From the Mises Blog years ago: Robert P. Murphy, “(Minor) Criticisms of Kinsella,” 5/05/2005: and my reply in the comments section. Archived comments below.
For an Austrian II class we read Kinsella’s famous “Against Intellectual Property.” I generally found it to be every bit worth the hype, but naturally I can’t help but offer a few criticisms. I do so here on this blog because I don’t know of a more appropriate forum:
(1) On pages 18-19, Kinsella paints a horrifying picture of an IP world. But isn’t this a utilitarian argument, that Kinsella had earlier denounced when coming from pro-IP people? Also, isn’t it a cheap shot to talk of the “lucky, rich” heirs of those who have good ideas (when castigating an IP world)? I could just as easily denounce the homestead principle by saying ten generations from now, anyone who wants to grow food must first receive permission from the lucky, rich heirs of people who stumbled across virgin farmland.
(2) On page 43, Kinsella says that someone actively soliciting a trade secret could be punishable, in the same way that a mafia boss who orders a hit is committing a crime. But doesn’t this give far more scope to contractual copyright infringement? E.g. kids downloading songs know that they’re facilitating somebody’s breaking of a contract with the music label, etc.
(3) I was a bit disappointed with the appendix, and its list of absurd IP claims. I have heard of far more ridiculous claims than the ones Kinsella lists. Is it just that they occurred after his article was written? (Again, these are the only 3 problems I had with what was an otherwise amazing article.)
Archived comments below:
May 5, 2005 at 8:24 am-
Prof. Murphy,
As I understand it, Kinsella is trying to show that even if we accept utilitarian arguments as legitimate, there isn’t a utilitarian argument for IP-rights.
Regarding actively soliciting a trade-secret, that seems different than downloading a song from a P2P network. In the case of soliciting a trade-secret, someone knows that they’re asking someone else to violate a contract; otherwise, they wouldn’t be soliciting a trade-secret. In the case of downloading a song, an argument can be made that the person doesn’t know they’re violating a contract.
May 5, 2005 at 9:44 am-
Why so timid? (Again, this is the only problem I had with what was an otherwise amazing post.)
May 5, 2005 at 9:57 am-
It is not a cheap shot to denounce the heirs of an IP patent without denouncing the heirs of homesteaded land. They are as different as the ownership of the idea of a lemonade stand and the ownership of a specific lemon tree; only the latter is a scarce resource, where use by one prevents use by another.
Regarding the utilitarian argument: Kinsella merely shows that taking the inclusion of intangibles in the definition of property to a logical conclusion would generate absurd results. If anything is utilitarian, it is the arbitrary cutoff of those property rights after a number of years.
For those who just can’t read enough on the subject, there is a 2001 Hans-Hermann Hoppe article on The Ethics and Economics of Private Property that touches on similar subjects. A somewhat different argument comes out of Chapter 16 of “The Ethics of Liberty” by Rothbard.
May 5, 2005 at 10:20 am-
Bob, thanks for the compliment, but I don’t think my article is famous! And if those are your main criticisms, I take that as high praise. If you have “major” criticisms, I won’t be offended, feel free to lay them out there (if this is what “Justin” meant by his arcane “why so timid?” comment).
Couple replies.
(1) On pages 18-19, Kinsella paints a horrifying picture of an IP world. But isn’t this a utilitarian argument, that Kinsella had earlier denounced when coming from pro-IP people?
Well–in this article I was not trying to establish the libertarian case for property rights from the ground up. I was addressing the arguments in favor of IP, and also analyzing the compatibility of IP with the standard type of property rights assumed to be valid by libertarians (for whatever reason).
Thus for those who advance utilitarian or “practical results” type defenses of IP, I think it’s worth pointing out to them the practical problems and costs of such a system. Further, in the context of a libertarian discussion or a discussion with people who generally favor human liberty, prosperity, and peace, and the general idea of propperty rights, I think it is in fact worth pointing out how a given proposed legal right or institution would significantly degrade these (assumed) favored goals or institutions. That is, I think it is not unlibertarian to point out that a given proposed policy would or does lead to loss of liberty and prosperity.
Also, isn’t it a cheap shot to talk of the “lucky, rich” heirs of those who have good ideas (when castigating an IP world)?
I suppose you have a point here–but the argument here didn’t depend on the heir being lucky or rich. I was simply pointing out here the practical problems of “unbound” IP rights–e.g., having perpetual scope. The “lucky, rich” comment is really unnecessary. The point is that if you have unbounded IP rights, other property rights would be overwhelmed and we would be unable to use property, which is actually one purpose of a property rights system. Therefore, only absurd extremists advocate unbounded IP; everyone else has to come up with completely arbitrary stopping points.
(2) On page 43, Kinsella says that someone actively soliciting a trade secret could be punishable, in the same way that a mafia boss who orders a hit is committing a crime. But doesn’t this give far more scope to contractual copyright infringement? E.g. kids downloading songs know that they’re facilitating somebody’s breaking of a contract with the music label, etc.
Well. First, please note that my article mainly focused on copyright and patent. I addressed only brief space to trademark and trade secrets. For trade secrets, I said that:
In the context in which such situations usually arise, however, where the competitor Y wants the trade secret and knows the defecting employee is in breach of contract, it could be argued that the competitor Y is acting in conspiracy with or as an accomplice of employee A to violate the (contractual) rights of trade secret holder X. This is because A has not actually breached his trade secrecy agreement until he reveals trade secrets to Y. If Y actively solicits A to do this, then Y is an accomplice
or co-conspirator in the violation of X’s rights. Thus, just as the driver of the getaway car in a bank robbery, or the mafia boss who orders an assassination, are properly held liable for acts of aggression committed by others with whom they conspire, third parties can, in narrowly defined cases, be prevented from using a trade secret obtained from the trade secret thief.So, I was saying it’s “arguable” that the instigator here is guilty. I am not sure of this. I think it depends on a theory of causation, in part (about which I have subsequently written in more detail here: Causation and Aggression). But note that I limited this to actions that occur before the trade secret is public. In my view, once the contract has been breached and the information is public, then third parties using the information are not causing any agreement to be breached; it has already been breached. I was talking about a limited scenario when party A induces (causes) party B to violate party C’s rights. Whether B’s breach of a contract with C is a violation of C’s rights, is another question; I am skeptical that it is, under a title-transfer theory of contract; see my article on Contract theory here. But it might be; I am not sure. It is possible that C and B might come up with creative contract terms and provisions that are triggered in such a way that B, by violating the terms of the contract, does in effect steal from C. This is a detail, to me.
As for downloading songs: again, once the song is publicly available I assume it means some original purchaser has already breached his agreement. The kid downloading the music is not causing the breach; it has already happened. See the example of Farmer Jed on p. 40. Suppose you have a horrible disease such as HIV or VD, and no one knows. You tell B in confidence, under a contract of confidentiality. Now B publishes this fact on the Internet. Now many people know you have this disease. Does their “knowing” mean they are causing any breach of B’s agreement with you? No–the breach was his act of publishing the information. Now if C *induced* or *caused* B to publish this info, perhaps, arguably, you could say C played a causal role in whatever crime (if any) was committed by C. But not those who later learn of the fact that should never have been revealed. Same with copyrighted songs.
(3) I was a bit disappointed with the appendix, and its list of absurd IP claims. I have heard of far more ridiculous claims than the ones Kinsella lists. Is it just that they occurred after his article was written?
Ha! There are so many to choose from. See, e.g., PatentlySilly.
May 5, 2005 at 11:18 am-
Why so timid? (Again, this is the only problem I had with what was an otherwise amazing post.)
Have you ever looked at SNK’s blog? I don’t want to get on his bad side and have him demonstrate his repudiation of reputation-as-property.
May 5, 2005 at 11:51 am-
When at the ASC some years back (ASC 8?), I asked Tom DiLorenzo what he thought the most thought-provoking and mind-changing article was in recent memory within the libertarian academic community. He thought it was Stephan’s anti-IP article in the JLS.
So, Stephan, take it like a man: daddy’s famous.
May 5, 2005 at 4:59 pm-
And to think, an evil wikinerd deleted Kinsella’s Wikipedia entry.
May 6, 2005 at 2:13 am-
I have an observation which Kinsella would probably like to address. My apologies if he has already done so elsewhere. I hope the issue does not seem overly nit picky.
In “Against Intellectual Property”, he states “On the other hand, there is a long tradition of opposition to patent and copyright. Modern opponents include Rothbard, McElroy, Palmer, Lepage, Bouckaert, and myself”, referencing both “Man, Economy, and State” and “The Ethics of Liberty” in support of this. However, my understanding of Rothbard’s position based on reading from both of the sources cited is that Rothbard endorsed copyright enthusiastically. As indicated in MES, in a letter to Dick Cornuelle, he wrote
“To Chapter 10 I have added a brief final section presenting a new theory of Patents and Copyrights, in which I demonstrate that copyrights are essential to the free market, whereas patents are monopoly grants by the State. (I know Mises will accuse me of having a vested interest in favor of authors, but I swear that is not the consideration.)”
In Chapter 10 he writes “Copyrights, in other words, have their basis in prosecution of implicit theft.”
In “The Ethics of Liberty”, Rothbard states
“Violation of (common law) copyright is an equivalent violation of contract and theft of property. For suppose that Brown builds a better mousetrap and sells it widely, but stamps each mousetrap “copyright Mr. Brown.” What he is then doing is selling not the entire property right in each mousetrap, but- the right to do anything with the mousetrap except to sell it or an identical copy to someone else. The right to sell the Brown mousetrap is retained in perpetuity by Brown. Hence, for a mousetrap buyer, Green, to go ahead and sell identical mousetraps is a violation of his contract and of the property right of Brown, and therefore prosecutable as theft. Hence, our theory of property rights includes the inviolability of contractual copyright.”
On the one hand, I understand that this issue may seem slight, as Stephan’s ideas may improve on Rothbard’s in this area. On the other hand, since Rothbard was in agreement with copyright, it’s only fair not to imply he wasn’t (unless Stephan can show I am misunderstanding Rothbard, and perhaps he can).
- May 6, 2005 at 2:26 am
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I see i have spoken too soon, because as i read further, i see you do indeed acknowledge that Rothbard, advocates copyright. I think you probably accidentally grouped patents with copyright, when you probably meant to refer exclusively to patents in that statement, or you meant to exclude Rothbard from your list.
I’m going to carefully read your arguments refuting Rothbard’s position on copyright. Thanks Stephan. Sorry for the premature objection above.
May 6, 2005 at 11:50 am-
Artistic IP – True artists are internally compelled to produce art and the lack of patents will not slow their output. It will only slow the trash output.
Commercial IP – Are better protected as trade secrets and not published.
May 24, 2005 at 12:39 pm-
Paul said:
Artistic IP – True artists are internally compelled to produce art and the lack of patents will not slow their output. It will only slow the trash output.I say: Very true indeed. I completely agree with you.
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