My article about the debate on 1983 intellectual property between Wendy McElroy and J. Neil Schulman appears today on Mises Daily, as “The Great IP Debate of 1983,” Mises Daily (July 18, 2011). The article links to the recently-found audio of that debate, which was put up as a Mises podcast last week. It’s a fascinating listen. As the Mises blurb about it reads, “In this wonderful debate, we find the whole of the theoretical apparatus of the anti-IP case presented with precision and eloquence.”
Update: The audio file of the debate may now be found here. See also Schulman’s My Unfinished 30-Year-Old Debate with Wendy McElroy, and McElroy: “On the Subject of Intellectual Property” (1981).
Archived comments from the article:
Stephan, you were noticeably absent in that discussion on Tucker’s post. Leaving the heavy lifting to Surda, much like SEK3 left it to you?
For my money, one of the fundamental issues that separate Kinsella from Schulman is the equivocation on “ideas” and “information” with IP. This sleight-of-hand permits conclusions that would otherwise be clearly fallacious. On this specific point I side with Schulman.
I suppose there is an ongoing and reconcilable philosophical debate about what exactly an “idea” is, and where the line between “an Idea” and “an original work” begins and ends. But as Schulman so succinctly illustrates, although the line may not always be a bright one, it is certainly bright enough for a blind man to see.
For either Kinsella or McElroy to insist that no such distinction exists, can exist, or if it exists, cannot be reliably distinguished, is to try to argue that the Emperor has no clothes.
Unlike Schulman, however, I do not see the need to resolve this issue, although I do appreciate Schulman’s use of thermodynamics to make his argument, despite the apparent disfavor he now seems to hold of his own efforts in this regard. Clearly, in a general meaning of everyday language, an author creates his manuscript, and owns it as his property, as being the results of his use of his own private means of production. How that relationship is shown and by what evidence, is, as Kinsella likes to say, a technical problem.
As usual, I find that Mises was both thorough and consistent on the subjects of relevance, and one need go no further than his analysis to make the case for the principle of IP being completely and wholly consistent with any other legitimate form of private property.
These are the primary issues that Kinsella avoids at all costs, because his entire case depends upon overlooking these particular fallacies above all others:
First, Ideas and information, whose serviceability is inexhaustible and therefore non-scarce, cannot be treated as private property. Because ideas and IP are the same thing, IP like ideas, cannot be treated as scarce, private property.
Yet even the Copyright Act itself, specifically and explicitly excludes ideas and information from the subject matter of copyright protection. If the Act EXCLUDES ideas, what is INCLUDED? Surely a case cannot be made AGAINST something by objecting to it doing something to which it specifically and explicitly seeks to AVOID doing! If the Act concurs with Kinsella’s objection, to what is his objection directed?
If we base the principle of copyright protection on the subject matter as defined in the Act itself, which I do, what is the nature of the object of property rights the Act is actually trying to distinguish? Schulman simply provides a novel way of describing what that is. Kinsella simply denies that any distinction is possible.
Wildberry· 18 weeks ago
Second, the purpose of property is to avoid conflict over rivalrous resources. Since the serviceability of “ideas/ information/IP” is non-rivalrous, conflict is impossible. Conflict is created by the State’s creation of scarcity where no scarcity exists by granting an illegitimate monopoly privilege to owners of IP, and thereby commits an act of aggression on all legitimate property owners.
Mises points out that property is a human device, and exists in the service of facilitating a division of labor society.
Goods are economic goods only when there is a scarcity of the means of producing them. It is the MEANS, not the GOODS, which are scarce. Each individual is the ultimate scarce means of production. What s/he produces with those means (assuming the inputs are not otherwise owned by others), is private property. As such, s/he has exclusive rights to the use, benefits, alienability, and the right to exclude others.
Wildberry· 18 weeks ago
If scarce means are used to produce free goods, because the private means to produce them are not secured as private property, then the producers are producing, for the most part, for external economies. Producers, who produce for external economies, sooner or later cease production.
Schulman merely provides a unique framework for establishing the relationship between an economic good, and the scarce means employed to produce them; namely the author. Kinsella argues that it is the scarcity of the MEDIUM employed to fix the good in tangible form that determines property rights; what is carried on the medium is of no significance.
Finally and ultimately, the issue of IP as private property rights is an economic issue, and therefore involve utilitarian questions of desired outcomes and means employed to achieve those outcomes.
Mises summarizes the issue succinctly as follows in the first two paragraphs here: http://mises.org/humanaction/chap23sec6.asp
Wildberry· 18 weeks ago
Kinsella (and McElroy) rests his (their) entire case on characterizing IP as being a subject only of the first paragraph, while completely ignoring the consequences of this view summarized in the second. Kinsella simply states the problem as that of the author, who must either a) keep his secret or b) submit to the demands of an external economy. Schulman (poetically, through the use of the firm ‘Smith and Wesson”) merely asserts the right to secure exclusive use of private property.
In my view, this is the nature of the debate, and not the straw men, diversions, equivocations, and other sleight-of-hand employed here to remain consistent with the more fundamental ideological claim “We have IP because we have the State”.
To this, Mises seems to reply here: http://mises.org/libprop/lpsec5.asp
Dom· 18 weeks ago
Mark Humphrey· 18 weeks ago
I have on several occasions pointed out to Mr. Kinsella on the Mises blog that his conception of intellectual property is confused. No one owns an idea, regardless of what Ayn Rand or anyone else may have written about this. Ideas are the product of individual thinking, and individuals ought to be free to pursue their ideas peacefully, as best they can.
Therefore, intellectual property is not distinguishable in a fundamental way from any other kind of property. All property involves the application of one’s ideas in somehow rearranging physical reality for some purpose of the creator or producer. “Intellectual property” involves the application of careful thinking to some privately owned medium, such as an easel or pen and paper or unrecorded disc or machinery parts or molecules or electrons. The creator does not own the idea or ideas that he discovered or picked up freely and applied to his physical medium; he owns the PHYSICAL MEDIUM that he rearranged by the application of his ideas. Someone else may discover the same ideas or pick them up freely from some source; if so, she should be free to peacefully use those ideas as she chooses.
Copyrights and patents came into existence to uphold the property owner’s right to restrict the terms under which he would sell his invention or painting or book to a buyer. Most often, the owners of “intellectual property”—essentially stuff that involves intricately arranged ideas that could be reproduced by copycats at low cost—favor restricting any sale to those willing to agree to refrain from making unauthorized copies. If one writes a beautiful novel or builds a remarkable machine, and some buyer deeply resents the seller’s restriction concerning the disposition of the seller’s property, then perhaps the disappointed buyer can write his own novel or invent his own cold fusion energy machine.
The fact that the State enforces the property rights of the inventor or writer is irrelevant, even if one is a daring non-conventional “anarchist”. Must Jones refrain from calling the police to eject a trespasser into his living room, on the grounds that the police enforce a lot of unjust laws and are financed with stolen tax dollars? No. Jones’ can’t single handedly change society, and he can’t pick up the phone to get a private defense agency to eject the trespasser. He needs to protect his property, so he uses the means available to him to do so. This is proper. Similarly, it is proper for writers, painters, and inventors to use the available legal means to defend their right to set the contractual terms of sale of their property.
There is little doubt that copyrights and patents are imperfect approaches to defending the right of disposal of intellectually-loaded property. But whatever their imperfections, these legal conventions are vastly superior to the abolition of property in this realm advocated by Mr. Kinsella.
Archived comments from Jeff Tucker’s blog post: