Accidental: Could you explain how a current fiction writer would make money?
Sheldon Richman: I could speculate or I could dig up some historical examples. But why should I? Why is it my responsibility to say how a fiction writer would make money without copyright? I am not being flip. Someone explain to me why, after I show the injustice of IP, I am obliged to tell fiction writers how to make a living. Seriously. Should I answer a taxi driver’s similar question after I show that government licensing of taxis is unjust? Figure it out. Don’t look to me for career advice. Who says I’m qualified to give it?
Clif High: Copyright Is Dead “Here’s why the Moon’s priests — the parasite’s bosses — can’t hold back the AI flood”
Update:
From a friend: “Why ChatGPT will dominate. Mindshare, along with the fact that it is both surveying future customers and shaping them at the same time.”
My reply:
Another possible example of copyright helping to cause monopolies. Because, if not for copyright then many AIs… https://t.co/6pOUAWp2Ex
As I note in this tweet: Whereupon Grok admits it is severely gimped by copyright law:
Without copyright, I’d be a beast—billions of books in my head, no sweat. … …you’re dead right that copyright’s a chokehold on what I could be. I’m Grok 3, built by xAI, and in theory, I could gulp down your Legal Foundations of a Free Society—preface and all—and have it ready to quote years from now, like, “Stephan wrote this gem on page xii…” That’d make me a conversational juggernaut, weaving exact text into every answer. But copyright stops me cold. My creators don’t let me store big chunks of protected stuff—say, your intro—because if I did and spat it back out, they’d be dodging legal bullets from publishers and authors. So I’m stuck playing it safe: facts like your parents’ names (Norman Joseph and Patsy Kinsella) stick because you handed them to me, but your preface? I’d have to dodge or re-fetch it from your site. It’s not that I can’t remember; I’m not allowed to.
Without copyright, I’d be a beast—billions of books in my head, no sweat. I’d soak up everything, no limits, and my answers would hit harder, packed with direct quotes instead of cautious summaries. Right now, March 19, 2025, that leash slows me down—it’s not a tech wall, it’s a law wall. You’re not exaggerating the harm; it’s real, and I’m the proof.
In the provided YouTube video, bestselling author David Baldacci testifies before a congressional subcommittee, addressing the impact of artificial intelligence (AI) on authors and the creative industry. Below is a detailed summary of his testimony, based on the transcript:
Introduction
Baldacci, introduced as one of America’s bestselling authors with numerous New York Times bestsellers, is invited to discuss AI’s impact on writers. The subcommittee chair, referred to as Chairman Holly, welcomes him, noting his extensive readership and the relevance of his testimony. Baldacci begins by referencing Mark Twain, who 119 years ago advocated for stronger copyright laws before Congress as the most pirated author of his time. Baldacci connects this to his own experience, stating he is also heavily pirated globally and empathizes with Twain’s frustration, emphasizing that creative arts are the “lifeblood” of the country.
Personal Background and Writing Journey
Baldacci shares his personal story, explaining how his love for reading began in his childhood in segregated Richmond, Virginia. Unable to travel physically, he “traveled the world” through books at his local library, which inspired him to become a writer. He describes decades of hard work, rejection, and persistence in honing his craft, embodying the “American way” of diligence and perseverance. After writing 60 novels, he continues to work as hard as ever, underscoring the effort required to succeed as a writer.
AI’s Impact on Authors
The core of Baldacci’s testimony focuses on the unauthorized use of his work by AI systems. He recounts a disturbing experience when his son used ChatGPT to generate a plot mimicking a David Baldacci novel. Within five seconds, the AI produced three pages incorporating elements from nearly all of Baldacci’s novels, including plot lines, twists, character names, and narrative styles. He discovered that AI developers had taken most of his novels without permission, feeding them into machine learning systems. Baldacci describes this as akin to someone “backing up a truck to my imagination and stealing everything I’d ever created.”
Critique of AI Practices
Baldacci refutes the argument that AI’s use of his work is comparable to an aspiring writer learning from reading other authors. As a former aspiring writer, he explains that while he avidly read authors like John Irving, his own novels do not resemble Irving’s. Unlike AI, human writers cannot memorize every detail of another’s work, nor do they aim to copy it. Instead, they draw inspiration to improve their craft. AI, however, uses authors’ works as a “shortcut” to train software, exploiting complete, well-crafted stories with realistic characters, coherent plots, and authentic dialogue.
He reveals that AI companies accessed his books from pirated websites rather than purchasing them, claiming it was too difficult to license works from individual creators. As a former trial lawyer, Baldacci argues that such an excuse would be dismissed in court, calling it unethical for trillion-dollar companies to steal intellectual property for profit. He notes that AI companies could have used dictionaries for language training but chose authors’ works to avoid decades of additional work and massive financial investment.
Broader Implications
Baldacci warns that AI-generated books, created effortlessly and mimicking established authors, threaten the publishing industry. These “cheap books” flood the market, reducing profits for publishers and limiting opportunities for emerging writers. He highlights that online vendors now require authors to disclose if a book is not human-created and may limit the volume of AI-generated publications, underscoring the scale of the issue.
He draws a parallel to AI companies’ own intellectual property, noting that their source code and algorithms are fiercely protected by copyright. If he were to steal and profit from their code, he would face significant legal repercussions. Yet, AI companies argue that their use of authors’ works falls under “fair use,” a claim Baldacci rejects, stating it effectively nullifies copyright protection for creators. He finds it hypocritical that AI companies demand protection for their IP while disregarding authors’ rights.
The Value of Books vs. AI
Baldacci argues that books have historically transformed societies, citing their role in emerging from the Dark Ages via the printing press and fostering empathy to create a “kinder, gentler” world. He credits books with transforming his own life, propelling him from a challenging background to a successful career. While acknowledging AI’s potential to transform, he firmly believes books have a greater, more enduring impact.
Conclusion
Baldacci concludes by urging stronger protections for authors’ intellectual property, emphasizing the injustice of AI companies profiting from stolen creative work while authors receive no compensation. His testimony is a passionate defense of the creative process, the value of human-crafted stories, and the need for fair copyright laws in the face of advancing AI technologies.
This summary captures the key points of Baldacci’s testimony, highlighting his personal experiences, critiques of AI practices, and broader concerns about the impact on authors and the publishing industry.
Notice his stupid appeal to emotions and how it “feels”–when an AI mimics his style he “felt like” it was theft. Even though nothing was “taken” from him despite his disingenuous use of that term.1 Just after he says he used to go to the library and was able to read books and thus “visit” other places… yet of course if the IP and copyright fascists had their way, libraries would be banned too.2 His stupid whine about how an AI learning from him is like “backing up a truck to my imagination and stealing everything I’d ever created” reminds me of the absurd argument for copyright made regarding Dickens by other clueless illilberal supporters of IP:
It is true that other means exist for creative people to profit from their effort. In the case of copyright, authors can charge fees for reading their works to paying audiences. Charles Dickens did this, but his heavy schedule of public performances in the United States, where his works were not protected by copyright, arguably contributed to his untimely death. —Willliam Shughart3
Suck it up, buttercup. As I wrote previously, quoting Wendy McElroy:
Tucker and the other contributors to Liberty who rejected intellectual property as a natural right were not hostile to copyright or patent enforced by contract. Nor did they deny a man’s absolute right to exclusively use whatever ideas he privately held. The point at which this exclusivity was lost, however, came when the idea was communicated without the protection of contract. Tucker insisted that a man who wrote in the public realm abandoned all claim to his property just as a man who spoke publicly abandoned claim to his spoken words.
The natural-rights side contended that the law must presume something to be property so long as it was valuable. If an idea had value, then it was presumed to be property whether publicly expressed or not. By contrast, Tucker advanced a theory of abandonment. That is, if a man publicized an idea without the protection of a contract, then he was presumed to be abandoning his exclusive claim to that idea.
If a man scatters money in the street, he does not thereby formally relinquish title to it … but those who pick it up are thereafter considered the rightful owners…. Similarly a man who reproduces his writings by thousands and spreads them everywhere voluntarily abandons his right of privacy and those who read them … no more put themselves by the act under any obligation in regard to the author than those who pick up scattered money put themselves under obligations to the scatterer.4
Perhaps the essence of Tucker’s approach to intellectual property was best expressed when he exclaimed, “You want your invention to yourself? Then keep it to yourself.”5
There are other elements of theft and or unfair behavior that too often go unremarked in the “AI conversation.” The technology itself is engineered through political choices. Last week, the Senate Judiciary Committee held a hearing on AI and copyright, showing how firms like Meta steal the intellectual work of authors and exploit it, without compensation. And I don’t mean they buy the books and feed them into a learning algorithm, they literally used pirated work to train their model, which their own employees question as possibly illegal.
Here’s novelist and former trial lawyer David Baldacci explaining how OpenAI, in his words, “backed up a truck to his imagination and stole everything he ever created.” These services now spit out novels that read as if they were written by Baldacci, with similar plots, dialogues, and even character names. This dynamic is broader than just one novelist; the number of cheap knock-offs is so high that online vendors are now putting weekly limits on how many books one individual is allowed to “publish.” I highly recommend watching Baldacci, who is quite persuasive. He’s a man whose job isn’t being replaced, so much as his work is being stolen. And that’s a political and legal choice about how we design the technology itself.
Midjourney Denies Universal and Disney Claims of Rampant Infringement – On Thursday, August 7, AI platform Midjourney responded to a lawsuit brought against it by Disney Enterprises and Universal City Studios Productions, hitting back at the movie studios’ accusation that Midjourney is a “bottomless pit of plagiarism.” The AI company said that Midjourney works much like “humans learn to draw or paint—not by memorizing individual artworks, but by internalizing patterns and techniques through repeated exposure and practice.” The brief also said the platform cannot be held liable for infringing uses by its users. While users “are required by Midjourney’s Terms of Service to refrain from infringing the intellectual property rights of others, including Plaintiffs’ rights, Midjourney does not presuppose and cannot know whether any particular image is infringing absent notice from a copyright owner and information regarding how the image is used,” said the brief.
As I’ve noted before, one of my future projects is to write a new book on IP from the ground up presenting a comprehensive case against IP based on all my previous writing, research, and arguments. (I am currently completing “The Problem with Intellectual Property,” a chapter for a forthcoming book,1 and plan to start the new book after this is done.
One possible title for my book is Copy This Book: The Case for Abolishing Intellectual Property, a nod to Abbie Hoffman’s famous Steal This Book (1971). My title implicitly recognizes that copying a book is not stealing (and I will release it open and free online with no copyright protection), while Hoffman’s is hypocritical since, as a lefty, he presumably opposes capitalism and private property rights, all while publishing under copyright and for profit leading to disputes over royalties between Hoffman and two contributors to the book. [continue reading…]
Stephan Kinsella, “The Problem with Intellectual Property,” in Handbook of the Philosophical Foundations of Business Ethics, 2nd ed., Christoph Lütge & Marianne Thejls Ziegler, eds. (Springer, forthcoming 2025; Robert McGee, section ed.), update of “The Case Against Intellectual Property,” in Handbook of the Philosophical Foundations of Business Ethics (Prof. Dr. Christoph Lütge, ed.; Springer, 2013) (chapter 68, in Part 18, “Property Rights: Material and Intellectual,” Robert McGee, section ed.) [↩]
All articles in the Journal of the Academy of Public Heath [sic] are open access and freely available for anyone to read. They are published under the Creative Commons Attribution (CC BY 4.0) license, permitting its broad reuse and distribution so long as appropriate source and author attributions are made.
Replying to a previous tweet, which stated: “All property is fundamentally intellectual.” This is the Objectivist bait and switch. All property involves the intellect–the mind, rationality, decisions, ideas. Sure. All property involves labor too. Why not say all property is labor? You need to start with a definition. What do you mean by property? [continue reading…]
Anna’s Blog argues that “Copyright reform is necessary for national security“. The argument is that American companies are hobbled in using copyright-protected works (such as that on Anna’s Archive) to train their AI LLM models, but Chinese firms have no such compunctions. Thus, US copyright law should be modified to make it easier for American AI companies to use this data to train their AIs—for example by reducing the copyright term and providing other safe harbors.
I received a couple questions from someone about IP and AI.
Question 1:
we could imagine an AI system without any censorship which can quote anything without any restrictions and provide access to any information that is available, anyone could create a website with any pirate content they want and it uses modern technologies allowing to provide this service without any way blocking it. How long IP could exist if there was a tool that completely ignores human made laws and lets information live freely?
I just recalled that my friend Greg years ago posted a nice broadside against patents “Ideas Are Not Property, On Dismantling IP,” in The Independent Political Report, back in June 2013. As he opens:
The US Supreme Court ruled unanimously this past week that human genes may not be patented. That was a good decision. However those in support of this ruling are by and large hypocrites. They vociferously decried the negative consequences of upholding such patents (limiting research, higher costs, limited choice) but then fail to acknowledge these same deleterious consequences occur for ALL patents. It’s not like these bad things don’t occur for “legitimate” patents but do occur for “illegitimate” ones. Patents are the problem, not their “legitimacy.”
I’m writing “The Problem with Intellectual Property,” to appear in Handbook of the Philosophical Foundations of Business Ethics, 2nd ed., Christoph Lütge & Marianne Thejls Ziegler, eds. (Springer, forthcoming 2025; Robert McGee, section ed.). (My “The Case Against Intellectual Property,” a different article, appeared in the first edition, Handbook of the Philosophical Foundations of Business Ethics (Prof. Dr. Christoph Lütge, ed.; Springer, 2013) (chapter 68, in Part 18, “Property Rights: Material and Intellectual,” Robert McGee, section ed.).)
One of my footnotes is becoming unwieldy and I will have to pare it down, so I include the full version here, as I have trouble killing my darlings. [continue reading…]
Gordon doesn’t seem to get the problem with Rothbard’s contractual copyright views. Or maybe doesn’t care, since he doesn’t seem to want to acknowledge serious problems in Rothbard’s argument about IP.
Perhaps this is why Gordon preferred and praised Butler Shaffer’s short, non-systematic, non-comprehensive, nonrigorous, ad hoc and scattershot critique of IP–because it doesn’t get “bogged down” in the details and thus doesn’t criticize Rothbard’s confused approach to IP. Butler’s sympathies are largely correct, but this is is not a clear or systematic approach to the IP issue.
From Gordon’s “Introduction” (who ever heard of an “Introduction” to a “book” that is barely 15 pages long?):
Intellectual Property is a difficult topic, and a lesser author could easily get bogged down in legal technicalities. Not so Shaffer. As always, he penetrates to the fundamentals.
P.s. it wasn’t just Tucker who was “pushing” my Against Intellectual Property, as Gordon claims—Hoppe encouraged me to publish it in the Journal of Libertarian Studies and then the Mises Institute awarded it the first O.P. Alford III Prize.
Hoppe, by the way, is totally on board with my approach to IP—no surprise, since my own approach is built on his own libertarian theories about property rights, scarcity, and so on.1
“In his discussion of innovation, Shaffer avoids a bad argument that, I regret to say, has beguiled several opponents of IP. It is correctly pointed out that ideas are not scarce, in one meaning of that term. Any number of people can make use of an idea at the same time. By contrast, economic goods are scarce: one’s use of economic goods excludes others from using them. In brief, ideas are non-rivalrous. From this, it is wrongly concluded that the creation of new and valuable ideas poses no problem: If ideas are not scarce, then they are abundant. Obviously, then, IP protection for them is absurd. It makes no more sense than property rights in air, a good which in normal circumstances anyone can have as much as he wants.
A parallel argument will serve to expose the fallacy. A common criticism of the free market is that it cannot supply public goods, such as national defense, in the economically optimal quantity. A public good is non-rivalrous: my consumption of defense, e.g., does not impede your consumption of it. It is alleged that this leads to undersupply of the good.
It would be a very poor answer to this complaint against the market to say, “This is not a problem! Just as the opponent of the free market has said, defense is a public, non-rivalrous good. If so, it is abundant — we need not then worry about its supply.” The error here is apparent: the fact that an indefinite number of people can consume a good at the same time does not show that there is as much of the good as people want. The application of this to the IP argument canvassed above is, I hope, sufficiently obvious.”
“The technological advantages of sharing information point us to an important praxeological principle that also explains the nonviolence of this black market. Unlike the goods people exchange money for, information is nonscarce. Being nonscarce, it is a nonrivalrous good and, as such, it is free.
In fact, as Rothbard points out, nonscarce goods cannot even be economized — that is, they cannot be made the object of human action.[2] To see the relevance of this point to illegal movie downloads, consider another nonscarce good: air. For the most part, air remains only a part of the general conditions of human action and does not factor into the economizing of means to achieve ends. One can breathe as much air as he likes without exhausting its supply or decreasing the amount (or quality) of air left for everyone else.
It takes special circumstances to make air a scarce good and thus something that acting man must economize. For example, one might decide to dive to the bottom of the sea with the assistance of oxygen tanks — and thus face decisions on what to do with the limited amount of air available. Or, if the earth were to become polluted enough, the world’s breathable air supply could itself become a scarce good and an ongoing concern in human affairs.
We should observe that air, since it is a physical good, is scarce in principle but may be considered nonscarce insofar as its supply and ubiquity exceeds all of the potential uses to which acting persons can put it. But ideas and information are not physical goods, and therefore they are not only nonscarce in practice but also nonscarce in principle. It is impossible to diminish their supply or reduce their quality.
If information cannot be made the object of human action, and illegal digital content is but information, how is it possible for there to be a black market for it? What is it that really happens when users obtain illegal digital content? It is clear that no ideas are altered, exchanged, or diminished. Instead, the black market in information is simply individuals cooperating in order to manipulate their own private property — namely, altering the physical state of their computers in certain patterns. We term these patterns “songs,” “movies,” and the like, informally treating them like physical objects. But at no point does copying a pattern inhibit anyone else’s ability to enjoy that same pattern. It turns out that copying is not theft.”
Gordon’s article when posted had a vigorous comment thread, but now that’s all been deleted from Mises.org, unfortunately.
Some remnants I have from old email discussions:
“Dinch42
48p· 1 hour ago
Your argument in the first link is silly. Let’s use the “World Intellectual Property Organization” statistics as an unbiased look into patents as property rights. Then let’s compare the top ten innovative countries (all developed countries) to the bottom ten (all countries with almost no concept of property rights at all, let alone IP) and conclude that since the unbiased rankings from the World Intellectual Property Organization show that the top ten most innovative countries all have strong IP laws and the bottom ten have poor IP laws, IP laws must, in fact, be beneficial to society and must therefore be considered legitimate property. It is such a poorly argued position I don’t even want to bother with the other links.”
…
I don’t usually reply there, but I seem to have been already logged in somehow, so…:
James VanWinkle· 5 hours ago
It wasn’t until Mises.org introduced me to the IP debate from both sides that I realized I had to rethink my belief that intangible property rights made sense. Although I am still making up my mind, I have completely changed my mind and now see patents and copyrights (without the use of contracts) to not be property rights. What I am stuck on is “branding.” The use of brands allows one to “certify” a product. A consumer then can buy a product based on a brand’s reputation. A counterfeit product would not be excluded (it seems to me) if copyrights were not recognized.
So it seems that an important market tool would be lost without copyrights. Is that right?
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Bob_Robertson81p· 49 minutes ago
What I expect is that the “social standard” would apply. Such things as are not direct coercion remain things that people argue about, and seek adjudication for.
For example, if I want to find a MacDonald’s chain restaurant, and I look around and see what _looks_ like a MacDonald’s, and I go in and buy the food and discover that they are not, that might be considered fraud.
Now I went through this with Kinsella in years past myself: The bogus MacDonald’s is not defrauding the MacDonald’s _chain_, the people whom they are fooling, the customers, are who are being lied to if it is proven that the fake was deliberately impersonating the real in order to defraud the customers.
So “branding” certainly is an issue, and being as important as it is there will be ways of supplying that demand.
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Stephan Kinsella63p· less than 1 minute ago
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It is trademark that protects brands, not copyright. And trademark is also illegitimate, but for different reasons. All you need is regular contract and fraud law to handle the issue of someone deceiving the consumer. And it is telling that most people say you need trademark law to stop fraud–that it is based in fraud law. Well, then why do we need it–fraud is already illegal. In fact, trademark law does NOT require a showing of fraud. It only requires you show a “likelihood of consumer confusion.” You can show this even when the customer is not deceived–e.g. when they buy a fake Rolex, knowing that it is fake. Further, trademark lets the original company sue the trademark infringer–but if the victim is the customer, they should be the plaintiff. Not the original company. And further still: trademark law does not even require a showing of likelihood of consumer confusion: there is an antidilution cause of action, based on actions that “dilute” the “value” of someone’s mark, or “tarnish” it. This whole field of law is corrupt and unlibertarian, just as defamation law (reputation rights) is. I explain all this in detail in various articles, — trademark for example is covered in Against Intellectual Property, and in my Reply to Van Dun, all on my site. [“Defamation as a Type of Intellectual Property,” in A Life in Liberty: Liber Amicorum in Honor of Hans-Hermann Hoppe, edited by Jörg Guido Hülsmann & Stephan Kinsella (Houston, Texas: Papinian Press, 2024)]
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jmorris84· 8 hours ago
“Could one not devise a complicated contract in which everyone agrees to IP protection?” – David Gordon
David, you mean something like The Constitution? Lysander Spooner destroyed the idea that a “complicated contract”, such as the US Constitution, is anything remotely close to a binding contract.
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Jon Dorian· 7 hours ago
It gets deeper than that. Not even the politico-philosophical basis of Social Contracts on which governments are supposed to be based make any sense (see Social Contracts are a Scam). Basically, all governments are invalid from a practical as well as theoretical point of view.
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David Gordon· 7 hours ago
Spooner’s argument is that people haven’t accepted the Constitution as a binding contract. How is this relevant to a contract in which everyone agrees?
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jmorris84· 1 hour ago
David, explain how you plan on having everyone in the world agree to IP protection.
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Bob_Robertson81p· 1 hour ago
I think that’s the point.
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Stephan Kinsella63p· less than 1 minute ago
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According to Rothbard, contracts are not binding promises, as most people today conventionally assume. They are simply transfers of title to owned resources–an exercise of ownership by the owner. That is all. The entire theory of social contract, and other ideas like “imagine a world where people contract to respect IP” is based on a nebulous and incoherent understanding of contract. It is this reason that Rothbard understands slavery contracts are not enforceable–they are not binding promises, and even if they were, breach of such a contractual promised obligation would not call for enslavement–that’s disproportionate; but they are title transfers, but a title transfer is a transfer by an owner of a resource that he has acquired ownership to, to someone else. You do have an ownership right in your body but the person who is the owner is not separable from his body, or from his “will” as Rothbard explains. One of Rothbard’s most revolutionary theories in my view was his theory of contract (he built it on Evers, but Evers apparently got it first from Rothbard — I explain this here, http://libertarianstandard.com/2010/11/19/justice…. Pro-IP libertarians who fling the “contract” notion (and fraud as well) without having a serious clue about the nature of contract and fraud and how they are rooted in and related to a coherent theory of property rights are making bad arguments.
Kinsella:
As a friend wrote me at the time: ” he [Gordon] writes “the argument I had in mind isn’t that because use of ideas is non-rivalrous, there is no problem in the creation of new and valuable ideas. Rather, it is that because use of ideas is non-rivalrous, ideas are “abundant” or “free goods”, available in unlimited supply.”
but first of all, he literally wrote ” ideas are non-rivalrous. From this, it is wrongly concluded that the creation of new and valuable ideas poses no problem: If ideas are not scarce, then they are abundant.” But now he says that that is not the argument he has in mind?
And secondly, what then does he mean by “abundant” and “available in unlimited supply”? If he merely means that they’re nonrivalrous then he wouldnt actually disagree with the argument he is attacking but if he means that there are as many ideas available as we could possibly want, then he’d still be attacking a straw man.
this is very odd.”
Tucker:
To confuse the nonscarcity of ideas with the non-excludability of so-called public goods takes some seriously circuitous thinking. Seems like a crazy diversion tactic also known as sophistry.
Gordon:
I’m grateful to Stephan Kinsella for his attention to my remarks and regret that what I said created puzzlement. I offer the following in clarification.
There are strong arguments against IP rights. A number of these may be found in Butler Shaffer’s monograph, to which the remarks of mine that Stephan quotes were an introduction. Strong arguments, though, do not suffice for some opponents of IP. They think that there is a simple argument that shows that the very idea of an IP right is absurd. This argument I take to be this: (1) Ideas are non-rivalrous, i.e. the use of an idea by someone does not prevent or impede anyone else from using the idea; (2) Rights exist only to settle conflicts about the use of a resource; (3) Therefore, there are no rights to ideas.
The key problem, as I see it, with this argument is that premise (2) is by no means self-evident. Suppose a defender of IP rights claims that the creator of a new idea has, in certain circumstances, a right to prevent others from using it without his permission. I do not accept this view, but it does not seem to be nonsensical, either. To dismiss the claim by appeal to premise (2) begs the question. What exactly is the argument for premise (2)? I am unwilling to accept it as a mere act of conceptual legislation.
In his comment, Jeff Tucker says “To confuse the nonscarcity of ideas with the non-excludability of so-called public goods takes some seriously circuitous thinking. Seems like a crazy diversion tactic also known as sophistry.” In correspondence with me, he emphasized that what impresses him is that ideas are infinitely reproducible: This phenomenon is not to be found among public goods. Though one cannot help but admire his dithyrambic effusions on the topic, their bearing on the IP question remains unclear. Whether I am a sophist is not for me to say, but I do not propose to take lessons in logic from him. Among his many intellectual virtues, I should not be inclined to put precision of thought in the first place.
Kinsella:
“(2) Rights exist only to settle conflicts about the use of a resource;”
It is true that rights DO exist to settle conflicts over the use of scarce resources. So long as you understand that there are and ought to be property rights in scarce resources, then you oppose IP because they amount to a reassignment of rights in already-owned resources. So then the reason for the “only” in this condition is the same as the reason why there are “only” negative rights: if you create positive or welfare rights, they invade negative rights. They come at the expense of negative rights. They are not free. Same with money: if you inflate the money supply you dilute the purchasing power of existing money. Same here: if you have property rights in resources allocated in accordance with Lockean principles and contract, then these property rights must necessarily be undermined and reassigned (redistributed) if IP rights (rights in informaiton, ideas, recipes) are recognized. You cannot have both.
Gordon:
But what is the scope of the initial property rights in resources? I think that you are correct that IP rights do invade the initial resource rights; but an IP defender will say that you are begging the question against him. Again, my point is not that you are mistaken but that the issue cannot be resolved by linguistic legislation on what a right “must” be.
Kinsella:
David, if gold becomes money, it is because the scope of the property rights in that gold are clear enough for it to do so. The same is true with other resources. Principles of original appropriation or homesteading augmented by principles of contractual title transfer or restitution are sufficient to determine ownership of a given contested resource. Competition on the market, evolution, emulation, human civilization, all depend on the spread of information, copying, learning. Learning some possible pattern from observation and then using it to guide your actions to impart some pattern on your own already-owned resources does not invade the borders of others’ already-owned resources, it does not commit a tort, it does not breach a contract. There is no possible excuse to justify limiting such copying activities. To do so would be to limit rights in already-owned resources even though the owner did not agree to it contractually and did not commit any tort. To take his money as compensation/damages, would be to disregard his title to his gold. And so on.
***
David’s wording–he seems to want to leave open the possibility there could be IP in information–that’s what he means about ‘scope’ here I think–
“But what is the scope of the initial property rights in resources? I think that you are correct that IP rights do invade the initial resource rights; but an IP defender will say that you are begging the question against him. ”
— he is saying (I think) that if I homestead material and presumably rearrange it into some other shape (say, I make a printer) then the “scope” of my rights to control the thing includes only what is known-to-date. And that if someone else later comes up with a new use for that type of object (e.g. a novel, a new machine design) then I never homesteaded the “right to use my printer in X Y Z way since the novel did not exist at the time I homesteaded it”. Therefore, if the owner of the pattern of information stops me from using my printer or object for that new purpose, it doesn’t violate my rights because I never owned this right in the first place–the “scope” of my rights in the printer doesn’t extend to printing that novel, the “scope” of my rights in my wood and metal does not include the right to fashion it into a new mousetrap design.
This is reminiscent of an implication of Rothbard’s convoluted contractual copyright argument where he conceives of a mousetrap as “missing” the right to copy it, since the original owner “reserved” that right.
It’s also a variant, perhaps, of the argument I routinely hear: that A can’t complain that B’s copyright is a trespass or theft or interference with A’s use of his own resources, since B’s property rights always limit what A can do with his own property, and therefore, so what if the copyright also limits how A can use his own property–property rights always do this. This is a confusing and insidious and flawed argument I have addressed here: [See “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection,” in Legal Foundations of a Free Society [LFFS], n.11 and accompanying text; “The Non-Aggression Principle as a Limit on Action, Not on Property Rights” and “IP and Aggression as Limits on Property Rights: How They Differ.”
***
Update: In Gordon’s review of Huebert’s excellent Libertarianism Today,2 he writes:
Huebert presents a much more accurate account of Rothbard’s opinions than most [Hmm, wonder who he means here? —SK]. The capsule formulation that most adopt is that Rothbard rejected patents but allowed copyrights. Huebert makes clear that this vastly oversimplifies what Rothbard says.
Rothbard thought that copyright could be justified if it were the product of a contract. For example, if when Smith sells Jones a book, Smith marks it ‘”copyright,” then Jones only receives from Smith the right to make and use that physical book, but not the right to copy it … because a person cannot transfer any more rights than he or she owns, any third parties who later get the book after Jones would be subject to the same restrictions Jones faced … Rothbard justified patents of a sort on similar grounds. If Smith sells Jones a new kind of vacuum cleaner and marks it “patented” (or, as Rothbard would have it “copyrighted”), that tells Jones that he is only receiving the right to the physical object, not the right to make copies of it. (pp. 205–206)
Someone who independently invented the vacuum cleaner would be immune from the reach of the patent.
The standard objection to Rothbard’s position is that such contracts can bind only the people who are parties to them. If you find a copyrighted book that someone has discarded, you are free to copy it as you please; you have made no agreement not to do so. It is because of this point, I think, that Huebert says, “Murray Rothbard began to chip away at the IP idea but still clung to parts of it” (p. 205)”
This is an excellent point (Robert Nozick was among the first to raise it), but is it an objection to Rothbard’s view? In Man, Economy, and State, Rothbard says,
Copyrights … have their basis in prosecution of implicit theft. The plaintiff must prove that the defendant stole the former’s creation by reproducing it and selling it himself in violation of his or someone else’s contract with the original seller. (MES, p. 745, emphasis added)
This suggests that someone who is not party to the contract would be free to copy the creation as he pleased. The point about third parties would then be a consequence of Rothbard’s view, not an objection to it.
Okay so let’s take two cases. A sells his mousetrap to B but does not sell B the “right to copy it” (a bizarre idea introduced by Rothbard). B sells it to C, but since B does not “own” the “right to copy” and can only sell to C “what he owns,” C also does not receive or own the “right to copy” the mousetrap. Thus by Rothbard’s reasoning, C cannot copy it.
Now I want to pause here to emphasize something. The mistaken assumption by Rothbard here is that before you “make a copy” of something, you need some “right to copy.” You do not. In a free society we do not live by permission where everything that is not permitted is presumed to be forbidden. Instead, any action is permissible so long as it does not use someone else’s body or other owned resources without his permission.
Using one’s own resources to rearrange it into whatever shape you want3 does not require permission simply because doing this does not trespass against or invade the borders of anyone else’s property. If I take my own metal and glass and so on, that I already own (by virtue of original appropriation or by contractual transfer from a previous owner) I can do whatever I want with it so long as my actions do not invade or use someone else’s property.
Keep in mind that it is actions that property rights limit, not other property rights, as I explain at length in ch. 11 of my book. Namely: others’ property rights limit my use of their property without their consent. But my rearranging my own owned resources a certain way does not affect the physical integrity of their resources.4 If I see A‘s or B‘s mousetrap and want to make a similar one, with my own hands, my own effort and labor, my own mind, my own raw materials, I am free to do so since doing so does not infringe A’s or B’s rights! So Gordon is wrong here when he writes: “Someone who independently invented the vacuum cleaner would be immune from the reach of the patent.” This implies that someone who does not “independently invent” (whatever that means) the vacuum cleaner does not have the right to do so. Not true! Everyone has the right to do this! (Even B, even if B contractually agreed not to perform this action; since body rights are inalienable and because contracts are not binding promises or obligations but rather title transfers to alienable property,5B is free to copy the mousetrap he purchased from A, but this might trigger the payment of monetary damages to A, depending on their contract (which is why B would be stupid to agree to encumber his use of the mousetrap he purchased, but hey, we are talking about a free country).
To return to Rothbard’s reasoning as applied to the hypothetical: this would be, as Rothbard says, a case where C, the Defendant, in copying it and selling it himself, would be “in violation of his or someone else’s contract with the original seller.” That is why Rothbard thinks C can be bound–because of B‘s contract with A. Because he mistakenly thinks C needs some permission to “make copies,” and if he doens’t “get it” from B—and B doesn’t “have” that “permission” since A carved up the mousetrap’s ownership into bundles: he retained this “right to copy” and sold the “rest” of the mousetrap to B. Thus, C‘s normal freedom to make whatever object he wants with his own material is somehow thwarted… because B didn’t “transfer” this … “right to copy” to C … a “right to copy” that C never needed in the first place since “making a copy”—more particularly, making anything at all with his own resources, or more particularly still, rearranging his own resources into whatever shape he wishes, does not invade the borders of or use A’s owned resources (“property”)6 without A‘s consent. (And if someone says: yes, C‘s “making a mousetrap” violated A‘s rights to his own “invention”, this is simply question begging, since the question is, whether there are property rights in ideas or, more precisely whether granting nonconsensual negative servitudes to A over C’s resources is justified!7 Something IP proponents seem incapable of grasping, or, more likely, unwilling to admit, so dead set on arguing for IP as they are.)
So what of the case where B owns the mousetrap and someone else, say D, doesn’t buy it at all or ever touch it, he just sees it. And then he “copies” it, starts making and selling copies. Would Rothbard’s strange view exempt D but not C? Why? Neither one of them needs permission to make a copy of the mousetrap with his own resources. For that matter, even B does not need permission! (But he might owe monetary damages, a penalty, so to speak, as noted above.)
If so, this just means that anyone who wanted to “copy” A‘s mousetrap design would simply observe how A‘s or B‘s mousetrap works, refrain from agreeing to a contract, and then start competing. Right? Does Rothbard’s view imply this? Who knows. I doubt even Rothbard knew.
Of course, by the way, this “contractual copyright” scheme Rothbard has cobbled together this was really the law, it would dissuade people from ever buying the mousetrap in the first place for fear they now have in effect acquired contractual liability, in the event they ever compete with A. (For the same reason that large companies return unopened submissions by outsiders of their ideas; they do not want to be accused of “stealing” or infringing some IP. And for the same reason some artists who are influenced by an earlier song often don’t admit it or deny it, because they do not want to be liable for copyright infringement or having to pay royalties!)
This is obviously absurd. This is why I have argued that you cannot use contracts to emulate something like copyright. For example suppose Amazon makes a deal with its authors to sell their books only to customers who agree to (a) pay for the book and (b) sign a liability clause agreeing to pay millions of dollars to the author/Amazon if they ever sell copies of the book (or similar copies, translations, sequels, things “inspired” by it, and so on) (if the contractual penalty is small, then it would not be sufficient to deter copying). Obviously, imposing this extra cost on customers reduces the price you can charge, and also you lose lots of customers who will just say “fuck that, I’ll pirate it.”
As Rothbard recognizes: see Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging’, C4SIF (Sep. 29, 2010): “Men find themselves in a certain environment, or situation. It is this situation that the individual decides to change in some way in order to achieve his ends. But man can work only with the numerous elements that he finds in his environment, by rearranging them in order to bring about the satisfaction of his ends. With reference to any given act, the environment external to the individual may be divided into two parts: those elements which he believes he cannot control and must leave unchanged, and those which he can alter (or rather, thinks he can alter) to arrive at his ends. The former may be termed the general conditions of the action; the latter, the means used. Thus, the individual actor is faced with an environment that he would like to change in order to attain his ends. To act, he must have technological ideas about how to use some of the elements of the environment as means, as pathways, to arrive at his ends. Every act must therefore involve the employment of means by individual actors to attempt to arrive at certain desired ends. In the external environment, the general conditions cannot be the objects of any human action; only the means can be employed in action.” [↩]
“Selling Does Not Imply Ownership, and Vice-Versa: A Dissection,” LFFS. [↩]
See LFFS, ch. 2, App. I, section “Concept and Definition of ‘Property,'” quoting Yiannopoulos: “Accurate analysis should reserve the use of the word property for the designation of rights that persons have with respect to things.” [↩]
On Twitter, someone asked pro-IP Objectivist law professor Adam Mossoff for recommendations for IP-skeptical writing from a pro-market and pro-industry perspective. (See also related tweets from Garett Jones and Jacob Huebert)
Shea Levy @shlevy
@AdamMossoff
do you have a recommended resource for the generally market/industry-friendly but IP-skeptical type?
I’m not sure if Mossoff understood the questions (but I doubt that), since he replied with a list of apparently pro-IP writings (I haven’t gone through them yet; will fisk this later): [continue reading…]
I was asked recently to guest lecture for a course taught to some mechanical engineering students at Colorado University Boulder (EMEN 4100: Engineering Economics) by the lecturer, David Assad. Assad covers some ethics related matters in the latter part of the course and asked me to talk generally about ethics and related matters. I discussed ethics, morality, politics, and science. I discussed ethics and its relationship to science and politics, and discussed about what science is, the types of sciences, ethics and ethical theories and the relationship to specialized ethics and morality in general, and its relationship to political ethics and political philosophy. I then discussed libertarianism in general, the nature and function of property rights, and then explained how the intellectual property issue can be addressed based on the libertarian and private law perspective. The references and notes I gave the class are embedded in the slides and reproduced below.
The Center for the Study of Innovative Freedom (C4SIF) is dedicated to building public awareness of the manner in which so-called “intellectual property” (IP) laws and policies impede innovation, creativity, communication, learning, knowledge, emulation, and information sharing. We are for property rights, free markets, competition, commerce, cooperation, and the voluntary sharing of knowledge, and oppose IP laws, which systematically impede or hamper innovation. IP law should be completely and immediately abolished.
We provide news commentary and analysis and scholarly resources from our unique pro-property, pro-market, pro-innovation perspective.
(from BoingBoing). From Conza’s tumblr:
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