C4SIF.org

The Ominous PROTECT IP Act and the End of Internet Freedom

by Stephan Kinsella on June 17, 2011

Update: See more posts on Internet freedom.

This pending PROTECT IP Act is very scary stuff. I am afraid it’s going to pass. It will result in a huge increase in governmental censorship of the Internet, requiring all American ISPs to block certain domains, thus depriving Americans of access to “censored” sites around the world–all in the name of copyright and the RIAA. IP is not a small issue any more. It is becoming a principal excuse for the state to regulate one of the most important weapons we have to fight against the state–the Internet and digital communications.

As the ThinkProgress post below notes, “in the name of policing copyright violations, Protect IP effectively makes it a felony to link to a website that is accused — that’s right, only accused — of being devoted to copyright infringement.”

For some great discussion of this issue, listen to the first 23 or so minutes of Bulletproof Radio Ep.137 – Aaron Swartz of Demand Progress Talks Protect IP; see also Protect IP: This is Your Fight Too; Ep.138 – Mike Masnick of Techdirt Talks MPAA Propaganda and Djdclarke Talks Shockedfish.

For those concerned, Demand Progress has information up:

TAKE ACTION: OPPOSE THE PROTECT IP ACT

We knew that members of Congress and their business allies were gearing up to pass a new version of the Internet Blacklist Bill — which more than 325,000 Demand Progress members helped block last winter — but we never expected it to be this atrocious.

Senators Leahy and Hatch revised the original bill, introducing new legislation that would institute a China-like censorship regime in the United States. Under PROTECT-IP, the Department of Justice could force search engines, browsers, and service providers to block users’ access to websites, and scrub the American Internet clean of any trace of their existence.

Email your lawmakers and tell them to kill PROTECT IP — the Internet Censorship Bill — by clicking here.

From ThinkProgress:

Ron Wyden vs PROTECT IP

By Matthew Yglesias on Jun 7, 2011 at 9:15 am

Reihan Salam has an excellent column about the latest intellectual property law overreach, Senator Pat Leahy’s PROTECT IP bill:

Protect IP claims to be about combating online piracy, hence the bill’s clever name (it stands for Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property). Yet in the name of policing copyright violations, Protect IP effectively makes it a felony to link to a website that is accused — that’s right, only accused — of being devoted to copyright infringement. As Google executive chairman Eric Schmidt explained to a press conference in London, Protect IP and laws like it will prove a “disastrous precedent” for free speech. He is absolutely right. Linking is the fundamental building block of the Internet, and hyperlinks are a form of free speech protected under the Constitution. Once the United States government starts messing with hyperlinks, every two-bit dictatorship on the planet will have carte blanche to do the same.

Fortunately, Ron Wyden has put a hold on this bill so we’re safe for now.

The baseline issue that legislators ought to ask themselves before they sign on to yet another draconian IP strengthening bill is this: What am I trying to fix? Are constituents writing in to complain that it’s harder than ever to find new music recordings to listen to? On the contrary, it’s never been easier. Are constituents concerned that Hollywood doesn’t crank out capital-intensive movies with stellar special effects these days? Again, no—special effects are getting cheaper and better. And because we now have lots of original programming from cable networks, we’re producing more television shows than ever before. It would be very strange to reach the conclusion that Americans in the year 2011 are suffering from a lack of entertainment options. The truth is that the push for these new laws is all about efforts to shore up specific businesses who are hurting precisely because the range of options available to consumers has escalated so dramatically.

[Mises]

{ 2 comments }

On Patents, Hoover Sucks

by Stephan Kinsella on June 16, 2011

Optimal Patent and Copyright Term Length

by Stephan Kinsella on June 16, 2011

[From Mises Blog; archived comments below]

Currently patents last about 17 years, and copyright about 100 years. Originally both were about 14 years, equal to two 7-year apprentice terms.¹ As noted by Michele Boldrin & David Levine,

In 1976, the term of copyright, which since 1909 had been 28 years plus a renewal term of 28 years, was increased to the life of the author plus 50 years. … Since the Sony Bono Copyright Term Extension Act of 1998, copyright protection in the U.S. is life of the author plus 70 years, or 90 years for works without an author. If we take the remaining life of an author to be roughly 35 years, this would mean 105 years of protection.²

There have been attempts to estimate what the “optimal” terms should be, assuming patent and copyright do promote some innovation and creativity, and based on mainstreamish utilitarian assumptions. They are all much shorter than current terms–yet the longer terms still persist (thanks, Mickey Mouse). For example, Rufus Pollock, in Forever Minus a Day? Some Theory and Empirics of Optimal Copyright, concludes that a 15 year copyright term is “optimal”–i.e., about 85 years shorter than the present system. Boldrin and Levine, the authors of Against Intellectual Monopoly, performed a detailed, careful econometric analysis in 2009 and concluded that the “optimal” copyright term ought to be about 2 years, and patents about 5 to 10 years.³ I say “optimal” in scare quotes because Boldrin and Levine’s conclusion is based on the assumption that patent and copyright are beneficial–an assumption Boldrin and Levine reject, so that their actual view is that the optimal term should be zero–that is, that we ought to abolish patent and copyright. As Levine explained in an email to me about this paper (my emphasis added):

These results assume that without IP a smaller fraction of the social surplus is recovered by the inventor/creator than with IP–that is the sense in which we assume that copyright and patent have some benevolent effect. That is, we assume that IP actually increases innovation. What we ignore is the downstream effect of IP–that future innovation/creation is reduced due to existing rights. We also ignore the fact that the producers who count–the marginal ones–are not especially likely to benefit from IP. In practice I suspect that those two are the main reasons that empirically IP just doesn’t increase creation/innovation. Of course our calculation ignores any other social costs of IP other than the standard economic loss due to monopoly power.

And yes: I think the optimal IP term is zero. I wouldn’t argue that a perfectly benevolent government (however improbable that might be) with really really good information (adding improbability to improbability) couldn’t make some small social improvement by occasionally awarding a monopoly for some particularly important and costly invention/creation. But leaving those improbabilities aside, the critical problem is if you concede an inch the lobbyists will soon occupy the entire tent. The only safe thing is an out and out clear cut prohibition on IP.

Other studies also indicate a need for shorter IP terms. In “Why a Seventeen Year Patent,” 38 J. Pat. Off. Soc’y 839 (1956), C. Michael White describes the historical basis for the seventeen-year patent term and proposes shortened terms. Merges & Nelson, in “On the Complex Economics of Patent Scope,” pp. 868–70, argue that most economic models of patent scope and duration focus on the relation between breadth, duration, and incentives to innovate, without giving serious consideration to the social costs of greater duration and breadth in the form of retarded subsequent improvement.⁴

The bottom line is that even arguments with pro-IP assumptions imply that the patent term should be cut in half and the copyright term slashed by at least 85 years (Amazon CEO Jeff Bezos favors reducing some patent terms to 3–5 years).⁵ This is one reason I have argued that any serious IP reform should include first and foremost a significant reduction in the patent and copyright terms.⁶ Unfortunately, IP reform efforts never reduce patent and copyright terms, which is one reason I have argued that these reform efforts are not serious or radical at all.⁷

[Mises cross-post]

Update: See: What’s the objectively optimal copyright term?

Archived comments:

{ 42 comments… read them below or add one }

Andras June 16, 2011 at 11:30 am

Now we are talking. However, there should be sunset clauses with the changes to prevent cannibalization.
Another thing: why should all patent terms be the same? Patents in IT and pharma are absolutely different.

Wildberry June 16, 2011 at 11:51 am

Stephan, nice article.

Unless one is for total abolition of IP or the First Amendment, the optimal term must be between zero and infinity.

In the “zero” camp are total abolitionists, like you and Levine, and in the infinity camp are those well organized, well funded, special interests who understand exactly how they will benefit from longer terms; (I thank both Mickey Mouse and Sonny Bono). I have mentioned previously the legislative bias of special interests that is in the final analysis, just another way of describing mercantilism.

In this regard, IP is no different than other manifestations of mercantilism; a fundamentally sound principle (one should own what he produces), is hijacked by special interests and extended and expanded in order to achieve some economic goal through political means. While the means are theoretically available to all, the deck is stacked in favor of the special interests, owing to the nature of man and the political systems we have created. Those who will benefit from a legislative initiative now are not strongly opposed by those who will not feel and likely don’t understand the immediate impact of the change.

One question is, “What is the proper “Libertarian” response to mercantilism?”

One possible response is to eliminate political means altogether; this is the Ancap position. Another is continued growth of the commercial/government symbiosis until we finally reach a state of serfdom, in Hayek’s terms the ultimate destination of mercantilism, or fascism in its most evil form.

To suggest these are the only alternatives however is a false dichotomy.

Between anarchy and domination by tyrants lie the open fields of liberty. While burning the State down or letting it rot from within, may be in the mind of some, two paths to the same destination, what of those like myself who hold the view that no solution is final, and freedom is a process if continual vigilance, not a destination?

As I have recently said, IP is a great vehicle for illuminating these types of questions. When you ask what the optimum term length of IP might be, your answer and approach illuminates both the process and the destination you have in mind.

While I hold a position favorable to the principle of IP, I can at the same time oppose mercantilism, and approach the question from a position best described as the economics of law. Term length is not an ethical or natural rights issue, but an issue of defining an economic policy that is likely to produce the desired outcome, and legal doctrine that supports that policy. Economics is in fact, a utilitarian enterprise.

As such, free market theory demands that producers own what they produce, and are left free to trade with others that perceive those products as having value. Freedom of speech, association, and the alienability of property demand policies which protect against legislative erosion of those freedoms. It is a problem of balance and requires both empiricism and value judgments, neither of which are an exact science.

There is at least one study I am aware of (2001 U.S. Briefs 618; Eldred v. Ashcroft) which argues that the current copyright term is financially equivalent to a perpetual term:

Taken as a whole, it is highly unlikely that the economic benefits from copyright extension under the CTEA outweigh the additional costs. Moreover, in the case of term extension for existing works, the sizable increase in cost is not balanced to any significant degree by an improvement in incentives for creating new works. Considering the criterion of consumer welfare instead of efficiency leads to the same conclusion, with the alteration that the CTEA’s large transfer of resources from consumers to copyright holders is an additional factor that reduces consumer welfare.

This is wrong and counter to a good policy balance between the competing objectives of IP law. Copyright terms, and perhaps patents as well, should be shortened.

sweatervest June 17, 2011 at 8:53 am

“Unless one is for total abolition of IP or the First Amendment, the optimal term must be between zero and infinity.”

The first amendment!? What in the world does this have to do with the first amendment?

“a fundamentally sound principle (one should own what he produces)”

From wikipedia (which itself is from cited sources):

“Mercantilism is the economic doctrine that says government control of foreign trade is of paramount importance for ensuring the prosperity and security of a state.”

So government control of foreign land equals getting able to own what you produce!?

“is hijacked by special interests and extended and expanded in order to achieve some economic goal through political means”

That’s what mercantilism is and has always been. Where in the world did you get that mercantilism has anything to do with owning what you produce?

“One question is, “What is the proper “Libertarian” response to mercantilism?””

To reject it entirely and consistently as an attack on private property rights and as the historical means to subjugate the Americas under European colonization. Mercantilism is what states do to enrich themselves. What do you think libertarians say and have always said about mercantilism?

“One possible response is to eliminate political means altogether; this is the Ancap position”

No, the ancap position is to always regard political means as unjust and destructive to society. The only way to destroy political means is with political means, which defeats the whole purpose.

“Between anarchy and domination by tyrants lie the open fields of liberty”

What is your basis for this? How does one have more freedom under a restrained state than under no state?

“what of those like myself who hold the view that no solution is final”

Who said ancap is the “final” solution to anything?

“and freedom is a process if continual vigilance, not a destination?”

Who said freedom is a destination?

Trust me Wildberry, you just don’t get ancap at all.

“Term length is not an ethical or natural rights issue, but an issue of defining an economic policy that is likely to produce the desired outcome”

Yes, it is not an ethical or natural rights issue. The reason is because ethics establishes any IP as unethical and not contained in any natural right. That you don’t seem at all to be bothered by that is concerning to say the least.

Beyond that, an outcome desired by whom? You? Anyone who speaks of “the” desired outcome is being a dictator.

“Economics is in fact, a utilitarian enterprise.”

NO!! Economics is a value-free science. It is beyond the scope of economics to ask whether one economic policy is “better” than another. The only thing economics can do is describe *what* certain economic policies, or lack thereof, will cause, and cannot possibly shed light on which one is “better” than the other.

Economics is not utilitarian at all. Where did you get this? Mises was a utilitarian through his advocacy of free markets, but that is not economics: that was what he called “liberalism”, and he explained over and over that it cannot count as a proof of the supremacy of markets, it is only his opinion and it is one he expected many to share. He believed that merely correcting the errors of economic analysis of the past (i.e. Marx) would turn most people, desiring wealth as they often do, into market advocates. It is not part of economics to be an advocate of anything. The purpose of economics is to describe what happens in certain situations, not to attach a value to those situations (especially considering that economics is precisely the science that establishes that such evaluations are specific to individual actors).

Human Action isn’t filled up with reasons why the market is “good”. It is filled up with rigorous descriptions of what a market is and what it does.

It is extremely frustrating that you will not accept that and continue to post confusing and erroneous remarks like the one above. Economics is a value-free science, and every single one of the Austrian economists support that. Economics is not utilitarian, anymore than physics is. The purpose of economics is to describe what happens under various modes of production, not to establish one as “better” than another one.

Besides, even under your utilitarian approach you would still be led to adopt zero as the optimal position because, as has been explained *over and over*, IP leads to less innovation and creative production and the production of creative work can be maximized by eliminating IP altogether.

Also, all of your arguments here are categorically the same ones used to defend public goods like roads. See Hoppe, “Economics and Ethics of Private Property”, Chapter 1.

“It is a problem of balance and requires both empiricism and value judgments”

First of all, you just rejected the entire Austrian framework (economics as an a priori theory of human action that does *not* require empiricism). Second of all, whose value judgements matter? According to my value judgments IP is a horrible beast of legislature gotten completely out of hand that is, as mentioned in a later blog post, being used as a means to shut down the internet. Why does your value judgment count more than mine?

“neither of which are an exact science.”

YES!! Your approach to this is non-scientific, non-rigorous and based on an emotional litmus test. That you choose to be so unscientific in your approach is certainly not a proof that a scientific approach is impossible.

Economics and ethics are both precise and rigorous sciences based on the method axiomatic deduction from incontestable a priori axioms. The one thing that separates Austrian economists from the rest is that they conceive of economics this way, not an empirical hypothetical endeavor, and certainly not a matter of value judgments. Whether you want to accept it or not, you are launching an attack on economics as a science, particularly Austrian economics.

“This is wrong and counter to a good policy balance between the competing objectives of IP law. Copyright terms, and perhaps patents as well, should be shortened.”

Why should you expect this doctrine to change as you shorten those terms? I am not suggesting that as a proof of my position, but the whole point of the blog post is that those terms should be shortened, and once they are shortened a little, the exact same analysis as presented by the study will still apply and they should be shortened even more, etc. until they are shortened all the way, to zero.

Wildberry, people at the LvMI might be giving you such a hard time because you are launching an attack on the very thing the institute exists to promote, which is Austrian economics: economics as an a priori science of human action. You desperately need to read “Theory and History” by Mises.

Wildberry June 17, 2011 at 12:29 pm

@sweatervest June 17, 2011 at 8:53 am

Because you seem to have calmed down a bit, I’ll give you some time.

The first amendment!? What in the world does this have to do with the first amendment?

Ahem. I’m resisting the temptation towards sarcasm. I hope you appreciate that.

The validity of the “ideas are free” argument derives from freedom of speech guarantees. If ideas were not free, then free speech would be curtailed, violating the First Amendment.

My definition of mercantilism is the collaboration of special interests (primarily commercial enterprises) and government to gain economic advantage through political means. In exchange, government gains means to stay in power. It is anti-free market and anti-liberty.

That’s what mercantilism is and has always been. Where in the world did you get that mercantilism has anything to do with owning what you produce?

You answered your own question below:

To reject it entirely and consistently as an attack on private property rights

”Between anarchy and domination by tyrants lie the open fields of liberty”

What is your basis for this? How does one have more freedom under a restrained state than under no state?

I thought this was rather poetic, didn’t you? The choice between anarchy and totalitarianism is a false dichotomy.

Who said ancap is the “final” solution to anything?

Good. We agree on this point.

Trust me Wildberry, you just don’t get ancap at all.

The last time I listened to someone who said “Trust me”, I bought a lemon. Live and learn.

Yes, it is not an ethical or natural rights issue. The reason is because ethics establishes any IP as unethical and not contained in any natural right. That you don’t seem at all to be bothered by that is concerning to say the least.

You just don’t seem to get that ethics, like property, is a human device. All ethical principles are debatable. Some people may hold that certain inalienable rights are self evident. That is merely a basis for cooperation among those who agree.

Beyond that, an outcome desired by whom? You? Anyone who speaks of “the” desired outcome is being a dictator.

Watch out, your youth is showing. People who wish to cooperate may speak of desired outcomes they hold in common without being dictators.

Mises was a utilitarian through his advocacy of free markets

Let’s start there. If we say that markets SHOULD be free, I suppose we have to work out what that means, and why that should be so, and what economic policies move us towards and not away from that objective. I believe Mises said somewhere (no time for research today) that the field of economics helps us understand if a given economic policy will actually produce what we intend. This was a major theme underlying his analysis of socialism as a set of economic policies.

If it didn’t matter that we distinguish between what is good and not so good, we should all be happy with communism, and economic calculation would be meaningless.

Economics is a value-free science</blockquote

Praxeology is a value free approach to economic study. Economic policy is a value statement. Economic theory is helpful in understanding if that policy will produce the desired outcomes.

YES!! Your approach to this is non-scientific, non-rigorous and based on an emotional litmus test. That you choose to be so unscientific in your approach is certainly not a proof that a scientific approach is impossible.

While I have utmost respect and considerable exposure to the scientific method, if that was all that was required in life, the only thing we should learn is mathematics. It seems you sort of lean that way. Empirical science, as Mises observed, has limitations.

the exact same analysis as presented by the study will still apply and they should be shortened even more, etc. until they are shortened all the way, to zero.

I thought you were somewhat of a mathematician? Continually cutting something in half only approaches zero, but never arrives there. You are assuming, of course, that the shorter the better, yet you have no rational basis for saying how short is enough except you believe zero is right. I don’t. To see the effects of a shortened term, we can look to zero for the effect. The result of zero is undesirable, for the many reasons I have previously stated. It violates the principles of private property and means of production. Infinite is wrong because it eventually causes all knowledge to be privatized, which is an anti-liberty policy. Somewhere in between is “right”, in my opinion.

Wildberry, people at the LvMI might be giving you such a hard time because you are launching an attack on the very thing the institute exists to promote, which is Austrian economics: economics as an a priori science of human action. You desperately need to read “Theory and History” by Mises.

I read every day. So much to learn, so little time. As to the hard time that some people give me, I’ll leave it to others to observe what those people have in common.

I am here because of AET. My confidence in that is pretty solid. What you and perhaps others seem to not understand is that it is possible to debate how those same principles of AET play out within the context of a particular form of economic activity, like IP. That is the only reason I am interested in IP debates; as a vehicle for understanding the economics of law in relation to AET.

But I am not a full-time scholar on the subject like some. Despite what opinions you may have formed about me, I have considerable humility about that fact.

Cheers.

sweatervest June 17, 2011 at 2:32 pm

“Because you seem to have calmed down a bit, I’ll give you some time.”

You can’t give me time, you can either confront my arguments or cower away from them.

Besides, masquerading my argumentative force with being worked up is a pretty convenient way to “win” any argument by ending it. And you were obviously worked up because you complained about me being arrogant and have said that you are fed up with me and are going to ignore me. I’m not the one that got upset.

“Ahem. I’m resisting the temptation towards sarcasm. I hope you appreciate that.”

Typing out “I’m resisting sarcasm” is one the most smart ass things I have ever seen. Do you honestly consider yourself an un-provoking victim of some intellectual choir (or ideologues as you often name me)?

“The validity of the “ideas are free” argument derives from freedom of speech guarantees”

No it doesn’t. That ideas are free is due to the fact they are non-rivalrous. Besides, “freedom of speech” is metaphorical nonsense. One never has a “right to speak” when they are on someone else’s property, and their right to speak on their own property is contained in their property rights. It’s also ridiculous to think any government can “guarantee” my right to anything.

That air is free does not come from the Bill of Rights.

“My definition of mercantilism is the collaboration of special interests (primarily commercial enterprises) and government to gain economic advantage through political means. In exchange, government gains means to stay in power. It is anti-free market and anti-liberty.”

But you said it is based on sound principles.

“I thought this was rather poetic, didn’t you”

Poetry isn’t truth. Be as beautiful as you want, it’s still wrong.

“The choice between anarchy and totalitarianism is a false dichotomy.”

Who presented it as such? The point is that anarchy is the best choice out of all of them, all of the middle points included. Anarchy is better than a little government. That is the claim. The dichotomy is a straw man. People straw man ancap because there are no actual arguments against it.

“Good. We agree on this point”

What a bunch of semantic trickery. You are the one that presented ancaps as thinking ancap is a final solution! Obviously you do not agree that ancaps never presented it as such.

“The last time I listened to someone who said “Trust me”, I bought a lemon. Live and learn.”

Well forgive me for being slightly poetic in my wording. Let me be as drily logical as I typically am: You don’t understand ancap and have no basis for explaining what its proponents believe, as evidenced by your incorrect interpretation of Rothbard’s arguments concerning what to do about past property trespasses.

“You just don’t seem to get that ethics, like property, is a human device”

I explained this in painstaking detail in the last thread and instead of responding to any of it, you ignored all of it and instead went on some childish tantrum about how arrogant I am. I posted paragraphs and paragraphs and paragraphs.

*You did not respond to a single bit of it*. Your response all of a sudden changed the topic to what it means for something to be a human device to what kind of personality I have.

You did the exact same thing when I explained *in detail* why rights are *not* inalienable. Your response was “yeah huh, no wonder you’re confused”.

“All ethical principles are debatable”

Meta-arguing. You never actually debate them, you just say they are debatable and go right back to holding onto your own without supporting them.

“Some people may hold that certain inalienable rights are self evident. That is merely a basis for cooperation among those who agree.”

Reality is not a matter of agreement. People do not agree on what the preconditions to cooperative problem solving are. Whether they are “self-evident” or not is as irrelevant as whether Russell’s Paradox is self-evident. I’ll say this as many times as you express confusion over it: people choose whether or not to trespass on peoples’ rights. They don’t choose what is a trespass and what is not.

“Watch out, your youth is showing”

My youth is irrelevant. Your insistence to turn everything into ad hominem is the biggest reason I lose patience and turn super-sarcastic with you. You need to learn how to stay on topic and quit switching to a discussion about my personality.

“People who wish to cooperate may speak of desired outcomes they hold in common without being dictators.”

Assuming of course such a desired outcome is held in common. Either way, your desired outcome is not held by me and you expect me to follow IP laws so this is completely irrelevant. We’re not dealing with things we agree on, in case you haven’t noticed.

Ethics is not about agreement. Ethics is about ways to resolve conflicts. Where there is agreement, there is no conflict! If everyone agreed then there would be no problem and none of us would be here debating each other on what to do!

If everyone agreed to obey property rights then what would be the purpose of any of this? Besides, need I agree with you when I build a fence and literally stop you from being able to get onto my property?

“If we say that markets SHOULD be free”

This is an ethics statement. You are not dealing in ethics. As every single Austrian explains, any “should” statement is beyond the scope of economics.

“I believe Mises said somewhere (no time for research today) that the field of economics helps us understand if a given economic policy will actually produce what we intend”

That is exactly my whole point. It explains what happens, not what should happen.

“This was a major theme underlying his analysis of socialism as a set of economic policies.”

Yes. He believed it was meaningless to say socialism is bad or wrong. He just wanted to make sure people correctly understood what it entailed, which is mass poverty. No value judgements what-so-ever.

“Praxeology is a value free approach to economic study”

Praxeology is economics. Again you are tearing apart Austrian economics. Have you ever read Human Action?

“Economic policy is a value statement”

Economic policy is not economics, it’s legislature. A lawmaker does not advance economic theory when he proposes or enforces a policy.

Either way, you are the only one concerned with economic policy. I really don’t see how that is so hard to grasp. I am not advocating an economic policy. I am advocating the lack of any policy at all, and pointing out that the lack of policy entails a lack of IP (quite distinct from a lack of policy entailing a lack of property, which is quite wrong. A lack of policy allows property to flourish). I’m certainly not suggesting that a new law should be made that “outlaws copyrights” or anything like that. My point is they have no means of survival without a policy, and being the ancap I am, I only advocate the total lack of economic policy. The real question of course is why I advocate what I advocate, not simply what I advocate.

“While I have utmost respect and considerable exposure to the scientific method”

You were completely wrong in your description of a “fudge factor” and so I have no reason to believe this. Besides, scientists talk about the “scientific method” far less than anyone else does. I really hope you don’t think all scientists actually go by some five step procedure in everything they do. Physics is a bit more sophisticated than that (i.e. how do you use a lab procedure to figure out how to build a physics lab?).

“if that was all that was required in life, the only thing we should learn is mathematics”

Why in the world is that? That is ridiculous. You didn’t support it with anything.

Mises uses logical deduction from axioms in Human Action. He emphasizes that over and over all throughout the epistemology sections near the beginning. That is how he presented his diminishing marginal utility theorem. He certainly did not base that on observations.

“Empirical science, as Mises observed, has limitations.”

Mathematics is not an empirical science! How do you observe that every subset of the real number line bounded above has a least upper bound? Mathematics is not based on experience.

Beyond that, the whole point of Human Action and Austrian economics in general is that economics is a “pure science of human action”. That’s what praxeology is. Praxeology is *NOT* an empirical science. It is a logical deduction starting with incontestable a priori axioms. No experience necessary. More on that in “Theory and History”.

You are taking Mises way out of context there. His point in saying empirical science is limited is that it is off limits to any economic theories! To do economics you must do science in a fundamentally different way (methodological dualism).

“Continually cutting something in half only approaches zero, but never arrives there”

I understand the concept of limits. And this is an oversimplification. If you do it an infinite number of times you will get to zero, which explains how you can cut the distance between yourself and the wall across the room in half over and over and actually get there eventually.

“You are assuming, of course, that the shorter the better, yet you have no rational basis for saying how short is enough except you believe zero is right”

I literally said that. My point is that you have no rational basis for thinking it is greater than zero (my rational basis for thinking it is zero has been presented in other places).

“The result of zero is undesirable, for the many reasons I have previously stated. It violates the principles of private property and means of production”

This is simply wrong. If you’re not gonna explain why it’s right, I don’t have to explain why it is wrong, though Peter and I have many times.

“Infinite is wrong because it eventually causes all knowledge to be privatized, which is an anti-liberty policy”

How is total privatization anti-liberty? According to ancaps a free society is precisely one in which everything is owned privately (obviously restricted to that which can be conceivably owned). In fact, by speaking of “private knowledge” as the endpoint of IP you throw away your entire case for IP not being about owning ideas.

“As to the hard time that some people give me, I’ll leave it to others to observe what those people have in common”

They’re all Austrian economists well-familiar with the Austrian intellectual tradition. Welcome to the Mises Institute!

“I am here because of AET. My confidence in that is pretty solid”

Well, do you know what AET is really about? It really sounds like you don’t.

“What you and perhaps others seem to not understand is that it is possible to debate how those same principles of AET play out within the context of a particular form of economic activity, like IP”

I understand that such an analysis demonstrates only that IP interferes with production of creative work, resulting in less of it and redistributes those productive efforts to other places. I also know that it is beyond the scope of economics to advocate one of those as being better. It is also beyond the scope of economics to establish whether IP is rooted in actually existing property rights or involves spurious unjustified claims to property. And no, I don’t think the ethics of the problem is worthy of being ignored.

I have done substantial economic analyses, particularly where I describe how a functioning creative market would have the manufacturers of entertainment hardware paying creative people to continue creating new material in order to make their hardware valuable enough to sell for a profit. I have also done an economic analysis of IP, explaining, for example, that the mechanism by which music copyrights make it harder to be a successful musician is that people must pay larger amounts for albums and therefore buy less albums and listen to (and discover) less artists.

“That is the only reason I am interested in IP debates; as a vehicle for understanding the economics of law”

The economics of law, like any economics, cannot shed light at all on whether or not those laws are justified. If you simply don’t care that laws are justified then that is a serious problem. Questioning whether they are justified or not (or arguing to either effect) is one thing (a crucial thing. It would be disastrous to be mistaken on what is justified and not). Saying “who cares” or worse yet “that’s just an opinion” (ethical relativism) is different.

Ethical relativism is monstrous. Mussolini even realized as soon as you conceive of ethics as a “what do you think” situation, then all of the worst tyrants can validate their own feeling that they ought to enforce their tyranny with all their might, and if anyone says, “Doesn’t matter what you think, what you are doing is wrong” they are fundamentally mistaken. Worse yet, if they put a spell over society as all tyrants must, then do we really lose any capacity to call him a tyrant? Is someone only a tyrant when no one wants him to rule (how then, does he rule? He may have force on his side, but no state rules through force, they are not nearly powerful enough)? What if people grudgingly accept? What if they agree simply out of fear of disagreeing?

“But I am not a full-time scholar on the subject like some. Despite what opinions you may have formed about me, I have considerable humility about that fact.”

Wildberry, maybe you should stop and think of the kinds of things you have said to me. I mean, it’s pretty cartoonish to dismiss everything I say simply on the grounds that you think I am arrogant (so what? Arrogance does not imply that I’m wrong). Maybe I have put considerable thought (years) into these problems, and read plenty of literature on the subjects, and feel like I have something important to say (as soon as the words come out of my fingertips they become forever detached from me).

Maybe I’m just trying to explain, for example, why it does not matter that anything is a human device and use math examples as analogies to better illustrate my point because it is easy to grasp what I am saying in the context of math. Maybe I’m really putting a lot of effort into explaining why I think what I think, which is the best testament to humility you could ever get. People who explain their positions fully, all the way down to the epistemological basis, and present as being as bulletproof as they can, are not being arrogant by doing so.

No, what is arrogant is to simply state your position, never explain it or not explain it fully enough that it appears as incontestable, and expect that to be enough. That I have gone through the lengths I have to explain my position to you just shows how eager I am to be criticized (and also that I present it as the only solution even close to viable… that definitely makes it easier to criticize than if I was nihilist about everything). That’s why it is seriously obnoxious to be literally accused of the complete opposite, as though the only choice I have to come across as humble is to agree with what those calling me arrogant think I should agree with.

Wildberry June 17, 2011 at 3:07 pm

Well, it was a good try. I won’t make the same mistake again.

How you can string together so many wrong ideas is a monument to ignorance. You really are a putz.

sweatervest June 17, 2011 at 8:03 pm: Well you don’t seem interesting in anything beyond calling me names. What was wrong with my response?
sweatervest June 17, 2011 at 9:01 pm: “How you can string together so many wrong ideas is a monument to ignorance”

Assuming of course that they are in fact wrong. Are they?
sweatervest June 17, 2011 at 9:02 pm: Also, it seems like you are getting worked up again
sweatervest June 17, 2011 at 9:12 pm: Final note:It is a blatant sign of arrogance to call someone a putz and tell him he is wrong and not expect to have to explain yourself at all. You are, apparently, automatically right and have no need to back your claim up. How is that not arrogant? How is that not you suggesting that you have special access to truth which is why you merely need to say what you think and not explain it, or even cite a single example of anything I said that is wrong? How could one be more arrogant that to assume one is automatically right about something?

sweatervest June 17, 2011 at 9:36 pm

“You did the exact same thing when I explained *in detail* why rights are *not* inalienable”

Whoops that was a pretty bad typo! I meant that rights are not *alienable*!

Inquisitor June 16, 2011 at 11:56 am

“But leaving those improbabilities aside, the critical problem is if you concede an inch the lobbyists will soon occupy the entire tent. The only safe thing is an out and out clear cut prohibition on IP.”

A very important point.

David C June 16, 2011 at 1:17 pm

It depends on what they mean by “optimal”. For example, during the industrial revolution, eventually society reached a point where having a mobile and specialized work-force for the factories was far more profitable than the slave plantation system. However, before then it could be argued that many industries gained more profit from owning slaves. Of course, this doesn’t describe what it “optimal” for the slaves.

I believe there is a similar truth regarding IP. With information one can either chose the monetize the control value (like Hollywood), or the service value (like Google). As society moves into the information age, eventually the profit of companies like Google start to exceed industries like Hollywood. That creates a lot of conflicts and strain like trying to extend copyrights to infinity to monetize that control over every person.

Someday the same will happen with patent. Things like 3d printers and nanotechnology, will move creation out of the factories and into the home. At that point, the financial value that industry generates from creation services will exceed the financial value from the creation controls. My bet is that patent cartels will respond like the copyright cartels. Trying to extend patent to infinity, and monetize an endless stream of revenue from creations made in every home. My fear is that unlike copyrights, patents are more physical, invention is easier to physically control, and the violence that results from that will be more real and intrusive. IMHO, patents have a rather genocidal track record with how they limited safety devices in cars, how they limit drugs and medicine, how they controlled AIDS drugs in Africa. I don’t think they are going to end nicely.

Nathan June 16, 2011 at 1:52 pm

It would be interesting to break down “optimal” copyright and patent lengths by industry and type of media. There are some instances where copyright is clearly unnecessary. Consider the traditional newspaper–has anyone ever made a nickel by xeroxing today’s NY Times and selling it for less than the cover price? Of course not; the cost of physically reproducing an entire paper would greatly exceed the sales price. Not to mention the time it would take–you’d have to make thousands of copies in under a day, or else your copies are quite literally “yesterday’s news.”

Or how about paintings? What copyright protection does Picasso need? An original sells for millions. Even a perfectly executed copy isn’t worth more than a few hundred. The value derives from the fact that it’s a Picasso.

Or any media that’s currently given away for free–like broadcast tv or radio? It amazes me when I hear about lawsuits by the NFL against bars showing the Superbowl. It’s broadcast for free! How can you steal something that’s given away!

How about movies or books or albums, where at least 90% of all sales occur within a few months of publication? What possible value is there in ensuring a few nickels of royalties to an author’s grand children 80 years after he first published? Especially compared to the obvious costs of IP.

I could go on, but even if we accept the premise that IP protection is in some way necessary, it doesn’t stand to reason that it’s necessary in every field where it currently exists, nor that it be the same length for every type of media or invention.

Stephan Kinsella June 16, 2011 at 8:38 pm

Of course by the logic of IP it makes no sense to have a one-size fits all rule. And we don’t now–copyrgiht <> patent. and within patents, there are plant patents, which don’t last as long; and you can extend the term of patents for a few years if there is an FDA delay. But sure, it only makes sense that electrical things would have one length, and so on. But ideally it would be per-invention, which is what J. Neil Schulman proposes in his logorights idea–just have some panel of “experts” use “information theory” to figure out how long each patent should last–1.3 years for this one. 26 years for that one. and so on.

this is obviously ridiculous, since there is no objective way to figure this out, and of course, even if there were, you could not trust the state to do it right. As Levine says, “the critical problem is if you concede an inch the lobbyists will soon occupy the entire tent. The only safe thing is an out and out clear cut prohibition on IP.”

So a one-size fits-all rule makes no sense, and a tailored rule is impossible.

sweatervest June 17, 2011 at 9:01 am

“just have some panel of “experts” use “information theory” to figure out how long each patent should last”

That really is ridiculous. Information theory can tell you how many bits are required to express information (i.e. how much space lossless compression can save), not how valuable that information is or even how difficult it was to assemble the information.

Stephan Kinsella June 17, 2011 at 9:59 am

Yep. https://c4sif.org/2011/01/query-for-schulman-on-patents-and-logorights/
http://blog.mises.org/11323/kinsella-v-schulman-on-logorights-and-ip/
http://www.pulpless.com/bp21samp/logorite.html

Schulman:

I
believe the “entropic” paradigm of regarding creation as a
“calculable increase in improbability” is sound within the
context of information theory, where one discusses the “entropy”
of a signal; and, in fact, I’m told there are existing formulas,
used by the Search for Extra-Terrestrial Intelligence (SETI), to
calculate the “improbabilities” of a signal being a “natural”
occurence as opposed to being artifically generated
“information.”
…
when one speaks of the property boundaries on a logos,
one speaks of the limits of identity, the signal of which is
defined and limited by the principles of information theory, and
the content of such signal which must be defined by each use to
which the information can be put.

In discussing the identity of a logos as a signal, one
discusses its limits and boundaries in terms of the minimum
number of informational bits necessary to identify that logos as
a distinct creation, the resolution of a logos, the threshold of
predictability of that logos as against background noise, and
other criteria commonly used in dealing with information storage
and transmission.
***

One of the objections brought against copyrights and patents
can be dealt with this way: that a person being sued for
infringing on a previous copyright or patent has had the burden
of proof in demonstrating that their story or invention is a
separate and distinct creation from that which they’re accused of
infringing.

Here is precisely a case where information theory provides
answers to definitional problems that previous theories were
unable to deal with.

By using a process of correlation of the information in each
logos, one can find out precisely how much overlap exists between
them.

Only if the correlation is proven by the petitioner to be
significant enough to warrant a charge of copy infringement would
independent creation have to be established as a defense by a
respondent. If the respondent succeeds in demonstrating
independent creation, then the petitioner’s original “creation”
wasn’t inherently improbable, therefore questionable as a unique
creation–and therefore possibly not property at all–for either
of them.
***
As a strict propertarian, I would have to say that the use
of the smallest identifiable part of a logos–that is,
identifiable by an objective process such as correlation–
requires its owner’s consent.
***
But the theory of logorights as presented herein does not
treat logos as being a product of an idea: it is treated simply
in terms of information which is observable in material form.

“Information”–as a term used in information theory–does
not require that which is being dealt with as information to have
meaning or purpose; it need only perform a function. Information
is a mathematical, rather than a teleological, concept.
***
creation means the taking
of something from a state of greater probability to a state of
lesser probability.
***

Now here’s one of the many bizarre parts of this bizarre argument:

Objection Four: What about two or more people who come up
with the same invention or story independently? Who owns the
logos then?

Answer: As I’ve discussed earlier, creation means the taking
of something from a state of greater probability to a state of
lesser probability.

To the extent which a given logos of invention or story can
be produced independently more than once, to that extent the
probability is still great enough to question whether an act of
creation has been performed at all.

So if A and B both independently invent something, then it’s not an act of creation–and “therefore” not subject to “logorights.” Yet earlier he said:

let’s consider creation in thermodynamic terms as
a localized and continuing lowering of entropy.

Entropy is that universal process which takes things from a
state of greater improbabilities to a state of lesser
improbabilities–commonly thought of as the decay of order into
chaos.

Creation–the act of imposing on natural objects a logos not
naturally found–is the act of moving things from a state of
lesser improbabilities to a state of greater improbabilities.

Just b/c A and B both came up with the same idea, does not mean that it’s not creation, by this definition. So what is it, Neil?

Wildberry June 17, 2011 at 10:34 am

Stephan,

I don’t think you grok the reverse entropy concept in this statement:

creation means the taking
of something from a state of greater probability to a state of
lesser probability.

At some level of improbability, the independent invention concept is impossible. If you start from that theoretical point and work backwards, only then can you arrive at level of probility that makes independent invention plausible.

sweatervest June 17, 2011 at 11:20 am: Fundamental misapplication of probability. See my response below. There is no such thing as the “probability” that someone would invent something independently.

Wildberry June 17, 2011 at 10:53 am

Since reverse entropy requires moving something from chaos to order, it must have energy input and design principles. Humans provide that input in both inventions and literary works.

As you well know, in distinguishing copying from independent authorship in copyright controversies, probabilities are an important consideration. Copying, in an infringement case, can be proven in three ways: 1)direct evidence; 2) circumstantial evidence involving ACCESS and SIMILARITY; and 3) striking similarity.

Both 2) and 3) involve an evaluation of the probabilities of independent authorship.
Are you saying that there is just no way to make such a distinction?

Stephan Kinsella June 17, 2011 at 11:03 am: You can make distinctions, but they don’t have relevance for libertarian rights. But my question was specific. In the case of two inventions, both independent of each other–say A and B each invent the lightbulb. JNS insinuates this is evidence that there was no act of creation. Yet earlier he describes creation as “taking of something from a state of greater probability to a state of lesser probability.” A and B’s invention could be a creation in this sense. Yet he says that the fact it was independently invented implies it’s not creation. Seems like a conflict to me.
sweatervest June 17, 2011 at 11:26 am: Similarity does not prove or even suggest dependence. People have designed the exact same characters independently. It may seem “unlikely” but because you are dealing with actors that do not exhibit deterministic regularity it is impossible to speak of either a probability or a likelihood of an action. One is only expressing one’s surprise over the simultaneous creation.

Even likelihoods involving actors, like the likelihood that someone is going to win an election, can only be rigorously stated by citing past known actions, such as citing how much of the people that have already voted in an election voted which way or another. To the extent that it depends on guessing future actions or unknown past actions there is no likelihood to speak of, only the element of surprise. Unless you already know that the person saw the idea already and copied it, there is no way to ascribe a likelihood to him coming up with the idea on his own.
Wildberry June 17, 2011 at 11:37 am: @Stephan Kinsella June 17, 2011 at 11:03 am

You can make distinctions, but they don’t have relevance for libertarian rights.

If the libertarian rights you refer to are private property rights and the right of a producer to own what he produces with his own means, then I beg to differ.

Without any way to distinguish between one act of creation and another, you are right, we would be lost. But we do. I don’t know how JNS proposes doing it, but it is reasonable to suspect there is more than one approach.

For myself, I am reasonably satisfied that existing IP laws have developed a pretty workable system of determing if a given work or invention is protectable under IP law. While not perfect, perhaps, it is far from hopeless.
sweatervest June 17, 2011 at 11:45 am: “If the libertarian rights you refer to are private property rights and the right of a producer to own what he produces with his own means, then I beg to differ.”

The original author does not produce unauthorized copies. The “pirates” do that.
sweatervest June 17, 2011 at 11:46 am: “Without any way to distinguish between one act of creation and another, you are right, we would be lost. But we do”

No you do. And I have another one. And Kinsella has another, and someone else has another. Whose is the one that gets to be the law?
Stephan Kinsella June 17, 2011 at 12:21 pm: Sweatervest: “Similarity does not prove or even suggest dependence.”

And of course, I am leaving aside here the entire monstrous idea that there is something WRONG with learning from others, from emulating, copying, and competing. There is NOTHING WRONG with showing that B’s ideas or products are “based on” things he learned from A’s products or ideas. Society has gone mad to think there is something wrong with this. No offense, Dingleberry.
Wildberry June 17, 2011 at 1:47 pm: @Stephan Kinsella June 17, 2011 at 12:21 pm

There is NOTHING WRONG with showing that B’s ideas or products are “based on” things he learned from A’s products or ideas. Society has gone mad to think there is something wrong with this.

You are right to put “based on” in quotes. Is your postion so tenuous that you have to dismiss the entire definition of the subject matter of copyrights and the fair use doctrine to make it all look horrible enough?

If what you say was true, there would be no value in intellectual works, since, according to you, people are legally prevented from making any productive use of them. (eye roll)

No offense, Dingleberry.

I can’t tell if you are addressing me here, but if you are, I’m touched that you care that I might be offended by your accusatoin that I support a concept of society that thinks “there is something WRONG with learning from others, from emulating, copying, and competing.” I might be, if that is what you were actually saying.
sweatervest June 17, 2011 at 2:57 pm: “Society has gone mad to think there is something wrong with this”

This, I think, is the real core of the issue. Once one is able to shed oneself of finding a “problem” with such an action there is really no substantial reason to hold onto IP.

In arguments that have happened other places, I have successfully convinced people who started off arguing that IP is the only reason that creative works exist, to acknowledge that IP actually reduces creative output. But, they said, that doesn’t matter. Property rights don’t rely on maximizing wealth.

True enough, but then I successfully convince them that there is no such thing as ownership over an idea, what with the non-rivalry and all. But, they said, that doesn’t matter. Then we hit the loaded questions. “Do you really think it is okay for me to just download someone else’s song without his permission? Do you really think it is okay if one guy starts producing based off an invention and a big manufacturing firm starts producing those too and drives him out of business? Do you really think it is okay to use someone else’s logo?”

And of course by this point the answer is a “yes” and then there’s really nowhere to go after that. Any support for IP seems, to me, to be an outgrowth of this general feeling that a person should be able to dictate how his creation is enjoyed by the rest of society, and that it is a matter of concern that a person naturally loses such control as soon as he publishes something.

I see it in other places, and in fact I see it in kids. Little kids get upset that another kid wore the same outfit he wore yesterday, or got the same backpack, or started using the same catch phrase, and shout out a claim that comes out of kids mouths left and right: “you stole my idea!” But beyond that, people grow up and have the feeling that they have a right to control who gets to take a picture of them, or film them, or “use their likeness” or any of that (in public places). They even think they have a right to stop someone else from writing a story about them! I’ll admit I find it as bizarre as you do.

Perhaps after peoples’ privacy implied in their real property rights are violated to no end they can’t help but insist on having these sorts of “rights”. Another problem caused by the state, and here comes the state with the solution!
Stephan Kinsella June 17, 2011 at 3:32 pm: Sweatervest, your entire comment with :

And of course by this point the answer is a “yes” and then there’s really nowhere to go after that. Any support for IP seems, to me, to be an outgrowth of this general feeling that a person should be able to dictate how his creation is enjoyed by the rest of society, and that it is a matter of concern that a person naturally loses such control as soon as he publishes something.

I see it in other places, and in fact I see it in kids. Little kids get upset that another kid wore the same outfit he wore yesterday, or got the same backpack, or started using the same catch phrase, and shout out a claim that comes out of kids mouths left and right: “you stole my idea!” But beyond that, people grow up and have the feeling that they have a right to control who gets to take a picture of them, or film them, or “use their likeness” or any of that (in public places). They even think they have a right to stop someone else from writing a story about them! I’ll admit I find it as bizarre as you do.

–is just superb. Excellent. Hitting nail on head.

CUrious–how/where do you have all these debates? With friends? Co-workers? Could you elaborate?
Wildberry June 17, 2011 at 4:19 pm: Mr. Kinsella;

Can you please interpret this from Sweatervest for me?

Any support for IP seems, to me, to be an outgrowth of this general feeling that a person should be able to dictate how his creation is enjoyed by the rest of society.

If we substitute the word “creation” for “property” (which is the fundamental issue of the IP debate, i.e. if what is “created” is “property” IP = Property) then it would read like this:

“Any support for [property] seems, to me, to be an outgrowth of this general feeling that a person should be able to dictate how his [property] is enjoyed by the rest of society”

Given the concept of private property and the right of exclusive use, wouldn’t this be a libertarian truism? Any objection to the second rendition?

What nail, exactly, does this hit on the head?
sweatervest June 17, 2011 at 8:57 pm: Thanks! I’m glad you enjoyed that.

I am mostly describing the debates I have had with my dad. I have had similar debates with my brother. It seems to usually go that way on these blogs and the LvMI facebook posts as well. They are always with libertarian-leaning people.

“If we substitute the word “creation” for “property””

As I have explained before, the original author does not create unauthorized copies, the pirates do that. Also, the patent violator is the one who creates products based on the invention, not the inventor.

“Given the concept of private property and the right of exclusive use”

But the *whole point* is that exclusive use of real property is the only kind of use there is. The only reason why any owner is able to exclude use of his property is because when someone else uses it he *cannot* use it. That is completely different from the case with ideas. When someone else uses my idea it does not interfere at all with my use of that idea (unless the use is a trespass on my real property). If your use does not affect my use, what possible reason is there for me to be able to restrict use?

“Any objection to the second rendition?”

That is in no way a “second rendition” of what I said, and that is very dishonest arguing. Why not argue with the first rendition, i.e. the one I actually stated? Your statement is an entirely different one concerning an entirely different scenario.
Wildberry June 19, 2011 at 11:47 am: @Stephan Kinsella June 17, 2011 at 11:03 am

JNS insinuates this is evidence that there was no act of creation. Yet earlier he describes creation as “taking of something from a state of greater probability to a state of lesser probability.” A and B’s invention could be a creation in this sense. Yet he says that the fact it was independently invented implies it’s not creation. Seems like a conflict to me.

You seem to make a practice of missing the main point made and focusing your agruments instead upon circumstances which you create; it seems to me this is your insuation, not his. There must be a name for this kind of logical fallacy…

I will not argue from JNS’s theories, that is not my foundation. However, you have to admit he is making a valid point, which I’ve already commented on.

Two people are sitting near the Roman Coliseum in August, writing a story. They both write, simultaneously, “It was a hot day in Rome”. Under copyright law, and perhaps according to JNS, this act is not sufficient to warrant copyright protection. Why?

The answer must be based on some method of explaining why this not protected, while the story that they each complete, is. That is the distinction in question.

From my point of view, they are both theoretically acts of “creation”, but because mere ideas are not the subject matter of copyright, there must be more. And, of course there is.

One way of describing what “more” is, can be argued from a foundation of probabilities. The probability that two people, in the same place and same time, might express a similar, and even an identical “idea” is high. Therefore, the liklihood of simultaneous creation is high, so protection should be low to avoid casting the copyright protections too wide; remember ideas ARE free, and a mere “idea” is not an “expression”, and certainly not a “work”. According to you, thank goodness copyrights does not protect ALL ideas, (as you are apt to lump these three distinctions under the general concept of “ideas”)

Negative entropy, using the thermodynamic model that JNS offers, runs in a direction, from “idea”, to “expression”, to “work”; from low complexity to higher complexity. This act of “rearranging” reality runs counter to the natural tendency towards increasing entropy, or from higher to lower states of complexity, and according to the law of thermodynamics, requires inputs of energy.

As you follow the accumulation of increasing complexity, the liklihood that two independent authors would continue to produce identical stories grows less and less probable. At some level of complexity, say a 300 page novel, the probability is near zero.

Therefore, one could say that such use of probabilty analysis is a methodolgy that can be employed to determine if two independent works are in fact sufficiently similar such that one cannot plausibly exist without access to the other.

This is, as you well know, in fact the approach that copyright laws adopts in determining if a given work is protectable under infringement action, as I summarized above.

I’m sure you actually understand this, but it runs against your general argument that “ideas are free” and that “creation” is not a basis for property rights. Therefore, you find yourself in the curious position of denying the operation of the laws of thermodynamics.

sweatervest June 17, 2011 at 11:16 am

I think I just realized what the misunderstanding underlying all of this is. The probability discussed in information theory is the probability that the information received is false. For example, if I say “my birthday is on some day of the year” then that contains no information because the probability that the statement is false is zero. Saying “My birthday is in July” contains more information, and “My Birthday is July 3″ contains even more information, because the last statement is very likely to be false. Entropy is a measure of unpredictability, and as information becomes more unpredictable its content increases. This is about the unpredictability of the information (i.e. which way a coin toss will go), not the unpredictability of the bitstream, which is exactly as probable as any other bitstream.

This whole thing about the probability of a stream of bits being used to determine whether or not it is meaningful information is totally misunderstanding information theory. Information theory deals only with bitstreams that are representations of information and says nothing about random bitstreams. The probability is the probability that the information received is false, not the probability that the signal contains information.

Furthermore, information entropy has nothing to do with how different two pieces of information are. If I say “My birthday is July 3″ and then say “I tossed this 365-faced die and it landed on side 124″ then those two signals, no matter how they are represented, have exactly the same entropy, because they are both equally likely of being false.

The information entropy of a book will tell you how many bits it takes to store it on a computer. An entirely different book that has no common elements, like plot or characters, may be able to be compressed to exactly the same amount of bits and therefore have the same information entropy. This of course does not help to distinguish between the two books.

“If the respondent succeeds in demonstrating independent creation, then the petitioner’s original “creation” wasn’t inherently improbable”

And this seals it. This is absolutely wrong. The entropy of a piece of information has nothing to do with how likely it is for someone to think of it. And this is quite silly. The idea of “independent creation”, that someone thought of something without hearing it somewhere else first, is a well-understood concept. Schulman is completely redefining the concept of “creation” here to mean something patently different, i.e. it simply does not matter if you thought of something before hearing it anywhere else, you still did not “independently create it” because it would take too many bits to represent that information!?

I think I understand what Schulman is saying, and it represents a very common misapplication of probability that is precisely the content of Mises’ discussion of probability in Human Action. The “likelihood” that someone would come up with an idea himself is a matter of case probability. It has nothing to do with the expected frequency of people in an entire class coming up with that idea. That is a matter of class probability, and since the class involves actors no one could ever ascribe a probability to such a problem. There is no such thing as the frequentist probability that one actor will come up with an idea , and thus there is no way to speak of the probability that two actors will simultaneously create that idea. There are only likelihoods and those are a function of what and how much knowledge the predictor has. The entropy of the information certainly has nothing to do with either.

Information entropy is not about the improbability of a piece of information, and it gives insight into how likely it would be that many people simultaneous create it independently. Independent creation already means something.

sweatervest June 17, 2011 at 11:42 am: Correction: there are no likelihoods concerning future or unknown actions either. To speak of likelihoods or probabilities of actions is to deny the ability to act: to choose autonomously rather than being constrained by probabilistic determinism.

Wildberry June 17, 2011 at 11:23 am

@Stephan Kinsella June 16, 2011 at 8:38 pm

So a one-size fits-all rule makes no sense, and a tailored rule is impossible.

You do love the false dichotomy!

In every area of the law we tailor rules, so what is the problem with being consistent?

Let’s forget the State for just one second, since it is not necessary to the fundamental point.

Are you saying that it is impossible in general to tailor a rule to fit the circumstances of the facts?

If that was actually the case, we would have to either have one rule for homicide, or abolish the crime altogether. Oddly, we have degrees of murder and manslaughter and various defenses, etc.

So you are saying that the only way to deal with homicide is to abolish the entire principle, just to be safe? You know, to keep the politicians out of the tent?

sweatervest June 17, 2011 at 11:27 am: One again presenting positive law to support positive law. Also confusing rights transferred through contracts with the rights themselves that must exist to contract at all. Also confusing how to deal with property rights violations with how to define what is a violation and not.

REPLY
sweatervest June 17, 2011 at 11:38 am: For example, there are various degrees of murder and manslaughter, pertaining to the sentences for the crime. There are not various degrees of property rights in one’s body.

REPLY

Jamess June 16, 2011 at 5:02 pm

Assuming the totally removing patents is politically unachievable, what would happen if a patent includes a “price” that the product will be sold at (whether that official price reflects the actual price is immaterial). If anyone sells a similar product above that set price, there are no legal problems (only marketability problems if someone is selling a similar product for a more expensive price, assuming that the official “price” is the actual price).

Similarly, if someone can sell the product at significantly cheaper rate (say at less than 50% of the official price) there are no legal problems.

The offical price would automatically reduce by, say, 10% a year (to reflect refining in the manufacturing process and giving an incentive to reduce the actual price or allow competition).

This would mean that the company that invents a product has a domineering position provided they are reasonably competitive and also keep reducing costs. Politically this should be possible as you are arguing that for medicine, for instance, a patent is ineffective if another company can produce the same product for half the price.

Nuke Gray June 16, 2011 at 7:48 pm

Here’s another fun point to toss about regarding copyright- all these new medical breakthroughs seem to mean we might be able to live for hundreds of years! Will copyright become (effectively) infinite?

Daniel June 16, 2011 at 10:24 pm

You’re assuming existing copyrights aren’t and won’t stall increases in longevity

Nuke Gray June 17, 2011 at 12:18 am

YOU are confusing copyrights and patents- they are not identical!

Daniel June 17, 2011 at 4:08 am: My bad

D:

REPLY

See my post Where did the patent term come from?; also C. Michael White, “Why a Seventeen Year Patent,” J. Pat. Off. Soc’y 38, no. 12 (December 1956): 839–59, p. 841 (describing the historical basis for the seventeen-year patent term); Cato’s Simon Lester & Huan Zhu, “Rethinking the Length of Patent Terms,” American U. Int’l L. Rev. 34, no. 4 (2019): 787–806 (same); and Dale A. Nance, “Foreword: Owning Ideas,” Harv. J. L. & Pub. Pol’y 13, no. 3 (Summer 1990): 757–74, p. 760. [↩]
Michele Boldrin & David K. Levine, “Market Size and Intellectual Property Protection,” International Economic Review, Vol. 50, Issue 3, pp. 855-881 (August 2009). [↩]
Boldrin & Levine, “Market Size and Intellectual Property Protection.” [↩]
See also Jonathan Barnett, Cultivating the Genetic Commons, observing that “There is little determinative empirical evidence to settle theoretical speculation over the optimal scope and duration of patent protection.” Citing D.J. Wright, “Optimal patent breadth and length with costly imitation,” 17 Intl. J. Industrial Org. 419, 426 (1999). [↩]
An Open Letter From Jeff Bezos On The Subject Of Patents (March 2000); see also Bill Gates: Flip-Flopping IP Hypocrite; Bill Gates’ 1991 Comments on Patents. [↩]
See my article Reducing the Cost of IP Law. [↩]
See my articles and posts Patent Reform is Here! O Joy!; Prior User Rights and Patent Reform; “Reducing the Cost of IP Law“; “Radical Patent Reform Is Not on the Way.” [↩]

{ 5 comments }

Reason’s Gillespie and Welch on IP

by Stephan Kinsella on June 16, 2011

From their blog post: Ask a Libertarian: What’s Your Take on IP & Net Neutrality?.

{ 0 comments }

David Friedman on Copyright

by Stephan Kinsella on June 15, 2011

Go to about 8:00-11:09 in the video below to hear David Friedman, in a Mises Brasil lecture, talking about copyright under anarchy. He posits an anarchist society and envisions a case where a single author and single customer/consumer have a dispute about whether the author should have copyright–the author wants it, the consumer does not. Around 8:51 or so he says that if it was just two people the judge should ask, is it worth more to the consumer to have there be no copyright, or more to the author to have copyright? And whichever one it is “worth more” to, you decide in his favor–and, at 9:07, Friedman says that would be the right answer. No, it’s not, in my view. The right answer is for the judge to refuse the author’s request for a monopoly, since the judge ought to be doing justice by respecting property rights, and the grant of a monopoly is simply a way of transferring the customer’s property (say, his money) to the author, or property of competitors (their printing presses) to the author.

Later Friedman talks a lot about whether the rules chosen give the right “incentives” to authors, and so on. This is the “wealth maximization” approach popular among the “law and economics” crowd, a utilitarian approach I believe is methodologically and morally flawed. See Hoppe’s criticism of similar “Coasean” reasoning in the Chicago Diversions section of this article.

He also assumes that if there is copyright, it sets up an incentive so that authors write more books; but there is good reason to think a monetary incentive–much less the marginal monetary incentive provided by the copyright monopoly–is the main reason, or even a main reason, why many or most authors write. That is, most authors write for reasons other than just money.

I cannot recall what Friedman’s basic position on IP is, but in my view it is clear that neither copyright nor patent–which are state-granted monopolies that arose from censorship and favoritism–could arise in a free society. (To be clear, I greatly respect and like Friedman, and his Machinery of Freedom helped convert me to anarchism, but I have never liked the utilitarian, law and economics approach. Likewise with his father, Milton Friedman, whose Capitalism and Freedom was very influential to me in my early libertarian learning, though I disagree with his positivism and his approach to normative reasoning.)

I believe that a few months back I saw another part of Friedman’s talk at Mises Brasil where he talked more about IP–perhaps in Q&A?–but I cannot find it now. If anyone knows where it is, or any other salient papers or presentations by Friedman on IP, let me know and I can update this post.

Update: I critique Friedman’s law & economics “incentives” approach to property rights and the IP issue in my post Andrew Torrance: Patents and the Regress of Useful Arts.

Update:

From a reddit Ask Me Anything a few months back by David Friedman:

“The class I have taught twice on IP Theory was recorded (first time video, second only audio) and you can find the link on my web site. It’s a complicated question, and I may be the only living libertarian who doesn’t know what the right answer is.”

http://www.reddit.com/r/Anarcho_Capitalism/comments/1unmxa/david_friedmans_ama/cejx6on

Commenting on this post:

David FriedmanJuly 13, 2012 at 12:33 PM

“While libertarian-leaning political theorists such as … David Friedman … have expressed support for I.P.”

That’s an overstatement in my case. I think whether IP is a good idea is still an open question.

{ 3 comments }

Microsoft Copyrights –> Patent Dominance

by Stephan Kinsella on June 14, 2011

As reported by TechCrunch, Microsoft Fighting To Ensure Google Does Not Gain Patent Leverage, Deterrence, google is bidding for 6,000 Nortel patents. But Microsoft is objecting:

Specifically, Microsoft is objecting to Google being able to purchase the over 6,000 patents without recognizing Microsoft’s existing licensing agreements on the patents, Reuters reports. As we noted a week and a half ago, these licensing agreements were precisely why Microsoft was the one obvious bidder not competing for the patents — they didn’t think they had to. But the current terms for the winner of the auction doesn’t back up that argument. As of right now, the company that wins the bidding would be able to terminate existing agreements.Microsoft says that’s unfair. And while they don’t specifically mention Google, it seems pretty clear who they’re thinking about when they write that a termination of existing licensing agreements “would result in considerable disruption in the development and enhancement of various existing technologies and give the prospective purchaser an unfair competitive advantage”.

In other words, “we don’t want the company that we have under our patent thumb to be able to turn the tables”.

So let’s get this straight. First, Microsoft acquires a huge monopoly and billions of dollars in cash due to the unjust copyright system (which protects software). Then Microsoft uses these unjust profits to acquire and purchase thousands of patents, and to license thousands of others, so that it can further cement its dominance and use its patent portfolio against potential competitors–like Google. And now that Google wants to acquire these 6,000 patents, which it could use defensively against Microsoft to ward off an anticompetitive patent suit against the Goog by Microsoft, Microsoft is going apesh*t, because it would soooo unfair for Google to have a shield to use against Microsoft’s patent aggression. Why, it’s just not fair if your victims are armed, now, is it?

[Mises]

{ 2 comments }

Patent Cross-Licensing Creates Barriers to Entry

by Stephan Kinsella on June 14, 2011

I’ve explained before that one negative effect of the patent system is that larger companies amass large patent arsenals, enabling them to engage in cross-licensing agreements. Smaller firms are ignored because they don’t have enough patents to be a threat. The mass of patents owned by the members of this quasi-oligopoly serve as a threat to smaller firms, who are thus dissuaded from even trying to complete. Thus, the patent system helps to erect barriers to entry, and to reduce competition.¹

A recent illustration of a somewhat similar phenomenon is the recent settlement between Apple and Nokia, as noted in the MacRumours post Apple Licenses Nokia Patents, Ending Lawsuits. As the Nokia press release indicates:

Nokia announced that it has signed a patent license agreement with Apple. The agreement will result in settlement of all patent litigation between the companies, including the withdrawal by Nokia and Apple of their respective complaints to the US International Trade Commission.

(Update: MacRumours now says the settlement is estimated at being $608M plus $138M a quarter.) As MacRumours observes:

While FOSS Patents sees this as a clear win for Nokia, they also suggest it may help Apple a bit as Android manufacturers are likely to also be affected.

Nokia emerges victorious, but this is a sweet defeat for Apple because its competitors — especially those building Android-based devices — will also have to pay Nokia, and most if not all of them will likely have to pay more on a per-unit basis because they don’t bring as much intellectual property to the table as Apple definitely did.

Google’s Defensive Patent Acquisition; Ideas Are Free: The Case Against Intellectual Property; Rethinking IP. [↩]

{ 0 comments }

Apple: Patent Crybaby

by Stephan Kinsella on June 14, 2011

As a followup to Apple sues Samsung over Galaxy products, Apple, who first sued Samsung for “copying” its iOS devices, and then demanded to see samples of Samsung products, got a taste of their own medicine when Samsung, in response, requested to see Apple’s next-generation iPhone 5 and iPad 3 models, ostensibly to help it defend itself against Apple’s charges of copying and other infringement. And now, Apple calls Samsung’s request an “Attempt to Harass.” Ha ha. As Judy Tenuta once said in a routine about how the Pope would be jealous of her velvet print of a crying Elvis, “Suffah, Pope, Suffah!”

As I mentioned in Apple, iCloud, Appstore, and Trademark, you reap what you sow!

{ 2 comments }

IP is not about “ideas”!

by Stephan Kinsella on June 13, 2011

I get tired of disingenuous, slippery supporters of IP saying it’s not about protecting ideas. Come ON.

Well, here is a website put together by Microsoft, Philips and DSM — three giant companies that have relied heavily on intellectual property laws to fend off upstart competitors and disruptive innovation — called Ideas Matter – the value of intellectual property. But no, IP has nothing to do with ideas! (h/t TechDirt)

{ 0 comments }

Is the Right Leaning our Way on IP? NetRightDaily on IP

by Stephan Kinsella on June 13, 2011

Nice piece by the Editor in Chief of NetRightDaily. IP abolitionism is not only the province of Austrian Anarchists. Now some lefties and also righties are getting it….

Does government protection of intellectual property harm the free market?

Many advocates of free markets believe that a government-run system to protect intellectual property is necessary for free market capitalism to thrive. Contrary to that false belief, when government protects intellectual property using patents and copyrights, monopoly power is granted to the person that is able to purchase such government protections from competition for a fixed period of time.

Having the government protect your idea or product from competition is counter to the ideas of free market capitalism. When competition is prevented, the consumer loses and innovation grinds to a halt. The producer, due to lack of a competitive market, loses all motivation to innovate his or her product. After all, there is no one competing against them, why would they need to update their product?

Many advocates of patents, copyrights, and other protections that are offered by the government argue that such protections are necessary to prevent theft of ideas. Further, these advocates also suggest that without such protections, innovation would grind to a halt. Why? These people believe that without protections, producers would lack the motivation to innovate without protection. According to those who believe this to be true, producers would never invest the time and resources if there were a risk that ideas would be stolen before products make it to market.

However, such advocates of the government providing producers with monopoly powers in the marketplace are misinformed when they assume innovation is halted by a lack of government protections. As it was explained above, innovation is stunted during the period of time that the monopoly exists.

Historically, patents and copyrights that were allegedly used to protect intellectual property were actually used by the government as a way to honor those that were favored by the governing class. As law professor Eric E. Johnson noted in a recent article in The Freeman, “The monopolies now understood as copyrights and patents were originally created by royal decree, bestowed as a form of favoritism and control. As the power of the monarchy dwindled, these chartered monopolies were reformed, and essentially by default, they wound up in the hands of authors and inventors.”

These institutions today, even though not under the control of a monarch, are much the same. Companies use patents to prevent competition, and threaten to sue anyone who happens to independently develop products or techniques that are similar to the product that a company has a patent on. Such a system doesn’t sound terribly free market after all, does it?

While many believe that the government protection of intellectual property is one of the cornerstones of a free-market capitalist economy, granting a company monopoly privilege over production flies straight in the face of such a system.

Advocates of free-market capitalism should want to see companies compete. When markets have no barriers to entry and exit, innovation is a must for companies to survive. But when monopoly protection for an idea or a product can be purchased from the government, the free-market system is stifled, and consumers are robbed of the fair prices set by competitive markets and the better products that they would have otherwise had.

Adam Bitely is the Editor-in-Chief of NetRightDaily.com. You can follow him on Twitter at @AdamBitely.

{ 0 comments }

Copyright and the Orphan Works Problem vs. Scholarship:

by Stephan Kinsella on June 13, 2011

As reported at the Chronicle of Higher Education, Out of Fear, Colleges Lock Books and Images Away From Scholars (h/t Alan Chapman):

A library of 8.7 million digital volumes. A trove of 100,000 ocean-science photos. An archive of 57,000 Mexican-music recordings.

A common problem bedevils those different university collections. Wide online access is curtailed, in part because they contain “orphan works,” whose copyright owners can’t be found. And the institutions that hold the collections—a consortium of major research libraries and the University of California campuses at San Diego and Los Angeles—must deal with legal uncertainty in deciding how to share the works. A university that goes too far could end up facing a copyright-infringement lawsuit.

Many colleges now have the ability to digitize a wide variety of collections for broad use but frequently back away. And that reluctance harms scholarship, because researchers end up not using valuable documents if they can’t afford to fly to a distant archive to see them.

Read more>>

Thanks, IP advocates!

Update: See Mike Masnick’s perceptive comments on this at How Out Of Control Copyright Law Is Keeping Millions Of Books & Images Away From Scholars.

{ 2 comments }

Antitrust vs. Trademark Law

by Stephan Kinsella on June 13, 2011

Price Controls, Antitrust, and Patents (July 2011)
Antitrust vs. Trademark Law (June 2011)
The Schizo Feds: Patent Monopolies and the FTC (Aug. 2006)
IP vs. Antitrust (Sept. 2005)
The Microsoft-Apple Gesture Oligopoly
Controls breed controls, Monopolies breed monopolies

As I have discussed elsewhere (State Antitrust (anti-monopoly) law versus state IP (pro-monopoly) law), the state grants monopolies (patents and copyright) then penalizes companies for using (“abusing”) them, in contravention of state antitrust law–so that there is a “tension” between these state laws.

And now here’s an example of a similar tension between trademark–another state granted monopoly–and antitrust law: Dechert Attorneys Representing Clients in Possible Apparel Licensing Matter with NCAA Colleges, where lawyers demand colleges stop enforcing trademark rights–or face antitrust action (h/t Skip Oliva).

Yet another demonstration that state IP is of course a grant of monopoly (see “Are Patents “Monopolies”?“).

{ 11 comments }

The Evil of Patenting Food and Seeds

by Stephan Kinsella on June 13, 2011

From the Mises blog; archived comments below.

The Evil of Patenting Food and Seeds

06/13/2011 Stephan Kinsella

From Don’t Save Your (Patented) Seed:

As reported on the Patent Baristas blog: “To paraphrase Ronald Reagan, “Well, There You Go Again!” The Court of Appeals for the Federal Circuit again affirmed that, while the practice of savings seeds after a harvest to plant the next season is as old as farming itself, you can’t save patented seeds.”

From The Patent, Copyright, Trademark, and Trade Secret Horror Files:

Farmer David Reaps What He Has Sown: A Patent Suit, Patent Baristas (Feb. 13, 2008) Even though “the practice of saving seeds after a harvest to plant the next season is as old as farming itself,” patents prevent farmers from saving patented seeds.

In the case Monsanto Canada Inc. v. Schmeiser, the Canadian Supreme Court ruled that growing genetically modified plants constitutes a “use” of the patented invention of genetically modified plant cells. In this case, a farmer had his canola contaminated with RoundUp Ready canola. He saved the canola and used it for next year but then Monsanto went after him and the farmer ended up having to destroy all his seeds.

Naturally, Monsanto is opposed to patent reform that might reduce the damage patents do (Monsanto v. Google on Patent Reform).

See also Carson: Intellectual Property is Murder; and Paolo Bacigalupi’s “The Calorie Man” and Patents, where Geoffrey Allan Plauché explains, of “The Calorie Man” by Paolo Bacigalupi, as, in his Prometheus Unbound review:

This is what makes the story particularly interesting to libertarians. “The Calorie Man” is, at least implicitly, anti-IP. Intellectual property, specifically here in the form of gene patents on crops, is depicted as illegitimate and harmful. The protagonists generally show no qualms with violating the intellectual “property” of Big Ag and thwarting the IP police. Yes, there are dedicated IP police, a particularly insidious scourge we can probably expect in our own near future.”

See also my LRC post Re: No Freedom of Food.

Update: This post, Organic Farmers Sue, Seek Protection From Monsanto, provides more information about Monsanto’s outrageous use of patents: “… Monsanto has filed scores of lawsuits and won judgments against farmers they claimed made use of their seed without paying required royalties. Many farmers have claimed that their fields were inadvertently contaminated without their knowledge, and the issue has been a topic of concern for not only farmers, but also companies that clean and handle seed.” Now, some of them are suing Monsanto: “This case asks whether Monsanto has the right to sue organic farmers for patent infringement if Monsanto’s genetically modified seed should land on their property…” Let’s hope they win.

[Mises]

archived comments:

{ 116 comments… read them below or add one }

nate-m June 13, 2011 at 9:40 am

This is monstrous.

Stefano June 13, 2011 at 3:47 pm

It was Monsanto that convinced me of the absurdity of IP. Because patenting a GMO soybean is every bit as legitimate as patenting a book, if not more so.

I mean, if you can patent a floor cleaning product, than surely you can patent the idea to put bacteria dna in corn, right?

nate-m June 13, 2011 at 6:25 pm: Patents are completely and utterly arbitrary. What is and what is not patentable is almost random… just based on whatever sounded good at the time.

This is one more reason why anybody complaining about IP being a right on par with property rights is just either utterly deluded or just intellectually bankrupt.

REPLY

Rudd-O June 13, 2011 at 4:54 pm

The endgame of all this?

Neofeudalism, one industry at a time.

Wildberry June 13, 2011 at 4:55 pm

This is an interesting problem, and I wouldn’t want to judge it without all the facts, but…I would caution against a blanket condemnation of plant patents.

It’s been awhile since I read about this, but I seem to recall that one of the facts in this case was that the farmer actually applied roundup to his crop to select out the genetically resistant seed, with the intent of using the benefits of the altered seed without having to pay the market price for it.

If that was the case, then what is the moral justification for the farmer’s actions? If on the other hand, there is no way to cost-effectively prevent contamination, requiring the farmer to destroy seed he would otherwise gather and use, this is not justifiable either.

Much like drug patents, R&D costs money, and without a return (assuming benefits create market demand), no profit seeking enterprise would invest in that R&D.

Much has been said here about using principles to sort this type of difficult problem out. What are the principles operating here? On the one hand, Monsanto has an economic interest in the product development investment, while farmers have a right to not to have his actions on his own property limited by circumstances he cannot control (i.e. “invasion” by a protected plant seed).

To swing property rules too favorably towards the farmer would be to allow free-riding on the benefits of Monsanto’s work and investment; too far towards Monsanto, and as their crop continues to invade non-patented crops, they would end up owning soybeans. Monsanto does not own soybeans, they own the particular genetic strain they developed.

This is not unlike the competing objectives of copyrights; disclosure and incentivizing production. Authors don’t own ideas any more than letters of the alphabet, but they do own their own original works. We want drug companies and plant scientists to improve their products, and in theory a free market will handle competition. Patents do not limit competition any more than my exclusive use of my property limits your ability to compete with me with your own property.

The principle in common to both situations is that free markets with strong private property rules, including IP, insure that a producer benefits from production from his own private means, while protecting the freedom of the public domain.

Exactly where the line between competing property boundaries are drawn is a matter of principle, facts, discretion and judgment. Unlike some, I believe we are capable of such things.

nate-m June 13, 2011 at 6:54 pm

This is an interesting problem, and I wouldn’t want to judge it without all the facts, but…I would caution against a blanket condemnation of plant patents.

Well yeah, according to you every time somebody uses the patent system as it’s designed has to be carefully excluded from the evidence that patents are nothing more then arbitrary monopolies grants bought and paid for from our state government.

If that was the case,

From what I can gather from the article the farmer purchased seed in 1999. He purchased a larger amount of seed in 2003 and also purchased Monsanto’s chemicals in 2003.

Apparently Monsanto says that he saved the seed from 1999 and use the 2003 chemical purchase on it and that the seeds he bought in 2003 were purchased after he planted the his seeds for that year.

If on the other hand, there is no way to cost-effectively prevent contamination,

It’s going to be virtually impossible to prevent ‘contamination’. He would have to torch his entire farm to prevent the remnants from one year’s crop from mixing with the next. These are plants. They reproduce naturally by insects and breezes.

requiring the farmer to destroy seed he would otherwise gather and use, this is not justifiable either.

Quite.

Much like drug patents, R&D costs money, and without a return (assuming benefits create market demand), no profit seeking enterprise would invest in that R&D.

People have made plenty of money for tens of thousands of years doing agricultural research without patents. I don’t see why they are needed now.

Exactly where the line between competing property boundaries are drawn is a matter of principle, facts, discretion and judgment. Unlike some, I believe we are capable of such things.

Exactly. That’s why patents need to be abolished because by all principles, facts, and proper judgement they are not only destructive to individual’s rights, but entirely counter productive. They retard progress and hurt the economy.

I am glad we finally came to some agreement on the subject.

Dagnytg June 14, 2011 at 4:19 am

Wildberry,

To be honest, I’m surprised even proponents of IP can support the position of Monsanto.

But the thing I like about the IP position (which, by the way, you exemplify) is that one has to be extremely pragmatic to defend it. It requires incredible amounts of rationalization on so many levels and in the end… demands one to accept the complexity of contradiction.

To read your comment is to understand what I’m saying.

Stephan Kinsella June 14, 2011 at 6:55 am: Yes, defending IP has turned Wildberry into a walking reductio ad absurdem.

REPLY

White Indian June 13, 2011 at 8:06 pm

Agriculture has been crushing traditional peoples since the first Sumerian empire, monopolizing the Land with abstract property rights (the first government en-Title-ment program.)

Now they’re “making improvements” upon Life itself, “mixing their labor” with the genetic code and creating more property rights upon earth’s resources.

There is going to be another Trail of Tears.

Nonoy Oplas June 14, 2011 at 1:32 am

I feel that the arguments by the author are rather shallow. Take the case of rice seeds, IRRI alone has 112,000+ different rice seed varieties; various national governments rice research institutes, academic institutes, private corporations and research institutes, also have their own rice genebank. Who now has the monopoly of important seeds? Was anyone disallowed or disenfranchised from developing or inventing a new rice variety? My longer discussion here, http://funwithgovernment.blogspot.com/2011/06/on-intellectual-property-abolition-part_14.html.

If free marketers hate private ownership of inventions, if they want more socialized, more collective, more communal ownership of inventions, I think that position is closer to socialism.

Andrew (from Russia) June 14, 2011 at 2:18 am

“If free marketers hate private ownership of inventions, if they want more socialized, more collective, more communal ownership of inventions, I think that position is closer to socialism.”

They want no “ownership” at all. One doesn’t render IPRs “communal” by rendering them nonexistent, just like one doesn’t render slavery “collective” by abolishing private ownership of slaves. With IPRs gone, physical property rights expand naturally to fill the void – just like self-ownership takes over ownership by one’s master.

On your expanded post, the notion of “additional incentive” smacks of interventionism. Acknowledging that incentives exist is OK, trying to manage them is another story.

Nonoy Oplas June 14, 2011 at 2:24 am

Hmmm, some guys make a full time or lifetime career of producing ideas. They produce not a single physical property, only ideas. Like song composers, book and magazine authors, molecular biologists and chemicsts, etc. Unlike carpenters who produce chairs and houses, farmers who produce food, engineers who produce cars and laptops, the earlier group produce only ideas, and they cannot own their own discoveries and invention. Weird.

pravin June 14, 2011 at 6:51 am

how many of their ideas are truly built from nothing?out of thin air? .none.
einstein used mathematical tools that were developed .he refined them further and added his out of the box thinking.should he have paid royalties for using calculus?
no idea -none at all are truly original.humankind continuously invents newer stuff and newer ideas -all based on some previous idea.we can reduce this to absurdity by saying that some chinese or indian mathematician should get a money anytime you use zero or negative numbers.monopoly over ideas is possible only thru force.

Nonoy Oplas June 14, 2011 at 9:36 am: It’s the first time I’ve heard that mathematical formulas are patentable and thus, should be opposed. Not a single pro-IP guys that I know advocate patenting mathematical formulas.

REPLY

Shay June 14, 2011 at 9:08 am

The carpenter who produces chairs and houses for others out of materials they provide, the farmer who produces food as hired help on someone else’s farm, the engineers (factory workers?) who produce cars and laptops, etc. do not own what they produce, since it’s made using materials not owned by them; they are paid for their labor. Only if they own the material inputs do they own the outputs. So your “weird” is misplaced.

nate-m June 14, 2011 at 2:19 am

If free marketers hate private ownership of inventions, if they want more socialized, more collective, more communal ownership of inventions, I think that position is closer to socialism.

Yes, that’s right People that champion freedom, capitalistic forces, wealth, real money and open markets are the socialists while those people that want to restrict markets and think the use of state government enforced monopolies is the key to human creativity and profits are the ones that are the capitalists.

Better markets through regulations, taxes, restrictions, and the use of force. That is the future of capitalism.

Nonoy Oplas June 14, 2011 at 2:30 am

Bright ideas are scarce, idiotic ideas are not, they abound. One proof is that governments anywhere keep expanding. Some idiots say they have invented a coffee that can cure all sorts of cancer, all sorts of heart diseases, and their coffee discovery is free for all humanity to enjoy. This is an example why bright ideas should be protected and rewarded, to separate them from idiotic ideas.

Dagnytg June 14, 2011 at 3:16 am

Nonoy Oplas,

I think you’re missing the point of the article.

The author is only pointing out the ridiculousness of suing a farmer for using seeds produced from his harvest.

If the harvest is a by product of the GMO seeds, shouldn’t the farmer pay royalties on his harvest?

If not, then why does he have to pay royalties for the seeds produced from the harvest? You can’t have it both ways.

To say I can’t use the seeds from the harvest is to say I don’t have property rights to my harvest.

Nonoy…is that what you believe?

Bottom line: Either I own my harvest and the rights to do what I want with it…or I don’t.

Nonoy Oplas June 14, 2011 at 3:37 am: Thanks Dagnytg. The author has generalized the discussion that’s why the title is “The evil of patenting food and seeds.” And the reason why I posted my article is because I showed that in rice alone, 112,000+ rice varieties, mostly product of biotechnology and currently or previously patented seeds, The lesson is that plant patents resulted in an explosion of innovation and competition of tens of thousands of new seeds.

The way plant patent is implemented in the West, based on the articles referenced by the blog author, seems to be different from the experience in poorer countries like the Philippines. Here, patented seeds are not repeated for replanting not because of IPR and legal issues, but because the productivity of “recycled” seeds are lower compared to the original seeds. And if farmers think that the price of one biotech or seed company is too high, farmers have the choice of getting the seeds of another biotech or seed company, or use the old, off-patent seeds. There are lot of choices among patented seeds, among off-patent seeds.

REPLY

Stephan Kinsella June 14, 2011 at 6:49 am

Don’t you know, your fellow IP socialists, Wildberry et al., will explain to you that despite what you say here, IP does not protect “ideas.” Or something.

BTW funny you criticize the growth of government while you defend a government monopoly granting program.

Nonoy Oplas June 14, 2011 at 9:13 am

I have debated with a number of socialists here in the Philippines, and they say the same thing as you do — abolish IPR; patients over patents. I have also argued in earlier comments that IPR may be granted by private, industry association, so it’s not who grants IPR that is the main issue but whether it should be instituted to advance property rights and free market. Besides, government also grants monopoly rights to physical properties like land, house and car. Why not attack it as well.

Colin Phillips June 14, 2011 at 9:53 am: Because actual property rights would continue to exist in the absence of state force, and imaginary property rights would not.
White Indian June 14, 2011 at 2:36 pm: | “Because actual property rights would continue to exist in the absence of state force…”

When have Landed property rights for agriculture in an agricultural civilization (which is defined anthropologically as settlements of 5000+) ever existed without coercion?

I don’t think they ever have, in spite of Freedman’s anarchic examples of outlier societies (Iceland) or smaller chiefdoms that don’t really really reach the scale of civilization, but if you know of an example, I’d appreciate your input.

Wildberry June 14, 2011 at 1:43 pm

@ Stephan Kinsella June 14, 2011 at 6:49 am

I love the fact that both sides are calling the other socialists. Seems like we should be able to sort that out…

Ah, Stephan, I don’t think Monsanto patented an idea, do you? I think they patented a genetically altered strain of soybean. I have an idea for a new fuel. Can I patent that?

Funny how it IS possible to criticize the growth of government while defending the government monopoly granting system (aka private property).

What do you call a person who is opposed to the concept of private property?

I guess that settles the issue. Thanks for clearing that up.

Dagnytg June 14, 2011 at 3:05 pm: Wildberry,

Funny how it IS possible to criticize the growth of government while defending the government monopoly granting system (aka private property).

You miss the point…again. Libertarians don’t believe in property rights because they are granted by the government.

In simple terms:
We believe in property rights because they are defendable. I don’t need a government to defend my property. I only need a gun, dogs, security system, guards, fence, neighbors etc. to do so.

In essence, this is what divides the two camps. To enforce IP rights I need to have a convoluted and subjective legal system backed by government in order to enforce compliance.

IP requires enforcement and thus aggression to protect it.

Private property requires no aggression to protect it.
Wildberry June 14, 2011 at 5:23 pm: @Dagnytg June 14, 2011 at 3:05 pm

You miss the point…again.

A voice of reason?

Libertarians don’t believe in property rights because they are granted by the government.

I do not believe in property rights because they are granted by the government. Can I be a Libertarian, now?

In simple terms:

Thank you. I’m a simple man.

We believe in property rights because they are defendable.

I believe in property rights because they are defendable. How about now?

I don’t need a government to defend my property. I only need a gun, dogs, security system, guards, fence, neighbors etc. to do so.

I don’t need a government to defend my property. It is only when you are unwilling to observe my property rights that I can enlist the force of coercion to defend myself and my property. The form of that coercion is a “technical issue”, in SK’s words. Guns, dogs, friends, PDAs, police, Army, United Nations, whatever is available to me. I like my stuff.

In essence, this is what divides the two camps. To enforce IP rights I need to have a convoluted and subjective legal system backed by government in order to enforce compliance.

Not really. I buy books all the time, and not once have I be sued by an author, or been followed out of the book store by an IP Nazi. I’ve grown vegetables, too, and Monsanto never knocked on my door, or pulled a gun.

IP requires enforcement and thus aggression to protect it.

You seem to believe that IP is only an aggressive device to accomplish some a priori goal, like censorship, as Sweatervest claimed. Nonsense.

You only need coercion when a party is unwilling to cooperate with established principles of property rights. As someone as smart as you no doubt knows, aggression is a function of a priori rights. What would be aggression in one case is defense in another. The existence of rights prior to the act is what distinguishes one from the other.

Private property requires no aggression to protect it.

All rights require enforcement rights, as you said yourself just a few sentences before.

Why you single out IP as some special case is beyond me. Let’s assume it is an honest mistake, because you have been so propagandized by the rhetoric here that you temporarily lost your way.

IP, like all property rights, is not a right unless it can be defended. Freedom loving people establish universal rights, and then neutralize the “might makes right” proposition with universal, neutral enforcement rights and legal principles.

In a civilized society, it doesn’t matter if you have more guns than me. That is a great equalizer, like Smith and Wesson, for property rights and peaceful resolution of conflicts. That is the theory. The fact that it doesn’t work ideally in every instance is just an unfortunate fact of life; men are not angles.
Nonoy Oplas June 14, 2011 at 7:55 pm: Wildberry June 14, 2011 at 1:43 pm
I love the fact that both sides are calling the other socialists. Seems like we should be able to sort that out…

hahaha, funny right. But as I said earlier, in my debates with socialists here in the Philippines, real socialists who advocate central planning, dictatorship of the proletariat, state ownership of factories, land, buildings and other means of production, ALL of them, no exception, call for tweaking if not abolition of IPR. I have not seen any socialist who say “halleluiah or strictly protect IPR”. So I guess that’s one indicator of what side of the argument is closer to socialism.

And btway, Stephan said “your fellow IP socialists, Wildberry et al.,.”
Dagnytg June 15, 2011 at 3:59 am: You only need coercion when a party is unwilling to cooperate with established principles of property rights.

I don’t need to restrain or dominate by force (coerce) someone when they are unwilling to cooperate. To do so is violate their property. How can I possibly stand for property rights while violating (through the use of coercion) someone else’s property? (This is essentially what IP ends up doing.)

As someone as smart as you no doubt knows, aggression is a function of a priori rights.

I’m not very smart…the only thing I know to be a priori is human action-man acts. I am unaware of any rights being a priori and fail to see how aggression is a function of rights. Regardless, libertarian ethics demands non-aggression as a way of upholding property rights.

What would be aggression in one case is defense in another.

I will restate what I said at the top of this comment. To aggress against someone is to violate their property. To defend my property does not require me to violate someone else’s property.

All rights require enforcement rights, as you said yourself just a few sentences before.

First, I never said any such thing. (It’s a figment of your imagination.) I made a very simple observation. (It was devoid of ethics, morality, or praxeology – “simple terms”) It was in response to your statement:

…government monopoly granting system (aka private property). Your words not mine.

I made a very simple observation: What grants me a right to my property is that I can protect it…defend it through the use of non-aggression.

IP cannot make that same claim.

Wildberry…the distinction is simple. No need to use up so much white space in an attempt to write over it.
White Indian June 15, 2011 at 5:11 am: | “I don’t need a government to defend my property. I only need a gun, dogs, security system, guards, fence, neighbors etc. to do so.”

Incorrect. That is a fantasy world of Libertarian novels.

It reveals a total ignorance of what property rights mean. Agriculture requires extensive rights to irrigation, drainage, etc.

I happen to own acreage myself, and I pay taxes, and have drainage land rights that extend for many dozens of miles (all the way to Lake Erie) and I pay taxes on drainage projects far from my land.

Ignorant people like you, who have an idea of their “property” similar to yours, got in a spat recently, which made the local news, with a farmer.

There is a 24″ drainage tile that drains the farmer’s land. It runs under several city-slicker McMansion lots. The tile isn’t working. The farmer requested the tile be fixed. The McMansion owners are all upset, because their pretty little Monsanto yards are going to be ruined by backhoes.

They’re in an uproar. They really think their property rights are being violated. They’ve protested at the county meeting.

But the farmer’s property rights, established by government, enforced by government, reign supreme, and they’re getting their manicured laws dug up anyway.

That takes government to resolve complex disputes like that.

Unless you want to entertain gun play with the farmer and his friends over that 12″ drainage tile. Think about that. Them boys eat baling wire for dessert.
Jay Lakner June 15, 2011 at 6:16 am: lol who is this White Indian guy?

I find it highly amusing when ignorant people accuse others of being ignorant.

He seems to have overlooked the fact that property rights are the natural result of scarcity. And by scarcity I mean the fact that it is impossible to simultaneously alter the momentum of a chunk of matter in two different ways.

Property rights are therefore a method of determining who may alter an object at any given moment in time. They come in many different forms:
– Might makes right,
– Dictator decides,
– The “mob” decides,
– Lockean Homesteading,
– Other, irregular, systems.

Apparently, according to White Indian, only the second and third on the list are valid and we are all ignorant for believing that any of the others are possible.

So shame on all you ignorant people who develop a fundamental grasp of property rights, then consider each possible system, rule out the illogical ones (Mises calculation argument ftw!), and decide that Lockean Homesteading is the only viable possiblilty. To engage in such a rational and logical thought process is clearly ignorant!
Gil June 15, 2011 at 6:32 am: Under Libertarian laws the farmers have to get the tile fixed underground somehow or find the money to compensate the unpleasantness of having lawns ripped up.
Jay Lakner June 15, 2011 at 6:45 am: If ownership of the land had of originally been negotiated in a free society, then I can’t imagine that such a situation is likely to occur in the first place. I’m sure all sorts of agreements would have been made with the surrounding land owners prior to and during the purchase of the land in question. You certainly don’t need “government” to be able to handle this scenario.
White Indian June 15, 2011 at 6:59 am: | “He seems to have overlooked the fact that property rights are the natural result of scarcity.”

You are overlooking the fact that scarcity isn’t natural. Abundance is natural.

“The first European colonists to come to the Americas noted skies turned black by flocks of birds, and rivers so full of fish you could catch them with your bare hands. Our ancestors – the ancestors of some of us, that is – knew. When Europeans first arrived on the land that would eventually become the United States they found a land truly blessed by the divine. Their accounts speak of an abundance few would recognize today. On the East Coast, birds, including now-extinct species such as the great auk, could be found in “number so great as to be uncountable,” as one contemporary wrote. Passenger pigeons flew in flocks of billions, darkening the sky for days at a time as they passed overhead. Eskimo curlews, puffins, teals, plovers and more could be found in numbers genuinely unthinkable today. And that’s just to speak of the East Coast, and just to speak of birds. Writing from the Pacific Northwest in the 17th century, Nicolas Denys noted that “so large a quantity of salmon enter[ed] the river [that] at night one [was] unable to sleep.” Elsewhere cod were “so thick by the shore that [one] could hardly have been able to row a boat through them.” In 1620, the crew of the Mayflower noted “every day saw whales plying hard by us; of which, in that place, if we had instruments and means to take them we might have made a very rich return.” Tens of millions of buffalo dwelt on all corners of the continent, as did wolves and great cats. Such mind-blowing abundance was the accumulated gift of hundreds, if not thousands, of generations, each one living to give back more than they took.”

Source: “The Savages are Truly Noble”
by Jason Godesky
http://rewild.info/anthropik/2007/05/the-savages-are-truly-noble/index.html

But you are correct, property rights are associated with economic systems based on scarcity – the artificially induced scarcity of agriculture.

“Famines are characteristic of agriculture, not foragers…we know of no foraging group to have ever faced such conditions, archaeological evidence for widespread malnutrition before the rise of agriculture is generally lacking, and even a desert like the Kalahari can be abundant for a forager…”

Source: Thesis #10: Emergent elites led the Agricultural Revolution.
by Jason Godesky
http://rewild.info/anthropik/thirty/index.html

Scarcity is profitable, for a few, nobody will deny that.
White Indian June 15, 2011 at 7:12 am: Gil said: “Under Libertarian laws the farmers have to get the tile fixed underground somehow…”

“Somehow” means tearing up the old tile under the McMansion lawns.

Note: somehow is quite the constant libertarian theme. Somehow we’ll figure it out in our next Libertarian novel about the moon.

Guess what? “Somehow” doesn’t get water drained off 5 acres of corn that took $400/acre to plant.

Digging up tile gets it done.

“…or find the money to compensate the unpleasantness of having lawns ripped up.”

Drainage is a farmer’s property right, according to the laws of the State of Ohio. He’s not going to compensate anybody for exercising that property right by requesting the county to install a new tile.
Wildberry June 15, 2011 at 11:14 am: @ Jay Lakner June 15, 2011 at 6:45 am

This is a fallacy. You seem to believe in the infallability of prior negotiation. Anyone who has ever actaully negotiated a contract understands that there is no way to pre-negotiate every possible contengency in a contract in advance.

It is naive to hold that a contract between two people can be comprehensive enough to cover all contengencies, and not depend on any legal principles outside of the four corners of the document.

Also, no small matter is the transaction cost of attempting to do so over every transaction that occurs in an economy like ours. Have you taken transaction costs into consideration.

Land contracts depend on principles of existing property law. It is not necessary to define what an easement is from scratch, only to provide the specific details of the transaction.

I think you have an unrealistic idea of how property would operate in a “free society”. Free societies are also free to establish legal institutions that reduce the transaction costs of doing business. What’s “unfree” about that?
Jay Lakner June 16, 2011 at 12:00 am: White Indian wrote:

You are overlooking the fact that scarcity isn’t natural. Abundance is natural.

Ok so it turns out that you’re not ignorant… You’re just plain stupid!

Did I not say?:

And by scarcity I mean the fact that it is impossible to simultaneously alter the momentum of a chunk of matter in two different ways

I guess there is no point engaging White Indian in futher debate.
Jay Lakner June 16, 2011 at 12:18 am: Wildberry …

Here you are trying to pass off the major matter of drainage as just some small contingency.

I’m not actually surprised that you would try to make such a silly argument … I’ve dealt with you before.

You’re the freak who denied that the Universe is fundamentally made up of a bunch of tangible materials in different geometric configurations.

I remember coming to the conclusion that you, Wildberry, are a faker. You pretend to understand the subject so you can spew voluminous amounts of intellectual-sounding garbage on this site. Why? Who knows? Who cares? Regardless of the reason, I have very little time for fakers.
Gil June 16, 2011 at 6:40 am: To White Indian:

I said under “Libertarian law” not “Ohio State law”. Libertarians would say that property owners can tunnel under others’ properties providing it doesn’t cause property damage. On the other hand, if repairing the pipe means interfering with others properties then the farmer need the permission and will probably have to pay compensation for the damages incurred.

Shay June 14, 2011 at 9:15 am

This is an example why bright ideas should be protected and rewarded, to separate them from idiotic ideas.

First off, “protection” of bright ideas is a euphemism for restricting their application, which reduces their utility from potentially infinite to finite. I don’t think anyone on this site wants there to be an end to bright ideas. The objection is to violating physical property rights in trying to encourage ideas. Many here believe that ending this violation wouldn’t end bright ideas, that IP is just an underhanded excuse for reducing competition.

Nonoy Oplas June 14, 2011 at 9:57 am

Protection of bright ideas is to encourage more people to become more innovative, more inventive and creative. I repeatedly argued the case of patenting rice seeds — it encouraged the discovery and invention of more revolutionary rice varieties, 112,000+ in the IRRI genebank alone. IPR blasted the gate towards more innovation, more competition, rice farmers, big or small, can choose from thousands and thousands of different rice varieties.

Drigan June 14, 2011 at 12:00 pm: There’s just no way that there were 112,000+ “revolutionary” rice varieties. Clearly that’s a problem with patenting because no farmer can even verify that they don’t have one of those varieties present in their own rice.

Nonoy Oplas June 14, 2011 at 10:14 am

Reply to Colin: An idiot will say, “I invented a drug that can cure all types of cancer, all types of cholesterol problems, all types of heart problems.” A real scientist will say, “I pursued PhD, post-doctoral and other academic training and I finally invented a drug that can cure only one type of cancer.” For the anti-IP guys, both cases do not deserve any IPR protection, the distinction between an idiotic idea and a bright idea is non accepted.

Colin Phillips June 14, 2011 at 11:05 am: Yes, Nonoy, we’ve already dealt with this.
Firstly, patents aren’t a guarantee of effectiveness.
Secondly, which of the two pharmacists would you visit – someone who claims to have done something, but has no external third party to verify their claim, or someone who gets independent testing?

Obviously, with or without patents, you and I are going to go for the option that actually has a chance. some people will go for the homeopathy option, sure, and that’s their right to be foolish. So what?

The only thing patents have achieved in your scenario is that they make the medicines more expensive by granting a monopoly.

The fact that you can differentiate a clever (in your opinion) idea from a stupid (in your opinion) idea does not at all change the fact that they are both ideas -> non-rivalrous, non-property. Even stupid ideas should not be artificially restricted by means of monopolies.
Peter Surda June 14, 2011 at 11:27 am: Nonoy,

how you come to such unlikely conclusions is baffling me. Why should a smart guy have different (more) rights than a stupid guy? It’s a total non-sequitur. If you are unable to distinguish between a smart guy and a stupid guy without a law telling you which is which, then how can you make a reasonable judgement in any other human endeavour?
Nonoy Oplas June 14, 2011 at 8:03 pm: Drigan June 14, 2011 at 12:00 pm
There’s just no way that there were 112,000+ “revolutionary” rice varieties.

Oh my, then the Intl. Rice Research Institute (IRRI) is a liar for saying that they have more than 112,000 different rice seed varieties in their genebank. Majority of those seeds are now off-patent as the early rice seeds, high yielding varieties (HYVs) produced via biotech were invented I think, in the late 60s to 70s, like IR-64.
Nonoy Oplas June 15, 2011 at 9:38 am: Peter Surda June 14, 2011 at 11:27 am
“Why should a smart guy have different (more) rights than a stupid guy? ”

I wrote above, “For the anti-IP guys, both cases do not deserve any IPR protection, the distinction between an idiotic idea and a bright idea is not accepted.”
So I was referring to a bright idea to be given protection if the inventor of that idea so desires. Idiotic ideas do not need protection because sensible people will not buy idiotic ideas, like the idea that 1 drug can cure all types of cancer, all types of cholesterol and heart problems.
Peter Surda June 15, 2011 at 10:34 am: Nonoy,

you avoided the issue. You fashion yourself as a champion of free markets, and simultaneously defend the concept of rights being derived from “brightness” of the right carriers. These two views are contradictory. You cannot have free markets and two classes of property right carriers. Furthermore, the reasoning is backwards. The only way to determine whether an idea is beneficial is a posteriori, after people express the desire to use it or ignore it, which would make the concept retroactive.
Nonoy Oplas June 16, 2011 at 7:47 am: Peter Surda June 15, 2011 at 10:34 am
“You fashion yourself as a champion of free markets, and simultaneously defend the concept of rights being derived from “brightness” of the right carriers.”

Huh, In my nearly 2,000 posts in my blog, I never claimed that I am the “champion of free markets.” Where did it come from? I just as an ordinary advocate of free market, zero illusion of being a “champion.” And if we do not make a distinction between bright and idiotic ideas — like a potato variety invented by someone who says it can kill HIV, kill Alzheimer’s, kill all types of cancer, as example of the latter — then even a really useful drug or seed developed by no-nonsense scientists, will also be stripped of recognition and protection.

Andrew June 14, 2011 at 2:29 am

“Hmmm, some guys make a full time or lifetime career of producing ideas. They produce not a single physical property, only ideas.”

Don’t they have something in common with the guys that produce SERVICES?

Nonoy Oplas June 14, 2011 at 2:33 am

No. A bus driver, a restaurant waiter, a barber, produces a service, but not ideas. A molecular biologist or biochemist produces a drug molecule for a particular disease, that’s production of ideas, of a useful idea to treat and kill certain diseases. Idiots can say they have also produced a drug that can do the same with zero clinical trial. Abolish IPR and the claims of idiots and real researchers are generally the same.

Colin Phillips June 14, 2011 at 3:25 am

The key similarity you seem to have missed entirely is that, completely absent any government force, waiters and barbers manage to generate an income for themselves, even though “they produce not a single physical property, only” services. Why then should only molecular biologists get government intervention in their field to grant them a monopoly? What about all the poor waiters? Surely the government should step in and ensure that nobody competes with the restaurant business? Weird.

Nonoy Oplas June 14, 2011 at 3:48 am

It is possible that an IPR like patent can be issued by a private, industry association someday. So the debate is not much of who issues the IPR, but whether IPR should be honored or not. An IPR is a monopoly, true. But it is not an industry-wide monopoly, rather a product monopoly, I discussed here, http://funwithgovernment.blogspot.com/2011/03/ipr-and-medicines-part-8.html, the case of 101 new drugs in development, all patented, all not marketed yet, to treat prostate cancer alone. Excluded there are off-patent drugs, and patented and marketed drugs already, against prostate cancer too. Each inventor gets an IPR, and all inventors compete with each other in producing a drug for the same disease. You reward inventors for producing ideas. You cannot reward IPR to waiters, barbers, bus drivers, etc. since they produce ordinary services, not important ideas.

Seosamh June 14, 2011 at 8:25 am

I’m not sure what your subjective valuations have to do with this. This whole “ordinary” versus “important” argument is pretty weak.

That said, I genuinely hope you never need to avail yourself of the “ordinary services” of a surgical team or fire/rescue squad.

Nonoy Oplas June 14, 2011 at 9:31 am: Ok, you went to a barber shop. Did the barber discover an idea for giving you a haircut? You just want his service as a barber, you pay, that’s it. It’s different when you go to a seed research or biotech company. As a farmer or food manufacturer, you want those research companies and institutes to give you a new seed variety that is both high yielding and at the same time not so costly to cultivate so you can earn higher income.
Colin Phillips June 14, 2011 at 10:04 am: No, Nonoy, it’s not different.

You believe that one particular barber has the skills, training, and motivation to give you an excellent haircut, you go to him, you pay, you get the good, a haircut service, and you leave. Done.

You believe that one particular geneticist has the skills, training, and motivation to give you an excellent seed variety, you go to him, you pay, you get the good, a bag of seed, and you leave. Done.

Of course, if you had a contract with the barber not to style your hair in the way that he styled your hair ever again, you should abide by that contract, because you’re a fool for having signed it.
Likewise, if the farmer was foolish enough to sign a contract in which he promised to napalm his fields once a year to ensure no seeds were passed on, then he should abide by that. But in the absence of a contract to specify what the farmer may and may not do with property that he clearly purchased and owns, the seed company has no business forcing him to do anything.

Does your barber tell you what you may and may not do with your head?
Drigan June 14, 2011 at 12:04 pm: If he invents a new way to cut hair, then he needs to figure out a way to make money training people in the new technique; he shouldn’t be wasting his time cutting just a few people’s hair.

Andrew June 14, 2011 at 2:51 am

“Abolish IPR and the claims of idiots and real researchers are generally the same.”

So the focus has shifted from “ownership of production” to “truth in advertising”. It seems that absent a concise, coherent argument to hold onto, this game of whack-a-mole can be played forever.

Nonoy Oplas June 14, 2011 at 2:52 am

How in hell does “truth in advertising” came into the discussion?

Colin Phillips June 14, 2011 at 3:21 am

Did you read what you wrote?
“Idiots can say they have also produced a drug that can do the same with zero clinical trial. Abolish IPR and the claims of idiots and real researchers are generally the same.”
What were you trying to say here? Can you try to state it a bit more exactly? Until you do, it sounds like you think that absent IP, consumers are completely unable to distinguish between different things. You can’t seriously believe that.

Stephan Kinsella June 14, 2011 at 6:53 am: Yes, Colin, you are right. In fact my friend Frank Van Dun made a similar argument in defending trademarks. I replied to him here http://www.mises.org/journals/jls/18_2/18_2_3.pdf — see last few pages for a direct response to this very point.

REPLY

Nonoy Oplas June 14, 2011 at 3:55 am

What am I trying to say exactly, here: Idiots can say they have also invented a drug that can kill a particular disease even with zero clinical trial, no R&D whatsoever to test the efficacy and safety of their drug invention. Abolish IPR and the claims of idiots and real researchers who go through all clinical trials, all tests on efficacy and safety, are just the same.

Colin Phillips June 14, 2011 at 4:30 am: Nonoy Oplas,

I’m sorry, that’s just not true. The reason I don’t take medicines that have not had clinical trials proving its safety and efficacy is not because there are patents on the medicine – it’s because a proven safe useful medicine is a fundamentally different good to me than an unknown, untested medicine sold on a street corner.

That’s not a defense of patents whatsoever. Think about this: For you, personally, in your own home: In a world without patents, would you buy your medicines from shady characters on street corners? What if there were two pharmacists – one of whom sold cheap, untested medicines, and one of whom was confident enough to get an external third party auditor to stake their reputations on the fact that he only sells safe medicines. Even if the first pharmacist was much cheaper, would you really use him? I wouldn’t.

So clearly, patents are not required to test medicines.

REPLY

Nonoy Oplas June 14, 2011 at 4:53 am

Precisely Colin. A patent is sort of a certificate that the inventor of a new drug or new seed, etc. has hurdled a battery of tests for efficacy and safety. I think all generic pharma companies are satisfied with the IPR system. They spend little or nothing on inventing new drugs, going through the hassle of repeated clinical trials, of getting the risk of being sued by their patients if the drug is not effective or will produce more adverse results. The generics simply wait for the paten to expire, and they benefit from all the research work done by the innovators. In the Philippines, the biggest pharma company here is not a multinational. It’s a local generic pharma, its sales revenue is larger than the combined sales of #2, #3 and #4 companies, all innovator multinationals. What the generics want are certain flexibilities in IPR, not abolition of IPR. And the generics companies get it.

Colin Phillips June 14, 2011 at 6:30 am

Nonoy Oplas,

You’re talking about two different things – a patent doesn’t prove efficacy or safety at all, that’s called clinical testing. All a patent shows is that this inventor was the first, or the first to file, or paid the best bribe, to be granted a monopoly on that methodology. If you manage to get a patent for a new type of poison, that doesn’t mean that the poison is safe for consumption!

So no, a patent is not a certificate of efficacy and safety, it’s a certificate of monopoly.

Stephan Kinsella June 14, 2011 at 6:57 am

“A patent is sort of a certificate that the inventor of a new drug or new seed, etc. has hurdled a battery of tests for efficacy and safety.” This is completely and utterly false. You do not even understand what it is that you think you are defending. Arrogance and ignorance and statism combined: typical of IP advocates.

Nonoy Oplas June 14, 2011 at 9:22 am

Ok Colin, Stephan, I admit my mistake in equating patent as sort of “proof” of efficacy and safety. I see your point, thank you. I was thinking of a successful drug molecule, industry players say only 1 out of around 10,000 molecules they develop actually become a successful drug. So I was referring to that 1 successful drug, not to those 10,000 or so molecules that may have been applied a patent.
I haven’t heard yet of a generic pharma company advocating the abolition of IPR. Most if not all of them, understand the huge costs and long procedure to develop a successful drug. So instead of going through those long process, they just wait for the patent to expire, and make money from there by producing their own branded generics from the expired patent of a useful drug molecule. It’s ideologues who advocate the abolition of IPR.

nate-m June 14, 2011 at 10:42 am

I was thinking of a successful drug molecule, industry players say only 1 out of around 10,000 molecules they develop actually become a successful drug. So I was referring to that 1 successful drug, not to those 10,000 or so molecules that may have been applied a patent.

Yeah, but the vast majority of their expenditures is going to be due to FDA red tape and the equivalent in other countries.

The trick here is that FDA has a monopoly control over who gets access to what drug. As government beuacrates they are isolated from any sort of market pressure. If they do a good job, they get paid, if they do a bad job… they get paid the same. There is no way for us to accurately determine how well they do because there is nothing we can compare them against.

FDA, being a political organization first, is risk adverse. If a person who is dying from cancer gets access to a drug that FDA screened and they die from a side effect of that drug… then the FDA gets blamed. If this happens to much then there will be political fall out.

However if that same person dies from cancer because he was not allowed access to that drug due to extended requirements for clinical testing… then it’s cancer that gets blamed.

So government entities that are in charge of deciding what foods are allowed to be grown and what drugs are allowed to be used are always going to have a extremely strong tendency to keep piling up new requirements, more testing, and more delaying tactics. Whenever they run into a issue they are not going to re-examine and make their organization more efficient or change how testing is done… they will just require more testing because that is safer.

That is just a single example, but this is same as everything else. Every time you give the government some power to try to protect people they will just continue piling on more and more regulations and consuming more and more resources. There is no competition and no accounting so there is no way the public can accurately determine what level of certification/testing/defense/expendatures is appropriate or if resources are being used efficiently. Law enforcement, war on drugs, TSA, military, drug testing, food regulations, etc etc.

What you don’t realize is that IP laws are just another example of the the very government bloat and corruption that you are frequently decrying.

IP is really just a ball and chain around the ankle of the free market. It seems necessary to restrict third parties in order to create artificial markets sometimes, but it’s not really.

Nonoy Oplas June 14, 2011 at 10:54 am

I have to repeat this for the nth time: When someone invented a new rice seed with a particular property, he applied for a patent for his new seed, no one was prevented, no one was disenfranchised, from inventing his own seed with another characteristic or property. The result is an explosion of 112,000+ of different rice varieties in the IRRI genebank alone. Include the other rice seeds in private seed corporations and private biotech institutes and academic institutes, and we may have 120,000+ of different rice seeds alone. Never patented or off-patent or patented marketed or patented not marketed yet.

But we will keep hearing lamentations of “IPR restricting third parties… IPR killing competition…” Over and over and over.

Colin Phillips June 14, 2011 at 11:06 am: The seen and the unseen, strikes again.

White Indian June 14, 2011 at 11:29 am

How is genetic engineering not the same as “mixing labor” with land or other natural resources and declaring them private property? And how is the Patent Office any different from the Land office at establishing and enforcing these private property rights?

I’m not asking because I’m against you on IP; I think you have the correct position. However, I think that it’s time that libertarian types realize what anthropologists have been telling us for some years, which economists ignore, and that is:

“Agriculture creates government.” ~Richard Manning, Against the Grain, p. 73

nate-m June 14, 2011 at 11:47 am

How is genetic engineering not the same as “mixing labor” with land or other natural resources and declaring them private property?

It’s not. If you make some magic beans, then those magic beans belong to you.

But private property does not work in a way that when you make magic beans that all of a sudden you own all magic beans that ever get made for the next couple decades.

And how is the Patent Office any different from the Land office at establishing and enforcing these private property rights?

The “Land Office” does not establish private property rights. They formalize it.
And property rights only affect that piece of physical property.

patents affect everybody and everything universally regardless of who controls the private property that patents are controlling. It establishes a monopoly right over a particular concept or algorithm or whatever you want to call it and it gives the patent holder the right to sue people for carrying out actions on their own on property.

The mistake here is trying to equate patents with property rights. It’s a common confusion. It’s created by ip socialists using mixed metaphors and misleading language to confuse you.

nate-m June 14, 2011 at 11:58 am

To look at it another way that may be easier to understand:

Patent rights are ‘rights’ in the same way that you have a ‘right’ to social security or welfare.

Property rights are ‘rights’ in the same what that you have rights to speech or ‘life, liberty, and the pursuit of happiness’.

Patents require a state government to force all citizens to conform to monopolies that they grant based on arbitrary rules. Property rights have been created through simple human social interaction and never required any government to establish and is universal to all humans regardless of governments. Details differ, but the concepts remain. This is because the nature of physical matter demands these rights. The sort of things that patents cover do not have the same nature as physical goods. They only exist as abstractions and thus have no substance or limit.

White Indian June 14, 2011 at 1:38 pm: Genes can be seen under a microscope, and manipulated. Land can be seen with the naked eye. Both are physical, not mere abstractions.

What is abstract about both is claiming ownership, and using soldiers to enforce that abstract claim. It started 10,000 years ago with Land, and only 10 years ago with genes, but the concept is essentially the same: Control of natural resources for the purpose of agriculture, which changes the village from a basically egalitarian non-ownership model to a hierarchical concentration of control.

The global community transforms more and more like the original Neolithic villages – into a rich man’s house with the granary, soldiers serving and protecting him, and hovels surrounding it, hoping to please the rich enough to eat.

About the only thing that the libertarian-capitalist position has over socialism is the concentration of hierarchy at the top. A single Politburo in control of the granary is worse than several rich homes with granaries, as it gives those living in the hovels an opportunity, a choice, to lick another boot before their family is starved out.
Wildberry June 14, 2011 at 2:02 pm: @ nate-m June 14, 2011 at 11:58 am

Social security and welfare is not property rights. They cannot be sold, leased or loaned, for example.

Right to life, liberty or the pursuit of happiness are not property rights for the same reasons.

All rights must be defended, including property rights. Government is, inter alia, a means of enforcement; what many ancaps like to refer to as coercion. Defending one’s rights through coercion is not limited to government; i.e. ancaps prefer PDAs. Coercion between humans can be accomplished by means that depends on neither; shunning, or example.

Property rights do not require coercion to exist or operate peacefully, and therefore are not necessarily the product of government decree or coercion. They can arise spontaneously as the result of human interaction and cooperation. Therefore, like all rights, property rights are a human device. Deal with it.

Patents and copyright are property rights enforceable by government coercion, like all property rights.

So, what is the distinction you are trying to make, again?
White Indian June 14, 2011 at 2:27 pm: | “Property rights do not require coercion to exist or operate peacefully”

I know that is your ideological economic position; however, anthropology, history and archeological observation demonstrates differently. The abstract ownership of land required for sustaining the agricultural City-State does indeed require aggression to establish and maintain.

That process of invasion and occupation has been a 10,000 year old trail of tears for traditional societies making a living on the land without anymore thought of “owning” it than they would have thought of owning the clouds or oceans … or a certain genetic code.

For 2 million years, humans have lived recognizing property by use. But only in the last 10,000 or so have people claimed property by abstract ownership for purposes of agriculture. Genetic engineering patents are just a continuation of the aggressive and occupational nature of the agricultural City-State.

For a distinction between property by use, and property by abstract ownership, see attorney Jeff Vail’s A Theory of Power. The following excerpt is apropos:

The abstract notion of ownership serves as the single, greatest perpetuator of hierarchy. When one steps back and examines the notion of “owning” something, the abstraction becomes readily apparent. Ownership represents nothing more than a power-relationship—the ability to control. The tribal institution of “Ownership by use” on the other hand, suggests simply that one can only “own” those things that they put to immediate, direct and personal use to meet basic needs—and not more. A society crosses the memetic Rubicon when it accepts the abstraction that ownership can extend beyond the exclusive needs of one individual for survival. Abstract ownership begins when society accepts a claim of symbolic control of something without the requirement of immediate, direct and personal use. Hierarchy, at any level, requires this excess, abstract ownership—it represents the symbolic capital that forms the foundation of all stratification.

Source: Chapter 9 – Forward, to Rhizome, http://www.jeffvail.net/2005/03/theory-of-power-online.html
Wildberry June 14, 2011 at 3:45 pm: @ White Indian June 14, 2011 at 2:27 pm

The irony of your handle is not lost on me. You seem to hold some romantic notion that indigenous people lived in all light and goodness. My reading of history is that, while American Indians may not have universally had a property rights concept, many did. In addition, there was quite a bit of tribal warfare going on before Europeans showed up on the scene, especially in the plains.

Invasion and conquest has been a long-standing feature of human history, and is not limited to your favorite tribes. The fact that we even aspire to an alternative is a monument to civilization and, at least as an ideal, admirable.

The quote,

Ownership represents nothing more than a power-relationship—the ability to control.

, is a tautology. Ownership IS the right to exclusive use, which must be defended to exist.

Your romantic fantasy is that large populations of humans can cooperate peacefully and prosper without the abstract concept of private property rights. I disagree.

To simply observe that this concept is an abstraction only states the obvious.
White Indian June 14, 2011 at 4:11 pm: I have zero romantic notions.

My opinion is informed by anthropology, archeology, and history, especially the last 40 years of anthropology. Mises, and most people, have ridiculous misperceptions of pre-agricultural societies. In fact, some are referring to them as The Original Affluent Society. (Sahlins 1974)

Rather, you have romantic notions of agricultural civilization, as most do.

No matter if it’s a romantic notion or not, anthropology informs us about how agriculture’s requirement of “property rights” to control irrigation, drainage, and other system essentials created government. It’s the way it happened. “Deal with it.”
White Indian June 14, 2011 at 4:20 pm: | “Ownership IS the right to exclusive use, which must be defended to exist.”

Can you tell me how humans, or any other specie, existed for millions of years without landed property rights? And why only a single specie must now have landed property rights to exist in this biologically short time of the Holocene period?

To say they are necessary might be a good excuse to kill people without guilt, and I understand why you’d say landed property rights are so important, but Monsanto will say the same about their GMO property rights – in fact, your own words:

“They must be defended to exist.”
White Indian June 14, 2011 at 4:47 pm: | “tribal warfare going on before Europeans showed up on the scene, especially in the plains”

Correct. That is because the plains Indians were remnants of genocide, driven into a new lifestyle. They didn’t even exist pre-European. It was post-apocalyptic culture.

As anthropologist Jason Godesky states, “Given the trauma of what was essentially the end of the world for Native groups, a surge in violence would be expected. 90% or more of the American population died from epidemic disease. Groups were displaced, and a massive rearrangement of tribal territories racked across the continent like billiard balls…The archaeological record bears out a significant increase in violence in this post-apocalyptic era. ‘Researchers examined thousands of Native American skeletons and found that those from after Christopher Columbus landed in the New World showed a rate of traumatic injuries more than 50 percent higher than those from before the Europeans arrived.’”

Source: “The Savages are Truly Noble” by Jason Godesky http://rewild.info/anthropik/2007/05/the-savages-are-truly-noble/index.html
nate-m June 14, 2011 at 4:51 pm: Genes can be seen under a microscope, and manipulated. Land can be seen with the naked eye. Both are physical, not mere abstractions.

Yes that is true. But just by saying that you have shown that you do not understand what patents are and how they work. Sorry. I am not trying to be mean here.

Wildberry,

Social security and welfare is not property rights.

Right. I am glad you got that because neither are patents, that is why I lumped them together. It’s a example of things that are not property rights.

Therefore, like all rights, property rights are a human device. Deal with it.

Very correct. Except that patents are not property rights, are not created spontaneously, do actually require the government to enforce them, and I have never seen a compelling argument that they can exist in a truly peaceful, civilized, society.

So, what is the distinction you are trying to make, again?

Patents are not property rights.

indeed require aggression to establish and maintain.

They require defense against aggression to be be maintained.

This is different from patents since patents need offensive aggression against individual’s property rights to exist.

You see. It’s the opposite. Patents are aggression against property and your talking about people defending themselves against aggression while trying to say they are the same thing.

. But only in the last 10,000 or so have people claimed property by abstract ownership for purposes of agriculture.

Domestication of animals and the development of agriculture necessitated much of this. But property existed before this. Nomadic people certainly maintained a much less formal form of land property that was managed differently from agricultural societies Even if people didn’t understand all the mechanics and terms for it, it certainly existed. And property is not abstract. It’s physical. It’s things that exist and can be manipulated by human action. Property rights govern the use of property. Property rights themselves are abstractions. But you cannot have property rights without physical property to have rights about.

Oh and keep in mind that state government is far far younger then agricultural technology. Hell for the vast majority of people the state didn’t even exist for them until the 1800′s. The one thing state is very effective is aggression and war and this is why it’s the dominate form of government.
Wildberry June 14, 2011 at 5:34 pm: @ White Indian June 14, 2011 at 4:47 pm

I’m confused. Are you saying that before Columbus, which hardly marked the beginning of the displacements you describe, there was no tribal warfare among indigenous people?
Wildberry June 14, 2011 at 6:36 pm: @nate-m June 14, 2011 at 4:51 pm

Right. I am glad you got that because neither are patents, that is why I lumped them together. It’s a example of things that are not property rights.

OK, that is your list, I have a different list. What is your point?

Very correct. Except that patents are not property rights, are not created spontaneously, do actually require the government to enforce them, and I have never seen a compelling argument that they can exist in a truly peaceful, civilized, society.

What property rights are “created spontaneously”, do not require a means of enforcement, and why can’t they “exist in a truly peaceful, civilized society”?

Patents are not property rights.

That is simply a statement of conclusion. I thought for a minute you were actually headed somewhere…

This is different from patents since patents need offensive aggression against individual’s property rights to exist.

Huh? All aggression is offensive, as distinguished from defensive acts. If I assert that I have a right to X (claim exclusive economic right to a patented invention for a limited time), and can successfully defend it against those who would violate my “right”, do I have that right or not?

Clearly, I do. Should I have it? We may disagree, but that is a different issue. That has to do with HOW I defend it. I may use bribery (I pay you A if you recognize my right to X), or force, or ethical principles that allow you and I to pledge mutual defense against 3rd parties, etc. Maybe we grow our alliance to 1,000,000 and we completely outnumber those who would challenge our pledge.

Our pledge is this: “If you invent something that is useful and original, I vow to come to your aid to protect you against anyone who attempts to violate your monopoly. This pledge only lasts for a limited time, because after awhile, it is just too hard to enforce and you are going to make most of your money early on, anyway. To keep the gravy train going, we need to keep coming up with new stuff. You do the same thing for me. We make sure everyone around understands that we’ve made this pledge. Deal?”

Is there something wrong with that? Seems all spontaneous and ethical to me.
White Indian June 14, 2011 at 7:18 pm: | “Oh and keep in mind that state government is far far younger then agricultural technology.”

Correct, but agriculture leads to, and is required to support the City-State. And settlements of 5000+ are consistently observed to have State level political organization. Is there any exception?

Thus, as I’ve pointed out before from Richard Manning’s book Against the Grain, “Agriculture creates government.”

Before agricultural societies get big enough to be called civilization,they are more stratified and dominated by “Big Men” (Van Bakel et al, 1986; Earl, 2002) or “Emergent Elite,” that is, pre-State level proto-government.

Even the early agricultural system is much more work, more time-consuming, more dangerous, less healthy for the majority, but begins to concentrate wealth for a few, the “emergent elite.” (Chap.5 Social Inequality at the Origins of Agriculture, Foundations of Social Inequality, 1995)

Thus began the “diseases of civilization,” observable in bones and teeth and other excavated evidence, that we see continued to this day.

The agricultural City State is the the problem, not just the State part of it. To put Mises and others’ observation in a new light, by recognizing Civitas (the City-State) as an indivisible whole, I understand the City-State like this:

• Civilization can be and has often been in the course of history the main source of mischief and disaster. – Ludwig von Mises

• The leviathan civilization, that monster devouring the earth in this century, is in the throes of death. – Llewellyn H. Rockwell

• They forget that Civilization lives at the expense of everyone. – Frédéric Bastiat

• The great non sequitur committed by defenders of Civilization, is to leap from the necessity of society to the necessity of Civilization. – Murray N. Rothbard (1926-1995),

• Earth’s ecology is a long record of civilization’s policies that failed because they were designed with a bold disregard for the laws of ecology. – Ludwig von Mises

White Indian June 14, 2011 at 1:10 pm

I’m not talking magical beans, I’m talking anthropological and archeological reality.

Small villages with either common buildings or equal sized dwellings, when agriculture was started in the Neolithic period, were transformed into settlements that looked like this:

A big, rich house with a granary surrounded by small hovels.

And we know one of the first divisions of labor was the soldier – to serve and protect the grain “property” of the grain “capitalist.” That soldier became government.

Then, as the land loses fertility and tilth and gets “farmed out,” agriculture must expand, and drive off, kill, or enslave traditional peoples from the Land.

Thus, Richard Manning on page 73 in his book Against the Grain observes, “Agriculture creates government.”

Agriculture is aggressive, invasive and occupational.

Libertarians who defend Landed property rights for the Owner class have an idealistic theory of how property rights were established, one that paints the owners in the best light, but that ideology is invalidated by reality as observed by archeology and anthropology.

Abstract property rights (control) of Land, whether collective or private, is essentially a Statist position.

Stalin drove off the traditional families on the Land for collective agriculture, just as America drove off the Indians from their land for agriculture.

The function of the State has never been divorced from the agricultural City-State (Civitas, or civilization,) and I think the great error of libertarianism is to think that it can somehow. Perhaps a noble goal, but unrealistic in light of history, anthropology, and archeology, and accepting observation of how people really do organize and work during the last 10,000 years of the Anthropocene era.

nate-m June 14, 2011 at 7:13 pm

OK, that is your list, I have a different list. What is your point?

My point is that patents are not property rights. No matter how many times you ask the same question I’ll have the same answer.

That is simply a statement of conclusion. I thought for a minute you were actually headed somewhere…

When you asking me what my point is your asking for the conclusion. Which I told you.

I am not going to try to guess at any argument you may have hidden behind the questions your asking as it’s a waste of my time trying to guess at them.

Huh? All aggression is offensive, as distinguished from defensive acts.

I got your statements mixed up with ‘White Indian’s. So my apologies.

But my point stands. If you say that there is no aggression in defense of property, then there is still certainly aggression inherent in patents.

If I assert that I have a right to X (claim exclusive economic right to a patented invention for a limited time), and can successfully defend it against those who would violate my “right”, do I have that right or not?

There are two things wrong with that statement:
1) If you think that rights are created by asserting that these rights exist then that could possibly be a correct statement.

However if you believe that legitimate rights (as opposed illegitimate rights like ‘rights to social security’, ‘right to cheap rent’, or ‘right to free health care’) are self-evident then your statement is wrong. That is ‘natural rights’ are phenomena that are created by peaceful human interaction on a individual and social level and are later given definitions so that we may discuss them.

So no, just because you can make up rights in your head and are capable of causing physical damage to those that disagree with you does not mean you have a legitimate “right to those rights”.

2) Patents are not defensive things. That is if patents were passive defense of rights then they could not do what they try to do and they could not be what they are. That is by their fundamental nature they require a aggressive offensive force and give you the ability to violate other people’s rights.

If you can create a compelling legal theory which patents can exist with the following stipulations:

1) In a purely voluntary manner without institutional violence. Without oppression of the minority by the majority or the majority by the minority.
2) Without either being redundant to property rights or in conflict property rights.

Then you have a pretty good chance of convincing most people to change their minds about the subject or at least convincing them that you have a sound argument.

J. Murray June 14, 2011 at 7:07 am

A patent is filling out a piece of paper, paying the fee, and getting the patent office, which doesn’t check your “invention” in the least, to grant you a monpoloy over that idea, however vague or useless it may be. There isn’t any vetting or checking at all in the process, which is why people can actually patent sticks:

http://ipwatchdog.com/2010/10/06/animal-toy-patent/id=12711/

All you need for a patent is a drawing with numbers pointing to various areas on the drawing, accompanied with a description that makes liberal use of a thesaurus. That’s the extent of the stringency.

You’ll also notice another bogus point of the IP scheme – if you don’t pay your “maintenance fee” to the government, suddenty that makes it not your property anymore. It’s a revenue scam, not protecting property.

White Indian June 14, 2011 at 8:05 am

Are all landed property rights — an entitlement for which you pay a fee to get the Land Office to grant you a monopoly — also a revenue scam because the government collects property taxes?

Nonoy Oplas June 14, 2011 at 9:26 am

Good points, White Indian. A real property tax is a scam by governments to say that “You own the house and lot, yes, but you still have to pay rent to me; otherwise, I can confiscate your physical property.” The anti-IPR guys take it for granted and do not attack governments as much as they attack the pro-IP guys. Double standard.

Gil June 14, 2011 at 9:30 am

What it means is that you own your home but you don’t own the land it’s set upon.

Nonoy Oplas June 14, 2011 at 10:00 am: No, in the Philippines and probably other countries, the real property tax applies to both your house and the land where it’s built on. If land valuation remains the same but you introduce improvements to your house that further increases its market value, your real property tax on the house also increases. Parasitic policies by governments. Incidentally, you don’t hear such rabid attack of such policy from the anti-IPR guys.
White Indian June 14, 2011 at 10:09 am: Government taxes the value of the house. Government has the sheriff sell both the house and the land and if you don’t pay; therefore, you “own” both your house and land equally.

Abstract Ownership of Land is established by killing, enslaving, or driving off the traditional families on the Land by Government, from Sumeria to the Trail of Tears, and then your property rights are enforced by the Government.

Abstract Ownership of Life, whether slavery or genes, is also established by the Government and maintained by the Government.

Government protects and serves owners with aggression for a price. Those who can pay the most get the most benefit from the hierarchy that the agricultural City-State perpetuates.

Just for background, my view of arbitrary property rights of any sort, both landed and intellectual, is informed by the attorney Jeff Vail, who writes in his book A Theory of Power, the following:

The abstract notion of ownership serves as the single, greatest perpetuator of hierarchy. When one steps back and examines the notion of “owning” something, the abstraction becomes readily apparent. Ownership represents nothing more than a power-relationship—the ability to control. The tribal institution of “Ownership by use” on the other hand, suggests simply that one can only “own” those things that they put to immediate, direct and personal use to meet basic needs—and not more. A society crosses the memetic Rubicon when it accepts the abstraction that ownership can extend beyond the exclusive needs of one individual for survival. Abstract ownership begins when society accepts a claim of symbolic control of something without the requirement of immediate, direct and personal use. Hierarchy, at any level, requires this excess, abstract ownership—it represents the symbolic capital that forms the foundation of all stratification.

Source: Chapter 9 – Forward, to Rhizome, http://www.jeffvail.net/2005/03/theory-of-power-online.html

White Indian June 14, 2011 at 7:54 am

Perhaps some future Frenchman will write yet another critique on the tragedy of arbitrary property rights like the following:

The first man who, having mixed his labor with a piece of genetics, bethought himself of saying This is mine, and found people simple enough to believe him, was the real prime mover of civil society. From how many crimes, wars, and murders, from how many horrors and misfortunes might not any one have saved mankind, by burning up the patents, or tearing down the laboratory, and crying to his fellows: Beware of listening to this imposter; you are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody.

~adapted from Jean Jacques Rousseau, Discourse on the Origin and Basis of Inequality Among Men (1754)

Wildberry June 14, 2011 at 2:05 pm

@Gil June 14, 2011 at 9:30 am

What it means is that you own your home but you don’t own the land it’s set upon.

What it measns is that the government has acquired the authority to tax you for owning property. That is all it means.

J. Murray June 14, 2011 at 4:02 pm

And if you don’t pay, they take it away, thus establishing that government owns your property because failing to pay the rent on it, you can call it tax all you want, results in a lien and eviction. You can’t own anything that’s taxed.

Wildberry June 14, 2011 at 6:55 pm

J. Murray June 14, 2011 at 4:02 pm

Wouldn’t that depend on one’s understanding of ownership?

Ownership means exclusive use and control, isn’ t that the case? If you refuse or are unable to pay taxes, does the Government acquire ownership? Maybe in a procedural sense, but the tax sale amounts to selling your property to a third party (open auction, open even to you) and collecting back taxes from the proceeds.

If you wanted to elimnate this worry, you have alternatives. Here are some: You can own no land, you can move to a place which does not collect property tax, invest in a perpetual annuity to automatically pay your tax and (drumroll) use the politcal system to abolish property tax altogether.

If you are unwilling to do any of those, you can pay your taxes. And you are acting like you don’t have choices!!

nate-m June 14, 2011 at 7:26 pm

If you refuse or are unable to pay taxes, does the Government acquire ownership?

They seize ownership of your property through threats of force, or actual force if the threats are not enough, and then sell it to somebody else so that they can pocket the proceeds.

There is no need to play semantic games to understand what is happening here or describe it very accurately.

You can own no land,

You mean: I can give up my life, my liberty, my property, my ability to care for myself and my family and be homeless.

you can move to a place which does not collect property tax,

Didn’t they make a song about that?

In the Big Rock Candy Mountains,
There’s a land that’s fair and bright,
Where the handouts grow on bushes
And you sleep out every night.
Where the boxcars all are empty
And the sun shines every day
And their is no property taxes
And the cigarette trees
The lemonade springs
Where the bluebird sings
In the Big Rock Candy Mountains.

If you are unwilling to do any of those, you can pay your taxes. And you are acting like you don’t have choices!!

Submit or be killed. Those are my choices.

I guess because I have choices then I have freedom.

White Indian June 15, 2011 at 12:46 pm: That was the choice the Indians were given. The ones who submitted were lucky enough to be driven on a Trail of Tears. All to establish property rights for agricultural civilization’s settlers. It is a quite invasive and occupational culture.

Austrian Economics is a sort of Big Rock Candy Mountain – a hope of heaven to right the wrongs of the agricultural City State, by economic word magic.

O Brother, Where Art Thou
Big Rock Candy Mountain
http://www.youtube.com/watch?v=KSGuBNopzBw

REPLY

White Indian June 14, 2011 at 8:00 pm

The agricultural City-State is an indivisible whole; divorcing the State from the City has never happened because the “Voluntary City” is a contradiction.

Mark Humphrey June 14, 2011 at 11:42 pm

I like Monsanto. I don’t know about all the intricate details about the merits of their patent claims, or whether or not Monsanto is abuses its patents sometimes.

I do know that patents are basically just, in that they represent an imperfect attempt to codify an indisputable property right. This right is the freedom of every seller to establish the terms of the sale of his or her property. So when Jane invents a new nuclear powered flying machine, and sells to Harry under the proviso that Harry will refrain from copying essential and particular aspects of Jane’s new invention, Harry had better keep his contractual obligation to Jane. It’s only just.

Similarly, when Monsanto invents improved seeds and herbicides, as this company does all the time, its potential customers have a clear choice: buy Monsanto’s patented new seed or herbicide and thereby possibly harvest bigger crops or reduce costs; or decline to buy Monsanto’s offering and instead buy the seed or herbicide of a competitor that lacks a patent restriction, such as the herbicide Roundup. A great many farmers regularly use Monsanto products, with patent obligations and higher prices, because they calculate that they’ll profit by doing so.

Mr. Kinsella’s obsession with the alleged evils of patent and copyright protection is misdirected and indefensible. The irrationalism of this crusade has now reached fever pitch, featuring such forgettable compositions as “Intellectual Property is murder”. Oh well, it’s all part of presenting oneself as an uncompromising, unconventional, “radical” anarcho-libertarian.

Oddly, this website never mentions that von Mises himself favored both patents and copyrights. That’s pretty misleading, in that you sell your stuff under the label of The Ludvig von Mises Institute.

One final note: “Intellectual Property” is a misnomer, because the adjective implies that something unique distinguishes IP from other kinds of property. But there’s no objective distinction between so-called intellectual property and any other sort of property. All property exists by applying an idea of the property creator to physcial reality. In the case of a frontier farm or a shopping center, for instance, the developer uses her ideas to select location, construction or tillage practices, and so forth. In the case of “intellectual property”–the label usually applied to books and paintings, blueprints and formulas–the property consists of an idea applied to physical reality, such as particular words on a paper or electronic page, paint on canvas in an original arrangement, a recipe or complex series of calculations committed to paper or computer memory.

The creator of any sort of property–be it farm or shopping center, oil painting or inventor’s blueprint–does not own his idea. Ideas are the product of individual minds; and since no one can own the mind of another, no one can own an idea. What the owner has rights to is the physical property, including the right to establish the terms under which she will convey her property to another.

Patents and copyrights are written into law in an effort to uphold the rights of creators and inventors to negotiate and enforce a restrictive sales clause. Those who agree to this restriction, in the form of buying a copyrighted or patented product, are obligated to respect the rights of the property producer by refraining from making knockoff’s, etc.

Eventually, trade secrets leak out in honest ways, such as someone finding something abandoned or lost and paying attention. If someone acquires information honestly, without abridging a contract, it’s theirs to make good use of. But if a thief steals songs or reproduces a copyrighted painting or book, she is a thief.

Mark Humphrey June 14, 2011 at 11:51 pm

Postscript: Since no objective distinction seperates “intellectual property” from “physical property”, and since all kinds of property come into being by the application of an individual’s idea to physical reality, this observation raises an interesting question:

Is ALL property “murder”? Or is property simply theft, as Marxists claim?

White Indian June 15, 2011 at 4:59 am

The traditional view of “property by use” is millions of years old, and observed by anthropology, even evolutionary biology. Nobody in the world or millions of years of human existence has any problem with that.

You’re conflating (1) property by use with (2) property by abstract ownership.* (See attorney Jeff Vail’s reference below.)

The recent development of agriculture required a new idea of property, that of abstract property by ownership, beyond the necessity of using it. Abstract ownership of genetic material lies within the same vein – both coerce control of natural resources for agriculture.

The owner class (Big Men, emergent elite, capitalist, etal) invades and occupies Land, disestablishes traditional families off the Land, and then grows all human food, and puts that food under lock and key. Non-owners are made to work for the owner class or starve.

The Marx-Mises axis of economic evil both support such a coercive system, and merely contend for the key.

Mises is correct in one thing, Austrian economics do work better than Marx, because they tend to be less hierarchical. Instead of a single Politboro, today you have Monsanto, ADM, and Cargill choices of boots to lick so you don’t starve, or get treated like an Indian by the Land Office managers, the Government.

However, Mises makes the mistake of painting pre-agricultural societies as somehow “collectivist” or Marxist. This is a false notion, but the argument is used because it is their only strong suite. A study of anthropology quickly shatters the premises upon which Mises places such worship of agricultural Civilization.

But such error, we see in Austrian economics a perpetual chasing of the tail, attempting to divorce the State from the City. Yet the agricultural City-State remains an indivisible whole system.
___________

* The abstract notion of ownership serves as the single, greatest perpetuator of hierarchy. When one steps back and examines the notion of “owning” something, the abstraction becomes readily apparent. Ownership represents nothing more than a power-relationship—the ability to control. The tribal institution of “Ownership by use” on the other hand, suggests simply that one can only “own” those things that they put to immediate, direct and personal use to meet basic needs—and not more. A society crosses the memetic Rubicon when it accepts the abstraction that ownership can extend beyond the exclusive needs of one individual for survival. Abstract ownership begins when society accepts a claim of symbolic control of something without the requirement of immediate, direct and personal use. Hierarchy, at any level, requires this excess, abstract ownership—it represents the symbolic capital that forms the foundation of all stratification.

Source: Jeff Vail, A Theory of Power, Chapter 9 – Forward, to Rhizome, http://www.jeffvail.net/2005/03/theory-of-power-online.html

nate-m June 15, 2011 at 5:51 am

Mises is correct in one thing, Austrian economics do work better than Marx, because they tend to be less hierarchical. Instead of a single Politboro, today you have Monsanto, ADM, and Cargill choices of boots to lick so you don’t starve, or get treated like an Indian by the Land Office managers, the Government.

If you think that companies like Monsanto could survive in a truly capitalist system while behaving the way they do now then you do not understand capitalism.

The ‘oppressive ownership class’ is marxist myth. A complete misunderstanding of economics and how capitalistic forces work.

The ‘owners’ of capital depend utterly on the rest of society for their profits. It’s their customers, the ‘proletariat’ that is in control of what gets produced and who produces it… not the ‘owners’. The idea that capitalists are oppressive is a marxist concept that has been refuted over and over again. If they are oppressive in a free market then they will very quickly cease to be owners.

The fact that you don’t understand the difference between somebody owning a patent on genetic material versus somebody owning some seed goes continues to show you just don’t get what patents are for.

White Indian June 15, 2011 at 6:45 am

^^ Boilerplate. *yawn* It’s like talking to a young-earth creationist. Evolution is a Marxist plot too.

Do you really think all the archeology, anthropology, and sociology below is Marxist?

Foundations of Social Inequality
Price, T. Douglas; Feinman, Gary M. (Eds.)
Chapter 5: Social Inequality at the Origins of Agriculture.
http://www.springer.com/social+sciences/archaeology+%26+anthropology/book/978-0-306-44979-6

Economic systems of foraging, agricultural, and industrial societies
Frederic L. Pryor, Swarthmore College, Pennsylvania
http://www.cambridge.org/gb/knowledge/isbn/item1157359/?site_locale=en_GB

The Invasion Within: The Contest of Cultures in Colonial North America
James Axtell
http://www.oup.com/us/catalog/general/subject/HistoryAmerican/ColonialRevolutionary/?view=usa&ci=9780195041545

Have you even bothered to read Stone Age Economics by Marshall Sahlins?

Stone Age Economics is to “true capitalism” myths what The Origin of Species is to “young earth creationism” myths.

Unless you’re a True Believer. Then observation takes a back seat to mythology.

nate-m June 15, 2011 at 9:02 am

Maybe you should learn to listen.

In a true capitalist system the owners are servants to the masses. If you don’t understand this you just need to learn how economics work.

The thing that turns this on it’s head in modern societies is the use of force, typically through state government.

White Indian June 15, 2011 at 12:13 pm: Maybe you should learn to observe, instead of listening. “True capitalism” hasn’t been turned on its head; what you see — the aggressive,invasive, and occupational nature of the agricultural City-State — is what it is.

Your “true capitalism” is about as realistic as “true communism.” More than one person has observed both left and right economic ideologues have similar proclivities:

Marxism of the Right by Robert Locke
http://www.amconmag.com/article/2005/mar/14/00017/

If “true capitalism” was implemented here, both the farmer’s cornfield and the McMansion lots would all be flooded with 14″ of water in the winter. That demonstrates the misconception that landed property rights have only to do with physical property that can be protected with bigger Libertarian Guns and Private Defense Organizations.

Would it be worth protecting in a swamp boat?
nate-m June 15, 2011 at 12:48 pm: Your “true capitalism” is about as realistic as “true communism.” More than one person has observed both left and right economic ideologues have similar proclivities:

No it isn’t. Your confused because you think that city-state is the core of capitalism and it’s not. Your definitions are incorrect for what is describing in this site.

Capitalism is called capitalism because it involve capital. Capital is money and resources invested in the production of consumer goods. It involves private ownership of property, which is not just ‘ground you stand on’. It involves money, accounting, and production of goods and private ownership of production. It’s based on voluntary exchange and trading. Wealth creation and voluntary exchange.

That is what I am talking about. What your talking about is just the standard leftist crap that they teach in every western university that is used to try to justify the state that (ultimately) signs their paychecks.

Marxist style communism is also based on economic theory. Their theory is that labor is what provides value. The ‘capitalist’ in their theory is ‘robbing’ the laborer of their wealth since the capitalist is making profits in excess of what labor costs.

The marxist economic theories based around the concept of value creation of labor have been refuted and demolished so many times that they haven’t been barely mentioned since the 1950′s. It’s a embarrassment that the whole political philosophy is based on such a flawed economic concept.

So no, I am not freaking talking about communism.
CT June 15, 2011 at 4:33 pm: White Indian,

Are you serious in posting this article? I really hope you’re not. It’s so full of strawmen, mischaracterizations, and outright lies that I don’t even know where to begin. I suggest you find something else.
Wildberry June 15, 2011 at 5:23 pm: CT,

I agree there is much to argue with, but you have to admit it would stir some interesting rants on all sides!!

White Indian June 15, 2011 at 7:27 am

There are huge misconceptions about property rights here. Amazingly confused.

“Property rights only affect that piece of physical property.”

Wrong.

Agriculture creates government, because property rights encompass much more than the physical piece of property.

Drainage is necessary in this neck of the woods, otherwise the property is totally useless for agriculture. Thus, property rights for farms extend for miles and miles, and farmers pay taxes for drainage projects far out of sight from their “physical property.”

In other locals, there are water and irrigation rights that extend far from the sight of any “physical property.”

And then some Libertarian, unobservant to how agriculture really works, suggests that a farmer must compensate the McMansion lawn owners for the county to dig up the collapsed tile and install a new tile so his $400/acre corn crop doesn’t drown.

Libertarian fantasy and real agriculture have now been revealed to be two different ideas.

Land property rights do include that physical property, which makes it feel like your very own body. But agricultural requirements also make those property rights rather abstract, extending miles from the actual physical plot.

GMO intellectual property is just like that – abstract in form, extending miles from the actual physical notion of a gene.

Jim P. June 15, 2011 at 4:46 pm

Hey, you know what would work better? If maybe you stopped spending half your responses trying so hard to be a dick, and instead explained where you and other posters disagreed. You know, as though you were civil and worth listening to.

White Indian June 15, 2011 at 5:54 pm: It is kind of dickish to handily refute one of the economic myths of Libertarianism, i.e., “property rights only affect that piece of physical property,” with a single example of how drainage rights, absolutely essential for the property to retain its agricultural value, extend for great distances from a plot of physical property.

Because only a dick would tell a juvenile that Santa Claus isn’t real.

And only a dick would point out that such abstract property rights that maintain the value of agricultural land aren’t so different from abstract property rights that maintain the value of agricultural crop genetics.

But at least I’m not a pussy about facing the truth.

REPLY

Brian Macker June 15, 2011 at 7:50 am

They should be suing Monsanto for trespass (along with the neighboring farmer). They would be able to sue under my theory of copyright where Monsanto would be the co-owner in the instantiated copies it produced or allowed to be produced. Of course patents are totally unjustifiable.

White Indian June 15, 2011 at 9:32 am: Brian, the neighboring farmer isn’t doing anything for which to be sued. The farmer has merely requested the county engineer make good his property rights.

Maybe you think the McMansion owners should sue the county? The State of Ohio? Maybe pull out their bigger Libertarian guns for freedom?

If they do, such human action would be swamped. Quite literally!

There wouldn’t be any agricultural fields, roads, or McMansion lots if the Great Black Swamp hadn’t been well drained, and kept well drained.

That’s why agriculture creates government, because agricultural property rights need extend well beyond the physical bounds of crop planting ground that are recorded in the government Land Office.

The argument that “land property rights” are completely physical and genetic patents are completely abstract is demonstrated false.

If you don’t like gene patents, re-consider how the Indians view land title.

Agricultural Civilization always creates a Trail of Tears.

REPLY

Brian Macker June 15, 2011 at 8:17 pm

The neighboring farmer growing the GM crops has contaminated the crops of another farmer with pollen. This would be especially egregious if the corn was genetically modified by Monsanto to cause sterile seed production. Then the organic farmer would find his seed crop destroyed.

Customary rules about open pollination do not currently properly take into account GM crops.

I can’t make sense of most of your comment and will take it as a random incoherent rant. I did not reply to your drainage arguments and I am not a libertarian, you jerk.

White Indian June 15, 2011 at 8:59 pm

When I stated “the neighboring farmer isn’t doing anything for which to be sued,” I meant the farmer with the drainage problem. I hope that clarifies. To reiterate:

1. The farmer with the drainage problem is merely exercising his property rights by requesting the county engineer to dug up and replace the broken tile.

2. I was NOT referring to GMO, either the conventional farmer with the GMO crop, or to the the crop of the neighboring organic farmer.

I think we crossed wires on which farmer to whom we were refarming.

Brian Macker June 20, 2011 at 8:34 pm: My comment was in response to the article. Not any comment about drainage.

{ 6 comments }

Paolo Bacigalupi’s “The Calorie Man” and Patents

by Stephan Kinsella on June 13, 2011

There’s an interesting IP angle in the short story “The Calorie Man” by Paolo Bacigalupi, as Geoffrey Allan Plauché explains in his Prometheus Unbound review. Here’s an excerpt from the review:

As “The Calorie Man” opens, we’re introduced to the main character — an Indian transplant to the American South. Lalji plies the Mississippi River in a kink-spring-powered boat looking for antiques from the Expansion to salvage and sell. But an old friend has an unusual and dangerous job for him now. He is to travel far up north to find and smuggle back to New Orleans a man the big agricultural corporations want captured or killed, a man who supposedly can upend the economic status quo.

This is what makes the story particularly interesting to libertarians. “The Calorie Man” is, at least implicitly, anti-IP. Intellectual property, specifically here in the form of gene patents on crops, is depicted as illegitimate and harmful. The protagonists generally show no qualms with violating the intellectual “property” of Big Ag and thwarting the IP police. Yes, there are dedicated IP police, a particularly insidious scourge we can probably expect in our own near future.

Paolo Bacigalupi probably takes intellectual property to be an inherent part of a capitalist or free market economy. Most people do. He would probably be surprised to learn that a growing number of libertarians oppose IP as an illegitimate grant of monopoly privilege that depends on the state and necessarily violates real property rights when enforced. But to me and many other libertarians, criticism of IP is not criticism of free markets at all.

“The Calorie Man” does suffer from a weakness common to stories written by leftists, however. The bad guys are greedy megacorporations and their thugs. Now, the problem is not so much businesses being portrayed and hinted as doing bad things. They do sometimes, especially the big corporations in bed with the state. The problem is making corporations the bogeyman and downplaying the role of government in the evils of the world. Too often governments are portrayed as altruistic and unbiased, whether competent or not. Or their role is downplayed, with politicians and bureaucrats being portrayed as the weaker, corrupted party. Were it not for those dastardly corporations!

Or, in the case of “The Calorie Man,” the state seems to be entirely absent. Even the IP police are not unambiguously government agents rather than hired corporate ones. Corporations run the world, which reminds me of another common flaw of leftist stories: the failure to see corporations that are literally ruling a region or the world as having become states/governments themselves and ceasing, really, to be businesses (at least in any capitalist or free market sense).

TAKE ACTION: OPPOSE THE PROTECT IP ACT

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