Intellectual Poverty

by Stephan Kinsella on January 6, 2011

From Mises blog; archived comments below.

Opponents of the state monopoly privilege grants that the state and supporters propagandistically call “intellectual property” use a variety of alternative terms, in attempt to better describe these “rights” without implying they are valid, as the word “property” seeks to do.

Boldrin and Levine, in Against Intellectual Monopoly, use the term “intellectual monopoly.” The benefit of this term is that it calls attention to the fact that IP rights are not property but monopoly grants by the state (see Are Patents “Monopolies”? and Intellectual Properganda). I sometimes still call it IP, simple for communicative efficiency and out of semantic inertia, but of late I tend to just say “patent and copyright,” to isolate the two main state legislated rights schemes that fall under the IP umbrella. In the past I have proposed the term “pattern privileges” (see Renaming Intellectual Property) and sometimes call IP advocates “intellectual properteers.”

The term intellectual poverty occurred to me the other day. It has several advantages: it is disparaging and pejorative; it rhymes with intellectual property; and it implies both intellectual impoverishment (which results from the censorship and restriction on ideas, which are the results of patent and copyright law) and material impoverishment caused by all state invasions of genuine property rights.

Update: Some other candidates, suggested by others:

industrial protectionism (Rick Falkvinge/TorrentFreak)
intellectual prohibition (Colin Phillips)
intellectual pooperty (Nina Paley)
intellectual poverty
intellectual monopoly (Boldrin & Levine)
imitation property (Skip Oliva)
impoverishment privileges (SK)
pattern privilege (SK)
intellectual properteers (SK)
informational protectionism (SK)
Intellectual Properganda (SK)
inflationary property (SK)
monopolies of the mind (Rudd-O)
intellectual privilege (Tom Bell)
nonconsensual negative servitude (SK)
ABMR = “Arbitrary Body Movement Restrictions” (Cezary Baginski)

Update: see other suggestions and discussion in Mike Masnick, If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?: such as:”there’s use monopoly. Richard Stallman has suggested and rejected Imposed Monopoly Privileges (IMPs) and Government-Originated Legally Enforced Monopolies (GOLEMs), which are cute, but… not very practical. Some have even tried to tie the concept more closely to the “Promote the Progress” constitutional clause — though, that really only covers copyright and patents. Besides, you again have the problem of it being cumbersome.”

***

archived comments:

{ 98 comments… read them below or add one }

loki January 6, 2011 at 9:40 am

‘intellectual poverty’ is brilliant!

patents are so easy to demonstrate as broken, what is the need for them when the production of a novel item using a new technique can simply use lead time to gain significant market advantage, sufficient to establish reputation and garner that first round of profits that constitutes the main real profit in any entrepreneurial activity.

copyright and trademark are a little more complex. i think the only defensible position to hold on them has to do with the right of originators to declare authenticity and chain of contract for reproduction. as copying has become so easy to do now with computers, increasingly purely digital forms of a material are being released without restrictions on noncommercial use and it is being found that such releases actually increase the sales of products fabricated using the digital source material of the highest fidelity original work. this in itself implies that the right to copy is empty in real market terms and that only the mark of authenticity of legitimate grantees (signifying voluntary negotiation of terms with the artist originators) of the right or reproduction is valued truly (the example i could suggest would be the Nine Inch Nails recent releases where a broad variety of increasingly ‘authentic’ value-adds creates a series of pricing tiers and the ones with hand made stuff and all the way up to the original digital source files used for the product and the right to remix and use commercially were the most valuable, and these clever people, most especially mr Reznor, were richly rewarded in their efforts in a very short time).

anyway, i’m going to copy your excellent turn of phrase and i hope it goes viral.

A Liberal in Lakeview January 6, 2011 at 10:34 am

“Intellectual poverty” will also come to connote the mental impoverishment of those who find it irksome to write with capital letters. Maybe one day the mentally impoverished will try to outdo each other by abandoning punctuation, too, perhaps to appear hip and cool to savage younglings.

Then one day it will be the turn of inflection, which among those who speak English is already like a red-headed stepchild with bad skin. Pretty soon, one won’t be able to write about intellectual monopoly and properteering with any precision or clarity whatever. Humans, well, most of them anyway, will be savages and beasts once more. but at least the savages will think that they’re cool when they send and receive their text messages with nothing but lowercase and digits used 2 stand 4 words

I am reminded of words by Trent Reznor:

“
God money i’ll do anything for you.
God money just tell me what you want me to.
.
.
.
Head like a hole.
Black as your soul.
I’d rather die than give you control.
Bow down before the one you serve.
You’re going to get what you deserve.
Bow down before the one you serve.
You’re going to get what you deserve….<b?

In fact, Mr. Reznor sang that about twenty years ago, and he’s still just 45 years old. Granted, my segue is imperfect, for he was commenting about a problem described also with the phrase, auri sacra fames. That’s from Weerjil’s Eyenid, 3,57, claims Wikipedia.

Seneca, claims Wikipedia, commented, “quod non mortalia pectora coges auri sacra fames. “What don’t you force mortal hearts [to do], accursed hunger for gold?!”

As I said, it’s Wikipedia. Maybe there’s a better way to translate “coges”. I hope Mr. Reznor can be persuaded to substitute “wealth” for “money”. Maybe he can be converted to liberalism, too, if he’s not already a liberal.

More lyrics: http://www.lyricsfreak.com/n/nine+inch+nails/#share

Bow down before the one you serve! You’re going to get what you deserve. Head like a hole!…”

A Liberal in Lakeview January 6, 2011 at 10:44 am: ugg, edit window troubles

REPLY

Joel January 6, 2011 at 10:13 am

The first thing I thought of when I read “intellectual poverty” were not the consequences of such a scheme, but of a poverty of intelligence. As in those who advocate IP have an intellectual deficit.

Stephan Kinsella January 6, 2011 at 10:52 am

True: this is yet another benefit of this term. Those who advocate IP have a poverty of intelligence.

Peter January 6, 2011 at 7:10 pm

I don’t think that’s true, in general — only the ones who keep advocating it years after reading your book, etc.. It’s not completely obvious to most, and it takes a while to sink in.

Silas Barta January 7, 2011 at 10:30 am

Many IP proponents are familiar with Stephan_Kinsella’s “arguments” in Against Intellectual Property and yet (somehow!) remain unconvinced. Are they all stupid and impermeable to solid argument?

Virtually everyone who regards AIP as convincing already agreed with the conclusion. What should I infer from that?

BuckeyeChuck January 7, 2011 at 4:08 pm: That you illegitimately speak for people you do not know. I, for one, was solidly in favor of intellectual property until being persuaded by arguments. Furthermore, in order for your statement to be correct, you must assume that the majority of people encoutering these arguments already had an opinion on IP, and in my opinion, that gives them far too much credit. Most people with whom I discuss this topic have never considered the issue of IP at all, let alone formed a defensible opinion.

REPLY

J Cortez January 6, 2011 at 10:39 am

I like the following terms:

– imaginary property
– idea monopoly
– intellectual poverty

Edgaras January 6, 2011 at 5:17 pm: Imaginary Property – I started using it since last month or two.

REPLY

Crystal January 6, 2011 at 11:54 am

Why are trademarks left off the IP hit list? See
http://www.huffingtonpost.com/2010/12/07/komen-foundation-charities-cure_n_793176.html
Why shouldn’t the government protect the right of people to name an organization whatever they like?

Stephan Kinsella January 6, 2011 at 1:14 pm

I have attacked trademarks elsewhere (google my name and the trademark horror files). But one aspect of trademarks is okay–the rest is not.

In any case–the state should not protect the right ot the people to do X; the state is a dangerous, criminal entity. No offense, Silas.

Silas Barta January 6, 2011 at 6:15 pm: I don’t like when cops beat suspects to death.

No offense, Stephan_Kinsella.

REPLY

Silas Barta January 6, 2011 at 12:06 pm

Cool! Then I’ll start talking about “private poverty” in criticisms of the existing government-granted, violence-backed physical property rights whenever I want to pick a bad aspect of the current system and blame it on capitalism, all with the exact same smug self-assuredness you exhibit!

Turnabout is fair play.

nate-m January 6, 2011 at 4:30 pm

As long as I don’t see people using ‘IP communists’ then that would make me happy.

Talking to these people is like going down the rabbit hole.

https://www.cs.indiana.edu/metastuff/wonder/ch7.html

Silas Barta January 6, 2011 at 5:33 pm

Yes, because it was the IP *proponents* here who started with the project of finding biased terms for IP as a way to favorably reframe the debate.. Not.

DixieFlatline January 7, 2011 at 1:26 am: Silas, are you as incredibly small in real life as you appear to be online?

REPLY
Gary Chartier January 7, 2011 at 8:26 pm: WTF? The term “intellectual property” was itself a product of “the project of finding biased terms for IP”; ditto for “piracy.”

REPLY

Peter Surda January 7, 2011 at 7:54 am

Well, if someone uses “IP communists”, we could retort with IP confusists.

Silas Barta January 7, 2011 at 10:28 am

If your concept of “intelligent exchange of arguments” regards “thinking up better propaganda terms” as relevant, you made a mistake somewhere.

Peter Surda January 7, 2011 at 11:45 am: No Silas, my idea of an intelligent exchange of arguments is when my opponent answers questions. But since you are, for whatever reasons, unwilling to do that, that does not mean I can’t have fun at your expense.

REPLY

iawai January 6, 2011 at 6:21 pm

Cool! There is nothing worse than the scoundrel that must turn to the protection of the violent state to defend their claims of “rights” – be they physical or intellectual.

True Property is that which can be controlled by the owner – no one here would contend that a government is needed to defend property claims, merely that it has usurped this role and discourages others from voluntarily engaging in it.

You are turning nothing about, but merely agreeing with us.

Silas Barta January 6, 2011 at 7:02 pm

So IP is a valid form of property so long as non-state legal systems enforce it? Cool, go chat with Stephan_Kinsella about that now.

Peter January 6, 2011 at 7:42 pm

You’re missing one word: make it “non-state legal systems can enforce it” (i.e., that it’s compatible with libertarian law, not that they simply violently enforce it, of course; else you could define literally anything as “valid” that way). If it’s enforceable under libertarian legal principles, then of course it’s valid, yes. But ISTR “Stephan_Kinsella” has challenged_you many_times to come_up with some_description of what_you mean here,_and you never_actually bother to_respond.

Silas Barta January 6, 2011 at 11:42 pm

Why? The challenge is for him at that point, since he would need to show how they’re *different*. If we agree that libertarian legal principles constrain what kinds of laws and enforcement there can be, then anything that he says is appropriate to use against physical property crimes can be used against IP crimes. Stephan_Kinsella’s position is thus in a pickle, not mine.

nate-m January 7, 2011 at 9:05 am: Why? The challenge is for him at that point, since he would need to show how they’re *different*.

I thought this has been done to death.

Private Property:
* Based on physical reality and natural laws. It’s a fundamental component of human existence and is something that grew naturally out of the primordial soup.
* Used to delegate ownership of scarce resources.
* Deals with actual physical objects.

Patents:
* Monopoly grants to individuals based on a application you submit to the government along with a significant amount of money.
* Gives people the ability to use government enforcement to sue people for the use of their own private property.
* The only scare physical resource is the paper that documents the government granted monopoly.
* Tries to awkwardly and ineffectively delegate ownership of metaphysical concepts and abstract ideas that are insubstantial and have no physical manifestation, restraints, or any other property that remotely resembles the issues that ‘private property ownership’ deals with. That is there is no scarcity, boundaries, or physical reality to anything that patents try to ‘protect’.
* Completely arbitrarily applied to human reality based on expediency and precedent. Example: Most scientific research is unpatentable, for example, but some is. Math is unpatentable, but applied math (ie: software) is.
Silas Barta January 7, 2011 at 10:13 am: @nate-m: Those have also been refuted to death. For example, if private property only exists to handle conflicts over use, then why do you support a private property owner’s right to exclude people who attempt non-conflicting uses of his resources, when such a conflict is completely artificial and exists only because of the whim of one person? (Think “vagrant wants to sleep in cornfiedl” — no conflict with the farmer, why does the farmer have the right to expell the vagrant? Because he “wants” it that way? Great! I “want” there to be no copies of “Silas: A Memoir” other than what I authorize. So what?)

Likewise, if the possibility of two people instantiating the same pattern means there can be no exclusivity in that pattern, then why do people claim exclusivity over radio frequencies? After all, everyone and his dog can blast EM waves at 100 kHz. Any claims of “interference” are purely an artifact of arbitrary human *interpretation* of the waves (i.e. nothing objective), and granting weight to rights in this area gives you no remaining ground on which to object to someone claiming ownership in similar patterns, like a novel. Stephan_Kinsella knows this and ignores this: even he doesn’t know what to think about the deeply coupled issue of EM waves.

Finally, if IP only makes claims over metaphysical resources, then why are people able to consistently recognize when e.g. a copyright has been infringed? The thing is IP does claim ownership rights in scarce resources — it’s just that IP opponents *assume* that only certain resolutions of the conflict problem are valid (specifically, only those that give someone 100% usage rights in physical objects), thereby ruling out IP from the get-go, using circular logic.

So, basically, the only refutation that’s given (and I have some pretty explicit examples from Stephan_Kinsella) is “I’ve assumed away that distinction as irrelevant, in such a way as helps my side”. Sorry, but that’s not how good arguments work.

Try to keep up with the history of the exchanges on this.
Peter Surda January 7, 2011 at 11:28 am: Silas,

Those have also been refuted to death.

To a certain extent, I agree that some of the arguments presented by nate-m are incorrect or at least misleading. But your lack of any effort whatsoever to counter the actual arguments does not make your persuasive.

why do you support a private property owner’s right to exclude people who attempt non-conflicting uses of his resources

And why have you not stopped beating your wife? It’s false on so many levels that it’s not even funny anymore. First of all, private property must contain a threshold for integrity violations. So, it must allow for certain level of alterations of other people’s property. Furthermore, if I’m not intending to alter the integrity of my property at a specific moment, it does not mean that other people altering the integrity of my property at that moment are non-conflicting. Your confusion is caused by word use being metaphorical. If I, for example, decide not to sell any of my apples today because I think the price will rise in the future, that does not mean that other eating my apples today is not in conflict with my property. It makes some future uses unavailable. If they eat them today, I can’t sell them tomorrow or even eat them myself. Scarcity = mutual exclusivity.

if the possibility of two people instantiating the same pattern means there can be no exclusivity in that pattern, then why do people claim exclusivity over radio frequencies

For the zillionth time, you are mistaking a physical phenomenon for an interpretation of that phenomenon. A second sender makes some uses of the receiver unavailable, by causing a the receiver to vibrate differently than it would in the absence of the second sender. That is the scarcity you observe (as opposed, the mistakenly derived “scarcity” of “patterns”). Merely because current laws do not match the boundaries of physical goods in this case has no influence on the economic rules.

But even if you were right about EM, you would still be wrong in calling this ownership of patterns, because according to your elaborations (difficult do decipher as they may be), IP also requires causality (i.e. you allow for independent discovery). So it’s not an ownership of patterns, but ownership of a mix of patterns and causality. If two people independently of each other discover the similar enough new type of mousetrap, you would claim that they both have rights in the result (I’ll leave the exact details open since you do not explain them). Whereas if two people not knowing about each other independently start sending EM signals on the same frequency (for example, one of them makes a frequency search while the other one has his transmitter temporarilly turned off, incorrectly concluding the frequency is not used), you would presumably still object if they are in a close proximity. So your whole analogy lacks a common factor.

Finally, if IP only makes claims over metaphysical resources, then why are people able to consistently recognize when e.g. a copyright has been infringed?

This is again confused on a multiple levels. First of all, IP does make claim over physical resources. That’s the core of the problem, because IP proponents almost always also support physical property, thereby contradicting themselves. However, IP proponents interpret physical resources as metaphysical resources, claiming that attributes of physical goods, rather than the physical goods themselves, are the decisive factor for the property boundaries. And, of course, since attributes are measurable, if you pick any arbitrary attribute and any arbitrary value, it is usually possible to determine if a specific phenomenon is a match. This proves my argument (that IP is a claim over physical property) rather than yours. If it was not a claim over physical property, then it would not be detectable. The argument of IP infringements’ detectability has nothing to do with either property or rights. If I build a high resolution satellite and use it to observe you and am able to distinguish between you eating an apple and you not eating an apple, it does not mean that by eating an apple you are infringing any property or that I own the apple you are eating or that I own the concept of eating an apple. There is no logical reason to make that conclusion.

The thing is IP does claim ownership rights in scarce resources

Yes. It claims ownership of physical resources belonging to other people, but uses mumbo jumbo to shroud that in mysticism, metaphors, weird utilitarianism and vague moral standards.

it’s just that IP opponents *assume* that only certain resolutions of the conflict problem are valid (specifically, only those that give someone 100% usage rights in physical objects), thereby ruling out IP from the get-go, using circular logic.

I had a similar problem with this argument, but then it occurred to me that I did not understand it correctly. Possibly Stephan (and before him Mises) did not explain it very well. Maybe they thought it’s too obvious. The point is that there cannot be any other conflict than that in scarce (= physical) goods. If you could have your cake and eat it too, there would be no conflict. Indeed, without scarce goods the concepts of use, conflict, economy and human action make no sense. But if physical goods are already covered by property rights, then the only thing other rules (such as IP) can do is take away some of those rights and give them to others.

Rather then IP opponents being circular, IP proponents contradict themselves by not willing to abandon physical property in order to have IP.

Of course, they are also often cowards, not wanting to participate in a debate and instead mumbling mantras.
Stephan Kinsella January 7, 2011 at 11:47 am: Peter Surda:

it’s just that IP opponents *assume* that only certain resolutions of the conflict problem are valid (specifically, only those that give someone 100% usage rights in physical objects), thereby ruling out IP from the get-go, using circular logic.

I had a similar problem with this argument, but then it occurred to me that I did not understand it correctly. Possibly Stephan (and before him Mises) did not explain it very well. Maybe they thought it’s too obvious. The point is that there cannot be any other conflict than that in scarce (= physical) goods. If you could have your cake and eat it too, there would be no conflict. Indeed, without scarce goods the concepts of use, conflict, economy and human action make no sense. But if physical goods are already covered by property rights, then the only thing other rules (such as IP) can do is take away some of those rights and give them to others.

Rather then IP opponents being circular, IP proponents contradict themselves by not willing to abandon physical property in order to have IP.

Yes. I think the key thing to realize is that property rights are not limited. People are used to saying that property rights are always limited–you don’t have the right to use your gun to shoot me; so all rights are limited; so rights are incomplete; so how do you know it gives you the right to use it to implement a pattern?The problem is that we do not live by permission. You have the right to do anything that does not aggress against others’ property. And the other problem is that this reasoning above is confused: property rights can’t limit property rights! Property rights of course assume the validity of property rights. Property rights limit action, not property. IP and Aggression as Limits on Property Rights: How They Differ And one’s actin is limited because of the presupposed validity of property rights in scarce things; and this conception is based on the idea that property is property in scarce resources, and that trespass thereof is some kind of unintended use of, or invasion of the borders of, or change in the physical integrity of, that resource.

This is why Silas cannot just say that IP doesn’t take your property rights way–he wants to say that you never had the full rights to the resource, so preventing you from using it such-and-such-way doesn’t take anyting you had before someone else came up with this pattern. This is confused, almost fascistic reasoning.
Silas Barta January 7, 2011 at 12:13 pm: @Stephan_Kinsella: except that that wouldn’t be my argument at all in this case, as I’ve explained numerous times.

Your problem is that you claim that the *only* kind of ownership that can exist (that is applicable to any physical good) is full ownership rights to all uses. I don’t need to dispute this by reference to arguments like “but you already except that you can’t use those rights to infringe other people’s rights”. I can simply look at how you (and Locke!) ALREADY agree that homesteading a physical resource need not give you all usage rights in that resource.

For example, say I “own” a transmitter by your definition. Why doesn’t that ownership automatically include the right to make waves at 100 kHz? After all, that doesn’t stop anyone else from making waves at 100 kHz. Hell, everyone in the world could broadcast at 100 kHz, all at the same time. (Just like everyone could instantiate Harry Potter texts, all at the same time.) But … but somehow you don’t seem to think that that comes as part of the ownership package.

Since you don’t even adhere to the position that the only kind of property rights include 100% usage rights, you can hardly criticize others for not adhering too it.

Oh sorry, did I lose your attention there?
Beefcake the Mighty January 7, 2011 at 12:29 pm: Fantastic post as usual by Peter Surda.
Beefcake the Mighty January 7, 2011 at 12:29 pm: Oh, and Silas: go fuck yourself.
Peter Surda January 7, 2011 at 4:34 pm: Thank you Beefcake.
Peter Surda January 9, 2011 at 6:19 am: Your problem is that you claim that the *only* kind of ownership that can exist (that is applicable to any physical good) is full ownership rights to all uses.

And your problem is in the claim that there is more than one types of ownership, but do not explain how to distinguish between them. Your theory (notwithstanding other flaws) requires two types of homesteading, without explaining how to differentiate between them. Indeed, they are empirically indistinguishable. All action is an alteration of physical matter. There is no separate type of action that “creates patterns”.

Why doesn’t that ownership automatically include the right to make waves at 100 kHz?

It does. You just can’t transmit them far enough to reach other people’s receivers. Without the transmission reaching receivers, it is undetectable, so you can’t claim it’s illegal. Just like you can shoot your gun in general, but if it reaches someone else’s body, you’re in trouble.

Since you don’t even adhere to the position that the only kind of property rights include 100% usage rights…

The word “usage” is metaphorical. It denotes causal relationship (sometimes it’s even possible without any causality) and causality extends to infinity. So it is impossible to have 100% “usage rights”. The problem with IP is that the only way for it to manifest itself is in physical objects. It is a re-interpretation of physical objects, using their attributes rather than the objects themselves, as a boundary.
Silas Barta January 10, 2011 at 2:24 pm: IP infringement is remotely detectable too, Peter_Surda, by “receivers.”
Peter Surda January 10, 2011 at 3:33 pm: Silas,

IP infringement is remotely detectable too, Peter_Surda, by “receivers.”

Of course it is. But that proves my arguments, rather than yours. The detection of IP infringement is based on measuring and interpreting attributes of physical matter that belongs to a third party. IP expropriates physical property.

In addition, you fail to specify what attributes to measure and how to interpret them. Without that, any measurement could be interpreted as a violation. IP is just a sophisticated legalised version of “dibs”.

Last but not least, there is a semantic difference between the two (or three, physical+EM versus IP) situations. It explains why I’m pushing for receiver ownership rather than EM wave ownership. If a violations of physical property or EM are observed at a receiver, it is the receiver itself that is the violated property. With IP, it is the not the receiver that is the violated property, but some attribute of the “transmitter” that represents the violated property. Detection of copyright infringement on the web and on P2P networks, for example, works exactly as I describe: the detector (e.g. a lawyer’s computer) requests data from the “infringer”, which sends some packets back. The lawyers do not claim that their computers are being violated (indeed, they need to initiate the transfer, so the process is consensual), but that they don’t like it. It’s like requesting someone to shoot you, and after they shoot you, claim that the vibrations of the bullet (= pattern) while it was flying violated your rights.

Gil January 6, 2011 at 9:22 pm

So people are free to privately shut down other people for infringing on their I.P.?

Silas Barta January 6, 2011 at 11:46 pm

Are they free to shut down those who infringe on their IP in radio frequencies?

Edgaras January 7, 2011 at 11:25 am

there is nothing “IP” about radio frequencies, stop equivocating, sir.

Silas Barta January 7, 2011 at 11:46 am: Except for the whole, “They’re a right to instantiate a specific pattern set” thingamawhatchamacallit.
Peter Surda January 7, 2011 at 12:06 pm: So, you do not support the defence of independent discovery?
nate-m January 9, 2011 at 7:20 am: Except for the whole, “They’re a right to instantiate a specific pattern set” thingamawhatchamacallit.

Your examples of radio frequencies as a analog to IP is deeply flawed. But if you want to be accurate you’ll have to also say that if radio frequencies were IP then that would also give you the right to control people’s activities on their receivers.

After all your ‘specific pattern set’ is duplicated in every metal object that the radio frequencies reflect against. So therefore if those ‘specific pattern set’ is owned by you then that means every receiver that is capable of retransmitting or recording your ‘specific pattern set’ in a high fidelity manner will also be controllable by you and the content recorded on those devices will be owned by you.

That is because those devices are receiving your ‘specific pattern set’ then that means that you can control what their owners can and cannot do with them.

Because, you know, that is actually how copyright works with transmitted data.
Peter Surda January 9, 2011 at 10:25 am: Nice catch nate-m.

Also, if you send a signal on frequency X, and the same signal speeded up by some constant, say 1.1, on frequency X/1.1, the resulting pattern is the same but there is no EM interference. On the other hand, when you play a song at 1.1 speed, it is still considered IP infringement, although it is evidently a different pattern. It is only “the same pattern” if you arbitrarily shift the interpretation of what IP actually is depending on the situation. Because that’s what IP is: it is a vague concept without a coherent definition.
Silas Barta January 10, 2011 at 2:31 pm: Your examples of radio frequencies as a analog to IP is deeply flawed. But if you want to be accurate you’ll have to also say that if radio frequencies were IP then that would also give you the right to control people’s activities on their receivers.

Not really: IP is instantiation rights, not reception rights, even as the latter may require the former.

@nate-m and Peter_Surda: The relevant pattern is the frequency band, not the set of waveforms that are a time-wise dilation of a specific transmission. It’s still a pattern right, and the people who defend EM spectrum rights are still claming the right to stop others from instantiating a specific pattern — it’s just defined a slightly different way, with a different justification for why it’s “teh evilzorz”. (With IP it’s, “but the author *created* that intellctual work”; with EM rights it’s, “wah! I want to be able to hear Billy-Bob’s transmissions at 107 kHz, not the static from when Sally-Sue also trasmits!”)
Peter Surda January 10, 2011 at 3:45 pm: Silas,

Not really: IP is instantiation rights, not reception rights, even as the latter may require the former.

Yes. Which is exactly my point. IP is the right to transmit. EM and physical property is the right to receive. You can’t have them both. Wanting to have a contradiction does not make it go away.

The relevant pattern is the frequency band, not the set of waveforms that are a time-wise dilation of a specific transmission. It’s still a pattern right, and the people who defend EM spectrum rights are still claming the right to stop others from instantiating a specific pattern — it’s just defined a slightly different way, with a different justification for why it’s “teh evilzorz”. (With IP it’s, “but the author *created* that intellctual work”; with EM rights it’s, “wah! I want to be able to hear Billy-Bob’s transmissions at 107 kHz, not the static from when Sally-Sue also trasmits!”)

I refuted this analogy long time ago, but you as usually are not listening. First there is the dichotomy between ownership of transmitters and receivers. Ownership of transmitters’s ability to transmit would expropriate the receivers, but since receivers are covered by physical property rights, you end up with a contradiction. Second, many IP proponents, including, as far as I understand, you, agree that independent discovery (two “creations” of “the same” that are not connected by a causal relationship) is not an IP violation. However, there is no equivalent phenomenon with EM. The receiver detects interference regardless of causal relationship between the transmissions involved. Last but not least, regardless of whether there are rights in EM or IP, any energy or matter that you expend, has the potential to cause damage (unwanted change) to someone’s physical property. EM causes generally a smaller scale change. Why should this magically mean that other rules of evaluation apply? You don’t explain that. You mentioned ionisation, which is like Kerem mentioning natural reflection. In other words, you have no argument and just randomly pick words with the hope of tricking your opponents.

Artisan January 6, 2011 at 12:43 pm

I tend to think “intellectual control” reveals best where the problem might be…

Walt D. January 6, 2011 at 12:45 pm

You are too late Stephan! The US Department of Education’s mission statement is to:
“Increase intellectual poverty in the US” – (it has been an overwhelming success!). You can expect a cease and desist order for using their intellectual property!

Mike D. January 6, 2011 at 4:25 pm: SM has already posted about this;
“Investing in Intellectual Poverty”. by S.M.Oliva
http://blog.mises.org/14437/investing-in-intellectual-poverty/
I assume the SEC regulates Investing in Intellectual Poverty?

REPLY

Jon January 6, 2011 at 11:39 pm

If I purchase a piece of land, the state ‘grants’ me (more or less) a monopoly over that land, right? How is that fundamentally different from what is described in this article in relation to intellectual property? Now, if the protection provided by the rule of law breaks down, then we have a different situation. In relation to physical property, it seems to me that ownership descends to that which can be asserted at the point of a gun. In relation to intellectual property, it is either worthless, or maintained purely by secrecy, in which event, it is also worthless. Comments?

DixieFlatline January 7, 2011 at 1:30 am

There is no protection, and there is no rule of law in a monopoly legal jurisdiction.

The problem with your equivocation, is that intellectual poverty is not property, so making it a monopoly (which isn’t what happens when the state recognizes a title, as all property in the US belongs to the state and the [sic] “owners” are merely tenants) is the only thing these two examples have in common.

Jon January 8, 2011 at 5:27 am

Huh?

Dave Narby January 8, 2011 at 6:57 pm: Exactly.

REPLY

james b. longacre January 7, 2011 at 2:50 am

worthless comment. but dont let that stop you.

Silas Barta January 6, 2011 at 11:49 pm

If I purchase a piece of land, the state ‘grants’ me (more or less) a monopoly over that land, right? How is that fundamentally different from what is described in this article in relation to intellectual property?

Exactly. Finally someone *other* than me is pointing out the slight-of-hand here.

In relation to intellectual property, it is either worthless, or maintained purely by secrecy, in which event, it is also worthless.

No, there’s also community norms and whatever enforcement mechanisms exist there. But if you’re talking about the breakdown of even this? Then both IP and physical property are equally hosed.

Artisan January 7, 2011 at 3:27 am

But it depends how you view the State action doesn’t it? Why does the State (or the collective of people empowered in the tribe) “grant” a monopoly ? and why is the State still able to “seize” that “granted” property under some circumstances? Because the elite of rulers are of “divine” descent ? or because they should be “just with all men equally?”. It’s a choice.

Libertarians (only repeating earlier de La Boetie’s concern) ask themselves why tyranny exists at all? What part of a State’s action is legitimate at all?

We are looking for reasons WHY and to what extend it is worth protecting the control of an individual over some acquired resources, or why it would be worth protecting some personal control over a set of expressed idea.

In the first case, control spells very differently as in the second.

Silas Barta January 7, 2011 at 10:26 am

But it depends how you view the State action doesn’t it? Why does the State (or the collective of people empowered in the tribe) “grant” a monopoly ?

If people would still be able to produce the good in the absence of the entity claiming the monopoly, then the claimant has no basis for the monopoly. This is what should determine the validity of a monopoly claim, whether it be a monopoly on sugar, or a monopoly on a specific crate of sugar. Indeed, there’s no objective, consistent way to speak of a monopoly and justifications for one unless you are able to smoothly handle ownership of specific objects as a special case of monopoly, with all the attendant implications.

Peter Surda January 7, 2011 at 11:40 am

There is an objective and consistent way of speaking of a monopoly. Monopoly is when mutually inexclusive options are grouped under a label (say, “X”) and some of those are made illegal. Those who can still legally exercise these options are then holders of the monopoly on X. I demonstrated this on the concept of “blowpple”. This definition is consistent with the Austrian tradition.

Of course, this has nothing to do with property rights. But to get it you would need to abandon the assumption that immaterial goods have an identity.

Silas Barta January 7, 2011 at 12:04 pm

Monopoly is when mutually inexclusive options are grouped under a label (say, “X”) and some of those are made illegal …

This is getting tiring. Your definition still makes your ownership of a crate of sugar a “monopoly” (as it should — but you want to claim that it doesn’t because there’s some relevant distinction). Basically, per your definition, Peter_Surda holds a monopoly on all subsets of sugar from that particular sugar crate, as well as all crates that enclose that sugar. This is because it would be illegal for anyone (other than monopolist Peter_Surda) to offer some subset of that crate’s sugar for sale.

We should distinguish between good and bad monopolies, and what aspect of a particular monopoly makes it bad, not try to reason with such a vague class.

Peter Surda January 7, 2011 at 12:32 pm: This is getting tiring.

Indeed.

Your definition still makes your ownership of a crate of sugar a “monopoly” (as it should — but you want to claim that it doesn’t because there’s some relevant distinction).

So, if you eat the sugar from my crate, that does not prevent me from eating it too? You know, because that is what mutually inexclusive options mean.

Basically, per your definition, Peter_Surda holds a monopoly on all subsets of sugar from that particular sugar crate, as well as all crates that enclose that sugar.

The uses of the subsets of the crate of sugar are not mutually inexclusive with each other. So your whole argument makes no sense.

This is because it would be illegal for anyone (other than monopolist Peter_Surda) to offer some subset of that crate’s sugar for sale.

Since sale of that subset would make it impossible for me to sell some other subsets, and also the superset, these options are not mutually inexclusive.

Even when we ignore the sale and eating and abstract even more, the sugar cannot be simultaneously inside the crate and outside of it. These options are mutually exclusive.

For IP, on the other hand, the creation of an unauthorised copy has no mutually exclusive options for the original. You can still sell it, you can still eat it, and it can still be located at your premises while the copy is located at the premises of the pirate.

So what exactly is your argument? You want to persuade me that a copy and an original are a subset of the superset, which is owned by someone? Even if you choose to interpret it that way, that has no effect on the presence or absence of mutual exclusivity. Furthermore, it does not explain why by creating the original (subset), one homesteads the superset. It also does not explain what happens during independent discovery.
Silas Barta January 7, 2011 at 12:43 pm: So, if you eat the sugar from my crate, that does not prevent me from eating it too?

Not the other units of sugar, no.
Peter Surda January 7, 2011 at 1:00 pm: Yet again you purposefully misinterpret the argument. This time it’s a false reverse implication. Monopoly = absence of mutually exclusive options. Presence of mutually inexclusive options != not monopoly.
Peter Surda January 7, 2011 at 1:14 pm: Looks like I was too hasty. Let me correct the broken math:
Absence of mutually exclusive options => monopoly
Presence of mutually inexclusive options !=> monopoly

Silas Barta January 10, 2011 at 2:32 pm

Get your story straight, eliminate the triple negatives, and something will remain that I can respond to.

Beefcake the Mighty January 10, 2011 at 2:42 pm: Why don’t you do humanity a favor and stick your dick in an electrical socket?

Stephan Kinsella January 7, 2011 at 8:29 am

A scarce resource like land: first, the state is not needed for there to be property in it. And aggression need not be committed to use it: if you are the first and it’s unowned, then you are not trespassing against anyone else’s property by using and appropriating it.

Likewise, to use an idea does not mean you trespass against others; it only means it guides your own use of your own resources.

But to have or use IP means you assert control over others’ property. That is aggression, and to do it systematically requires a state.

This not really that hard. I find it hard to believe at this point that you are not being intentionally dishonest, Silas.

Silas Barta January 7, 2011 at 10:21 am

@Stephan_Kinsella:

A scarce resource like land: first, the state is not needed for there to be property in it.

Because … You Say So?

And aggression need not be committed to use it. … Likewise, to use an idea does not mean you trespass against others; it only means it guides your own use of your own resources.

Sure, if you assume a definition of aggression that makes it true, which is what your argument amoutns to.

But to have or use IP means you assert control over others’ property.

Yep, if you use a definition of property that assumes away the debate.

That is aggression, and to do it systematically requires a state.

To systematically *stop* common-law recognition of IP also requires a state. Likewise, you’d need a state to flush out the persistant, widespread human intution that the creator of particular ideas, without whom they would not exist, deserves certain exclusivities in such ideas, since without that creator we wouldn’t have the idea to fight over in the first place.

This not really that hard. I find it hard to believe at this point that you are not being intentionally dishonest, Silas.

Ditto.

Peter Surda January 7, 2011 at 11:30 am: Yep, if you use a definition of property that assumes away the debate.

Oh, so you do want to abolish physical property? Why didn’t you say so earlier, that would have saved me a lot of effort.

REPLY

james b. longacre January 7, 2011 at 1:07 pm

ii have read many on the blog bemoan the changing of the definition of inflation. now a pirate is someoene who has a copy of something??

what was a pirate (ocean going copiers?) and what is a pirate now?

Peter Surda January 7, 2011 at 4:14 pm

There is a book, Piracy: The Intellectual Property Wars from Gutenberg to Gates by Adrian Johns. I have not finished reading it yet, but it is a history of IP from the perspective of the violations of it (i.e. “piracy”). Apparently, the word pirate was actually used to refer to unauthorised copying (or plagiarism) already at the beginning of the 17th century.

Stephan Kinsella January 7, 2011 at 7:47 pm

Peter, is it worth reading? Is it pro-IP, anti-IP, or what?

Peter Surda January 9, 2011 at 4:55 am: Stephan,

I only read like 2 chapters so far so I don’t know if my impression is representative of the whole book. It is about history, not economics or ethics. The author does not seem to take a stance for or against.
Silas Barta January 10, 2011 at 2:35 pm: Too bad though, Stephan_Kinsella only decides whether he likes a work based on it’s decision on pro/anti-IP, not any other merit.
Peter Surda January 10, 2011 at 3:46 pm: Look who’s talking.
Peter Surda April 22, 2011 at 5:12 am: Stephan,

if you’re getting the reply, I just finished the book. It is about history and social effects of piracy and presents various historical milestones in chronological order. The author seems to dab a bit into economics but only as background (he refers to Arnold Plant and Hayek, for example, but also some belonging to completely different schools). He seems to conclude that the exact definition of IP has shifted over the times, indeed that it must change, to reflect the technological development and social factors (as an example, he says that in the past it was possible to copyright machines and patent books). He thinks that we’re on the verge of a big shift in IP and lists several possible ways it may go, including abolishment (which he argues is more likely than it might seem and it does not look like he’s bothered by it). He does not seem to take an stance regarding ethics himself, on the contrary he often juxtaposes the moral outrage of monopoly holders versus the pirates. One of the quotes I found funny was by a certain Robert Ford, who owned a radio without paying a license to BBC and upon arrest in 1924 proclaimed that he is “the first individual in history … to be imprisoned as a result of the use of one of his five senses in his own home”.

It’s quite an interesting book. As a sidenote, I bought the electronic version but could not get it to work with anything else than a crappy Windows program (Adobe drm). Since I don’t use Windows very often, I got an unencrypted PDF through bittorrent and converted it to mobi so that I can read it on my phone and then subsequently on a Kindle which I bought last week.
Stephan Kinsella April 22, 2011 at 6:37 am: Peter, thanks. Sounds interesting.

Peter Surda January 7, 2011 at 8:50 am

I already explained to you already that monopoly involves mutually inexclusive options. Whether you have government or no government, capitalism or socialism, someone will end up consuming physical goods and cause alternative consumptions impossible. There is no logical reason to call any of such situations “monopoly”.

But why am I even answering. It is long clear that you are not interested in engaging in a debate. You prefer your mumbo jumbo mysticism. You’re an IP coward.

Stephan Kinsella January 7, 2011 at 10:08 am

I can understand Silas being confused over issues like: anarchy v. minarchy; legislation as a way of “making” “law”; Austrian dualism; the EM spectrum issue; etc.

But for him to repeatedly equate scarce resources to non-scarce resources, in an attempt to make his ridiculous gadfly point that criticisms of IP can be analogized to criticisms of private property, seems blatantly dishonest to me. He has to contort reality to make his little analogies.

Silas Barta January 7, 2011 at 10:15 am

EM spectrum issue; etc.

_You_ still don’t know what to think about EM spectrum rights … and yet *I’m* the one that’s confused?

Pot, kettle.

Stephan Kinsella January 7, 2011 at 10:27 am

yes, I’ve written on this — my view is that EM spectrum is scarce and may be homesteaded. But it is not my area of emphasis of specialty–I am also not writing a lot about FRB, history, anarchist systems–so what?

This is all a smokescreen by you to distract from your dishonesty and evasion. Silas, the bottom line is that to assign IP rights you have to undercut rights in scarce resources. This is unlibertarian. Period, the end.

Silas Barta January 7, 2011 at 10:34 am: You’ve also said you’re “not sure” about it. Which is it? Why is it so hard to decide? Why do you have to be an expert? Why did you think I was unaware of that wishy-washy, uninformed attempt to render an opinion on the issue? (“arguably scarce” is not the same thing as “I have a rational reason to believe they are scarce, ya know)

What is your response to my refutations of the claim that there is some unique scarcity in EM that’s not present in IP? Nothing? Haven’t thought about it? Not important?

Nevermind, I already know you don’t have an answer to any of that, you needn’t waste your time — you’ve got fanboys to pander to, after all.
Peter Surda January 7, 2011 at 11:52 am: Silas,

You’ve also said you’re “not sure” about it. Which is it?

If I may answer on behalf of Stephan, he does not seem to care whether EM is ownable or not, rather if that follows from the premises he is making. He’s just not sure about the “stuff” between the premises and EM ownership, so his support for EM ownership is weak.

You, on the other hand, are using the validity of “IP” (without even defining properly what it actually is) as a premise, and then work backwards, generating tons of nonsense, hoping to arrive to the concept of property as such. That’s not a scientific approach. That’s just ridiculous.
Anthony January 7, 2011 at 2:14 pm: Silas,

If you can show that EM spectrum is equivalent to IP then you will only have destroyed the argument for ownership in EM spectrum… you will not be any closer to supporting IP.

If IP and EM are the same then neither one can be owned.

Silas Barta January 7, 2011 at 10:23 am

Yes, I know you’ve dumped a huge tangle of bizarre justifications no one understands, even Stephan_Kinsella. (He just checks for whether your conclusion agrees with him, which is the entire basis he uses for evaluating the merit of an argument.) Still don’t see why I should care about any of it.

Peter Surda January 7, 2011 at 10:37 am

You are just trying to twist it so that you can portray your unwillingness to argue as a deficiency of your opponents.

Silas Barta January 7, 2011 at 10:46 am

Not really. I’ve welcomed others to untangle your argument and phrase it in terms that are relevant and understandable, but no one’s ever taken up that offer. (People volunteer to rephrase my arguments on this topic all the friggin’ time.) Any idea why that might be?

Peter Surda January 7, 2011 at 11:53 am: So, which part of my argument don’t you comprehend?

Anthony January 7, 2011 at 2:17 pm

Liar, Silas.

I have rephrased Peter for you several times… though his arguments are all reasonably clear to me so I suspect that if you made a genuine attempt to understand them you would not need help.

Peter Surda January 7, 2011 at 4:28 pm: Thank you very much. I sometimes wonder if I express myself clearly but obviously it is possible to understand me.
Silas Barta January 7, 2011 at 9:35 pm: Link?

Nate-m January 7, 2011 at 1:25 pm

> Finally, if IP only makes claims over metaphysical resources, then why are people able to consistently recognize when e.g. a copyright has been infringed? The thing is IP does claim ownership rights in scarce resources — it’s just that IP opponents *assume* that only certain resolutions of the conflict problem are valid (specifically, only those that give someone 100% usage rights in physical objects), thereby ruling out IP from the get-go, using circular logic.

Your attempting, either intentional or not, to confuse the issue by bringing up copyrights when I was talking about patents.

This is a lawyers trick to muddle the issue and make it impossible to actually discuss the subject. This is why the term ‘Intellectual property’ was created in the first place. When people bring up valid points why patents or copyrights need to be eliminated or restricted in some manner then the lawyer-type will just inject a disccusion about a entirely different set of laws and confuse the issue.

So when I was talking about patents you bring up points about copyright and then pretend that refutes or has anything to do with what I said.

Which it does not.

It’s a trick. Probably not intentional, but most people are very confused about the diferences between different laws. This is intentional by the people that crafted the term ‘IP’ and defend the laws, of course. It makes a person defending the laws seem more authoritative since it’s appears to bewilder the adversary when in fact it makes discussion of the laws impossible.

Think of the term ‘IP’ as a sort of emergency eject button. Get backed into the corner about patents? Well then just start talking about copyrights. It’s a non sequitur.

Patents and copyrights both are violations of private property and personal liberty. They depend on central state to enforce them through threats of violence.

That is were the similarities end. That’s all they really have in common.

It’s about as useful to talk about copyrights as it is to talke about capital murder when talking about patents. All these different feilds of law are all unrelated.

Here is a simple example:

Copyrights restrict a very specific activity: Copying. Are you allowed to copy or not? It’s a ‘Yes’ or ‘No’ question. Sometimes finding the answer to yes or no is difficult, but it’s still fundamentally a restriction on a specific activity.

Patents on the other hand have nothing to do with copying. Intentionally copying when you know your violating patents can triple the damages under USA law, but certainly whether or not you copied anything has nothing to do with whether or not your violating a patent.

See how confusing ‘IP’ can be? In one set of laws copying is a core component. In another copying is irrelevent.

But if you can confuse the audiance into thinking that patents are about protecting ideas from being ‘stolen’ and violating copyrights by copying is ‘theft’ then it all of a sounds like something kinda resembling private property rights.

Stephan Kinsella January 7, 2011 at 1:55 pm

“Copyrights restrict a very specific activity: Copying. Are you allowed to copy or not? It’s a ‘Yes’ or ‘No’ question. Sometimes finding the answer to yes or no is difficult, but it’s still fundamentally a restriction on a specific activity.”

Copyright does not only protect the right to reproduce (copy) but, significantly, the right to make derivative works, which is much broader and much more problematic.

“Patents on the other hand have nothing to do with copying. Intentionally copying when you know your violating patents can triple the damages under USA law, but certainly whether or not you copied anything has nothing to do with whether or not your violating a patent.””

Enhanced damages can arise from wilful infringement, not from copying. Even if you don’t copy, but you independently invent some technology, start making it, then learn of some else’s patent, and continue to sell your product, then you can still be liable for treble damages.

The whole system is an abomination. It’s pathetic that so-called libertarians support this outrage.

Peter Surda January 7, 2011 at 4:26 pm: The distinction between copy and derivative is already subjective. Merely because characters are a well understood and widely used standard, why should a specific sequence of them be more relevant for what is copy than other criteria? Why can’t I claim ownership over things based on how they make me feel?

REPLY

Artisan January 10, 2011 at 4:52 am

There is another great difference between individual ideas and material (externalized) property. The later can be exclusively associated to one individual in society, because there’s no risk that the resource temporarily dissolves into nothingness, or unexpectedly multiplies exponentially like a virus.

If an author could control that sort of spiritual phenomenon it would be great, but the truth is that many great artists lost their magic touch with the public some day, and many others became famous long after dying.

One cannot assume the creator “controls” that spreading. So it’s not quite normal, that society only acknowledges the positive aspects of that presumed control, – in the form of mere traceability – while always disregarding the potential vanity – the actual valuation – of those ideas, I’m afraid.

Peter Surda January 11, 2011 at 6:28 am

Parody of Silas:

Circular reasoning:

We know from books (e.g. Bible, Harry Potter, Lord of the Rings) that magic exists. I won’t explain what it is, but I can imagine it, therefore it is. Opponents of magic claim that magic cannot be used to determine rights, because rights follow from physical world. But that is circular reasoning. The existence of physical world does not invalidate the existence of magic, nor does it mean that rights that follow from the physical world are absolute.

Calculation argument:

Without property rights in magic, there cannot be prices of magic and markets for magic and it is therefore impossible to rationally decide how much magic to produce. I know that magic cannot exist without any physical goods and physical labour (which do have a price), but I’ll just pretend it’s not like that.

EM spectrum:

My imagination of IP differs from the misuse of IP that might happen in the current system. I won’t explain how exactly, but it’s irrelevant. Misuse can happen under any system, but that does not invalidate it. If my opponents, however, explain that current system of “EM rights” is not the only way to solve the problem of scarcity of EM transmission bandwith, and explain how it is possible to assign rights to EM transmissions without any legal concept of patterns, frequency, or signal interference, I will ignore it because hypocrisy prevents me from formulating a consistent argument. The flaws in EM laws do invalidate opposition to IP, la la la I’m not listening.

Utilitarianism:

If my opponents use utilitarian reasons to object IP, I will complain because I reject utilitarianism. If however I use utilitarian justifications for IP, that’s ok, because I only do it when people are not paying attention.

Moral arguments:

It is completely irrelevant what IP actually is. Opposing it is immoral, so you guys suck.

I win, muahahahaha (maniacal laugh).

Beefcake the Mighty January 11, 2011 at 7:08 am

Actually this is not parody at all, it’s a spot-on rendition of Silas’ “arguments.”

Edgaras January 11, 2011 at 7:49 am: agree.

REPLY

Stephan Kinsella January 11, 2011 at 8:45 am

Haha, this is brilliant.

Beefcake the Mighty January 12, 2011 at 7:11 pm

Silas writes:

“The thing is IP does claim ownership rights in scarce resources — it’s just that IP opponents *assume* that only certain resolutions of the conflict problem are valid (specifically, only those that give someone 100% usage rights in physical objects), thereby ruling out IP from the get-go, using circular logic.”

How many times has it been explained to you that Kinsella et al.’s theory of property rights does NOT entail 100% usage rights? 500? 1000? Confusion, no matter how abject (and you thoroughly are that) is one thing, dishonesty is another. Why are you such a lying sack of shit, Silas?

{ 10 comments }

Copyright Law and Schindler’s List (the List, not the Movie or the Book)

by Stephan Kinsella on January 4, 2011

In Copyright Law and Schindler’s List (the List, not the Movie or the Book), Eugene Volokh notes a recent case, Rosenberg v. Zimet, 2010 N.Y. Slip Op. 20516 (Dec. 21), concerning “ownership” “of the contents of ‘Schindler’s List.’” Apparently, one Nathan Stern was given an original Schindler’s List from his uncle, who was Schindler’s accountant. He then retained Zimet, a Memorabilia dealer, to find a buyer.

Then Rosenberg, the heir of Schindler’s wife, sued Zimet on the grounds that she owned the copyright to the List. Fortunately, the judge in this case found against Rosenberg and denied the copyright claim. As Volokh observes, the court’s decision (if not his analysis) was correct, because “the list consists solely of facts and not Schindler’s original expression (in the copyright sense)”.

About this case, my friend Rob Wicks wrote me:

Damn. IP is a freaking mess. It has the potential to be the worst effect the state has ever had, because it effectively will end up co-opting all the wealthy people in a place covered by those laws to be active agents for the state in defense of their property. I really think that the endpoint for IP is not going to be “balance.” It is going to be the complete subsumption of all property as merely being aspects of the larger, “purer” property, the intellectual kind.

Almost all state predations of the past were fairly limited in primary effects: even slavery affected a relative few directly. The secondary effects: distortions on prices, wages, and currency instability, could be attributed to being “just life.” How’s this for a sci-fi scenario of our IP-soaked future: the creation of nearly a caste system. People might work and study, not to get a bit of land for a house, but to buy a first patent.

{ 1 comment }

Patent Shills want to make patents “incontestable”

by Stephan Kinsella on December 30, 2010

I’ve tangled in the past with two patent lawyers who are shills for the patent system, Dale Halling (see Shughart’s Defense of IP) and Gene Quinn (see here and Gene Quinn the Patent Watchdog). They are now supporting making issued patents “incontestable” (see Halling’s endorsement of Quinn’s “idea” below). This is monstrous.

As it stands now, patents that are issued have a “presumption of validity”. (See my discussion of this in Supreme Court Prepares to Chop Down “Clear and Convincing” Standard for Proving Patent Invalidity.) This makes it difficult enough to challenge in court even patents that “should not” have been granted. It’s why I proposed, in “Reducing the Cost of IP Law,” that the patent law be revised to “Remove the presumption of validity that issued patents enjoy.” The presumption should be eliminated. Yet these twits want to be “incontestable.”

Making Patents Incontestable

This is one the best ideas I have heard for improving our patent system. It was proposed by Gene Quinn of IPWatchdog. The idea is that after a certain period of time a patent becomes incontestable, meaning it cannot be challenged on validity grounds. This idea is similar to the idea of incontestability for trademarks or quite title suits for real property. Quite title suits recognize that having endless open questions about the title to property reduces its economic value and results in under-investment and under-productivity for that asset. The same is true for patents.

Incontestability could be part of a package that strengthens inter parties reexamination to allow appeals to the CAFC. Here is the way I envision it working. Five years from publication a patent would become incontestable. This would eliminate the defenses of lack of novelty, obviousness, on-sale bar, inequitable conduct, inventorship, best mode, utility, and statutory subject matter issues. This would increase the value of the property right. The evidence associated with these issues is often years old when raised in an infringement suit and not reliable. All these issues would have to be open for inter parties reexamination. However, there would have to be safeguards that inter parties reexamination is not just a fishing expedition to increase your competitor’s costs. As a result, all PTO (Patent Office) and court fees would have to be paid by the challenger. If a challenge to a patent is unsuccessful the challenger will have to pay the patent holder’s attorney’s fees. The reverse is not true. The patent holder has already paid to have the invention examined by the patent office. This would eliminate a lot of the costs and discover associated with patent lawsuits, which should result in faster, less expensive litigation. Justice delay is justice denied.

How would this affect the defenses of latches, equitable estoppel, and patent misuse. Latches should be limited to the statutory timeframes in 35 USC 286. Equitable estoppel is not appropriate in patent law. No one should be able to argue that they relied on the patent holder’s representations that are not in writing. We have many areas of law where agreements (representations) have to be in writing to be enforceable and this should be one of them. Patent misuse as it pertains to antitrust violations should not be a defense. All antitrust attacks on patents are based on a misunderstanding (misrepresentation) that patents are a monopoly not a property right. Exercising a legal property right should never result in an antitrust violation.

Critics may argue that it could be years before a company is confronted with a patent and the potentially infringing company may not even have existed when the five year incontestability period expired. This may be true, but we do not want companies creating me-too products or reinventing the wheel. If the company is building on the patent to create a new invention, then they should do their homework and determine if they are likely to infringe a patent. It is a waste of resources for companies to reinvent a patented invention. No longer should we reward purposeful ignorance.

Incontestability for patents is based on the same reasons we have for incontestability in trademarks and quite title suits for real property. It would reduce the number of issues in litigation, making patent litigation quicker and less expensive.

{ 8 comments }

Roderick Long: Bye-Bye for IP

by Stephan Kinsella on December 30, 2010

Here’s a nice early attack on IP from Roderick Long. I bolded a part I especially like:

Another blast from the past, out of the same box: I believe this letter to the Durham-based Independent Weekly was published, in some form at any rate.

3 February 1995
To the Editor:

The copyright hassles of Blaise Faint (Independent Weekly 2/1/95) [2010 note: alas, I no longer recall what Blaise Faint’s copyright hassles were] illustrate how obsolete intellectual property rights have become in the electronic age, when information can be duplicated and transmitted a hundred times over in the blink of an eye.

Intellectual property rights – copyrights, patents, and the like – have always stood on dubious ground, both ethically and economically.

Don’t get me wrong. As a wild-eyed free-marketeer, I’m a fan of property rights in general – probably more so than most people. And at one time my enthusiasm for property rights extended to intellectual property as well.

But ethically, property rights of any kind have to be justified as extensions of the right of individuals to control their own lives. Thus any alleged property rights that conflict with this moral basis – like the “right” to own slaves – are invalidated. Intellectual property rights also fail to pass this test. To enforce copyright laws and the like is to prevent people from making peaceful use of the information they possess. If you have acquired the information legitimately (say, by buying a book), the on what grounds can you be prevented from using it reproducing it, trading it? Is this not a violation of the freedom of speech and press?

It may be objected that the person who originated the information deserves ownership rights over it. But information is not a concrete thing an individual can control; it is a universal, existing in other people’s minds and other people’s property, and over those the originator has no legitimate sovereignty. You cannot own information without owning other people.

As for the economic case for property rights, that case depends on scarcity, and information is not, technically speaking, a scarce resource. If A uses some material resource, that makes less of the resource for B, so we need some legal mechanism for determining who gets to use what when. But information is not like that; when A acquires information, that does not decrease B’ share, so property rights are not needed.

Some will say that such rights are needed in order to give artists and inventors the financial incentive to create. But most of the great innovators in history operated without benefit of copyright laws. Indeed, sufficiently stringent copyright laws would have made their achievements impossible. Great playwrights like Euripides and Shakespeare never wrote an original plot in their lives; their masterpieces are all adaptations and improvements of stories written by others. Many of our greatest composers, like Bach, Tchaikovsky, and Ives, incorporated into their work the compositions of others. Such appropriation has long been an integral part of legitimate artistic freedom. (In any case, whatever protection innovators may need can be achieved through voluntary means, such as contract or boycott; there are many successful historical examples of this kind of remedy in copyright cases.)

Though never justified, copyright laws have probably not done too much damage to society so far. But in the Computer Age they are now becoming increasingly costly shackles on human progress. Consider, for instance, Project Gutenberg, a marvelous nonprofit effort to transfer as many books as possible to electronic format and make then available over the internet for free. Unfortunately, most of the works done to date have been pre-20th century – to avoid the hassles of copyright law. Thus, copyright laws today are working to restrict the availability of information, not to promote it. More importantly, modern electronic communications are simply beginning to make copyright laws unenforceable, or at least, unenforceable by any means short of a government takeover of the internet – and such a chilling threat to the future of humankind would clearly be a cure far worse than the disease.

Intellectual property rights are a luxury we can no longer afford.

Roderick T. Long

And see my reply:

Roderick, I think we tied. I think my first published piece against IP was in 1995 as well– in IOS Journal…. There may have been something earlier, not sure; the next thing was 1998 for a bar journal — [“Is Intellectual Property Legitimate?“, Pennsylvania Bar Association Intellectual Property Newsletter 1 (Winter 1998): 3; republished in the Federalist Society’s Intellectual Property Practice Group Newsletter, vol. 3, Issue 3 (Winter 2000) ]

The 1995 publication followed on the heels of my taking the patent bar in 1994. I had been thinking about IP for a long time, since 1987 or so at least, since Rand’s defense of IP bugged me. I started thinking about it harder in 1992 or so, when I started practicing IP law.

Good times.

Update: In 1994 I was already hinting that IP should be abolished. See Stephan Kinsella, “Protection of Industrial Property: Russian Patent & Intellectual Property Law,” Russian Oil & Gas Guide, Vol. 3, No. 3 (July 1994), p. 20, n. 48.

{ 4 comments }

John Perry Barlow’s “The Economy of Ideas: A framework for patents and copyrights in the Digital Age”

by Stephan Kinsella on December 30, 2010

My 2009 Mises blog post. Archived comments below.

John Perry Barlow’s “The Economy of Ideas: A framework for patents and copyrights in the Digital Age”

December 14, 2009 by Stephan Kinsella

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John Perry Barlow‘s 1994 Wired article, “The Economy of Ideas: A framework for patents and copyrights in the Digital Age,” tagged: “(Everything you know about intellectual property is wrong.)”, is a classic. Written at the dawn of the Internet, it’s amazing how non-dated it is. It’s a fascinating, well-written, and insightful paper about the problems of applying classical notions of IP to the digital age. A few choice nuggets:

Intellectual property law cannot be patched, retrofitted, or expanded to contain digitized expression any more than real estate law might be revised to cover the allocation of broadcasting spectrum (which, in fact, rather resembles what is being attempted here). We will need to develop an entirely new set of methods as befits this entirely new set of circumstances.

Most of the people who actually create soft property – the programmers, hackers, and Net surfers – already know this. Unfortunately, neither the companies they work for nor the lawyers these companies hire have enough direct experience with nonmaterial goods to understand why they are so problematic. They are proceeding as though the old laws can somehow be made to work, either by grotesque expansion or by force. They are wrong.

… the increasing difficulty of enforcing existing copyright and patent laws is already placing in peril the ultimate source of intellectual property – the free exchange of ideas.

… when the primary articles of commerce in a society look so much like speech as to be indistinguishable from it, and when the traditional methods of protecting their ownership have become ineffectual, attempting to fix the problem with broader and more vigorous enforcement will inevitably threaten freedom of speech. The greatest constraint on your future liberties may come not from government but from corporate legal departments laboring to protect by force what can no longer be protected by practical efficiency or general social consent.

… Since it is now possible to convey ideas from one mind to another without ever making them physical, we are now claiming to own ideas themselves and not merely their expression. And since it is likewise now possible to create useful tools that never take physical form, we have taken to patenting abstractions, sequences of virtual events, and mathematical formulae – the most unreal estate imaginable. In certain areas, this leaves rights of ownership in such an ambiguous condition that property again adheres to those who can muster the largest armies. The only difference is that this time the armies consist of lawyers.

… To the extent that law and established social practice exists in this area, they are already in dangerous disagreement. The laws regarding unlicensed reproduction of commercial software are clear and stern…and rarely observed. Software piracy laws are so practically unenforceable and breaking them has become so socially acceptable that only a thin minority appears compelled, either by fear or conscience, to obey them. When I give speeches on this subject, I always ask how many people in the audience can honestly claim to have no unauthorized software on their hard disks. I’ve never seen more than 10 percent of the hands go up.

Whenever there is such profound divergence between law and social practice, it is not society that adapts. Against the swift tide of custom, the software publishers’ current practice of hanging a few visible scapegoats is so obviously capricious as to only further diminish respect for the law.

… In the hick town I come from, they don’t give you much credit for just having ideas. You are judged by what you can make of them. As things continue to speed up, I think we see that execution is the best protection for those designs which become physical products. Or, as Steve Jobs once put it, “Real artists ship.” The big winner is usually the one who gets to the market first (and with enough organizational force to keep the lead).

A few quibbles: Barlow does not seem to find classical IP as applied to material property to be very problematic; he seems to think it’s problematic only when applied to digital information. But as the latter is his focus, this is only a minor quibble. The article starts to get more metaphorical, less rigorous, when he tries to develop “A Taxonomy of Information,” but even this section is still insightful.

And though, as alluded to above, the article is not as dated as one might expect, there is a line that might be revised with the benefit of hindsight:

All of the broadcast-support models are flawed. Support either by advertisers or government has almost invariably tainted the purity of the goods delivered. Besides, direct marketing is gradually killing the advertiser-support model anyway.

The subsequent success of Google’s ad-dominated business model calls this bit into question. Still, a great piece.

Archived comments:

{ 6 comments… read them below or add one }

Silas Barta December 14, 2009 at 12:15 pm: Intellectual property law cannot be patched, retrofitted, or expanded to contain digitized expression any more than real estate law might be revised to cover the allocation of broadcasting spectrum (which, in fact, rather resembles what is being attempted here)

*whistles nonchalantly*…

REPLY
Martin OB December 14, 2009 at 1:22 pm: “Intellectual property law cannot be patched, retrofitted, or expanded to contain digitized expression any more than real estate law might be revised to cover the allocation of broadcasting spectrum ”

So, Stephan, you were missing Silas Barta, right?

REPLY
BioTube December 14, 2009 at 3:25 pm: Quick question, Barta: if I enjoy an out-of-town station and a new one sets up shop on the same frequency, interfering with my favorite channel, is that a tort?

REPLY
Deefburger December 14, 2009 at 8:56 pm: @BioTube

The problem is two fold, technically. There is both the question of frequnecy discrimination as well as directional discrimination.

The antenna you use to receive that frequency can, if you are using a directional antenna, such as a yagi, discriminate between the offending new station and the further station of your choice, so long as the two stations are not broadcasting along the same line of sight.

Now who owns the fault in reception?

REPLY
Nick December 14, 2009 at 10:00 pm: @ Deefburger
Yeah, there’s the IP problem of what the information means and where it is from, or what it mean and how we know.

One can read/watch some sequence of symbols but if he do not have the same ‘meanings’ for those inside his mind then he may be off by miles in its comprehension. Such as when hearing those crazy druidic stories and stuff.

And even if you ‘correctly’ understand the meaning of the stuff, the information may be bad coming from a corrupt/bad source and may end up costing you more than you can ‘afford’, like your life or something..
Like, if there is 500 slightly different (or not) versions of some info (ex:, the location of Bin Laden), then verifying them all may be very costly and/or time-consuming.

REPLY
newson December 15, 2009 at 3:42 am: my money’s on biotube.

{ 0 comments }

Leveque & Meniere, The Economics of Patents and Copyrights

by Stephan Kinsella on December 30, 2010

My Mises Blog post from 2005:

French Book on The Economics of Patents and Copyrights

February 1, 2005 by Stephan Kinsella

The Economics of Patents and Copyrights, by French researchers Francois Leveque and Yann Meniere of the Ecole des mines de Paris (an engineering university), is available for free, under the Creative Commons License. It concludes (p. 102):

The abolition or preservation of intellectual property protection is … not just a purely theoretical quesiton. To decide on it from an economic viewpoint, we must be able to assess all the consequences of protection and determien whether the total favorable effects for society outweigh the total negative effects. Unfortunately, this exercise [an economic analysis of the cost and benefits of intellectual property] is no more within our reach today than it was in Machlup‘s day [1950s].

(Thanks for Greg Aharonian of PatNews for the link and some comments.)

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Moral Panics and the Copyright Wars

by Stephan Kinsella on December 30, 2010

From my previous post on the Mises blog:

Moral Panics and the Copyright Wars, by copyright lawyer William Patry (see his related blog), was just released. Currently Senior Copyright Counsel at Google, Inc., Patry had a well-known copyright law blog, which he terminated last year, because he found the current state of copyright law too depressing to blog abou (as I posted about previously). So one might hope for a decent take on the copyright issue, especially given this comment on Amazon by the heroic IP foe Mike Masnick of TechDirt:

Patry’s insight into copyright law itself has long been established, but with this book he takes us deep into how the debate surrounding copyright law has been twisted and distorted. This is a must-read for anyone looking to understand the real issues in the copyright debate, both from the business-model and policy perspectives.

Alas, the summary would make one suspect the book’s soundness:

A centrist and believer in appropriately balanced copyright laws, Patry concludes that calls for strong copyright laws, just like calls for weak copyright laws, miss the point entirely: the only laws we need are effective laws, laws that further the purpose of encouraging the creation of new works and learning. Our current regime, unfortunately, creates too many bad incentives, leading to bad conduct. Just as President Obama has called for re-tooling and re-imagining the auto industry, Patry calls for a remaking of our copyright laws so that they may once again be respected.

Not good. Sure, he’s right that, as the Amazon description indicates, “copyright is a utilitarian government program–not a property or moral right.” But why does he think that copyright is not a natural or moral right? Because the Supreme Court has said so! As he wrote here, “In the United States, copyright is not a natural right, since the Supreme Court has said so twice, first in 1834 in Wheaton v. Peters, and then in 1932 in Fox Film Corp. v. Doyal”; see criticism here. Just another legal positivist. So he of course would think that, “As a government program, copyright must be regulated and held accountable to ensure it is serving its public purpose.” Whatever. [continue reading…]

{ 2 comments }

Against Intellectual Property in ePub

by Stephan Kinsella on December 29, 2010

My monograph Against Intellectual Property (Mises Institute, 2008) is now available in free epub format, as well as PDF, paper, audio.

{ 0 comments }

Copyright Nazis Attack German Kindergartens

by Stephan Kinsella on December 29, 2010

As reported by Deutsche Welle (h/t Charles Smyth):

Kindergartens ordered to pay copyright for songs

Up until this year, preschools could teach and produce any kind of song they wanted. But now they have to pay for a license if they want children to sing certain songs.

[Caption to image at right: Singing is a core component of many kindergarten timetables]

A tightening of copyright rules means kindergartens now have to pay fees to Germany’s music licensing agency, GEMA, to use songs that they reproduce and perform. The organization has begun notifying creches and other daycare facilities that if they reproduce music to be sung or performed, they must pay for a license.

“If a preschool wants to make its own copy of certain music – if the words of a song or the musical score is copied – then they need to buy a license,” GEMA spokesperson Peter Hempel told Deutsche Welle.

The new rules came into power at the beginning of this year, but have only recently drawn attention as daycare centers have received letters reminding them that they need to sign contracts with GEMA before distributing sheet music to children to sing.

Knowledge is Power

by Stephan Kinsella on December 28, 2010

The phrase in use on the Information Awareness Office seal

From Mises Blog. Archived comments below.

“Scientia potentia est” (“knowledge is power”)–Francis Bacon’s famous expression. For thousands of years, the human standard of living was flat. It finally started significantly increasing with the Industrial Revolution–with the rise of capitalism (strong, systematic protection for property rights) and with the spread of technology and scientific knowledge. As I argue in Ideas Are Free: The Case Against Intellectual Property:

Mises explains in The Ultimate Foundation of Economic Science that “To act means: to strive after ends, that is, to choose a goal and to resort to means in order to attain the goal sought.”[14] Obviously, the means have to be causally efficacious to obtain the desired end. So as Mises has observed, if there was not causality, men “could not contrive any means for the attainment of any ends.” Knowledge and information, of course, play a key role in action as well. They guide action. The actor is guided by his knowledge and information. Bad information results in unsuccessful action or loss. As Mises puts it, “Action is purposive conduct. It is not simply behavior, but behavior begot by judgments of value, aiming at a definite end and guided by ideas concerning the suitability or unsuitability of definite means” (emphasis added).

So all action employs means and all action is guided by knowledge and information.[15] As Mises says, means are necessarily scarce resources. He said, “Means are necessarily always limited, i.e. scarce, with regard to the services for which man wants to use them.”

So, in other words, to have successful action, you have to have knowledge about causal laws to know which means to employ. You have to have the ability to employ these means suitable for the goal that you are seeking. So the scarce resources that you need to use as means need to be owned by you. This is why there are property rights in these things. The nature of a scarce resource is that use by one person excludes use by another; but you don’t need to own the information that guides your action in order to have successful action. For example, two people can make a cake at the same time. They each have to have their own ingredients, but they can use the same recipe at the same time. [continue reading…]

{ 3 comments }

Do Libraries Need Permission To Lend Out Ebooks?

by Stephan Kinsella on December 28, 2010

Great post by Mike Masnick on Techdirt (h/t Pat Tinsley). (For more on the First Sale Doctrine, see my posts posts Supreme Court lets ban on “gray market” imports stand; Leveraging IP; Supreme Court lets ban on “gray market” imports stand; Why Netflix Won.)

Do Libraries Need Permission To Lend Out Ebooks?

from the they-shouldn’t dept

Reader OG points us to this NY Times article about how libraries are increasingly offering ebooks for download. This, of course, seems like a good idea, and fits in with the purpose of a library, but where the article gets either laughable or head-bangingly annoying is where it starts discussing how publishers have serious problems with this whole concept. Some publishers are refusing to allow libraries to lend out their ebooks…which makes me wonder why the publishers have any say in the matter. Thanks to the right of first sale, a library should be able to lend out an ebook if it’s legally purchased it without having to get the publisher’s permission.

Furthermore, the rest of the discussion is just silly. There are arguments about how many ebooks can be “checked out” at once or how the DRM works (which blocks the most popular ebook readers from being supported). There’s also an issue of publishers charging libraries much higher prices for ebooks, and scoffing at a librarian who suggests that libraries should be allowed to offer as many copies as needed of an ebook to lend at the same time, and just pay the publishers a nominal fee.

It’s hard to describe how insane this whole discussion sounds. Here you have a fantastic tool to support a library’s main purpose in the world, and we’re arguing over what sorts of artificial restrictions to set up to limit that tool from actually being useful? It’s as if we discovered a way to make all the food the world ever needed, and we sit around talking about how to make sure that most people don’t get fed. It would make me laugh if it weren’t so disturbing that people seem to think this is a good thing.

[Mises cross-post]

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Fugazi: “File sharing is our radio; that’s the way people hear our stuff”

by Stephan Kinsella on December 28, 2010

Interesting thoughts on file sharing from Guy Picciotto of the band Fugazi in this interview by Scott Thill, posted some time back (h/t Matt Mortellaro):

ST: Now that Napster’s dead, I think that the RIAA is going after a bunch of other peer-to-peer sharing networks. What are your thoughts on file sharing and piracy?
GP: We have completely no problem with file sharing. We just consider it the exchanging of tapes. And we’ve always had a really open policy about our stuff — when people come to our shows, we tell them to bring cameras, bring tape recorders, bring video recorders, we don’t care. People can come in and tape our gigs and they can trade them. We’re not into when people sell our shit as bootlegs and try to make a profit off of it. We think that’s a different line that’s being crossed.
But when it’s just the music being shared, that’s what it’s about to us. It’s not like we get a lot of radio airplay. File sharing is our radio; that’s the way people hear our stuff. I think people underestimate the enthusiasm of people who dig music — they dig it because they want to hear it, not because they want to steal it. It’s not like there’s this vicarious thieving thrill; they’re into the music; it’s an enthusiasm for the sound.
ST: They just want to get the word out.
GP: Yeah, exactly. They download your stuff, they dig it, they go out and buy the record. We never shared in the industry freakout about it because it’s not important to us. Our main thing has always been access to our music, making it as easy as possible, making it as cheap as possible, so why would we have any problem with file sharing? It’s redundant.

{ 1 comment }

China and Intellectual Property

by Stephan Kinsella on December 27, 2010

In a recent New York Times editorial, the Times chastises China for not protecting IP sufficiently, and urges them to be more “aggressive.” Read the complete editorial here.

{ 2 comments }

Hoppe on Intellectual Property

by Stephan Kinsella on December 27, 2010

Included as ch. 23 of Stephan Kinsella, ed., The Anti-IP Reader: Free Market Critiques of Intellectual Property (Papinian Press, 2023).

***

On occasion a pro-IP libertarian who is also an admirer of Hans-Hermann Hoppe, the world’s leading libertarian intellectual, will express incredulity and dismay at the idea that Hoppe would oppose IP. It has been obvious to me for ten years that Hoppe is anti-IP. He welcomed the publication of my “Against Intellectual Property” article in the Journal of Libertarian Studies in 2001 when he was editor (in fact he came up with the title); and its reasoning and conclusions are based on and perfectly consistent with Hoppe’s anarcho-Austrian-Rothbardian ideas on property, rights, ethics, and economics. But some Hoppe admirers are loath to admit this (see the comments of Dave Narby here, and Stranger on this thread,¹ for example).

Just to set the record straight, since this issue keeps coming up over and over:

In this comment, one Stephen observes:

Here’s a video of Hoppe where he clearly attacks IP.

[1:13:20]

[Audience member]

I’ve heard people defending intellectual property rights from the same rules as you use. Could you touch briefly on that?

[Hoppe]

Very briefly. I should make you aware of a great article by a friend of mine, Stephan Kinsella, who is actually a patent lawyer, but doesn’t believe in patents. That article has appeared a few years ago in the Journal of Libertarian Studies, which is available on the net @ www.mises.org, and if you just type in Kinsella, you get his five or six articles that he has are published for the journal, and from the title you would clearly recognize that it deals with intellectual property rights. But let me say this much at this point: recall, I said property rights can only be acquired in things that are scarce, and only because they are scarce, are conflicts over their use possible. Now ideas, once they have been thought, are no longer scarce. If I think the same idea that you think, I am not taking anything away from you. You can still think exactly the same thing as before. Nothing is diminished on your part. Thoughts are, once they have been thought, free goods and conflicts over them are impossible. Again, imagine what the consequences would be if we would not accept this view. Then we would owe royalties to the widow of Aristotle until the end of our lives. Not even the widow has survived up to this point either, but Aristotle’s little Aristotles run around in Greece. They might still collect money whenever we say A and non-A cannot exist at the same time. And I think I would consider that to be utterly unfair because I can think this idea myself also. I would not have needed Aristotle to come up with this idea, but nonetheless, he was the first one to write it down. So this is the same thing, you are all free-riding on my ideas, I could just collect royalties now from all of you, plus I’ve used some words that you might not have heard before, I might have expressed some thoughts that you will repeat, that you found funny or not so funny, and you will now be eternally indebted to me. I should throw you all into debtors prison unless you just deliver your weekly, or monthly, or annual royalties to me. So keep that, please, in mind.

[1:17:00]

See also the conclusion to my article Ideas Are Free: The Case Against Intellectual Property:²

Professor Hoppe realized this as far back as 1988. At a panel discussion on ethics with Hoppe, Rothbard, David Gordon, and Leland Yeager, there was the following exchange, and I’ll conclude with it:

AUDIENCE QUESTION: I have a question for Professor Hoppe. Does the idea of personal sovereignty extend to knowledge? Am I sovereign over my thoughts, ideas, and theories? …

HOPPE: … in order to have a thought you must have property rights over your body. That doesn’t imply that you own your thoughts. The thoughts can be used by anybody who is capable of understanding them.[18]

See also these excerpts from Hoppe Interview on Anarchy and Intellectual Property:

Daily Bell: Where do you stand on copyright? Do you believe that intellectual property doesn’t exist as Kinsella has proposed?

Dr. Hans-Hermann Hoppe: I agree with my friend Kinsella, that the idea of intellectual property rights is not just wrong and confused but dangerous. And I have already touched upon why this is so. Ideas – recipes, formulas, statements, arguments, algorithms, theorems, melodies, patterns, rhythms, images, etc. – are certainly goods (insofar as they are good, not bad, recipes, etc.), but they are not scarce goods. Once thought and expressed, they are free, inexhaustible goods. I whistle a melody or write down a poem, you hear the melody or read the poem and reproduce or copy it. In doing so you have not taken anything away from me. I can whistle and write as before. In fact, the entire world can copy me and yet nothing is taken from me. (If I didn’t want anyone to copy my ideas I only have to keep them to myself and never express them.)

Now imagine I had been granted a property right in my melody or poem such that I could prohibit you from copying it or demanding a royalty from you if you do. First: Doesn’t that imply, absurdly, that I, in turn, must pay royalties to the person (or his heirs) who invented whistling and writing, and further on to those, who invented sound-making and language, and so on? Second: In preventing you from or making you pay for whistling my melody or reciting my poem, I am actually made a (partial) owner of you: of your physical body, your vocal chords, your paper, your pencil, etc. because you did not use anything but your own property when you copied me. If you can no longer copy me, then, this means that I, the intellectual property owner, have expropriated you and your “real” property. Which shows: intellectual property rights and real property rights are incompatible, and the promotion of intellectual property must be seen as a most dangerous attack on the idea of “real” property (in scarce goods).

Daily Bell: We have suggested that if people want to enforce generational copyright that they do so on their own, taking on the expense and attempting through various means to confront copyright violators with their own resources. This would put the onus of enforcement on the pocket book of the individual. Is this a viable solution – to let the market itself decide these issues?

Dr. Hans-Hermann Hoppe: That would go a long way in the right direction. Better still: more and more courts in more and more countries, especially countries outside the orbit of the US dominated Western government cartel, would make it clear that they don’t hear cases of copyright and patent violations any longer and regard such complaints as a ruse of big Western government-connected firms, such as pharmaceutical companies, for instance, to enrich themselves at the expense of other people.

Note also Hoppe’s comments here:

“Furthermore, the tendency [of the process of civilization, i.e., the lowering of time-preferences] will actually be accelerated insofar as A and B…engage in voluntary trade or cooperation and even without any such exchange insofar as they merely observe each other’s activities and copy each other’s knowledge.” —Hoppe, Democracy: God that Failed, p. 10; also in Time Preference, Government, and the Process of De-Civilization – From Monarchy to Democracy, Journal des Economistes et des Etudes Humaines, Vol.5, 2, 1994; also published in John Denson, ed., The Costs of War (New Brunswick: Transaction Publishers, 1997)

See also Hoppe’s comments here: PFP145 | Hoppe, Dürr, Kinsella, van Dun, Daniels, Discussion, Q&A (PFS 2015):

A lightly edited transcript of the exchange:

QUESTIONER: Okay. My question is for Stephan Kinsella. It’s a question, not an argument.

4:58

What is the case for private photos and pictures shared over the internet on Facebook and someone else is using it?

5:08

What is the argumental basis on that from the IP perspective?

>> STEPHAN KINSELLA: What’s the justification for using someone else’s?

5:15

> QUESTIONER: Using, or do they need our permission, without permission? What is the case for…

>> STEPHAN KINSELLA: Do you mean under current law or under libertarian system?

5:23

> QUESTIONER: Under – both.

>> STEPHAN KINSELLA: Well, under current law, copyrights – photographs are owned by the photographer, and if you put it online you still own the copyright, but you’re giving a license for people to use it for limited purposes like doing it on their browser.

5:39

If you use it beyond that, unless there’s a creative common license attached to it, you could be sued.

5:45

And the perverse aspect of copyright – let’s suppose you’re on vacation and you hand your iPhone to a stranger and he takes a picture of your family.

5:53

He owns the copyright but you don’t know who he is, so you have this great picture, and you may be infringing his copyright when you put it on your Apple TV.

6:02

And there’s other perverse aspects of copyright. There are cases where there’s – someone takes a photograph.

6:08

They have a copyright in the photograph, and it becomes a best-selling print or something like that.

6:14

And someone else will go to the same location and recreate the photo by taking their own photograph, and they can be sued by the owner of the first copyright for taking a photograph in that location.

6:26

Under libertarian law, there would be no property rights whatsoever in information at all.

6:32

Information is not an ownable thing. Information is the impatterning of an owned thing, a physical material resource.

6:38

Information is never free-floating. It’s always the impatterning of a substrate: your brain, electromagnetic waves, a CD-ROM, a USB drive, a hard drive on a computer.

6:49

And those things are already owned by someone according to the principles Professor Hoppe referred to earlier. The owner of the thing—I own this physical object. It’s structured in a certain way, which is the information.

7:00

I don’t own the information and the phone. I own the phone and the feature – it has certain features.

7:06

This phone has a weight. It has an age. It doesn’t mean I own the age of the phone. If I did own the age of the phone, I would own lots of other phones in the world that were made on the same day you see.

7:15

So the problem with owning an aspect of a thing that you own is it’s a universal that applies to any number of instances in the world.

7:23

And to own that universal feature of the thing would instantly give you ownership claims over other material resources in the world that other people have claims to.

7:32

This is the very problem with IP. So if you put a photograph online in a free society, then you have to take the risk that other people might look at it and use it.

7:44

>> HANS-HERMANN HOPPE: On intellectual property rights, a funny movement – you reported about it on your website —where people, some alleged Austrians from Vienna, Mrs. What’s-Her-Name from the Hayek Institute, Barbara Kolm.

8:10

She wants to defend physical and intellectual property rights at the same time.

8:16

It never occurred to her that that is an absolute impossibility. To give you an example, I whistle a song.

8:26

You hear the song, and you copy it. You whistle the same melody.

8:34

If intellectual property rights exist, of course I would be able to then sue you for having whistled the same song without having received my permission.

8:50

But that means that I thereby acquire property rights over your own body, that I am then an owner of your vocal chords and whatever it is.

9:07

And that shows quite clearly that either physical property rights exist or intellectual property rights exist, but both of these things cannot exist simultaneously. So it’s simply a contradiction.

9:28

>> STEPHAN KINSELLA: And an actual illustration of that is the “Happy Birthday” song, which is in litigation right now.

9:35

This is literally true. Waiters in restaurants in the US sing a different song because they may be sued for singing the one that’s in the movies, which movie studios have to pay licensing fees for.

9:48

It’s another way IP would help movie studios. Their costs would go down. I want to read something Hans said in 1988 on a panel with Rothbard and David Gordon and Leland Yeager.

10:02

And this is ’88 at the Mises Institute I assume, and an audience member said “I have a question for Professor Hoppe. Does the idea of personal sovereignty extend to knowledge? Am I sovereign over my own thoughts, ideas, and theories?”

10:14

And Hans said, “in order to have a thought, you must have property rights over your body. That doesn’t imply you own your thoughts.

10:21

The thoughts that can be used by – the thoughts can by used by anybody who is capable of understanding them.” So Hans understood this with pure praxeology 30 – almost 30 years ago.

10:38

> HANS-HERMANN HOPPE: Then I was still young.

And finally: this is a bit amusing. As noted in this comment on a Mises.org thread debating IP and whether Hoppe is anti-IP, the commenter writes: ”

Hoppe with Kealey (who challenges IP as a non-Rothbardian) and Kinsella PFS 2010

Kinsella @ 18:40 (Note, Hoppe does not judo chop him for saying IP is not libertarian, despite Hoppe being well within striking distance)

Again at 36:20

C4SIF.org

Intellectual Poverty

Copyright Law and Schindler’s List (the List, not the Movie or the Book)

Patent Shills want to make patents “incontestable”

Making Patents Incontestable

Roderick Long: Bye-Bye for IP

John Perry Barlow’s “The Economy of Ideas: A framework for patents and copyrights in the Digital Age”

John Perry Barlow’s “The Economy of Ideas: A framework for patents and copyrights in the Digital Age”

Leveque & Meniere, The Economics of Patents and Copyrights

French Book on The Economics of Patents and Copyrights

Moral Panics and the Copyright Wars

Against Intellectual Property in ePub

Copyright Nazis Attack German Kindergartens

Kindergartens ordered to pay copyright for songs

Up until this year, preschools could teach and produce any kind of song they wanted. But now they have to pay for a license if they want children to sing certain songs.

Knowledge is Power

Do Libraries Need Permission To Lend Out Ebooks?

Do Libraries Need Permission To Lend Out Ebooks?

from the they-shouldn’t dept

Fugazi: “File sharing is our radio; that’s the way people hear our stuff”

China and Intellectual Property

Hoppe on Intellectual Property

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French Book on The Economics of Patents and Copyrights

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Kindergartens ordered to pay copyright for songs

Up until this year, preschools could teach and produce any kind of song they wanted. But now they have to pay for a license if they want children to sing certain songs.

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from the they-shouldn’t dept

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