Mises blog; archived comments below.
As I’ve noted before, there are no good arguments for intellectual property.1 It’s really astonishing. Utilitarians say it’s “necessary” to “incentivize” innovation–but they have no evidence to back this up; it’s mere assertion and assumption.2 Randians and others who try to find a more principled basis for IP invariably make several mistakes–for example, that “creation” is an independent source of ownership,3 or that value is objective, intrinsic, “created,” and an ownable substance; and/or the quasi-Marxian idea that we “own” our “labor” and “thus” are “entitled” to some kind of “reward” for laboring.4
It’s hard to say which argument for IP is the worst, since they all just keep repeating the same errors, over and over. Rand’s was bad–a confused mixture of most of the fallacies noted above, a deontological-Marxoid-utilitarian hodge-podge masquerading as libertarian-Lockean principle (even Locke didn’t think his natural rights theory included IP; Rand I (“‘Creation’ means the power to bring into existence an arrangement … of natural elements that had not existed before”) should have known better than Rand II (“Patents are the heart and core of property rights”; Objectivists: “All Property is Intellectual Property”). Galambos’s was even worse, with its ridiculous amateur-engineer scientistic-crankish notions of “primordial” and “primary” property (every time you use “liberty,” you should drop a nickel in the Thomas Paine Descendant Royalty box).5 And there are some other arguments that are so absurd it’s hard to take them seriously.6
J. Neil Schulman, perhaps sensing some problems with standard arguments for IP, at least tried to set forth an original argument in his “logorights” theory. But it, too, is flawed.7 More recently, another libertarian sci-fi Neil, L. Neil Smith, make a half-hearted rear-guard attempt to justify IP, but it was not much more than assertion and repetition of old Randian IP assumptions.8
And now comes arguably the worst. As I’ve noted, “free market” proponents of IP and some leftist opponents of IP make the same error: they both assume IP is a legitimate subset of property rights. The IP libertarian supports IP because they believe it is a type of property. The leftist opposes IP because they agree with this classification, but they are opposed to property. So the leftist correclty opposes IP, but for the wrong reasons.
Leave it to an anarcho-capitalist cum socialist to come up with the worst possible combination of confused beliefs. In The case for socialist intellectual ownership, Voluntary Human Extinctionist Francois Tremblay (VHEMT’s motto: “May we live long and die out”) argues, as best I can tell:
- property is bad;
- therefore IP, as a form of property, is bad;
- but Intellectual Ownership (IO) is justified since we need to reward “the individual who laboured to discover,” but not “the owner of the idea itself, being an abstract piece of property”.
- “In the IO system, everyone is encouraged to manufacture products which take advantage of the innovation. There is no restriction of the kind we see today. The only limitation is that the cost-price must be raised by a certain percentage, reflecting the added cost of the innovation itself. In the case of artistic works, this percentage might be up to 1%, but in the case of innovations, it would be a range something like 0.1%-0.01%, the specific percentage in each case depending on how significant the improvement is.”
So…. he rejects property (bad) … and he rejects IP because it’s property … but he supports a variation of IP called IO based on the hoary, pseudoscientific Marxoid idea of labor-ownership. Hmmm. About as confused as can be. It’s like an innovation-VAT. Way to penalize innovation! As my C4SIF colleague Nina Paley noted to me:
Whaa? How exactly would the “added cost of the innovation itself” (?) be controlled, enforced, etc.? Looks like it would require a ton of surveillance. … I definitely mind the implication that a surveillance state is a “solution.”
The only limitation is that the cost-price must be raised by a certain percentage, reflecting the added cost of the innovation itself. In the case of artistic works, this percentage might be up to 1%, but in the case of innovations, it would be a range something like 0.1%-0.01%, the specific percentage in each case depending on how significant the improvement is.
And who is going to decide “how significant the improvement is”? Yikes.
Just goes to show you what happens when you lose your libertarian moorings, reject property rights, and adopt Marxoid fallacies about “labor” and other nonsense. As we say in law, res ipsa loquitur (the thing speaks for itsself).
[Mises cross-post]
- See also The Death Throes of Pro-IP Libertarianism. [↩]
- See “There’s No Such Thing as a Free Patent“; “Reducing the Cost of IP Law“; What Are the Costs of the Patent System? [↩]
- Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging” [↩]
- See The Death Throes of Pro-IP Libertarianism; and “Rand on IP, Owning ‘Values,’ and ‘Rearrangement Rights’,” discussing Hoppe’s criticism of property rights in value. [↩]
- Galambos and Other Nuts; Galambosian IP Recursion; Against Intellectual Property, p. 27. [↩]
- Absurd Arguments for IP. [↩]
- See Kinsella v. Schulman on Logorights and IP; On J. Neil Schulman’s Logorights. [↩]
- See “The L. Neil Smith — FreeTalkLive Copyright Dispute” and Jeff Tucker, “L. Neil Smith on IP“. For a sampling of some of other recent, futile libertarian attempts to defend IP and to stem the migration to the anti-IP side, see: “IP: The Objectivists Strike Back!“; “Shughart’s Defense of IP“; “Richard Epstein on ‘The Structural Unity of Real and Intellectual Property'”; “Yeager and Other Letters Re Liberty article ‘Libertarianism and Intellectual Property'”; “Objectivists: ‘All Property is Intellectual Property'”; “Objectivist Law Prof. Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors.” [↩]
{ 24 comments… read them below or add one }
Nice rant.
An innovative idea is in transition from unique, private and external to economies to infinite in numbers and internal to economies. It changes characteristics during this transition. At the beginning hardly anyone knows and applies it. If it is good it is a gem. At this point the bests work like property, scarce and all owners want to keep it that way. It has value and it is exchangable. Than it goes and propagate while looses its property characters and become common knowledge.
IP is supposed to deal with this transition, the internalization process, reason it is temporary. It seems you intentionally ignore this fact. You are only discussing the end phase while calling all proponents “socialists”. On the other hand, from the front end of this transition, pro-IP can retort “from everyone according to his ability to everyone according to his need”, the battlecry of the marxists.
Would you turn your attention once to the beginning of this transition? Where and how has value been created and how would that change without IP? Social engineering may leave that way, we have to be prepared!
Kinsella has not ignored this argument of a transition at all. I’ve seen him respond to this claim many times. To say that IP rights should be temporary immediately exposes the so-called right as immoral to an anarchocapitalist. By claiming there should be a sunset on IP shows that it is absurd when taken to its logical conclusion. You now must make the utilitarian case for IP. As he stated in this post, nobody cares to even try and prove the utilitarian case. Nobody tries to prove this because it is impossible to prove. They instead just speak the claim out loud and thus it must be true.
You are still obsessed with the end stage. You did not address the front end either. Ignoring it is not addressing.
You build your ideology on the wrong axiom that idea can not be property. The very measure of property, money is just an idea, digits or patterns. If people accept and want ideas to be property it will be property.
@Andras,
It seems the concept you’re looking for at the front end is a “trade secret”. At the germination of an idea, the idea holder can choose to share with select other people, at certain negotiated conditions (e.g a non-disclosure contract). At this stage, you could say that an idea is “scarce”, as only a few copies of the idea exist in a select few people’s heads/documents, so I guess you could consider this a sort of pseudo-property. It’s not really property, because it is not really scarce, it can be copied many times without damaging the original idea. So, I agree with you, at the beginning of an idea’s lifecycle, it very nearly almost qualifies as a type of property, but not quite. However, once the idea has spread to someone who has not agreed to these negotiated conditions, the illusion of this idea being a form of property collapses, as it can no longer be considered scarce in any sense. So, as I see it, the only way you can have a “libertarian IP” is for the original idea holders to keep the idea secret themselves, for as long as they can manage to do so. Once they can no longer keep this secret, this marks the end of the “term” of the IP. I think this is a nice free-market approach – the term of the IP-holder’s monopoly is directly tied to the skill and effort they put in to keeping the idea secret.
Does this address your concerns, Andras?
Colin,
Thank you for your input. It does not address though touches on it.
1) Even trade secrets are attacked by Kinsella, for consistency in non-IP as
2) How do you enforce even that? What is the point of an NDA. It is and all the the other conditions which seem granted under the current regime will be meaningless.
Just try to contemplate it. People has to realize that “the front end” would be absolutely different from what we have now. Instead of the current enforced disclosure, creation of even potentially profitable ideas goes to hiding. I think, after cannibalization of the current system, non-IP will lead to very limited cooperation in innovation, there will only be lone wolves and/or research fortresses. I think this is a much bigger issue than just be ignored off-hand and hide behind concepts like “now we have monopolies and the free market will solve everything”. If creation of ideas has value in itself it has to be reflected by ethics and free market should work accordingly.
I agree, the current system is bad, I would say even rotten but is non-IP better? I don’t know as “the front end” is hardly discussed. Kinsella feels his vulnerability here and he always shifts the discussion away to his favorite end. So far it is very successful. Don’t let him, try to see the unseen as well.
What do you mean, I attack trade secret? To have a trade secret you just keep information secret. If you have a firm, then you need to find a way to get your employees to keep it secret. One thing that helps is to have a non-disclosure agreement. Following title-transfer contract principles, this would basically be an agreement by the employee to pay money to the employer (“damages”) IF he leaks information. It’s just a conditional transfer of title to money. That should suffice to induce the employee to keep the information confidential; after all, it does nowadays.
Stephan,
Let it be clear again, now you accept the justification and validity of trade secrets? C/Would you address its implications, too? NDA? Contract like title transfer? How do you prove infringement? How do you enforce it? What are you talking about? How do you differentiate between big and small ideas and their potential leakages. Do ideas have value? Are they marketable? Aren’t ideas just pop up and leak? Do you have other useless suggestions to counteract the defects of your scheme or let the inventor find them as usual after suffocation.
Read also my reply to Dan.
Andras, “now you accept the justification and validity of trade secrets?”
“now”? I have always had this view. See the section on trade secrets in my AIP.
An employee promises to pay monetary damages to his employer IF he reveals secrets. As to how it’s proved, the same way it’s proved NOW.
up to lawyer to write an agreement and up to the parties to negotiate terms.
nothing “has value” in any intrinsic sense. Value is a relationship, a demosntration of someone’s preferences in action. People value things–they demonstrate this by pursuing them, and yes, an idea can be useful as it is a guide to action.
Don’t undersatnd what you are asking. this is babblage.
Stephan: “An employee promises to pay monetary damages to his employer IF he reveals secrets. As to how it’s proved, the same way it’s proved NOW.”
So you practically suggest this as a price discovery mechanism for ideas. After all, at worst you can start your own venture after paying the damages. On the other hand dmamges are limited by the potential payer, the ordinary employees, and that puts a ceiling on it (and the price of ideas, too).
The other problem is how do you enumerate the ideas for the contract, with quasi-titles? Do you write a new contract every day for the new discoveries? The current IP scheme takes care of all these and more. Instead of hiding it enforces disclosure.
All you will say let the lawyers figure it out. And I am babbling. Let’s forget all this and move back to the mantra.
It bears repeating: Andras is one seriously confused motherfucker.
Andras
You are the one making the utilitarian argument for IP. It is up to you to prove that there is a net benefit. If IP were a true property right then there were be no need to make a utilitarian case for it as it would not violate the non-aggression principle and would be grounded in the Lockean homesteading principle. So if you want to make a utilitarian argument to defend your position that’s fine but don’t ask us to counter an argument you have yet to spell out. If you would like try and prove your utilitarian argument I’m sure we would all love to see it. My guess is all we will get is more hunchism with nothing to back it up or you’ll just continue to ask us to counter a position that you have yet to give us.
Why do you hide behind accusing me utilitarian? Since when ethics is utilitarian? Do you recognize the value in creating new ideas? If so, include it in your scheme. Accept that people will even kill to protect it and include this fact when you evaluate transfer of ideas. At what stage of this transition does acquiring ideas become a non-crime? Who decides? In practice, when you go to your “private court” in your “free market” how should the judge decide? What are the principles he should follow? How do you prove leakage of ideas even with an NDA? What is the point of an NDA if you can’t. I admit I don’t know the answers but I am very concerned.
Shouldn’t we discuss these issues instead of the high philosophy of the end stage?
By the way, even homesteading of physicals are not so clear. How do you decide e.g., on the size of the land you homestead? Eventually, non-non-aggression will. It is all arbitrary. Leave some room for arbitrariness in homesteading of ideas, too. That what von Mises advocated, too.
Shocker! You make the utilitarian argument but apparently don’t like the title so you ignore the challenge? If you are going to prevent me from using my property in the way I see fit, then show why this is for the good of all society. I know you won’t because nobody who makes the kind of arguments you do ever does.
People can’t voluntary make ideas into property unless they can voluntarily get others to enforce this so called property. Given that this is difficult to do now I can only imagine it will be much more so without a state (or if you are minarchist, with a significantly more limited state).
brilliant.
Every argument I have seen from Tremblay is this bad. Hopefully this is the last time I see him getting any attention.
I know what you mean–he’s really insignificant. However, the argument was so shockingly bad, I couldn’t resist. It’s useful and interesting to catalog all these bizarre, contorted, strained arguments for IP and variations thereof.
So? S. Kinsella wouldn’t use utilitarianism to justify property ownership. People who own property don’t have to make the world a better place to justify their ownership nor do they have to forfeit their property if they’re not using it productively.
Yes they do, by a simple theorem of catallitics: If something is truly non-productive (from the owner’s valuations) then the owner has every incentive to get rid of it, whether by selling it or by throwing it away and letting it rot. They can only gain by doing so. In either case the thing in question can no longer be called their property. The mistake most utilitarians make is to substitute their own values for the values of others.
VHEMT would be totally irrelevant to the IP debate even if both sides didn’t happen to contain supporters. In this case, both sides do – so if Stephan is trying to make Tremblay look bad for liking VHEMT, my criticism should look just as bad, because I am also a VHEMT volunteer. None of which is relevant to IP, except possibly the word “reproduction.”
Look at me everybody! I’m an anarcho-statist!
Fun time again!
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As I’ve noted before, there are no good arguments for physical property. [self-authored work in footnote] It’s really astonishing. Utilitarians say it’s “necessary” to “incentivize” production – but they have no evidence to back this up; it’s mere assertion and assumption.[self-authored work in footnote] Randians and others who try to find a more principled basis for physical property invariably make several mistakes–for example, that being the first to touch it is an independent source of ownership, or that “homesteading is objective, intrinsic, and entitles you to kill anyone who places a foot on your land; and/or the quasi-Marxian idea that we “own” our “bodies” and “thus” are “entitled” to some kind of “reward” for homesteading.[4]
It’s hard to say which argument for physical property is the worst, since they all just keep repeating the same errors, over and over. Rand’s was bad–a confused mixture of most of the fallacies noted above, a deontological-Marxoid-utilitarian hodge-podge masquerading as libertarian-Lockean principle (even Locke didn’t think homesteading always entitled you to ownership of the kind Kinsella advocates);
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This is what I have to deal with, folks. Empty arguments that fall apart once you look at them from a slightly different angle.
Hey Silas, if I steal some factors of production and use them to create something, instantiate an idea, whatever you want to call it, am I then justified in preventing someone else from copying my idea?