Libertarians (and some fellow travelers) have long been rightly skeptical, or even afraid, of the United Nations. There has been legitimate fear that it was a step towards one-world government, and global democracy with all the redistribution from North to South (i.e., West to third world/developing countries) that it would bring. The UN’s rhetoric is redistributionist and soft-socialist–calling for redistribution of manganese nodule wealth in the sea to poorer nations and other positive rights, such as social security, employment, equal pay for equal work, vacation time, food, housing, medical care and education¹ The term “human rights” thus has a socialist or leftist tinge, being associated not only with genuine rights, and legitimate procedural or prophylactic/civil rights (i.e. rights that are not natural but that are good fictional standins for limitations on state power), but also socialistic positive welfare rights.

However, international law, and the idea of the UN, is not all bad. International law is less dominated by artificial state legislation and is thus still more rooted in general principles of law–such as the doctrine pacta sunt servanda (agreements are to be respected), and related ideas like territorial integrity. And the idea of a place where nation-states can settle disputes instead of going to war is not all that bad. Further, it seems to me that the danger of a one-world government run by the UN has largely dissipated; the dominant nation-states, especially the US, don’t seem likely to cede their sovereignty to the UN. Instead, the real danger is that under the guise of the UN the US and other militarily powerful states (see Hoppe on why they are) has become the real hegemon. In either case, whether out of fear of loss of sovereignty to a centralizing one-world-government/UN, or to avoid giving the US another tool to impose its will on the world, there are good arguments that the US ought to get out of the UN (see Ron Paul, NeoCon Global Government; Paul has sponsored legislation to withdraw the US from the UN). Again, the chief concern nowadays is not fear of the UN itself but the danger of its being used as a legitimacy-cover for US-led aggression and domination.

And as noted, one has to be wary of the catch-phrase “human rights” as it can sometimes mean positive welfare rights. But not always. In fact, the UN Human Rights Council has recently opined that denying Internet access or related penalties–via laws such as “three strikes” laws in France and the United Kingdom that boot users off the Internet for repeated copyright infringement, as well as ACTA and the DMCA–can violate human rights to free speech and related rights. In other words, the idea is that Internet access is a human right, and state regulations and laws that impair this are illegitimate.

Now, is Internet access really a human right–or, as we would say, an individual right, or libertarian right? Is free speech even a legitimate human right? No. As Rothbard explains, all human rights are property rights. But in a state legal system, a legal right simply acts as a limitation on state power. For the libertarian, who sees all or most state power as bad precisely because it infringes on real libertarian rights, any limitation on state power, even if it is labeled as a “right” but is really not a genuine libertarian right, is to be welcome. With one exception: that of positive rights, such as a right to food or a job; such “rights,” instead of being limitations on state power, are disguised grants of power to the state: it is then authorized to take from A to provide B with his “right.” But for other negative rights, such as a right to free speech, even though these are not real, independent rights (in libertarian theory, the right to free speech is merely a consequence of the more fundamental right to one’s body), it is still useful to have them seen as limits on the state. Other examples include constitutional and other “rights” that are not really natural rights, but merely “civil” rights, such as the right to due process, rights against double jeopardy, and so on. Any libertarian should favor these “rights” being imposed as limitations on state power.

And so it is with Internet access. There is no doubt that the Internet has become one of the most important weapons against the state, and use of the Internet crucial to survival in the modern world. Anything that restricts the power of states to hamper the Internet or to harm individuals by limiting their access to the Internet is good. And this is why I am not opposed to the UN implicit recognition of Internet access as a human right. (But please, don’t impose a global tax to set up municipal “free” wifi in poor communities around the world!)

Update: See the recent decisions of various local courts and regional and international tribunals in this ASIL International Law in Brief, for a sample of how these courts tend to be better than the policies of the states. See also The UN, International Law, and Nuclear Weapons.

Also: Vint Cerf: Internet Access Not a Human Right

[Mises]

1. See my posts Bush and the Socialist “Law of the Sea Treaty” and Intellectual Property as Socialistic “Human Rights”. [↩]

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.

See also my previous posts Masnick on the Horrible PROTECT IP Act: The Coming IPolice State; Son of COICA: New Copyright Bill Introduced; Patent Reform is Here! O Joy!; Pirate-slaying censorship bill, COICA, gets unanimous support; The Mountain of IP Legislation, and Masnick’s posts The Senators Who Say Merely Linking To Certain Sites Should Be A Felony and Senators Want To Put People In Jail For Embedding YouTube Videos.

[Mises]

See also

• Independent Institute on the “Benefits” of Intellectual Property Protection

The Hoover Institution poses as a quasi-libertarian group interested in fostering “the free society,” and in favor of “The principles of individual, economic, and political freedom; private enterprise; and representative government”.

Yet in The Perils of Patent Reform, Hoover Senior Fellow F. Scott Kieff, a “member of the Property Rights, Freedom, and Prosperity Task Force,” argues against the pending patent reform bill, the America Invents Act. Well so do I. (See Patent Reform is Here! O Joy!.) But I argue against it because it does not significantly weaken the patent system, and in facts increases patent extortion in some ways. Is that Kieff’s objection? Noooo. It is because he thinks the patent system is an important part of our “free enterprise” system, and that the Act would harm that system. He is wrong on both counts.

First, the patent system if a blight on free enterprise. In the name of private property and free enterprise, the state grants monopolies that protect favored recipients from competition. This is the antithesis of the free market. It is a travesty to group free markets with state granted monopoly privileges.

Second, the America Invents Act will NOT harm the patent system. It will only slightly reduce patent abuse, but it will make it worse in other ways. In either case it is not radical or significant (see my Radical Patent Reform Is Not on the Way).  Kieff writes that the Act “will at best gum up the patent system”. If only! No it won’t. “The bill would frustrate the ability for small and medium sized innovators to bring innovations to market, and block the opportunities they would create for capital formation and jobs.” What harms small and medium sized innovators is the patent system itself (see, e.g., Patent Cross-Licensing Creates Barriers to Entry).

Kieff writes, “Critics of the modern patent system tell countless ghost stories of the fear inflicted on everyone from basic scientists to large corporations by the demon artfully named a patent troll. Yet when asked to precisely define who this ogre is in reality, it often boils down to whoever successfully sued some sympathetic defendant or whoever is presently suing the speaker. While the ever-present threat of patent enforcement is said to be causing immense gridlock in our economy, we are never told what exactly is so precarious about this state of affairs and why some patent lawsuits would disrupt it.” You are in fact told all the time, by a bunch of people, including me (see e.g. Costs of the Patent System Revisited, and the resources on C4SIF).

Writes our clueless author: “Indeed, each of those just recited modern marvels of technology—jncluding the airplane—was rich with patents.” He should take a look at Boldrin and Levine’s book Against Intellectual Monopoly for a discussion of how James Watt and the Wright brothers actually impeded progress for many years, because of the mercantilist patent system; see also Mike Masnick’s Once Again: The Great Inventors Often Were Neither Great, Nor Inventors.

Incredibly, he says “In the software industry, the absence of patents led to the development of a monopoly.” Incredible–Microsoft gained its monopoly due to one state IP–copyright–which it has used to acquire patents to further cement its monopoly. (See my post Microsoft Copyrights –> Patent Dominance; and Government and Microsoft: A Libertarian View on Monopolies, by François-René Rideau.)

And “When patents facilitate good market coordination, they foster competition and innovation.” A patent protects an innovator from competition. It does not foster competition, it protects companies from competition. And when you have a monopoly and are free from competition, you can rest on your laurels rather than continuing to innovate.

What hogwash.

[Mises]

Archived comments:

Jeff June 16, 2011 at 2:53 pm

you actually believe that intellectual property should not be protected by law ?”the state grants monopolies that protect favored recipients from competition” … right “favored reciepients”, not the person who invented the idea/design … and they don’t grant a business monopoly … plenty of patent owners were never able to commercialize their idea … hard to be a monopoly if you never actually managed to sell your products …this is nothing but socialist drivel hidden by “competition” hand waving …you are completely missing the point of innovation … it has never been about helping society … it has been to make some guy/gal rich … if you don’t understand that then you really are a moron …if anything this post is hogwash …

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Slim934 June 16, 2011 at 3:03 pm

Wow this is a well argued reply. 1 liner statements (most of them blatantly wrong) and name calling.

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nate-m June 17, 2011 at 2:10 am

you actually believe that intellectual property should not be protected by law

Basically, yes.

right “favored reciepients”, not the person who invented the idea/design

Maybe, maybe not. Many significant inventions are invented by different parties almost simultaneously. The telephone is a famous example of this. Also many patented ideas are recreated multiple times by multiple different people since quite often patents cover rather logical solutions to common problems. Whoever is first to get a patent and claim they invented first is the one who has the right to sue anybody else. Also patents are bought and sold. So it’s whoever maintains control over the patent is the ‘favored recipient’

and they don’t grant a business monopoly

There is very few other ways to properly describe a patent. Patents are, by any correct definition, a monopoly grant.

plenty of patent owners were never able to commercialize their idea

Just because the government can grant monopolies, does not mean that it can grant commercial success.

hard to be a monopoly if you never actually managed to sell your products

It’s easy when you have a lawyer and enough money to pay to the patent office.

this is nothing but socialist drivel hidden by “competition” hand waving

Yes, because people that campaign relentlessly for capitalism, free markets, and liberation from the state government coercion of the economy are the socialists while the people that believe in that government granted monopolies, violation of private property, and regulations are necessary for a healthy economy the capitalists.

it has never been about helping society

Article 1, Section 8, Clause 8 of the constitution:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

I don’t see it mentioning “To make some guy/gal rich” anywhere, do you?

It seems to me that it’s saying that in order to promote advancement of science and art. If it is retarding the progress of science and art is seems that Congress has a obligation to do something about it.

(Not that I think they actually will. They are fundamentally corrupt and couldn’t give a crap about science, art, or society.. much less the constitution.)

if you don’t understand that then you really are a moron …if anything this post is hogwash …

When you say ‘this post’ you are talking your post, right? That would generally be the assumed meaning of the phrase.

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Wildberry June 17, 2011 at 9:51 am

@Jeff June 16, 2011 at 2:53 pm

Despite the objections to your style by some, this is the first statement in the article that jumped out at me.

Such a conspiracy theory implies that there is a system in place to grant a patent to a person favored by the “state” over someone who is not. That make the whole discussion center around whether you support facism or communism, or something along those lines.

Stephan tends toward hyperbole, and sometimes it blooms into full-blown conspiracy theories.

Of course, this is pure anti-state rhetoric, and has little to do with the subject of patents, other than a genearl “I hate the State” slogan that launches from the assertion that “We have IP becausae we have the State”; two sentiments that Stephan has repeated often.

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Charles Hanes June 16, 2011 at 3:35 pm

Jeff,

You do not seem to understand that in a free market, if an innovation “make[s] some guy/gal rich”, then by definition, the innovator has in fact helped society, in the estimation of his or her customers. The intention to get rich (or lack of same) on the part of the innovator does not matter.

If the innovator is not producing something that is a benefit to society, then he or she will lose money, not make it.

The purpose of patents is however indeed to “make some guy/gal rich”, by allowing exclusive control of an innovation for a period of time, in the belief that this will help society. This is debatable at best.

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David C June 16, 2011 at 6:32 pm

This touched upon another topic that irritates me. All these foundations that put out property rights, and economic freedom ranking scores. They often include protection of “intellectual property” as a positive in their weightings. I’ve always felt, they should be called out on this.

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Wildberry June 17, 2011 at 10:27 am

Stephan,

You have estimated the costs of patents is somewhere between $21B-$42B; let’s be generous and call it a whopping $50B, (even though to get to $31B the author your cited had to assume all pending litigation was adjudicated in a single year)

In an economy doing $15 Trillion a year, what percentage of that economic activity is affected by patents? The costs that you abhor amount to something like .3% of GDP.

Comparing the patent struggles at the time of the invention of the first telephone and the first airplane has limited utility for examining the current patent system.

In copyrights, the more elaborate the work, the less likely that a similar work could be written independently. I’m unaware of any case to the contrary. Even in the example of music, the number of cases disputing originality are rare, and are usually brought by an obscure artist against a big name. If you eliminate the opportunists trying to pull a fast one, the numbers must be even smaller.

On the other hand, one could make a pretty good argument, when looking at those past patent examples, there was a defense of “obviousness”. The application of electricity was so limited, the pace of innovation was probably a strain on the patent process. Also, the application and dissemination of innovation in the economy had to be a much slower process that today, in general. That is hardly the case in today’s highly complex environment of digital processing, drug development, etc.

You did not rebut his premise that the airplane, while an important innovation, was accomplished despite the fact that there were a number of pre-existing patents that were integrated into the design. Do you dispute this? (I personally don’t know)

You seem to agree with him about Microsoft; he says it happened without patents, and you agree that it was built on a copyright.

Finally, he asserts that patents foster innovation and you respond that an inventor, when he enjoys a monopoly, can rest on his laurels. I think you miss the point.

If an inventor has an idea for an invention, and encounters prior art, he is left with simply copying what already exists (your position) or innovating to move beyond the state of the art (his point). That drives innovation, and gives inventors an incentive for pushing the envelope.

The inventor that is resting on his laurels finds his products are soon obsolete, so he innovates too. In the absence of patents, it is not clear what that dynamic would evolve to. Not even you, as you have often admitted, know the answer to that.

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Stephan Kinsella June 17, 2011 at 12:18 pm

Dingleberry:

If an inventor has an idea for an invention, and encounters prior art, he is left with simply copying what already exists (your position) or innovating to move beyond the state of the art (his point).

Inventors don’t merely copy. It takes effort to bring an idea to market, and often there are other changes made. Innovation is incremental.

That drives innovation, and gives inventors an incentive for pushing the envelope.

Stupid assertion. Immoral too.

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Wildberry June 17, 2011 at 12:59 pm

Skinzilla,

Yes, inventors do so within a context of IP, and don’t merely copy. We agree. Mere copying would not be much a contribution to society or innovation.

And why would they take that “effort to bring an idea to market” if once they did, their products became public domain property?

We agree, innovation is incremental and ongoing. One cannot argue that it is not ongoing because of IP, since this innovation is taking place in an environment where IP exists. You hold that without it, we would have more, and point to the high costs of patent litigation as “proof”.

Maybe so and maybe not. You do not and cannot know. It is an economics policy question; whether a given policy (IP or no IP) will produce the expected outcome. If you are going to pose an economic policy question, since you can’t perform social experiments, you have to rely on economic theory.

What we apparently share, though it is hard to detect at times, is a belief in the soundness of AET. Given that assumption, sooner or later you are going to have to address directly the question I have posed to you numerous times; namely, Mises’s assertion that without IP, producers of intellectual goods, (which is the subject matter of copyrights and patents), would be producing for an external economy.

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Stephan Kinsella June 17, 2011 at 11:05 am

I was speaking of patents only, and the estimate is very conservaitve IMO; if you take copyright and TM into account, my guess is it’s easily tripled, and in fact, I would bet that it’s 10 times as muhc. I would not be surprised if it’s half a trillion or more. But even if it’s “only” $50B, that does not make it trivial just b/c it’s a small slice of our economy. What weird reasoning.

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Inquisitor June 17, 2011 at 11:28 am

Those would be direct costs too. Its anti-competitive costs (which are far harder to gauge) would likely be several orders of magnitude greater in terms of consumer welfare lost due to monopoly privileges awarded to certain firms.

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Stephan Kinsella June 17, 2011 at 12:25 pm

Yes. Honestly I would not be surprsied if it’s in the trillions or tens of trillions. In fact I believe we would be ten or a hundred or a thousand times richer if the state had just been, say, 1/4 its size the last 100 years. Our GDP would be a quadrillion not 15Trillion. And IP plays a huge part of the state’s hampering of the market, its killing off the missing 900 Trillion.

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Wildberry June 17, 2011 at 12:43 pm

One more round of speculation and the cost of IP will exceed the global GDP.

It is weird reasoning to try to account for costs of somethig without considering benefits.

If you are considering patents only, which is what I understood, what portion of the $15T is economic activity related to patented inventions? And what percentage is related to patents that have expired?

I don’t think weird is a strong enough word for trying to horrify us all with the costs, while completely negating the possibility of any positive consequences of IP.

We all know you hate the state, we have IP because we have the state, IP should be completely abolished, etc. etc. etc…

I know its a weird concept, but I am raising the issue of proportionality. Unless you are going to take a stab at costs and benefits, a parade of horrors on the cost side is meaningless.

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Shay June 17, 2011 at 1:56 pm

One more round of speculation and the cost of IP will exceed the global GDP.

Frightening prospect, isn’t it, that IP might be more than halving our productivity?

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Wildberry June 17, 2011 at 3:09 pm

Yes is is.

Oh, and watch out for that MONSTER under your bed. It’s really, really scarry!

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Stephan Kinsella June 17, 2011 at 3:23 pm

Pretty disgusting you are so callous to the wealth destroyed and lives lost and ruined due to your horrible statist protectionism.

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Wildberry June 17, 2011 at 3:56 pm

That was beneath even you.

Yes, Stephan, I am callous to destroying wealth and loosing and ruining lives. I also eat babies.

Why do I do it? Because protecting the State has made me rich and famous and powerful. I support IP so I can bestow it upon my preferred cronies for a kickback. I am the King of the World!

Or, I argue with you on this blog because I think you are wrong and I enjoy the practice of trying to tell you why.

You decide.

My principles here are property rights and economic freedom. The fact that you might say the same, and yet we can so completely disagree on this topic, should be illuminating of something important. I wonder what it could be?

Stephan Kinsella June 17, 2011 at 2:02 pm

Dingleberry:

One more round of speculation and the cost of IP will exceed the global GDP.

It easily could. Imagine the economy as a racehorse capable of galloping at, say, 25mph. But your state parasites are all over it, dragging it, slowing it down. Maybe to 5mph.

Likewise I firmly believe without the state we would be multiples richer. If he state were only half or 1/4 its size, I think the economy would skyrocket and we would be many times richer–like the the horse, if the parasites dropped off, would increase its speed from 5 to 25mph. (L. Neil Smith has a good estimate along these lines, arguing we’d be eight times richer absent state carnage.)

If that is the case, then our $15T economy could easily be $100T, say. What is repsonsible for the missing $85T? Maybe IP causes $20T of it–so what if this is bigger than our current 5mph ($15T)? Taxes another $40T. War, regulations, etc., trillions more. The damage caused can be far in excess of our current GDP.

It is weird reasoning to try to account for costs of somethig without considering benefits.

In fact the opposite is what dishonest iP advocates–or do I repeat myself–do allatime — http://www.mises.org/story/1763 . They claim there are utilitarian reasons for IP but never give evidence.

“Mere copying would not be much a contribution to society or innovation.” It’s competition. That’s good. And suppose 50 people “copy” Beethoven by perfoming his songs on piano around the country. That’s good–it satisfies consumer demand. What’s wrong with this? Why do people have ot show that they are contributing something, to be left alone by your fascist state?

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Wildberry June 17, 2011 at 3:45 pm

Skinzilla,

I’ve told you before where we align is on smaller government. Where we diverge is somewhere between small and zero. No one, not even the great Skinzilla, can quantify the benefits of zero with any certainty. Then again, you are not burdened with the problem of impossibility.

What we can say is that reducing carnage makes more wealth available. Again, we can agree. Someone recently offered the 2.5 year increase in life expectancy in Somalia as evidence of that.

Of course when dealing with the problem of stopping the carnage, the trick is to distinguish the “bad” guys from the “good” ones. This, one presumes, is the value of having principles to guide us.

The principle that I am highlighting here is one of protecting the rights of the producer, balanced against the rights of the consumer. As soon as you seek balance in something, it gets a little tricky. You have to distinguish one thing from another.

For example, one way to defeat the State is to simply burn it all down. That philosophy was recently illustrated in Vancouver. Unfortunately, people who don’t deserve it also get torched. Oh well, collateral damage on our way to anarchy/utopia?

So, you are right about a couple of things here; reduced carnage is a good thing. Competition is a good thing. People who do not contribute shouldn’t be victims of “my” facist state (or beneficiaries…see how this gets tricky now?)

What you are wrong about is that “copying” is “competition”. Depending on how one defines his terms, “copying” can be “unfair competition”. It depends upon ones presumptions and the facts. Darn, it was all so simple before we let those bothersome facts get in the way!

Here is my utilitarian evidence. Drum roll. Are you ready???

Since 1776, we have been on a path of enormous economic, technical, and social innovation. Our standard of living has steadily increased (perhaps until very recently?). We live longer. We have more drugs to cure and treat disease. We have books and the internet and music, both new and old. We have nearly unlimited access to knowledge and information.

All of this has taken place in a world in which IP has been present and operating. If it is a net negative benefit (cost), then we should see something like $15T of costs and no benefits today. To put it another way, the rate of innovation should have come to a screeching halt somewhere in the past 200 years or so, under the burden of IP oppression. Oddly that has not happened.

At the least, one can conclude from this that the impact of IP cannot have been a net negative factor. The best you can say is that without it, we would have been even better off. I doubt that, but that is the best you can say.

REPLY

sweatervest June 17, 2011 at 7:57 pm

“The principle that I am highlighting here is one of protecting the rights of the producer”

But, as people os often point out, it is crazy to think anyone has a right to tell everyone else how they are to use something that they created. Where does a producer get such a right? Why should he have such a right?

“For example, one way to defeat the State is to simply burn it all down. That philosophy was recently illustrated in Vancouver. Unfortunately, people who don’t deserve it also get torched. Oh well, collateral damage on our way to anarchy/utopia?”

Real anarchists would never do such a thing (I know it sounds lame to bicker about who the “real” anarchist is, but allow me to explain my case here). It is stupid to reject violence violently. It is very stupid to try to destroy the state. It will only create a power vacuum and and an excuse for a bigger, more totalitarian state. Those Vancouver people were burning down McDonalds and Starbucks. Those are anti-captalist anarchists types, who are simply confused in the deepest way possible on what anarchy really is.

The state rules by ideology, and that is what the real anarchist goes after.

“People who do not contribute shouldn’t be victims of “my” facist state (or beneficiaries…see how this gets tricky now?”

Well I don’t see that as being so tricky. It is never a problem that anyone is a benefactor of anything. The problem would be in the fact that whatever wealth you are handing out to your benefactors were confiscated from your victims. That is where the problem lies.

“Depending on how one defines his terms, “copying” can be “unfair competition””

I think anti-state types tend to be very suspicious of “unfair competition”. That sounds like it is skirting around anti-trust laws or something similar. What could make competition unfair? Especially considering that if copying is legal, it’s legal for everyone?

“Darn, it was all so simple before we let those bothersome facts get in the way!”

I know this is the part of my theorizing you don’t like, but the facts themselves are never what is relevant. The important part is the connection between facts. Which facts are due to which other facts, which facts are despite other facts, etc. Your underlying theoretical framework determines how one makes such connections. So if we have competing theories the facts themselves do not help us to decide between them (assuming one of them does not contradict the facts, and neither of them do). We have very different interpretations of the same facts, so to decide between those interpretations we must consider the theories on a logical level, independent of any facts.

“Since 1776, we have been on a path of enormous economic, technical, and social innovation. Our standard of living has steadily increased (perhaps until very recently?). We live longer. We have more drugs to cure and treat disease. We have books and the internet and music, both new and old. We have nearly unlimited access to knowledge and information.”

There is a big problem with this interpretation of the facts. In fact, this precise view can establish totalitarianism as beneficial, since at least during the 20th Century while technology pushed forward very fast governments had already gotten as strong as governments had ever gotten (income taxes, conscriptions, tons of regulations/licensing, central banks, etc.).

The problem is only focusing on a part of the problem instead of the whole thing. The standard of living is a function of everything happening in society, not just one aspect like IP. Innovation sped up during the 20th Century, but this is at least partly due to the success of scientific theories in the 19th Century, and those have never been protected under any IP law. My interpretation of these facts is that technological progress is due to relatively capitalist order compared to other places in history, IP being an exception to this. For example, progress happened in the 19th Century, but I think this is thanks to private property recognition and, in the same way, despite the existence of slavery. Had slavery not existed said progress would have been even more rapid than it really was.

So did that increase in innovation happen thanks to IP, or did it happen thanks to scientific progress and in spite of IP (or thanks to some things and despite other things)? That is what the facts themselves can never decide between. We must compare those two theories on a logical level. On a logical level I think it is impossible that IP led to innovation. After all, IP makes illegal certain forms of innovation. Also, for example, copyrights drive up the price of albums and so people can only buy fewer of them and thus fewer artists could be successful playing music. It only makes sense to me that this works against the increased rate of production of music, and that the increase in music production is thanks to everyone with a laptop being able to make music, and in spite of copyright protection, for example.

“All of this has taken place in a world in which IP has been present and operating”

Well, another empirical fact we cannot ignore is that despite what IP laws are on the books, these days, i.e. those days where information is at all our fingertips, most IP laws are hardly enforced at all (at least in the realm of copyright). Even though it drives the lawmakers crazy, we live in a world right now where you can download whatever you want and not expect to get in trouble for it. So it may be present, but to what extent is it really operating?

“If it is a net negative benefit (cost), then we should see something like $15T of costs and no benefits today. To put it another way, the rate of innovation should have come to a screeching halt somewhere in the past 200 years or so, under the burden of IP oppression. Oddly that has not happened.”

No, see our theory does not lead to such a prediction. As long as technological innovation, scientific progress, or anything else that works to increase the rate of creative production has a bigger impact than IP, then the existence of IP will merely slow down technological progress to a rate less than it would be sans IP. The facts cannot tell us how fast progress would be without IP. We must theoretically construct such a scenario. But the point is that our claim is that IP slows the rate of creative production. This does not imply that production comes to a halt or reverses, anymore than the claim that excessive statism (would you agree that the U.S. state is fairly totalitarian these days?) being a drain would imply that progress in general would have to stop under that statism. It just means that without it progress would be faster than it is now.

“At the least, one can conclude from this that the impact of IP cannot have been a net negative factor.”

No, you need to do the whole problem, not just part of it. One can conclude that the impact of IP plus the impact of everything else that is going on in society has cannot have been a net negative factor. But it is still possible that all the positive factors outweigh the negative factor of IP.

“The best you can say is that without it, we would have been even better off. I doubt that, but that is the best you can say.”

That is all we have ever said, and that is all that is implied by claiming IP is a drain on society. As Stephen explained above, you can attach a chain to a horse and drag it back as it is racing. It may race at 5 MPH instead of 20 MPH. It is still racing forward, but that certainly does not imply that your holding it back is actually helping him race.

REPLY

sweatervest June 17, 2011 at 8:59 pm

Forgive me for repeatedly speaking of “our” theories. I have my theory, and Kinsella has his, etc. What I say is an elaboration only on my own take on the problem, even if takes influence from the arguments of others. I certainly cannot speak for anyone but myself.

• Tabarrok and Murphy: Why Are US Drug Prices So High?
• Tabarrok: Patent Policy on the Back of a Napkin

[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:

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.

REPLY

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.

REPLY

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.

REPLY

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.

REPLY

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.

REPLY

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.

REPLY

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*!

REPLY

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.

REPLY

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.

REPLY

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.

REPLY

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.

REPLY

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.

REPLY

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?

REPLY

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.

REPLY

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?

REPLY

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.

REPLY

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?

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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.

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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.

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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.

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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?

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Daniel June 16, 2011 at 10:24 pm

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

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Nuke Gray June 17, 2011 at 12:18 am

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

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Daniel June 17, 2011 at 4:08 am

My bad

D:

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1. 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. [↩]
2. Michele Boldrin & David K. Levine, “Market Size and Intellectual Property Protection,” International Economic Review, Vol. 50, Issue 3, pp. 855-881 (August 2009). [↩]
3. Boldrin & Levine, “Market Size and Intellectual Property Protection.” [↩]
4. 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). [↩]
5. 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. [↩]
6. See my article Reducing the Cost of IP Law. [↩]
7. 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.” [↩]

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

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:

“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.

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?

See also Patent Cross-Licensing Creates Barriers to Entry.

[Mises]

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.

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

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!

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)

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.

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.

Related:

• 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”?“).

Update: Yet another example: Martin Senftleben (University of Amsterdam), “Copyright, Trade Marks and Freedom of Expression – Has the CJEU Developed Appropriate Balancing Frameworks in Pelham II and IKEA?,” CIPIL Evening Seminar, Cambridge Law Faculty (Nov. 2026) (podcast version). Senftleben looks at two 2026 rulings by the EU’s Court of Justice. In Pelham II, the latest round of the decades-long Kraftwerk sampling fight, the Court held that copyright’s “pastiche” exception is not a catch-all, but covers new works that evoke an existing work while being noticeably different from it.¹ In IKEA, the Belgian party Vlaams Belang had branded its immigration program the “IKEA-PLAN” (Immigratie Kan Echt Anders, “Immigration Really Can Be Different”), complete with IKEA’s marks and look-alike assembly-instruction stick figures. The Court held that free expression, including political parody, can in principle be “due cause” for using a famous mark, but that merely invoking free speech isn’t enough, and using a famous brand’s reputation to amplify an unrelated message probably won’t qualify.² Senftleben asks whether these tests leave users enough room and legal certainty to speak, and why copyright (specific parody and pastiche exceptions) and trademark (an open-ended “due cause” defense) handle the same conflict with different tools.

Why does the EU have to “balance” at all? Because its Charter of Fundamental Rights protects intellectual property in Article 17(2) and freedom of expression in Article 11 as fundamental rights of equal rank. Since IP is a restriction on what you may say and do with your own property, the two inevitably collide. And you can’t really blame the judges: they’re required to apply the law as enacted, so when two enactments clash, all they can do is improvise vague, case-by-case “balancing” tests. That’s cold comfort for anyone trying to figure out in advance whether they may make a parody or use a sample. The problem is law made by legislation: there’s no guarantee that one batch of legislation will be compatible with another, since legislators, unlike judges, aren’t bound by precedent.³ Genuine rights are compossible; they never need to be “balanced” against each other. That they must be is a sign that one of them (here, IP) is not a real right at all. Trademark law collides not just with antitrust law, but with free speech too.

And regarding conflicting statutes, see also KOL505 | The Conflict Between AI and Copyright: World Liberty Summit 2026–Bolivia.

1. Case C-590/23, CG and YN v. Pelham GmbH, EU:C:2026:290 (CJEU Grand Chamber, Apr. 14, 2026). [↩]
2. Case C-298/23, Inter IKEA Systems BV v. Algemeen Vlaams Belang VZW (CJEU Grand Chamber, Sept. 8, 2026). [↩]
3. See Kinsella, “KOL505 | The Conflict Between AI and Copyright: World Liberty Summit 2026–Bolivia,” Kinsella on Liberty Podcast (Nov. 11, 2026); idem, “On the Role of Commentators and Codes and the Oracles of the Law,” StephanKinsella.com (July 31, 2025). [↩]