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Silas Barta: The shortest, safest libertarian case [sic] for IP

One no-name nym-wielding Silas Barta (aka John Sharp, “Person,” Richard Harding [a juvenile sexual term, “hard dick”])1 has been a perennial gadfly and pest about IP, flitting in various Mises Blog comments razzing us IP abolitionists.

His argument is a literally stupid one (not surprising as “There are No Good Arguments for Intellectual Property”; see also “Absurd Arguments for IP”). It amounts to this: Some libertarians seem to think that there should be rights in electromagnetic (EM) spectra (see e.g. my post Why Airwaves (Electromagnetic Spectra) Are (Arguably) Property [Aug. 9, 2009]). And if you believe in property rights in EM spectra, then you have to believe in IP rights. After all, “IP (intellectual property) rights have the exact same form” as EM spectra rights. Et voilà!

Here’s his old post about this. He tangles with Bob Murphy in the quotes; interestingly, they later wrote a book together on Bitcoin: Murphy and Barta, Understanding Bitcoin: The Liberty Lover’s Guide to the Mechanics & Economics of Crypto-Currencies (2015)  I love Bob and some of his Bitcoin stuff is provocative and enlightening (see his “Bitcoin and the Theory of Money” and “The Economics of Bitcoin“), but I can’t bear to read something co-authored by this idiot pest Barta/Person/Sharp/Harding, unless Murphy assures me he wrote basically all of it and for some reason just added Barta as a pity gesture or something. But since num-nuts’ name is listed first, I assume it was the opposite: gadfly Hard Dick wrote it and persuaded Bob to attach his name to it. Since Hard Dick is so bad on libertarian theory and on the argument for EM spectra (he doens’t even give an argument), I have no reason to think he has anything sensible to say about Bitcoin or libertarianism at all.

In his “article” pretending to “argue” for IP (he nowhere does), Barta says “Unlike some other people who shall remain nameless[1], I want to see where I’m wrong.” This is a lie. He doesn’t want to see where he’s wrong because he doens’t adduce a genuine argument for IP. He has some weird monomaniacal obsession with the EM spectrum issue [which is not settled among libertarians, unlike real property rights (yes!) and unlike IP rights (no!)]. His argument is not a real one; it’s an “if-then” one. “IF you believe in EM rights, THEN you should believe in IP rights.” Well. This is simply not a case for IP. And it’s wrong. You can believe in EM rights without believing in IP rights (see my post linked above). And if he’s right that EM implies IP, then EM would have to fall too, for the same reasons IP falls.

What Silas refuses to see is that, ultimately, IP rights are a taking of property rights, a redistribution of wealth in the form of a nonconsensual negative servitude (or easement), as I explain here: Intellectual Property Rights as Negative Servitudes. And to counter his predictable next silly argument: see my posts “The Non-Aggression Principle as a Limit on Action, Not on Property Rights,” “IP and Aggression as Limits on Property Rights: How They Differ,” The “If you own something, that implies that you can sell it; if you sell something, that implies you must own it first” Fallacies.”

By the way, Hard Dick, I’ll be happy to discuss/debate this issue with you any time (this goes for any other defender of evil, socialist IP in the world).

In any case, here’s his little screed, saved here for posterity in case he modifies or deletes it out of embarrassment later.

The shortest, safest libertarian case for IP

[Silas Barta, July 29, 2008]

Am I going too far with that claim? Nope. I’ve argued it many times and haven’t seen any response that’s even remotely plausible. Here goes:


Most libertarians have no problem seeing why property rights in radio waves (i.e. the exclusive right to emit at a certain frequency) are justified.

Next, notice that IP (intellectual property) rights have the exact same form. Just as spectrum rights allow exactly one entity to form his property into a specific pattern (such that it emits at a specific frequency), IP lets exactly one entity form his property into a specific pattern. They are rights to configurations of objects rather than objects as such.

It is true (as many, many will remind me) that to broadcast at the same frequency as someone else “interferes” (!) with their “signal” (!). However, your judgment that there is “interference” is itself an arbitrary value judgment about the merit of someone’s intended use. In exactly the same way, copying someone’s ideas can interfere with their intended use.

Remember, the ether does not somehow “want” to carry information. It is simply one positive attribute humans have been able to wring out of it; if people merely loved to blast radio waves for the heck of it, the conflict wouldn’t arise. So the characterization as “interference” is solely a function of the uses people want to make of it.

Unless and until you can make a libertarian case why one desired use justifies exclusion rights for specific patterns and the other does not, the cases are perfectly parallel.


There, that’s all there is to it. Don’t let the length of this post confuse you; the entire case is self-contained between the asterisk lines. I want to now briefly review my history of making it.

If you look at this comment and the preceding, you see Stephan Kinsella make a seemingly innocuous but actually damning admission: that attempts to differentiate the cases of IP and radio waves reduce to (the very arbitrary decision of) what counts a “relevant use” for purposes of discerning property rights boundaries, a distinction mentioned nowhere in Kinsella’s widely quoted case against IP.

The argument persuaded some participants to reluctantly bite the bullet and admit that they couldn’t therefore support radio wave rights either. (Yikes!)

You’re rightly skeptical to wonder why I’m not quoting a peer-reviewed, published exposition of this argument, and indeed many have suggested I flesh it out and submit it to a (very ungrateful) libertarian journal. While probably a worthwhile pursuit, if I have spare time, it kind of misses the point of journals: to get results, whether they be new, useful scientific laws, or evidence in favor of propositions, or establishment that something is or is not possible. If the above remark by Stephan Kinsella is the best response he, the eminent opponent of IP, can marshal, we already have a result. Wanting it in a journal article is putting the cart before the horse.

I’ve probed other intellectuals on this and found similar inability to refute — I’m just posting the best response I’ve gotten.

Comments are greatly, greatly welcome. Unlike some other people who shall remain nameless[1], I want to see where I’m wrong.

[1] A name is a label intended to refer to a proper noun. An example of a name might be Stephan Kinsella or Bob Murphy.


Bob Murphy said…

Silas, it would be nice if you dropped your vendetta against Kinsella and me. It would reduce your posts by 30%. Maybe you could poll your readers and ask, “Who thinks I am still funny on this stuff?”

I think it’s safe to say that the two thinkers on the planet who have devoted the most care to your arguments, are Kinsella and me. Just because we still disagree with you, doesn’t mean we are afraid of criticism.

As far as publishing stuff in a journal, the reasons that is important are (a) the refereeing process forces you to go look up and deal with the relevant literature etc., and (b) there is an official version of your argument for people to react to.

I don’t have any comments right now on this IP issue. I think I get what you are saying but I have to think about it. I can imagine the obvious responses but maybe they don’t work, if you really push it.

Bob Murphy said…


I haven’t read your extended commentary yet, just the stuff in the asterisks. But is there anything special about the radio spectrum, besides the fact that it is intangible and so closer to “my novel” than a bicycle?

E.g. would your argument still work (though perhaps not be as persuasive to the Kinsellian) if yo said, “Libertarians don’t have a problem with property rights to bicycles, but that’s really just your ability to influence the pattern of molecules in a certain region. And so why do libertarians deny ownership over…”?

I might not be making the analogy correctly, but I’m asking, is there a way to make your claim of inconsistency go through, using tangible property rather than spectrum as the beachhead?

Silas Barta said…

Bob, I appreciate your comments very much, and I need all that I can get. But just the same, I will not press my forehead to the ground for someone who will sell out his lifelong devotion to the establishment of well-defined property rights in abused commonses in order to rationalize cheap, victimizing oil and will place his boot against the necks of thirdworlders to get the job done.

And if you want to avoid allegations of disinterest in truth, then instead of demanding my compliance, you could simply stop throwing off the evidence that leads me to make such allegations, like in the article mentioned above, and that shown here

Now, about your comments on the IP argument:

E.g. would your argument still work (though perhaps not be as persuasive to the Kinsellian) if you said, “Libertarians don’t have a problem with property rights to bicycles, but that’s really just your ability to influence the pattern of molecules in a certain region.

No, because libertarians, especially Kinsellians, most emphatically do not define the bicycle right with respect to the abstract “pattern of molecules”, but to the molecules themselves — the *objects*.

In contrast, the right to a radio wave really is defined with respect to a pattern, *no matter what* objects are used to make it (just like IP). There is no one object you can point to that contains the “radio wave” that the frequency owner owns.

In short:

a) at best, you could *choose* a characterization of the bicycle as ownership of a pattern, but that’s a different sense of the term

b) the libertarian would not be choosing that characterization — ownership of a bicycle is ownership of molecules, not patterns.

So no, I couldn’t ground it in that libertarian position.

Finally, I agree with the merit in making this a journal article (I’ll consult you for how to stretch it out long enough). My point is just, some people want me to do that for good reasons, and some as a delay tactic. Stephan clearly falls in the latter category, as his repeated citations of libertarian handling of radio waves add precisely nothing to the discussion.

Bob Murphy said…

No, because libertarians, especially Kinsellians, most emphatically do not define the bicycle right with respect to the abstract “pattern of molecules”, but to the molecules themselves — the *objects*.

In contrast, the right to a radio wave really is defined with respect to a pattern, *no matter what* objects are used to make it (just like IP). There is no one object you can point to that contains the “radio wave” that the frequency owner owns.

OK I’m still not sure I get it. What if I saw your bicycle in half. Can’t I say, “Hey, you still own the molecules that compose the bicycle. You didn’t think you had a property right in the particular configuration of those molecules, did you?”

To be clear, I’m not saying I’m blowing you up here, I’m just trying to isolate what’s doing the work in your argument, before considering whether I think it’s right or wrong.

Bob Murphy said…

But just the same, I will not press my forehead to the ground…

Why the drama? My asking you to stop bringing up your very personal attacks on me, every chance you get, is now the same as me asking you to bow down to me?

Silas Barta said…

Why the drama?

Oh, that’s just me using vivid imagery. Don’t mind that 😉 Just focus on the whole “selling out”, “deceiving readers”, and “trivialization of the third world” things.

About the bicycle thing: The libertarian/Kinsellian in that case would say that the aggression occured when you made an unconsented-to (and observable, etc.) use of my particular molecules.

When I refer to rights to patterns/configurations (which I consider both IP and spectrum rights to be), I’m referring to the right to form that pattern, no matter what it comes from. It is not a right to a specific object in a specific configuration, like the bicycle.

The Kinsellian (and probably libertarians in general) would not say that, regarding physical property, you have the right to a specific configuration when you own the object. After all, if you crash the bike, you don’t have the right to make someone restore the original pattern.

And of course, (in case it matters to whatever point you’re making), the Kinsellian would not claim that the right to “that configuation of molecules in the bicycle” is a right to every object in the world so configured. That’s a different meaning of the concept of “owning a configuration”.

Bob Murphy said…

OK I think I am homing in on your point here. Is the following correct?

You are saying that to be consistent, a Kinsellian should say, “There is no such thing as ‘property’ rights in radio spectrum. Spectrum is not a scarce tangible thing. If someone throws your radio into the bathtub and it no longer works properly, that person has violated your property rights. But just because someone broadcasts a ‘pirate’ radio station from his basement, and it interferes with your enjoyment of your radio, that doesn’t mean he’s violated your property rights. After all, he hasn’t messed with your tangible stuff. He is sitting on his own land, using the physical broadcasting equipment that is clearly his. You don’t have a right to ‘enjoyable song selections’ on your radio, just like you can’t force novelists to write books that you enjoy.”

Is that about right?

Silas Barta said…

Bob: Yes, I would say that’s a great summary of my position. Except for one nitpick: The analogy at the end should *maybe* be something more like:

“You don’t have a right to clear information reception on your radio [which is what would result from only one person broadcasting at each frequency], just like you don’t have the right to the existence of well-funded Hollywood movies [which is what would result from only one person having the right to allow access to see the movie].”

macsnafu said…

Well of course listeners don’t have a “right” to a clear signal, since it’s a function of the transmitting and receiving equipment involved. But the transmitters of signals have an interest in sending a clear signal for listeners to receive. As a practical matter, all one has to do is go back to the beginning of commercial radio, before the FCC, to see how such problems were being handled.

In short, rights in radio waves are a function of homesteading or use. Similarly with so-called “IP”. One has a “right” to IP based upon their use of it, not their creation of it.

Silas Barta said…

macsnafu: Thanks for your comment.

You said: But the transmitters of signals have an interest in sending a clear signal for listeners to receive.

… and the creators of intellectual works have an interest in people not copying their works without their permission. How, again, does this justify a right in it?

(Btw, I recommend distinguishing between intellectual works — book/movie/inventions — and intellectual *property*, which is the rights to exclusive use of those. It unclear when you say that someone has a right to IP based on their use of it, when I think you mean to say people have a right to form intellectual works because they own the parts that make it up. The way you said it sounds like you’re supporting intellectual property rights.)

Bob Murphy said…

OK Silas, I’ve now read your argument with Stephan at the Mises blog. (I didn’t keep track of everybody’s input, just you and Kinsella.)

I think you were being a bit flippant with him in that exchange, where he was making a distinction between IP and spectrum, and you were failing to acknowledge the validity of the distinction. However, I’m not convinced that the distinctions were important. I.e. I am still open to the possibility that spectrum and IP are close enough, that they are either both legit or both illegit, even though they are not as close as you think they are.

What about this? What if voodoo is real? Does Kinsella think I can have a property right in stopping you from putting pins in a Bob Murphy doll? Because I think you guys were getting tripped up over the fact that there is some type of physical mechanism occurring with spectrum, whereas it is purely abstract with ideas.

So if you can be in your house and putting pins in a doll, and that really does hurt me even though we don’t know how this “signal” is transferred, does this lead to a new extension of my property in my body, where you have to get my permission to mess with the doll?

Silas Barta said…

Bob: What you call “flippancy”, I call “succinct identification of contradictions and relevant parallels”.

Anyway, Stephan’s (and my) response to the question about the voodoo doll would be that using it amounts to using the victim’s body without his consent. There’s no need to specify a “property right in the voodoo doll to the extent that it gets pricked”; it is the use of a different instance of property (victim’s body) that makes it illegit. So yes there’s a property right that matters here, but it is not the voodoo doll.

But I’m still not sure what that has to do with this. I certainly wasn’t hung up on the existence of physical mechanisms in the spectrum; I was showing how that focus is unhelpful and inconsistent. In fact, I’ve been the one emphasizing scarcity’s non-physical nature. That is, how there can be scarcity across a huge variety of disagreements, not just over “fee simple ownership of a physical item”.

Bob Murphy said…

I certainly wasn’t hung up on the existence of physical mechanisms in the spectrum; I was showing how that focus is unhelpful and inconsistent. In fact, I’ve been the one emphasizing scarcity’s non-physical nature. That is, how there can be scarcity across a huge variety of disagreements, not just over “fee simple ownership of a physical item”.

But that’s the whole point. Kinsella (in my opinion) was showing you on the Mises blog that the spectrum stuff involved interference with physical property, whereas the IP “violations” of property only involved intangible interference. And you kept denying that this distinction was important, but I thought maybe it was important.

So to get around that, I offered the voodoo example. I think Stephan would have to admit that if voodoo were real, then sticking pins in the doll violated my property rights, and so this would seem better than the spectrum example, since there we can actually point to the physical mechanism by which the pirate broadcaster is messing with my reception. (Whereas with the voodoo doll, if we don’t know how it works, but we believe it does, then that seems quite analogous to IP.)

So, do you have a stand one way or the other on IP? Or is your point merely that Kinsellians are being inconsistent for endorsing spectrum property rights but not IP property rights?

Silas Barta said…

Bob: I can respond to the point you made more fully later today. But since I’m now at home and have access to my full list of reservations about the libertarian case against IP, and you asked about my thoughts on IP, I thought I’d post it here to give you a better exposition of my opinions. Warning though, it’s pretty long for a comment. Note that the radio wave comparison is point 2.

1) Non-scarcity of ideas cannot help establish the invalidity of IP. Kinsella’s paper makes repeated references (p. 23-31) to how “IP isn’t scarce”. This of course is referring to how ideas, or intellectual works are not scarce: the informational content can be copied and spread ad infinitum. Since only scarce things can be owned, it goes, ideas cannot be owned.

The problem with this line of reasoning, is that creators (and their assigns) do not claim to own “the information”, except in a metaphorical sense. They are making specific claims about others’ moral right to instantiate it, which is different. While we may have reasons to find this claim unjustifiable, it cannot be on grounds of non-scarcity: they are, undebatably, making a claim to the use of scarce resources. It may indeed violate others’ rights gained through homesteading, and that would be a good argument against their claim; but even if true, this would have nothing to do with ideas being non-scarce.

Kinsella therefore cannot claim to have a general argument against IP if any IP proponent can sidestep that argument simply by rephrasing it (“I own this idea” to “I should have the right to exclude others from using their possessions to instantiate this idea”) while keeping the same substance, and making the corresponding transformations in whatever justifications are given. I think it is obvious that any argument that is avoidable this way is necessarily invalid even if not deliberately avoided this way.

Furthermore, the whole attempt to quash IP on the grounds of “non-scarcity” is, in my estimation, a category error. When people refer to the problem of “conflict”, thereby justifying the need for property rights, they are, all the way back to Mises and through to Hoppe’s justifications, quite clearly referring to the full set of disagreements that have real-world implications over which people could use violence. The very act of presenting a claim over “IP” while others disagree with it, irrefutably establishes the existence of conflict and therefore scarcity. Any argument over rights which attempts to win by proving the non-existence of scarcity is therefore non-sensical: the argument’s existence is the proof of scarcity.

2) Opposition to IP cannot be reconciled with support for radio frequency rights. Libertarians generally support the idea of individuals having exclusive rights to use specific radio frequencies, even and especially if they oppose IP, since they recognize a genuine scarcity in the EM spectrum. However, I will show how exclusive rights to use a certain radio frequency have precisely the same attributes as IP rights: they “sink or swim” together and thus one must support both or neither. In both cases:

– It is possible for an infinite number of people to use the resource (infinite people instantiating the text of a book; infinite people sending out radio waves at a certain frequency).
– For people to actually simultaneously use the resource inhibits (conflicts with!) others’ intentions for how the resource should be exploited (multiple people using an idea at will would ruin its creators’ plans; multiple people using a frequency would undermine the ability to actually transmit information, rather than merely waves, at that frequency).
– Whether you believe the uses conflict, depends upon what you believe to be the “relevant purpose” of a resource, itself a hidden nebulous assumption (you could see the relevant purpose of creating an intellectual work, to be dictating how it is used by others; you could see the relevant purpose of transmitting along a frequency, as that of communicating information).

For the reasons above, any argument against IP can be transformed without loss of generality into an argument against exclusive rights to radio frequencies, thereby functioning as a sort of reductio ad absurdum against those who wish to support one but not the other. For those who already support or reject both, of course, this poses no problems.

3) All of the economic calculation arguments equally apply as critiques of lack of intellectual property. When Mises and Hayek formulated their economic calculation arguments, they made a powerful case regarding the practical implications of the lack of property rights. However, they cannot delimit by fiat the full extent of their arguments’ logical implications: only the logical examination of the arguments’ premises and steps can do that.

What Mises and Hayek actually accomplished was to establish the need for the ability to perform economic calculations in any situation in which an actor has the choice between alternate uses of any scarce means toward ends, not merely those that they deem “economic goods”. And indeed one quite common choice actors face is that of expending scarce means (their time and labor) to produce non-scarce intellectual works, versus expending those means toward some other end.

In such a situation, any claim about the implications of lack of price signals (due to lack of property rights) would likewise work against the lack of property rights in the potential intellectual work produced. The absence of IP effectively places a “price cap” on the intellectual work of $0, although other goods and services related to that intellectual work (transmission of it, future cooperation regarding it, etc.) may still have prices. An entrepreneur would therefore always “see” zero monetary demand for the production of the intellectual works he is capable of, even though we know at least some intellectual works have positive value (at least one person would pay some amount of money for that intellectual work to be available somehow).

While the existence of these other, related goods with prices, may appear to give the accurate, relevant price signals, it does not: prices for them signal consumer desire for different behavior than prices for the intellectual work would. (To be specific, the “price of an intellectual work” is the “price of the right to legally instantiate that intellectual work”, just as the “price of an orange” is the “price of the right to legally use that orange”.) For example: desire for a machine that is capable of producing a pill according to a given formula, is not the same as desire that the knowledge exists of how to make a pill that cures cancer. In the fomer case, the actor values physical manipulation capability; in the latter, he values the status of a malady changing from incurable to curable at a cost.

Therefore, any libertarian critical of the ability of property-free economies to rationally allocate resources, should also see a type of calculational chaos to the extent that actors choose for or against producing intellectual works.

Silas Barta said…

@Bob: Okay, now a reply to your comments about the exchange between me and Kinsella. (Btw, if you just want to get the gist of my three points in favor of IP above, just read the first sentence on each point. They were bolded in the original.)

Kinsella (in my opinion) was showing you on the Mises blog that the spectrum stuff involved interference with physical property, whereas the IP “violations” of property only involved intangible interference. And you kept denying that this distinction was important, but I thought maybe it was important.

Maybe I’m stupid here (yes, I’m actually admitting that “straight-setter” could be stupid) but I didn’t see him arguing that. If I had, I would reply that violating someone’s IP rights does have a physical component as well: you make people’s brains have different physical content than the rightsholder would want. (Specifically, they have more mutual information with the content of the intellectual work.)

So that’s why I would say the distinction’s still unimportant: it doesn’t get you a morally relevant difference.

Now, is the voodoo doll example supposed to work against Kinsella, in getting him to admit that the lack of a known physical mechanism is unnecessary in establishing a rights violation? Because that example also highlights problems arising from the, er, use of the concept of “use”.

My point, again, is that whatever “interference” you want to point to with radio waves will always have an analogous component in IP; there is a critical distinction between “everyone can broadcast at frequency F” vs. “everyone can transmit information via broadcasting at frequency F”.

Bob Murphy said…

OK Silas, I think I get your position now. I think it boils down to Kinsella’s assertion that property rights refer to tangible things, and your questioning of why that would be so.

You’re right, we are only having an argument over IP because there are implications in terms of scarcity, but if you are Kinsella, it’s obvious to put a box around what the property rights are.

Do you agree with the standard libertarian view that libel (or slander?) should be legal, because you don’t own your reputation? Or the idea that you don’t own your revenue stream, and so a competitor opening up across the street (and putting you out of business) isn’t violating your property rights?

Because it still seems that the Kinsellian view is pretty crisp and consistent on all 3 of these areas. Yes, of course scarcity is involved with the person who doesn’t want you spreading false rumors about him, but the point is, those scarce things are owned, and the mere spreading of false rumors isn’t a violation of anyone’s property rights in those scarce things.

Silas Barta said…

Whoa whoa whoa, time out. I don’t think you do get my position Bob, because if you did, you wouldn’t be speaking of Kinsella’s position as being crisp and consistent. He certainly thinks he’s putting a box around what the property rights are, and that he’s being consistent, but if you understood my point about my radio waves, neither of those is true.

By emitting radio waves at a certain frequency, you are also not violating anyones rights in the standard tangible things. A radio frequency is NOT tangible, and thus, the moment Kinsella endorses this kind of property right it is abundantly clear that tangibility is not actually his criterion.

With all due respect, it’s not clear to me which part of my case you think you understand.

Ron Jennings said…

One question for consideration, presented as several similar scenarios:

If you sneak over to my driveway one night and build a brick wall around my car, thereby preventing my use of it to get to work, is this a violation of my property rights? I own the car (or at least the metal and polymer molecules arranged in the form of a car ;), and my ability to use it as I wish has been damaged by your wall, even though the car itself may not have been damaged. Have my property rights been violated?

Let’s say I own 100 acres of farmland, and you fly over it in your crop-duster and spray it with some chemical that prevents anything from growing on it. My intended use for the farmland is as a farm…to grow things. You haven’t destroyed the dirt, but you’ve made my intended use thereof impossible. Have my property rights been violated?

Finally, if I set up a radio station and begin broadcasting at a particular frequency, then you set up a radio station across the street and start broadcasting at the same frequency, but with a much more powerful signal…powerful enough to drown out my signal, have my property rights been violated? You haven’t damaged my radio equipment, but you’ve ruined my ability to use it, assuming that there aren’t any other frequencies on which someone else isn’t already broadcasting at a higher wattage than me. I disagree, therefore, that broadcasting at a particular frequency is an “intangible”.

Is there a violation of property rights in any or all of these cases? I am still seeking the truth of the principles of IP, so I haven’t fully formed an opinion for or against it. I do, however, believe that in each of the 3 cases above a violation of property rights has taken place.

“Ownership” of any legitimately obtained thing is actually the right to use the thing in any manner that does not violate the same rights of another. Agreed? Therefore, if I “own” a car, what I really own is the right to drive it, set it on fire, or crash it into my house if I so choose…so long as my doing so doesn’t deprive someone else of the same right to use their property. I have acquired that right by exchanging something of value for it. If I “own” the farmland, I really own the right to plant crops on it, let it lie fallow, or start a nudist colony. This right I may have earned by homesteading a previously unowned piece of property. By the same token, in order to broadcast at a certain frequency in a given area I must own the rights to do so. I could go about obtaining this right through homesteading…being the first person to broadcast on that frequency in that area.

In each case, my rights encompass all of the possible things I could do with my property that don’t infringe on the rights of others. The “intended use” is irrelevant. If someone else prevents me of doing what I wish with my property, then my rights have been violated.

The concept of “rights” is meaningless if we take human desire out of the picture. If humans didn’t wish to do things with stuff, then there would be no need for property rights at all.

So now we come to IP.

If I write a computer program, of what have I gained “ownership”? I have gained the right to use the code in whatever way I choose, so long as I don’t violate someone else’s rights (for instance, writing a program that would destroy another person’s computer would violate their property rights). I can sell the program. I could give away the program and the source code. I could keep the program for myself and charge other people by the minute for the ability to use it. Does someone else copying my program prevent me from doing any of these things? Would someone else writing a similar program purely by chance (different people do come up with the same ideas by chance sometimes), and selling it to others prevent me from using my program in any manner I choose? No, it doesn’t. It may mean that fewer people will buy my program from me because they can buy it from someone else, but it doesn’t prevent me from offering it for sale.

So I think I’ve answered my own question here. At this point, I think I’m against the prevailing concept of IP (though I do have my own opinion about the legitimacy of EULAs, which are a different matter), as they represent a restriction on an activity that does not prevent me from using my property in a peaceful manner.


Oh, and sorry for the really long comment. 😉

Silas Barta said…

Ron Jennings: No need to apologize, long comments are welcome, so long as they’re at least loosely on topic 🙂

I want to address your handling of radio equipment interference, where subtleties arise that (I claim) make my point:

Finally, if I set up a radio station and begin broadcasting at a particular frequency, then you set up a radio station across the street and start broadcasting at the same frequency, but with a much more powerful signal…powerful enough to drown out my signal, have my property rights been violated? You haven’t damaged my radio equipment, but you’ve ruined my ability to use it, assuming that there aren’t any other frequencies on which someone else isn’t already broadcasting at a higher wattage than me. I disagree, therefore, that broadcasting at a particular frequency is an “intangible”. (emphasis added)

Let’s look at that claim: I’ve ruined your ability to use it. I say that there is exactly one sense in which I’ve ruined your ability to use it: you cannot transmit information, as distinguished from transmitting mere *waves* or *energy*. Your equipment is undamaged, it still runs, it still emits waves. There is nothing detectable that is wrong with the transmitter itself. So why does transmitting information count as part of the rights bundle of owning it? After all, there are numerous things I can do that hinder potential uses of your property yet don’t violate your rights. Why does hindering *this* use count as a rights violation?

Ron Jennings said…

Thanks for the response, Silas.

“I say that there is exactly one sense in which I’ve ruined your ability to use it: you cannot transmit information…”

After I wrote my comment, I started to reflect on this as well. You’re correct in that you’ve only interfered with one possible use of my property. The question is, then, what determines which use(s) of my property can be legitimately prevented without violating my property rights?

Consider the car case again. Your brick wall prevents me from being able to drive the car, but I can still get in it (assuming I’m able to scale your wall) and rev the engine or listen to the radio. So, at what point have you violated my rights?

I postulate that interfering with any possible use of my property which does not violate someone else’s right to use their property is a violation of my property rights. As you’ve stated before, “intended use” is naturally subjective. You and I may purchase identical items with the intent of using them in completely different ways; however, no one can know our intended use except us, so there is no objective way to determine whether or not that intent has been violated. Attempting to draw the line of rights at the point of “intended use” necessarily makes that point arbitrary and subject to interpretation.

Let’s change up the car scenario a bit to say that, instead of building a wall around my car, you simply grab a couple cans of Krylon and paint graffiti all over it. This won’t prevent my ability to drive the car to work (assuming you didn’t paint over the windows), but what if I had bought the car simply for aesthetic reasons…to park it in my driveway and admire it as art. You have interfered with only one possible use of my car, but since the act of looking at my car violates no one else’s rights it is a perfectly legitimate use thereof, and any infringement of a legitimate use constitutes a violation of property rights.

This is why I don’t agree that copying and selling a book written by someone else is a violation of the writer’s property rights, since my doing so does not prevent the writer from continuing to use his or her book in any way he or she chooses. One such use is offering the book for sale. This is legitimate because it violates no one’s property rights; therefore, the writer has the right to offer his book for sale. I contend, however, that the writer does not have a “right” to profit from her work. In order for the writer to profit, it must be purchased by enough people to cover the cost of its writing, plus some extra. The writer’s “right” to profit therefore implies an obligation on the part of enough consumers to cover that cost and provide a profit. This can be considered a violation of the property rights of those consumers, at least logically, and therefore illegitimate.

Silas Barta said…

Ron: again, thanks for sharing your thoughts.

First, I want to dispute your characterization of what is claimed by IP proponents. It is incorrect, I believe, to say that they support a “right to profit.” Even the most hard-core IP advocates do not support the right to profit, but rather, the right to exclude others from instantiating the work, from which a profit could, but does not necessarily, result — just as physical property rights advocates aren’t supporting a “right to profit” as such. And, just as the right to property is not merely claimed as a right insofar as it is aimed at a profit, the right to IP could just as well be asserted because, e.g. some artists doesn’t want his works “defiled”. While such a desire cannot by itself justify a right, it is one of the things the artist could use IP for, wherever it’s enforced.

As for the rest of your point, I am trying to see if you have succeeded in defending spectrum rights while still rejecting IP rights. I don’t believe you have solve the original problem. What you say is that “interfering with any possible use of my property which does not violate someone else’s right to use their property is a violation of my property rights” That still regresses to the question of whether “drowning out someone’s transmissions” violates property rights.

Ron Jennings said…

“That still regresses to the question of whether “drowning out someone’s transmissions” violates property rights.”

Yes, that is the question. The same question could apply to the car scenario. Is painting graffiti on someone’s car, thereby interfering with his right to enjoy the factory paint job, a violation of the car owner’s rights?

We could ask a similar question about simply playing a radio. If you’re listening to your radio on your property, and I start playing my radio at a volume level that drowns out your radio, preventing you from being able to listen to your radio, have I violated your rights? I would say yes, as you have “homesteaded” the airspace occupied by the sound waves from your radio, and my louder radio prevents your use of your own property. If you turn your radio off, the airspace once again becomes “unowned”, and anyone may then turn on their radio and homestead the airspace in turn. This all, of course, leaves aside any of the other rights violations that may stem from my playing my radio so loudly that it violates your rights in some other way…we’re just talking here about your ability to listen to your radio.

I believe this is consistent with the Lockean “first owner” principle. It’s also a logically and ethically consistent application of property rights as a mechanism for prevention of conflict over the use of resources. In this case, the airspace occupied by sound waves can’t realistically be used by two different people for different things (playing different tunes) at the same time. If humans were able to filter sounds to only those they wished to hear, there would be no conflict, and thus no need for property rights. Obviously, if radio technology evolves to the point where two or more signals may be broadcast at the same frequency in the same area without interference, then the landscape of property rights would necessarily change to reflect that new ability. The elimination of interference makes the frequency resource non-scarce, therefore eliminating conflict and the need for broadcast property rights.

Anonymous said…

Are you still reading and replying to this blog? I have a few comments haven’t wanted to throw in to Mises.org
Kind regards,

Silas Barta said…

Heh, I keep coming back to this post to link to it, so I guess the answer’s “yes”, Andras — that’s how I found your post. So, I’ll see them. Feel free to add your comments!

I’m glad I didn’t set an auto-lock period on discussions…

Anonymous said…

I see the IP laws from inside as a research scientist on the drug discovery field. I state this not as an argument but as to show I have some insight. I admit that IP laws are bad. The only reason I prefer them to Kinsella’s no IP world is just that. IP laws, at least, recognize IP! The recent flood of anti-IP doctrines on Mises.org made me get involved in the discussion. Michael Smith, ktibuk and, especially, you have made several outstanding arguments against anti-IP. I don’t know your position, I only hope you looking for a practical solution, one that morally acceptable still consistent with your views on freedom and rights like myself. This was the reason I approached you here. I have felt that the background noise on Mises.org is too high and the head wind is too strong to allow us going deeper into the counter arguments. This is just for an intro.
Here is my observation: Mises mentions this problem in Human Action, Scholar Edition, p657. His final words is that he cannot decide. This is in itself an extraordinary statement from Mises. Usually he knew what he picked as solutions unless he was sure there was no solution (like for predicting the future including the market). Anyway, he states that “It is beyond the scope of catallactics to enter into an examination of the arguments brought forward for and against the institution of copyrights and patents. It has merely to stress the point that this is a problem of delimitation of property rights and that with the abolition of patents and copyrights authors and inventors would for the most part be producers of external economies.”
(This is later part, as far as I know, conveniently left out from Kinsella’s book.) This was a dichotomy Mises tellingly rather avoided. What if we pick up this line and see where it can develop. E.g.,
1) Although he considers abolishing patents and copyrights he never go that far as to say IP is worthless. 2) I guess being external is one way to say “failure to calculate”. you did that but not in this context.
3a) Also he mentions that the reason for not recognizing IP is rather its inexhaustibility than its being immaterial, intangible. (At least we can avoid rendering ideas to brains and silicon chips.)
3b) From the other side, I can observe how hard to find genuine solutions to our complex word. I can say, there is real scarcity at the creation of original ideas. Of course, any intelligent human can comprehend them once recognized. That is what makes them logical or “rational”. But an original idea is a rare animal. Their formation is very sensitive to the circumstances, so that I think they need to be nurtured. Not because of my sake but of humanity’s sake. These are the only tools we have for adaptation. I wish it could be included in the scarcity equation to reflect both sides. These would be uniqueness, the absolute scarcity of the original idea on one hand and the ease to comprehend and apply on the other. This second is a strange thing: the more desperately a new idea is needed i.e., the more people copy it the less its scarcity and the stronger the claim that it is worthless. So that I dare to say that a non-IP world is anti intellectual as well. It will handle IP as an act of god and society will simply cannibalize it. It would be like overfishing or deforestation of “public” resources. (Not to mention all the still functioning producers who jealously try to avoid any improvements which would make their means of production immediately obsolete as any new idea can be immediately available to anyone.)
Is it possible that property as Mises(.org) defines it not valid? I personally tend to accept Rand’s views though not the way Kinsella ridiculed them.
I have a few further worlds on property as well but I think my scribblings are long enough already for a reasonable discussion.
I hope you find the time to reply.

Silas Barta said…

Andras: Thank you for your comments. It’s unfortunate that the atmosphere around the mises blog is such that you don’t feel you can have a good discussion there, but you’ll always be welcome here.

I think you fairly characterized my view: I want to find an answer that’s consistent with my principles, and also practical. Sadly, very little of the work by libertarians helps in this respect: it makes a lot of unhelpful errors that do little to accomplish anything. Int criticizing all of this, I ended up getting kicked off a libertarian maling list.

Because of the parallels between IP and physical property, I have to agree with your claim that ideas will be “cannibalized” in the absence of IP. If we abolished it today, there would be huge, immediate gains, but investment would sharply shift out of a producing ideas, and new ones would be slow to come. The only new intellectual works you would see would be those that can be made cheap. This is parallel to what would happen from abolishing physical property rights: a lot of people could loot some good stuff, but then the “goose would stop laying golden eggs”.

In an attempt to find a satisfactory answer to this dilemma, I have looked for theoretical ways that creators could be compensated. Eventually, a few years ago, I sketched out a paper suggesting that arbitrage would be one way to profit without IP: basically, when you invent something, then buy whatever would become expensive because of the invention.

Needless to say, Stephan_Kinsella saw little point to thinking about such issues.

Again, thanks for sharing your thoughts.

Anonymous said…

I have read your blog to be familiar with your ideas before approached you. During that I have learned about your affair with this “libertarian” blog. We’ll see if mises.org is different. Kinsella has an agenda and he is mean. I’m sure he is intelligent enough to know his fallacies but can not give up his position which earned him the limelight. So he tries to eliminate all objections and this has led to the total highjack of the libertarian media. Tucker of mises.org, I think, is just a victim and I prefer to believe he is benevolent. (Though I have been wrong before: I also believed that of Greenspan, as the second coming of Atlas.)
I felt the need for a place of pro-IP discussions. A place where a coherent defense can be built without the fragmented approach of negating the anti-IP blogs and their loyal goons. Your blog offered itself as such. Please let me know if you are interested. Then you could invite others, too.I have just looked up the entry of “Molinari Symposium: Call for papers on IP” to suggest you that you should participate. I was glad to see you already on it. Wonderful!
I understand if you want to prepare for it alone. By the way, I do waive any rights in advance. I am interested only in stopping the epidemic of anti-IP.
Could you follow up on your arbitrage idea? I could not catch it.

Silas Barta said…

Yes, Andras, I wish I could keep myself committed to posting about IP on my blog and bringing in people who want to discuss it. I haven’t posted very often recently, but I’ll try to improve.

Not to copy the Mises blog’s echo chamber, but I think your points are absolutely correct. Despite Stephan Kinsella’s admissions, he really can’t give up his loyal followers that promote his weak arguments. I also didn’t like Jeffrey Tucker’s contributions. Just today, in the middle of the discussion, he threw out the assertion that: “Markets really do work. Down with stupid central plans!”

As if anyone disagreed with that! While slavery would be very wrong, it would not be wrong on grounds of being “central planning”. Just because you disagree with something, does not mean you can label it as “central planning”. (And I’ve seen other libertarians make that same syllogism when they justify other bad positions.)

It’s really disgusting to see how libertarians’ perceptions twist when the topic comes to IP.

For me too, it would be easy to just buy into Kinsella’s arguments, and parrot the “IP isn’t scarce” line. But sadly, it’s wrong. It requires that you make assumptions so broad you might as well assume your conclusion.

Let’s hope this blog becomes a refuge for serious libertarian theorizing on IP, but don’t forget: there aren’t even any blogs that link here in their blogroll!


Let me expand on my arbitrage idea. Let’s say your intellectual work is a device that makes orange juice from oranges more efficiently. Here’s how you would profit without IP rights:

1) Invent device.
2) Buy up securities that become more valuable when the price of oranges goes up.
3) Release the specifications of the device for free.
4) Once people learn of the device, demand for oranges goes up…
5) So the price of the securities you bought go up, and you can sell them for a profit.


Anonymous said…

Seems to me libertarians need to go through the cleansing fire of time, like objectivists did, to get rid of dogmatism and learn to think for themselves. However, I think they are still in a better shape than the rest of the population.
You can be sure if you build a nice nest the birds will populate it. You have invested a lot in this blog it is almost ready already for being a meeting place for any alternative ideas.I have certainly understood your “arbitrage” if we can call it that as it hardly fits the definition. I would simply call it investment or, if it weren’t such a bad name today, insider trading. Unfortunately, like for all substitutes, it is not the real thing. I think the inventor have gotten exhausted enough financially with developing his idea and its realization and than he still need to be an entrepreneur and, with your proposal, an investor, too. Too much fuss, modern societies are about specialization and co-operation not reinvention of the renaissance man. Some can do it but it can not be forced on everyone.Silas, I think internet domain names (as a concept) are also, like EM frequencies, similar to IP. Noone questions their value (yet) unlike that of IP. I have thrown it into one of the discussions but get only an ignorant reply. What do you think?

Anonymous said…

Hi Silas!
You replied to a post of mine and directed me to this page. I read your argument and I’d like to offer the following, if you’ll allow me:
On the mises blog, you took this phrase of mine:
“My idea and your idea are completely separate, even if they both describe the same event in an extremely similar fashion.”
and you equated it to this transformed phrase:
“My transmission and your transmission are completely separate, even if they both reference the same frequency in an extremely similar fashion.”However, in your original post here, you say: “It is true (as many, many will remind me) that to broadcast at the same frequency as someone else “interferes” (!) with their “signal” (!).”This last statement renders your version of my phrase invalid, but it does not do the same thing to my original phrase. Hence, they weren’t equivalent to begin with.Is my definition of “idea” too exotic? I think it’s actually more exact that what has been used in the discussion until now and it will help us get to an understanding of IP by moving away from superficially simliar but intrinsically diverging and hence irrelevant analogies.Cheerio!

Anonymous said…

Hello all,

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

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

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

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

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

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

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

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

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

I hope my comments have been constructive. 🙂

Jay Lakner.

nates said…

Why is it a given that Libertarian support EM spectrum rights? If someone wants to blast radio waves at a signal I am using, I’ll use another signal. Blasting radio waves is not a free activity. Radio stations cost power, and money to build. I not sure many venture capitalist would look at a proposal to interfere with other radio stations and immediately see a profit potential. If there is in fact some kind of roundabout prisoner dilemma made up profit motive in interfering with signals then arbitrarily creating EM spectrum rights interferes with profit creation, and will hurt society in the long run.

nates said…

As a further example, how does Somalia anarchy have one of the cheapest and widely developed cell phone networks in Africa. There has to be EM rights? Right?

Unknown said…

To test any theory it’s often best to take an extreme example and see if it holds up. Let’s say that during the dawn of the radio era I’m an amateur radio astronomer who derives a small income from publishing articles in amateur astronomy journals. In pursuit of this activity I have invented and built a radio telescope in my backyard, and for several years I have been recording the fascinating activity of quasars, studying the property of the ionosphere as well as searching for life in other solar systems. My receiver is broadband, it operates from very low frequencies to microwave frequencies, and can scan the whole sky with automated controls. My receiver is also extremely sensitive so that it can detect radio signals billions of miles away. So practically anyone transmitting on any frequency within hundreds of miles (or thousands of miles on certain frequencies, or billions of miles in the direction my antenna is pointing at the time) will corrupt my measurements. Even things like spark plugs and electrical motors cause interference from miles away. Property right activists would say that I have homesteaded the entire radio spectrum in an area covering at least several states and at shortwave frequencies the whole world. Now suppose that I live in California and Marconi started transmitting with his high-power spark gap transmitter in New York and totally obscured the sensitive measurements I was making. Naturally I sue to stop him from transmitting on any frequency anywhere in the world. In fact I sue to prevent anyone else from transmitting anywhere in the world, thereby firmly establishing my rights to the whole radio frequency spectrum world-wide (unless it could be shown that the transmitter doesn’t interfere with my receiver. This is a moving target as I’m making it more sensitive every day.)In additional I’ll make sure to ban the use of spark-plugs, power transmission lines, arc welders, microwave ovens, and anything else that might emit radio waves.
Marconi would likely claim that I have no such property right, and even if I did his use would take priority because he invested 1000x more money into his radio and it is a commercial operation with a large potential revenue stream. Whenever there is a conflict of rights I tend to suspect that the reason is that the rights claimed don’t really exist. What certainly does exist in this scenario is a time element to the claims (I was first), financial damages and the issue of cause and effect: Marconi is responsible for 100% of my damages. If we assume the existence of property rights, during the course of the lawsuit it will become clear that I have priority of claims and that Marconi will likely lose the suit. He makes a series of offers that I refuse culminating in a $1,000,000 to buy out my claim. Since I’m passionate about my hobby I refuse the offer (plus I begin to suspect that world-wide radio spectrum rights will soon be worth a lot more and when I retire my hobby I could be the richest man in the world).
These are the kinds of dilemmas we will invariably run into if we accept the notion of property rights of any kind rather than claims on property. Someone will try to homestead the moon, or a whole galaxy for that matter.
Going back to this scenario I would argue that I have no rights to the radio spectrum, use of a radio, invention of the radio, a profession as an astronomer, any speculative income from said profession, or any other rights that one can invent. The only claim that I can make is the direct and immediate damages that resulted from Marconi operating his transmitter and reasonable estimate of future revenue. In my case the damages might only be the $10 I was promised for my next article and possibly legal fees if he didn’t agree to the $10. Alternately, if my income was much higher, Marconi might agree to spend the money to relocate and maintain my radio telescope on some remote Pacific island surrounded by a tall mountain range.

Unknown said…

To be consistent, property rights in tangible property would have the same issue. For example, if I’m a landlord that homesteaded millions of acres of land, and most of it I’m not actively using, and a squatter occupies some of this unused land, I would say that the I have an inferior claim to property. I cannot evict the squatter from this property or seek any kind of compensation as I have suffered no immediate financial loss due to the interference into the use of the land. The squatter by making productive use of the land has the superior claim.
So the bottom line is that productive use should take precedence over priority claims.

Jake Hill said…

This comment has been removed by the author.

Jake Hill said…

The only rights WRT to radio waves are the rights of the receivers, who have every right to object when the operation of their listening devices are disrupted by radio interference. As with everything else, their rights concern their scarce, real property (in this case, their radios). It is their right to say what the use of their property will be. This is indeed subjective, as is every preference. And they can easily show harm (e.g. I tried to listen to FreeTalkLive and it cut out halfway through, playing the State of the Union … or some such)

This is simply a noise pollution issue, and it should be handled the same way.

As for IP, it is not much like radio waves. Radio waves are functionally finite. IP is not. IP binds the hands of people universally, whereas radio interference can be as local as wifi or bluetooth (less than 100 ft). Further, radio waves are real things that travel and vibrate in finite ways. They compress and expand relative to a moving observer. They excite particles that they contact. Information is not at all like that. It is not real in and of itself.

Rob Wicks said…

Spectrum rights are also violations of the NAP.
  1. He once confirmed this to me: “I also post at these places.  (Usual handle in parentheses.)

    Asymmetric information, Megan McArdle’s blog (Person)
    Marginal Revolution (Person)
    Overcoming Bias (Silas)
    Kip Esquire’s blog, A Stitch in Haste (Silas)
    econlog.econlib.org (none, banned)
    economiclogic.blogspot.com (johnsharp9)”  []

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