherein the monopoly benefit lies.

Stranger February 11, 2011 at 11:03 pm: Your question is fallacy 5. You then invoke a variant of fallacy 13.
matt470 February 12, 2011 at 1:49 am: @ Stranger

Your question is fallacy 5. You then invoke a variant of fallacy 13.

Interesting…. for a minute there I thought I must have committed a logical fallacy, that is until I clicked on your link and realised I’ve only committed a fallacy of your flawed normative suggestion that … oh of course, the length of copyright protection should be entirely at the discretion of the copyright holder when we are trying to establish whether such a copy right should exist in the first place.

“Fallacy 5″ is the one that is logically flawed as it begs the question. It assumes what it is trying to prove… ie. that because the state claims it has the right to transgress real (tangible) property rights (eg. in confiscating the estates of the deceased) then it must have the right to do so again in the name of IP.

Your suggestion that I’ve invoked a variant of your “fallacy 13″ is ridiculous. Re-read my post if you’re serious about your criticism because nowhere in it have I suggested that the hypothetical use of Bilbo Baggins or Middle Earth were miraculously reached independently. In fact the intention of my argument was to show the reverse… that it is impossible to draw the line other than in some completely arbitrary manner between how large and all-encompassing can concepts/ideas/characters be in preventing others from using them. Can the concept of a fantasy novel with a ring that has addictive and corrupting powers be used? Please clearly layout a framework for deciding exactly where the line should be drawn in answer to this comment.

Perhaps have another go at actually addressing the points I raised and this time you may even like to try and formulate your own argument?
Wildberry February 12, 2011 at 12:02 pm: Matt470

“if we were to accept that copyright is a valid property right, why should it only exist for 10 years, 75 years or 99 years or whatever before expiring?”

Thank you for bringing something fresh to the discussion.

Copyrights are a limited, exclusive economic right. The limited has two aspects (at least); one is scope and the other is time.

The time is arbitrary, other than it is specifically not perpetual, but then few rights are. That doesn’t mean there is no rational basis for a limited term. Limitations are typically tied to the lifetime of the holder.

In other areas besides IP, like leases and bequests, you can assert your property rights after your death.

One justification for the current time (life+70 years) is that it is commensurate with other precedents, as in the examples above, the 99 year lease and the rule against perpetuities, which limits how many generations you can control your property rights by will, which is also theoretically more than 100 years.

I personally think this is a weakness in the copyright system, and the trend of increasing the terms reflect a bias in the legislative process in favor of the well-organized special interests who have something specific to gain, over the public interests, which are diverse and may not feel the impacts until long after the legislative decision is made.

Because IP rights are economic rights, I tend to favor tying the term to economic events. I’m sure this would have other consequences that would have to be analyzed, but it seems rational to say that the term should be connected to the economics of the work.

For example, most of the sales in a book are in the first 20 years of so, so the justification for extending terms beyond that of economic activity seems to work against the competing policy of IP laws to protect the public domain.

“Another demonstration of IP arbitrariness is how different does my work have to be from an original authorship to then mean I’ve stolen it?”

You are asking a good question, but I have to ask how serious you are about an answer?

Whereas there is some arbitrariness in all laws (i.e. when does homicide become self-defense or voluntary manslaughter), that is not the same as irrational. If you were really interested, I would refer you to the law, which defines the standards for “substantial similarity”. Although you will not be satisfied if you will only accept a bright line that distinguishes all possible fact patterns, it is far from “arbitrary” in the sense that I presume you mean it, i.e. “having no rational basis”.
Peter Surda February 12, 2011 at 2:52 pm: Wildberry,

Copyrights are a limited, exclusive economic right.

You said elsewhere that rights cannot be absolute. I already complained about this, but you do not respond.

Because IP rights are economic rights…

What are “economic rights”? I also complained about this.

Just like Jay said, you are either dumb or dishonest. I already scrapped the hypothesis that you are much smarter than me. There is simply no evidence for that one.
matt470 February 12, 2011 at 9:37 pm: @ Wildberry.
Thanks for addressing the specifics of my comment.

My point about the arbitrariness of the scope and length of protection is not my key issue with IP but I still think it’s an interesting one so lets continue to thrash it out.

You say that “copyrights are a limited, exclusive economic right” but I’m interested in why they should be limited?

The time is arbitrary, other than it is specifically not perpetual, but then few rights are.

Every libertarian I know (pro or anti IP) would strongly advocate that tangible property titles are perpetual (provided there is a verifiable link to an heir) yet you’re claiming that it is rationally different with IP. Again, why?

I agree arbitrariness does not necessarily imply irrationality but I think your homicide example is far less arbitrary and far more rational than trying to balance out everyone’s interests/rights in copyright scope and length discussions. If a person takes someone else’s life then a rational starting point to determine whether or not it was self defence or voluntary manslaughter would depend on whether their life was truly threatened by the initiating incident and most people would probably independently come to a similar conclusion (ie. was an aggressor armed with a firearm or a broomstick?).

If you were really interested, I would refer you to the law, which defines the standards for “substantial similarity”.

No need because I freely acknowledge that there already exists a copyright code but one of things I’ve picked up from Stephen Kinsella’s work (among some others also) is that this law requires an army of lawyers and bureaucrats in its application. In fact even significant resources are spent in asserting or staving off threats of court action in areas of IP because of it’s lack of clear rationale behind its operation (ie. its arbitrariness).

Whenever this type of complexity of law arises then I think we need to ask why is it so necessarily complex and understand that perhaps the flaws lie within the principle behind the law rather than it’s current interpretation/enforcement? In this case is the principle that someone can have an “exclusive economic right”, (ie. be justified to use force against someone over a transgression of this “right”) in a concept or idea when they’re not scarce in nature (they’re non-rival and non-consumable goods)? My answer remains no.

It is firmly my opinion that it is not ethical to use force against someone who produces something of “substantial similarity” to something of someone elses (provided they weren’t party to a contract preventing them from doing so).
J. Murray February 12, 2011 at 10:25 pm: The arbitrary limitation and subjectivity as to where an IP ceases being IP and becomes, something else I guess, are part of the core of the problem of IP. Objectivity is necessary to establish a concept of ownership. The moment a gray area becomes involved, the argument if thoughts and ideas being property begins to break down.

Take the Lord of the Rings example. Bilbo Baggins is fairly clear in the IP side, but anything beyond that starts to break down. Where is the IP line drawn? Is it at Hobbit? Is there an extension of this property to short people with hairy feet by a different name? Or on short people in general? Or enchanted jewelry? Or guys with long beards that practice magical arts? The varying lines can be drawn by different individuals with differing opinions. By this and this alone IP can’t be actual property because there lacks an objective standard to compare it against.

Even when moving into more broader concepts that could be argued to be “public domain”, like the word Lord or the idea of the Orc, both existed at some indeterminate point in the past without any idea of who came up with those words or ideas in the first place. This is where it becomes interesting. Tangible property that has no identifiable owner can be homesteaded and claimed on a first come, first serve basis. Since this works with tangible property, it MUST be allowable for this notion of intellectual property. The rules for the tangible and the “intellectual” must follow the same rules, to the letter. As such, I should be able to lay a homestead claim on the word “the”, which is the most commonly used word in the English language. Since no one currently has an outstanding ownership of this word, I should then be able to copyright it and demand royalties for each of its uses. Certainly, I could go down the list of the 100 most common words and just homestead the whole lot of them and demand royalty payments from anyone that uses the language for any reason, and demand use of government force to shut down any writings, speech, film, or inventions that use or are described by any of the words on that list. Half of the entire printed literature in the English language use those words, meaning I would be owed 50% royalties on each and everything ever done that is printed or spoken. And certainly the IP proponent cannot argue with me as I’m using a well established property rights rule – homesteading and the non-existence of public ownership. The only way to counter my argument is to return to the fact that ideas are not tangible and therefore cannot be property. Otherwise they would be necessitated to live out life unable to communicate without fully inventing a new language (because I would make it a point to copyright the most common words in every language known), which they would have to implicitly give away for free because of their own copyright on that language being created, which can easily be overturned through inheritance as the descendant may dislike how I’m enjoying massive profits on each and every utterance of the words I copyrighted and will do the same. On a purely utility level, I’ve just given the IP supporter the ultimate checkmate, leaving one and only one avenue of argument, which just leads to a new checkmate position – claiming existing words cannot be homesteaded and copyrighted, thus arguing that concepts, words, and ideas aren’t really property at all, nullifying the concept of IP.

Tangible property rights are perpetual as long as the ownership ties can be proven. Because of this, the concept of expiring rights is ridiculous. IP proponents are required to support indefinite IP rights. By introducing the subjectivity, the IP proponent admits that IP cannot be property at all. Property is clearly defined and cannot be opined as something else by the viewer. Either IP is perpetual, thus ensuring permanent monopoly privilege over all concepts, ideas, and inventions, or there’s some thus undiscovered objective standard by which to apply IP ownership limits (objectivity is not the same thing as consensus, consensus is just a majority of individuals holding the same subjective view).

This is the ultimate failure of IP – it cannot operate in tandem and consistently with tangible property rights. The rules are universal and unbreakable. The moment exceptions are rationalized, the rationalizer just failed in the debate. If we apply IP consistently with tangible property rights, all of human civilization will grind to a complete halt. And since no objective standards exist to ignore portions of tangible property rights, it’s an all or nothing affair.

Either IP operates on all the same rules as tangible property without exception or IP isn’t property and the debate ends.
Wildberry February 13, 2011 at 3:52 pm: Matt470,

Courteous, rational discourse can be fun. Let’s try to make it last.

“You say that “copyrights are a limited, exclusive economic right” but I’m interested in why they should be limited?”

Because the objectives of copyright law are competing between two public policy objectives: 1) To encourage authors by granting exclusive economic rights to their works, and 2) to provide for the maximum public access to the works, by providing that if a author publishes, he doesn’t lose his economic rights, and thus encourages publication, and information in the public domain, including copyrighted works which have expired, remain there. For example you can’t get a copyright on something that is already in the public domain, even if it was once protected by copyright.

So they should be limited because they are an economic right, and if they never expired, then eventually less information would be available in the public domain, because it never reverts to public domain. As a result, part of the public policy #2 above is to make sure that all protected works eventually find their way to the public domain. This is true also for patents.

“Every libertarian I know (pro or anti IP) would strongly advocate that tangible property titles are perpetual (provided there is a verifiable link to an heir) yet you’re claiming that it is rationally different with IP. Again, why?”

What you are saying is not actually true. There is not a perpetual right to control alienability of property. That means that when you own something, as long as you are alive, you own it 100%. But that ownership doesn’t last forever. Eventually you die, so ownership must pass to someone. So, the ownership rights of the original owner are not perpetual.

The owner can devise his property to his heirs by will. But there is a limit there too. It is called the rule against perpetuities, and it limits how many generations in the future you can control in your will. It is measured by some life in existence when you die, so it has a limit, which works out to around 100 years.

So actually, IP is not different. Like all property ownership, there are limits. This is because it would not be a good public policy for a person who lived 1000 years ago to still be determining how property is passed down from generation to generation, because otherwise only our ancestors would be free to buy and sell property as they chose, and when you transferred property to a heir, you could make them do what you wanted forever, generation after generation. It is rational to expect this “invisible hand” to die at some point in the future. That is the way IP works also.

“I agree arbitrariness does not necessarily imply irrationality but I think your homicide example is far less arbitrary and far more rational than trying to balance out everyone’s interests/rights in copyright scope and length discussions. “

Maybe, but don’t think homicide is easy. You can always come up with some particular facts which make the rules hard to apply. Just look at how successful the creative writers of Law and Order remain. They keep coming up with new, weird fact patterns that don’t fit into the norm that easily. Actual case law is filled with marginal situations.

“this law requires an army of lawyers and bureaucrats in its application.”

SK overstates the case. At least in copyright, I think many more lawsuits are avoided by having an understandable rule of law, than would be the case otherwise. Also, he uses the most extreme examples, his “parade of horrors”, and often misstates what the law actually does or how it operates. This can be misleading for someone that doesn’t know the law at all. He often gets away with it on this site, because few actually take the time to read the law and see what he’s doing. You would fall into that camp, no offense. If you don’t understand the legal application of “substantial similarity”, it is unfair to argue that it is simply arbitrary.

The fact that we are too litigious is not very controversial. Of course the more important issue is whether the fundamental justification of a given law is legitimate. That is what we are debating here. To put it another way, even if it takes a team of lawyers and courts, as long as what is at stake is worthwhile for the parties in court, who are we to complain?

I might have a complaint about the cost being too high, such that someone who has a claim does not use the courts because it is too expensive, but that’s no different than the situation that I can’t take everyone to court who cuts me off on the highway, even though what they did was a violation of the vehicle code. There seems to be a threshold you have to reach before it is worthwhile.

“In fact even significant resources are spent in asserting or staving off threats of court action in areas of IP because of it’s lack of clear rationale behind its operation (ie. its arbitrariness).”

I disagree. First, this is truer in technology patents and software copyrights, which are testing the limits of existing rules in new ways. One function of the court action is to refine the rules to accommodate new technologies and the special problems they raise.

Second, why do you say they lack “a clear rationale behind its operation”? With all due respect, you are simply repeating something SK has often said. Once you actually understand the rationale and apply it to the challenging facts of new technologies, you can see why it is not easy. On the other hand, once a new technology becomes well handled by new case law, the number of lawsuits goes down. There are very few straight copyright infringement cases being tried today because the likely outcome is well settled.

“Whenever this type of complexity of law arises then I think we need to ask why is it so necessarily complex and understand that perhaps the flaws lie within the principle behind the law rather than its current interpretation/enforcement? “

I think this always the case. Sometimes laws get complex for the wrong reasons. Take the tax code. That is BS. But does saying that mean that the entire CONCEPT of taxation is bogus? SK would say yes, because taxes are theft and government is the thief, and ancap philosophy, la-de-da. I say no for other reasons. That doesn’t make my position irrational or arbitrary.

“In this case is the principle that someone can have an “exclusive economic right”, (ie. be justified to use force against someone over a transgression of this “right”) in a concept or idea when they’re not scarce in nature (they’re non-rival and non-consumable goods)? My answer remains no.”

Yes, I know. But you accept the Rothbardian/Kinsella principles of property rights as an axiom. This “axiom” assumes many things as if they are indisputable fact. From this axiom a logical framework is built which supports the concept that “ideas are free” and therefore IP laws are bogus.

I challenged SK on this and referred him, as an IP lawyer, to the fact that the laws of both copyrights and patents specifically and explicitly state that ideas are not protectable. Did you know that? Well, I say it is irrational to oppose something for reasons that it specifically seeks to avoid.

The axiom that “property” can only apply to “scarce, homesteaded resources” assumes that “original works of authorship” are not scarce, and that all property rights that exist only come from homesteading. Those are two pretty huge assumptions which don’t survive the light of day.

“It is firmly my opinion that it is not ethical to use force against someone who produces something of “substantial similarity” to something of someone elses (provided they weren’t party to a contract preventing them from doing so).”

Again, with all due respect, how can you have a firm opinion about something which you admit you know nothing about, and have no interest in learning? You are only forming your opinion on the particular way SK has characterized it for you.

IP law is consistent with other rights in nearly every way. The distinction that SK continues to make is it itself completely arbitrary. The fact that it is logically derived from an axiom of property rights which assumes its conclusion does not make it unassailable. Viewed from within this very system of logic, you fail to see how it could be any other way. That is not surprising.
Wildberry February 13, 2011 at 5:19 pm: JJ.Murray,

“The moment a gray area becomes involved, the argument if thoughts and ideas being property begins to break down.”

There are those who believe in a systemic approach where all facts resolve themselves into a set of rules. Others base their rules on an understanding of the facts. In the former case, the rules are prime, while the latter, understanding is prime. I subscribe to the latter category. This is the way life and society actually operates, in my view.

“Take the Lord of the Rings example.”

Your example is a fair one, but do you really think it is that difficult in any but the most extreme cases?

If you had two stories side by side, and you read the, and then read the second, would you really have that much trouble identifying the similarities between the two? How similar would they have to be before you would determine that there was little likelihood that the second could have been written independently of the first? Imagine if you gave two authors the same general plot outline, and then they each wrote a book independently, do you expect they would be substantially similar in the setting, other characters, dialoge, etc? Very unlikely. If you could show that the second author had access to the first author’s work, and he simply changed the names of a few characters and created a new creature of two, would you say that they are substantially similar? Would you say that the only rational explanation for this similarity is that the second copied from the first?

There is a saying in medicine, “When you hear hoof beats, think horses, not zebras”. I think you and others are making too much out of this issue. It is not so marginal or arbitrary as you propose.

“without any idea of who came up with those words or ideas in the first place. “

Yes, in that case, based on these facts one would have to conclude they are in the public domain, along with other ideas that are unprotectable by copyright. Ideas are not protectable under copyright or patent laws. Once there, they can NEVER be protected.

“The rules for the tangible and the “intellectual” must follow the same rules, to the letter.”

No so, as we can see in your example.

“As such, I should be able to lay a homestead claim on the word “the”, which is the most commonly used word in the English language”

Public domain means everyone owns it (i.e. use and access) and no one does (no exclusivity). Words, letters, ideas, facts, periods of history, etc. could never be protected. They are in the public domain. This is by explicit design of IP laws in general. So what you propose could never happen, and is specifically and exclusively avoided by IP laws, as a matter of public policy.

You probably wouldn’t know that if you only derived your understanding of IP law from Kinsella, but those are the facts. Ask him.

“And certainly the IP proponent cannot argue with me as I’m using a well established property rights rule – homesteading and the non-existence of public ownership.”

Even applying the homesteading rule in the way you describe would not produce the result you claim. Homesteading depends on first use. You could not show that you had a better title to a word than someone else, because it already belongs to the public domain, and it is already in use. So how could you homestead it?

“The only way to counter my argument is to return to the fact that ideas are not tangible and therefore cannot be property.”

Apparently not. This is how the homesteading rule gets into trouble. Some things that are intangible are not protectable in copyright and cannot be homesteaded as I said above. Also, there are plenty of examples of other property rights in intangible things which even Kinsella accepts, like security interests in a checking account or stock. So intangibility is not a good test. However, tangible goods are always subject to property rights, so SK tries to argue that therefore, all property rights must be tangible by definition. As you can see, this does not hold up.

All intangible property rights must be accompanied by some tangible evidence. In the case of a checking account, it is the contract you have with your bank. You cannot say how much money you have in our checking account unless you refer to that contract and the deposit/withdrawal statements. This is the same with IP; you cannot protect the intangible work unless and until it is fixed in some tangible medium.

At this point, let me dispose of the argument Peter Surda is so fond of making; that all tangible property is already covered by property rights, so claiming rights in the intangible is just another way of interpreting tangible goods, and therefore is a contradiction.

Kinsella recently used the example of how value is created in a hunk of metal by shaping it into a sword. How did that happen? Well someone heated it and hammered it. Yes, but how did they know how to do that? They had knowledge, skill, and a plan, all of which are intangible. In a way, then, you could say that the difference between a sword and a hunk of metal are all of the labor PLUS the intangible things that made its production possible. Mises deals with this issue explicitly in his treatment of human action and by demonstrating that the cognition that comprises rational thought is not a “phantom”.

If Peter was correct, then one would have to believe that a book with blank pages and one with a novel are actually nothing more than blank pages. You cannot attributed any substance to the intangible components, what is called an “original work of authorship” in copyright law, because the blank pages are already covered by property rights.

In all acts of production, the producer incorporates intangible goods with the tangible, and in the end owns the final product. It is valued as that product, not as the sum of components from which it was produced.

In non-intellectual goods, like a sword, it is not necessary to distinguish the intangible components, because it is already implied in the concept of “sword”. But they are certainly there, or else it wouldn’t be a “sword” but would be merely a hunk of metal.

A book that contains a novel is not valued simply on the value of the blank pages upon which it is written. In fact, it is the intangible properties of a book that give it its value. The process of production yields an intangible, intellectual product. It’s value may be communicated in a number of mediums other than a book, but regardless of the medium upon which it is fixed, it still exists in a way that can be communicated, and which can be perceived and understood by humans.

Therefore to claim that a physical book with blank pages and one with a novel on them are equivalent, is clearly ridiculous.

“which just leads to a new checkmate position – claiming existing words cannot be homesteaded and copyrighted, thus arguing that concepts, words, and ideas aren’t really property at all, nullifying the concept of IP.”

I hope you can see the falsity of this conclusion given my explanation above. You are saying that words and ideas are equivalent to an “original work of authorship”. Do you mean that if I took all of the words in a novel, and scrambled them up randomly, that they are the same intellectual product as a novel, where they are arranged in such a way and such a sequence so as to accomplish something which we call a story, and can be perceived and enjoyed by others? To do so is to completely ignore the reciprocal nature of communication. You would be saying that no effort is required on my part to write these words in a way in which you may understand them. Clearly that is not the case. Otherwise you would understand this: ar0uq’oiajv’apsit]w-\emq,wer09. Did you?

“Tangible property rights are perpetual as long as the ownership ties can be proven.”

False. See above.

“Because of this, the concept of expiring rights is ridiculous.”

As I said, all rights expire, unless you think you are never going to die.

“IP proponents are required to support indefinite IP rights.”

False.

“By introducing the subjectivity, the IP proponent admits that IP cannot be property at all.”

Are you saying that nothing exists or can be understood that is not objective?

“Property is clearly defined and cannot be opined as something else by the viewer.”

It is clearly defined, and your claim that it is not is not realistic. In fact, you and others in a very small minority believe that the current, prevailing and operational definitions of property are illegitimate. I have to wonder how you can believe that the rest of us simply missed the obvious?

“Either IP is perpetual, thus ensuring permanent monopoly privilege over all concepts, ideas, and inventions, or there’s some thus undiscovered objective standard by which to apply IP ownership limits”

Objective means any reasonable person viewing the same facts would reach the same conclusion. Obviously, since you and I reach different conclusion about property rights, your system is not objectively valid. It is based on an axiom which assumes its conclusion. This is the real reason the world works along lines different than you propose.

“This is the ultimate failure of IP – it cannot operate in tandem and consistently with tangible property rights.”

I hope you can see how this is false by now. Intangible and tangible goods operate in tandem everywhere. That is the nature of the universe. Gravity is intangible of itself, but its effects can be perceived by its effect on tangible matter. IP is no different.

“The rules are universal and unbreakable. The moment exceptions are rationalized, the rationalizer just failed in the debate.”

Laws of nature are unbreakable. Rules are not laws of nature. We can change the rules. To do so is hopefully a rational act.

“If we apply IP consistently with tangible property rights, all of human civilization will grind to a complete halt.”

We have been living with IP laws for over 200 years, and last I looked civilization has not come to a “complete halt”. It might, but it is unlikely to be the result of IP laws.

“And since no objective standards exist to ignore portions of tangible property rights, it’s an all or nothing affair.”

Non-sequitur. Tangible property rights are the means for enforcing the rights of intangible property. This is a specific objective of making such rights in the intangible arise IF AND ONLY IF they are fixed in tangible medium. In this way, they can follow the existing body of laws in property, contracts and torts. Nothing is ignored.

“Either IP operates on all the same rules as tangible property without exception”

Why “without exception”? As I have amply demonstrated, all laws and all rights have exceptions. Why do you think that IP is some special class that cannot likewise operate in this same way?

I appreciate the effort you put into your response. You make your arguments clearly.
matt470 February 14, 2011 at 4:27 am: @Wildberry

Because the objectives of copyright law are competing between two public policy objectives: 1) To encourage authors by granting exclusive economic rights to their works, and 2) to provide for the maximum public access to the works, by providing that if a author publishes, he doesn’t lose his economic rights, and thus encourages publication, and information in the public domain, including copyrighted works which have expired, remain there. For example you can’t get a copyright on something that is already in the public domain, even if it was once protected by copyright.

Whilst I don’t agree there is a fundamental justification for these public policies, I think what you’ve written here is sensible and probably in the most part true (albeit probably not where copyright law actually originated from).

So they should be limited because they are an economic right

As others here have asked, please define an “economic right”?

As a result, part of the public policy #2 above is to make sure that all protected works eventually find their way to the public domain.

As noble a cause as this may seem to you it isn’t necessarily justified. What evidence is there that not protecting works in the first place wouldn’t result in more of these types of work existing in the public domain? Please also remember David Hume’s is-ought problem, in your case the “is” being less works in the public domain (which you haven’t made a strong case for yet BTW), the “ought” being the government ought to be able to use force to prevent this.

There is not a perpetual right to control alienability of property. That means that when you own something, as long as you are alive, you own it 100%. But that ownership doesn’t last forever. Eventually you die, so ownership must pass to someone. So, the ownership rights of the original owner are not perpetual.

This is a misrepresentation of what I’ve tried to say, really a case of ignoratio elenchi. I’ve spoken of tangible property titles and you’re now speaking about a perpetual right to control alienability of property. If my language wasn’t clear and this is just a misinterpretation of what I’m saying as a result then I’m sorry. My point was that the title to property does not vanish or expire after a certain period (except perhaps in current legal systems under some very specific conditions) and is hence not limited – and I think my language was probably plain enough to make that clear. Let me be clearer still… If I pass ownership of my house to my son (title transfer) then it becomes 100% his and if he transfers the title to his daughter in 50 years then it will become 100% hers (the 100% may be argued with state taxes etc. but that’s another matter that doesn’t subtract from the point I’m making!). I wasn’t talking someone trying to control property from the grave so we can now ignore your next two paragraphs as they’re part of this diversion (deliberate or otherwise).

Maybe, but don’t think homicide is easy. You can always come up with some particular facts which make the rules hard to apply. Just look at how successful the creative writers of Law and Order remain. They keep coming up with new, weird fact patterns that don’t fit into the norm that easily. Actual case law is filled with marginal situations.

This doesn’t really address my point (and remember you brought up the example of homicide in the first place). Ignoring execution and casualties of war, the fundamental principle of homicide being wrong (e.g. murder) unless it was a result of direct self-defence has been fairly evenly adopted by most societies throughout history that I’m aware of and rarely argued on fundamental principle. What you seem to be referring to (and I’ll admit I’m no Law and Order viewer) is the complexity around evidence and being able to convict or not. No doubt most of the episodes have to go to extraordinary lengths to set-up situations where the facts of the case are very unclear and/or subjective. It wouldn’t make good viewing if they didn’t do this because nearly every person in the world agrees if you kill someone it is wrong unless it was valid self defence. I doubt IP would elicit that same type of response… if so, perhaps we’ll get to see Law and Order – Victims of Intellectual Property Theft Unit (VIPTU).

At least in copyright, I think many more lawsuits are avoided by having an understandable rule of law, than would be the case otherwise.

But shouldn’t the “otherwise” in your above quote be referring to the discussion at hand… i.e. not having IP laws? It’s hard to imagine that more copyright lawsuits would occur if we didn’t have a copyright law. Perhaps you can elaborate?

If you don’t understand the legal application of “substantial similarity”, it is unfair to argue that it is simply arbitrary.

Other than the problem with this coming across as you being high-minded, it is also not right in my opinion. My point has been all along that in order to have justice, laws needs to be crystal clear, as too their fundamental principles and you have agreed in one of your posts above that I would refer you to the law, which defines the standards for “substantial similarity”. Although you will not be satisfied if you will only accept a bright line that distinguishes all possible fact patterns. The law needs bright lines, not wishy washy concepts like “substantial similarity”. FYI – The definition of my use of the word arbitrary in my previous post was Based on or subject to individual judgment or preference – this does not require irrationality as your reply suggests.

But you accept the Rothbardian/Kinsella principles of property rights as an axiom

Not necessarily. One does not have to take this road to have a problem with IP. I don’t recall mentioning homesteading either.

Again, with all due respect, how can you have a firm opinion about something which you admit you know nothing about, and have no interest in learning?

If you believe this is all the respect I’m due then I think I’d prefer to be disrespected by you. You said that courteous discourse was fun so clearly you stopped have fun by the time you wrote this. Do I really sound like an uneducated buffoon with “no interest in learning”? This is simply an ad-hominem attack.

If you decide to reply can I suggest you begin by revoking this last statement – some may take it as you losing your way in the argument?
matt470 February 14, 2011 at 10:50 am: While I’m at it, I’d like to try and clear up something else that keeps cropping up on this blog yet I don’t think has been adequately addressed.

Is a book with blank pages equal in value to a book with jumbled words/ink on it equal in value to a book with a novel printed on it? Definitely not! Even if we ignore the issue of copyright laws and IP this should still be clear. Undoubtedly these items would be subjectively valued differently and even objectively valued (ie. manifested in market prices) differently. To spend time on this supposed conundrum as though it makes or breaks the case for IP is wasteful. Even if we want to consider the sword from a hunk of metal analogy nothing changes. An item’s value (subjectively or on the market) tells us nothing instinctively about whether or not there are rights in it’s creation or by its authorship.

The question at hand from either side of this debate should be focused only on the re-creation/duplication of the good. IP proponents say this shouldn’t be allowed as it is a form of theft from the creator/author (and is likely being used to cash-in on their work), IP opponents say this is not theft because the creator/author still has their good and hence hasn’t been deprived of the physical manifestation of their work (the potential loss of income that may happen from losing their monopoly is not a transgression of a right because they believe there is no such thing as a right to an income).

The direction I err on this dichotomy is probably obvious from my previous posts but I can’t see how someone (A) can claim they have a right to be rewarded for the fruits of their labor that would trump someone else’s (B) right to do what they wish with their legally owned property (even as property is defined currently provided we’re not including IP definitions) that inflicts no damage on A’s physical property other than potentially economic harm (which can also be “damaged” by forces of competition, defamation etc.).Perhaps some folks can now see that this debate shouldn’t have to stall with ancaps and minimalists remaining in a stale headlock about axioms etc.. We each no doubt have our stances worked out and are not readily about to change them, therefore lets try and have debates that aren’t always going to inevitably reach this unrewarding stalemate. Knowing the passions of the bloggers on this site I’ve probably now managed to just alienate myself from both sides . Hopefully not!
Wildberry February 14, 2011 at 2:05 pm: @ matt470 February 14, 2011 at 4:27 am
Matt470,

Matt, let me start with this. I apologize if you took personal offense at something I wrote. I can assure you I meant no disrespect. I can see you are making an effort here, and I’m committed to do the same. I think you have misunderstood my intentions and meaning on occasions, but don’t read into my comments a lack of respect.

Let me try to address together some points you have made in your last two responses:

“As others here have asked, please define an “economic right”?”

I intend the plain meaning of the words. When you own property,that means you have an exclusive right to dispose of it and to set the price in the market. No one can force you to sell it for less, and you can’t force anyone to pay more than they want. Economic rights are fundamental to a free market, because private property entitles the owner to the economic rights to his own property. If these rights didn’t exist, there would not be a concept of property that could operate in the market. According to Mises, it is one connotation of “monopoly” to recognize that a property owner has exclusive economic rights to his property to the exclusion of others.

“As noble a cause as this may seem to you it isn’t necessarily justified.”

Don’t you believe “ideas are free”? If that is the case, then a law that has information as its subject should respect that idea. IP laws attempt to do that by protecting the public domain on the one hand, and private property rights on the other.

“What evidence is there that not protecting works in the first place wouldn’t result in more of these types of work existing in the public domain?”

Since we have lived with IP laws for over 200 years, I’m not sure how one would gather evidence of how an economy would work in its absence. We would have to speculate.

Mises did that when he discussed the connotations of “monopoly”, and described how that is not antithetical to competition when meant in the context of private property. He asserts that in the absence of IP laws to protect that property right in copyrights, they would be producing for external economies. I have used the phrase “external markets” when discussing this, but in my meaning, they are one and the same. It simple means that output (production) and income are no longer connected casually. That is a disruption to free market operations, similar to slavery. One difference is that a slave who has a choice won’t continue to do it. Therefore, any code of ethics or rules of property that don’t seek to preserve this relationship between output and input is to advocate slavery, it that one would be advocating that producers SHOULD produce for external “economies”. I disagree. Contracts are not adequate either, because they do not bind non-parties, unlike property rights, which are universal.

“ Please also remember David Hume’s is-ought problem, in your case the “is” being less works in the public domain (which you haven’t made a strong case for yet BTW), the “ought” being the government ought to be able to use force to prevent this.”

Although the role of government, if any, is a big part of the debate agenda here, it is not a critical issue at this point; we are debating whether property (i.e. economic rights) in IP are legitimate. I assert they are. Once we agree that they are, we can debate how to enforce them.

“This is a misrepresentation of what I’ve tried to say, really a case of ignoratio elenchi. I’ve spoken of tangible property titles and you’re now speaking about a perpetual right to control alienability of property.”

I disagree that this is not relevant to the argument. To pass a title you must have it first. In fact you cannot pass better title than you have.

If what you mean is that the nature of the property, as being the subject of ownership is perpetual, then I did misunderstand you. The confusion came when you said title does not vanish. It does vanish in relation to an original owner, because he cannot own it forever.

But the property, as a physical, tangible good, may not vanish, especially if it is land. However that is about the only example you can come up with, as nearly everything else has a physical half-life.

So, to use land title as an example, my ownership in it today passes to someone else over time, although the land itself persists. I think this is similar to IP. If I have title to some work protected by copyright, I can only “own” it for my lifetime. Much like disposing of property in a will, I can control the passing of title for some time after I die, but there is a limit. When an author dies, the title to his protected work under copyright must pass to someone of his choosing.

However there is one important difference; the title to that work passes to the public domain after 70 years under current law. From that point on, it is forever “owned” by the public and is no longer protected, and there are no longer rights of ownership, and therefore no economic rights.

If you are asking why this difference? I am saying it is a matter of public policy, just like the rule against perpetuities in land title. There is a goal to protect the free exchange of information that is balanced with the goal of protecting the economic rights of authors, for the purpose of making authorship consistent with other acts of production. If this right was perpetual, then it would overwhelm the other, competing goal of public access and use. Therefore the rights are limited in time. I think they are too long in some cases, but that is a different issue.

“ the fundamental principle of homicide being wrong (e.g. murder) unless it was a result of direct self-defence”

I would like you to think about this some more. You are only raising two facts; the fundamental rule, “Thou shalt not kill”, and the exception to that rule, “self defense”. Even applying this simple case is not always obvious until the specific facts are proven, and the application of the rule to those facts are reasoned out.

Was someone killed (you have a body)? Did the defendant to it? Were there circumstances that would support a plea of self-defense? What if after looking at the facts very carefully, a reasonable person could argue either way? Well, we throw the question to a jury. How do they decide? They use their judgment to assign weight and importance to the facts, taken in the totality of circumstances, and satisfy themselves they have reached a conclusion “beyond a reasonable doubt”. I think you will have to admit there are a number of areas in this process that could be described as “arbitrary”. And we haven’t even touched manslaughter, insanity, negligent homicide, etc. It gets complex. The further the actual facts challenge the fundamental rule, the more arbitrary the decision becomes. But the process is entirely rational, and it reaches a just outcome in all but the most extreme cases, which is being further improved by refinements in the science of evidence, like DNA testing.

IP is no different. In the straight forward cases, they don’t even go to trial. It is only when some unique facts are being raised that the courts have to reach a novel application of the rules.

“It’s hard to imagine that more copyright lawsuits would occur if we didn’t have a copyright law. Perhaps you can elaborate?”

Of course you are right. You assume your conclusion. If there are no rights to enforce, there will be fewer lawsuits attempting to enforce them.

*If you don’t understand the legal application of “substantial similarity”, it is unfair to argue that it is simply arbitrary.*

To be clear about what I said above, “substantial similarity” is a term of art in the law. It is very clearly defined, at least as clear as homicide. If you want to know how the law attempts to draw a bright line between “murder” and “involuntary manslaughter”, the criminal laws would be a good place to start. If you understand how the law actually deals with this issue, then it is completely reasonable to make an argument that the law reaches a wrong outcome, and should be abolished or changed.

However, it is unreasonable to claim it reaches an unjust outcome if you do not refer to the law, and in fact misstate what it actually does. That is the classic definition of a straw man.

IP is no different. You are raising reasonable questions. It is also reasonable for me to point out that the term “substantial similarity” is an operational concept in the context of copyright laws, and the line is much brighter than you might imagine if you only tried to form an opinion about what the law does by trying to understand this concept without looking at the legal context.

Laws strive to create a path of reasoning from a fundamental rule to a logical conclusion that approximated justice. IP is no different in this regard than any other law.

“The law needs bright lines, not wishy washy concepts like “substantial similarity”. “

This statement is a case in point. How do you know that the concept is “wishy washy”? How can I “prove” to you otherwise without referring to the operation of the law itself, which you say you are not interest in knowing? That is a problem that stops the discussion from advancing.

“Based on or subject to individual judgment or preference – this does not require irrationality as your reply suggests.”

I specifically said arbitrary does not mean irrational. Every juror reaches a judgment or preference based on their individual interpretation of the facts. That does not mean they cannot be right. It means that it is a judgment based on a narrative that creates some understanding. That process can be very rational and yet have some lack of “bright lines”. That is the meaning of the word “judgment”.

You say you don’t need to subscribe to the Rothbard/Kinsella ethics of property rights to object to IP. OK, let me ask. How do property rights arise, in your world view? I would need to understand that to be able to see how it works for IP, right?

Don’t you deny that authors have no right to prevent others from copying his work? This means, I presume, that this is because his “rights” do not extend to that act. How do you get to that conclusion?

“This is simply an ad-hominem attack.”

No. I was referring specifically to IP law, not your general qualification to ask questions or state opinions. Like I said, my answer to your objection to the “wishy washy” nature of the concept of “substantial similarity” is to refer to the law to demonstrate how that assertion is false. That is not personal.

@ matt470 February 14, 2011 at 10:50 am

“Is a book with blank pages equal in value to a book with jumbled words/ink on it equal in value to a book with a novel printed on it? Definitely not!”
Of course. This is so obvious one has to wonder why the question should even have to be asked. However, advocates like Peter claim that to recognize intangible goods, (which IS the good in the case of IP) with property rights is a contradiction because the physical book is already covered by property rights 100%. Since you can’t exceed 100% of something, how can there be rights in the intangible? Something else would have to be reduced to less than 100%. Your answer makes this fallacy obvious. That was my only reason for raising the issue.

“An item’s value (subjectively or on the market) tells us nothing instinctively about whether or not there are rights in it’s creation or by its authorship.”

I think this is wrong. It tells us it has value. The question being raised is where does that value originate, and who has better title to it, the author or the copier? The answer to that question tells us where the rights should be vested. If they are vested, they can be protected. Therefore, if copying is a violation of the authors rights, it is wrong and should be punished.

If something has no value in the market, there is not going to be conflict over its use because no one is going to compete for its possession.

However, if it is useful, if it has value, then someone is going to want to possess it and pay for the privilege. To whom should that payment accrue? The author, obviously.

“The question at hand from either side of this debate should be focused only on the re-creation/duplication of the good. IP proponents say this shouldn’t be allowed as it is a form of theft from the creator/author (and is likely being used to cash-in on their work), IP opponents say this is not theft because the creator/author still has their good and hence hasn’t been deprived of the physical manifestation of their work (the potential loss of income that may happen from losing their monopoly is not a transgression of a right because they believe there is no such thing as a right to an income).”

This is not really the way I would characterize the positions, but in general I can agree.

The issue in my mind is over property rights. Most IP opponents have an axiomatic holding about how property rights can arise. They hang their position that IP cannot be “property” on the notion that ideas are free, meaning non-scarce. But of course, it is not accurate to say that a novel, for example, is merely an idea, and IP law doesn’t protect ideas anyway. Because property entails an economic right to exclusive use, they cannot admit IP is property. Yet this position is completely inconsistent with their holding for other property rights. But, you can lead them right to this point with a question like the one about blank pages and a novel, and they run for the hills.

“We each no doubt have our stances worked out and are not readily about to change them, therefore let’s try and have debates that aren’t always going to inevitably reach this unrewarding stalemate.

It is unrewarding. I am investing my time in your post because you seem to be taking a fresh look and haven’t yet descended into ad hominem. Also, you ask rational questions that can be responded to rationally.

Knowing the passions of the bloggers on this site I’ve probably now managed to just alienate myself from both sides . Hopefully not!

I’ve often asked myself, why the passion? I think it is because there is a intellectual fraud taking place, and the defenders of that fraud are frustrated that opponents aren’t being shouted down or intimidated off this site. There is a particular point of view that is being aggressively promoted on this site, which is a total distraction and distortion of the realities of Mises’s view in favor of Rothbard’s. Mises was not an Ancap. Rothbard was. Kinsella books on applying Rothbard’s radical theories to IP law, and in my view, will say just about anything to build this case and gather followers. I object. That is wrong, and I think some of the passion demonstrated here originates from recognition of these facts.

In any case, you have not alienated yourself from me, though I may disagree with many of your conclusions.

Regards,
Wildberry February 14, 2011 at 3:33 pm: Matt470,

“The case for the IP proponent is dependent on the principle of protecting ideas yet it’s only the manifestation of those ideas that they care about because that’s wherein the monopoly benefit lies.”

This is correct. Copyright create limited economic rights in the intangible works (of original authorship) that have been FIXED in a tangible medium. Without this fixation, how could you ever tell what is being protected, and how could anyone use it?

But Kinsella and Peter argue that fixing the intangible work onto tangible medium does not change the properties of the medium, but only transforms it is some otherwise meaningless way.

This is why I ask about blank pages v. novel. The fact that this medium has been transformed in a way that can be easily interpreted as a change which enables communication (of ideas in the form of a story or other work) is evidence of the intangible production. Once fixed, it can be dealt with by the faculties of human perception and cognition, and dealt with under existing laws of property, contracts and torts. This is why the concept of “theft” is not an equivocation, it is an analogy.

The protected expression carries with it an exclusive economic right, but the property is the intangible work. This is the concept that is being rejected by opponents.
Peter Surda February 14, 2011 at 11:05 pm: Widlberry,

But Kinsella and Peter argue that fixing the intangible work onto tangible medium does not change the properties of the medium, but only transforms it is some otherwise meaningless way.

No, that is not my argument. My argument is that “fixing the intangible work onto tangible medium” is already covered by physical property rights. Therefore, if you want to apply “IP” onto it, you need to expropriate physical property. Typical IP proponents (as well as you) do not want to admit this, so they contradict themselves.

If I was wrong, then it should be trivial to provide an example of an action that does not involve physical property rights.
matt470 February 15, 2011 at 4:11 am: Wildberry,

This is good. I appreciate the length and depth you’ve gone to in your reply and I’ll try and address some of the specifics of it but I’ll predominantly focus on the basics because I think that’s where we’re still holding quite different positions.

According to Mises, it is one connotation of “monopoly” to recognize that a property owner has exclusive economic rights to his property to the exclusion of others.

I’ve no argument with this statement. So unless you’re suggesting that exclusive “economic rights” are the only rights that a property owner has over his property then “economic rights” must necessarily be a subset of a broader property right.

It simply means that output (production) and income are no longer connected casually. That is a disruption to free market operations, similar to slavery.

This statement goes way beyond the intention and scope of what Mises wrote about external economies. I, nor other IP opponents that I’ve listened to, suggest that producers “SHOULD” produce for external economies as though they were slaves. You’ve taken too many liberties with this statement (excuse the pun). Let’s stick with what most people would agree on, people will only produce if they prefer production of a good to not producing that good. This preference could be a result of perceived economic benefit from the productive activity or simply from a perceived psychic profit that it would bring about, we can’t know for sure. It is not based in fact to assume that without copyright protection for authors they would not author any works (as your statement attempts to lead us to). Mises is very clear about this in chapter 23 of Human Action.

My is-ought comment is I think fairly critical to this debate because we could potentially agree that from a utilitarian aspect IP laws are better for society (the “is” proposition) yet that would not necessarily mean that it is the government that “ought“ to protect them with the force of law. This is separate to other issues I’ve raised about arbitrariness of how the law is framed or difficulty that may arise in enforcing it.

The confusion came when you said title does not vanish. It does vanish in relation to an original owner, because he cannot own it forever.

This would not constitute the “plain meaning of the words” and I feel is distracting from the real argument. It should be fairly obvious (particularly after my last post trying to re-clarifying the issue) that title in property does not evaporate, it is fully transferable. You are arguing that IP is no different from other forms of property yet does and should expire. The durableness of the good or the life expectancy of the original title holder adds nothing of value to this debate.

Wildberry says…

SK overstates the case. At least in copyright, I think many more lawsuits are avoided by having an understandable rule of law, than would be the case otherwise.

matt470 says…

“It’s hard to imagine that more copyright lawsuits would occur if we didn’t have a copyright law. Perhaps you can elaborate?”

Wildberry drops the context of my last comment (ie. his initial comment) and then makes out as though I’ve committed some logical fallacy…

Of course you are right. You assume your conclusion. If there are no rights to enforce, there will be fewer lawsuits attempting to enforce them.

So it would appear you agree with me and cannot elaborate?

Moving on…
If I want to kill someone I don’t have to familiarize myself with whether or not someone has a right or a claim on that person allowing or outlawing me doing so – in every country I can think of it is clear that the potential victim has a right not to be killed by me. This is good and would constitute a very “bright line” for me at least. This is not the case for copying. Some works I can copy, some I can’t, many I don’t know whether I can or not or to what extent I can or can’t. We do not see advertisements telling us that killing people is wrong because to the vast majority this is already well known and an undisputed fact, whereas we are constantly reminded in many different ways that unauthorized duplication of original works is wrong and is a form of theft or piracy – if this was so self-evident to the majority of people (i.e. a bright line) why the constant re-education and threats? Perhaps we can now leave this analogy here as I think it has finished serving any purpose to this debate.

I’ll revoke my comment about “wishy-washy concepts” as in reflection that was a pejorative statement. I’m not familiar with the legal specifics of “substantial similarity” which you’ve highlighted several times but I can still understand the concept of it and for the purpose of this debate I’m happy to accept your position that it operates with a clear rationale behind it.

You are raising reasonable questions. It is also reasonable for me to point out that the term “substantial similarity” is an operational concept in the context of copyright laws, and the line is much brighter than you might imagine if you only tried to form an opinion about what the law does by trying to understand this concept without looking at the legal context (emphasis added).

How do you know that the concept is “wishy washy”? How can I “prove” to you otherwise without referring to the operation of the law itself, which you say you are not interest in knowing? That is a problem that stops the discussion from advancing.

You seem to be contradicting yourself here?? Is knowing the concept important to the discussion or the knowledge of the current operation of the law itself?

You say you don’t need to subscribe to the Rothbard/Kinsella ethics of property rights to object to IP. OK, let me ask. How do property rights arise, in your world view? I would need to understand that to be able to see how it works for IP, right?

Not necessary to this debate and will just lead us to the dead end you’ve reached with others. As I stated, my argument should still apply even if I accept today’s current property rights (with the exclusion of IP being classified as a property right).

Don’t you deny that authors have no right to prevent others from copying his work? This means, I presume, that this is because his “rights” do not extend to that act. How do you get to that conclusion?

I’ve addressed this already… even within current property laws I can own a printer, a scanner, and some blank paper and should be able to operate them at my liberty. I argue that it isn’t justified to give somebody else a superior right to enforce particular exclusions on how I utilize my own property. I don’t think Mises would’ve necessarily disagreed with this principle but I think was left with your quandary about whether there would be a greater societal benefit in limiting this principle in some ways with some IP. I’m not aware of where he categorically rules it in or out (doing so would be an interventionist stance on a normative principle). Unless you can draw my attention to where he has done this we will have to live with never knowing conclusively one way or another.

Gotta go now, will address the next part of your reply later. Cheers.
Wildberry February 15, 2011 at 11:29 am: Peter,
Your reasoning sucks. A mere transformation doesn’t change anything but the arrangement of things, in the way I understand you mean it.

Intangible works of authorship ARE the product, which is merely fixed on a medium to enable communcation. The tangible property is merely a vehicle for something else. The nature of the medium doesn’t change the nature of the intangible good.

Two artisans with the similar hunk of metal are not going to produce idential swords, even though they are both “transformations” of the physical form. Why is that?
Peter Surda February 15, 2011 at 12:25 pm: Wildberry,

Your reasoning sucks.

Well then how come noone can answer a simple question that would prove me wrong?

A mere transformation doesn’t change anything but the arrangement of things, in the way I understand you mean it.

This has nothing to do with my claim. My claim is that the transformation is covered by physical property rights, therefore you cannot, as you do, claim that without IP something is missing.

Intangible works of authorship ARE the product, which is merely fixed on a medium to enable communcation.

Let us assume that this is correct. However, since there is no such action that covers intangible works without being fixed on a medium, the only logical conclusion is that intangible works are an interpretation of physical phenomena, rather than a separate phenomenon. However, IP proponents, including you, deny this, therefore they contradict themselves. All you need to do to fix that is to say, for example, that IP takes precedence over physical property rights, or if you disagree with my claim, you can show an example of an action that does not involve physical phenomena.

It’s totally trivial logical issue, but the likes of you will do everything to avoid clarity.

The nature of the medium doesn’t change the nature of the intangible good.

Again, let’s assume this is correct. How does that disprove my claim that intangible goods are an interpretation of physical phenomena, rather than a separate phenomenon?

Two artisans with the similar hunk of metal are not going to produce idential swords, even though they are both “transformations” of the physical form.

I don’t understand what relation this has to do with the debate. I don’t recall claiming that two artisans can produce identical goods. In fact, from strictly scientific point of view, it is impossible to produce two identical goods. You can only produce goods that are, from a specific subjective point of view, usable for the same purpose. Then, there is a second aspect which appears in the most arguments about IP: whether these two goods are causally related.
Wildberry February 15, 2011 at 1:22 pm: @matt470 February 15, 2011 at 4:11 am

“economic rights” must necessarily be a subset of a broader property right.”

Yes, property can be withheld from the market. As an aside, I think there are weakness in the law that could be improved concerning this issue, but that can wait.

It simply means that output (production) and income are no longer connected casually. That is a disruption to free market operations, similar to slavery.

“Let’s stick with what most people would agree on, people will only produce if they prefer production of a good to not producing that good.”

OK, let’s do, but it is not as dramatic as the slavery image. My only point in taking poetic license is that copying is an act which has this effect, and by analogy, it has a relationship to the concept of slavery; producing for external economies.

“Mises is very clear about this in chapter 23 of Human Action.”

Yes, I am aware. He says it is not necessary to understand the specific motives of an actor, only that we presume he is rational and has some rational basis for the preference. Good.

“ This is separate to other issues I’ve raised about arbitrariness of how the law is framed or difficulty that may arise in enforcing it.”

Agree. The issue of the enforcement mechanism can only come after we agree whether there is something legitimate to protect. Government or PDA is not relevant to that question. However I will point out that the Ancap opposition to all government is often cited as a reason to oppose IP. To quote SK, “We have IP because we have the State”.

“The durableness of the good or the life expectancy of the original title holder adds nothing of value to this debate.”

I think it does for the following reason. One tenant of the anti-IP camp is that copying is not a violation of anyone’s rights, and prohibiting it is.

When you look at how property rights operate, they are different depending on the nature of the property. Copying is specifically prohibited in copyright, but not for land. Why? Because the nature of land makes it impossible to copy, so no issue.
Then nature of information, however, especially in the digital age, makes it cheap to copy. Is “cheap” v. “impossible” the test of legitimacy? The scarcity argument on this issue is inconsistent. The argument is that ideas are non-scarce, but I would say that novels are scarce, otherwise a need to copy would never arise. I like “stranger’s” analogy to inflation and counterfeiting. Making copies of money does not produce a desirable effect on the economy. Why would counterfeiting a scarce novel not result in the same economic effect?

“So it would appear you agree with me and cannot elaborate?”
I do agree, and I was trying to elaborate. How can your statement be false? I am also saying that when the application of certain laws becomes settled, the number of lawsuits goes down because the parties can more clearly predict how the court will rule. It’s expensive to mount a case you think you have no chance of winning.

Although I haven’t done any research, I suspect that lawsuits over straight title transfer in land has become pretty rare, and that most disputes are resolved out of court.

“I think it has finished serving any purpose to this debate.”

Perhaps, but I want the last word…Fundamentally, both murder and copyright infringement are bright lines. Stop someone on the streets and ask them a straight copyright question, like “Do authors have a right to their own works”, and most people will understand exactly what you are asking. It is at the margins that problems arise, and I would say that your characterization that “there are many” cases when you don’t know whether you are copying or not is probably false. It is only in extreme cases, new technology or some remote derivative use, that this would be vague.

“I’m happy to accept your position that it operates with a clear rationale behind it.”

Good.

“You seem to be contradicting yourself here?? Is knowing the concept important to the discussion or the knowledge of the current operation of the law itself?”

I am saying that it is difficult to say you “know” the concept without digging a little deeper into how the concept operates within the context of copyright law. That is the context, right? In another context, it might operate a little differently. I could simply restate the operation in my own words, but it is much more convenient to just point to the law, especially with SK, since he is expected to be an expert in it.
FYI, in an actual case, copying hast to be proven by the plaintiff. How that is done is relevant to your perception that it is “wishy washy”, which really just means vague, and I take no offense. Seen from your perspective (as I understand it) it would seem vague. When you read through the procedures, it pretty solid.

You say you don’t need to subscribe to the Rothbard/Kinsella ethics of property rights to object to IP. OK, let me ask; how do property rights arise, in your world view? I would need to understand that to be able to see how you think it works for IP, right?

“ (with the exclusion of IP being classified as a property right).”

See, you can’t avoid the issue. If you accept the status quo re: property rights, you have to accept that “homesteading” is not the only means by which these rights arise. You have to acknowledge that property is a human device. Otherwise you cannot explain how intangible property can exist, like a checking account or a derivative security. Contracts, by the way, are a human device too, and can be used to “create” property rights. “Homesteading” is irrelevant.

Don’t you deny that authors have a right to prevent others from copying his work? This means, I presume, that this is because his “rights” do not extend to that act. How do you get to that conclusion?

“I’ve addressed this already… even within current property laws I can own a printer, a scanner, and some blank paper and should be able to operate them at my liberty.”

Why? Do you believe that your property rights in these things are unlimited? I can think of a number of uses, not having to do with IP, which are prohibited. For example, you cannot publish a “wanted dead or alive: $100,000 Reward” poster against the president, even if you use your own ink and paper.

“Unless you can draw my attention to where he has done this we will have to live with never knowing conclusively one way or another.”

My understanding is that he simply states that to eliminate protection would cause authors to be producing for external economies, and that the implication of that is that it would create a new data point in the economic calculation of the actors.

Since there is not an environment available to test the effect in the absence of IP, we can’t run an experiment or look to a contemporary example. However, it seems we can logically deduce that if the production of information did not result in an income, only those who didn’t need or want an income would prefer to do it, and therefore, while authorship would likely not vanish all together, it seems reasonable that fewer people would choose to do it.

See ya.
Wildberry February 15, 2011 at 1:54 pm: @Peter Surda February 15, 2011 at 12:25 pm
“Well then how come no one can answer a simple question that would prove me wrong?”

Well, you don’t ask one, but let’s see…

“My claim is that the transformation is covered by physical property rights, therefore you cannot, as you do, claim that without IP something is missing.”

If I fix my intangible work in a tangible medium, I have added something to the tangible thing. It is not just ink spots, as can be demonstrated by taking the exact same letters and rearranging them randomly on the page. Something is missing. What is it? Without the “IP”, something is missing, yes?

“However, since there is no such action that covers intangible works without being fixed on a medium, the only logical conclusion is that intangible works are an interpretation of physical phenomena, rather than a separate phenomenon.”

What I deny is knowledge of why you think this is important, or why it has become your mantra in every post.

The only conclusion you are reaching is that what is fixed is nothing other than what was already there. The proof of this is that the pages existed before and they exist after.
Therefore one can only conclude that a book with random ink splotches is exactly equivalent to one communicating a novel, because they aren’t “separate phenomenon”. Gee, that sounds real logical.
“However, IP proponents, including you, deny this, therefore they contradict themselves. All you need to do to fix that is to say, for example, that IP takes precedence over physical property rights, or if you disagree with my claim, you can show an example of an action that does not involve physical phenomena.
It’s totally trivial logical issue, but the likes of you will do everything to avoid clarity.”

As if you are one to accuse me of a lack of clarity. Why would I have to prove that there is “an action that does not involve physical phenomena” or that “IP takes precedence over physical property rights”? The meaning of a contract is not governed by the property rights in the paper it is written on. Does anyone think that is unclear or contradictory but you?

“I don’t understand what relation this has to do with the debate.”

Of course you don’t. You don’t believe in metaphors or analogies as a means of communicating common understanding. Of course, you don’t criticize SK if he uses one in opposition to IP, only if I use HIS VERY ANALOGY go support it, not that your criticism means much these days.

“I don’t recall claiming that two artisans can produce identical goods.”

What a fraud. I am asking why that is true? Is there a reason? They are both transformation of physical goods.

“…whether these two goods are causally related.”

Exactly. Unless they are causally related, they cannot be identical. If they are casually related, one is a copy of the other. Copying is not independent transformation of the physical, but a result of the original’s effect on the copy, not the other way around.

I’m beginning to wonder what you actually know of science.
The Kid Salami February 16, 2011 at 4:56 am: Wildberry

“Making copies of money does not produce a desirable effect on the economy. Why would counterfeiting a scarce novel not result in the same economic effect?”

Indeed – I’ve been waiting for someone to say this. I’ve never actually discussed this particular issue on these forums. Not because I don’t agree but on the contrary because Kinsella and Tucker and friends are so totally out to lunch on it that there is no point – and I don’t have any need to clarify what I think on it, it is just an absurdly wrongheaded and idiotic argument. I mean, have you tried reading this drivel?

http://mises.org/daily/4630

They talk of “means” and “guides” to action – but if you follow through these definitions and references in his other papers, I can assure you (I’ve done it) that the whole thing is a house of cards.

I bought a book Robert LeFevre recommened on his talk on property on this site, which I only found out afterwards is online. You might find this interesting. I think the correct analysis of this process destroys Kinsella’s whole argument.

http://www.ditext.com/ardrey/imperative/2.html
Peter Surda February 16, 2011 at 8:58 am: Kid Salami & Wildberry,

I’ve been very busy lately, therefore only a short reply:

Making copies of money does not produce a desirable effect on the economy. Why would counterfeiting a scarce novel not result in the same economic effect?

The issue with FRB/fiat money is not that new pieces of paper are produced, rather than that the law requires you to interpret them in a specific way based on some imaginary constructs, which conflicts with the interpretations that are in place without legal tender laws. The same problem occurs with IP, it requires that you interpret copies in a specific way, which conflicts with the interpretation that are in place without IP laws.

The proponents of FRB/fiat money often argue that by inflating the money supply, you can increase the scope of the economy. The argument fails, because the only thing it achieves is redistribution of scarce goods. While the outcome might be, from a specific normative perspective, more desirable, the reasoning is flawed.

The same logical error occurs with those (i.e. most) IP proponents who argue that by introducing IP, the scope of economy is increased. This is impossible, because the only thing it can achieve is a redistribution of scarce goods. Again, the outcome might be, from a specific normative perspective, more desirable, but the reasoning is flawed.
Peter Surda February 16, 2011 at 9:01 am: As a side note, it might be interesting to hear Wildberry’s opinion regarding FRB/fiat money, i.e. if it is possible to increase the scope of the economy by introducing them. It too me a long time to grasp this.
Wildberry February 16, 2011 at 2:11 pm: @Peter Surda February 16, 2011 at 8:58 am

“The same logical error occurs with those (i.e. most) IP proponents who argue that by introducing IP, the scope of economy is increased. This is impossible, because the only thing it can achieve is a redistribution of scarce goods.”

It is interesting to me how you can apply certain logic to one set of facts, and take a completely different tack on an analogous set of facts. Let me show you.

Counterfeiting, legally by government sponsored monopoly or illegally by print artists, does increase the scope of the economy by creating a bubble that distorts the economic calculation. This distortion is not neutral; it benefits most the counterfeiter, and hurts most those at the end of the economic train in the form of price inflation.

Counterfeiting protected works distorts the economy for the same reason. It make is appear to the copier that “information is free”, when in reality they are distorting the markets and sending a signal that the labor and investment in creating an original work is really nearly worthless.

A rational economic actor would stop doing things which have no positive, personal economic benefit. Therefore, over time, as more and more authors figured this out, the “information goods” would become more and more scarce. We would experience it as an information depression following an information bubble where “ideas were free”.

Introducing IP does not create a bubble, because it is simply a producer satisfying consumer demand. He has to come up with the “capital” to deliver that product, just like any other producer. You have it backwards.

It is the intervention of copying “counterfeiters” that introduces the distortion in the market, which plays itself out as a bust, which affects both producers and consumers in predictable ways.

The only cure is to allow the market to clear and return to a free market operation where output equals income, and capital availability is not distorted by inflationary policies; printing money without saving, or printing books without returning a profit for invested capital to the investor, the author.

All economic transactions are in a very literal sense a redistribution of scarce goods. Original works or authorship are therefore scarce; otherwise there would be no conflict between authors and copiers. They are each competing for the economic benefits of using and controlling a scarce good, i.e. property.

The only way to reach the opposite conclusion is to postulate that original works are not scarce, which is often justified by the concept that “ideas are free” and that “learning is a human right”, etc. This reasoning completely distorts the economic relationship between output and income, and the inherent principles of private ownership of property as the basis for free-market economic activity.
Peter Surda February 16, 2011 at 3:09 pm: Counterfeiting, legally by government sponsored monopoly or illegally by print artists, does increase the scope of the economy by creating a bubble that distorts the economic calculation.

First of all, I define counterfeiting from the point of view of consumer, rather than the author.

However, regardless of how you define it, it does not increase the scope of the economy. The only thing it can do is to change the prices and the decision people make by changing the expected results of these decisions. The bubble is not an economy that expanded outside of its scope, but one that has a different arrangement of its content. The market prices created by inflating money supply (or the rights supply) provide false information with regards to the expected returns. That’s why, eventually, it becomes apparent that the expected returns are not forthcoming, and another rearrangement follows (colloquially called contraction). These descriptions (bubble and contraction) are metaphorical and do not represent the scope of economy, rather they represent the perceived values of goods.

Should I be wrong, it is completely trivial to refute my point. I asked you to do this several times. Why are you not doing that?

I would like to stress again that you are avoiding clarity at all costs and use vague terms to shroud your theory (if you actually have one) in confusion.
Wildberry February 16, 2011 at 4:26 pm: Peter,
“First of all, I define counterfeiting from the point of view of consumer, rather than the author.”

Counterfeiting is a verb. One normally understand that one who COUNTERFITS is a COUNTERFEITER. Therefore CONTERFITING refers to the acts of the COUNTERFEITER Those who experience its negative impacts are CONSUMERS, the victims of CONTERFEITING.

Now, who is the AUTHOR?

English, it’s a wonderful invention; you should try it.

“The only thing it can do is to change the prices and the decision people make by changing the expected results of these decisions.”

The only thing? My, you are so sure of yourself! Price inflation is an effect of counterfeiting, which increase the supply of money. This effect is delayed, so that the victims of price inflation cannot tell where the cause originated, either in time or origin. They just experience higher prices compared to the past. It increased the supply quite apart from any prior economic activity for which money is paid for some value. They get something (goods) for near nothing (they still have to buy paper, ink and a printing press. But according to your ilk, that is their property, so what the hell!). Getting something of value for near nothing is inflationary. Get it?

Inflation also increases the scope of the economy in terms of the measurement of economic activity in units of dollars, for example, say GDP. A $5 trillion economy is now $15 trillion. As a result, production capacity and consumption increases for a short time, increasing the size and scope of products available for consumption until the bubble bursts, and many suddenly find themselves consuming much less.

If you are saying that it does none of those things because the universe is finite, or some other form of navel-gazing, well…you are something accusing me of avoiding clarity.

“The bubble is not an economy that expanded outside of its scope, but one that has a different arrangement of its content.”

Do you just make this stuff up? Each passing moment, the economy has a different arrangement of its contents. How does this tautology advance any rational discussion? Your victory is measured by what, again?

“The market prices created by inflating money supply (or the rights supply) provide false information with regards to the expected returns.”

I said that already, but you seem like it better when hearing yourself say it.

“These descriptions (bubble and contraction) are metaphorical and do not represent the scope of economy, rather they represent the perceived values of goods.”

Gee, that’s really helpful. I can see it all now. THANK YOU!

You are completely trivial. I forget why I bother with you, so I think I’ll stop.
The Kid Salami February 17, 2011 at 5:29 am: Peter – I’m afraid that Wildberry is correct here in that you have your analogy 180 degrees backwards – it’s really quite remarkable how you can apply such different logic/criteria to the two situations in the same post. You have now descended into incoherence.
Peter Surda February 17, 2011 at 7:17 am: Kid Salami,

You have your analogy 180 degrees backwards – it’s really quite remarkable how you can apply such different logic/criteria to the two situations in the same post – and you have now descended into incoherence.

I believe you are in error. Here are the descriptions in proper formal language:

Situation in the absence of IP: X and Y engage in a behaviour that A does not approve of (copying). Therefore, A calls X a counterfeiter and promotes laws that make such a behaviour illegal.

Situation in the absence of legal tender/some types of FRB: X and Y engange in a behaviour that B does not approve of (they trade the money B has produced at a discount). Therefore B enacts a law that makes such behaviour illegal. X and or Y call B a counterfeiter.

Now, apart from the obsession with making it illegal for other people to behave in a way one does not approve, where is the analogy? Logically, the term “counterfeit” is used in a different context. In the first example, it is the one wants to prevent “counterfeiting” who is pushing for a new law, in the second example, the one who is accused of “counterfeiting” is pushing the law. It is clear that the phenomena in the first and second example are different. Using the same term to refer to them is a linguistic error.
Peter Surda February 17, 2011 at 9:18 am: Wildberry,

Counterfeiting is a verb. One normally understand that one who COUNTERFITS is a COUNTERFEITER. Therefore CONTERFITING refers to the acts of the COUNTERFEITER Those who experience its negative impacts are CONSUMERS, the victims of CONTERFEITING.

So, if A writes a novel, and X produces a copy and sells it to Y, the A is the consumer of this transaction? Really? What logic did you use to arrive to that conslusion?

Now, who is the AUTHOR?

Who’s the consumer?

Again, your argument boils down to someone not liking what others are doing. You did not explain what this has to do with counterfeiting. You can replace the word base “counterfeit” in the previous sentence with any other arbitrary term that has a negative connotation, and the term “consumer” with any other term that refers to someone who dislikes what is happening. The expressive value of the paragraph would remain the same and be equally useless as well as irrelevant to the debate at hand.

English, it’s a wonderful invention; you should try it.

You should try adding logic into using English.

The only thing?

From economic point of view, yes.

Price inflation is an effect of counterfeiting, which increase the supply of money.

The supply of money is in interpretation of the relationships in economy, rather than a phenomenon separate from the economy. If the supply increases and is not accompanied by a proportionate increase of the goods available in the economy, Austrians call this inflation.
Futhermore, inflation in the Austrian sense does not require counterfeiting, so your logic in your sentence is flawed. If there is no legal obligation to treat the extra money the same way, there is still monetary inflation although there is no counterfeiting. Like you say, an increase in the money supply is eventually countered by the decrease of market value of that money (which is what corresponds to your term price inflation).

Now, what does this have to do with the problem at hand in the first place?

Inflation also increases the scope of the economy in terms of the measurement of economic activity in units of dollars, for example, say GDP.

But GDP is also only an interpretation of the status of the economy based on units of value.

If you are saying that it does none of those things because the universe is finite, or some other form of navel-gazing, well…you are something accusing me of avoiding clarity.

You are making the same assertion all over again but never prove it. You are claiming that if you can use two different terms, it logically follows that they refer to two separate phenomena. That is a non-sequitur. It only follows if the two terms can occur independently of each other. Again, if you were correct, it should be trivial to prove that.

Let me ask you the question in most formal way. We have two descriptions, A and B, that refer to some phenomena. How can we determine if they are referring to the same phenomenon, or to different phenomena? My claim is that if they cannot occur independenly, they are referring to the same phenomenon. Apparently, you disagree. So, how else can you determine whether they are different phenomena?

Each passing moment, the economy has a different arrangement of its contents. How does this tautology advance any rational discussion? Your victory is measured by what, again?

The inadequaces of English language appear to be the cause for this misrepresentation of my argument. The different arrangement I am referring to is based on two hypothetical states that would exist in the same time (t2) subsequent to a decision available in a preceding time (t1). Your objection refers to comparing states in different times, t1 and t2. You are talking about something else.

Besides, my point was not to provide a complete definition of a bubble, but to pinpoint the exact spot where your argument is in error. I say that by interpreting two states that have a different distribution of expectations, you cannot draw the conclusion that one of them has a bigger scope. Again, it’s a non-sequitur, you are missing an important condition in your reasoning: one that explains why two different terms are in fact referring to two different phenomena.

sweatervest February 18, 2011 at 12:20 pm

Wildberry,

Throughout this threat you have adopted the general strategy of “I you don’t already understand what I mean, they you can’t grasp it.”

Peter has relentless asked you to define your terms, mostly to remove vagueness from your propositions, and your response every time has been something equivalent to, “I’m using the obvious definition and if you don’t understand it, that’s your problem”.

This is similar to the other strategy you use which is to claim that the current form of enforced IP law answers all of these conceptual difficulties, and it’s apparently my burden to go find where in the IP law these answers exist. This is the same thing: if you don’t already believe me, then you are wrong and it’s not my job to set you right.

Kid Salami was doing a better job but he appears to have given up by saying, “you’re 180 degrees backwards, don’t you see that?” No…

It’s all circular reasoning: IP as defined as what it is. It is justified the way it is justified. It has to exist because nothing would work if it didn’t exist. Counterfeiting means counterfeiting and if you don’t understand that then too bad. Economic rights mean what they obviously mean. Property rights are property rights.

I’ll do what I always do, which is present my path to anti-IP as concisely as possible:

What is there “property” and why are there “property rights”? The answer is because of rivalry. There exist actions that actors want to commit, but there are times that multiple actors want to commit actions that are conflicting: one person committing this action means another person cannot be committing this action. A simple example of such “rivalry” is a piece of food, and two people that want to eat it.

Thus conflicts will arise. Conflicts can be solved by might (coercion) or by argumentation, and these two are the only possible solutions to a conflict. If neither might nor argumentation is employed, the conflict will still exist. Property rights constitute the set of arguments concerning what behavior is justifiable and not, and by to the nature of this an “ethical argument” is, as any argument is, constrained by the “a priori of argumentation.” One cannot, in the process of an ethical argument, deny what is necessary for one to be able to argue. In particular, one could not argue if another commits aggression on him, and so this establishes “non-aggression” as the axiom of property rights. Furthermore, one must be able to homestead resources by recognizing them as scarce (i.e. means for an action) and mixing their labor with them. If one could not do this one could not acquire ownership of one’s body, and one could not argue.

Can we be sure this captures the totality of property rights? Yes!! “What if there are other types of property rights?” There cannot be, because this observation describes exhaustively what situations will necessitate property rights and which will not. Any other proposition of a property right will either be redundant (restate the homestead principle) or conflicting (contradict the homestead principle).

IP is not a part of this system for several reasons. The first is that ideas are always non-rivalrous. There is no such thing as a conflict over use of an idea, only conflict over scarce resources like recording media. Thus IP can only be a claim of ownership to scarce resources that is different from, and therefore contradictory to, the homestead principle. That the first user acquires ownership implies unavoidably that no other later user can acquire ownership (without the current owner voluntarily transferring ownership). If one comes under ownership of a blank tape, for example, so long as he did not steal it from a store and that the store did not steal it from the manufacturer, etc. then he is now the owner. Another person claiming partial ownership over this blank tape by insisting what can be stored on it cannot avoid conflicting with the first person’s claim to ownership. Two people cannot own the same thing. Either the person who bought the blank tape owns it, or the person who makes storable creative works owns it.

The anti-IP side has dodged this clear conflict between IP rights and property rights by saying, “You can’t use your property to violate other property”. This is of course true, and is completely off-topic. It is a misunderstanding of the situation, and also an assumption of the desired conclusion, to draw an analogy between a person not being able to use *his* blank tape to copy recordings and a person not being able to use *his* body to rob others.

The reason is that why a person cannot make any use of his body is because some of those uses violate the property rights of others. If I break your blank tape, I have committed aggression by destroying your property.

But when we try to apply this to IP, we end up having to accept that creative authors gain ownership claims over every possible recording device (even human brains, a problem I will address shortly). For if a person is not allowed to use *his* recording device to copy recordings, this can only be because an act destroys or trespasses on the property of the creative author. This is only possible if the creative author owns the blank tape, the only thing that has changed in the process. Otherwise, apparently a person is not allowed to use *his* recording device because it will affect *his* property. It becomes no categorically different from a person not being allowed to take drugs.

It conflicts with homesteading that a creative author gains ownership claims over recording devices by authorship, so this possibility is out. The other possibility is that by copying onto my blank tape, I violate some other property right of the creative author, which could only be his rights in his “ideas”, but this fails the rivalry test and there simply is no such thing as rights in ideas.

Thus there is no way to actually establish that a person using his blank tape to copy a recording, even if he sells it for a profit, is an act of aggression against any other owned property, because the only actual property it even affects is the blank tape, and this is either owned by the creative author or the person who bought the tape, not both. A creative author never homesteaded or was traded the blank tape, so he patently does *not* have any ownership claims over the blank tape and thus cannot claim to have suffered aggression upon the owner of the blank tape copying a recording onto it.

The only possible way “I can’t make every use of my body, for example killing” can have any relation to “I can’t make every use of my blank tape, for example copying” is if we accept that copying violates the property rights of others which implies that creative authors have ownership claims in every possible recording device. This includes every human brain, which means a creative author would have ownership claims over every person’s brain, and one would be violating IP by simply overhearing a protected idea (an act of copying) and inadvertently storing it in one’s memory.

The most important point I am making is that there is *no analogy* between the “limitations” on physical property rights, which exist only because surpassing those limits would violate other physical property rights, and the limitation on physical property rights IP implies. It is an error to draw parallels here, because there are no conceivable property rights in ideas, so IP must be a redistribution of physical property rights that necessarily conflicts with the homesteading principle and pulls the rug out from under the entire theory of property rights at all.

This is why Wildberry has turned to circular reasoning, because if we broke this down into simpler terms the fallacy will be immediately exposed. There is no theory of property rights that incorporates IP without contradicting itself, and this is obfuscated by taking the basis of property rights as “given” or “obvious” so as to avoid explicitly saying what must be directly contradicted in adding IP rights to this system.

Wildberry February 18, 2011 at 2:48 pm: @sweatervest February 18, 2011 at 12:20 pm

“Throughout this threat you have adopted the general strategy of “I you don’t already understand what I mean, they you can’t grasp it.”

I disagree, but let’s see where this leads.

“Peter has relentless asked you to define your terms, mostly to remove vagueness from your propositions, and your response every time has been something equivalent to, “I’m using the obvious definition and if you don’t understand it, that’s your problem”.

I am apparently not the only person here who has trouble following Perter Surda, if that is who you are referring to.

Let me make this clear. Are you familiar with Aristotle’s Principle of Non-Contradiction? That is Peter’s mantra. The philosophical debate surrounding that principle has been going on since he articulated it. If it is Truth, as Peter seems to believe, then why, after all these years, has it not been resolved once and for all.

The answer is simple. If I make a simple statement, “My father is old”, you can either take a plain understanding of the meaning, or you can refuse to do that by pointing out the vagueness of the words. What does “my” mean? Define your terms. How “old” is old? To such a response, communication is impossible. Words are ultimately vague at some level, just like a law is vague at some level. This is an obvious truth concerning the approximation of the interpretation of reality by human cognition and expression. Sorry, but I didn’t invent reality.

Peter Surda is a software engineer. That makes him a mathematician, of sorts. If all the realities of the human experience could be reduced to a formal proof in the context of mathematics, it would be obvious to everyone who tried. It cannot, except for very limited formalized expressions like 1+1=2. That kind of statement can be proven to always, in all circumstances, yield the same result. Certain economic postulations can be reduced to a formal proof, as can the theory of Relativity.

Narratives concerning complex levels of perception and expression don’t work like that. So, in my opinion it is childish to answer every statement with a demand to “define your terms” and then to complain that they lack mathematical precision.

It is possible to rely on the common understanding of the English language, and ask for clarification when it impedes communication. It is not necessary to re-define every word. What is important is communication.

“This is similar to the other strategy you use which is to claim that the current form of enforced IP law answers all of these conceptual difficulties, and it’s apparently my burden to go find where in the IP law these answers exist. This is the same thing: if you don’t already believe me, then you are wrong and it’s not my job to set you right.”

You are wrong about this, in my opinion. If you ask me to define how “substantial similarity” works in the application of copyright law, I can say, “it works like this”, and point you to the language of the law that describes how it operates. I could take the time to explain it to you by retyping the scheme here, but you and others have made it clear that you give no authority to the source, since it is merely “statist aggression”, or whatever. So why should I bother to go to the trouble to lay it out for you, especially if you could read a couple of paragraphs of text and get it yourself? Do you see the problem?

“Kid Salami was doing a better job but he appears to have given up by saying, “you’re 180 degrees backwards, don’t you see that?” No…”

At some point, I am not responsible for your inability to understand. Kid was making an obvious observation about how Peter had cause and effect backwards. Peter was saying something like the copy had an effect (or no effect) on the original. What is correct is that that the original is the cause of the copy. That is why copying is tied to the property rights of the original, not the other way around.

“It’s all circular reasoning: IP as defined as what it is. It is justified the way it is justified. It has to exist because nothing would work if it didn’t exist. Counterfeiting means counterfeiting and if you don’t understand that then too bad. Economic rights mean what they obviously mean. Property rights are property rights.”

The fact that you claim tautology doesn’t make it so. Pick one “fallacy” and argue with me. I’m game.

“I’ll do what I always do, which is present my path to anti-IP as concisely as possible:”

I’m bracing myself for defeat…

“What is there “property” and why are there “property rights”? The answer is because of rivalry. There exist actions that actors want to commit, but there are times that multiple actors want to commit actions that are conflicting: one person committing this action means another person cannot be committing this action. A simple example of such “rivalry” is a piece of food, and two people that want to eat it.”

Despite the awkward grammar, I get it. Things that are scarce can’t be used and controlled by the same person at the same time.

If I assert that “original works of authorship” are scarce, whatever that means, then it is property according to our definition, right?

“Any other proposition of a property right will either be redundant (restate the homestead principle) or conflicting (contradict the homestead principle).”

So we agree then? Creating an original work of authorship is an act of homesteading a scarce resource, and therefore you accept that there are legitimate property rights associated with this act?

“IP is not a part of this system for several reasons”

Ooops. I guess not.

“The first is that ideas are always non-rivalrous.”

Irrelevant for two reasons: First, “original works” are not “ideas” and it is an equivocation to claim they are. Second, no IP law seeks to protect ideas, and in fact the language of the law itself specifically and explicitly excludes idea and other things considered to be in the public domain. How do you reconcile your position with this simple, verifiable fact?

“That the first user acquires ownership implies unavoidably that no other later user can acquire ownership (without the current owner voluntarily transferring ownership). “

You have just restated the essence of IP laws. Certainly you would agree then that authors of an original work (original means no one else has owned it before) acquires ownership rights in his work. What’s the problem?

If one comes under ownership of a blank tape, for example, so long as he did not steal it from a store and that the store did not steal it from the manufacturer, etc. then he is now the owner. Another person claiming partial ownership over this blank tape by insisting what can be stored on it cannot avoid conflicting with the first person’s claim to ownership. “

This is where you get all balled up. IP law does not give the holder of IP rights power over your tape. So you own your tape. You can use it however you wish, with the exception of certain prohibited uses. For example, you cannot use it to strangle your neighbor. It is still your tape, which the prosecutor would find convenient to his case. He would NOT claim at trial that your neighbor owns your tape. That would be dumb and inaccurate. He would claim that you used your tape for a prohibited purpose.

Another prohibited purpose is that of fixing the property of another on your tape in specific ways and for specific purposes, say bootlegging movies. Other than that, you can be as creative as you wish with your own tape.

“The anti-IP side has dodged this clear conflict between IP rights and property rights by saying, “You can’t use your property to violate other property”.”

As anyone who takes an honest look can plainly see, what you are saying above makes perfect sense, and in fact is wholly consistent with the way ALL property rights operate.

“This is of course true, and is completely off-topic.”

Huh? How is it off topic? It seems central to the anti-IP argument to me.

“It is a misunderstanding of the situation, and also an assumption of the desired conclusion, to draw an analogy between a person not being able to use *his* blank tape to copy recordings and a person not being able to use *his* body to rob others.”

Well, I do agree that someone here misunderstands the situation. In both cases you use as examples, actions that one takes with his own property conflicts with the rights of others. Since it is a conflict of uses, “we” have to pick who is going to win out. I prefer the non-violent road. So let’s make a rule. I will call it the “non-aggression principle”. The person who is minding his own business prevails over the one whose acts positively impact the other’s rights. So the copier and the robber lose.

“The reason is that why a person cannot make any use of his body is because some of those uses violate the property rights of others. If I break your blank tape, I have committed aggression by destroying your property.”

See? You get that, you just refuse to apply it to the specific case of IP, for no good reason.

“But when we try to apply this to IP, we end up having to accept that creative authors gain ownership claims over every possible recording device (even human brains, a problem I will address shortly).”

This is fantasy. Allow me to demonstrate. If I own a house, then is it fair, (using your terminology) to say that I have an ownership claim to all of the feed in the world that could be used to trespass on my property? That is ridiculous. What I could say is that I have a right to prevent ANYONE from trespassing on my property. Whatever particular pair of feet trespasses will be the ones I focus on. I will not claim that I own that person’s feet, I will just stop him from violating my rights. Hopefully, I can figure out a way to do that non-violently, which is more convenient and cheaper for me, in the long run.

“For if a person is not allowed to use *his* recording device to copy recordings, this can only be because an act destroys or trespasses on the property of the creative author. This is only possible if the creative author owns the blank tape, the only thing that has changed in the process. Otherwise, apparently a person is not allowed to use *his* recording device because it will affect *his* property. It becomes no categorically different from a person not being allowed to take drugs.”

I can follow your reasoning here, but it is fallacious. By analogy, if a person is not allowed to use his baseball bat to bash in the brains of another, it is only because all brains that could be bashed actually own the bat. Does that make sense to you?

The purpose of property rights is to hang out a sign that says, “This is my property. I will protect unauthorized uses of it.” No need to own a piece of everything that could potentially violate my rights. I can just wait until someone aggresses on my rights and defend from that specific act. Doesn’t that seem more logical to you?

“It conflicts with homesteading that a creative author gains ownership claims over recording devices by authorship, so this possibility is out. The other possibility is that by copying onto my blank tape, I violate some other property right of the creative author, which could only be his rights in his “ideas”, but this fails the rivalry test and there simply is no such thing as rights in ideas.”

These are all conclusions you reach by starting with a false premise; that “IP” is equivalent to “ideas” and that “IP” cannot be scarce. I hope you can now see that these are both false.

“Thus there is no way to actually establish that a person using his blank tape to copy a recording, even if he sells it for a profit, is an act of aggression against any other owned property, because the only actual property it even affects is the blank tape, and this is either owned by the creative author or the person who bought the tape, not both.”

o repeat, the tape is not owned by both, and the IP is not owned by both. Problem solved.

“The most important point I am making is that there is *no analogy* between the “limitations” on physical property rights, which exist only because surpassing those limits would violate other physical property rights, and the limitation on physical property rights IP implies.”

I agree, this is your most important point. It is not an analogy and it is not correct. IP is an actual property right, and therefore operates in ways that are very similar to ALL property rights.

“It is an error to draw parallels here, because there are no conceivable property rights in ideas, so IP must be a redistribution of physical property rights”

Just in case you missed the point about equivocation.

“This is why Wildberry has turned to circular reasoning, because if we broke this down into simpler terms the fallacy will be immediately exposed.”

That was entertaining and illuminating. As O’Riley likes to say, “Let’s let the folks decide.”
Peter Surda February 18, 2011 at 5:20 pm: Wildberry,

If it is Truth, as Peter seems to believe, then why, after all these years, has it not been resolved once and for all.

Why has what not been resolved once and for all? I thought that everybody sane agrees with the principle of non-contradiction. Without the principle of non-contradiction it is impossible to refute claims, so a debate is pointless. What, however, often happens, is that the debaters don’t agree on other assumptions.

Words are ultimately vague at some level, just like a law is vague at some level.

Yes, this is correct. but that still does not invalidate that contradictions don’t exist. It only explains that if two people appear to be in disagreement, it does not necessarily mean that they are in disagreement, but could also mean that they are merely talking about unrelated things.

This is an obvious truth concerning the approximation of the interpretation of reality by human cognition and expression.

And?

If all the realities of the human experience could be reduced to a formal proof in the context of mathematics, it would be obvious to everyone who tried.

Actually, my approach is the opposite. I’m a falsificationist. I’m looking for disproof rather than proof.

There is an infinite number of ways of interpreting phenomena. It is pointless to debate which of them, in isolation, is “correct”. However, we can take a set of such interpretations and attempt to determine whether the assumptions in that set are in a contradiction vis-a-vis each other or not. If it is impossible to determine that, than what we have is not a scientific theory. If there is a contradiction, then you have a false theory, if there is not, then you have a falsifiable but not yet falsified theory.

If the defence of your position is that all claims are vague, you are shooting yourself in the foot, because then debate cannot result in one of us persuading the other that they are wrong. Paradoxically, this approach only proves the futility of your posts: either you are wrong, or you can’t persuade your opponents that they are wrong. The same approach that grants you the absolute defence also makes your offence powerless. Maybe someone could make that into anime: Zettai bougyou, muda no kougeki. It would either terribly suck or be totally hilarious.

The fact that you claim tautology doesn’t make it so.

So, instead of confronting your opponent, you say that you disagree with his interpretation. Now it finally makes sense.

Peter Surda February 11, 2011 at 5:16 pm

pro-IP-libertarian,

In order for a creator to have their ownership of IP recognized they do have to carry out some physical manifestation that proves their mental work – drawings, patents, manuscripts, mailing writings to themselves, etc.

How you conclude from this that this act causes a claim on what acts other people can or cannot do is a mystery to me.

So there is some minimum amount of physical labor to prove them mental labor has been carried out. Mental homesteading requires some physical component, just like physical homesteading.

So? That still does not explain why this should result in claims on other people’s acts.

And note again that your framing still equates duplication with creation, and they are not at all equivalent.

This is not at all my argument. My argument is not that “duplication equates creation”. My argument is that “creation” cannot be a separate method of homesteading, because the only thing it can do is to alter physical property, which is already covered by physical property rights. Just like a “right to a job” cannot do anything else than force someone to employ people they would not otherwise employ. If one’s right to employ people based on your wishes is already covered by property rights, there cannot be a right to a job at the same time. Merely interpreting some acts as “creation” does not mean that there are new rights.

Furthermore, you are begging the question. Why should the act of creation make the act of duplication illegal?

“Fruits of one’s labor”

Throughout my time on this blog, IP proponents presented various metaphors to explain what they are talking about. “Fruits of one’s labour” is the most common one. But it’s only a metaphor. It tries to hide the fact that you are talking about causality (if X performs action A, and Y performs a causally related action B without X’s approval, then Y is violating X’s rights). There are multiple problems with that approach. The first one is that causality extends to infinity. Then there is the original problem that the only thing such an approach can result in is that it expropriates Y’s property and gives it to X.

I challenge you to provide a scientific definition of the phenomenon you base IP on (e.g. copying). I’ll make it easier and explain my position. Copying is a mix of causality and similarity/utility. From a point of view of economics, such phenomena are called externalities and substitutes. So, unless your claim is that all substitutes and externalities (which includes all competition as well) should be illegal, you need to explain how to distinguish when it is good and when it is bad.

Nuke Gray February 11, 2011 at 12:51 am

I mentioned this once before, but then people like Beefcake came along and obscured the issue. I am a minarchist, in that i believe that we should decentralise to the level of local governments. I am not a Rothbardian anarchist, (perhaps you could shorten this to Free Anarchism, from Free enterprize Anarchism, as opposed to the collective anarchists of tradition and commune) because I think someone will own the roads, so why not just limit governments to being road-owning companies? Whoever owns the roads can set rules for public behaviour, and licence whatever is advertised over local public spaces- so I advocate Public Intellectual Property, where people can make as many copies of something as they like on their own private property, but only the licenced original would be allowed to advertise on, or through, public spaces, and be the preferred version of the public entities (if it was something they could use.)

R.P. McCosker February 11, 2011 at 1:06 am

In “Rethinking IP”, Stephan Kinsella wrote:

“[IP is] in the Constitution […]”

Comment: Placed there by the mercantilists amid those seeking to centralize power in the United States.

“[…] Ayn Rand blessed it.”

Comment: And became very rich from it. As is her designated “intellectual heir,” Leonard Peikoff.

“[… T]he state wants to tax everything that moves [….]”

Comment: And that doesn’t move — so long as it belongs to free people and not the coercive entity of government.

John Brock February 11, 2011 at 4:49 pm

I am not an IP expert by any means. On one hand I kind of like the power that IP protection affords the IP owner. On the other hand, I find it somewhat rediculous that a single entity can actually have the sole authority to benefit from something virtually indefinitely. If I create a great cup and someone else comes along a creates the exact same cup, with our without prior knowledge of my cup and sells it, now there are two people selling the exact same cup. Wouldn’t that lead to new ways of producing that cup or cutting its cost or making it better, all which is good for the consumer? In other words, wouldn’t no IP (absent a contract) lead to innovation and benefits for the consumer?

Stranger February 11, 2011 at 8:42 pm

Stephan Kinsella always evades the most obvious flaw with his reasoning: that intellectual property is a creation of property producers, and that all producers have the right to own their product and to defend this product with the full force of the law (as it exists and is available to them). If producers create intellectual property rights, it is because it is in the economic interests of both producers and their consumers. Only parasites and exploiters oppose them.

For a long list of refutations of Kinsella’s fallacies, see the fallacies of intellectual communism.

nate-m February 11, 2011 at 9:01 pm

http://en.wikipedia.org/wiki/List_of_fallacies

Stephan Kinsella always evades the most obvious flaw with his reasoning: that intellectual property is a creation of property producers, and that all producers have the right to own their product and to defend this product with the full force of the law (as it exists and is available to them).

I think this one is covered by “petitio principii”. Restating what your saying:

IP makes sense because people have a right to IP.

If producers create intellectual property rights, it is because it is in the economic interests of both producers and their consumers.

This doesn’t even make sense as a statement. Producers don’t create intellectual property rights. Governments create copyright and patents. Patent holders and copyright holders sell and transfer the ability to not be liable if they violate restrictions enforced by the government.

Also your assumptions are not only unsupported, but also are very incorrect and have obvious counter examples.

Many patent holders don’t actually produce anything. Patent and copyright holders can have items they sell or services they provide, but quite often they do not. I deal with this situation almost daily. Most people that sue on software patents are not programmers and do not produce any products. The only service they provide is licensing their patents and settling out of court. And often they go after companies and individuals that never had anything idea that they existed in the first place.

Only parasites and exploiters oppose them.

This one is very obvious: http://en.wikipedia.org/wiki/Ad_hominem

Stranger February 11, 2011 at 9:07 pm

You have made literally no effort to understand what I said before replying.

nate-m February 11, 2011 at 9:34 pm

No.From what you said in previous post it’s safe to say that I understand what is being said on that website you linked much better then you do.

edit:

I mean seriously…

“Faced with the problem of producing for a public demanding intellectual goods, the producers invented the concept of copyright limitation.”

How can anybody say such a thing with a straight face?

It’s obvious that the author feels that history or understanding of what IP is, were it came from, and what is does is entirely unnecessary when he can just make up his own reality as he goes along.

nate-m February 11, 2011 at 9:58 pm

Here. Just to be nice to you I’ll explain how copyright was ‘invented’.

Copyright (at least the English version) was invented by Mary 1 in the mid 1500′s in order to prevent the spread of Protestant literature and to protect the Caltholic church from competing religious viewpoints.

At the time the printing press was a new invention and the powers-that-be were freaked out over the level of freedom and communication that it offered to their critics. Copyright was established so that the government could control who was and who was not allowed to operate a printing press.

Through that the company that was awarded the copyright monopoly learned how lucrative such monopolies can be.

After that copyright went away for a while and came back when censors, printing companies, and distributors of books conspired to bring back the restrictions decades later. It was never intended to benefit actual authors.

edit:

Oh, here is the first court of copyright:
http://en.wikipedia.org/wiki/Star_Chamber

Stranger February 11, 2011 at 10:02 pm: All of this is irrelevant. As I explained, copyright is created by producers, much like concert tickets are created by concert venues. Copyright laws are only constraints placed upon producers as to how they can defend their copyrights.
matt470 February 12, 2011 at 1:59 am: @ Stranger

Are you going to even have a serious go at this?

copyright is created by producers, much like concert tickets are created by concert venues. Copyright laws are only constraints placed upon producers as to how they can defend their copyrights.

So based on that then producers can just create their own laws. I can’t wait to tell my company management on Monday. From now on all our competitors are going to be banned from producing similar products to ours. Pay rise and promotion here I come. Yippee.
nate-m February 12, 2011 at 3:37 am: > As I explained, copyright is created by producers,

Before you were saying that the producers created intellectual property law. This new statement is a bit more accurate, but also misleading.

> much like concert tickets are created by concert venues.

It’s nothing like creating concert tickets. Concert tickets are created by printing out symbols on pieces of paper, which are then cut up into into smaller pieces of paper.

Copyrights are assigned to authors upon creation of a physical work completely regardless of whether they want it or not. For a author to get rid of copyright restrictions can be a troubling and irritating exercise, full of pitfalls and hidden liabilities.

I don’t see the connection.

> Copyright laws are only constraints placed upon producers as to how they can defend their copyrights.

Copyright law determines the scope of copyright. It defines what copyright is, how it can be used, length of term, how copyrights can be transfered, and other such technical legal details.
Stranger February 12, 2011 at 11:06 am: Concert tickets are not pieces of paper, they are claims to access a concert. Ticketing organizations are going paperless due to the fact that the paper itself is irrelevant – it is only a media for the claim to the concert spot.

Creating concert tickets is not creating a “law”, it is creating a good that consumers demand. If pirates began counterfeiting these tickets, then obviously the legitimate property owners would seek out and destroy them, and the conflict would go before a judge who would rule the law in this matter. That is how such a thing as copyright law comes into existence, but copyrights themselves are individual goods created by producers for very specific ends.
Peter Surda February 12, 2011 at 2:44 pm: Concert tickets are not pieces of paper, they are claims to access a concert.

In this case, they are two different interpretations of the same phenomenon. You use one or the other interpretation depending on which is more useful in a situation. To claim they are different is double counting. Just like you can’t drink litres of water without drinking pints of water, just like you cannot transmit information without using a medium.

Peter Surda February 12, 2011 at 4:54 am

If you think that your opponents do not understand your claims, then define IP without referring to causality.

Peter Surda February 12, 2011 at 4:46 am

Stranger,

if X performs action A, and Y performs action B causally related to A, does that mean Y is violating X’s rights?

Stephan Kinsella February 12, 2011 at 10:07 am

“Stephan Kinsella always evades the most obvious flaw with his reasoning: that intellectual property is a creation of property producers, and that all producers have the right to own their product”

Vague language permits you to equivocate like this. To produce means to rearrange owned scarce resources–goods–into other configurations that are more useful to the owner or potential buyers. Producing means to transform owned things. In this way wealth is created, but not new matter or new things; old things are rearranged. Value is created in the sense that the owner finds it subjectively more valuable in its new arrangement. If you beat metal into a sword you own the sword because you owned the material that it came from; and this “product’ you own for this same reason. But you can’t then say “beause you own the product of your labor” in this case, it means as a general rule that you own patterns of information too–this is the equivocation : you are using “produt’ in two senses. Typical of IP advocates. They are either stupid or dishonest.
http://blog.mises.org/14045/locke-on-ip-mises-rothbard-and-rand-on-creation-production-and-rearranging/

Stranger February 12, 2011 at 11:03 am

I am not sure what you meant to say here. In fact, producers of information do exactly what you claim production must be: they rearrange the physical nature of media to create value where there was none. They can then sell this media with limitations on its use so that the capital investment they made into the pattern can be protected.

Wildberry February 12, 2011 at 12:22 pm

To follow SK’s logic, you would have to assert that a book with blank pages or random marks of ink is equivalent to a novel. To use his analogy, one would have to believe that a shapeless hunk of metal is equivalent to a sword.

The value is added to tangible goods by incorporating intangibles. Mises acknowledges this fact in his treatment of human action, which much be preceded by rational thought, which is intangible, yet not a “phantom”. This fact does not negate one’s right to one’s production.

Peter Surda February 12, 2011 at 2:59 pm

Wildberry,

To follow SK’s logic, you would have to assert that a book with blank pages or random marks of ink is equivalent to a novel.

Well, that’s not correct.

Furthermore if I was to follow your logic, if person X performed action A, and person Y performed action B causally related to action A, and X did not like that, then Y would be violating X’s rights.

The value is added to tangible goods by incorporating intangibles.

I can actually agree with this. Value is added. Not new rights.

This fact does not negate one’s right to one’s production.

What is “one’s right to one’s production”? Another metaphor to cover the fraud.

Anthony February 13, 2011 at 6:20 pm

Wildberry,

A book with blank pages or random ink is physically different from from a novel. I am paying for the novel because I want to read the words tangibly written it it. If all I wanted was the intangible ideas I would just ask a friend to summarize the book for me, or read a summary online… in either case I would pay nothing.

Wildberry February 13, 2011 at 7:41 pm: I think you are correct. And by the way, copyright laws as they currently exist would not prohibit either of those things you mention.

However, would you admit that either of these things would not be the same experience a actually reading the book? Don’t you think that if you read the book after doing either of the things you suggest, you would get something from the reading that you can’t get by these other methods?

If it was actually possible to get all of the value by asking a friend, who would bother to actually read a book?
Anthony February 14, 2011 at 2:54 pm: The value is in the ink and the paper and their configuration on the page. That is all.

In the exact same way the value of a chair is in the wood and its physical conformation. If I find a piece of wood in the forest that is chair shaped it has value to me in the exact same way a chair I purchased would. The fact that there is no intellectual property in the wood from the forest makes no difference.
Wildberry February 14, 2011 at 4:08 pm: Anthony,
That’s an interesting point. You would agree then that there is a difference between the two?

In the found chair, it’s value for sitting in inherent in its natural form. Who would you compensate for its production? The best you could do is to try to pay God, or Mother Nature. From an IP point of view, you could say that the found chair was in the public domain, and no one has a better title to it than you, the person who found it. Once you “homesteaded” it, however, it would be yours to do with as you please.

In the case of the store-bought chair, however, it exists because some artisan designed it, bought materials, made a plan of construction, produced it, and eventually sold it to the store for wholesale. The store owner now has capital invested in the chair. The fact that people like to buy chairs to sit on makes it a reasonable investment. He makes a profit when you buy it, and now he has to buy another one from the artisan.

If the artisan placed the chair on consignment, to be paid when it sells, and the store owner took money from you but didn’t pay the artisan, what would you call that?

Whether enforced by contract law, torts (i.e. misrepresentation or fraud), or by relying on the rule of bailment in property law, in one way or another the artisan would have a cause of action because the chair was legitimately his property. He has an exclusive economic right in the chair he produced, wouldn’t you agree?

Explain to me where the analogy breaks down for IP?

I think you would have to argue that there was no “production” other than the act of printing words on paper, and when you “bought” the book, you were only buying ink spots.

Is that your argument? That since you can find a chair in the woods, then you are not obligated to pay the artisan if you “find” it in a store? Or that you have the right to set the price for his chair based on your theory that nature produces them for the taking? It is only worth the value you place on sitting, and there is no difference in the two cases, found and produced? Have I misunderstood you?
Anthony February 14, 2011 at 11:47 pm: You are paying for a piece of wood that looks comfortable. That is all you are paying for. I pay the store owner for the chair and then it is up to him to satisfy and contractual obligations he has. That has nothing to do with me.

The pro-IP assertion is that if I see someone else sitting on a chair-shaped piece of wood I am not allowed to go home and re-shape my own wood into a chair (or at least, having done so, I can’t sell or give my chair to someone else). Do you truly not see that my ownership of the wood is being violated by IP?

Or, since you have demonstrated your affinity for American IP laws (you refer to them a lot), if I was already making and selling chairs that I designed and someone else thought to patent the “chair” (even if they thought of it after I did) I would be forced to stop producing my own invention made with my own materials.

However you answer the rest of this question please at least tell me that you are not in support of the use of IP my last example… If you are I am afraid that your sense of justice is too far from mine for any further conversation to be fruitful.
Wildberry February 15, 2011 at 11:49 am: Anthony,
“That has nothing to do with me.”

Perhaps, but it has everything to do with the economic rights of the artisan. Your preference for the chair is the demand which the artisan’s production satisfies. He gets paid and the world goes around. Break that chain and chair might be hard to find.

“The pro-IP assertion is that if I see someone else sitting on a chair-shaped piece of wood I am not allowed to go home and re-shape my own wood into a chair (or at least, having done so, I can’t sell or give my chair to someone else).”

With all due respect, you are confused. In your fact pattern, you are raising a design patent. So you have to stick with the facts of that. A design element that cannot be separated from the useful object cannot be patented or copyrighted, so your example fails, if your purpose is to show how doing what you say is a reason to oppose all IP Laws. It is not reasonable to oppose something for doing what it specifically seeks to avoid.

“Do you truly not see that my ownership of the wood is being violated by IP?”

No. I see that your ownership rights, to act with your own wood, is NOT being violated by IP, only by the assumptions you make about how IP laws operate. Your assumptions are incorrect, so your conclusion is also incorrect.

“Or, since you have demonstrated your affinity for American IP laws (you refer to them a lot), if I was already making and selling chairs that I designed and someone else thought to patent the “chair” (even if they thought of it after I did) I would be forced to stop producing my own invention made with my own materials.”

If this was possible, you are correct. It is not possible, so you are incorrect. The reason is because the IP laws you oppose do not operate this way. Without referring to them further, which you seem to criticize me for, the proof is in the law itself. You can’t base your argument on a claim the law does something it doesn’t.

“However you answer the rest of this question please at least tell me that you are not in support of the use of IP my last example.”

I am happy to inform you that I am not and would not be in favor of IP laws that operate in the way you describe. Chairs designs, meaning 3 or 4 legs and a platform that supports the weight of a human, are not protectable under IP law anyway.

“If you are I am afraid that your sense of justice is too far from mine for any further conversation to be fruitful.”

You will have to decide. I think I am being fair with you.
Anthony February 16, 2011 at 12:12 am: Wildberry,

You have been fair, so I will be fair as well.

I recognize that I was using a simplification by mentioning a chair, and that those simplifications caused a divergence between my example and the law. My underlying points, however, do apply to many instances of IP law that do exist.

If instead of a “chair shaped piece of wood” I saw a manager walking with his staff through the park and I decided to do that with my staff, a patent on the business method for “increasing worker productivity with walks in the park” could prevent me from doing so.

If instead of making a chair I wrote a program that used, for example, information in a certain type of nested table, I could be prevented from selling my program by a patent on that technique, even if the patentee developed their technique after I developed mine.

I was speaking in generalities and I admit that I may have oversimplified in my previous post. However, the intent and effect of patent laws (since that is the type of IP law most related to my examples) are in principle the same as the hypothetical examples I gave earlier.
Wildberry February 16, 2011 at 1:43 pm: @Anthony February 16, 2011 at 12:12 am

“I recognize that I was using a simplification”

That’s OK, I think it illustrates the issue nicely.

“My underlying points, however, do apply to many instances of IP law that do exist.”

I don’t’ think so. Let’s see.

“If instead of a “chair shaped piece of wood” I saw a manager walking with his staff through the park and I decided to do that with my staff, a patent on the business method for “increasing worker productivity with walks in the park” could prevent me from doing so.”

Not really. If you are using the patent standard here, you need unique + useful and it cannot already be in the public domain. So there is no patent of a business method here.

“If instead of making a chair I wrote a program that used, for example, information in a certain type of nested table, I could be prevented from selling my program by a patent on that technique, even if the patentee developed their technique after I developed mine.”

Patent is the highest threshold that has to be met in the IP world. So there is a big question as to whether it would be patentable. It might be protected under copyrights, which is a weaker protection, but still has a pretty high threshold for “original works of authorship”. You would have to show that you met that standard if anyone used your program and you wanted to protect it. By the way, YOU are the one with the cause of action, and you have o make your case before it can ever be brought to trial, and only after you won your case could your rights be enforced.

Next you are raising the issue of prior (or simultaneous) invention. First, the standard is when it is invented, so you would have had the opportunity to patent it before the other guy. Why didn’t you?

Second, let’s say there really is a unique (but very rare) case where two completely independent inventors came up with the very same idea at the same time, and both rushed to the patent office and tried to file. Even under those circumstances, the injustice of patents is going to affect a very small number of people, and is certainly not a sufficient argument to throw out the entire concept of IP protection.

Under the facts above, the first to invent gets the patent, provided that can be PROVEN.

Also, if you are the first to invent, but don’t file for over a year, you also lose to the later inventor who files promptly. If you file just before the year is up, that year counts against your term, so there is no advantage for waiting, which is consistent with the policy to provide for public access as soon as possible.

Nonetheless, I think there is some merit to the idea of compelled patent sharing for real situations of simultaneous invention, however rare. When two companies are competing for the same patentable technological breakthrough that enables some unique and useful invention, some sharing seems reasonable. Maybe the winner gets a bigger share, but the loser, say providing he gets it done within 120 days of the other, also gets economic rights.

My point is this: When you actually take the time to see how the law ACTUALLY operates, it is not really as you have come to understand it.

This is my criticism of SK’s approach to this subject. He would be stronger in his position if he started with a fair reading of the law, and THEN argued why it is wrong. Instead he encourages misunderstandings about how it operates, gives a “parade of horrors” as if they are central to the case, and supports inaccurate representations made by his supporters. As I’ve said before, it seems he doesn’t much care WHY someone is opposed to IP, as long as they are. I think this is because his over-riding agenda is to promote Rothbardian Ancap philosophy. Unfortunately, smart people like you learn to repeat his mantras, and this discussion gets all balled up.

For the record, what I am interested in is exploring where CURRENT LAWS conflict with the principles of the economic policies of Austrian economics, especially as illuminated by Mises. That is why I am even here. IP is just a vehicle for that analysis. For example, through the literature and writings on this site, I understood for the first time WHY fractional reserve banking is a problem. That’s interesting.

Anyway, it has proven to be very difficult to ever get to that topic.

“However, the intent and effect of patent laws (since that is the type of IP law most related to my examples) are in principle the same as the hypothetical examples I gave earlier.”

I hope you can see now, in all fairness, they are not. But the principles you support are not generally in opposition to mine. Isn’t that interesting? You would never know it, would you?

iawai February 13, 2011 at 9:08 pm

No, the anti-IP logic recognizes the difference, but it further sees that a novel imagined, typed, and published by you is different than a novel containing the exact same words that has been typed and published by me.

You may call me a forger, plagiarist, or IP-pirate. But I have not harmed any attribute of the novel you published. Therefore you have no right to harm any attribute of me or my property. You are free to refuse to trade or associate with me, and encourage others to do so as well. You may even demand a “licensing fee” from me if I wish to keep printing my novel and do other business with you and your supporters. The market always has a solution, you just need to allow it to work, and not jump to the use of force.

Wildberry February 14, 2011 at 12:42 am: Iawai,

I’m just curious how you come to that conclusion. How are the exact same words in the two books different? Do you think the primary difference is that they are fixed on different pieces of paper, and some of the paper belongs to you?

Is there any way that you can imagine how that could happen without literally copying from an original? Do you believe that a monkey and a typewriter can write a novel, given enough time to randomly put the right letters in the right order to create Gone
With The Wind?

Also, you are aware that the test for infringment is not harming “any attribute of the novel you published”? That is not the issue; it is the existence of an exclusive economic right to an original work or authorship. Do you really claim that you have no idea what that means?

The issue is whether there are rights involved. If there are, the nature of rights is not generally left up to the discretion of others. In your scenario, it is up to you what you do with my novel, not me. That means I have no rights of property to deal with in the market. Therefore, on what basis could I demand licensing fees, or withold them if I wished?

You use the phrase “my novel”. That implies that you have rights in it. Is that what you are saying? I’m not talking about pieces of paper, I’m talking about the other stuff besides paper, ink and binding. I’m talking about that expression of an author that makes a book different that bunch of blank pages. Are you saying that you have some claim to that work becuase you bought some of your own paper and ink?

I would really like to hear your explaination of how you get to that conclusion.
Regards,
Peter Surda February 14, 2011 at 3:12 am: Wildberry,

How are the exact same words in the two books different?

They are different because they are not mutually exclusive. An action involving one of them has no effect on the other. If you disagree, show an example to the contrary.

it is the existence of an exclusive economic right to an original work or authorship

Even though you still have failed to explain what “exclusive economic right” is, you are avoiding the actual problem that even if I agreed that such a right existed, it would contradict other rights. If you disagree, show an example of such an “economic right” that does not involve expropriation of physical property (apart from the obvious one where they are identical, but then the term is redundant).

You use the phrase “my novel”. That implies that you have rights in it.

Just like the phrase “my wife”, “my country”, “my school”, or “my record” does? If you create a record, others beating it violate your rights?

I’m talking about the other stuff besides paper, ink and binding.

That’s merely another interpretation of the same phenomenon. The proof is that you still have not explained how you can have one without the other. How you can have a pint of beer without having 473.176473 milliliters of beer?

iawai February 13, 2011 at 8:59 pm

If I were the first to carve out a chess game, I would have changed the arrangement of the wood/stone to make the end result valuable in my eyes or in the eyes of others in satisfying our demands.

I could sell that manifestation of the chess set, but I could not prohibit others from carving and selling their own sets. The thing made by me, the inventor, was the physical chess set. That is tangible property, and is protected by traditional property law (which itself could be improved by returning to a system of freely competitive courts). IP is everywhere a statutorily created “right”. You could certainly sign a contract with a landlord mall so that they would not allow any other tenant to sell your invention, but you have no authority to tell people generally what they can do with their resources.

As a consumer you are free to decide that you will only purchase from those people you decide are legitimate “inventors”, but on what authority can you tell me that I can not buy the cheap knock-off?

These are all typical arguments of Mercantilism. “We would be more profitable if we cooperated, so lets force cooperation through the state?” The “We” of course is not any industry, like “inventors” in the abstract, no, “we” refers to those already politically connected large firms that are helping write the laws and the bureaucracies built to support them. Never an analysis of the costs of forcing a single central plan without 100% of the people. Never an analysis of how if a monopoly is granted today, then there is no incentive for competitors try to displace their ideas into the future, and no incentive for the monopolist to do an effective or efficient job.

Wildberry February 12, 2011 at 12:14 pm

“Typical of IP advocates. They are either stupid or dishonest.”

Very persuasive.

Peter Surda February 12, 2011 at 2:54 pm: If IP proponents are not stupid, then where are the definitions? If they are not dishonest, then where are the answers?

REPLY

Wildberry February 14, 2011 at 3:41 pm

Stranger,

I had not seen your site before. Opponents of IP would do well to address the fallacies you have described. This is very well done.

Alpheus February 28, 2011 at 6:49 pm: I have looked at these “fallacies”, and they do not persuade me. It contains exactly one fallacy in and of itself: that ideas aren’t scarce.

If this weren’t the case, then why would inventors be so eager to get patents before someone else “scoops” them?

This applies far more to patents than to copyright, but it even applies, to some degree, to copyright: we, as humans, pull ideas from our culture and training, and then re-configure them to our own desire. As a result, independent convergence on an idea happens surprisingly often! While it doesn’t happen word-for-word in literature, it sometimes happens idea-for-idea. One author, I can’t remember his name, mentioned how he would be working on a story that would similar to one that Heinlein would publish, just before he got to publish his.

We even see it in newspapers: when one cartoon is similar to another one just published weeks ago, it’s usually *not* the result of copying–indeed, these things sometimes are submitted weeks in advance, so copying isn’t *possible*–it’s usually because these two cartoonists got the same idea, around the same time.

And sometimes simultaneous discovery results in lawsuits, both in patent law and in copyright law.

Now, there’s been a bit of discussion on what “homesteading” an idea would be. How do you claim an idea for yourself? You study it. You ponder it. You dissect it. You internalize it. You memorize it. You extend it. You try to find flaws in it. Only when you do all these things, and more, can you lay claim to it.

If you recite a poem, a speech, or a short story from memory, you internalize it. If you want to refute something, or to use something to back up your own ideas, you quote it. If you want to share a passage from a novel with a friend, to get that friend interested in the work, you photocopy it. *Heck*, if you just want to read a novel, you just check it out from the library and read it–even though, by doing this, you subvert the “economic rights” of the novelist. And all this is likely to be covered under “fair use”–which shows how arbitrary copyright law is like *nothing* else, hence the term “likely”.

I am a mathematician who has homesteaded many ideas found in linear algebra, topology, and quaternions–and even a few in using these for computer graphics. I’ve spent many years, and am in heavy debt, to obtain this knowledge. I have heard rumors that using these things for computer graphics may be patented–and thus, programs I have written, and may write in the future, may infringe on these patents.

Who are *you* to tell *me* that I can’t use ideas I homesteaded in my own work, just because someone went and patented them? It doesn’t matter if I could drudge up prior art: I cannot afford a patent attorney!

REPLY

Anthony February 14, 2011 at 11:57 pm

Wildberry,

Stranger’s fallacious fallacies (not bad, eh?) have been debunked many times here and elsewhere, the main criticism being that they assume what the seek to prove (that information is property).

In any case, what Stranger discusses in his article is very different from the IP laws we have now. There would be no patent, copyright terms would be infinite, and I assume that there would be no prohibition against derivative works (combined with unlimited copyright duration they would spell the end of progress). Is that the sort of IP that you support?

Wildberry February 15, 2011 at 1:56 pm: No. And I do like “fallacious fallacies”. Not bad.

REPLY

Peter Surda February 15, 2011 at 3:09 am

Just in case you’re wondering, Stranger is just as stupid and/or dishonest as other IP proponents.
He does not answer the posts I post here or on his blog, and he also deleted my posts from his blog. The modus operandi of IP proponents is cowardly running away from a debate. Here is an example that he deleted:

Ok then, let me try again. The essence of my post was that you did not address my points.

If the absence of IP was an accurate example of Mises’ description (i.e. factor f that does not carry a price), then it must be possible to show an economic transaction which does not involve factors that carry a price. Or, if you’d like to approach it from another angle, an example of an economic transaction which does not involve the use of physical goods. If your assumption is correct, this should be trivial. Would you be so kind and provide one?

The question is not, as you portray it, whether IP is “real”. It is whether it is something else than an alternative interpretation of the physical. If it is not, then the whole argument for IP falls apart. If it is, then it should be easy to demonstrate that.

If your position is that IP is more important than the physical property, that’s fine. But the position that they are equally valid requires demonstrating that they can be interacted with independently.

Furthermore, you still have not provided a definition of IP. You only explain what it should do and why people should support it, but not what it is.

TokyoTom February 16, 2011 at 4:16 am

Stephan, in your eagerness to find a strong “principled” basis to reject IP, you ignore the fact that, like physical substances/resources that we find valuable and worth protecting (which protection our society acknowledges as appropriate via the term “property”), many ideas are valuable, take time to develop and may be worth defending.

Just as people and societies would protect physical property in the absence of a state, so too are they likely to try to protect some ideas, via concepts akin to present-day IP law. If we get rid of IP law, we will not get rid of IP — we will simply push it further into the non-state realm, where private institutions and mores (that’s mine! stealing is evil!) that protect valuable ideas will surely bloom.

It seems to me that many libertarians who disagree with you about the concept of IP can be convinced that the current statist IP regime is corrupt and should be abandoned.

Accordingly, isn’t there ample room for common cause in building opposition to statist IP, and for enlisting help in constructing and understanding free-market alternatives?

Or must every victory be a Pyrrhic one?

Regards,

Tom

PS: For other readers, I’ve gathered some of my previous related comments here:

http://mises.org/Community/blogs/tokyotom/archive/2010/10/05/mises-on-copyrights-by-bettina-bien-greaves-his-student-translator-editor-and-bibliographer.aspx

http://mises.org/Community/blogs/tokyotom/archive/2010/07/23/libertarians-and-ip-shall-we-replace-the-state-with-quot-principled-quot-thoughtlessness.aspx

http://mises.org/Community/blogs/tokyotom/archive/2010/07/20/charitable-discussions-of-ip.aspx

http://mises.org/Community/blogs/tokyotom/archive/2010/07/15/ip-flamewars-community-and-principles-a-few-thoughts-to-stephan-on-quot-the-l-neil-smith-freetalklive-copyright-dispute-quot.aspx

http://mises.org/Community/blogs/tokyotom/archive/2009/12/20/what-is-quot-property-quot-a-few-weird-thoughts-on-evolution-society-quot-property-rights-quot-and-quot-intellectual-property-quot-and-the-principles-we-structure-to-justify-them.aspx

Peter Surda February 16, 2011 at 9:46 am

Tokyo Tom,

Stephan, in your eagerness to find a strong “principled” basis to reject IP, you ignore the fact that, like physical substances/resources that we find valuable and worth protecting (which protection our society acknowledges as appropriate via the term “property”), many ideas are valuable, take time to develop and may be worth defending.

In general, I can actually agree with this. If someone said that in his opinion, IP is more valuable than physical property, and therefore takes precedence, that would destroy my most important objection!

However, doing this requires admitting that you are a utilitarian. I guess a typical IP proponent has a big problem with this, so he prefers not to do it.

TokyoTom February 16, 2011 at 10:31 pm

Peter, isn’t it clear that is the IDEAS men have about how to use resources that makes them valuable?

While we must have food, water and shelter to survive, in an advanced economy all ‘property’ is a manifestation of an idea and the intellectual component is the primary value. The sand that goes into fiber optics and computer chips is dirt cheap.

Ideas are clearly as important as physical property — the question is simply whether those who want to protect either are justified in using the state to do so.

Afraid I don’t follow you on utilitarianism ….

Peter Surda February 17, 2011 at 2:33 am

Tokyo Tom,

my argument is that immaterial goods are an interpretation of the material goods, rather than a separate phenomenon. If I was wrong, it would be possible to show an immaterial good which does not contain a material good, or how to interact with an immaterial good without using the material world, or how to act without changing the physical world.

I don’t object to the claim that ideas have values. However, if we assigned property rights to them, we would need to sacrifice a proportional amount of physical property right. If you, in general, accept the concept of physical property rights (which all of IP proponents I debated so far do), then your only defence of IP can be that the rights you are gaining are more important than those that you are losing (= utilitarianism).

TokyoTom February 17, 2011 at 9:31 am

Peter, I’m afraid we may have different understandings of what ‘property’ is; my rather pragmatic concept is here:

Seems to me that humans and the societies they live in have rather flexible views of what is ‘property’, and it is easy to understand the choices in a utilitarian light; that is, resources that are given protection are those that are relatively more important and relatively more easily protected. What can be easily defended personally (and by relatives or employees) may be ‘personal’ property, while other property that requires cooperation may be community property or property in which individuals have limited personal rights and corresponding responsibilities, but in all cases people carry a shared sense of what is ‘right’ and ‘wrong’ — that is, a shared sense of what is ‘property’, whom it belongs to and what that means in terms of rights and obligations.

Intellectual property and physical property are not very different in these regards in our own society, and both would be likely to arise and exist in one form or another even without a state. In cases of both physical property and IP, what is considered property will be based on the relative values placed on those who control such resources and those who wish to be able to make use of them – that is, on the purely utilitarian considerations of the people involved. If those generating ideas wish to control their use by others and others find such ideas valuable, then they will come to mutually agreeable terms of use – such as a contract as to whether a book may be duplicated or shared, or the terms under which manufacturing know-how will be made available. No express social ‘utilitarian’ agreements are needed, though general/widely-accepted norms may of course arise.

Is this something that makes sense to you?

FWIW, my own view is that largely it is the material goods that are an interpretation of the immaterial ones (viz., people’s values and ideas) rather than the other way around.

Peter Surda February 17, 2011 at 10:05 am: Tokyo Tom,

I am afraid that you still do not address my objection. The objection is indifferent to the exact definition of property. It merely points out that no matter what your assumptions are, if they are contradictory with respect to each other, your position is wrong. Even if you change the assumptions, as long as they continue to contradict each other, you remain in error.

I’m sorry but I don’t have the time to read your whole article, so I’ll just make a summary based on what I think it says. Please correct me with I’m wrong. You are saying that as society evolves, people create rules of conduct and some of them are mandated by the use of force. Because there is a demand for “IP”, it is possible that people will include “IP” in these rules.

I have no problem with this construct. But it goes too far ahead of the argument. First of all, it does not address the problem that no matter how the rules are constructed, as long as they are self-contradictory, they cannot be based on correct reasoning. It also does not address my second objection (which I mentioned elsewhere) in that it does not actually explain what IP is.
Wildberry February 17, 2011 at 2:15 pm: TT,

In your posted link you said this:

“To the extent we’re past that, which is quite a ways indeed, property is a social construct that is flexible (though rigidified in various ways, including legislation) and based primarily on practical considerations as to what parameters best engender wealth and respond to shared purposes by minimizing free-for-alls, externalities, free-riding & rent-seeking and facilitating voluntary transactions.”

Mises called property a “human device”, and I have been repeating that here in support of the notion that humans agree what property is in order to facilitate the goal of cooperation, which is the very definition of society. The ways we choose, if rational, are designed to achieve goals which we seek to achieve. By “we”, I am referring to humans bound together in a society.

The connection between this and economic theory is that a “good” economic theory leads us effectively to the outcomes we desire. In this context, I have come to believe that the Austrian theory is superior to others. Therefore the operation of property rights and the economic policies employed to achieve desirable social goals should align.

Identifying those areas where the operation of laws and government conflict with the preferred system of economic policies is one way (a very good way) to navigate among the myriad of legal and political issues that most who post here agree are not producing the outcomes we desire.

Change, reform, revolution, whatever form of change one advocates, is best aimed at those specific conflicts. This ongoing debate about IP is simply a vehicle that is useful in the analysis of these conflicts. For this reason, I criticize SK and many of his followers about not granting a fair reading of IP laws in stating their opposition. As a result of this practice, much confusion results about what IP is, why it is tied to the same ethical principles, and in the same way, as any other legitimate agreement between cooperating humans. This in turn results in a non-productive debate, and little progress towards the obvious goal of coming together here on what and how to target desired change.

This makes us pretty ineffective agents for change. This is one explanation for why the libertarian political movement is so ineffective, in my view.

It appears from what I’ve read of your comments, you would generally agree with my views. I would be interested in your comments on this.

Stephan Kinsella February 16, 2011 at 12:51 pm

I don’t ignore the fact that ideas are valuable. This is incorrect. On your blog you say

Stephan Kinsella has another post up at the Mises Daily on “Rethinking IP”; while I share Stephan’s mission of ending state-sponsored IP – which has morphed into gross corporate-statist corruption, oppression and profound waste – as usual Stephan’s aggressive approach has generated as much heat as light in the comments section.

Rather than reaching a shared understanding of how damaging IP has become (there are real frightening aspects to the current situation) and putting heads together as to whether private alternatives are acceptable or likely or already exist, we have proponents and opponents of IP largely arguing past each other; one seems to assume that if there IS a “principled” basis for IP, then a state role must be accepted, while the other seems to assume that if there is NO “principled” basis for IP, then all IP is theft, so that those who produce useful or appreciated ideas, technologies, music, art and literature will go unrewarded.

How sad that even libertarians forget the role of private efforts and of communities in protecting valued resources and productivity!

I disagree that I “forget” this. And I disagree that we have to be consequentialists without principle. If we have a reason to oppose IP on principle, there is nothing wrong wtih communicating and explaning this.

TokyoTom February 16, 2011 at 10:46 pm: Stephan, you’ve acknowledged ideas are valuable, so then why you do this weird thing of assuming away the question of whether a free society would protect ideas – and ignoring the growing array of non-statist alternatives (since even state-created and -enforced IP is leaky)?

Widely agreed libertarian principle of no state coercion does not translate into a principle that free individuals, organizations and societies can’t evolve ways to afford protection for ideas – nor is such an effort needed to fight the IP/corporate-statism that concerns us all.

Tom

REPLY

Wildberry February 16, 2011 at 2:47 pm

@TokyoTom February 16, 2011 at 4:16 am,

I disagree with your characterization of how the various positions line up.

The principles of property creation, ownership, and the legitimacy of defending those rights is at issue with regards to IP.

SK and his supporters conflate that issue with whether it ought to be a government or private agency that is in charge of enforcement. For me, this is beside the point, but for SK, “We have IP because we have the State.”

What is displayed here is a fanatic intolerance of anything less that “total victory” along Ancap lines or argument. IP is simply SK’s vehicle for arguing that fundamental position, in my view.

If it is true, as he claims, that SK doesn’t “forget” the issue of the importance of free markets and private property as it relates to the concept that “ideas are valuable”, then why not a showing of more tolerance for discussions about how economic policies concerning how this value exchange SHOULD operate in an Austrian economic model? That is a discussion of principles, which apparently he favors.

This is apparently beside the point, because any discussion that includes any concept other than a stateless society is dismissed as spewing statist nonsense. Is this because the real boogie man is the State, not the principles of IP?

I have spent hours trying to run down complete misstatements and fallacies attributed to IP laws which they in fact do not contain. It is common to hear comments, for example, that imply that the State has a direct cause of action under IP laws; i.e. “the state will come after you with guns and lock you in a cage if you whistle a tune that you heard someone else whistle”.

We would all be better served by a tolerant, respectful and rational discussion of the relative merits of the various legal objectives of IP laws, given a fair reading of what it actually says and how it actually operates, and an analysis of how those laws comport with Austrian economic theory. That is the primary mission of this site, is it not? Austrian economic theory as it relates to libertarian (not Rothbardian/ancap) thought?

TokyoTom February 16, 2011 at 11:05 pm

Wildberry, I believe that ‘the real boogie man is the State, not the principles of IP’, and that Stephan’s arguments about the illegitimacy of IP are needlessly turning friends who also share a desire for freer societies into enemies.

I am confident that even if we had no states but free societies, we would have a wide variety of IP, all grounded both on a shared sense of what is right and wrong, and on the value of the information and cost of protection.

And yes, we ought to be able to discussa this civilly AND find many points of mutual agreement. We should all be allies in a community with a shared objective of creating more freedom from state-backed kleptocracy.

Wildberry February 17, 2011 at 1:39 am: TT,

I agree. Well said.

REPLY

TokyoTom February 18, 2011 at 1:22 am

Peter, thanks for your further observations. I think you still misunderstand my position about how ‘property’ arises. Property has its roots in competition over resources, and in the choices we faces as to what resources we devote our limited energies in securing and defending. In human societies, this is a process reflecting both competition and cooperation. This piece by Bruce Yandle is useful in illustrating how property arises:

http://www.thefreemanonline.org/featured/the-commons-tragedy-or-triumph/

Now, to address your specific points:

no matter what your assumptions are, if they are contradictory with respect to each other, your position is wrong.

Okay, but what ‘assumptions’ of mine are you referring to?

You are saying that as society evolves, people create rules of conduct and some of them are mandated by the use of force. Because there is a demand for “IP”, it is possible that people will include “IP” in these rules.

A nuance: the underpinnings of property are not deliberately created rules at all, but evolved and shared viscerally felt understandings, as well as culture. It is on this foundation that some mebers of society may consciously build rules that the rest of scoiety may adopt – in which case, our senses of right and wrong kick in.

no matter how the rules are constructed, as long as they are self-contradictory, they cannot be based on correct reasoning.

My position is that most ‘property’ is not consciously constructed at all. There are some deliberate choices involving one or more persons, in which case they rely on the respective preferences of the people involved, not MY assumptions. But yes, some (many!) deliberately made rules can be based on incorrect reasoning – in which case the rules ultimately fail.

It … does not actually explain what IP is.

In my view, IP encompasses various ways that societies protect ideas – from simple personal private protection of them to agreed protection among company employees, to agreed protection by contracting users, to devices/techniques that restrict copying, to feelings and community morals that copying is wrong without permission, to various types of sanctions, such as being expelled from a particular community and other moral sanction.

‘IP’ does NOT require a state.

Does this help?

TokyoTom February 18, 2011 at 2:23 am

Wildberry, allow me a few thoughts on your comments above: http://blog.mises.org/15633/rethinking-ip/comment-page-1/#comment-759516

Mises called property a “human device”, and I have been repeating that here in support of the notion that humans agree what property is in order to facilitate the goal of cooperation, which is the very definition of society. The ways we choose, if rational, are designed to achieve goals which we seek to achieve. By “we”, I am referring to humans bound together in a society.

Excvept the Austrian would point out that ‘we’ don’t choose as a whole, individuals make their own choices, typically based on building blocks constructed by others but also including subconscious and cultural ones.

a “good” economic theory leads us effectively to the outcomes we desire.

I think that in the Austrian view, a ‘good’ economic theory is simply one that accurately reflects actual huiman behavior, and notes how states often frustrate problem-solving while enabling the creaming of common resources and other one-sided practices by elites.

Therefore the operation of property rights and the economic policies employed to achieve desirable social goals should align.

The Austrian/libertarian view is that governments shouldn’t be consciously striving to employ any ‘economic policies’ to achieve any ‘desirable social goals”, as these are the objective of differening individuals all with differeing preferences, and that the state mainly just gets in the way, enabling kleptocracy and incompetence and creating rigidities.

Identifying those areas where the operation of laws and government conflict with the preferred system of economic policies is one way (a very good way) to navigate among the myriad of legal and political issues that most who post here agree are not producing the outcomes we desire.

An Austrian/libertarian would agree only in the limited sense that ‘the preferred system of economic policies’ is to get government out of the way. People of more limited ambition like me would say that we should focus first on rolling back the most destructive and outrageous (reflecting a shared social sense that too much ‘theft’ and disruption is ‘too much’!) government interventions. Such an effort requires building a community of people who have shared purposes – even if the shared purposes may not share precisely the same ‘principles’.

Change, reform, revolution, whatever form of change one advocates, is best aimed at those specific conflicts. This ongoing debate about IP is simply a vehicle that is useful in the analysis of these conflicts.

Austrians oppose coercive state interventions that faqvor soem while stifling others. While some want to do away with the state entirely, I believe it is more productive to focus on the most significant state interventions.

I would certainly agree with Stephan that IP is one the state’s significant and now increaasingly counterproductive interventions. In this sense, State-created IP is far more than simply ‘simply a vehicle that is useful in the analysis of these conflicts.’

I criticize SK and many of his followers about not granting a fair reading of IP laws in stating their opposition. As a result of this practice, much confusion results about what IP is, why it is tied to the same ethical principles, and in the same way, as any other legitimate agreement between cooperating humans. This in turn results in a non-productive debate, and little progress towards the obvious goal of coming together here on what and how to target desired change.

Let me disagree slightly: while we DO have an unproductive debate, Stephan and others are very right to point to ways that current state IP is extremely abusive and wasteful, and that the problem is growing. Yes, some may exaggerate.

But the REAL problem is that Stephan wrongly seems to feel that he has to attack ALL IP in order to round up opposition to STATE IP. But the two are entirely different; Austrians should not insist that, without state IP, there will be no free-market mechanisms and institutins that will arise to protect ideas. or that any such mecahisms, voluntarily agreed, would be ‘unprincipled’. Far from arguing with people’s rather visceral senses of what is right and wrong, Austrians should be directing such impulses to protect ideas into voluntary and non-statist avenues.

This makes us pretty ineffective agents for change. This is one explanation for why the libertarian political movement is so ineffective, in my view.

Sadly, I think you have a point. That is why I trouble Stephan by commenting here — I expect and hope for more from this particular community of libertarians.

Not sure how long you’ve been commenting here, but you’re certainly welcome, from my point of view.

REPLY

TokyoTom February 18, 2011 at 2:32 am

Looks like I’m having a problem with italics; Wlidberry’s comments are preceded by dashes:

—Change, reform, revolution, whatever form of change one advocates, is best aimed at those specific conflicts. This ongoing debate about IP is simply a vehicle that is useful in the analysis of these conflicts.

Austrians oppose coercive state interventions that favor some while stifling others. While some want to do away with the state entirely, I believe it is more productive to focus on the most significant state interventions.

—I criticize SK and many of his followers about not granting a fair reading of IP laws in stating their opposition. As a result of this practice, much confusion results about what IP is, why it is tied to the same ethical principles, and in the same way, as any other legitimate agreement between cooperating humans. This in turn results in a non-productive debate, and little progress towards the obvious goal of coming together here on what and how to target desired change.

—This makes us pretty ineffective agents for change. This is one explanation for why the libertarian political movement is so ineffective, in my view.

Sadly, I think you have a point. That is why I trouble Stephan by commenting here — I expect and hope for more from this particular community of libertarians.

Not sure how long you’ve been commenting here, but you’re certainly welcome, from my point of view.

REPLY

Wildberry February 18, 2011 at 1:00 pm: @TokyoTom February 18, 2011 at 2:32 am

Thank you for your thoughtful response. I have just a few comments:

“Austrians oppose coercive state interventions that favor some while stifling others. While some want to do away with the state entirely, I believe it is more productive to focus on the most significant state interventions.”

I think that ancaps and minarchists could cooperate in this regard. It seems a choice between doing nothing (i.e. even opposition to voting) because the whole government structure is going to collapse anyway, or doing something now. If we decided to do something, it seems rational to pick on the most egregious State interventions first. If we were really intelligent about it, we would identify those issues which have a low threshold to change while making a truly significant difference, or a high threshold for change that are game-changers, like real banking reform for example. If it got down to a point where we had accomplished minarchism and ancaps wanted to keep going, we could part company then. Before that point, it seems unnessary to be adversaries.

“I would certainly agree with Stephan that IP is one the state’s significant and now increasingly counterproductive interventions. In this sense, State-created IP is far more than simply ‘simply a vehicle that is useful in the analysis of these conflicts.’”

You are reading a little too much in my comment. I am saying the discussions here at mises.org are a vehicle for understanding principles upon which we may oppose harmful state interventions. Mercantile/State collusion is harmful and should be eliminated.

“Let me disagree slightly: while we DO have an unproductive debate, Stephan and others are very right to point to ways that current state IP is extremely abusive and wasteful, and that the problem is growing. Yes, some may exaggerate.”

Yes, it is always appropriate to give examples that support one’s position. However, if your examples support a position that is based on an inaccurate or unfair reading of the law, then it creates confusion among those who take SK at his word, given his expertise as an IP lawyer. It seems to me that if the examples are representative of some abuse, then that argument is not diminished by being honest about what the existing law actually is and how it operates.

As an example, it is common here to base an anti-IP argument on the premise that “ideas are free”, while as SK knows, both copyright and patent laws explicitly exclude ideas from protection. To even imply otherwise fosters confusion and undermines real understanding of the problem.

“Far from arguing with people’s rather visceral senses of what is right and wrong, Austrians should be directing such impulses to protect ideas into voluntary and non-statist avenues.”

Exactly. I really like your view about how principles of property rights arise as a result of the human need to cooperate with one another. That is why people HAVE a visceral objection to the assertion that there are no IP rights. It grates against a common-sense understanding of right and wrong. This point is articulated beautifully in a paper (and book) by Kathleen Touchstone. Are you familiar with her?

“Sadly, I think you have a point. That is why I trouble Stephan by commenting here — I expect and hope for more from this particular community of libertarians.”

Likewise, although I have noticed lately that more voices are coming to the fore in support of IP, perhaps because the are seeing that there is no reason to be intimidated by rude behavior.

“Not sure how long you’ve been commenting here, but you’re certainly welcome, from my point of view.”

About a year or so. It’s a pleasure corresponding with you. Thank you.

REPLY

TokyoTom February 20, 2011 at 9:48 am

“IP is antithetical to capitalism and the free market.”

Stephan, isn’t this more than a bit of an overstatement? Is IP impossible in a free-market? Is is antithetical to capitalism to invest in protecting ideas?

“Typical of IP advocates. They are either stupid or dishonest.”

I am tempted to say something flip by mirroring you, but I’ll bite my tongue, and simply say that this is utterly unhelpful, and that I hope you fell at least a little chagrin that you damage our community and your cause in this way.

Yours in striking at the root,

Tom