“What I have done just now is to demolish the standard libertarian argument for property rights (and against IP).”

Not so fast there, kemosabe.

In a recent blog post, An argument for Intellectual Property, one “Onar Åm” triumphantly concludes “What I have done just now is to demolish the standard libertarian argument for property rights (and against IP).”

He claims, of my Against Intellectual Property monograph:

In the book [Kinsella] reviewed the various arguments for and against, and I was surprised to learn that my standard defense of intellectual property is nowhere to be seen. In fact, by the very absence of this argument I developed a completely novel argument for IP.

But this novel argument is not novel. It is just a mishmash of the standard confused arguments Randians and others have trotted out for decades, which I have responded to in depth already. In particular, the argument is based on the confused idea that labor plays a role not only in production, but in creation of property rights:

My standard response to this argument (both to Kinsella himself in a debate a few years ago and to all other libertarians who use it) is that it is not information that is the scarce resource that needs protection, but mental labor.

… creation is the source of property rights because for us our ability to create is the ultimate scarce resource in the universe! All other forms of scarcity are just derivatives of our limited ability to create.

I call this latter view libertarian “creationism” and have criticized it, as well as this confused view of the relationship between labor, ownership, homesteading, and production, many times, including, most recently, in a three-hour talk covering, fairly exhaustively, these and most other arguments I’ve heard for IP over the years: see Intellectual Nonsense: Fallacious Arguments for IP (Libertopia 2012).

And see various blog posts on these and related fallacies and confusions at Selected Supplementary Material for Against Intellectual Property, e.g.

• “Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging’,”
• “Rand on IP, Owning “Values”, and ‘Rearrangement Rights’,”
• “Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors,”
• “Hume on Intellectual Property and the Problematic “Labor” Metaphor”

Update:

Our confused interlocutor has dug his hole deeper with a followup post, Response to Kinsella. I have posted below some of my comments there, since they are now being moderated:

me:

Scarce means rivalrous–things over which there can be conflict. We make this clear over and over. You guys ignore this.

me:

The comment “life is scarce” is a nonrigorous, ambiguous, equivocation-prone metaphor. See On the Danger of Metaphors in Scientific Discourse. and On the Danger of Metaphors in Scientific Discourse. and Creation and Labor as Sources of Property Rights and the Danger of Metaphors.

Now, as Samuel Johnson said, “Sir, I have found you an argument; but I am not obliged to find you an understanding.

21/10/2012 at 09:55

@Kinsella

“And, this implies that there is a second way to own something: by contractual transfer of title from a previous owner.”

I am very good at making copies – would it be legal or illegal under libertarianism to copy a piece of paper where contractual transfer of title from a previous owner has occurred? Except, in my copy, I fill out my own name, instead of yours, Kinsella, – you paid for the contractual transfer of title from a previous owner, but now we both own it. Nobody lost anything, you still have your piece of paper, but we share your property, because I am a good copier. Where is my mistake?

Sindre

Reply

• Stephan Kinsella says:

  Your comment is awaiting moderation.

  21/10/2012 at 15:33

  Not sure I understand your question. It is not possible for two people to own the same scarce resource. You can correct me if I am wrong, but what I think you are trying to say is this:

  “If A uses some kind of deception to acquire possession of use of B’s property without B’s consent, that is some type of trespass or invasion. One way to do this would be to fake a contract or deed to the property. This means that in some cases it is impermissible to make certain copies. Therefore, libertarians cannot say that all copyright law is illegitimate.”

  If this is the argument, it is confused. I have dealt with this kind of fallacy already, in my recent talk (Intellectual Nonsense: Fallacious Arguments for IP (Libertopia 2012), slides 14-15, and other posts like “The Non-Aggression Principle as a Limit on Action, Not on Property Rights” and “IP and Aggression as Limits on Property Rights: How They Differ”). Basically the argument is incoherent (if that is the questioner’s implicit argument, which it seems to be). It is true that there are various means one can employ to commit trespass of others’ property, but this does not mean that the means employed are always ownable or, if they are, that they are owned by the actor. And even if you are in some cases prohibited from performing certain actions (like making a stabbing motion with your hand if it is holding a knife and another person is standing next to you, or making a fake copy of a deed to property or a fake driver’s license used to gain access to some else’s safety deposit box) does not mean that property rights are limited, but only that some actions are impermissible: namely, actions that invade others’ property borders. It does not imply IP. The prohibition on copying-when-it-is-used-to-violate-property-rights-in-others’-scarce-resources does not mean that the prohibitions on copying imposed by copyright are illegitimate.

  As an analogy: in some cases, a person is unable to withhold consent to others using force against his body, for example, when he is committing an act of aggression, he cannot object to the victim using defensive force against him. But that does not mean that you have no right to complain when the government taxes you. It is not a legitimate argument to say: well, how dare you complain about taxes? After all, property rights in your body are not unlimited, as the defensive force example shows!

  For this is the argument people are making, when they try to show that copyright is legitimate because property rights are not absolute or because there are *some situations* in which copying is not permissible.